0001171843-16-013085.txt : 20161109 0001171843-16-013085.hdr.sgml : 20161109 20161109153923 ACCESSION NUMBER: 0001171843-16-013085 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 99 CONFORMED PERIOD OF REPORT: 20160930 FILED AS OF DATE: 20161109 DATE AS OF CHANGE: 20161109 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMYRIS, INC. CENTRAL INDEX KEY: 0001365916 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL ORGANIC CHEMICALS [2860] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-34885 FILM NUMBER: 161984032 BUSINESS ADDRESS: STREET 1: 5885 HOLLIS ST SUITE 100 CITY: EMERYVILLE STATE: CA ZIP: 94608 BUSINESS PHONE: 510-450-0761 MAIL ADDRESS: STREET 1: 5885 HOLLIS ST SUITE 100 CITY: EMERYVILLE STATE: CA ZIP: 94608 FORMER COMPANY: FORMER CONFORMED NAME: AMYRIS BIOTECHNOLOGIES INC DATE OF NAME CHANGE: 20060613 10-Q 1 f10q_110716p.htm FORM 10-Q

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

FORM 10-Q

(Mark One)

 

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended September 30, 2016

OR

 

o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the Transition Period from              to

Commission File Number: 001-34885

 

AMYRIS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware   55-0856151

(State or other jurisdiction of

incorporation or organization)

 

 

(I.R.S. Employer

Identification No.)

 

Amyris, Inc.

5885 Hollis Street, Suite 100

Emeryville, CA 94608

(510) 450-0761

(Address and telephone number of principal executive offices)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  x    No  o

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuance to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes  x    No  o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer.

 

Large accelerated filer o Accelerated filer x
Non-accelerated filer o Smaller reporting company o

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  o    No  x

 

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

 

Class Outstanding at October 31, 2016
Common Stock, $0.0001 par value per share 263,016,079

 

 
 

AMYRIS, INC.

QUARTERLY REPORT ON FORM 10-Q

For the Quarterly Period Ended September 30, 2016

 

INDEX

 

    Page
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements (unaudited) 3
Item 2. Management’s  Discussion and Analysis of Financial Condition and Results of Operations 57
Item 3. Quantitative and Qualitative Disclosures About Market Risk 76
Item 4. Controls and Procedures 77
     
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 79
Item 1A. Risk Factors 79
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 108
Item 3. Defaults Upon Senior Securities 109
Item 4. Mine Safety Disclosures 109
Item 5. Other Information 109
Item 6. Exhibits 109
  Signatures  
  Exhibit Index  

 

 

 

 

 

 
 

PART I

ITEM 1. FINANCIAL STATEMENTS

Amyris, Inc.

Condensed Consolidated Balance Sheets

(In Thousands, Except Shares and Per Share Amounts)

(Unaudited)

 

   September 30,
2016
  December 31,
2015
Assets          
Current assets:          
Cash and cash equivalents  $582   $11,992 
Restricted cash   279    216 
Short-term investments   1,713    1,520 
Accounts receivable, net of allowance of $23 and $479, respectively   5,707    4,004 
Related party accounts receivable, net of allowance of $478 and $490, respectively   651    1,176 
Inventories, net   7,899    10,886 
Prepaid expenses and other current assets   4,286    4,583 
Total current assets   21,117    34,377 
Property, plant and equipment, net   63,093    59,797 
Restricted cash   958    957 
Equity and loans in affiliates   34    68 
Other assets   13,657    10,357 
Goodwill and intangible assets   560    560 
Total assets  $99,419   $106,116 
Liabilities and Stockholders' Deficit          
Current liabilities:          
Accounts payable  $13,756   $7,943 
Deferred revenue   7,105    6,509 
Accrued and other current liabilities   34,912    24,268 
Capital lease obligation, current portion   942    523 
Debt, current portion   48,559    36,281 
Related party debt   26,457     
Total current liabilities   131,731    75,524 
Capital lease obligation, net of current portion   56    176 
Long-term debt, net of current portion   63,615    72,854 
Related party debt   37,000    42,839 
Deferred rent, net of current portion   9,123    9,682 
Deferred revenue, net of current portion   4,469    4,469 
Derivative liabilities   6,711    51,439 
Other liabilities   4,212    7,589 
Total liabilities   256,917    264,572 
Mezzanine Equity          
Contingently redeemable common stock   5,000     
Commitments and contingencies (Note 6)          
Stockholders’ deficit:          
Preferred stock - $0.0001 par value, 5,000,000 shares authorized, none issued and outstanding        
Common stock - $0.0001 par value, 500,000,000 and 400,000,000 shares authorized as of September 30, 2016 and December 31, 2015, respectively; 253,364,428 and 206,130,282 shares issued and outstanding as of September 30, 2016 and December 31, 2015, respectively   25    21 
Additional paid-in capital   963,075    926,216 
Accumulated other comprehensive loss   (39,801)   (47,198)
Accumulated deficit   (1,085,683)   (1,037,104)
Total Amyris, Inc. stockholders’ deficit   (162,384)   (158,065)
Noncontrolling interest   (114)   (391)
Total stockholders' deficit   (162,498)   (158,456)
Total liabilities, mezzanine equity and stockholders' deficit  $99,419   $106,116 

 

See the accompanying notes to the unaudited condensed consolidated financial statements.

 

 3 
 

Amyris, Inc.

Condensed Consolidated Statements of Operations

(In Thousands, Except Shares and Per Share Amounts)

(Unaudited)

 

   Three Months Ended
September 30,
  Nine Months Ended
September 30,
   2016  2015  2016  2015
Revenues                    
Renewable product sales  $5,430   $4,226   $13,493   $9,661 
Related party renewable product sales   1,390    2    1,390    2 
Total product sales   6,820    4,228    14,883    9,663 
Grants and collaborations revenue   19,724    4,363    30,071    14,643 
Total revenues   26,544    8,591    44,954    24,306 
Cost and operating expenses                    
Cost of products sold   14,876    8,455    33,945    26,057 
Loss on purchase commitments and impairment of property, plant and equipment       7,259        7,259 
Research and development   12,315    10,343    37,397    33,521 
Sales, general and administrative   11,381    14,103    35,055    42,859 
Total cost and operating expenses   38,572    40,160    106,397    109,696 
Loss from operations   (12,028)   (31,569)   (61,443)   (85,390)
Other income (expense):                    
Interest income   68    61    207    205 
Interest expense   (7,927)   (16,559)   (25,989)   (71,027)
Gain (loss) from change in fair value of derivative instruments   (786)   (21,690)   41,826    (10,268)
Loss upon extinguishment of debt   (217)   (5,984)   (866)   (5,984)
Other income (expense), net   1,334    (168)   (1,912)   (1,204)
Total other income (expense)   (7,528)   (44,340)   13,266    (88,278)
Loss before income taxes and loss from investments in affiliates   (19,556)   (75,909)   (48,177)   (173,668)
Provision for income taxes   (148)   (119)   (402)   (355)
Net loss before loss from investments in affiliates   (19,704)   (76,028)   (48,579)   (174,023)
Loss from investments in affiliates       (660)       (2,089)
Net loss   (19,704)   (76,688)   (48,579)   (176,112)
Net loss attributable to noncontrolling interest       24        78 
Net loss attributable to Amyris, Inc. common stockholders  $(19,704)  $(76,664)  $(48,579)  $(176,034)
Net loss per share attributable to common stockholders:                    
Basic  $(0.08)  $(0.55)  $(0.21)  $(1.76)
Diluted  $(0.08)  $(0.55)  $(0.28)  $(1.76)
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock:                    
Basic   249,190,339    140,374,297    226,772,159    100,103,007 
Diluted   249,190,339    140,374,297    268,375,111    100,103,007 

 

 

See the accompanying notes to the unaudited condensed consolidated financial statements.

 

 4 
 

Amyris, Inc.

Condensed Consolidated Statements of Comprehensive Loss

(In Thousands)

(Unaudited)

 

   Three Months Ended
September 30,
  Nine Months Ended
September 30,
   2016  2015  2016  2015
Comprehensive loss:                    
Net loss  $(19,704)  $(76,688)  $(48,579)  $(176,112)
Foreign currency translation adjustment, net of tax   (1,884)   (10,459)   7,397    (18,562)
Total comprehensive loss   (21,588)   (87,147)   (41,182)   (194,674)
Loss attributable to noncontrolling interest       24        78 
Foreign currency translation adjustment attributable to noncontrolling interest       (145)       (393)
Comprehensive loss attributable to Amyris, Inc.  $(21,588)  $(87,268)  $(41,182)  $(194,989)

 

 

See the accompanying notes to the unaudited condensed consolidated financial statements.

 5 
 

 

Amyris, Inc.

Condensed Consolidated Statements of Stockholders’ Deficit and Mezzanine Equity

(In Thousands, Except Shares)

(Unaudited)

 

   Common Stock                  
   Shares  Amount  Additional
Paid-in
Capital
  Accumulated
Deficit
  Accumulated
Other
Comprehensive
Loss
  Noncontrolling
Interest
  Total
Deficit
  Mezzanine
Equity
December 31, 2015    206,130,282    $ 21    $ 926,216    $ (1,037,104 )  $ (47,198 )  $ (391 )  $ (158,456 )  $  
Issuance of common stock upon exercise of stock options, net of restricted stock   134                             
Issuance of common stock upon conversion of debt   10,430,815    1    9,471                9,472     
Issuance of common stock for settlement of debt principal payments   30,935,344    3    13,506                13,509     
Issuance of warrants with debt private placement and collaboration agreements           4,387                4,387     
Shares issued from restricted stock settlement   1,255,066        (202)               (202)    
Stock-based compensation           5,645                5,645     
Contribution upon restructuring of Fuels JV           4,252                4,252     
Issuance of contingently redeemable common stock   4,385,964                            5,000 
Shares issued upon ESPP purchase   226,823        123                123     
Acquisition of noncontrolling interest           (323)           277    (46)    
Foreign currency translation adjustment                    7,397         7,397     
Net loss               (48,579)           (48,579)    
September 30, 2016   253,364,428   $25   $963,075   $(1,085,683)  $(39,801)  $(114)  $(162,498)  $5,000 

 

 

 

 

 

See the accompanying notes to the unaudited condensed consolidated financial statements.

 

 6 
 

 

Amyris, Inc.

Condensed Consolidated Statements of Cash Flows

(In Thousands)

(Unaudited)

 

   Nine Months Ended September 30,
   2016  2015
Operating activities          
Net loss  $(48,579)  $(176,112)
Adjustments to reconcile net loss to net cash used in operating activities:          
Depreciation and amortization   8,561    9,931 
(Gain)/loss on disposal of property, plant and equipment   (136)   121 
Stock-based compensation   5,645    6,964 
Amortization of debt discount and issuance costs   9,190    54,633 
Loss upon extinguishment of debt   866    5,984 
Loss on purchase commitments and impairment of property, plant and equipment       7,259 
Change in fair value of derivative instruments   (41,826)   10,268 
Loss on foreign currency exchange rates   1,662     
Loss from investments in affiliates       2,089  
Other non-cash expenses   416    414 
Changes in assets and liabilities:          
Accounts receivable   (1,883)   5,161 
Related party accounts receivable   526    (10)
Inventories, net   3,868    3,306 
Prepaid expenses and other assets   (1,334)   (3,218)
Accounts payable   4,306    7,302 
Accrued and other liabilities   13,552    11,430 
Deferred revenue   343    2,666 
Deferred rent   (560)   (405)
Net cash used in operating activities   (45,383)   (52,217)
Investing activities          
Purchase of short-term investments   (3,073)   (1,989)
Maturities of short-term investments   3,296    2,023 
Change in restricted cash       238 
Loan to affiliate       (1,231)
Purchases of property, plant and equipment, net of disposals   (719)   (2,345)
Net cash used in investing activities   (496)   (3,304)
Financing activities          
Proceeds from exercise of common stock, net of repurchase   123    453 
Employees' taxes paid upon vesting of restricted stock units   (202)   (313)
Proceeds from issuance of common stock in private placements, net of issuance costs       25,000 
Proceeds from issuance of contingently redeemable equity   5,000     
Principal payments on capital leases   (977)   (594)
Proceeds from debt issued, net of discounts and issuance costs   13,275    1,607 
Proceeds from debt issued to related parties   25,000    10,850 
Principal payments on debt   (7,442)   (11,249)
Net cash provided by financing activities   34,777    25,754 
Effect of exchange rate changes on cash and cash equivalents   (308 )   (1,377)
Net decrease in cash and cash equivalents   (11,410)   (31,144)
Cash and cash equivalents at beginning of period   11,992    42,047 
Cash and cash equivalents at end of period  $582   $10,903 

 

 

 7 
 

Amyris, Inc.

Condensed Consolidated Statements of Cash Flows—(Continued)

(In Thousands)

 

 

   Nine Months Ended September 30,
   2016  2015
Supplemental disclosures of cash flow information:          
Cash paid for interest  $4,679   $5,859 
Supplemental disclosures of non-cash investing and financing activities:          
Acquisitions of property, plant and equipment under accounts payable, accrued liabilities and notes payable  $(1,485)  $(692)
Financing of equipment  $1,276   $613 
Financing of insurance premium under notes payable  $(315)  $(236)
Interest capitalized to debt  $2,052   $6,354 
Purchase of property, plant and equipment via deposit  $24   $(392)
Private placement issuance costs  $   $(374)
Issuance of common stock upon conversion of debt  $9,471   $ 
Issuance of common stock for settlement of debt principal payments  $13,506   $ 
Cancellation of debt and accrued interest on disposal of interest in affiliate  $4,252   $ 
Non-cash investment in joint venture
  $600   $ 

 

See the accompanying notes to the unaudited condensed consolidated financial statements.

 

 8 
 

 

Amyris, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

 

1. The Company

 

Amyris, Inc. (or "the Company") was incorporated in California on July 17, 2003 and reincorporated in Delaware on June 10, 2010 for the purpose of leveraging breakthroughs in bioscience technology to develop and provide renewable compounds for a variety of markets. The Company is currently applying its industrial synthetic biology platform to engineer, manufacture and sell high performance, low cost products into a variety of consumer and industrial markets, including cosmetics, flavors & fragrances (or "F&F"), solvents and cleaners, polymers, lubricants, healthcare products and fuels, and it is seeking to apply its technology to the development of pharmaceutical products. The Company's first commercialization efforts have been focused on a renewable hydrocarbon molecule called farnesene (Biofene®), which forms the basis for a wide range of products including emollients, flavors and fragrance oils and diesel fuel. While the Company's platform is able to use a wide variety of feedstocks, the Company has focused on Brazilian sugarcane because of its abundance, low cost and relative price stability. The Company has established two principal operating subsidiaries, Amyris Brasil Ltda. (formerly Amyris Brasil S.A., or "Amyris Brasil") for production in Brazil, and Amyris Fuels, LLC (or "Amyris Fuels").

 

The Company's renewable products business strategy is to focus on direct commercialization of specialty products while moving established commodity products into collaboration or joint venture arrangements with leading industry partners. To commercialize its products, the Company must be successful in using its technology to manufacture products at commercial scale and on an economically viable basis (i.e., low per unit production costs) and developing sufficient sales volume for those products to support its operations. The Company's prospects are subject to risks, expenses and uncertainties frequently encountered by companies in this stage of development.

 

Liquidity

 

The Company expects to fund its operations for the foreseeable future with cash and investments currently on hand, cash inflows from collaborations and grants, cash contributions from product sales, and proceeds from new debt and equity financings as well as strategic asset divestments. The Company's planned 2016 and 2017 working capital needs and its planned operating and capital expenditures are dependent on significant inflows of cash from new and existing collaboration partners and from cash generated from renewable product sales, and will also require additional funding from debt or equity financings as well as proceeds from strategic asset divestments.

 

The Company has incurred significant operating losses since its inception and believes that it will continue to incur losses and negative cash flow from operations into at least 2017. As of September 30, 2016, the Company had negative working capital of $110.6 million, an accumulated deficit of $1,085.7 million, and cash, cash equivalents and short term investments of $2.3 million. The Company will need to raise cash from additional financings or strategic asset divestments as early as the fourth quarter of 2016 to support its liquidity needs. These factors raise substantial doubt about the Company’s ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. If the Company is unable to continue as a going concern, it may be unable to meet its obligations under its existing debt facilities, which could result in an acceleration of its obligation to repay all amounts outstanding under those facilities, and it may be forced to liquidate its assets.

 

As of September 30, 2016, the Company's debt, net of discount and issuance costs of $36.1 million, totaled $175.6 million, of which $75.0 million is classified as current. In addition to upcoming debt maturities, the Company's debt service obligations over the next twelve months are significant, including $16.2 million of anticipated cash interest payments. The Company's debt agreements contain various covenants, including certain restrictions on the Company's business that could cause the Company to be at risk of defaults, such as the requirement to maintain unrestricted, unencumbered cash in defined U.S. bank accounts in an amount equal to at least 50% of the principal amount outstanding under its loan facility with Stegodon Corporation (or “Stegodon”), as assignee of Hercules Capital, Inc. As discussed below, in connection with the execution by the Company and Ginkgo Bioworks, Inc., an affiliate of Stegodon, of certain commercial agreements (see Note 8, “Significant Agreements” for further details), on June 29, 2016, the Company received a waiver of compliance with such covenant through October 31, 2016 and on October 6, 2016, the Company and Stegodon entered into an amendment to the loan facility pursuant to which, among other things, Stegodon waived such covenant until the maturity date of the facility. A failure to comply with the covenants and other provisions of the Company’s debt instruments, including any failure to make a payment when required would generally result in events of default under such instruments, which could permit acceleration of such indebtedness. If such indebtedness is accelerated, it would generally also constitute an event of default under the Company’s other outstanding indebtedness, permitting acceleration of such other outstanding indebtedness. Any required repayment of such indebtedness as a result of acceleration or otherwise would consume current cash on hand such that the Company would not have those funds available for use in its business or for payment of other outstanding indebtedness. Please refer to Note 5, “Debt”, Note 6, “Commitments and Contingencies” and Note 18, “Subsequent Events” for further details regarding the Company's debt service obligations and commitments. The Company also has significant outstanding debt and contractual obligations related to capital and operating leases, as well as purchase commitments.

 

 9 
 

In addition to the need for financing described above, the Company may take the following actions to support its liquidity needs through the remainder of 2016 and into 2017:

 

Effect significant headcount reductions, particularly with respect to employees not connected to critical or contracted activities across all functions of the Company, including employees involved in general and administrative, research and development, and production activities.

 

Shift focus to existing products and customers with significantly reduced investment in new product and commercial development efforts.

 

Reduce production activity at the Company’s Brotas manufacturing facility to levels only sufficient to satisfy volumes required for product revenues forecast from existing products and customers.

 

Reduce expenditures for third party contractors, including consultants, professional advisors and other vendors.

 

Reduce or delay uncommitted capital expenditures, including non-essential facility and lab equipment, and information technology projects.

 

Closely monitor the Company’s working capital position with customers and suppliers, as well as suspend operations at pilot plants and demonstration facilities.

 

Implementing this plan could have a negative impact on the Company's ability to continue its business as currently contemplated, including, without limitation, delays or failures in its ability to:

 

Achieve planned production levels;

 

Develop and commercialize products within planned timelines or at planned scales; and

 

Continue other core activities.

 

Furthermore, any inability to scale-back operations as necessary, and any unexpected liquidity needs, could create pressure to implement more severe measures. Such measures could have an adverse effect on the Company's ability to meet contractual requirements, including obligations to maintain manufacturing operations, and increase the severity of the consequences described above.

 

 10 
 

2. Summary of Significant Accounting Policies

 

Basis of Presentation

 

The accompanying interim condensed consolidated financial statements have been prepared in accordance with the accounting principles generally accepted in the United States of America (or “GAAP”) and with the instructions for Form 10-Q and Regulation S-X. Accordingly, they do not include all of the information and notes required for complete financial statements. These interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto contained in the Company’s Form 10-K for the fiscal year ended December 31, 2015 as filed with the Securities and Exchange Commission (or the “SEC”) on March 30, 2016. The unaudited condensed consolidated financial statements include the accounts of the Company and its consolidated subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.

 

The Company uses the equity method to account for investments in companies, if its investments provide it with the ability to exercise significant influence over operating and financial policies of the investee. Consolidated net income or loss includes the Company’s proportionate share of the net income or loss of these companies. Judgments made by the Company regarding the level of influence over each equity method investment include considering key factors such as the Company’s ownership interest, representation on the board of directors, participation in policy-making decisions and material intercompany transactions.

 

Principles of Consolidation

 

The condensed consolidated financial statements of the Company include the accounts of Amyris, Inc., its subsidiaries and two consolidated variable interest entities (or “VIEs”), with respect to which the Company is considered the primary beneficiary, after elimination of intercompany accounts and transactions. Disclosure regarding the Company’s participation in the VIEs is included in Note 7, "Joint Ventures and Noncontrolling Interest."

 

Variable Interest Entities

 

The Company has interests in joint venture entities that are VIEs. Determining whether to consolidate a VIE requires judgment in assessing (i) whether an entity is a VIE and (ii) if the Company is the entity’s primary beneficiary and thus required to consolidate the entity. To determine if the Company is the primary beneficiary of a VIE, the Company evaluates whether it has (i) the power to direct the activities that most significantly impact the VIE’s economic performance and (ii) the obligation to absorb losses or the right to receive benefits of the VIE that could potentially be significant to the VIE. The Company’s evaluation includes identification of significant activities and an assessment of its ability to direct those activities based on governance provisions and arrangements to provide or receive product and process technology, product supply, operations services, equity funding and financing and other applicable agreements and circumstances. The Company’s assessment of whether it is the primary beneficiary of its VIEs requires significant assumptions and judgment.

 

Use of Estimates

 

In preparing the unaudited condensed consolidated financial statements, management must make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the unaudited condensed consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

 

Unaudited Interim Financial Information

 

The accompanying interim condensed consolidated financial statements and related disclosures are unaudited, have been prepared on the same basis as the annual consolidated financial statements, except for the impact of adoption of certain accounting standards as described below, and in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary for a fair statement of the results of operations for the periods presented. In the quarter ended March 31, 2016 the Company adopted Accounting Standards Update (“ASU”) No. 2015-01, Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items, ASU No. 2015-02, Consolidation (Topic 810), ASU No. 2015-03, Interest - Imputation of Interest (Subtopic 835-30): Simplifying the Presentation of Debt Issuance Costs, ASU 2015-05, Intangibles - Goodwill and Other - Internal-Use Software (Subtopic 350-40) and ASU No. 2015-15, Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements. Refer to Note 5. "Debt" for the impact of adoption of ASU No. 2015-03 on the Company's condensed consolidated financial statements. None of the other ASU’s adopted had a material impact on the Company’s condensed consolidated financial statements.

 

 11 
 

The year-end condensed consolidated balance sheet data was derived from audited financial statements, but does not include all disclosures required by GAAP. The condensed consolidated results of operations for any interim period are not necessarily indicative of the results to be expected for the full year or for any other future year or interim period.

 

Recent Accounting Pronouncements

 

In October 2016, the Financial Accounting Standards Board (or “FASB”) issued ASU 2016-16, Intra-Entity Transfers of Assets Other Than Inventory on simplifying the accounting for income taxes related to intra-entity asset transfers. The new guidance allows an entity to recognize the tax expense from the sale of an asset in the seller’s tax jurisdiction when the transfers occurs, even though the pre-tax effects of that transaction are eliminated in consolidation. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017. Early adoption is permitted only in the first quarter of 2017. The Company is evaluating the impact of adopting this new accounting standard update on the financial statements and related disclosures.

 

In August 2016, the FASB issued ASU 2016-15 Classification of Certain Cash Receipts and Cash Payments on the statement of cash flows. The new guidance clarifies classification of certain cash receipts and cash payments in the statement of cash flows. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption is permitted. The Company is evaluating the impact of adopting this new accounting standard update on the financial statements and related disclosures.

 

In June 2016, the Financial Accounting Standards Board (or “FASB”) issued ASU No. 2016-13, Allowance for Loan and Lease Losses (Financial Instruments - Credit Losses Topic 326.). New impairment guidance for certain financial instruments (including trade receivables) will replace the current “incurred loss” model for estimating credit losses with a forward looking “expected loss” model. The ASU is effective for the Company for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years. Early application is permitted as of the fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The Company is evaluating the impact of this standard on its consolidated financial statements.

 

In March 2016, the FASB issued ASU No. 2016-09, Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting. This ASU identifies areas for simplification involving several aspects of accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, an option to recognize gross stock compensation expense with actual forfeitures recognized as they occur, as well as certain classifications on the statement of cash flows. This ASU will be effective for fiscal years beginning after December 15, 2016, and interim periods within those annual periods. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted.

 

In March 2016, the FASB issued ASU No. 2016-06, Contingent Put and Call Options in Debt Instruments. The amendments in this ASU clarify the requirements for assessing whether contingent call (put) options that can accelerate the payment of principal on debt instruments are clearly and closely related to their debt hosts. An entity performing the assessment under the amendments in this ASU is required to assess the embedded call (put) options solely in accordance with the four-step decision sequence. The ASU is effective for financial statements issued for fiscal years beginning after December 15, 2016, and interim periods within those fiscal years. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its financial statements.

 

In February 2016, the FASB issued Accounting Standards Update (or “ASU”) 2016-02-Leases with fundamental changes to how entities account for leases. Lessees will need to recognize a right-of-use asset and a lease liability for virtually all of their leases (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. Additional disclosures for leases will also be required. The standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. Early adoption is permitted. The new standard must be adopted using a modified retrospective transition, and provides for certain practical expedients. The new standard may materially impact the Company’s financial statements.

 

In January 2016, the FASB issued ASU 2016-01 Financial Instruments-Overall, which address certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The amendments in this Update are effective for fiscal years beginning after December 15, 2017, including interim periods within those fiscal years. Earlier application is permitted under specific circumstances. The Company is currently assessing the potential impact of this standard on its consolidated financial statements.

 

 12 
 

In July 2015, the FASB issued ASU 2015-11, Simplifying the Measurement of Inventory, which requires that inventory within the scope of the guidance be measured at the lower of cost and net realizable value. The new standard is being issued as part of the simplification initiative. Prior to the issuance of the standard, inventory was measured at the lower of cost or market (where market was defined as replacement cost, with a ceiling of net realizable value and floor of net realizable value less a normal profit margin). The new guidance will be effective for fiscal years beginning after December 15, 2016, including interim periods within those years. Prospective application is required and early adoption is permitted. The Company is currently assessing the impact of adopting this new accounting standard on its financial statements.

 

In August 2014, the FASB issued new guidance related to the disclosure around going concern. The new standard provides guidance around management's responsibility to evaluate whether there is substantial doubt about an entity's ability to continue as a going concern and to provide related footnote disclosure if substantial doubt exists. The new standard is effective for annual periods ending after December 15, 2016 and for annual periods and interim periods thereafter. Early adoption is permitted. The adoption of this standard is not expected to have a material impact on the Company's financial statements.

 

In May 2014, the FASB issued new guidance related to revenue recognition. In March, April and May 2016, the FASB issued additional amendments to the new revenue guidance relating to reporting revenue on a gross versus net basis, identifying performance obligations, licensing arrangements, collectability, noncash consideration, presentation of sales tax, and transition. This new standard will replace all current GAAP guidance on this topic and eliminate all industry-specific guidance. The new revenue recognition update guidance provides a unified model to determine how revenue is recognized. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The FASB has issued several updates to the standard which i) clarify the application of the principal versus agent guidance (ASU 2016-08); ii) clarify the guidance on inconsequential and perfunctory promises and licensing (ASU 2016-10) and iii) narrow-scope improvements and practical expedients (ASU 2016-12). On July 9, 2015, the FASB voted to defer the effective date by one year to December 15, 2017 for interim and annual reporting periods beginning after that date and permitted early adoption of the standard, but not before the original effective date of December 15, 2016. Entities have the option of using either a full retrospective or a modified retrospective approach to adopt the new standard. Therefore, the new standard will be effective commencing with our quarter ending March 31, 2018. The Company is currently assessing the potential impact of this new standard on its consolidated financial statements and has not selected the transition method.

 

 

3. Fair Value of Financial Instruments

 

The inputs to the valuation techniques used to measure fair value are classified into the following categories:

 

Level 1: Quoted market prices in active markets for identical assets or liabilities.

 

Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data.

 

Level 3: Unobservable inputs that are not corroborated by market data.

 

 13 
 

There were no transfers between the levels, and as of September 30, 2016, the Company’s financial assets and financial liabilities at fair value were classified within the fair value hierarchy as follows (in thousands):

 

   Level 1  Level 2  Level 3  Balance as of
September 30,
2016
Financial Assets                    
Money market funds  $59   $   $   $59 
Certificates of deposit   1,713            1,713 
Total financial assets  $1,772   $   $   $1,772 
Financial Liabilities                    
Loans payable (1)  $   $34,146   $   $34,146 
Credit facilities  (1)       19,310        19,310 
Convertible notes (1)           109,885    109,885 
Compound embedded derivative liabilities           3,827    3,827 
Currency interest rate swap derivative liability       3,471        3,471 
Total financial liabilities  $   $56,927   $113,712   $170,639 

(1) These liabilities are carried on the condensed consolidated balance sheet on a historical cost basis.

 

The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires management to make judgments and consider factors specific to the asset or liability. The fair values of money market funds and certificates of deposit are based on fair values of identical assets. The fair values of the loans payable, convertible notes, credit facilities and currency interest rate swaps are based on the present value of expected future cash flows and assumptions about current interest rates and the creditworthiness of the Company. The method of determining the fair value of the compound embedded derivative liabilities is described subsequently in this note. Market risk associated with the fixed and variable rate long-term loans payable, credit facilities and convertible notes relates to the potential reduction in fair value and negative impact to future earnings, from an increase in interest rates. Market risk associated with the compound embedded derivative liabilities relates to the potential reduction in fair value and negative impact to future earnings from a decrease in interest rates.

 

The carrying amounts of certain financial instruments, such as cash equivalents, accounts receivable, accounts payable and accrued liabilities, approximate fair value due to their relatively short maturities and low market interest rates, if applicable.

 

As of December 31, 2015, the Company’s financial assets and financial liabilities are presented below at fair value and were classified within the fair value hierarchy as follows (in thousands):

 

   Level 1  Level 2  Level 3  Balance as of
December 31,
2015
Financial Assets                    
Money market funds  $2,078   $   $   $2,078 
Certificates of deposit   1,520            1,520 
Total financial assets  $3,598   $   $   $3,598 
Financial Liabilities                    
Loans payable (1)  $   $9,541   $   $9,541 
Credit facilities  (1)       34,893        34,893 
Convertible notes (1)           96,291    96,291 
Compound embedded derivative liabilities           46,430    46,430 
Currency interest rate swap derivative liability       5,009        5,009 
Total financial liabilities  $   $49,443   $142,721   $192,164 

_______

(1) These liabilities are carried on the consolidated balance sheet on a historical cost basis (noting that the Remaining Notes subject to the Maturity Treatment Agreement were revalued to fair value on July 29, 2015, see Note 5 “Debt” for details).

 

 14 
 

The following table provides a reconciliation of the beginning and ending balances for the convertible notes disclosed at fair value using significant unobservable inputs (Level 3) (in thousands):

 

   2016
Balance at January 1  $96,291 
Additions of convertible notes   13,000 
Conversion/extinguishment of convertible notes   (21,579)
Change in fair value of convertible notes   22,173 
Balance at September 30  $109,885 

 

Derivative Instruments

 

The following table provides a reconciliation of the beginning and ending balances for the compound embedded derivative liabilities measured at fair value using significant unobservable inputs (Level 3) (in thousands):

 

   2016
Balance at January 1  $46,430 
Derecognition on conversion/extinguishment   (2,734)
Gain from change in fair value of derivative liabilities   (39,869)
Balance at September 30  $3,827 

 

The compound embedded derivative liabilities represent the fair value of the equity conversion options and "make-whole" provisions, as well as the down round conversion price adjustment or conversion rate adjustment provisions of the R&D Notes, the Tranche I Notes, the Tranche II Notes, the 2014 144A Notes and the 2015 144A Notes (see Note 5, "Debt"). There is no current observable market for these types of derivatives and, as such, the Company determined the fair value of the embedded derivatives using a Monte Carlo simulation valuation model for the R&D Notes and the binomial lattice model for the Tranche I Notes, the Tranche II Notes, the 2014 144A Notes and the 2015 144A Notes (collectively, "the Convertible Notes"). A Monte Carlo simulation valuation model combines expected cash outflows with market-based assumptions regarding risk-adjusted yields, stock price volatility, probability of a change of control and the trading information of the Company's common stock into which the notes are or may be convertible. A binomial lattice model generates two probable outcomes - one up and another down - arising at each point in time, starting from the date of valuation until the maturity date. A lattice model was used to determine if the Convertible Notes would be converted, called or held at each decision point. Within the lattice model, the following assumptions are made: (i) the Convertible Notes will be converted early if the conversion value is greater than the holding value and (ii) the Convertible Notes will be called if the holding value is greater than both (a) redemption price and (b) the conversion value at the time. If the Convertible Notes are called, then the holder will maximize their value by finding the optimal decision between (1) redeeming at the redemption price and (2) converting the Convertible Notes. Using this lattice method, the Company valued the embedded derivatives using the "with-and-without method", where the fair value of the Convertible Notes including the embedded derivative is defined as the "with", and the fair value of the Convertible Notes excluding the embedded derivatives is defined as the "without". This method estimates the fair value of the embedded derivatives by looking at the difference in the values between the Convertible Notes with the embedded derivatives and the fair value of the Convertible Notes without the embedded derivatives. The lattice model uses the stock price, conversion price, maturity date, risk-free interest rate, estimated stock volatility and estimated credit spread. The Company marks the compound embedded derivatives to market due to the conversion price not being indexed to the Company's own stock. As of September 30, 2016 and December 31, 2015, included in "Derivative Liabilities" on the condensed consolidated balance sheet are the Company's compound embedded derivative liabilities of $3.8 million and $46.4 million, respectively.

 

 15 
 

The market-based assumptions and estimates used in valuing the compound embedded derivative liabilities include amounts in the following ranges/amounts:

 

   September 30, 2016  September 30, 2015
Risk-free interest rate   0.20% - 0.84%  0.93% - 1.07%
Risk-adjusted yields  17.30% - 27.43%  24.40% - 39.90%
Stock-price volatility   45%    45% 
Probability of change in control   5%    5% 
Stock price   $0.58    $2.01 
Credit spread  16.49% - 26.60%  28.81% - 38.83%
Estimated conversion dates  2016 - 2019  2015 - 2019

 

Changes in valuation assumptions can have a significant impact on the valuation of the embedded derivative liabilities. For example, all other things being equal, a decrease/increase in the Company’s stock price, probability of change of control, credit spread, term to maturity/conversion or stock price volatility decreases/increases the valuation of the liabilities, whereas a decrease/increase in risk adjusted yields or risk-free interest rates increases/decreases the valuation of the liabilities. The conversion price of certain of the Convertible Notes also include conversion price adjustment features where, for example, issuances of common stock by the Company at prices lower than the conversion price result in a reset of the conversion price of such notes, which increases the value of the embedded derivative liabilities. See Note 5, "Debt" for further details of conversion price adjustment features.

 

In June 2012, the Company entered into a loan agreement with Banco Pine S.A. (or "Banco Pine") under which Banco Pine provided the Company with a loan (or the "Banco Pine Bridge Loan") (see Note 5, "Debt"). At the time of the Banco Pine Bridge Loan, the Company also entered into a currency interest rate swap arrangement with Banco Pine with respect to the repayment of R$22.0 million (approximately US$6.8 million based on the exchange rate as of September 30, 2016) of the Banco Pine Bridge Loan. The swap arrangement exchanges the principal and interest payments under the Banco Pine Bridge Loan for alternative principal and interest payments that are subject to adjustment based on fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real. The swap has a fixed interest rate of 3.94%. Changes in the fair value of the swap are recognized in “Gain (loss) from change in fair value of derivative instruments" in the condensed consolidated statements of operations are as follows (in thousands):

 

   Income
Statement Classification
  Three Months Ended
September 30,
  Nine Months Ended
September 30,
Type of Derivative Contract     2016  2015  2016  2015
Currency interest rate swap  Gain (loss) from change in fair value of derivative instruments  $(145)  $(1,796)  $1,957   $(3,201)

 

Derivative instruments measured at fair value as of September 30, 2016 and December 31, 2015, and their classification on the condensed consolidated balance sheets are as follows (in thousands):

 

   September 30,
 2016
  December 31,
2015
Fair market value of compound embedded derivative liabilities  $3,827   $46,430 
Fair value of  swap obligations   3,471    5,009 
Total derivative liabilities  $7,298   $51,439 

 

 16 
 

4. Balance Sheet Components

 

Inventories, net

 

Inventories, net are stated at the lower of cost or market and comprise of the following (in thousands):

 

   September 30,
 2016
  December 31,
 2015
Raw materials  $2,664   $2,204 
Work-in-process   1,809    3,583 
Finished goods   3,426    5,099 
Inventories, net  $7,899   $10,886 

 

 

Property, Plant and Equipment, net

 

Property, plant and equipment, net is comprised of the following (in thousands):

 

   September 30,
2016
  December 31,
2015
Machinery and equipment  $85,538   $72,876 
Leasehold improvements   38,791    38,519 
Computers and software   9,545    9,117 
Buildings   4,718    3,922 
Furniture and office equipment   2,335    2,234 
Vehicles   195    215 
Construction in progress   6,430    5,736 
    147,552    132,619 
Less: accumulated depreciation and amortization   (84,459)   (72,822)
Property, plant and equipment, net  $63,093   $59,797 

 

The Company's first, purpose-built, large-scale Biofene production plant in southeastern Brazil commenced operations in December 2012. This plant is located at Brotas in the state of São Paulo, Brazil and is adjacent to an existing sugar and ethanol mill, Tonon Bioenergia S.A. (or “Tonon”) (formerly Paraíso Bioenergia) with which the Company has an agreement to purchase a certain number of tons of sugarcane per year, along with specified water and vapor volumes.

 

Property, plant and equipment, net includes $2.3 million and $2.7 million of machinery and equipment under capital leases as of September 30, 2016 and December 31, 2015, respectively. Accumulated amortization of assets under capital leases totaled $0.4 million and $0.5 million as of September 30, 2016 and December 31, 2015, respectively.

 

Depreciation and amortization expense, including amortization of assets under capital leases was $2.9 million and $3.1 million for the three months ended September 30, 2016 and 2015, respectively, and $8.6 million and $9.9 million for the nine months ended September 30, 2016 and 2015, respectively.

 

 17 
 

Other Assets (non-current)

 

Other assets are comprised of the following (in thousands):

 

   September 30,
 2016
  December 31,
2015
Recoverable taxes from Brazilian government entities  $11,955   $8,887 
Deposits on property and equipment, including taxes   292    243 
Other   1,410    1,227 
Total other assets  $13,657   $10,357 

 

Accrued and Other Current Liabilities

 

Accrued and other current liabilities are comprised of the following (in thousands):

 

   September 30,
2016
  December 31,
2015
Withholding tax related to conversion of related party notes  $4,964   $4,723 
Professional services   5,406    4,017 
SMA relocation accrual   4,380    3,641 
Accrued interest   8,283    1,984 
Tax-related liabilities   2,325    2,505 
Accrued vacation   1,932    2,023 
Payroll and related expenses   4,268    3,122 
Deferred rent, current portion   1,110    1,111 
Contractual obligations to contract manufacturers   680     
Fair value swap short-term   586     
Other   978    1,142 
Total accrued and other current liabilities  $34,912   $24,268 

 

5. Debt and Mezzanine Equity

 

Debt and mezzanine equity are comprised of the following (in thousands):

 

   September 30,
2016
  December 31,
2015
       
Senior secured loan facility  $28,438   $31,590 
BNDES credit facility   1,471    1,956 
FINEP credit facility   777    840 
Total credit facilities   30,686    34,386 
Convertible notes   68,533    61,233 
Related party convertible notes   40,611    42,749 
Related party loan payable   22,847     
Loans payable   12,954    13,606 
Total debt   175,631    151,974 
Less: current portion   (75,016)   (36,281)
Long-term debt  $100,615   $115,693 
Mezzanine equity(1)   5,000      

 _____________

(1)See Note 8, "Significant Agreements" for details regarding the Bill & Melinda Gates Foundation Investment, classified as mezzanine equity.

 

 18 
 

Senior Secured Loan Facility

 

In March 2014, the Company entered into a Loan and Security Agreement with Hercules Technology Growth Capital, Inc. (or “Hercules”) to make available to Amyris a loan facility in the aggregate principal amount of up to $25.0 million (or the "Senior Secured Loan Facility"), which loan facility was fully drawn at the closing. The initial loan of $25.0 million under the Senior Secured Loan Facility accrues interest at a rate per annum equal to the greater of either the prime rate reported in the Wall Street Journal plus 6.25% or 9.50%. The Company may repay the outstanding amounts under the Senior Secured Credit Facility before the maturity date (February 1, 2017) if it pays an additional fee of 1% of the outstanding loans. The Company was also required to pay a 1% facility charge at the closing of the Senior Secured Credit Facility, and is required to pay a 10% end of term charge with respect to the initial loan of $25.0 million. In connection with the execution of the Senior Secured Loan Facility, Amyris agreed to certain customary representations and warranties and covenants, as well as certain covenants that were subsequently amended (as described below).

 

In June 2014, the Company and Hercules entered into a first amendment of the Senior Secured Loan Facility. Pursuant to the first amendment, the parties agreed to adjust the term loan maturity date from May 31, 2015 to February 1, 2017 and remove (i) a requirement for the Company to pay a forbearance fee of $10.0 million in the event certain covenants were not satisfied, (ii) a covenant that the Company maintain positive cash flow commencing with the fiscal quarter beginning October 1, 2014, (iii) a covenant that, beginning with the fiscal quarter beginning July 1, 2014, the Company and its subsidiaries achieve certain projected cash product revenues and projected cash product gross profits, and (iv) an obligation for the Company to file a registration statement on Form S-3 with the SEC by no later than June 30, 2014 and complete an equity financing of more than $50.0 million by no later than September 30, 2014. The Company further agreed to include a new covenant requiring the Company to maintain unrestricted, unencumbered cash in defined U.S. bank accounts in an amount equal to at least 50% of the principal amount then outstanding under the Senior Secured Loan Facility (or the “Minimum Cash Covenant”) and borrow an additional $5.0 million. The additional $5.0 million borrowing was completed in June 2014, and accrues interest at a rate per annum equal to the greater of (i) the prime rate reported in the Wall Street Journal plus 5.25% and (ii) 8.5%.

 

In March 2015, the Company and Hercules entered into a second amendment of the Senior Secured Loan Facility. Pursuant to the second amendment, the parties agreed to, among other things, establish an additional credit facility in the principal amount of up to $15.0 million, which would be available to be drawn by the Company through the earlier of March 31, 2016 or such time as the Company raised an aggregate of at least $20.0 million through the sale of new equity securities. Under the terms of the second amendment, the Company agreed to pay Hercules a 3.0% facility availability fee on April 1, 2015. The Company had the ability to cancel the additional facility at any time prior to June 30, 2015 at its own option, and the additional facility would terminate upon the Company securing a new equity financing of at least $20.0 million. If the facility was not canceled, and any outstanding borrowings were not repaid, before June 30, 2015, an additional 5.0% facility fee would become payable on June 30, 2015. The Company did not cancel the facility prior to June 30, 2015, and the 5.0% facility fee became payable as of June 30, 2015. The Company did not pay the additional facility fee and thereafter received a waiver from Hercules with respect thereto. The additional facility was cancelled undrawn upon the completion of the Company’s private offering of common stock and warrants in July 2015.

 

In November 2015, the Company and Hercules entered into a third amendment of the Senior Secured Loan Facility. Pursuant to the third amendment, the Company borrowed $10,960,000 (or the “Third Amendment Borrowed Amount”) from Hercules on November 30, 2015. As of December 1, 2015, after the funding of the Third Amendment Borrowed Amount (and including repayment of $9.1 million of principal that had occurred prior to the third amendment), the aggregate principal amount outstanding under the Senior Secured Loan Facility was approximately $31.7 million. The Third Amendment Borrowed Amount accrues interest at a rate per annum equal to the greater of (i) 9.5% and (ii) the prime rate reported in the Wall Street Journal plus 6.25%, and, like the previous loans under the Senior Secured Loan Facility, has a maturity date of February 1, 2017. Upon the earlier of the maturity date, prepayment in full or such obligations otherwise becoming due and payable, in addition to repaying the outstanding Third Amendment Borrowed Amount (and all other amounts owed under the Senior Secured Loan Facility, as amended), the Company is also required to pay an end-of-term charge of $767,200. Pursuant to the third amendment, the Company also paid Hercules fees of $1.0 million, $750,000 of which was owed in connection with the expired $15.0 million facility under the second amendment and $250,000 of which was related to the Third Amendment Borrowed Amount. Under the third amendment, the parties agreed that the Company would, commencing on December 1, 2015, be required to pay only the interest accruing on all outstanding loans under the Senior Secured Loan Facility until February 29, 2016. Commencing on March 1, 2016, the Company would have been required to begin repaying principal of all loans under the Senior Secured Loan Facility, in addition to the applicable interest. However, pursuant to the third amendment, the Company could, by achieving certain cash inflow targets in 2016, extend the interest-only period to December 1, 2016. Upon the issuance by the Company of $20.0 million of unsecured promissory notes and warrants in a private placement in February 2016 for aggregate cash proceeds of $20.0 million, the Company satisfied the conditions for extending the interest-only period to May 31, 2016. On June 1, 2016, the Company commenced the repayment of outstanding principal under the Senior Secured Loan Facility. In June 2016, the Company was notified by Hercules that it had transferred and assigned its rights and obligations under the Senior Secured Loan Facility to Stegodon Corporation (or “Stegodon”). On June 29, 2016, in connection with the execution by the Company and Ginkgo Bioworks, Inc., an affiliate of Stegodon, of an initial strategic partnership agreement, the Company received a deferment from Stegodon of all scheduled principal repayments under the Senior Secured Loan Facility, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016. Refer to Note 8, “Significant Agreements” for additional details. On October 6, 2016, in connection with the execution by the Company and Ginkgo Bioworks, Inc. of a definitive collaboration agreement, the Company and Stegodon entered into a fourth amendment of the Senior Secured Loan Facility, pursuant to which the parties agreed to (i) subject to the Company extending the maturity of certain of its other outstanding indebtedness, extend the maturity date of the Senior Secured Loan Facility, (ii) make the Senior Secured Loan Facility interest-only until maturity, subject to the requirement that the Company apply certain monies received under the collaboration agreement between the Company and Ginkgo Bioworks, Inc. to repay the amounts outstanding under the Senior Secured Loan Facility, up to a maximum amount of $1 million per month and (iii) waive the Minimum Cash Covenant until the maturity date of the Senior Secured Loan Facility. Refer to Note 8, “Significant Agreements” and Note 18, “Subsequent Events” for additional details.

 

 19 
 

As of September 30, 2016, $28.4 million was outstanding under the Senior Secured Loan Facility, net of discount and issuance costs of $0.1 million. The Senior Secured Loan Facility is secured by liens on the Company's assets, including on certain Company intellectual property. The Senior Secured Loan Facility includes customary events of default, including failure to pay amounts due, breaches of covenants and warranties, material adverse effect events, certain cross defaults and judgments, and insolvency. If an event of default occurs, Stegodon may require immediate repayment of all amounts outstanding under the Senior Secured Loan Facility. The Company was in compliance with the covenants under the Senior Secured Loan Facility as of September 30, 2016.

 

BNDES Credit Facility

 

In December 2011, the Company entered into a credit facility with the Brazilian Development Bank (or “BNDES” and such credit facility, the “BNDES Credit Facility”) in the amount of R$22.4 million (approximately US$6.9 million based on the exchange rate as of September 30, 2016). This BNDES Credit Facility was extended as project financing for a production site in Brazil. The credit line was divided into an initial tranche of up to approximately R$19.1 million and an additional tranche of approximately R$3.3 million that would become available upon delivery of additional guarantees. The credit line was cancelled in 2013.

 

The principal of the loans under the BNDES Credit Facility is required to be repaid in 60 monthly installments, with the first installment paid in January 2013 and the last due in December 2017. Interest was due initially on a quarterly basis with the first installment due in March 2012. From and after January 2013, interest payments are due on a monthly basis together with principal payments. The loaned amounts carry interest of 7% per annum. Additionally, there is a credit reserve charge of 0.1% on the unused balance from each credit installment from the day immediately after it is made available through its date of use, when it is paid.

 

The BNDES Credit Facility is collateralized by a first priority security interest in certain of the Company's equipment and other tangible assets totaling R$24.9 million (approximately $7.7 million based on the exchange rate as of September 30, 2016). The Company is a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, the Company was required to provide a bank guarantee equal to 10% of the total approved amount (R$22.4 million in total debt) available under the BNDES Credit Facility. For advances of the second tranche (above R$19.1 million), the Company is required to provide additional bank guarantees equal to 90% of each such advance, plus additional Company guarantees equal to at least 130% of such advance. The BNDES Credit Facility contains customary events of default, including payment failures, failure to satisfy other obligations under this credit facility or related documents, defaults in respect of other indebtedness, bankruptcy, insolvency and inability to pay debts when due, material judgments, and changes in control of Amyris Brasil. If any event of default occurs, BNDES may terminate its commitments and declare immediately due all borrowings under the facility. As of September 30, 2016 and December 31, 2015, the Company had R$4.8 million (approximately US$1.5 million based on the exchange rate as of September 30, 2016) and R$7.6 million (approximately US$1.9 million based on the exchange rate as of December 31, 2015), respectively, in outstanding advances under the BNDES Credit Facility.

 

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FINEP Credit Facility

 

In November 2010, the Company entered into a credit facility with Financiadora de Estudos e Projetos (or the “FINEP Credit Facility”). The FINEP Credit Facility was extended to partially fund expenses related to the Company’s research and development project on sugarcane-based biodiesel (or the “FINEP Project”) and provided for loans of up to an aggregate principal amount of R$6.4 million (approximately US$2.0 million based on the exchange rate as of September 30, 2016), which is secured by a chattel mortgage on certain equipment of Amyris Brasil as well as by bank letters of guarantee. All available credit under this facility is fully drawn.

 

Interest on loans drawn under the FINEP Credit Facility is fixed at 5% per annum. In case of default under or non-compliance with the terms of the agreement, the interest on loans will be dependent on the long-term interest rate as published by the Central Bank of Brazil (such rate, the “TJLP”). If the TJLP at the time of default is greater than 6%, then the interest will be 5% plus a TJLP adjustment factor, otherwise the interest will be 11% per annum. In addition, a fine of up to 10% shall apply to the amount of any obligation in default. Interest on late balances will be 1% per month, levied on the overdue amount. Payment of the outstanding loan balance is being made in 81 monthly installments, which commenced in July 2012 and extends through March 2019. Interest on loans drawn and other charges are paid on a monthly basis and commenced in March 2011. As of September 30, 2016 and December 31, 2015, the total outstanding loan balance under this credit facility was R$2.5 million (approximately US$0.8 million based on the exchange rate as of September 30, 2016) and R$3.4 million (approximately US$0.9 million based on exchange rate as of December 31, 2015), respectively.

 

Convertible Notes

 

Fidelity

 

In February 2012, the Company completed the sale of senior unsecured convertible promissory notes in an aggregate principal amount of $25.0 million pursuant to a securities purchase agreement, between the Company and certain investment funds affiliated with FMR LLC (or the "Fidelity Securities Purchase Agreement"). The offering consisted of the sale of 3% senior unsecured convertible promissory notes with a March 1, 2017 maturity date and an initial conversion price equal to $7.0682 per share of the Company's common stock, subject to proportional adjustment for adjustments to outstanding common stock and anti-dilution provisions in case of dividends and distributions (or the "Fidelity Notes"). In October 2015, the Company issued $57.6 million of convertible senior notes and used approximately $8.8 million of the proceeds therefrom to repurchase $9.7 million aggregate principal amount of outstanding Fidelity Notes. As of September 30, 2016, the Fidelity Notes were convertible into an aggregate of up to 2,165,898 shares of the Company's common stock. The holders of the Fidelity Notes have a right to require repayment of 101% of the principal amount of the Fidelity Notes in an acquisition of the Company, and the Fidelity Notes provide for payment of unpaid interest on conversion following such an acquisition if the note holders do not require such repayment. The Fidelity Securities Purchase Agreement and Fidelity Notes include covenants regarding payment of interest, maintaining the Company's listing status, limitations on debt, maintenance of corporate existence, and timely filing of SEC reports. The Fidelity Notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults and breaches of the covenants in the Fidelity Securities Purchase Agreement and Fidelity Notes, with default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, the Fidelity Notes include restrictions on the amount of debt the Company is permitted to incur. With exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the Fidelity Notes provide that the Company's total outstanding debt at any time cannot exceed the greater of $200.0 million or 50% of its consolidated total assets and its secured debt cannot exceed the greater of $125.0 million or 30% of its consolidated total assets. In connection with the Company’s closing of a short-term bridge loan for $35.0 million in October 2013, holders of the Fidelity Notes waived compliance with the debt limitations outlined above as to the $35.0 million bridge loan (or the “Temasek Bridge Note”) and the August 2013 Financing (defined below). In consideration for such waiver, the Company granted to holders of the Fidelity Notes or their affiliates the right to purchase up to an aggregate of $7.6 million worth of convertible promissory notes in the first tranche of the August 2013 Financing.

 

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Pursuant to a Securities Purchase Agreement among the Company, Maxwell (Mauritius) Pte Ltd (or “Temasek”) and Total, dated as of August 8, 2013 (or, as amended, the “August 2013 SPA”), as amended in October 2013 to include certain entities affiliated with FMR LLC (or the “Fidelity Entities”), the Company sold and issued certain senior convertible notes (or the “Tranche I Notes”) pursuant to a financing (or the “August 2013 Financing”) exempt from registration under the Securities Act of 1933, as amended (or the “Securities Act”), in an aggregate principal amount of $7.6 million to the Fidelity Entities. See "Related Party Convertible Notes" in this Note 5, "Debt."

 

2014 Rule 144A Convertible Note Offering

 

In May 2014, the Company entered into a Purchase Agreement with Morgan Stanley & Co. LLC, as the initial purchaser (or the “Initial Purchaser”), relating to the sale of $75.0 million aggregate in principal amount of its 6.50% Convertible Senior Notes due 2019 (or the "2014 144A Notes") to the Initial Purchaser in a private placement, and for initial resale by the Initial Purchaser to certain qualified institutional buyers (or the "2014 144A Convertible Note Offering"). In addition, the Company granted the Initial Purchaser an option to purchase up to an additional $15.0 million aggregate principal amount of 2014 144A Notes, which option expired unexercised according to its terms. Under the terms of the purchase agreement for the 2014 144A Notes, the Company agreed to customary indemnification of the Initial Purchaser against certain liabilities. The Notes were issued pursuant to an Indenture, dated as of May 29, 2014 (or the “2014 Indenture”), between the Company and Wells Fargo Bank, National Association, as trustee. The net proceeds from the offering of the 2014 144A Notes were approximately $72.0 million after payment of the Initial Purchaser’s discounts and offering expenses. In addition, in connection with obtaining a waiver from Total of its preexisting contractual right to exchange certain senior secured convertible notes previously issued by the Company for new notes issued in the 2014 144A Convertible Note Offering, the Company used approximately $9.7 million of the net proceeds to repay previously issued notes (representing the amount of 2014 144A Notes purchased by Total from the Initial Purchaser). Certain of the Company's affiliated entities purchased $24.7 million in aggregate principal amount of 2014 144A Notes from the Initial Purchaser (described further below under "Related Party Convertible Notes"). In October 2015, as discussed below, the Company issued $57.6 million of convertible senior notes and used approximately $18.3 million of the net proceeds therefrom to repurchase $22.9 million aggregate principal amount of outstanding 2014 144A Notes. The 2014 144A Notes bear interest at a rate of 6.50% per year, payable semiannually in arrears on May 15 and November 15 of each year, beginning November 15, 2014. The 2014 144A Notes mature on May 15, 2019, unless earlier converted or repurchased. The 2014 144A Notes are convertible into shares of the Company's common stock at any time prior to the close of business day on May 15, 2019, at the initial conversion rate of 267.037 shares of Common Stock per $1,000 principal amount of 2014 144A Notes (subject to adjustment in certain circumstances). This represents an effective conversion price of approximately $3.74 per share of common stock. For any conversion on or after May 15, 2015, in the event that the last reported sale price of the Company’s common stock for 20 or more trading days (whether or not consecutive) in a period of 30 consecutive trading days ending within five trading days immediately prior to the date the Company receives a notice of conversion exceeds the then-applicable conversion price per share on each such trading day, the holders, in addition to the shares deliverable upon conversion, noteholders will be entitled to receive a cash payment equal to the present value of the remaining scheduled payments of interest that would have been made on the 2014 144A Notes being converted from the conversion date to the earlier of the date that is three years after the date the Company receives such notice of conversion and maturity (May 15, 2019), which will be computed using a discount rate of 0.75%. In the event of a fundamental change, as defined in the 2014 Indenture, holders of the 2014 144A Notes may require the Company to purchase all or a portion of the 2014 144A Notes at a price equal to 100% of the principal amount of the 2014 144A Notes, plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. In addition, holders of the 2014 144A Notes who convert their 2014 144A Notes in connection with a make-whole fundamental change will, under certain circumstances, be entitled to an increase in the conversion rate. Refer to the “Exchange” and “Maturity Treatment Agreement” sections of this Note 5, "Debt", for details of the impact of the Maturity Treatment and Exchange agreements on the 2014 144A Notes.

 

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2015 Rule 144A Convertible Note Offering

 

In October 2015, the Company entered into a purchase agreement with certain qualified institutional buyers relating to the sale of $57.6 million aggregate principal amount of its 9.50% Convertible Senior Notes due 2019 (or the “2015 144A Notes”) to the purchasers in a private placement (or the “2015 144A Offering”). The Notes were issued pursuant to an Indenture, dated as of October 20, 2015 (or the “2015 Indenture”), between the Company and Wells Fargo Bank, National Association, as trustee. The net proceeds from the offering of the 2015 144A Notes were approximately $54.4 million after payment of the estimated offering expenses and placement agent fees. The Company used approximately $18.3 million of the net proceeds to repurchase $22.9 million aggregate principal amount of outstanding 2014 144A Notes and approximately $8.8 million to repurchase $9.7 million aggregate principal amount of outstanding Fidelity Notes, in each case held by purchasers of the 2015 144A Notes. The 2015 144A Notes bear interest at a rate of 9.50% per year, payable semiannually in arrears on April 15 and October 15 of each year, beginning April 15, 2016. Interest on the 2015 144A Notes is payable, at the Company’s option, entirely in cash or entirely in common stock. The Company elected to make the April 15, 2016 interest payment in shares of common stock and the October 15, 2016 interest payment in cash. The 2015 144A Notes will mature on April 15, 2019 unless earlier converted or repurchased.

 

The 2015 144A Notes are convertible into shares of the Company's common stock at any time prior to the close of business on April 15, 2019. The 2015 144A Notes had an initial conversion rate of 443.6557 shares of Common Stock per $1,000 principal amount of 2015 144A Notes (subject to adjustment in certain circumstances). This represented an initial effective conversion price of approximately $2.25 per share of common stock. Following the issuance by the Company of warrants to purchase common stock in a private placement transaction in February 2016 and the issuance by the Company of convertible notes in May and September 2016, as described below, the conversion rate of the 2015 144A Notes was 446.6719 shares of Common Stock per $1,000 principal amount of 2015 144A Notes as of September 30, 2016. Furthermore, following the issuance by the Company of additional convertible notes in October 2016, the conversion rate of the 2015 144A Notes is 446.8707 shares of Common Stock per $1,000 principal amount of 2015 144A Notes as of the date hereof. For any conversion on or after November 27, 2015, in addition to the shares deliverable upon conversion, noteholders will be entitled to receive a payment equal to the present value of the remaining scheduled payments of interest that would have been made on the 2015 144A Notes being converted from the conversion date to the earlier of the date that is three years after the date the Company receives such notice of conversion and maturity (April 15, 2019), which will be computed using a discount rate of 0.75%. The Company may make such payment (the “Early Conversion Payment”) either in cash or in common stock, at its election, provided that it may only make such payment in common stock if such common stock is not subject to restrictions on transfer under the Securities Act by persons other than the Company’s affiliates. If the Company elects to pay an Early Conversion Payment in common stock, then the stock will be valued at 92.5% of the simple average of the daily volume-weighted average price per share for the 10 trading days ending on and including the trading day immediately preceding the conversion date. Through September 30, 2016, the Company has elected to make each Early Conversion Payment in shares of common stock. In the event of a fundamental change, as defined in the 2015 Indenture, holders of the 2015 144A Notes may require the Company to purchase all or a portion of the 2015 144A Notes at a price equal to 100% of the principal amount of the 2015 144A Notes, plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. In addition, holders of the 2015 144A Notes who convert their 2015 144A Notes in connection with a make-whole fundamental change will, under certain circumstances, be entitled to an increase in the conversion rate. The issuance of shares of common stock upon conversion of the 2015 144A Notes, upon the Company’s election to pay interest on the 2015 144A Notes in shares of common stock and upon the Company’s election to pay the Early Conversion Payment in shares of common stock in an aggregate amount in excess of 38,415,626 shares of the Company’s common stock was subject to stockholder approval, which was obtained on May 17, 2016. With exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the 2015 144A Notes provide that, as long as the aggregate outstanding principal amount of the 2015 144A Notes exceeds $25.0 million, the Company's outstanding unsecured debt at any time cannot exceed $200.0 million and its secured debt cannot exceed the greater of $65.0 million or 30% of its consolidated total assets.

 

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2016 Convertible Note Offering

 

In May 2016, the Company entered into a securities purchase agreement (or the “May 2016 Purchase Agreement”) between the Company and a private investor relating to the sale of up to $15.0 million aggregate principal amount of convertible notes (or the “2016 Convertible Notes”) that are convertible into shares of the Company’s common stock at an initial conversion price of $1.90 per share. The conversion price will be subject to adjustment in the event of any stock split, reverse stock split, recapitalization, reorganization or similar transaction. The May 2016 Purchase Agreement includes customary representations, warranties and covenants by the Company. The May 2016 Purchase Agreement also provides the purchaser with a right of first refusal with respect to any variable rate transaction on the same terms and conditions as are offered to a third-party purchaser for as long as the purchaser holds any 2016 Convertible Notes or shares of the Company’s common stock underlying the 2016 Convertible Notes.

 

Pursuant to the May 2016 Purchase Agreement, the 2016 Convertible Notes were to be issued and sold in two separate closings. The initial closing occurred on May 10, 2016. At the initial closing, the Company issued and sold a 2016 Convertible Note in a principal amount of $10.0 million to the purchaser, resulting in net proceeds to the Company of approximately $9.9 million. The second closing was to occur on the first trading day following the completion of the first three installment periods under the 2016 Convertible Notes and the satisfaction or waiver of certain other closing conditions, including certain equity conditions, such as that no Triggering Event (as defined below) had occurred. At the second closing, the Company was to issue and sell a 2016 Convertible Note in a principal amount of $5.0 million to the purchaser, resulting in expected net proceeds to the Company of approximately $5.0 million. On September 2, 2016, in connection with the Company and the purchaser waiving certain conditions to the second closing under the May 2016 Purchase Agreement, the Company issued and sold an additional 2016 Convertible Note in the principal amount of $3.0 million to the purchaser, for proceeds to the Company of approximately $3.0 million, and granted the purchaser the option to purchase a further 2016 Convertible Note in the principal amount of $2.0 million (the “$2 Million Note”), representing the remaining 2016 Convertible Notes provided for in the May 2016 Purchase Agreement, on or before December 31, 2016. On October 13, 2016, the Company issued and sold the $2 Million Note to the purchaser for proceeds to the Company of $2.0 million. See Note 18, “Subsequent Events” for additional details regarding the issuance of the $2 Million Note.

 

The 2016 Convertible Notes are general unsecured obligations of the Company. Unless earlier converted or redeemed, the 2016 Convertible Notes will mature on the 18-month anniversary of their respective issuance, subject to the rights of the holders to extend the maturity date in certain circumstances.

 

The 2016 Convertible Notes will be payable in monthly installments, in either cash at 118% of such installment amount or, at the Company’s option, subject to the satisfaction of certain equity conditions, shares of common stock at a discount to the then-current market price, subject to a price floor. In addition, in the event that the Company elects to pay all or any portion of a monthly installment in common stock, the holders of the 2016 Convertible Notes shall have the right to require that the Company repay in common stock an additional amount of the 2016 Convertible Notes not to exceed 50% of the cumulative sum of the aggregate amounts by which the dollar-weighted trading volume of the Company’s common stock for all trading days during the applicable installment period exceeds $200,000. The Company elected to make the June, July, August and September 2016 installment payments on the 2016 Convertible Notes in shares of common stock.

 

The 2016 Convertible Notes contain customary terms and covenants, including certain events of default after which the holders may require the Company to redeem all or any portion of their 2016 Convertible Notes in cash at a price equal to the greater of (i) 118% of the amount being redeemed and (ii) the intrinsic value of the shares of common stock issuable upon an installment payment of the amount being redeemed in shares.

 

In the event of a Fundamental Transaction (as defined in the 2016 Convertible Notes), holders of the 2016 Convertible Notes may require the Company to redeem all or any portion of their 2016 Convertible Notes at a price equal to the greater of (i) 118% of the amount being redeemed and (ii) the intrinsic value of the shares of common stock issuable upon an installment payment of the amount being redeemed in shares.

 

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The Company has the right to redeem the 2016 Convertible Notes for cash, in whole, at any time, or in part, from time to time, at a redemption price equal to 118% of the principal amount of the 2016 Convertible Notes being redeemed. In addition, if the volume-weighted average price of the Company’s common stock is (i) less than $1.00 for 30 consecutive trading days or (ii) less than $0.50 for five consecutive trading days (each, a “Triggering Event”) within four months of the issuance of any 2016 Convertible Notes, the Company will have the option to redeem such 2016 Convertible Notes in whole for cash at a redemption price equal to 112% of the principal amount of such 2016 Convertible Notes.

 

Related Party Convertible Notes

 

Total R&D Convertible Notes

 

In July 2012 and December 2013, the Company entered into a series of agreements (or the "Total Fuel Agreements") with Total Energies Nouvelles Activités USA (formerly known as Total Gas & Power USA, SAS, and referred to as “Total”) to establish a research and development program (or the "Program") and form a joint venture (or the "Fuels JV") with Total to produce and commercialize farnesene- or farnesane-based diesel and jet fuels, and established a convertible debt structure for the collaboration funding from Total.

 

The purchase agreement for the notes related to the funding from Total (or the “Total Purchase Agreement”) provided for the sale of an aggregate of $105.0 million in 1.5% Senior Unsecured Convertible Notes due March 2017 (the “Unsecured R&D Notes”) as follows:

 

As part of an initial closing under the purchase agreement (which was completed in two installments), (i) on July 30, 2012, the Company sold an Unsecured R&D Note with a principal amount of $38.3 million, including $15.0 million in new funds and $23.3 million in previously-provided diesel research and development funding by Total, and (ii) on September 14, 2012, the Company sold another Unsecured R&D Note for $15.0 million in new funds from Total. These Unsecured R&D Notes had an initial conversion price of $7.0682 per share.
At a second closing under the Total Purchase Agreement (also completed in two installments) the Company sold additional Unsecured R&D Notes for an aggregate of $30.0 million in new funds from Total ($10.0 million in June 2013 and $20.0 million in July 2013). These Unsecured R&D Notes had an initial conversion price of $3.08 per share, as described below.
At a third closing under the Total Purchase Agreement (also completed in two installments) the Company sold additional Unsecured R&D Notes for an aggregate of $21.7 million in new funds from Total ($10.85 million in July 2014 and $10.85 million in January 2015) (or the “Third Closing Notes”). These Unsecured R&D Notes had an initial conversion price of $4.11 per share, as described below.

 

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In March 2013, the Company entered into a letter agreement with Total (or the March 2013 Letter Agreement) under which Total agreed to waive its right to cease its participation in the parties' fuels collaboration at the July 2013 decision point and committed to proceed with the July 2013 funding tranche of $30.0 million (subject to the Company's satisfaction of the relevant closing conditions for such funding in the Total Purchase Agreement). As consideration for this waiver and commitment, the Company agreed to:

 

reduce the conversion price for the $30.0 million in principal amount of Unsecured R&D Notes to be issued in connection with the second closing of the Unsecured R&D Notes (as described above) from $7.0682 per share to a price per share equal to the greater of (i) the consolidated closing bid price of the Company's common stock on the date of the March 2013 Letter Agreement, plus $0.01, and (ii) $3.08 per share, provided that the conversion price would not be reduced by more than the maximum possible amount permitted under the rules of The NASDAQ Stock Market (or “NASDAQ”) such that the new conversion price would require the Company to obtain stockholder consent; and
grant Total a senior security interest in the Company's intellectual property, subject to certain exclusions and subject to release by Total when the Company and Total enter into final documentation regarding the establishment of the Fuels JV.

 

In addition to the waiver by Total described above, Total also agreed that, at the Company's request and contingent upon the Company meeting its obligations described above, it would pay advance installments of the amounts otherwise payable at the second closing.

 

In June 2013, the Company sold and issued $10.0 million in principal amount of Unsecured R&D Notes to Total pursuant to the second closing of the Unsecured R&D Notes as discussed above. In accordance with the March 2013 Letter Agreement, this Unsecured R&D Note had an initial conversion price equal to $3.08 per share of the Company's common stock.

 

In July 2013, the Company sold and issued $20.0 million in principal amount of Unsecured R&D Notes to Total pursuant to the Total second closing of the Unsecured R&D Notes as discussed above. This purchase and sale completed Total's commitment to purchase $30.0 million of the Unsecured R&D Notes in the second closing by July 2013. In accordance with the March 2013 Letter Agreement, this Unsecured R&D Note has an initial conversion price equal to $3.08 per share of the Company's common stock.

 

In December 2013, in connection with the Company's entry into a Shareholders Agreement dated December 2, 2013 and License Agreement dated December 2, 2013 (or, collectively, the “JV Documents”) with Total and Total Amyris BioSolutions B.V. (or “TAB”) relating to the establishment of TAB (see Note 7, "Joint Ventures and Noncontrolling Interest"), the Company (i) exchanged the $69.0 million of the then-outstanding Unsecured R&D Notes issued pursuant to the Total Purchase Agreement for replacement 1.5% Senior Secured Convertible Notes due March 2017 (or the “Secured R&D Notes”, and together with the Unsecured R&D Notes, the “R&D Notes”), in principal amounts equal to the principal amount of each cancelled note and with substantially similar terms except that such replacement notes were secured, (ii) granted to Total a security interest in and lien on all Amyris’ rights, title and interest in and to Company’s shares in the capital of TAB and (iii) agreed that any securities to be purchased and sold at the third closing under the Total Purchase Agreement by Total would be Secured R&D Notes instead of Unsecured R&D Notes. As a consequence of executing the JV Documents and forming TAB, the security interest in all of the Company's intellectual property, granted by the Company in favor of Total, Temasek, and certain Fidelity Entities pursuant to the Restated Intellectual Property Security Agreement dated as of October 16, 2013, were automatically terminated effective as of December 2, 2013 upon Total’s and the Company’s joint written notice to Temasek and the Fidelity Entities.

 

In April 2014, the Company and Total entered into a letter agreement dated as of March 29, 2014 (or the “March 2014 Total Letter Agreement”) to amend the Amended and Restated Master Framework Agreement entered into as of December 2, 2013 (included as part of JV Documents) and the Total Purchase Agreement. Under the March 2014 Total Letter Agreement, the Company agreed to, (i) amend the conversion price of the Secured R&D Notes to be issued in the third closing under the Total Purchase Agreement from $7.0682 per share to $4.11 per share subject to stockholder approval at the Company's 2014 annual meeting (which was obtained in May 2014), (ii) extend the period during which Total may exchange for other Company securities Secured R&D Notes issued under the Total Fuel Agreements from June 30, 2014 to the later of December 31, 2014 and the date on which the Company shall have raised $75.0 million of equity and/or convertible debt financing (excluding any convertible promissory notes issued pursuant to the Total Purchase Agreement), (iii) eliminate the Company’s ability to qualify, in a disclosure letter to Total, certain of the representations and warranties that the Company must make at the closing of any third closing sale, and (iv) beginning on March 31, 2014, provide Total with monthly reporting on the Company’s cash, cash equivalents and short-term investments. In consideration of these agreements, Total agreed to waive its right not to consummate the closing of the issuance of the Third Closing Notes if it had decided not to proceed with the collaboration and had made a "No-Go" decision with respect thereto.

 

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In July 2014, the Company sold and issued a Secured R&D Note to Total with a principal amount of $10.85 million with a March 1, 2017 maturity date pursuant to the Total Purchase Agreement. This purchase and sale constituted the initial installment of the $21.7 million third closing described above. In accordance with the March 2014 Total Letter Agreement, this Secured R&D Note had an initial conversion price equal to $4.11 per share of the Company's common stock.

 

In January 2015, the Company sold and issued a Secured R&D Note to Total with a principal amount of $10.85 million with a March 1, 2017 maturity date pursuant to the Total Purchase Agreement. This purchase and sale constituted the final installment of the $21.7 million third closing described above. In accordance with the March 2014 Total Letter Agreement, this Secured R&D Note had an initial conversion price equal to $4.11 per share of the Company's common stock.

 

In July 2015, Total exchanged all but $5.0 million of R&D Notes then held by Total, such cancelled notes having an aggregate principal amount of $70 million, in exchange for approximately 30.4 million shares of the Company’s common stock in connection with the Exchange. Refer to the “Exchange” section of this Note 5, "Debt", for additional details of the impact of the Exchange on the R&D Notes.

 

In March 2016, in connection with the restructuring of the Fuels JV (see Note 7, "Joint Ventures and Noncontrolling Interest"), the Company sold to Total one half of the Company’s ownership stake in the Fuels JV (giving Total an aggregate ownership stake of 75% of the Fuels JV and giving the Company an aggregate ownership stake of 25% of the Fuels JV) in exchange for Total cancelling (i) approximately $1.3 million of R&D Notes, plus all paid-in-kind and accrued interest under all outstanding R&D Notes ($2.8 million, including all such interest that was outstanding as of July 29, 2015) and (ii) a note in the principal amount of Euro 50,000, plus accrued interest, issued to Total in connection with the original capitalization of the Fuels JV. To satisfy its purchase obligation above, Total surrendered to the Company the remaining R&D Note of approximately $5.0 million in principal amount, and the Company executed and delivered to Total a new, Unsecured R&D Note in the principal amount of $3.7 million. The disposal of the 25% ownership stake in the Fuels JV resulted in a gain to the Company of $4.2 million, which was recognized as a capital contribution from Total within equity.

 

As of September 30, 2016 and December 31, 2015, $3.7 million and $5.0 million, respectively, of R&D Notes were outstanding, net of debt discount of $0.0 million and $0.0 million, respectively. The R&D Notes have a maturity date of March 1, 2017, an initial conversion price equal to $3.08 per share for the Unsecured R&D Notes, subject to certain adjustments as described below. The R&D Notes bear interest of 1.5% per annum (with a default rate of 2.5%), accruing from the date of issuance and payable at maturity or on conversion or a change of control where Total exercises the right to require the Company to repay the notes, as described below.

 

The R&D Notes become convertible into the Company's common stock (i) within 10 trading days prior to maturity, (ii) on a change of control of the Company, and (iii) on a default by the Company. The conversion price of the R&D Notes are subject to adjustment for proportional adjustments to outstanding common stock and under anti-dilution provisions in case of certain dividends and distributions. Total has a right to require repayment of 101% of the principal amount of the R&D Notes in the event of a change of control of the Company and the R&D Notes provide for payment of unpaid future interest through the maturity date on conversion following such a change of control if Total does not require such repayment. The Total Purchase Agreement and Unsecured R&D Notes include covenants regarding payment of interest, maintenance of the Company's listing status, limitations on debt, maintenance of corporate existence, and filing of SEC reports. The R&D Notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults, and breaches of the covenants in the Total Purchase Agreement and R&D Notes, with added default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, with exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the R&D Notes provided that the Company's total outstanding debt at any time may not exceed the greater of $200.0 million or 50% of its consolidated total assets and its secured debt may not exceed the greater of $125.0 million or 30% of its consolidated total assets.

 

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August 2013 Financing Convertible Notes and Temasek Bridge Note

 

In connection with the August 2013 Financing, the Company entered into the August 2013 Share Purchase Agreement with Total and Temasek to sell up to $73.0 million in convertible promissory notes in private placements, with such notes to be sold and issued over a period of up to 24 months from the date of signing. The August 2013 SPA provided for the August 2013 Financing to be divided into two tranches (the first tranche for $42.6 million and the second tranche for $30.4 million), each with differing closing conditions. Of the total possible purchase price in the financing, $25.0 million was paid in the form of cash by Temasek ($25.0 million in the second tranche), $35.0 million was paid by the exchange and cancellation of the Temasek Bridge Note, as described below, and $13.0 million was paid by the exchange and cancellation of outstanding R&D Notes held by Total in connection with its exercise of pro rata rights ($7.6 million in the first tranche and $5.4 million in the second tranche). The August 2013 SPA included requirements that the Company meet certain production milestones before the second tranche would become available, obtain stockholder approval prior to completing any closing of the transaction, and issue a warrant to Temasek to purchase 1,000,000 shares of the Company's common stock at an exercise price of $0.01 per share, exercisable only if Total converts R&D Notes previously issued to Total in the second closing under the Total Purchase Agreement. In September 2013, prior to the initial closing of the August 2013 Financing, the Company's stockholders approved the issuance in the private placement of up to $110.0 million aggregate principal amount of senior convertible promissory notes, the issuance of a warrant to purchase 1,000,000 shares of the Company's common stock and the issuance of the common stock issuable upon conversion or exercise of such notes and warrant, which approval included the transactions contemplated by the August 2013 Financing.

 

In October 2013, the Company sold and issued a senior secured promissory note to Temasek (or the “Temasek Bridge Note”) in exchange for a bridge loan of $35.0 million. The Temasek Bridge Note was due on February 2, 2014 and accrued interest at a rate of 5.5% quarterly from the October 4, 2013 date of issuance. The Temasek Bridge Note was cancelled on October 16, 2013 as payment for Temasek’s purchase of Tranche I Notes in the first tranche of the August 2013 Financing, as further described below.

 

In October 2013, the Company amended the August 2013 SPA to include the investment by the Fidelity Entities in the first tranche of the August 2013 Financing of $7.6 million, and to proportionally increase the amount of first tranche notes acquired by exchange and cancellation of outstanding R&D Notes held by Total in connection with its exercise of pro rata rights up to $9.2 million in the first tranche. Also in October 2013, the Company completed the closing of the first tranche of the August 2013 Financing, issuing a total of $51.8 million in Tranche I Notes for cash proceeds of $7.6 million and cancellation of outstanding convertible promissory notes of $44.2 million, of which $35.0 million resulted from cancellation of the Temasek Bridge Note and the remaining $9.2 million from the exchange and cancellation of an outstanding R&D Note held by Total. As a result of the exchange and cancellation of the $35.0 million Temasek Bridge Note and the $9.2 million R&D Note held by Total for the Tranche I Notes, the Company recorded a loss from extinguishment of debt of $19.9 million. The Tranche I Notes are due sixty months from the date of issuance and were initially convertible into the Company’s common stock at a conversion price equal to $2.44, which represents a 15% discount to a trailing 60-day weighted-average closing price of the common stock on The NASDAQ Stock Market (or “NASDAQ”) through August 7, 2013, subject to certain adjustments, as described below. The Tranche I Notes are convertible at the option of the holder: (i) at any time after 18 months from the date of the August 2013 SPA, (ii) on a change of control of the Company and (iii) upon the occurrence of an event of default. Each Tranche I Note accrues interest from the date of issuance until the earlier of the date that such Tranche I Note is converted into the Company’s common stock or is repaid in full. Interest accrues at a rate of 5% per six months, compounded semiannually (with graduated interest rates of 6.5% applicable to the first 180 days and 8% applicable thereafter as the sole remedy should the Company fail to maintain NASDAQ listing status or at 6.5% for all other defaults). Interest for the first 30 months is payable in kind and added to the principal every six months and thereafter, the Company may continue to pay interest in kind by adding to the principal every six months or may elect to pay interest in cash. Through September 30, 2016, the Company has elected to pay interest on the Tranche I Notes in kind. The Tranche I Notes may be prepaid by the Company on the 30-month anniversary of the issuance date, and thereafter every six months at the date of payment of the semi-annual coupon.

 

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In January 2014, the Company sold and issued, for face value, approximately $34.0 million of convertible promissory notes in the second tranche of the August 2013 Financing (or the “Tranche II Notes”). At the closing, Temasek purchased $25.0 million of the Tranche II Notes and funds affiliated with Wolverine Asset Management, LLC purchased $3.0 million of the Tranche II Notes, each for cash. Total purchased approximately $6.0 million of the Tranche II Notes through cancellation of the same amount of principal of previously outstanding R&D Notes held by Total. As a result of the exchange and cancellation of the $6.0 million R&D Note held by Total for the Tranche II Notes, the Company recorded a loss from extinguishment of debt of $9.4 million. The Tranche II Notes will be due sixty months from the date of issuance and were initially convertible into shares of common stock at a conversion price equal to $2.87 per share, which represents a trailing 60-day weighted-average closing price of the common stock on NASDAQ through August 7, 2013, subject to certain adjustments, as described below. Specifically, the Tranche II Notes are convertible at the option of the holder (i) at any time 12 months after issuance, (ii) on a change of control of the Company, and (iii) upon the occurrence of an event of default. Each Tranche II Note will accrue interest from the date of issuance until the earlier of the date that such Tranche II Note is converted into common stock or repaid in full. Interest will accrue at a rate per annum equal to 10%, compounded annually (with graduated interest rates of 13% applicable to the first 180 days and 16% applicable thereafter as the sole remedy should the Company fail to maintain NASDAQ listing status or at 12% for all other defaults). Interest for the first 36 months shall be payable in kind and added to principal every year following the issue date and thereafter, the Company may continue to pay interest in kind by adding to principal on every year anniversary of the issue date or may elect to pay interest in cash. Through September 30, 2016, the Company has elected to pay interest on the Tranche II Notes in kind.

 

The conversion prices of the Tranche I Notes and Tranche II Notes are subject to adjustment (i) according to proportional adjustments to outstanding common stock of the Company in case of certain dividends and distributions, (ii) according to anti-dilution provisions, and (iii) with respect to notes held by any purchaser other than Total, in the event that Total exchanges existing convertible notes for new securities of the Company in connection with future financing transactions in excess of its pro rata amount. Notwithstanding the foregoing, holders of a majority of the principal amount of the notes outstanding at the time of conversion may waive any anti-dilution adjustments to the conversion price. The purchasers have a right to require repayment of 101% of the principal amount of the notes in the event of a change of control of the Company and the notes provide for payment of unpaid interest on conversion following such a change of control if the purchasers do not require such repayment. The August 2013 SPA, Tranche I Notes and Tranche II Notes include covenants regarding payment of interest, maintenance of the Company’s listing status, limitations on debt and on certain liens, maintenance of corporate existence, and filing of SEC reports. The Tranche Notes include standard events of default including failure to pay, bankruptcy and insolvency, cross-defaults, and breaches of the covenants in the August 2013 SPA, Tranche I Notes and Tranche II Notes, after which the Tranche Notes may be due and payable immediately, as well as associated with default interest rates as set forth above.

 

In July 2015, Temasek exchanged all of the Tranche I and Tranche II Notes then held by Temasek, such notes having an aggregate principal amount of approximately $71.0 million, in exchange for approximately 30.86 million shares of the Company’s common stock in connection with the Exchange. Refer to the “Exchange” section of this Note 5, "Debt", for additional details of the impact of the Exchange on the R&D Notes.

 

The conversion price of the Tranche I Notes and Tranche II Notes was reduced to $1.42 per share upon the completion of a private placement of common stock and warrants to purchase common stock in July 2015, as described below. Following the issuance by the Company of warrants to purchase common stock in a private placement transaction in February 2016, as described below, the conversion price of the Tranche I Notes and Tranche II Notes was further adjusted to $1.40 per share, and following the sale by the Company of shares of common stock to the Bill & Melinda Gates Foundation in May 2016, as described below, the conversion price of the Tranche I Notes and Tranche II Notes was further adjusted to $1.14 per share.

 

As of September 30, 2016 and December 31, 2015, the related party convertible notes outstanding under the Tranche I Notes and Tranche II Notes were $21.7 million and $23.3 million, respectively, net of debt discount of $0.0 million and $0.0 million, respectively. Refer to the “Exchange” and “Maturity Treatment Agreement” sections of this Note 5, "Debt", for details of the impact of the Maturity Treatment and Exchange agreements on the Tranche I and II Notes.

 

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2014 144A Notes Sold to Related Parties

 

As of September 30, 2016 and December 31, 2015, the related party convertible notes outstanding under the 2014 Rule 144A Convertible Note Offering were $15.3 million and $14.6 million, respectively, net of discount and issuance costs of $2.4 million and $1.6 million, respectively.

 

As of September 30, 2016 and December 31, 2015, the total related party convertible notes outstanding were $40.6 million and $42.8 million, respectively, net of discount and issuance costs of $2.6 million and $1.9 million, respectively.

 

Loans Payable

 

In July 2012, the Company entered into a Note of Bank Credit and a Fiduciary Conveyance of Movable Goods Agreement (together, the "July 2012 Bank Agreements") with each of Nossa Caixa Desenvolvimento (or “Nossa Caixa”) and Banco Pine S.A. (or “Banco Pine”). Under the July 2012 Bank Agreements, the Company pledged certain farnesene production assets as collateral for the loans of R$52.0 million. The Company's total acquisition cost for such pledged assets was approximately R$68.0 million (approximately US$20.9 million based on the exchange rate as of September 30, 2016). The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements. Under the July 2012 Bank Agreements, the Company could borrow an aggregate of R$52.0 million (approximately US$16.0 million based on the exchange rate as of September 30, 2016) as financing for capital expenditures relating to the Company's manufacturing facility located in Brotas, Brazil. Specifically, Banco Pine, agreed to lend R$22.0 million and Nossa Caixa agreed to lend R$30.0 million. The funds for the loans are provided by BNDES, but are guaranteed by the lenders. The loans have a final maturity date of July 15, 2022 and bear a fixed interest rate of 5.5% per year. The loans are also subject to early maturity and delinquency charges upon occurrence of certain events including interruption of manufacturing activities at the Company's manufacturing facility in Brotas, Brazil for more than 30 days, except during the sugarcane off-season. For the first two years that the loans are outstanding, the Company is required to pay interest only on a quarterly basis. Since August 15, 2014, the Company has been required to pay equal monthly installments of both principal and interest for the remainder of the term of the loans. As of September 30, 2016 and December 31, 2015, a principal amount of R$37.9 million (approximately US$11.7 million based on the exchange rate as of September 30, 2016) and R$43.0 million (approximately US$11.0 million based on the exchange rate as of December 30, 2015), respectively, was outstanding under these loan agreements.

 

In March 2014, the Company entered into an export financing agreement with Banco ABC Brasil S.A. (or “ABC”) for approximately $2.2 million to fund exports through March 2015. This loan is collateralized by future exports from the Company's subsidiary in Brazil. In April, 2015, we entered into an additional export financing agreement with ABC for approximately $1.6 million to fund exports through March 2016. This loan is collateralized by future exports from the Company's subsidiary in Brazil. As of September 30, 2016, the aggregate principal amount outstanding under the ABC financing agreements was zero ($1.6 million at December 31, 2015). The Company was also a parent guarantor for the payment of the outstanding balance under these loan agreements. 

 

Exchange (debt conversion)

 

On July 29, 2015, the Company closed the "Exchange" pursuant to that certain Exchange Agreement, dated as of July 26, 2015 (or the “Exchange Agreement”), among the Company, Temasek and Total.

 

Under the Exchange Agreement, at the closing, Temasek exchanged $71.0 million in principal amount of outstanding Tranche I and Tranche II Notes (including paid-in-kind and accrued interest through July 29, 2015) and Total exchanged $70.0 million in principal amount of outstanding R&D Notes for shares of the Company’s common stock. The exchange price was $2.30 per share (the “Exchange Price”) and was paid by the exchange and cancellation of such outstanding convertible promissory notes, and Temasek and Total received 30,860,633 and 30,434,782 shares of the Company’s common stock, respectively, in the Exchange. As a result of the Exchange, accretion of debt discount was accelerated based on the Company’s estimate of the expected conversion date, resulting in an additional interest expense of $39.2 million for the year ended December 31, 2015.

 

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Under the Exchange Agreement, Total also received at the closing the following warrants, each with a five-year term:

 

A warrant to purchase 18,924,191 shares of the Company’s Common Stock (or the “Total Funding Warrant”).

 

A warrant to purchase 2,000,000 shares of the Company’s common stock that will only be exercisable if the Company fails, as of March 1, 2017, to achieve a target cost per liter to manufacture farnesene (or the “Total R&D Warrant”). The Total Funding Warrant and the Total R&D Warrant are collectively referred to as the “Total Warrants.”

 

Additionally, under the Exchange Agreement, Temasek received the following warrants:

 

A warrant to purchase 14,677,861 shares of the Company’s common stock. (the “Temasek Exchange Warrant”).

 

A warrant exercisable for that number of shares of the Company’s common stock equal to (1) (A) the number of shares for which Total exercises the Total Funding Warrant plus (B) the number of additional shares for which the certain convertible notes remaining outstanding following the completion of the Exchange may become exercisable as a result of a reduction in the conversion price of such remaining notes as of a result of and/or subsequent to the date of the Exchange plus (C) that number of additional shares in excess of 2,000,000, if any, for which the Total R&D Warrant becomes exercisable multiplied by a fraction equal to 30.6% divided by 69.4% plus (2) (A) the number of any additional shares for which certain other outstanding convertible promissory notes may become exercisable as a result of a reduction to the conversion price of such notes multiplied by (B) a fraction equal to 13.3% divided by 86.7% (or the “Temasek Funding Warrant”).

 

A warrant exercisable for that number of shares of the Company’s common stock equal to 880,339 multiplied by a fraction equal to the number of shares for which Total exercises the Total R&D Warrant divided by 2,000,000. If Total is entitled to, and does, exercise the Total R&D Warrant in full, this warrant would be exercisable for 880,339 shares (or the “Temasek R&D Warrant”).

 

The Temasek Exchange Warrant, the Temasek Funding Warrant and the Temasek R&D Warrant each have ten-year terms and are referred to herein as the “Temasek Warrants” and, the Temasek Warrants and Total Warrants are hereinafter collectively referred to as the “Exchange Warrants”. All of the Exchange Warrants have an exercise price of $0.01 per share.

 

In addition to the grant of the Exchange Warrants, a warrant issued by the Company to Temasek in October 2013 in conjunction with a prior convertible debt financing (the “2013 Warrant”) became exercisable in full upon the completion of the Exchange. There were 1,000,000 shares underlying the 2013 Warrant, with an exercise price of $0.01 per share.

 

The exercisability of all of the Exchange Warrants was subject to stockholder approval, which was obtained on September 17, 2015.

 

In February and May 2016, as a result of the adjustments to the Tranche I and Tranche II Notes conversion prices discussed above under “Related Party Convertible Notes”, the Temasek Funding Warrant became exercisable for an additional 127,194 and 2,335,342 shares of common stock, respectively.

 

As of September 30, 2016, the Total Funding Warrant, the Temasek Exchange Warrant, and the 2013 Warrant had been fully exercised and Temasek had exercised the Temasek Funding Warrant with respect to 12,700,244 shares of common stock. Neither the Total R&D Warrant nor the Temasek R&D Warrant were exercisable as of September 30, 2016. Warrants to purchase 2,462,536 shares of common stock under the Temasek Funding Warrant were unexercised as of September 30, 2016.

 

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Maturity Treatment Agreement

 

At the closing of the Exchange, the Company, Total and Temasek also entered into a Maturity Treatment Agreement, dated as of July 29, 2015, pursuant to which Total and Temasek agreed to convert any Tranche I Notes, Tranche II Notes or 2014 144A Notes held by them that were not cancelled in the Exchange (the “Remaining Notes”) into shares of the Company’s common stock in accordance with the terms of such Remaining Notes upon maturity, provided that certain events of default have not occurred with respect to the applicable Remaining Notes prior to such maturity. As of immediately following the closing of the Exchange, Temasek held $10.0 million in aggregate principal amount of Remaining Notes (consisting of 2014 144A Notes) and Total held approximately $25.0 million in aggregate principal amount of Remaining Notes (consisting of $9.7 million of 2014 144A Notes and $15.3 million of Tranche I and II Notes).

 

February 2016 Private Placement

 

On February 12, 2016, the Company entered into a Note and Warrant Purchase Agreement (the “February 2016 Purchase Agreement”) with the purchasers named therein for the sale of $18.0 million in aggregate principal amount of unsecured promissory notes (or the “February 2016 Notes”) to the purchasers, as well as warrants to purchase 2,571,428 shares of the Company’s common stock at an exercise price of $0.01 per share, representing aggregate proceeds to the Company of $18 million (the “Initial Sale”). On February 15, 2016, an additional purchaser joined the Purchase Agreement and purchased $2.0 million in aggregate principal amount of the February 2016 Notes, as well as warrants to purchase 285,714 shares of the Company’s common stock at an exercise price of $0.01 per share, representing aggregate proceeds to the Company of $2 million (or the “Subsequent Sale” and together with the Initial Sale, the “February 2016 Private Placement”). The February 2016 Notes and the warrants were issued in a private placement pursuant to the exemption from registration under Section 4(2) of the Securities Act and Regulation D promulgated under the Securities Act. The purchasers are existing stockholders of the Company and affiliated with certain members of the Company’s Board of Directors: Foris Ventures, LLC (an entity affiliated with director John Doerr of Kleiner Perkins Caufield & Byers, a current stockholder), which purchased $16.0 million aggregate principal amount of the Notes and warrants to purchase 2,285,714 shares of the Company’s common stock; Naxyris S.A. (an investment vehicle owned by Naxos Capital Partners SCA Sicar; director Carole Piwnica is Director of NAXOS UK, which is affiliated with Naxos Capital Partners SCA Sicar), which purchased $2.0 million aggregate principal amount of the Notes and warrants to purchase 285,714 shares of the Company’s common stock; and Biolding Investment SA, a fund affiliated with director HH Sheikh Abdullah bin Khalifa Al Thani, which purchased $2.0 million aggregate principal amount of the Notes and warrants to purchase 285,714 shares of the Company’s common stock. The Initial Sale closed on February 12, 2016, and the Subsequent Sale closed on February 15, 2016.

 

The February 2016 Notes are unsecured obligations of the Company and are subordinate to the Company’s obligations under the Senior Secured Loan Facility pursuant to a Subordination Agreement, dated as of February 12, 2016, by and among the Company, the purchasers and the administrative agent under the Senior Secured Loan Facility. Interest will accrue on the February 2016 Notes from and including, with respect to the Initial Sale, February 12, 2016, and with respect to the Subsequent Sale, February 15, 2016, at a rate of 13.50% per annum and is payable on May 15, 2017, the maturity date of the February 2016 Notes, unless the February 2016 Notes are prepaid in accordance with their terms prior to such date. The February 2016 Purchase Agreement and the February 2016 Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the February 2016 Notes may be due and payable immediately, as set forth in the February 2016 Notes.

 

The exercisability of the warrants issued in the February 2016 Private Placement, which each have a term of five years, was subject to stockholder approval, which was obtained on May 17, 2016. As of September 30, 2016, the carrying amount of the February 2016 Notes was $17.8 million.

 

June 2016 Private Placement

 

On June 24, 2016, the Company entered into a Note Purchase Agreement (or the “June 2016 Purchase Agreement”) with Foris Ventures, LLC for the sale of $5.0 million in aggregate principal amount of secured promissory notes (or the “June 2016 Notes”) to Foris Ventures, LLC in exchange for aggregate proceeds to the Company of $5.0 million (or the “June 2016 Private Placement”). The June 2016 Notes were issued in a private placement pursuant to the exemption from registration under Section 4(2) of the Securities Act of 1933, as amended and Regulation D promulgated under the Securities Act. The June 2016 Private Placement closed on June 24, 2016.

 

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The June 2016 Notes are collateralized by a second priority lien on the assets securing the Company’s obligations under the Senior Secured Loan Facility, and are subordinate to the Company’s obligations under the Senior Secured Loan Facility pursuant to a Subordination Agreement, dated as of June 24, 2016, by and among the Company, Foris Ventures, LLC and the administrative agent under the Company’s Senior Secured Loan Facility. Interest will accrue on the June 2016 Notes from and including June 24, 2016 at a rate of 13.50% per annum and is payable in full on May 15, 2017, the maturity date of the June 2016 Notes, unless the June 2016 Notes are prepaid in accordance with their terms prior to such date. The June 2016 Purchase Agreement and the June 2016 Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the June 2016 Notes may be due and payable immediately, as set forth in the June 2016 Notes.

 

See Note 18, “Subsequent Events” for details regarding debt-related financing transactions completed subsequent to September 30, 2016.

 

Letters of Credit

 

In June 2012, the Company entered into a letter of credit agreement for $1.0 million under which it provided a letter of credit to the landlord of its headquarters in Emeryville, California, in order to cover the security deposit on the lease. This letter of credit is secured by a certificate of deposit. Accordingly, the Company has $1.0 million as restricted cash under this arrangement as of September 30, 2016 and December 31, 2015.

 

Future minimum payments under the debt agreements as of September 30, 2016 are as follows (in thousands):

 

Years ending December 31:  Related Party
Convertible
Debt
  Convertible
Debt
  Loans
Payable
  Related
Party Loans
payable
  Credit
Facility
  Total
2016 (remaining three months)  $312   $3,240   $1,770   $844   $33,234   $39,400 
2017   4,837    23,562    2,870    26,257    1,551    59,077 
2018   13,937    17,736    2,450        322    34,445 
2019   26,080    79,937    2,342        78    108,437 
2020           2,234            2,234 
Thereafter           3,314            3,314 
Total future minimum payments   45,166    124,475    14,980    27,101    35,185    246,907 
Less: amount representing interest(1)   (4,555)   (55,942)   (2,026)   (4,254    (4,499)   (71,276)
Present value of minimum debt payments   40,611    68,533    12,954    22,847    30,686    175,631 
Less: current portion present value of minimum debt payments   (3,611)   (15,357)   (3,275)   (22,847    (29,926)   (75,016)
Noncurrent portion of debt  $37,000   $53,176   $9,679   $   $760   $100,615 

______________

(1) Including debt discount of $33.0 million related to the embedded derivatives associated with the related party and non-related party debt which will be accreted to interest expense under the effective interest method over the term of the debt and debt issuance costs of $3.0 million.

 

In the quarter ended March 31, 2016, the Company adopted ASU 2015-03, Interest - Imputation of Interest: Simplifying the Presentation of Debt Issuance Costs, which requires debt issuance costs previously reported as a deferred charge within other noncurrent assets and prepaid expenses and other current assets to be presented as a direct reduction from the carrying amount of debt, consistent with debt discounts, applied retrospectively for all periods presented. As of December 31, 2015, this resulted in the reduction of noncurrent debt by $2.8 million, current debt by $1.4 million, other noncurrent assets by $2.8 million and prepaid expenses and other current assets by $1.4 million.

 

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6. Commitments and Contingencies

 

Lease Obligations

 

The Company leases certain facilities and finances certain equipment under operating and capital leases, respectively. Operating leases include leased facilities and capital leases include leased equipment (see Note 4, "Balance Sheet Components"). The Company recognizes rent expense on a straight-line basis over the non-cancellable lease term and records the difference between rent payments and the recognition of rent expense as a deferred rent liability. Where leases contain escalation clauses, rent abatements, and/or concessions, such as rent holidays and landlord or tenant incentives or allowances, the Company applies them as a straight-line rent expense over the lease term. The Company has non-cancellable operating lease agreements for office, research and development, and manufacturing space that expire at various dates, with the latest expiration in February 2031. Rent expense under operating leases was $1.3 million and $1.4 million for the three months ended September 30, 2016 and 2015, respectively, and was $4.0 million and $3.9 million for the nine months ended September 30, 2016 and 2015, respectively.

 

Future minimum payments under the Company's lease obligations as of September 30, 2016, are as follows (in thousands):

 

Years ending December 31:  Capital
Leases
  Operating
Leases
  Total Lease
Obligations
2016 (remaining three months)  $471   $1,762   $2,233 
2017   525    6,888    7,413 
2018   28    6,890    6,918 
2019       6,777    6,777 
2020       7,008    7,008 
Thereafter       18,210    18,210 
Total future minimum lease payments   1,024   $47,535   $48,559 
Less: amount representing interest   (26)          
Present value of minimum lease payments   998           
Less: current portion   (942)          
Long-term portion  $56           

 

Guarantor Arrangements

 

The Company has agreements whereby it indemnifies its officers and directors for certain events or occurrences while the officer or directors are serving in their official capacities. The indemnification period remains enforceable for the officer's or director’s lifetime. The maximum potential amount of future payments the Company could be required to make under these indemnification agreements is unlimited; however, the Company has a director and officer insurance policy that limits its exposure and enables the Company to recover a portion of any future payments. As a result of its insurance policy coverage, the Company believes the estimated fair value of these indemnification agreements is minimal. Accordingly, the Company had no liabilities recorded for these agreements as of September 30, 2016 and December 31, 2015.

 

The Company entered into the FINEP Credit Facility to finance a research and development project on sugarcane-based biodiesel (see Note 5, "Debt"). The FINEP Credit Facility is guaranteed by a chattel mortgage on certain equipment of the Company. The Company's total acquisition cost for the equipment under this guarantee is approximately R$6.0 million (approximately US$1.8 million based on the exchange rate as of September 30, 2016).

 

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The Company entered into the BNDES Credit Facility to finance a production site in Brazil (see Note 5, "Debt").The BNDES Credit Facility is collateralized by a first priority security interest in certain of the Company's equipment and other tangible assets with a total acquisition cost of R$24.9 million (approximately US$7.7 million based on the exchange rate as of September 30, 2016). The Company is a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, the Company is required to provide certain bank guarantees under the BNDES Credit Facility.

 

The Company entered into loan agreements and security agreements whereby the Company pledged certain farnesene production assets as collateral (the fiduciary conveyance of movable goods) with each of Nossa Caixa and Banco Pine (see Note 5, "Debt"). The Company's total acquisition cost for the farnesene production assets pledged as collateral under these agreements is approximately R$68.0 million (approximately US$20.9 million based on the exchange rate as of September 30, 2016). The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements. 

 

The Company had an export financing agreement with Banco ABC Brasil S.A for approximately $2.2 million for a one year term to fund exports through March 2015. As of September 30, 2016, the loan was fully repaid. On April 8, 2015, the Company entered into another export financing agreement with the same bank for approximately $1.6 million for a one year term to fund exports through March 2016. The loan was fully repaid as of September 30, 2016. This loan is collateralized by future exports from Amyris Brasil. The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements. 

 

In October 2013, the Company entered into a letter agreement with Total relating to the Temasek Bridge Note and to the closing of the August 2013 Financing (or the "Amendment Agreement") (see Note 5, "Debt"). In the August 2013 Financing, the Company was required to provide the purchasers under the August 2013 SPA with a security interest in the Company’s intellectual property if Total still held such security interest as of the initial closing of the August 2013 Financing. Under the terms of a previous Intellectual Property Security Agreement by and between the Company and Total (or the "Security Agreement"), the Company had previously granted a security interest in favor of Total to secure the obligations of the Company under the R&D Notes issued and issuable to Total under the Total Purchase Agreement. The Security Agreement provided that such security interest would terminate if Total and the Company entered into certain agreements relating to the formation of the Fuels JV. In connection with Total’s agreement to (i) permit the Company to grant the security interest under the Temasek Bridge Note and the August 2013 Financing and (ii) waive a secured debt limitation contained in the outstanding R&D Notes issued pursuant to the Total Purchase Agreement and held by Total, the Company entered into the Amendment Agreement. Under the Amendment Agreement, the Company agreed to reduce, effective December 2, 2013, the conversion price for the R&D Notes issued in 2012 from $7.0682 per share to $2.20, the market price per share of the Company’s common stock as of the signing of the Amendment Agreement, as determined in accordance with applicable NASDAQ rules, unless the Company and Total entered into the JV Documents on or prior to December 2, 2013. The Company and Total entered into the JV agreements on December 2, 2013 and the Amendment Agreement and all security interests thereunder were automatically terminated and the conversion price of such R&D Notes remained at $7.0682 per share.

 

In December 2013, in connection with the execution of JV Documents entered into by and among Amyris, Total and TAB relating to the establishment of TAB (see Note 5, "Debt" and Note 7, "Joint Venture and Noncontrolling Interests"), the Company agreed to exchange the $69.0 million outstanding R&D Notes issued pursuant to the Total Purchase Agreement for replacement 1.5% Senior Secured Convertible Notes due March 2017, and grant a security interest to Total in and lien on all the Company’s rights, title and interest in and to the Company’s shares in the capital of TAB. Following execution of the JV Documents, all Unsecured R&D Notes that had been issued were exchanged for Secured R&D Notes. Further, the $10.85 million in principal amount of such notes issued in the initial tranche of the third closing under the Total Purchase Agreement in July 2014 and the $10.85 million in principal amount of such notes issued in the second tranche of the third closing were Secured R&D Notes instead of Unsecured R&D Notes. "See Note 5,"Debt" for details regarding the impact of the Exchange and Maturity Treatment Agreement on the R&D Notes. In March 2016, as a result of the restructuring of TAB discussed under Note 5, "Debt" and Note 7, "Joint Venture and Noncontrolling Interests," the remaining Secured R&D Notes were exchanged for an unsecured R&D Note in the principal amount of $3.7 million.

 

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The Senior Secured Loan Facility and the June 2016 Notes (see Note 5, "Debt") are collateralized by first and second priority liens, respectively, on the Company's assets, including certain Company intellectual property.

 

Purchase Obligations

 

As of September 30, 2016 and December 31, 2015, the Company had $1.1 million and $1.3 million, respectively, in purchase obligations which included $0.6 million and $0.5 million, respectively, of non-cancellable contractual obligations and construction commitments.

 

Other Matters

 

Certain conditions may exist as of the date the financial statements are issued, which may result in a loss to the Company but will only be recorded when one or more future events occur or fail to occur. The Company's management assesses such contingent liabilities, and such assessment inherently involves an exercise of judgment. In assessing loss contingencies related to legal proceedings that are pending against and by the Company or unasserted claims that may result in such proceedings, the Company's management evaluates the perceived merits of any legal proceedings or unasserted claims as well as the perceived merits of the amount of relief sought or expected to be sought.

 

If the assessment of a contingency indicates that it is probable that a material loss has been incurred and the amount of the liability can be estimated, then the estimated liability would be accrued in the Company's financial statements. If the assessment indicates that a potential material loss contingency is not probable but is reasonably possible, or is probable but cannot be reasonably estimated, then the nature of the contingent liability, together with an estimate of the range of possible loss if determinable and material would be disclosed. Loss contingencies considered to be remote by management are generally not disclosed unless they involve guarantees, in which case the guarantee would be disclosed. The Company has levied indirect taxes on sugarcane-based biodiesel sales by Amyris Brasil to customers in Brasil based on advice from external legal counsel. In the absence of definitive rulings from the Brazilian tax authorities on the appropriate indirect tax rate to be applied to such product sales, the actual indirect rate to be applied to such sales could differ from the rate we levied.

 

The Company is subject to disputes and claims that arise or have arisen in the ordinary course of business and that have not resulted in legal proceedings or have not been fully adjudicated. Such matters that may arise in the ordinary course of business are subject to many uncertainties and outcomes are not predictable with reasonable assurance and therefore an estimate of all the reasonably possible losses cannot be determined at this time. Therefore, if one or more of these legal disputes or claims resulted in settlements or legal proceedings that were resolved against the Company for amounts in excess of management’s expectations, the Company’s consolidated financial statements for the relevant reporting period could be materially adversely affected.

 

7. Joint Ventures and Noncontrolling Interests

 

Novvi LLC

 

In September 2011, the Company and Cosan US, Inc. (or “Cosan U.S.”) formed Novvi LLC (or “Novvi”), a U.S. entity that is jointly owned by the Company and Cosan U.S. In March 2013, the Company and Cosan U.S. entered into agreements to (i) expand their base oils joint venture to also include additives and lubricants and (ii) operate their joint venture exclusively through Novvi. Specifically, the parties entered into an Amended and Restated Operating Agreement for Novvi (or the “Operating Agreement”), which sets forth the governance procedures for Novvi and the parties' initial contribution. The Company also entered into an IP License Agreement with Novvi (as amended in March 2016, the “IP License Agreement”) under which the Company granted Novvi (i) an exclusive (subject to certain limited exceptions for the Company), worldwide, royalty-free license to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in automotive, commercial, and industrial lubricants markets, and (ii) a non-exclusive, royalty free license, subject to certain conditions, to manufacture Biofene solely for its own products. In addition, both the Company and Cosan U.S. granted Novvi certain rights of first refusal with respect to alternative base oil and additive technologies that may be acquired by the Company or Cosan U.S. during the term of the IP License Agreement. Under these agreements, through September 30, 2016 the Company and Cosan U.S. each owned 50% of Novvi and each party shared equally in any costs and any profits ultimately realized by the joint venture. Novvi is governed by a six member Board of Managers (or the “Board of Managers”). The Board of Managers appoints the officers of Novvi, who are responsible for carrying out the daily operating activities of Novvi as directed by the Board of Managers. The IP License Agreement has an initial term of 20 years from the date of the agreement, subject to standard early termination provisions such as uncured material breach or a party's insolvency. Under the terms of the Operating Agreement, Cosan U.S. was obligated to fund its initial 50% ownership share of Novvi in cash in the amount of $10.0 million and the Company was obligated to fund its initial 50% ownership share of Novvi through the granting of an IP License to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in the automotive, commercial and industrial lubricants markets, which Cosan U.S. and Amyris agreed was valued at $10.0 million. In March 2013, the Company measured its initial contribution of intellectual property to Novvi at the Company's carrying value of the licenses granted under the IP License Agreement, which was zero.

 

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In April 2014, the Company, via its forgiveness of existing receivables due from Novvi related to rent and other services performed by the Company, purchased additional membership units of Novvi for a purchase price of $0.2 million. Concurrently, Cosan U.S. purchased an equal amount of additional membership units of Novvi. Also in April 2014, the Company and Cosan U.S. each contributed $2.1 million in cash in exchange for receiving additional membership units in Novvi. Following such transactions, the Company and Cosan U.S. continued to each own 50% of Novvi's issued and outstanding membership units.

 

In September 2014, the Company and Cosan U.S. entered into a member senior loan agreement to grant Novvi a loan amounting to approximately $3.7 million. The loan is due on September 1, 2017 and bears interest at a rate of 0.36% per annum. Interest accrues daily and is due and payable in arrears on September 1, 2017. The Company and Cosan U.S. each agreed to provide 50% of the loan. The Company's share of approximately $1.8 million was disbursed in two installments. The first installment of $1.2 million was made in September 2014 and the second installment of $0.6 million was made in October 2014. In November 2014, the Company and Cosan U.S. entered into a second member senior loan agreement to grant Novvi a loan of approximately $1.9 million on the same terms as the loan issued in September 2014, except that the due date is November 10, 2017. The Company and Cosan U.S. each agreed to provide 50% of the loan. The Company disbursed its share of the loan (i.e., approximately $1.0 million) in November 2014. In May 2015, the Company and Cosan U.S. entered into a third member senior loan agreement to grant Novvi a loan of approximately $1.1 million on the same terms as the loan issued in September 2014, except that the due date is May 14, 2018. The Company and Cosan U.S. each agreed to provide 50% of the loan.

 

In the fourth quarter of 2015, the Company and Cosan U.S. entered into four additional member senior loan agreements to grant Novvi an aggregate loan of approximately $1.6 million on the same terms as the loan issued in September 2014, except that the respective due dates are August 19, 2018, October 15, 2018, November 12, 2018 and December 17, 2018. The Company and Cosan U.S. each agreed to provide 50% of each of these four loans. In July 2016, the Company contributed all outstanding amounts owing by Novvi to the Company under the seven member senior loan agreements in exchange for receiving additional membership units in Novvi.

 

In February 2016, the Company purchased additional membership units of Novvi for an aggregate purchase price of approximately $0.6 million in the form of forgiveness of existing receivables due from Novvi related to rent and other services performed by the Company, and Cosan U.S. purchased an equal number of additional membership units in Novvi for approximately $0.6 million in cash. Following such transactions, each member continued to own 50% of Novvi's issued and outstanding membership units.

 

On July 19, 2016, American Refining Group, Inc. (or “ARG”) agreed to make a capital contribution of up to $10.0 million in cash to Novvi, subject to certain conditions, in exchange for a one third ownership stake in Novvi. In connection with such investment, the Company agreed to contribute all outstanding amounts owed by Novvi to the Company under the seven existing member senior loan agreements between the Company and Novvi, as well as certain existing receivables due from Novvi to the Company related to rent and other services performance by the Company, in exchange for receiving additional membership units in Novvi. Likewise, Cosan U.S. contributed an equal amount to Novvi as the Company in exchange for receiving an equal amount of additional membership interests in Novvi. Following the ARG investment, assuming it is made in full, and the capital contributions of the Company and Cosan U.S., each of Novvi’s three members (i.e., ARG, the Company and Cosan U.S.) will own one third of Novvi’s issued and outstanding membership units and will each be represented by two members of the Board of Managers. In order to reflect the ARG investment in Novvi and related transactions, the Amended and Restated Operating Agreement of Novvi was amended and restated on July 19, 2016. In addition, the IP License Agreement between Novvi and the Company was also amended on July 19, 2016. As of September 30, 2016, $4.0 million of ARG's capital contribution to Novvi had been funded.

 

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Additional funding requirements to finance the ongoing operations of Novvi are expected to happen through revolving credit or other loan facilities provided by unrelated parties (i.e., such as financial institutions); cash advances or other credit or loan facilities provided by Novvi’s members or their affiliates; or additional capital contributions by the existing Novvi members or new investors.

 

The Company has identified Novvi as a VIE and determined that the power to direct activities, which most significantly impact the economic success of the joint venture (i.e., continuing research and development, marketing, sales, distribution and manufacturing of Novvi products), the Company and Cosan U.S. Accordingly, the Company is not the primary beneficiary and therefore accounts for its investment in Novvi under the equity method of accounting. The Company will continue to reassess its primary beneficiary analysis of Novvi if there are changes in events and circumstances impacting the power to direct activities that most significantly affect Novvi's economic success. Under the equity method, the Company's share of profits and losses and impairment charges on investments in affiliates are included in “Loss from investments in affiliates” in the condensed consolidated statements of operations. The carrying amount of the Company's equity investment in Novvi as of September 30, 2016 and December 31, 2015 was zero and the Company recognized zero and $0.7 million losses for the three months ended September 30, 2016 and 2015, respectively, and zero and $2.1 million for the nine months ended September 30, 2016 and 2015, respectively.

 

Total Amyris BioSolutions B.V.

 

In November 2013, the Company and Total formed Total Amyris BioSolutions B.V. (or “TAB”), a joint venture to produce and commercialize farnesene- or farnesane-based jet and diesel fuels. Prior to the restructuring of TAB in March 2016 as described below, the common equity of TAB was owned equally by the Company and Total, and TAB’s purpose was limited to executing the License Agreement dated December 2, 2013 between the Company, Total and TAB and maintaining such licenses under it, unless and until either (i) Total elected to go forward with either the full (diesel and jet fuel) TAB commercialization program or the jet fuel component of the TAB commercialization program (or a “Go Decision”), (ii) Total elected to not continue its participation in the R&D Program and TAB (or a “No-Go Decision”), or (iii) Total exercised any of its rights to buy out the Company’s interest in TAB. Following a Go Decision, the articles and shareholders’ agreement of TAB would be amended and restated to be consistent with the shareholders’ agreement contemplated by the Total Fuel Agreements (see Note 5, "Debt" and Note 8, "Significant Agreements").

 

In July 2015, the Company and Total entered into a Letter Agreement (or, as amended in February 2016, the “TAB Letter Agreement”) regarding the restructuring of the ownership and rights of TAB (or the “Restructuring”), pursuant to which the parties agreed to, among other things, enter into an Amended & Restated Jet Fuel License Agreement between the Company and TAB (or the “Jet Fuel Agreement”), a License Agreement regarding Diesel Fuel in the European Union (or the “EU”) between the Company and Total (or the “EU Diesel Fuel Agreement”), and an Amended and Restated Shareholders’ Agreement among the Company, Total and TAB, and file a Deed of Amendment of Articles of Association of TAB, all in order to reflect certain changes to the ownership structure of TAB and license grants and related rights pertaining to TAB.

 

On February 12, 2016, the Company and Total entered into an amendment to the TAB Letter Agreement, pursuant to which the parties agreed that, upon the closing of the Restructuring, Total would cancel R&D Notes in an aggregate principal amount of approximately $1.3 million, plus all paid-in-kind and accrued interest as of the closing of the Restructuring under all outstanding R&D Notes (including all such interest that was outstanding as of July 29, 2015), and a note in the principal amount of Euro 50,000, plus accrued interest, issued by the Company to Total in connection with the existing TAB capitalization, in exchange for an additional 25% ownership interest of TAB (giving Total an aggregate ownership stake of 75% of TAB and giving the Company an aggregate ownership stake of 25% of TAB). In connection therewith, Total would surrender to the Company the remaining R&D Notes and the Company would provide to Total a new unsecured senior convertible note, containing substantially similar terms and conditions, in the principal amount of $3.7 million (collectively, the “TAB Share Purchase”).

 

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On March 21, 2016, the Company, Total and TAB closed the Restructuring and the TAB Share Purchase. See Note 5, “Debt” for further details of the impact of these transaction on the Company’s condensed consolidated financial statements.

 

Under the Jet Fuel Agreement, (a) the Company granted exclusive (co-exclusive in Brazil), world-wide, royalty-free rights to TAB for the production and commercialization of farnesene- or farnesane-based jet fuel, (b) the Company granted TAB the option, until March 1, 2018, to purchase the Company’s Brazil jet fuel business at a price based on the fair value of the commercial assets and on the Company’s investment in other related assets, (c) the Company granted TAB the right to purchase farnesene or farnesane for its jet fuel business from the Company on a “most-favored” pricing basis and (d) all rights to farnesene- or farnesane-based diesel fuel previously granted to TAB by the Company reverted back to the Company. As a result of the Jet Fuel Agreement, the Company generally no longer has an independent right to make or sell, without the approval of TAB, farnesene- or farnesane-based jet fuels outside of Brazil.

 

Upon all farnesene-or farnesane-based diesel fuel rights reverting back to the Company, the Company granted to Total, pursuant to the EU Diesel Fuel Agreement, (a) an exclusive, royalty-free license to offer for sale and sell farnesene- or farnesane-based diesel fuel in the EU, (b) the non-exclusive right to make farnesene or farnesane anywhere in the world, but Total must (i) use such farnesene or farnesane to produce only diesel fuel to offer for sale or sell in the EU and (ii) pay the Company a to-be-negotiated, commercially reasonable, “most-favored” basis royalty and (c) the right to purchase farnesene or farnesane for its EU diesel fuel business from the Company on a “most-favored” pricing basis. As a result of the EU Diesel Fuel Agreement, the Company generally no longer has an independent right to make or sell, without the approval of TAB, farnesene- or farnesane-based diesel fuels in the EU.

 

As a result of, and in order to reflect, the changes to the ownership structure of TAB described above, on March 21, 2016, (a) the Company, Total and TAB entered into an Amended and Restated Shareholders’ Agreement and filed a Deed of Amendment of Articles of Association of TAB and (b) the Company and Total terminated the Amended and Restated Master Framework Agreement, dated December 2, 2013 and amended on April 1, 2015, between the Company and Total.

 

As of September 30, 2016, the common equity of TAB was owned 25% by the Company and 75% by Total. TAB has a capitalization as of September 30, 2016 of €0.1 million (approximately US$0.1 million based on the exchange rate as of September 30, 2016). The Company has identified TAB as a VIE and determined that the Company is not the primary beneficiary and therefore accounts for its investment in TAB under the equity method of accounting. Under the equity method, the Company's share of profits and losses are included in “Loss from investment in affiliate” in the consolidated statements of operations.

 

SMA Indústria Química S.A.

 

In April 2010, the Company established SMA Indústria Química (or "SMA"), a joint venture with São Martinho S.A. (or "SMSA"), to build a production facility in Brazil. SMA is located at the SMSA mill in Pradópolis, São Paulo state. The joint venture agreements establishing SMA have a 20 year initial term.

 

SMA was initially managed by a three member executive committee, of which the Company appointed two members, one of whom is the plant manager who is the most senior executive responsible for managing the construction and operation of the facility. SMA was initially governed by a four member board of directors, of which the Company and SMSA each appointed two members. The board of directors had certain protective rights which include final approval of the engineering designs and project work plan developed and recommended by the executive committee.

 

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The joint venture agreements required the Company to fund the construction costs of the new facility and SMSA would reimburse the Company up to R$61.8 million (approximately US$19.0 million based on the exchange rate as of September 30, 2016) of the construction costs after SMA commences production. After commercialization, the Company would market and distribute Amyris renewable products produced by SMA and SMSA would sell feedstock and provide certain other services to SMA. The cost of the feedstock to SMA would be a price that is based on the average return that SMSA could receive from the production of its current products, sugar and ethanol. The Company would be required to purchase the output of SMA for the first four years at a price that guarantees the return of SMSA’s investment plus a fixed interest rate. After this four year period, the price would be set to guarantee a break-even price to SMA plus an agreed upon return.

 

Under the terms of the joint venture agreements, if the Company became controlled, directly or indirectly, by a competitor of SMSA, then SMSA would have the right to acquire the Company’s interest in SMA. If SMSA became controlled, directly or indirectly, by a competitor of the Company, then the Company would have the right to sell its interest in SMA to SMSA. In either case, the purchase price would be determined in accordance with the joint venture agreements, and the Company would continue to have the obligation to acquire products produced by SMA for the remainder of the term of the supply agreement then in effect even though the Company would no longer be involved in SMA’s management.

 

The Company initially had a 50% ownership interest in SMA. The Company has identified SMA as a VIE pursuant to the accounting guidance for consolidating VIEs because the amount of total equity investment at risk is not sufficient to permit SMA to finance its activities without additional subordinated financial support, as well as because the related commercialization agreement provides a substantive minimum price guarantee. Under the terms of the joint venture agreement, the Company directed the design and construction activities, as well as production and distribution. In addition, the Company had the obligation to fund the design and construction activities until commercialization was achieved. Subsequent to the construction phase, both parties equally would fund SMA for the term of the joint venture. Based on those factors, the Company was determined to have the power to direct the activities that most significantly impact SMA’s economic performance and the obligation to absorb losses and the right to receive benefits. Accordingly, the financial results of SMA are included in the Company’s consolidated financial statements and amounts pertaining to SMSA’s interest in SMA are reported as noncontrolling interests in subsidiaries.

 

The Company completed a significant portion of the construction of the new facility in 2012. The Company suspended construction of the facility in 2013 in order to focus on completing and operating the Company's smaller production facility in Brotas, Brazil. In February 2014, the Company entered into an amendment to the joint venture agreement with SMSA which updated and documented certain preexisting business plan requirements related to the recommencement of construction at the joint venture operated plant and sets forth, among other things, (i) the extension of the deadline for the commencement of operations at the joint venture operated plant to no later than 18 months following the construction of the plant no later than March 31, 2017, and (ii) the extension of an option held by SMSA to build a second large-scale farnesene production facility to no later than December 31, 2018 with the commencement of operations at such second facility to occur no later than April 1, 2019. On July 1, 2015 SMSA filed a material fact document with CVM, the Brazilian securities regulator, that announced that certain contractual targets undertaken by the Company have not been achieved, which affects the feasibility of the project. Therefore, SMSA decided not to approve continuing construction of the plant for the joint venture with the Company and its Brazilian subsidiary Amyris Brasil. In July 2015, the Company announced that it was in discussions with SMSA regarding the continuation of the joint venture. In December 2015, the Company and SMSA entered into a Termination Agreement and a Share Purchase and Sale Agreement relating to the termination of the joint venture. Under the Termination Agreement, the parties agreed that the joint venture would be terminated effective upon the closing of a purchase by Amyris Brasil of SMSA’s shares of SMA. Under the Share Purchase and Sale Agreement, Amyris Brasil agreed to purchase, for R$50,000 (approximately US$15,426 based on the exchange rate as of September 30, 2016), 50,000 shares of SMA (representing all the outstanding shares of SMA held by SMSA), which purchase and sale was consummated on January 11, 2016. The Share Purchase and Sale Agreement also provided that the Company and Amyris Brasil would have 12 months following the closing of the share purchase to remove assets from SMSA’s site, and enter into an extension of the lease for such 12 month period for monthly rental payments of R$9,853 (approximately US$3,040 based on the exchange rate as of September 30, 2016). The Share Purchase and Sale Agreement also clarified that the Company and Amyris Brasil would not be required to demolish or remove the foundations of the plant at the SMSA site. On September 1, 2016, the parties entered into an addendum to the Share Purchase and Sale Agreement (and a corresponding amendment to the lease) which extended the deadline for the Company and Amyris Brasil to remove assets from SMSA’s site until December 31, 2017.

 

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Glycotech

 

In January 2011, the Company entered into a production service agreement (or the "Glycotech Agreement") with Glycotech, Inc. (or "Glycotech"), under which Glycotech provides process development and production services for the manufacturing of various Company products at its leased facility in Leland, North Carolina. The Company products manufactured by Glycotech are owned and distributed by the Company. Pursuant to the terms of the Glycotech Agreement, the Company is required to pay the manufacturing and operating costs of the Glycotech facility, which is dedicated solely to the manufacture of Amyris products. The initial term of the Glycotech Agreement was for a two year period commencing on February 1, 2011 and the Glycotech Agreement renews automatically for successive one-year terms, unless terminated by the Company. Concurrent with the Glycotech Agreement, the Company also entered into a Right of First Refusal Agreement with the lessor of the facility and site leased by Glycotech (or the "ROFR Agreement"). Per conditions of the ROFR Agreement, the lessor agreed not to sell the facility and site leased by Glycotech during the term of the Glycotech Agreement. In the event that the lessor is presented with an offer to sell or decides to sell an adjacent parcel, the Company has the right of first refusal to acquire it.

 

The Company has determined that the arrangement with Glycotech qualifies as a VIE. The Company determined that it is the primary beneficiary of this arrangement since it has the power through the management committee over which it has majority control to direct the activities that most significantly impact Glycotech's economic performance. In addition, the Company is required to fund 100% of Glycotech's actual operating costs for providing services each month while the facility is in operation under the Glycotech Agreement. Accordingly, the Company consolidates the financial results of Glycotech. The carrying amounts of Glycotech's assets and liabilities were not material to the Company's condensed consolidated financial statements.

 

The table below reflects the carrying amount of the assets and liabilities of the consolidated VIE for which the Company is the primary beneficiary at September 30, 2016 (two at December 31, 2015). As of September 30, 2016 and December 31, 2015, the assets include $0.1 million and $5.2 million in property, plant and equipment, respectively, $0.4 million and $1.5 million in current assets, respectively, and zero and $0.3 million in other assets as of September 30, 2016 and December 31, 2015 include, respectively. As of September 30, 2016 and December 31, 2015, the liabilities include $0.2 million and $1.1 million, respectively, in accounts payable and accrued current liabilities, and $0.1 million and $0.1 million, respectively, in loan obligations by Glycotech to its shareholders that are non-recourse to the Company. The creditors of each consolidated VIE have recourse only to the assets of that VIE.

 

(In thousands)  September 30,
2016
  December 31,
2015
Assets  $493   $6,993 
Liabilities  $257   $1,221 

 

The change in noncontrolling interest for the nine months ended September 30, 2016 and 2015, is summarized below (in thousands):

 

   2016  2015
Balance at January 1  $391   $611 
Foreign currency translation adjustment       (393)
Income attributable to noncontrolling interest       78 
Acquisition of noncontrolling interest   (277)    
Balance at September 30  $114   $296 

 

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8. Significant Agreements

 

Research and Development Activities

 

Total Collaboration Arrangement

 

In June 2010, the Company entered into a technology license, development, research and collaboration agreement (or the “Total Collaboration Agreement”) with Total Gas & Power USA Biotech, Inc., an affiliate of Total. This agreement provided for joint collaboration on the development of products through the use of the Company’s synthetic biology platform. In November 2011, the Company entered into a first amendment of the Total Collaboration Agreement with respect to development and commercialization of Biofene for fuels. This represented an expansion of the initial collaboration with Total, and established a global, exclusive collaboration for the development of Biofene for fuels and a framework for the creation of a joint venture to manufacture and commercialize Biofene for diesel. In addition, a limited number of other potential products were subject to development by the joint venture on a non-exclusive basis.

 

The first amendment provided for an exclusive strategic collaboration for the development of renewable diesel products and contemplated that the parties would establish a joint venture (or the “JV”) for the production and commercialization of such renewable diesel products on an exclusive, worldwide basis. In addition, the first amendment contemplated providing the JV with the right to produce and commercialize certain other chemical products on a non-exclusive basis. The first amendment further provided that definitive agreements to form the JV had to be in place by March 31, 2012 or such other date as agreed to by the parties or the renewable diesel program, including any further collaboration payments by Total related to the renewable diesel program, would terminate. In the second quarter of 2012, the parties extended the deadline to June 30, 2012, and, through June 30, 2012, the parties were engaged in discussions regarding the structure of future payments related to the program, until the first amendment was superseded by a second amendment in July 2012 (as further described below).

 

Pursuant to the first amendment, Total agreed to fund the following amounts: (i) the first $30.0 million in research and development costs related to the renewable diesel program incurred since August 1, 2011, which amount would be in addition to the $50.0 million in research and development funding contemplated by the Total Collaboration Agreement, and (ii) for any research and development costs incurred following the JV formation date that were not covered by the initial $30.0 million, an additional $10.0 million in 2012 and up to an additional $10.0 million in 2013, which amounts would be considered part of the $50.0 million contemplated by the Total Collaboration Agreement. In addition to these payments, Total further agreed to fund 50% of all remaining research and development costs for the renewable diesel program under the Amendment.

 

In July 2012, the Company entered into a second amendment of the Total Collaboration Agreement that expanded Total’s investment in the Biofene collaboration, incorporated the development of certain JV products for use in diesel and jet fuel into the scope of the collaboration, and changed the structure of the funding from Total for the collaboration by establishing a convertible debt structure for the collaboration funding (see Note 5, “Debt”). In connection with such second amendment Total and the Company also executed certain other related agreements. Under these agreements (collectively referred to as the “Total Fuel Agreements”), the parties would grant exclusive manufacturing and commercial licenses to the JV for the JV products (diesel and jet fuel from Biofene) when the JV was formed. The licenses to the JV were to be consistent with the principle that development, production and commercialization of the JV products in Brazil would remain with Amyris unless Total elected, after formation of the operational JV, to have such business contributed to the joint venture. Further, as part of the Total Fuel Agreements, Total's royalty option contingency related to diesel was removed and the jet fuel collaboration was combined with the expanded Biofene collaboration. As a result, $46.5 million of payments previously received from Total that had been recorded as an advance from Total were no longer contingently repayable. Of this amount, $23.3 million was treated as a repayment by the Company and included as part of the senior unsecured convertible promissory note issued to Total in July 2012 and the remaining $23.2 million was recorded as a contract to perform research and development services, which was offset by the reduction of the capitalized deferred charge asset of $14.4 million resulting in the Company recording revenue from a related party of $8.9 million in 2012. On March 21, 2016, the Company and Total consummated a restructuring of the JV pursuant to a letter agreement dated July 26, 2015, as amended on February 12, 2016, which restructuring included, among other things, the parties amending certain of the Total Fuel Agreements and the Company selling part of its ownership stake in the JV to Total in exchange for Total cancelling certain outstanding indebtedness issued to Total by the Company. In July 2016, the Company and Total agreed to extend the term of the Total Collaboration Agreement from July 31, 2016 to March 1, 2017 pursuant to the terms of the Total Collaboration Agreement. See Note 5, "Debt" and Note 7, "Joint Ventures and Noncontrolling Interest" for further details of the Company’s relationship with Total.

 

 42 
 

F&F Collaboration Agreement

 

In March 2013, the Company entered into a Master Collaboration Agreement (or, as amended in July 2015, the “F&F Collaboration Agreement”) with a collaboration partner to establish a collaboration arrangement for the development and commercialization of multiple renewable flavors and fragrances compounds. Under the F&F Collaboration Agreement, except for rights granted under pre-existing collaboration relationships, the Company granted the collaboration partner exclusive access to specified Company intellectual property for the development and commercialization of flavors and fragrances compounds in exchange for research and development funding and a profit sharing arrangement. The F&F Collaboration Agreement superseded and expanded the November 2010 Master Collaboration and Joint Development Agreement between the Company and the collaboration partner.

 

The F&F Collaboration Agreement provided for annual, up-front funding to the Company by the collaboration partner of $10.0 million for each of the first three years of the collaboration. Payments of $10.0 million were received by the Company in each of March 2013, 2014 and 2015. The F&F Collaboration Agreement contemplates additional funding by the collaboration partner of up to $5.0 million under four potential milestone payments, as well as additional funding by the collaboration partner on a discretionary basis. Through September 2016, the Company had achieved the third performance milestone under the F&F Collaboration Agreement and recognized collaboration revenues of $1.3 million under the F&F Collaboration Agreement for the three months ended September 30, 2016 and $5.5 million for the nine months ended September 30, 2016. The F&F Collaboration Agreement does not impose any specific research and development obligations on either party after year six, but provides that if the parties mutually agree to perform research and development activities after year six, the parties will fund such activities equally.

 

Under the F&F Collaboration Agreement, the parties agreed to jointly select target compounds, subject to final approval of compound specifications by the collaboration partner. During the development phase, the Company would be required to provide labor, intellectual property and technology infrastructure and the collaboration partner would be required to contribute downstream polishing expertise and market access. The F&F Collaboration Agreement provides that the Company will own research and development and strain engineering intellectual property, and the collaboration partner will own blending and, if applicable, chemical conversion intellectual property. Under certain circumstances, such as the Company’s insolvency, the collaboration partner would gain expanded access to the Company’s intellectual property. The F&F Collaboration Agreement contemplates that, following development of flavors and fragrances compounds, the Company will manufacture the initial target molecules for the compounds and the collaboration partner will perform any required downstream polishing and distribution, sales and marketing. The F&F Collaboration Agreement provides that the parties will mutually agree on a supply price for each compound developed under the agreement and, subject to certain exceptions, will share product margins from sales of each such compound on a 70/30 basis (70% for the collaboration partner) until the collaboration partner receives $15.0 million more than the Company in the aggregate from such sales, after which time the parties will share the product margins 50/50. The Company also agreed to pay a one-time success bonus to the collaboration partner of up to $2.5 million if certain commercialization targets are met.

 

In September 2014, the Company entered into a supply agreement with the collaboration partner for a compound developed under the F&F Collaboration Agreement. The Company recognized $0.1 million and $1.3 million of revenues from product sales under this agreement for the three months ended September 30, 2016 and 2015, respectively and $4.7 million and $1.3 million for the nine months ended September 30, 2016 and 2015.

 

 43 
 

Michelin and Braskem Collaboration Agreements

 

In June 2014, the Company entered into a collaboration agreement with Braskem S.A. (or “Braskem”) and Manufacture Francaise de Pnematiques Michelin (or “Michelin”) to collaborate to develop the technology to produce and possibly commercialize renewable isoprene. The term of the collaboration agreement commenced on June 30, 2014 and will continue, unless earlier terminated in accordance with the agreement, until the first to occur of (i) the date that is three years following the actual date on which a work plan is completed, which date is estimated to occur on or about December 30, 2020, or (ii) the date of the commencement of commissioning of a production plant for the production of renewable isoprene. The June 2014 collaboration agreement terminated and superseded the September 2011 collaboration agreement between the Company and Michelin and, as a result of the signing of the June 2014 collaboration agreement, the upfront payment by Michelin of $5.0 million under the September 2011 collaboration agreement was rolled forward into the new collaboration agreement as Michelin’s funding towards the research and development activities to be performed under the new collaboration agreement. Braskem contributed $4.0 million of funding to the research and development activities under the June 2014 collaboration agreement, of which $2.0 million was received in July 2014 and $2.0 million was received in January 2015.

 

For this collaboration agreement, the Company recognized collaboration revenues of zero and zero for the three months ended September 30, 2016 and 2015, respectively, and $0.1 million and $1.9 million for the nine months ended September 30, 2016 and 2015, respectively. As of September 30, 2016 and 2015, $6.5 million and $6.3 million, respectively, of deferred revenues were recorded in the condensed consolidated balance sheet related to these agreements.

 

Kuraray Collaboration Agreement and Securities Purchase Agreement

 

In March 2014, the Company entered into the Second Amended and Restated Collaboration Agreement with Kuraray Co., Ltd (or “Kuraray”) in order to extend the term of the original collaboration agreement between the Company and Kuraray dated July 21, 2011 for an additional two years and add additional fields and products to the scope of development. In consideration for the Company’s agreement to extend the term of the original collaboration agreement and add additional fields and products, Kuraray agreed to pay the Company $4.0 million in two equal installments of $2.0 million. The first installment was paid on April 30, 2014 and the second installment was due on April 30, 2015. In connection with entering into the Second Amended and Restated Collaboration Agreement, Kuraray signed a Securities Purchase Agreement in March 2014 to purchase 943,396 shares of the Company's common stock at a price per share of $4.24 per share, which shares were sold and issued in April 2014 for aggregate cash proceeds to the Company of $4.0 million. In March 2015, the Company and Kuraray entered into the First Amendment to the Second Amended and Restated Collaboration Agreement to extend the term of the original collaboration agreement until December 31, 2016 and to accelerate payment to the Company of the second installment of $2.0 million due from Kuraray under the Second Amended and Restated Collaboration Agreement to March 31, 2015.

 

The Company recognized collaboration revenues of $0.4 million and $0.3 million for the three months ended September 30, 2016 and 2015, and $1.1 million and $1.2 million for the nine months ended September 30, 2016 and 2015, respectively, under this agreement.

 

DARPA

 

In September 2015, the Company entered into a Technology Investment Agreement (or the “2015 TIA”) with The Defense Advanced Research Projects Agency (or “DARPA”), under which the Company, with the assistance of five specialized subcontractors, will work to create new research and development tools and technologies for strain engineering and scale-up activities. The program that is the subject of the 2015 TIA will be performed and funded on a milestone basis, where DARPA, upon the Company’s successful completion of each milestone event in the 2015 TIA, will pay the Company the amount set forth in the 2015 TIA corresponding to such milestone event. Under the 2015 TIA, the Company and its subcontractors could collectively receive DARPA funding of up to $35.0 million over the program’s four year term if all of the program’s milestones are achieved. In conjunction with DARPA’s funding, the Company and its subcontractors are obligated to collectively contribute approximately $15.5 million toward the program over its four year term (primarily by providing specified labor and/or purchasing certain equipment). The Company can elect to retain title to the patentable inventions it produces under the program, but DARPA receives certain data rights as well as a government purposes license to certain of such inventions. Either party may, upon written notice and subject to certain consultation obligations, terminate the 2015 TIA upon a reasonable determination that the program will not produce beneficial results commensurate with the expenditure of resources.

 

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The Company recognized collaboration revenues of $1.3 million and zero under this agreement for the three months ended September 30, 2016 and 2015, respectively, and $4.8 million and zero for the nine months ended September 30, 2016 and 2015, respectively.

 

Givaudan Collaboration Agreement

 

In June 2016, the Company entered into a Collaboration Agreement with Givaudan International, SA (or “Givaudan”), a global flavors and fragrances company, to establish a collaboration for the development and commercialization of certain renewable compounds for use in the fields of active cosmetics and flavors. Under this collaboration agreement, the Company will use its labor, intellectual property and technology infrastructure to develop and commercialize certain compounds for Givaudan. In exchange, Givaudan will pay to the Company $12.0 million in semi-annual installments of $3.0 million each, beginning on June 30, 2016. The Company received the first installment of $3.0 million on June 30, 2016 and this amount was recognized in deferred revenue as of that date.

 

Pursuant to this collaboration agreement, the Company will grant to Givaudan an exclusive license to the intellectual property that the Company generates under the agreement. Such license will include the rights to make, use and sell compounds in the active cosmetics and flavors fields, and is subject to certain ‘claw back’ rights by the Company if a compound is not commercialized by Givaudan during the term of the agreement. The Company will also grant to Givaudan non-exclusive rights to certain portions of the Company’s existing intellectual property in order to facilitate activities under the agreement. Givaudan, on the other hand, will grant to the Company a non-exclusive license to the intellectual property that is generated under the agreement. Such non-exclusive license will include the rights to make, use and sell compounds in all fields except active cosmetics and flavors.

 

Subject to certain rights granted to a third party, Givaudan will have the exclusive right to commercialize the compounds in the active cosmetics and flavors markets during the term of the agreement. Further, the Company has agreed that it will not assist any third party in the development or commercialization of other compounds for sale or use in the active cosmetics or flavors markets during the term of the agreement. In addition, the agreement contemplates that the Company will be the primary supplier of commercial quantities of the compounds to Givaudan pursuant to supply agreements to be mutually negotiated by the parties.

 

The Company recognized collaboration revenues of $1.6 million under this agreement for the three months ended September 30, 2016.

 

Ginkgo Initial Strategic Partnership Agreement and Collaboration Agreement

 

In June 2016, the Company entered into an Initial Strategic Partnership Agreement (or the “Initial Ginkgo Agreement”) with Ginkgo Bioworks, Inc. (or “Ginkgo”), pursuant to which the Company licensed certain intellectual property to Ginkgo in exchange for a fee of $20.0 million, to be paid by Ginkgo to the Company in two installments, and a ten percent royalty. The first installment of $15.0 million was received on July 25, 2016. The second installment, in the amount of $5.0 million is to be received, based upon the satisfaction of certain conditions as set forth below, by March 31, 2017. The Company recognized $15 million of collaboration revenue under the Initial Ginkgo Agreement for the three months ended September 30, 2016. Furthermore, in connection with the Initial Ginkgo Agreement, on June 29, 2016, the Company received a deferment of all scheduled principal repayments under the Senior Secured Loan Facility, the lender and administrative agent under which is an affiliate of Ginkgo, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016.

 

In addition, addition, pursuant to the Initial Ginkgo Agreement, the Company and Ginkgo agreed to pursue the negotiation and execution of a detailed definitive partnership and license agreement setting forth the terms of a commercial partnership and collaboration arrangement between the parties (or the “Collaboration”) and, in connection with the entry into the Initial Ginkgo Agreement, on June 29, 2016, the Company received a deferment of all scheduled principal repayments under the Senior Secured Loan Facility, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016. Furthermore, pursuant to the Initial Ginkgo Agreement, in connection with the execution of the definitive agreement for the Collaboration, (i) the Company would issue to Ginkgo an option to purchase five million shares of common stock of the Company at an exercise price of $0.50, exercisable for one year from the date of issuance and (ii) the parties would effect an amendment of the Company’s Senior Secured Loan Facility to (x) extend the maturity date of all outstanding loans under the Senior Secured Loan Facility, (y) waive any required amortization payments under the Senior Secured Loan Facility until maturity and (z) eliminate the Minimum Cash Covenant under the Senior Secured Loan Facility.

 

 45 
 

On August 6, 2016, the Company issued to Ginkgo a warrant to purchase five million shares of the Company’s common stock at an exercise price of $0.50 per share, exercisable for one year from the date of issuance. The warrant was issued prior to the execution of the definitive agreement for the Collaboration in connection with the transfer of certain information technology from Ginkgo to the Company.

 

On September 30, 2016, the Company and Ginkgo entered into a Collaboration Agreement (or the “Ginkgo Collaboration Agreement”) setting forth the terms of the Collaboration, under which the parties will collaborate to develop, manufacture and sell commercial products and will share in the value created thereby. The Ginkgo Collaboration Agreement provides that, subject to certain exceptions, all third party contracts for the development of chemical small molecule compounds whose manufacture is enabled by the use of microbial strains and fermentation technologies that are entered into by the Company or Ginkgo during the term of the Ginkgo Collaboration Agreement will be subject to the Collaboration and the approval of the other party (not to be unreasonably withheld). Responsibility for the engineering and small-scale process development of the newly developed products will be allocated between the parties on a project-by-project basis, and the Company will be principally responsible for the commercial scale-up and production of such products, with each party generally bearing their own respective costs and expenses relating to the Collaboration, including capital expenditures. Notwithstanding the foregoing, subject to the Company sourcing funding and breaking ground on a new production facility by March 30, 2017, Ginkgo will pay the Company a fee of $5 million on or before March 31, 2017.

 

Under the Ginkgo Collaboration Agreement, subject to certain exceptions, including excluded or refused products and cost savings initiatives, the profit on the sale of products subject to the Ginkgo Collaboration Agreement as well as cost-sharing, milestone and “value-creation” payments associated with the development and production of such products will be shared equally between the parties. The parties also agreed to provide each other with a license and other rights to certain intellectual property necessary to support the development and manufacture of the products under the Collaboration, and also to provide each other with access to certain other intellectual property useful in connection with the activities to be undertaken under the Ginkgo Collaboration Agreement, subject to certain carve-outs.

 

The initial term of the Ginkgo Collaboration Agreement is three years, and will automatically renew for successive one-year terms unless either party provides written notice of termination not less than 90 days prior to the expiration of the then-current term, subject to the right of the parties to terminate the Ginkgo Collaboration Agreement by mutual agreement, in the event of a material breach by the other party, or in the event the other party undergoes a change of control. In addition, the Ginkgo Collaboration Agreement provides that the parties will evaluate the performance of the Collaboration as of the 18-month anniversary of the Ginkgo Collaboration Agreement, and if either party has been repeatedly unable to perform or meet its commitments under the Ginkgo Collaboration Agreement, the other party will have the right to terminate the Ginkgo Collaboration Agreement on 30 days written notice.

 

The Ginkgo Collaboration Agreement contains customary representations and warranties of the parties, as well as customary terms and provisions regarding, among other things, indemnification, dispute resolution, governing law and confidentiality.

 

See Note 18, “Subsequent Events” for additional details regarding the amendment to the Company’s Senior Secured Loan Facility entered into in connection with the execution of the Ginkgo Collaboration Agreement.

 

 46 
 

Financing Agreements

 

Bill & Melinda Gates Foundation Investment

 

On April 8, 2016, the Company entered into a Securities Purchase Agreement with the Bill & Melinda Gates Foundation (the “Gates Foundation”), pursuant to which the Company agreed to sell and issue 4,385,964 shares of its common stock to the Gates Foundation in a private placement at a purchase price per share equal to $1.14, the average of the daily closing price per share of the Company’s common stock on the NASDAQ Stock Market for the twenty consecutive trading days ending on April 7, 2016, for aggregate proceeds to the Company of approximately $5,000,000 (the “Gates Foundation Investment”). The Securities Purchase Agreement includes customary representations, warranties and covenants of the parties.  The closing of the Gates Foundation Investment occurred on May 10, 2016.

 

In connection with the entry into the Securities Purchase Agreement, on April 8, 2016, the Company and the Gates Foundation entered into a Charitable Purposes Letter Agreement, pursuant to which the Company agreed to expend an aggregate amount not less than the amount of the Gates Foundation Investment to develop a yeast strain that produces artemisinic acid and/or amorphadiene at a low cost and to supply such artemisinic acid and amorphadiene to companies qualified to convert artemisinic acid and amorphadiene to artemisinin for inclusion in artemisinin combination therapies used to treat malaria commencing in 2017. If the Company defaults in its obligation to use the proceeds from the Gates Foundation Investment as set forth above or defaults under certain other commitments in the Charitable Purposes Letter Agreement, the Gates Foundation will have the right to request that the Company redeem, or facilitate the purchase by a third party of, the Gates Foundation Investment shares then held by the Gates Foundation at a price per share equal to the greater of (i) the closing price of the Company’s common stock on the trading day prior to the redemption or purchase, as applicable, or (ii) an amount equal to $1.14 plus a compounded annual return of 10%. The funding received is classified as mezzanine equity.

 

2016 Convertible Note Offering

 

See Note 5, “Debt” for details regarding the 2016 Convertible Note Offering.

 

February and June 2016 Private Placements

 

See Note 5, “Debt” for details regarding the February and June 2016 Private Placements.

 

At Market Issuance Sales Agreement

 

On March 8, 2016, the Company entered into an At Market Issuance Sales Agreement (the “ATM Sales Agreement”) with FBR Capital Markets & Co. and MLV & Co. LLC (the “Agents”) under which the Company may issue and sell shares of its common stock having an aggregate offering price of up to $50.0 million (the “ATM Shares”) from time to time through the Agents, acting as its sales agents, under the Company’s Registration Statement on Form S-3 (File No. 333-203216), effective April 15, 2015. Sales of the ATM Shares through the Agents, if any, will be made by any method that is deemed an “at the market offering” as defined in Rule 415 under the Securities Act, including by means of ordinary brokers’ transactions at market prices, in block transactions, or as otherwise agreed by the Company and the Agents. Each time that the Company wishes to issue and sell ATM Shares under the ATM Sales Agreement, the Company will notify one of the Agents of the number of ATM Shares to be issued, the dates on which such sales are anticipated to be made, any minimum price below which sales may not be made and other sales parameters as the Company deems appropriate. The Company will pay the designated Agent a commission rate of up to 3.0% of the gross proceeds from the sale of any ATM Shares sold through such Agent as agent under the ATM Sales Agreement. The ATM Sales Agreement contains customary terms, provisions, representations and warranties. The ATM Sales Agreement includes no commitment by other parties to purchase shares the Company offers for sale.

 

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During the nine months ended September 30, 2016, the Company did not sell any shares of common stock under the ATM Sales Agreement. As of the date hereof, $50.0 million remained available for future sales under the ATM Sales Agreement.

 

 

9. Goodwill and Intangible Assets

 

The following table presents the components of the Company's intangible assets (in thousands):

 

 

      September 30, 2016  December 31, 2015
   Useful Life
in Years
  Gross
Carrying
Amount
  Accumulated
Amortization/
Impairment
  Net
Carrying
Value
  Gross
Carrying
Amount
  Accumulated
Amortization/
Impairment
  Net
Carrying
Value
In-process research and development   Indefinite   $8,560   $(8,560)  $   $8,560   $(8,560)  $ 
Acquired licenses and permits   2    772    (772)       772    (772)    
Goodwill   Indefinite    560        560    560        560 
        $9,892   $(9,332)  $560   $9,892   $(9,332)  $560 

 

The in-process research and development (IPR&D) of $8.6 million was acquired through the acquisition of Draths in October 2011 and was treated as indefinite lived intangible assets pending completion or abandonment of the projects to which the IPR&D related. The IPR&D was fully impaired in 2015.

 

The Company has a single reportable segment (see Note 15, “Reporting Segments” for further details). Consequently, all of the Company's goodwill is attributable to that single reportable segment.

 

 

10. Stockholders’ Deficit

 

Unexercised Common Stock Warrants

 

As of September 30, 2016 and 2015, the Company had 14,663,411 and 50,699,368, respectively, of unexercised common stock warrants with exercise prices ranging from $0.01 to $10.67 per warrant and a weighted average remaining maturity of 5.9 years.

 

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11. Stock-Based Compensation

 

The Company’s stock option activity and related information for the nine months ended September 30, 2016 was as follows:

 

   Number
Outstanding
  Weighted-
Average
Exercise
Price
  Weighted-
Average
Remaining
Contractual
Life (Years)
  Aggregate
Intrinsic
Value
            (in thousands)
Outstanding - December 31, 2015   12,930,112   $4.77    7.39   $22 
Options granted   3,324,775   $0.58         
Options exercised   (134)  $0.28         
Options cancelled   (2,393,835)  $5.59         
Outstanding - September 30, 2016   13,860,918   $3.62    7.27   $ 
Vested and expected to vest after September 30, 2016   12,598,270   $3.86    7.08   $ 
Exercisable at September 30, 2016   6,788,182   $5.84    5.47   $ 

 

The aggregate intrinsic value of options exercised under all option plans was $0.0 million for each of the three months ended September 30, 2016 and 2015, and $0.0 million for each of the nine months ended September 30, 2016 and 2015, determined as of the date of option exercise.

 

The Company’s restricted stock units (or "RSUs") and restricted stock activity and related information for the nine months ended September 30, 2016 was as follows:

 

 

   RSUs  Weighted-
Average Grant-
Date Fair Value
  Weighted Average
Remaining
Contractual Life
(Years)
Outstanding - December 31, 2015   5,554,844   $2.03    1.61 
 Awarded   4,374,389   $0.60     
 Vested   (1,467,569)  $2.19     
 Forfeited   (987,109)  $1.49     
Outstanding - September 30, 2016   7,474,555   $1.23    1.52 
Expected to vest after September 30, 2016   5,898,952   $2.72    1.39 

 

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The following table summarizes information about stock options outstanding as of September 30, 2016:

 

       Options Outstanding  Options Exercisable
Exercise Price  Number of Options  Weighted-
Average
Remaining
Contractual Life
(Years)
  Weighted-Average
Exercise Price
  Number of Options  Weighted-Average
Exercise Price
$0.28 $0.57   372,754    9.71   $0.43    3,254   $0.28 
$0.59 $0.59   2,574,375    9.62   $0.59       $ 
$0.81 $1.73   2,063,938    8.94   $1.64    166,987   $1.61 
$1.75 $1.96   1,546,638    8.48   $1.91    536,904   $1.90 
$1.98 $2.81   1,393,357    6.43   $2.61    1,079,929   $2.66 
$2.85 $3.44   1,369,225    6.49   $3.02    1,137,340   $3.01 
$3.51 $3.51   1,577,760    7.33   $3.51    970,489   $3.51 
$3.55 $4.31   1,761,134    3.86   $3.97    1,691,542   $3.98 
$4.35 $26.84   1,141,737    3.94   $17.59    1,141,737   $17.59 
$30.17 $30.17   60,000    4.45   $30.17    60,000   $30.17 
$0.28 $30.17   13,860,918    7.27   $3.62    6,788,182   $5.84 

 

Stock-Based Compensation Expense

 

Stock-based compensation expense related to options and restricted stock units granted to employees was allocated to research and development expense and sales, general and administrative expense as follows (in thousands):

 

   Three Months Ended September 30,  Nine Months Ended September 30,
   2016  2015  2016  2015
Research and development  $481   $530   $1,457   $1,776 
Sales, general and administrative   1,327    1,726    4,191    5,188 
Total stock-based compensation expense  $1,808   $2,256   $5,648   $6,964 

 

As of September 30, 2016, there was unrecognized compensation expense of $5.2 million and $6.0 million related to stock options and RSUs, respectively. The Company expects to recognize this expense over a weighted average period of 2.86 years and 2.72 years, respectively.

 

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Stock-based compensation expense for RSUs is measured based on the closing fair market value of the Company's common stock on the date of grant. Stock-based compensation expense for stock options and employee stock purchase plan rights is estimated at the grant date and offering date, respectively, based on their fair-value using the Black-Scholes option pricing model. The fair value of employee stock options is being amortized on a straight-line basis over the requisite service period of the awards. The fair value of employee stock options was estimated using the following weighted-average assumptions:

 

   Three Months Ended September 30,  Nine Months Ended September 30,
   2016  2015  2016  2015
Expected dividend yield   %   %   %   %
Risk-free interest rate   1.2%   2%   1.32%   2%
Expected term (in years)   6.16    6.03    6.23    6.00 
Expected volatility   76.7%   74%   73%   74%

 

Expected Dividend Yield—The Company has never paid dividends and does not expect to pay dividends.

 

Risk-Free Interest Rate—The risk-free interest rate was based on the market yield currently available on United States Treasury securities with maturities approximately equal to the option’s expected term.

 

Expected Term—Expected term represents the period that the Company’s stock-based awards are expected to be outstanding. The Company’s assumptions about the expected term have been based on that of companies that have similar industry, life cycle, revenue, and market capitalization and the historical data on employee exercises.

 

Expected Volatility—The expected volatility is based on a combination of historical volatility for the Company's stock and the historical stock volatilities of several of the Company’s publicly listed comparable companies over a period equal to the expected terms of the options, as the Company does not have a long trading history.

 

Forfeiture Rate—The Company estimates its forfeiture rate based on an analysis of its actual forfeitures and will continue to evaluate the adequacy of the forfeiture rate based on actual forfeiture experience, analysis of employee turnover behavior, and other factors. The impact from a forfeiture rate adjustment will be recognized in full in the period of adjustment, and if the actual number of future forfeitures differs from that estimated by the Company, the Company may be required to record adjustments to stock-based compensation expense in future periods.

 

Each of the inputs discussed above is subjective and generally requires significant management and director judgment.

 

12. Employee Benefit Plan

 

The Company established a 401(k) Plan to provide tax deferred salary deductions for all eligible employees. Participants may make voluntary contributions to the 401(k) Plan up to 90% of their eligible compensation, limited by certain Internal Revenue Service (or the "IRS") restrictions. Effective January 2014, the Company implemented a discretionary employer match plan whereby the Company will match employee contributions up to the IRS limit or 90% of compensation, with a minimum one year of service required for vesting. The total matching amount for each of the three months ended September 30, 2016 and 2015 was $0.1 million and $0.1 million, respectively, and $0.3 million and $0.4 million for the nine months ended September 30, 2016 and 2015, respectively.

 

13. Related Party Transactions

 

Related Party Financings

 

See Note 5, “Debt” for a description of the June 2016 Private Placement transaction with Foris Ventures, LLC, a related party of the Company, the February 2016 Private Placement transaction with Foris Ventures, LLC, Naxyris S.A. and Biolding SA, each a related party of the Company, and the March 2016 R&D Note transaction with Total. In addition, see Note 18, “Subsequent Events” for descriptions of additional related party financings subsequent to September 30, 2016.

 

As of September 30, 2016 and December 31, 2015, convertible notes and loans with related parties were outstanding in aggregate amount of $63.5 million and $43.0 million, respectively, net of debt discount and issuance costs of $2.6 million and $1.9 million, respectively.

 

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The fair value of the derivative liability related to the related party convertible notes as of September 30, 2016 and December 31, 2015 was $1.9 million and $7.9 million, respectively. The Company recognized a loss from change in fair value of the derivative instruments of $0.6 million and $12.4 million for the three months ended September 30, 2016 and September 2015, respectively, and a gain from change in fair value of the derivative instruments of $7.7 million for the nine months ended September 30, 2016 and a loss from change in fair value of the derivative instruments of $0.7 million for the nine months ended September 30, 2015, respectively (see Note 3, "Fair Value of Financial Instruments" for further details).

 

Related Party Revenues

 

The Company recognized related party revenues from product sales to Total of zero and $2,000 for the three months ended September 30, 2016 and 2015, respectively, and zero and $2,000 for the nine months ended September 30, 2016 and 2015, respectively. Related party accounts receivable from Total as of September 30, 2016 and December 31, 2015, were $0.7 million and $1.2 million, respectively.

 

The Company recognized related party revenues from product sales to Novvi of $1.4 million and zero for the three months ended September 30, 2016 and 2015, respectively, and $1.4 million and zero for the nine months ended September 30, 2016 and 2015, respectively. Related party accounts receivable from Novvi as of September 30, 2016 and December 31, 2015, were $0.0 million and $0.5 million, respectively.

 

Loans to Related Parties

 

See Note 7, "Joint Ventures and Noncontrolling Interest" for details of the Company's transactions with its affiliate, Novvi LLC.

 

Joint Venture with Total

 

In November 2013, the Company and Total formed TAB as discussed above under Note 7, "Joint Ventures and Noncontrolling Interest."

 

Pilot Plant Agreements

 

In May 2014, the Company received the final consents necessary for a Pilot Plant Services Agreement (or the “Pilot Plant Services Agreement”) and a Sublease Agreement (or the “Sublease Agreement”), each dated as of April 4, 2014 (collectively the “Pilot Plant Agreements”), between the Company and Total. The Pilot Plant Agreements generally have a term of five years. Under the terms of the Pilot Plant Services Agreement, the Company agreed to provide certain fermentation and downstream separations scale-up services and training to Total in exchange for an aggregate annual fee payable by Total for all services in the amount of up to approximately $0.9 million per annum. In July 2015, Total and the Company entered into Amendment #1 to the Pilot Plant Services Agreement (or the "Pilot Plant Agreement Amendment"), whereby the Company agreed to waive a portion of these fees, up to approximately $2.0 million, over the term of the Pilot Plant Services Agreement in connection with the restructuring of TAB discussed above in Note 7, "Joint Ventures and Non-controlling Interest." Under the Sublease Agreement, the Company receives an annual base rent payable by Total of approximately $0.1 million per annum.

 

As of September 30, 2016, the Company had received $1.7 million in cash under the Pilot Plant Agreements from Total. In connection with these arrangements, sublease payments and service fees of $0.1 million and $0.3 million for the three months ended September 30, 2016 and 2015, respectively, and $0.3 million and $0.8 million for the nine months ended September 30, 2016 and 2015, respectively, were offset against costs and operating expenses.

 

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14. Income Taxes

 

The Company recorded a provision for income taxes of $0.1 million for each of the three months ended September 30, 2016 and 2015, and $0.4 million for each of the nine months ended September 30, 2016 and 2015. The provision for income taxes for the nine months ended September 30, 2016 and 2015 consisted of an accrual of Brazilian withholding tax on interest on inter-company loans. Other than the above mentioned provision for income tax, no additional provision for income taxes has been made, net of the valuation allowance, due to cumulative losses since the commencement of the Company's operations.

 

On December 15, 2011, the IRS completed its audit of the Company for tax year 2008 which concluded that there were no adjustments resulting from the audit. While the statutes are closed for tax year 2008, the US federal tax carryforwards (net operating losses and tax credits) may be adjusted by the IRS in the year in which the carryforward is utilized.

 

15. Reporting Segments

 

The chief operating decision maker for the Company is the chief executive officer. The chief executive officer reviews financial information presented on a consolidated basis, accompanied by information about revenue by geographic region, for purposes of allocating resources and evaluating financial performance. The Company has one business activity comprised of research and development and sales of fuels and farnesene-derived products and there are no segment managers who are held accountable for operations, operating results or plans for levels or components below the consolidated unit level. Accordingly, the Company has determined that it has a single reportable segment and operating segment structure.

 

Revenues by geography are based on the location of the customer. The following tables set forth revenue and long-lived assets by geographic area (in thousands):

 

Revenues

 

   Three Months Ended September 30,  Nine Months Ended September 30,
   2016  2015  2016  2015
Europe  $1,899   $459   $10,527   $2,138 
United States   20,461    6,177    27,869    15,550 
Asia   4,126    991    6,039    2,769 
Brazil   46    964    467    3,850 
Other   12        52     
Total  $26,544   $8,591   $44,954   $24,307 

  

Long-Lived Assets (Property, Plant and Equipment)

 

   September 30, 2016  December 31, 2015
Brazil  $47,348   $41,093 
United States   15,489    18,401 
Europe   256    303 
Total  $63,093   $59,797 

 

16. Comprehensive Loss

 

Comprehensive loss represents all changes in stockholders’ deficit except those resulting from investments or contributions by stockholders. The Company’s foreign currency translation adjustments represent the components of comprehensive loss excluded from the Company’s net loss and have been disclosed in the condensed consolidated statements of comprehensive loss for the periods presented.

 

The components of accumulated other comprehensive loss are as follows (in thousands):

 

   September 30, 2016  December 31, 2015
Foreign currency translation adjustment, net of tax  $(39,801)  $(47,198)
Total accumulated other comprehensive loss  $(39,801)  $(47,198)

 

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17. Net Loss Attributable to Common Stockholders and Net Loss per Share

 

The Company computes net loss per share in accordance with ASC 260, “Earnings per Share.” Basic net loss per share of common stock is computed by dividing the Company’s net loss attributable to Amyris, Inc. common stockholders by the weighted average number of shares of common stock outstanding during the period. Diluted net loss per share of common stock is computed by giving effect to all potentially dilutive securities, including stock options, restricted stock units, common stock warrants and convertible promissory notes using the treasury stock method or the as converted method, as applicable. For all periods presented below, other than the nine months ended September 30, 2016, basic net loss per share was the same as diluted net loss per share because the inclusion of all potentially dilutive securities outstanding was anti-dilutive. As such, the numerator and the denominator used in computing both basic and diluted net loss was the same for those periods.

 

The following table presents the calculation of basic and diluted net loss per share of common stock attributable to Amyris, Inc. common stockholders (in thousands, except share and per share amounts):

 

   Three Months Ended September 30,  Nine Months Ended September 30,
   2016  2015  2016  2015
Numerator:                    
Net loss attributable to Amyris, Inc. common stockholders  $(19,704)  $(76,664)  $(48,579)  $(176,034)
Interest on convertible debt           5,093     
Accretion of debt discount           5,304     
Gain from change in fair value of derivative instruments           (37,593)    
Net loss attributable to Amyris, Inc. common stockholders after assumed conversion  $(19,704)  $(76,664)  $(75,775)  $(176,034)
                     
Denominator:                    
Weighted average shares of common stock outstanding for basic EPS   249,190,339    140,374,297    226,772,159    100,103,007 
Basic loss per share  $(0.08)  $(0.55)  $(0.21)  $(1.76)
                     
Weighted average shares of common stock outstanding   249,190,339    140,374,297    226,772,159    100,103,007 
Effect of dilutive securities:                    
Convertible promissory notes           41,602,952     
Weighted common stock equivalents           41,602,952     
                     
Diluted weighted-average common shares   249,190,339    140,374,297    268,375,111    100,103,007 
Diluted loss per share  $(0.08)  $(0.55)  $(0.28)  $(1.76)

 

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The following outstanding shares of potentially dilutive securities were excluded from the computation of diluted net loss per share of common stock because including them would have been anti-dilutive:

 

   Three Months Ended September 30,  Nine Months Ended September 30,
   2016  2015  2016  2015
Period-end stock options to purchase common stock   13,860,918    11,307,679    13,860,918    11,307,679 
Convertible promissory notes(1)   66,474,148    43,451,433    23,760,389    43,451,433 
Period-end common stock warrants   14,663,411    2,901,926    14,663,411    2,901,926 
Period-end restricted stock units   7,474,555    3,558,243    7,474,555    3,558,243 
Total   102,473,032    61,219,281    59,759,273    61,219,281 

______________

(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.

 

18. Subsequent Events

 

Senior Secured Loan Facility Amendment

 

On October 6, 2016, in connection with the entry into the Ginkgo Collaboration Agreement, the Company, certain of its subsidiaries and Stegodon, an affiliate of Ginkgo, entered into a fourth amendment of the Senior Secured Loan Facility. Pursuant to the fourth amendment, subject to the Company extending (or the “Extension Condition”) the maturity of the Fidelity Notes, the parties agreed to extend the maturity date of all outstanding loans under the Senior Secured Loan Facility to the business day immediately preceding the earliest maturity of the Fidelity Notes and the outstanding Tranche Notes held by non-affiliates, after giving effect to any extensions thereof at or prior to the satisfaction of the Extension Condition, but in no event later than April 12, 2019. In addition, the parties agreed that the Company would be required to pay only the interest accruing on all outstanding loans under the Senior Secured Loan Facility until the maturity date, provided that the Company would be required to apply certain monies received by the Company under the Ginkgo Collaboration Agreement towards repayment of the outstanding loans under the Senior Secured Loan Facility, up to a maximum amount of $1 million per month. Furthermore, pursuant to the fourth amendment, Stegodon agreed to waive the Minimum Cash Covenant under the Senior Secured Loan Facility until the maturity date. See Note 5, “Debt” for additional details regarding the Senior Secured Loan Facility and Note 8, “Significant Agreements” for additional information regarding the Ginkgo Collaboration Agreement.

 

2016 Convertible Note Offering

 

On October 13, 2016, the Company issued and sold the $2.0 Million Note under the May 2016 Purchase Agreement to the purchaser, for proceeds to the Company of $2.0 million. Upon the issuance of the $2 Million Note, all 2016 Convertible Notes provided for under the May 2016 Purchase Agreement had been issued and sold. See Note 5, “Debt” for additional information regarding the May 2016 Purchase Agreement and the 2016 Convertible Notes.

 

October 2016 Private Placements

 

On October 21 and October 27, 2016, the Company entered into separate Note Purchase Agreements (or the “October 2016 Purchase Agreements”) with Foris Ventures, LLC and Ginkgo Bioworks, Inc., respectively, for the sale of $6.0 million and $8.5 million, respectively, in aggregate principal amount of secured promissory notes (or the “October 2016 Private Notes”) in exchange for aggregate proceeds to the Company of $6.0 million and $8.5 million, respectively (or the “October 2016 Private Placements”). The October 2016 Private Notes were issued in private placements pursuant to the exemption from registration under Section 4(2) of the Securities Act of 1933, as amended and Regulation D promulgated under the Securities Act. The October 2016 Private Placements closed on October 21 and October 27, 2016, respectively.

 

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The October 2016 Private Notes are collateralized by a second priority lien on the assets securing the Company’s obligations under the Senior Secured Loan Facility, and are subordinate to the Company’s obligations under the Senior Secured Loan Facility pursuant to Subordination Agreements, dated as of the respective dates of the October 2016 Purchase Agreements, by and among the Company, the applicable purchaser and the administrative agent under the Company’s Senior Secured Loan Facility. Interest will accrue on the October 2016 Private Notes from and including October 21 and 27, 2016, respectively, at a rate of 13.50% per annum and is payable in full on May 15, 2017, the maturity date of the October 2016 Private Notes, unless the October 2016 Private Notes are prepaid in accordance with their terms prior to such date. The October 2016 Purchase Agreements and the October 2016 Private Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the October 2016 Private Notes may be due and payable immediately, as set forth in the October 2016 Private Notes.

 

Guanfu Credit Agreement

 

On October 26, 2016, the Company and Guanfu Holding Co., Ltd. (or, together with its subsidiaries, “Guanfu”), an existing commercial partner of the Company, entered into a credit agreement (or the “Guanfu Credit Agreement”) to make available to the Company an unsecured credit facility with an aggregate principal amount of up to $25.0 million (or the “Guanfu Credit Facility”), which the Company may borrow from time to time in up to three closings (each such borrowing, a “Guanfu Loan”). Each Guanfu Loan will have a term of five years and will accrue interest at a rate of 10% per annum, payable quarterly. The Company may at its option repay the Guanfu Loans before their maturity date, in whole or in part, at a price equal to 100% of the amount being repaid plus accrued and unpaid interest on such amount to the date of repayment.

 

The Guanfu Credit Agreement contains customary representations, warranties and covenants of the parties, as well as customary provisions regarding, among other things, dispute resolution and governing law. Upon the occurrence of certain specified events of default under the Guanfu Credit Facility, the Company will grant to Guanfu an exclusive, royalty-free, global license to certain intellectual property useful in connection with Guanfu’s existing commercial relationship with the Company. In addition, in the event the Company fails to pay interest or principal under any Guanfu Loan within ten days of when due, the Company will also be required, subject to applicable laws and regulations, to repay the outstanding principal amount under such Guanfu Loan, together with accrued and unpaid interest, in the form of shares of the Company’s common stock at a per share price equal to 90% of the volume weighted average closing sale price of the Company’s common stock for the 90 trading days ending on and including the trading day that is two trading days preceding such default.

 

The effectiveness of the Guanfu Credit Agreement is subject to the parties obtaining certain required approvals, and upon the effective date of the Guanfu Credit Agreement, the Company will grant to Guanfu the global exclusive purchase right with respect to the Company products subject to the parties’ pre-existing commercial relationship. The initial funding of the Guanfu Credit Facility is scheduled to occur on December 1, 2016, subject to Guanfu’s right to extend such initial funding to a date no later than December 31, 2016.

 

Nenter Cooperation Agreement

 

On October 26, 2016, the Company entered into a Cooperation Agreement (or the “Cooperation Agreement”) with Nenter & Co., Inc. (or “Nenter”), a subsidiary of Guanfu. Under the Cooperation Agreement, the parties will collaborate to create and develop certain compounds and, in the event the parties achieve certain specified development targets, the parties would establish and implement a worldwide manufacturing and commercialization plan (or the “Commercialization Plan”) relating thereto. The term of the Cooperation Agreement will be two years from the effectiveness of the Cooperation Agreement (or five years in the event the parties pursue the Commercialization Plan), which will occur upon the parties obtaining certain required approvals, subject to the rights of the parties to terminate the Cooperation Agreement upon a material breach by the other party or the failure to obtain certain governmental approvals or authorizations, as provided in the Cooperation Agreement. The Cooperation Agreement also contains customary representations, warranties and covenants of the parties, as well as customary terms and provisions regarding, among other things, indemnification, dispute resolution, confidentiality and governing law.

 

In addition, pursuant to the terms of, and as consideration for, the Cooperation Agreement, promptly after the effectiveness of the Cooperation Agreement, the Company will issue to Nenter a warrant to purchase 10 million shares of the Company’s common stock at an exercise price of $0.50 per share, exercisable on or before December 31, 2016. The warrant will be issued pursuant to the exemption from registration under Section 4(2) of the Securities Act and Regulation D promulgated under the Securities Act. Furthermore, pursuant to the terms of the warrant, upon the request of Nenter, the Company will use its best efforts to cause the shares of common stock issued upon exercise of the warrant to be registered under the Securities Act within 90 days of the exercise of the warrant.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

Forward-Looking Statements

 

The following discussion and analysis should be read in conjunction with our condensed consolidated financial statements and the related notes that appear elsewhere in this Form 10-Q. These discussions contain forward-looking statements reflecting our current expectations that involve risks and uncertainties which are subject to safe harbors under the Securities Act of 1933, as amended, or the Securities Act, and the Securities Exchange Act of 1934, as amended, or the Exchange Act. These forward looking statements include, but are not limited to, statements concerning our strategy of achieving a significant reduction in net cash outflows in 2016, future production capacity and other aspects of our future operations, ability to improve our production efficiencies, future financial position, future revenues, projected costs, expectations regarding demand and acceptance for our technologies, growth opportunities and trends in the market in which we operate, prospects and plans and objectives of management. The words “anticipates,” “believes,” “estimates,” “expects,” “intends,” “may,” “plans,” “projects,” “will,” “would” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward looking statements. These forward-looking statements involve risks and uncertainties that could cause our actual results to differ materially from those in the forward-looking statements, including, without limitation, the risks set forth in Part II, Item 1A, “Risk Factors,” in this Quarterly Report on Form 10-Q and in our other filings with the Securities and Exchange Commission. We do not assume any obligation to update any forward-looking statements.

 

Trademarks

 

Amyris, the Amyris logo, Biofene, Biossance, Dial-A-Blend, Diesel de Cana, Evoshield, µPharm, Muck Daddy, Myralene, Neossance and No Compromise are trademarks or registered trademarks of Amyris, Inc. This report also contains trademarks and trade names of other businesses that are the property of their respective holders.

 

Overview

 

Amyris, Inc. (referred to as the “Company,” “Amyris,” “we,” “us,” or “our”) is a leading integrated industrial biotechnology company applying its technology platform to engineer, manufacture and sell high performance, low cost products into a variety of consumer and industrial markets, including cosmetics, flavors & fragrances (or F&F), solvents and cleaners, polymers, lubricants, healthcare products and fuels, and we are seeking to apply our technology to the development of pharmaceutical products. Our proven technology platform allows us to rapidly engineer microbes and use them as living factories to metabolize renewable, plant-sourced sugars into large volume, high-value hydrocarbon molecules. Using yeast as these living factories, our industrial fermentation process replaces existing complex and expensive chemical manufacturing processes. We believe industrial synthetic biology represents a third industrial revolution, bringing together biology and engineering to generate new, more sustainable materials to meet the growing global demand for bio-based replacements for petroleum, animal-or plant-derived chemicals. We continue to work to build demand for our current portfolio of products through a network of distributors and through direct sales, and are engaged in collaborations across a variety of markets, including personal care, performance chemicals and industrials, to drive additional product sales and partnership opportunities.

 

Amyris was founded in 2003 in the San Francisco Bay Area by a group of scientists from the University of California, Berkeley. Our first major milestone came in 2005 when, through a grant from the Bill & Melinda Gates Foundation, we developed technology capable of creating microbial strains that produce artemisinic acid - a precursor of artemisinin, an effective anti-malarial drug. In 2008, we granted royalty-free licenses to allow Sanofi-Aventis (or "Sanofi") to produce artemisinic acid using our technology. Since 2013, Sanofi has been distributing millions of artemisinin-based anti-malarial treatments incorporating this artemisinic acid. Building on our success with artemisinic acid, in 2007 we began applying our technology platform to develop, manufacture and sell sustainable alternatives to a broad range of materials.

 

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We focused our initial development efforts primarily on the production of Biofene®, our brand of renewable farnesene, a long-chain, branched hydrocarbon molecule that we manufacture through fermentation using engineered microbes. Using farnesene as a first commercial building block molecule, we have developed a wide range of renewable products for our various target markets, including cosmetics, F&F, healthcare products and fuels, and we are pursuing opportunities for the application of our technology in the pharmaceuticals market. Our technology platform allows us to rapidly develop microbial strains to produce other target molecules, and, in 2014, we began manufacturing additional molecules for the F&F industry.

 

Amyris’ proprietary microbial engineering and screening technologies have industrialized bioengineering of microbes, and most of our efforts to date have been focused on engineering yeast. Our platform provides predictable and efficient “living factories” that allow us to convert plant-sourced sugars, primarily sugarcane syrup, through fermentation, into high-value hydrocarbon molecules instead of low-value alcohol. We are able to use a wide variety of feedstocks for production, but have focused on accessing Brazilian sugarcane for our large-scale production because of its renewability, low cost and relative price stability. We have also successfully used other feedstocks such as sugar beets, corn dextrose, sweet sorghum and cellulosic sugars at various manufacturing facilities.

 

We are currently producing four molecules at our industrial fermentation plant: artemisinic acid, farnesene and two fragrance molecules. We and our partners develop products from these molecules for several target markets, including cosmetics, F&F, solvents, polymers, industrials and healthcare products, and we are pursuing arrangements with a number of drug companies for their use of our molecules to develop pharmaceutical products. We are engaged in collaborations with multiple companies that are leaders within their respective markets, including affiliates of Total S.A., the international energy company (or “Total”), and worldwide leaders in specialty chemicals, consumer care, F&F, food ingredients and health, and who sell our ingredients to hundreds of brands that serve millions of consumers.

 

Our mission is to apply inspired science to deliver sustainable solutions for a growing world. We seek to become the world’s leading provider of renewable, high-performance alternatives to non-renewable products. In the past, choosing a renewable product often required producers to compromise on performance or price. With our technology, leading consumer brands can develop products made from renewable sources that offer equivalent or better performance and stable supply with competitive pricing. We call this our No Compromise® value proposition. We aim to improve the world one molecule at a time by providing the best alternatives to non-renewable products.

 

We have developed and are operating our company under a business model that generates cash from both collaborations and from product sales. We believe this combination will enable us to realize our vision of becoming the world’s leading renewable products company.

 

Relationship with Total

 

In July 2012 and December 2013, we entered into a series of agreements (or the “Total Fuel Agreements”) to establish a research and development program and form a joint venture with Total Energies Nouvelles Activités USA (formerly known as Total Gas & Power USA, SAS, and, together with its affiliates, referred to as “Total”) to produce and commercialize farnesene- or farnesane-based diesel and jet fuels, and formed such joint venture, Total Amyris BioSolutions B.V. (or “TAB”), in November 2013. With an exception for our fuels business in Brazil, the collaboration and joint venture established the exclusive means for us to develop, produce and commercialize farnesene- or farnesane-based diesel and jet fuels. We initially granted TAB exclusive licenses under certain of our intellectual property to make and sell joint venture products. We also granted TAB, in the event of a buy-out of our interest in the joint venture by Total (which Total was entitled to do under certain circumstances), a non-exclusive license to optimize or engineer yeast strains used by us to produce farnesene for the joint venture’s diesel and jet fuels. As a result of these licenses, we generally no longer had an independent right to make or sell farnesene- or farnesane-based diesel and jet fuels fuels outside of Brazil without the approval of TAB.

 

In addition, our agreements with Total relating to our fuels collaboration created a convertible debt financing structure for funding the research and development program. The Total Fuel Agreements contemplated approximately $105.0 million in financing (or “R&D Notes”) for the collaboration, which as of January 2015, had been completely funded by Total.

 

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In July 2015, we entered into a Letter Agreement with Total (or, as amended in February 2016, the “TAB Letter Agreement”) regarding the restructuring of the ownership and rights of TAB (or the “Restructuring”), pursuant to which the parties agreed to enter into an Amended & Restated Jet Fuel License Agreement between us and TAB (or the “Jet Fuel Agreement”), a License Agreement regarding Diesel Fuel in the European Union (or the “EU”) between us and Total (or the “EU Diesel Fuel Agreement” and together with the Jet Fuel Agreement, the “Commercial Agreements”), and an Amended and Restated Shareholders’ Agreement among us, Total and TAB (or, together with the Commercial Agreements, the “Restructuring Agreements”), and file a Deed of Amendment of Articles of Association of TAB, all in order to reflect certain changes to the ownership structure of TAB and license grants and related rights pertaining to TAB.

 

Additionally, in connection with the proposed Restructuring, in July 2015, we and Total entered into Amendment #1 (or the "Pilot Plant Agreement Amendment") to that certain Pilot Plant Services Agreement dated as of April 4, 2014 (or, as amended, the "Pilot Plant Agreement") whereby we and Total agreed to restructure the payment obligations of Total under the Pilot Plant Agreement. Under the Pilot Plant Agreement, for a five year period, we are providing certain fermentation and downstream separations scale-up services and training to Total and, as originally contemplated, we were to receive an aggregate annual fee payable by Total for all services in the amount of up to approximately $900,000 per annum. Such annual fee was due in three equal installments payable on March 1, July 1 and November 1 each year during the term of the Pilot Plant Agreement. Under the Pilot Plant Agreement Amendment, in connection with the restructuring of TAB discussed above, we agreed to waive a portion of these fees up to approximately $2.0 million, over the term of the Pilot Plant Agreement.

 

On March 21, 2016, we, Total and TAB closed the Restructuring and entered into the Restructuring Agreements.

 

Under the Jet Fuel Agreement, (a) we granted exclusive (co-exclusive in Brazil), world-wide, royalty-free rights to TAB for the production and commercialization of farnesene- or farnesane-based jet fuel, (b) we granted TAB the option, until March 1, 2018, to purchase our Brazil jet fuel business at a price based on the fair value of the commercial assets and on our investment in other related assets, (c) we granted TAB the right to purchase farnesene or farnesane for its jet fuel business from us on a “most-favored” pricing basis and (d) all rights to farnesene- or farnesane-based diesel fuel previously granted to TAB by us reverted back to us.

 

Upon all farnesene- or farnesane-based diesel fuel rights reverting back to us, we granted to Total, pursuant to the EU Diesel Fuel Agreement, (a) an exclusive, royalty-free license to offer for sale and sell farnesene- or farnesane-based diesel fuel in the EU, (b) the non-exclusive right to make farnesene or farnesane anywhere in the world, but Total must (i) use such farnesene or farnesane to produce only diesel fuel to offer for sale or sell in the EU and (ii) pay us a to-be-negotiated, commercially reasonable, “most-favored” basis royalty and (c) the right to purchase farnesene or farnesane for its EU diesel fuel business from us on a “most-favored” pricing basis.

 

As a result of these licenses, we generally no longer have an independent right to make or sell, without the approval of Total, farnesene- or farnesane-based jet fuels outside of Brazil or farnesane-based diesel fuels in the EU.

 

In addition, as part of the closing of the Restructuring and pursuant the TAB Letter Agreement, on March 21, 2016, we sold to Total one half of our ownership stake in TAB (giving Total an aggregate ownership stake of 75% of TAB and giving us an aggregate ownership stake of 25% of TAB) in exchange for Total cancelling (i) approximately $1.3 million of R&D Notes, plus all paid-in-kind and accrued interest under all outstanding R&D Notes (including all such interest that was outstanding as of July 29, 2015) and (ii) a note in the principal amount of Euro 50,000, plus accrued interest, issued to Total in connection with the original TAB capitalization. To satisfy its purchase obligation above, Total surrendered to us the remaining R&D Note of approximately $5 million in principal amount, and we executed and delivered to Total a new, senior convertible note, containing substantially similar terms and conditions other than it is unsecured and its payment terms are severed from TAB’s business performance, in the principal amount of $3.7 million.

 

As a result of, and in order to reflect, the changes to the ownership structure of TAB described above, on March 21, 2016, (a) we, Total and TAB entered into an Amended and Restated Shareholders’ Agreement and filed a Deed of Amendment of Articles of Association of TAB and (b) we and Total terminated the Amended and Restated Master Framework Agreement, dated December 2, 2013 and amended on April 1, 2015, between us and Total. See Note 5, “Debt”, “Note 7, “Joint Ventures and Noncontrolling Interest” and Note 13, “Related Party Transactions” for additional details regarding our relationship with Total.

 

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Sales and Revenues

 

Our revenues are comprised of product revenues and grants and collaborations revenues. We generate the substantial majority of our product revenues from sales to distributors or collaborators and only a small portion from direct sales, although we have begun to market and sell some of our products directly to end-consumers, initially in the cosmetics and industrial cleaning markets. To commercialize our initial Biofene-derived product, squalane, in the cosmetics sector for use as an emollient, we have entered into certain marketing and distribution agreements in Europe, Asia, and North America. As an initial step towards commercialization of Biofene-based diesel, we entered into agreements with municipal fleet operators in Brazil. Pursuant to our agreements with Total, as discussed above, future commercialization of our jet fuel products outside of Brazil and our diesel fuel products in the EU would generally occur exclusively through certain agreements entered into by and among Amyris, Total and TAB. For the industrial lubricants market, we established a joint venture with Cosan U.S. for the worldwide development, production and commercialization of renewable base oils in the lubricant sector. We have also entered into certain supply agreements with customers in the F&F industry to commercialize products derived from our fragrance molecules. In addition, we have entered into research and development collaboration arrangements pursuant to which we receive payments from our collaborators, which include Total, Manufacture Francaise de Pnematiques Michelin, The Defense Advanced Research Projects Agency, Givaudan International, SA and Cosan US, Inc. Some of such collaboration arrangements include advance payments in consideration for grants of exclusivity or research efforts to be performed by us. Once a collaboration agreement has been signed, receipt of payments may depend on our achievement of milestones. See Note 8, “Significant Agreements” for more details regarding these agreements and arrangements.

 

Financing

 

In 2015, and through the third quarter of 2016, we completed multiple financings involving loans, convertible debt, non-convertible debt, mezzanine equity and equity offerings.

 

In January 2015, we closed a second installment of the $21.7 million in convertible notes from Total under the Total Fuel Agreements, as described in more detail in Note 5, "Debt" to our unaudited condensed consolidated financial statements included in this report, in the amount of $10.85 million.

 

In July 2015, we sold to certain purchasers 16,025,642 shares of our common stock at a price per share of $1.56, for aggregate proceeds to us of $25 million. We also granted to the purchasers warrants exercisable at an exercise price of $0.01 per share for the purchase of an aggregate of 1,602,562 shares of our common stock. The exercisability of these warrants was subject to stockholder approval, which was obtained on September 17, 2015.

 

In October 2015, we issued $57.6 million aggregate principal amount of 9.50% Convertible Senior Notes due 2019 to certain qualified institutional buyers, as described in more detail in Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report.

 

In February 2016, we issued to certain purchasers an aggregate of $20.0 million of unsecured promissory notes and warrants for the purchase, at an exercise price of $0.01 per share, of an aggregate of 2,857,142 shares of our common stock, as described in more detail in Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report. The exercisability of these warrants was subject to stockholder approval, which was obtained on May 17, 2016.

 

In March 2016, we sold to Total one half of our ownership stake in TAB in exchange for Total cancelling $1.3 million of R&D Notes and certain other indebtedness, as described in more detail under “Relationship with Total” above and in Note 5, “Debt” and Note 7, “Joint Ventures and Noncontrolling Interest” to our unaudited condensed consolidated financial statements included in this report.

 

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In May 2016, we sold and issued 4,385,964 shares of common stock to the Bill & Melinda Gates Foundation at a purchase price per share of $1.14, as described in more detail in Note 8, “Significant Agreements.”

 

In May and September 2016, we sold and issued $13.0 million in aggregate principal amount of convertible promissory notes to a private investor, as described in more detail in Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report.

 

See Note 18, “Subsequent Events” to our unaudited condensed consolidated financial statements included in this report for details regarding financing transactions completed subsequent to September 30, 2016.

 

Exchange (debt conversion)

 

On July 29, 2015, we closed the "Exchange" pursuant to that certain Exchange Agreement, dated as of July 26, 2015 (the “ Exchange Agreement ”), among us, Maxwell (Mauritius) Pte Ltd (or “Temasek”) and Total.

 

Under the Exchange Agreement, at the closing, Temasek exchanged approximately $71.0 million in principal of outstanding convertible promissory notes (including paid-in-kind and accrued interest through July 29, 2015) and Total exchanged $70.0 million in principal amount of outstanding convertible promissory notes for shares of the Company’s common stock. The exchange price was $2.30 per share (the “Exchange Price”) and was paid by the exchange and cancellation of such outstanding convertible promissory notes, and Temasek and Total received 30,860,633 and 30,434,782 shares of the Company’s common stock, respectively, in the Exchange.

 

Under the Exchange Agreement, Total also received the following warrants, each with a five-year term, at the closing:

 

A warrant to purchase 18,924,191 shares of our common stock (or the “Total Funding Warrant”).

 

A warrant to purchase 2,000,000 shares of our common stock that will only be exercisable if we fail, as of March 1, 2017, to achieve a target cost per liter to manufacture farnesene (or the “Total R&D Warrant”). The Total Funding Warrant and the Total R&D Warrant are collectively referred to as the “Total Warrants.”

 

Additionally, under the Exchange Agreement, Temasek received the following warrants:

 

A warrant to purchase 14,677,861 shares of our common stock.

 

A warrant exercisable for that number of shares of our common stock equal to (1) (A) the number of shares for which Total exercises the Total Funding Warrant plus (B) the number of additional shares for which the certain convertible notes remaining outstanding following the completion of the Exchange may become exercisable as a result of a reduction in the conversion price of such remaining notes as a result of and/or subsequent to the date of the Exchange plus (C) that number of additional shares in excess of 2,000,000, if any, for which the Total R&D Warrant becomes exercisable multiplied by a fraction equal to 30.6% divided by 69.4% plus (2) (A) the number of any additional shares for which certain other outstanding convertible promissory notes may become exercisable as a result of a reduction to the conversion price of such notes multiplied by (B) a fraction equal to 13.3% divided by 86.7% (or the “Temasek Funding Warrant”).

 

A warrant exercisable for that number of shares of our common stock equal to 880,339 multiplied by a fraction equal to the number of shares for which Total exercises the Total R&D Warrant divided by 2,000,000. If Total is entitled to, and does, exercise the Total R&D Warrant in full, this warrant would be exercisable for 880,339 shares (or the “Temasek R&D Warrant”).

 

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The Temasek Exchange Warrant, the Temasek Funding Warrant and the Temasek R&D Warrant each have ten-year terms and are referred to herein as the “Temasek Warrants” and, the Temasek Warrants and Total Warrants are hereinafter collectively referred to as the “Exchange Warrants”. All of the Exchange Warrants have an exercise price of $0.01 per share.

 

In addition to the grant of the Exchange Warrants, a warrant issued by the Company to Temasek in October 2013 in conjunction with a prior convertible debt financing (or the “2013 Warrant”) became exercisable in full upon the completion of the Exchange. There were 1,000,000 shares underlying the 2013 Warrant, which was exercised in full at the exercise price of $0.01 per share.

 

The exercisability of all of the Exchange Warrants was subject to stockholder approval, which was obtained on September 17, 2015.

 

In February and May 2016, as a result of the adjustments to the conversion price of our senior convertible notes issued in October 2013 (or the “Tranche I Notes”) and January 2014 (or the “Tranche II Notes”) discussed in Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report, the Temasek Funding Warrant became exercisable for an additional 127,194 and 2,335,342 shares of common stock, respectively.

 

As of September 30, 2016, the Total Funding Warrant, the Temasek Exchange Warrant, and the 2013 Warrant had been fully exercised, and Temasek had exercised the Temasek Funding Warrant with respect to 12,700,244 shares of our common stock. Neither the Total R&D Warrant nor the Temasek R&D Warrant were exercisable as of September 30, 2016. Warrants to purchase 2,462,536 shares of common stock under the Temasek Funding Warrant were unexercised as of September 30, 2016.

 

Maturity Treatment Agreement

 

At the closing of the Exchange, we, Total and Temasek also entered into a Maturity Treatment Agreement, dated as of July 29, 2015, pursuant to which Total and Temasek agreed to convert any of our convertible promissory notes held by them that were not cancelled in the Exchange (or the “Remaining Notes”) into shares of our common stock in accordance with the terms of such Remaining Notes upon maturity, provided that certain events of default have not occurred with respect to the applicable Remaining Notes prior to such maturity. As of immediately following the closing of the Exchange and September 30, 2016, Temasek held $10.0 million in aggregate principal amount of Remaining Notes and Total held approximately $25.0 million and $28.9 million, respectively, in aggregate principal amount of Remaining Notes.

 

Liquidity

 

We have incurred significant losses since our inception and believe that we will continue to incur losses and negative cash flow from operations through at least 2017. As of September 30, 2016, we had an accumulated deficit of $1,085.7 million and had cash, cash equivalents and short term investments of $2.3 million. We have significant outstanding debt and contractual obligations related to capital and operating leases, as well as purchase commitments. Refer to "Liquidity and Capital Resources" for further details.

 

 

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Results of Operations

 

Comparison of Three Months Ended September 30, 2016 and 2015

 

Revenues

 

   Three Months Ended September 30,  Period-to-period
Change
  Percentage
Change
   2016  2015      
   (Dollars in thousands)   
Revenues                    
Renewable product sales  $5,430   $4,226   $1,204    28%
Related party renewable product sales   1,390    2   $1,388     69,400%
Total product sales   6,820    4,228    2,592    61%
Grants and collaborations revenues   19,724    4,363    15,361    352%
Total revenues  $26,544   $8,591   $17,953    209%

 

Our total revenues increased by $18.0 million to $26.5 million for the three months ended September 30, 2016, as compared to the same period in the prior year, primarily due to a $15.4 million increase in grants and collaborations revenues.

 

Product sales increased by $2.6 million to $6.8 million for the three months ended September 30, 2016, as compared to the same period in the prior year, primarily due to the increases in product sales, primarily in the personal care segment.

 

Grants and collaborations revenues increased by $15.4 million to $19.7 million for the three months ended September 30, 2016, as compared to the same period in the prior year, primarily due to the collaboration revenue for the transfer of certain intellectual property to Ginkgo under the Ginkgo Collaboration Agreement.

 

Cost and Operating Expenses

 

   Three Months Ended September 30,  Period-to-period
Change
  Percentage
Change
   2016  2015      
   (Dollars in thousands)   
Cost of products sold  $14,876   $8,455   $6,421    76%
Loss on purchase commitments and impairment of property, plant and equipment       7,259   (7,259)   (100)%
Research and development   12,315    10,343    1,972    19%
Sales, general and administrative   11,381    14,103    (2,722)   (19)%
Total cost and operating expenses  $38,572   $40,160   $(1,588)   (4)%

 

Our cost of products sold includes cost of raw materials, labor and overhead, amounts paid to contract manufacturers, periodic costs related to inventory write-downs resulting from applying lower of cost or market inventory valuations, and costs related to scale-up in production of such products. Our cost of products sold increased by $6.4 million to $14.9 million for the three months ended September 30, 2016, as compared to the same period in the prior year, primarily driven by product mix, higher inventory provisions and higher excess capacity charges based on timing of production at our manufacturing facilities, and higher raw materials costs.

 

Research and Development Expenses

 

Our research and development expenses increased by $2.0 million to $12.3 million for the three months ended September 30, 2016, as compared to the same period in the prior year, primarily as a result of increases of $0.4 million in consulting and outside services expenses, $0.9 million from facilities expenses, $0.4 million related to technology access and $0.3 million in salaries and benefits.

 

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Sales, General and Administrative Expenses

 

Our sales, general and administrative expenses decreased by $2.7 million to $11.4 million for the three months ended September 30, 2016, as compared to the same period in the prior year, primarily as a result of our cost reduction efforts. The decrease was attributable to a $1.1 million reduction in consulting and outside services, $0.7 million reduction in facilities expenses and $0.9 million reductions in salaries and benefits and depreciation expense.

 

Other Income (Expense)

 

   Three Months Ended September 30,  Period-to-period
Change
  Percentage
Change
   2016  2015      
   (Dollars in thousands)   
Other income (expense):                    
Interest income  $68   $61   $7    11%
Interest expense   (7,927)   (16,559)   8,632    (52)%
Gain/(loss) from change in fair value of derivative instruments   (786)   (21,690)   20,904    (96)%
Loss upon extinguishment of debt   (217)   (5,984)   5,767    (96)%
Other income (expense), net   1,334    (168)   1,502    (894)%
Total other income (expense)  $(7,528)  $(44,340)  $36,812    (83)%

 

Total other expense decreased by approximately $36.8 million to $7.5 million for the three months ended September 30, 2016, as compared to the same period in the prior year. The decrease was primarily attributable to a $8.6 million decrease in interest expense due to lower accelerated interest accretion and a decrease of $20.9 million in the loss from change in fair value of derivative instruments, attributed to the compound embedded derivative liabilities associated with our senior convertible promissory notes and the change in fair value of our interest rate swap derivative liability. The change was driven by fluctuation of various inputs used in the valuation models from one reporting period to another, such as stock price, credit risk rate and estimated stock volatility.

 

Comparison of Nine Months Ended September 30, 2016 and 2015

 

Revenues

 

   Nine Months Ended September 30,  Period-to-period
Change
  Percentage
Change
   2016  2015      
   (Dollars in thousands)   
Revenues            
Renewable product sales  $13,493   $9,661   $3,832    40%
Related party renewable product sales   1,390    2   1,388    69,400%
Total product sales   14,883    9,663   5,220    54%
Grants and collaborations revenues   30,071    14,643    15,428    105%
Total revenues  $44,954   $24,306   $20,648    85%

 

Our total revenues increased by $20.6 million to $45.0 million for the nine months ended September 30, 2016, as compared to the same period in the prior year, primarily due to a $15.4 million increase in grants and collaborations revenues.

 

Product sales increased by $5.2 million to $14.9 million for the nine months ended September 30, 2016, as compared to the same period in the prior year, primarily due to the increases in product sales led by personal care business.

 

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Grants and collaborations revenues increased by $15.4 million to $30.1 million for the nine months ended September 30, 2016, primarily due to the collaboration revenue for the transfer of certain intellectual property to Ginkgo under the Ginkgo Collaboration Agreement.

 

Cost and Operating Expenses

 

   Nine Months Ended September 30,  Period-to-period
Change
  Percentage
Change
   2016  2015      
   (Dollars in thousands)   
Cost of products sold  $33,945   $26,057   $7,888    30%
Loss on purchase commitments and impairment of property, plant and equipment       7,259   (7,259)   (100)%
Research and development   37,397    33,521    3,876    12%
Sales, general and administrative   35,055    42,859    (7,804)   (18)%
Total cost and operating expenses  $106,397   $109,696   $(3,299)   (3)%

 

Our cost of products sold includes cost of raw materials, labor and overhead, amounts paid to contract manufacturers, period costs related to inventory write-downs resulting from applying lower of cost or market inventory valuations, and costs related to scale-up in production of such products. Our cost of products sold increased by $7.9 million to $33.9 million for the nine months ended September 30, 2016, as compared to the same period in the prior year, primarily driven by product mix and higher excess capacity charges based on timing of production at our manufacturing facilities, and higher materials costs.

 

Research and Development Expenses

 

Our research and development expenses increased by $3.9 million to $37.4 million for the nine months ended September 30, 2016, as compared to the same period in the prior year, primarily as a result of an increase of $1.5 million in consulting and outside services and $2.4 million in facilities and rent expense.

 

Sales, General and Administrative Expenses

 

Our sales, general and administrative expenses decreased by $7.8 million to $35.1 million for the nine months ended September 30, 2016, as compared to the same period in the prior year, primarily as a result of decrease of $3.6 million in consulting and outside services expenses, $2.0 million in salaries and benefits, $1.3 million in facilities expenses and $1.0 million in stock-based compensation expense, offset by an increase of $0.1 million in office expense.

 

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Other Income (Expense)

 

   Nine Months Ended September 30,  Period-to-period
Change
  Percentage
Change
   2016  2015      
   (Dollars in thousands)   
Other income (expense):                    
Interest income  $207   $205   $2    1%
Interest expense   (25,989)   (71,027)   45,038    (63)%
Gain/(loss) from change in fair value of derivative instruments   41,826    (10,268)   52,094    (507)%
Loss upon extinguishment of debt   (866)   (5,984)   5,118    (86)%
Other income (expense), net   (1,912)   (1,204)   (708)   59%
Total other income (expense)  $13,266   $(88,278)  $101,544    (115)%

 

Total other income increased by $101.5 million to $13.3 million for the nine months ended September 30, 2016, as compared to the same period in the prior year. The increase was primarily attributable to a $45.0 million decrease in interest expense as a result of lower accelerated interest accretion, and an increase of $52.1 million in the gain from change in fair value of derivative instruments, attributed to the compound embedded derivative liabilities associated with certain of our senior secured convertible promissory notes and the change in fair value of our interest rate swap derivative liability. The decrease in interest expense is due to lower accelerated interest accretion and the change in the fair value of the derivative instruments was driven by fluctuation of various inputs used in the valuation models from one reporting period to another, such as stock price, credit risk rate and estimated stock volatility.

 

 

Liquidity and Capital Resources

 

   September 30,
 2016
  December 31,
2015
   (Dollars in thousands)
Working capital deficit, excluding cash and cash equivalents  $(111,196)  $(53,139)
Cash and cash equivalents and short-term investments  $2,295   $13,512 
Debt and capital lease obligations  $176,629   $156,755 
Accumulated deficit  $(1,085,683)  $(1,037,104)

 

   Nine Months Ended September 30,
   2016  2015
   (Dollars in thousands)
Net cash used in operating activities  $(45,383)  $(52,217)
Net cash used in investing activities  $(496)  $(3,304)
Net cash provided by financing activities  $34,777   $25,754 

 

Working Capital Deficit. Our working capital deficit, excluding cash and cash equivalents, was $111.2 million at September 30, 2016, which represents an increase of $58.1 million compared to a working capital deficit of $53.1 million at December 31, 2015. The increase of $58.1 million in working capital deficit during the nine months ended September 30, 2016 was primarily due to an increase of $38.7 million in current portion of debt, $10.6 million in accrued and other current liabilities, $5.8 million in accounts payable, $0.6 million in deferred revenue and $0.4 million in current capital lease obligations, together with decreases of $3.0 million in inventory, and $0.3 million in other prepaid expense, offset by increases of $1.1 million in accounts receivable, and $0.2 million in short term investments.

 

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To support production of our products in contract manufacturing and dedicated production facilities, we have incurred, and we expect to continue to incur, capital expenditures as we invest in these facilities. We plan to continue to seek external debt and equity financing from U.S. and Brazilian sources to help fund our investment in these contract manufacturing and dedicated production facilities.

 

We expect to fund our operations for the foreseeable future with cash and investments currently on hand, cash inflows from collaboration and grant funding, cash contributions from product sales, and proceeds from new debt and equity financings as well as strategic asset divestments. Some of our anticipated financing sources, such as research and development collaborations, debt and equity financings and strategic asset divestments, are subject to risk that we cannot meet milestones, are not yet subject to definitive agreements or mandatory funding commitments and, if needed, we may not be able to secure additional types of financing in a timely manner or on reasonable terms, if at all. Our planned 2016 working capital needs and our planned operating and capital expenditures for 2016 are dependent on significant inflows of cash from renewable product revenues, existing collaboration partners and funds under existing equity facilities, as well as additional funding from new collaborations, new debt and equity financings and expected proceeds from strategic asset divestments. We will continue to need to fund our research and development and related activities and to provide working capital to fund production, storage, distribution and other aspects of our business.

 

Liquidity. We have incurred significant losses since our inception and believe that we will continue to incur losses and have negative cash flow from operations through at least 2017. As of September 30, 2016, we had an accumulated deficit of $1,085.7 million and had cash, cash equivalents and short term investments of $2.3 million. In March 2016, we entered into an At Market Issuance Sales Agreement under which we may issue and sell shares of our common stock having an aggregate offering price of up to $50.0 million from time to time in “at the market” offerings under our Registration Statement on Form S-3 (File No. 333-203216). This agreement includes no commitment by other parties to purchase shares we offer for sale. See Note 8, “Significant Agreements” to our unaudited condensed consolidated financial statements included in this report for further details. As of the date hereof, $50.0 million remained available for future issuance under this facility. In addition, on September 2, 2016, we sold and issued $3.0 million in convertible promissory notes to a private investor. Refer to Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report for further details. We have significant outstanding debt and contractual obligations related to capital and operating leases, as well as purchase commitments.

 

As of September 30, 2016, our debt, net of discount and issuance costs of $36.1 million, totaled to $175.6 million, of which $75.0 million is classified as current. In addition to upcoming debt maturities, our debt service obligations over the next twelve months are significant, including $16.2 million of anticipated interest payments. Our debt agreements also contain various covenants, including restrictions on our business that could cause us to be at risk of defaults, such as the requirement to maintain unrestricted, unencumbered cash in defined U.S. bank accounts in an amount equal to at least 50% of the principal amount outstanding under our Senior Secured Loan Facility. As discussed above, in connection with the execution by the Company and Ginkgo Bioworks, Inc., an affiliate of Stegodon, of certain commercial agreements (see Note 8, “Significant Agreements” to our unaudited consolidated financial statements included in this report for further details), on June 29, 2016, the Company received a waiver of compliance with such covenant through October 31, 2016 and on October 6, 2016, the Company and Stegodon entered into an amendment to the loan facility pursuant to which, among other things, Stegodon waived such covenant until the maturity date of the facility. A failure to comply with the covenants and other provisions of our debt instruments, including any failure to make a payment when required would generally result in events of default under such instruments, which could permit acceleration of such indebtedness. If such indebtedness is accelerated, it would generally also constitute an event of default under our other outstanding indebtedness, permitting acceleration of such other outstanding indebtedness. Any required repayment of our indebtedness as a result of acceleration or otherwise would lower our current cash on hand such that we would not have those funds available for use in our business or for payment of other outstanding indebtedness. Refer to Note 5, "Debt", Note 6, “Commitments and Contingencies” and Note 18, “Subsequent Events” to our unaudited consolidated financial statements included in this report for further details of our debt arrangements.

 

Our condensed consolidated financial statements as of and for the nine months ended September 30, 2016 have been prepared on the basis that the Company will continue as a going concern, which contemplates the realization of assets and satisfaction of liabilities in the normal course of business. Our ability to continue as a going concern will depend, in large part, on our ability to obtain necessary financing, which is uncertain. The financial statements do not include any adjustments that might result from the outcome of this uncertainty, which could have a material adverse effect on our financial condition. In addition, if we are unable to continue as a going concern, we may be unable to meet our obligations under our existing debt facilities, which could result in an acceleration of our obligation to repay all amounts outstanding under those facilities, and we may be forced to liquidate our assets. In such a scenario, the values we receive for our assets in liquidation or dissolution could be significantly lower than the values reflected in our financial statements.

 

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Our operating plan for 2016 contemplates a significant reduction in our net cash outflows, resulting from (i) revenue growth from sales of existing and new products with positive gross margins, (ii) reduced production costs as a result of manufacturing and technical developments, (iii) increased cash inflows from collaborations, (iv) reduced operating expenses, (v) access to various financing commitments, and (vi) strategic asset divestments (see Note 5, “Debt” and Note 8, “Significant Agreements” to our unaudited condensed consolidated financial statements included in this report for details of financing commitments).

 

If we are unable to generate sufficient cash contributions from product sales, payments from existing and new collaboration partners and strategic asset divestments and draw sufficient funds from certain financing commitments due to contractual restrictions and covenants, we will need to obtain additional funding from equity or debt financings, agree to burdensome covenants, grant further security interests in our assets, enter into collaboration and licensing arrangements that require us to relinquish commercial rights, or grant licenses on terms that are not favorable.

 

If we are unable to raise additional financing, or if other expected sources of funding are delayed or not received, our ability to continue as a going concern would be jeopardized and we would take the following actions to support our liquidity needs through the remainder of 2016 and into 2017:

 

Effect significant headcount reductions, particularly with respect to employees not connected to critical or contracted activities across all functions of the Company, including employees involved in general and administrative, research and development, and production activities.

 

Shift focus to existing products and customers with significantly reduced investment in new product and commercial development efforts.

 

Reduce production activity at our Brotas manufacturing facility to levels only sufficient to satisfy volumes required for product revenues forecast from existing products and customers.

 

Reduce expenditures for third party contractors, including consultants, professional advisors and other vendors.

 

Reduce or delay uncommitted capital expenditures, including non-essential facility and lab equipment, and information technology projects.

 

Closely monitor our working capital position with customers and suppliers, as well as suspend operations at pilot plants and demonstration facilities.

 

Implementing this plan could have a negative impact on our ability to continue our business as currently contemplated, including, without limitation, delays or failures in our ability to:

 

Achieve planned production levels;

 

Develop and commercialize products within planned timelines or at planned scales; and

 

Continue other core activities.

 

Furthermore, any inability to scale-back operations as necessary, and any unexpected liquidity needs, could create pressure to implement more severe measures. Such measures could have an adverse effect on our ability to meet contractual requirements, including obligations to maintain manufacturing operations, and increase the severity of the consequences described above.

 

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Collaboration Funding. For the nine months ended September 30, 2016, we received $23.0 million in cash from collaborations, including $7.8 million under flavors and fragrances collaboration agreements.

 

We depend on collaboration funding to support our research and development and operating expenses. While part of this funding is committed based on existing collaboration agreements, we will be required to identify and obtain funding from additional collaborations. In addition, some of our existing collaboration funding is subject to our achievement of milestones or other funding conditions.

 

If we cannot secure sufficient collaboration funding to support our operating expenses in excess of cash contributions from product sales, existing debt and equity financings and strategic asset divestments, we may need to issue preferred and/or discounted equity, agree to onerous covenants, grant further security interests in our assets, and enter into collaboration and licensing arrangements that require us to relinquish commercial rights or grant licenses on terms that are not favorable to us. If we fail to secure such funding, we could be forced to curtail our operations, which would have a material adverse effect on our ability to continue with our business plans.

 

Government Contracts. In September 2015, we entered into a Technology Investment Agreement (the “TIA”) with The Defense Advanced Research Project Agency (or “DARPA”) under which we, with the assistance of five specialized subcontractors, will work to create new research and development tools and technologies for strain engineering and scale-up activities. The program that is the subject of the TIA is being performed and funded on a milestone basis. Under the TIA, we and our subcontractors could collectively receive DARPA funding of up to $35.0 million over the program’s four year term if all of the program’s milestones are achieved. In conjunction with DARPA’s funding, we and our subcontractors are obligated to collectively contribute approximately $15.5 million toward the program over its four year term (primarily by providing specified labor and/or purchasing certain equipment). We can elect to retain title to the patentable inventions we produce in the program, but DARPA receives certain data rights as well as a government purposes license to certain of such inventions. Either party may, upon written notice and subject to certain consultation obligations, terminate the TIA upon a reasonable determination that the program will not produce beneficial results commensurate with the expenditure of resources. We recognized $4.8 million in revenue under this agreement during the nine months ended September 30, 2016. Total cash received under this agreement as of September 30, 2016 was $4.8 million during the nine months ended September 30, 2016.

 

Convertible Note Offerings. In February 2012, we sold $25.0 million in principal amount of senior unsecured convertible promissory notes due March 1, 2017 as described in more detail in Note 5, "Debt" to our unaudited condensed consolidated financial statements included in this report.

 

In July and September 2012, we issued $53.3 million worth of 1.5% Senior Unsecured Convertible Notes to Total under the July 2012 Agreements for an aggregate of $30.0 million in cash proceeds and our repayment of $23.3 million in previously-provided research and development funds pursuant to the Total Purchase Agreement as described in more detail under "Related Party Convertible Notes" in Note 5, "Debt" to our unaudited condensed consolidated financial statements included in this report. As part of our December 2012 private placement, we issued 1,677,852 shares of our common stock in exchange for the cancellation of $5.0 million of an outstanding senior unsecured convertible promissory note held by Total.

 

In June 2013, we issued a 1.5% Senior Unsecured Convertible Note to Total with a principal amount of $10.0 million with a March 1, 2017 maturity date pursuant to the Total Fuel Agreements. In July 2013, we sold and issued a 1.5% Senior Unsecured Convertible Note to Total with a principal amount of $20.0 million with a March 1, 2017 maturity date pursuant to the Total Fuel Agreements.

 

In August 2013, we entered into an agreement with Total and Temasek to issue up to $73.0 million in convertible promissory notes in private placements over a period of up to 24 months from the date of signing as described in more detail in Note 5, "Debt" to our unaudited condensed consolidated financial statements included in this report (such agreement referred to as the August 2013 SPA and such financing referred to as the August 2013 Financing). The August 2013 Financing was divided into two tranches (one for $42.6 million and one for $30.4 million). Of the total possible purchase price in the financing, $25.0 million was to be paid in the form of cash by Temasek $25.0 million in the second tranche), $35.0 million was paid by the exchange and cancellation of the Temasek Bridge Note, as described below, and $13.0 million was to be paid by cancellation of outstanding convertible promissory notes held by Total in connection with its exercise of pro rata rights ($7.6 million in the first tranche and $5.4 million in the second tranche).

 

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On October 4, 2013, we issued a senior secured promissory note in the principal amount of $35.0 million (or the "Temasek Bridge Note") to Temasek for cash proceeds of $35.0 million. The Temasek Bridge Note was due on February 2, 2014 and accrued interest at a rate of 5.5% per month from October 4, 2013. The Temasek Bridge Note was cancelled as payment for Temasek's purchase of a first tranche convertible note in the initial closing of the August 2013 Financing, as described below.

 

In October 2013, we amended the August 2013 SPA to include certain entities affiliated with FMR LLC (or the “Fidelity Entities”) in the first tranche closing (participating for a principal amount of $7.6 million), and to proportionally increase the amount acquired by exchange and cancellation of outstanding convertible promissory notes by Total to $14.6 million ($9.2 million in the first tranche and up to $5.4 million in the second tranche). Also in October 2013, we completed the closing of the Tranche I Notes for cash proceeds of $7.6 million and cancellation of outstanding convertible promissory notes of $44.2 million, of which $35.0 million resulted from the cancellation of the Temasek Bridge Note. In December 2013, we amended the August 2013 SPA to sell $3.0 million of senior convertible notes under the second tranche of the August 2013 Financing to funds affiliated with Wolverine Asset Management, LLC and we elected to call $25.0 million in additional funds from Temasek pursuant to its previous commitment to purchase such amount of convertible promissory notes in the second tranche. Additionally, pursuant to that amendment, we sold approximately $6.0 million of convertible promissory notes in the second tranche to Total through cancellation of the same amount of principal of previously outstanding convertible notes held by Total (in respect of Total’s preexisting contractual right to maintain its pro rata ownership position through such cancellation of indebtedness). The closing of the sale of such Tranche II Notes under the December amendment to the August 2013 SPA occurred in January 2014. The August 2013 Financing is more fully described in Note 5, "Debt" to our unaudited condensed consolidated financial statements included in this report.

 

In December 2013, in connection with our entry into agreements establishing our joint venture with Total, we exchanged the $69.0 million of the then-outstanding Total unsecured convertible notes issued pursuant to the Total Fuel Agreements for replacement 1.5% Senior Secured Convertible Notes, in principal amounts equal to the principal amount of the cancelled notes.

 

In May 2014, we issued $75.0 million in aggregate principal amount of the Company’s 6.50% Convertible Senior Notes due 2019 to Morgan Stanley & Co. LLC as the Initial Purchaser in a private placement, and for initial resale by the Initial Purchaser to qualified institutional buyers pursuant to Rule 144A of the Securities Act (the “2014 144A Offering”). The 2014 144A Offering is described in more detail in Note 5, "Debt" to our unaudited condensed consolidated financial statements included in this report.

 

In each of July 2014 and January 2015, we issued 1.5% Senior Secured Convertible Notes to Total pursuant to the Total Fuel Agreements. The aggregate principal amount of these two notes was $21.7 million and each of such notes has a March 1, 2017 maturity date.

 

In July 2015, Temasek exchanged approximately $71.0 million in principal amount of outstanding convertible promissory notes and Total exchanged $70.0 million in principal amount of outstanding convertible promissory notes for shares of the Company’s common stock, as further described above under “Exchange (debt conversion)”.

 

In October 2015, we issued $57.6 million in aggregate principal amount of the Company's 9.50% Convertible Senior Notes due 2019 (or the "2015 144A Notes"), which were sold only to qualified institutional buyers and institutional accredited investors in a private placement (or the "2015 144A Offering") under the Securities Act. The 2015 144A Offering is described in more detail in Note 5, "Debt" to our unaudited condensed consolidated financial statements included in this report.

 

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In March 2016, we sold to Total one half of our ownership stake in TAB in exchange for Total cancelling $1.3 million of R&D Notes and certain other indebtedness, as described in more detail under “Relationship with Total” above and in Note 5, “Debt” and Note 7, “Joint Ventures and Noncontrolling Interest” to our unaudited condensed consolidated financial statements included in this report.

 

In May and September 2016, we issued $13.0 million in aggregate principal amount of convertible promissory notes to a private investor in an offering registered under the Securities Act, as described in more detail in Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report.

 

See Note 18, “Subsequent Events” to our unaudited condensed consolidated financial statements included in this report for details regarding convertible note offerings completed subsequent to September 30, 2016.

 

Export Financing with ABC Brasil. In March 2013, we entered into a one-year export financing agreement with ABC for approximately $2.5 million to fund exports through March 2014. This loan was collateralized by future exports from our subsidiary in Brazil. As of September 30, 2016, the loan was fully paid.

 

In March 2014, we entered into an additional one-year-term export financing agreement with ABC for approximately $2.2 million to fund exports through March 2015. This loan is collateralized by future exports from our subsidiary in Brazil. As of September 30, 2016, the loan was fully paid.

 

In April 2015, we entered into an additional one-year-term export financing agreement with ABC for approximately $1.6 million to fund exports through April 2016. This loan is collateralized by future exports from our subsidiary in Brazil. As of September 30, 2016, the loan was fully paid.

 

Banco Pine/Nossa Caixa Financing. In July 2012, we entered into a Note of Bank Credit and a Fiduciary Conveyance of Movable Goods agreement with each of Nossa Caixa and Banco Pine. Under these instruments, we borrowed an aggregate of R$52.0 million (approximately US$16.0 million based on the exchange rate as of September 30, 2016) as financing for capital expenditures relating to our manufacturing facility in Brotas, Brazil. Under the loan agreements, Banco Pine agreed to lend R$22.0 million and Nossa Caixa agreed to lend R$30.0 million. The loans have a final maturity date of July 15, 2022 and bear a fixed interest rate of 5.5% per year. The loans are also subject to early maturity and delinquency charges upon occurrence of certain events including interruption of manufacturing activities at our manufacturing facility in Brotas, Brazil for more than 30 days, except during sugarcane off-season. The loans are secured by certain of our farnesene production assets at the manufacturing facility in Brotas, Brazil and we were required to provide parent guarantees to each of the lenders. As of September 30, 2016 and December 31, 2015, a principal amount of $11.7 million and $11.0 million, respectively, was outstanding under these loan agreements.

 

BNDES Credit Facility. In December 2011, we entered into a credit facility with Banco Nacional de Desenvolvimento Econômico e Social (or BNDES), a government-owned bank headquartered in Brazil (or the "BNDES Credit Facility") to finance a production site in Brazil. The BNDES Credit Facility was for R$22.4 million (approximately US$6.9 million based on the exchange rate as of September 30, 2016). The credit line is divided into an initial tranche for up to approximately R$19.1 million and an additional tranche of approximately R$3.3 million that becomes available upon delivery of additional guarantees. As of September 30, 2016 and December 31, 2015, we had R$4.8 million (approximately US$1.5 million based on the exchange rate as of September 30, 2016) and R$7.6 million (approximately US$1.9 million based on the exchange rate as of December 31, 2015), respectively, in outstanding advances under the BNDES Credit Facility.

 

The principal of loans under the BNDES Credit Facility is required to be repaid in 60 monthly installments, with the first installment due in January 2013 and the last due in December 2017. Interest was initially due on a quarterly basis with the first installment due in March 2012. From and after January 2013, interest payments are due on a monthly basis together with principal payments. The loaned amounts carry interest of 7% per year. Additionally, there is a credit reserve charge of 0.1% on the unused balance from each credit installment from the day immediately after it is made available through its date of use, when it is paid.

 

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The BNDES Credit Facility is collateralized by first priority security interest in certain of our equipment and other tangible assets totaling R$24.9 million (approximately US$7.7 million based on the exchange rate as of September 30, 2016). We are a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, we were required to provide a bank guarantee equal to 10% of the total approved amount (R$22.4 million in total debt) available under the BNDES Credit Facility. For advances in the second tranche (above R$19.1 million), we are required to provide additional bank guarantees equal to 90% of each such advance, plus additional Amyris guarantees equal to at least 130% of such advance. The BNDES Credit Facility contains customary events of default, including payment failures, failure to satisfy other obligations under the credit facility or related documents, defaults in respect of other indebtedness, bankruptcy, insolvency and inability to pay debts when due, material judgments, and changes in control of Amyris Brasil. If any event of default occurs, BNDES may terminate its commitments and declare immediately due all borrowings under the facility.

 

FINEP Credit Facility. In November 2010, we entered into a credit facility with Financiadora de Estudos e Projetos (or "FINEP"), a state-owned company subordinated to the Brazilian Ministry of Science and Technology (or the “FINEP Credit Facility”) to finance a research and development project on sugarcane-based biodiesel (or the “FINEP Project”) and provided for loans of up to an aggregate principal amount of R$6.4 million (approximately US$2.0 million based on the exchange rate as of September 30, 2016) which are secured by a chattel mortgage on certain equipment of Amyris as well as by bank letters of guarantee. All available credit under this facility was fully drawn. As of September 30, 2016, the total outstanding loan balance under this credit facility was R$2.5 million (approximately US$0.8 million based on the exchange rate as of September 30, 2016).

 

Interest on loans drawn under the FINEP Credit Facility is fixed at 5.0% per annum. In case of default under, or non-compliance with, the terms of the agreement, the interest on loans will be dependent on the long-term interest rate as published by the Central Bank of Brazil (such rate, the “TJLP”). If the TJLP at the time of default is greater than 6%, then the interest will be 5.0% plus a TJLP adjustment factor otherwise the interest will be at 11.0% per annum. In addition, a fine of up to 10.0% will apply to the amount of any obligation in default. Interest on late balances will be 1.0% interest per month, levied on the overdue amount. Payment of the outstanding loan balance is being made in 81 monthly installments, which commenced in July 2012 and extends through March 2019. Interest on loans drawn and other charges are paid on a monthly basis and commenced in March 2011.

 

Senior Secured Loan Facility. In March 2014, we entered into the Senior Secured Loan Facility to make available a loan facility in the aggregate principal amount of up to $25.0 million, which loan facility was fully drawn at the closing. The initial loan of $25.0 million under the Senior Secured Loan Facility accrues interest at a rate per annum equal to the greater of either the prime rate reported in the Wall Street Journal plus 6.25% or 9.5%. We may repay the outstanding amounts under the Senior Secured Credit Facility before the maturity date (February 1, 2017) if we pay an additional fee of 1% of the outstanding amounts. We were also required to pay a 1% facility charge at the closing of the Senior Secured Credit Facility, and are required to pay a 10% end of term charge with respect to the initial loan of $25.0 million. In connection with the original Senior Secured Loan Facility, Amyris agreed to certain customary representations and warranties and covenants, as well as certain covenants that were subsequently amended (as described below).

 

In June 2014, we and Hercules entered into a first amendment of the Senior Secured Loan Facility. Pursuant to the first amendment, the parties agreed to adjust the term loan maturity date from May 31, 2015 to February 1, 2017 and remove (i) a requirement for us to pay a forbearance fee of $10.0 million in the event certain covenants were not satisfied, (ii) a covenant that we maintain positive cash flow commencing with the fiscal quarter beginning October 1, 2014, (iii) a covenant that, beginning with the fiscal quarter beginning July 1, 2014, we and our subsidiaries achieve certain projected cash product revenues and projected cash product gross profits, and (iv) an obligation for us to file a registration statement on Form S-3 with the SEC by no later than June 30, 2014 and complete an equity financing of more than $50.0 million by no later than September 30, 2014. We further agreed to include a new covenant requiring us to maintain unrestricted, unencumbered cash in an amount equal to at least 50% of the principal amount then outstanding under the Senior Secured Loan Facility (or the “Minimum Cash Covenant”) and borrow an additional $5.0 million. The additional $5.0 million borrowing was completed in June 2014, and accrues interest at a rate per annum equal to the greater of (i) the prime rate reported in the Wall Street Journal plus 5.25% and (ii) 8.5%.

 

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In March 2015, the Company and Hercules entered into a second amendment of the Senior Secured Loan Facility. Pursuant to the second amendment, the parties agreed to, among other things, establish an additional credit facility in the principal amount of up to $15.0 million, which would be available to be drawn by the Company through the earlier of March 31, 2016 or such time as the Company raised an aggregate of at least $20.0 million through the sale of new equity securities. The additional facility was cancelled undrawn upon the completion of our private stock and warrant offering in July 2015.

 

In November 2015, the Company and Hercules entered into a third amendment of the Senior Secured Loan Facility. Pursuant to the third amendment, the Company borrowed an additional $10,960,000 (or the “Third Amendment Borrowed Amount”) from Hercules on November 30, 2015. As of December 1, 2015, after the funding of the Third Amendment Borrowed Amount (and including repayment of $9.1 million of principal that had occurred prior to the third amendment), the aggregate principal amount outstanding under the Senior Secured Loan Facility was approximately $31.7 million. The Third Amendment Borrowed Amount accrues interest at a rate per annum equal to the greater of (i) 9.5% and (ii) the prime rate reported in the Wall Street Journal plus 6.25%, and, like the previous loans under the Senior Secured Loan Facility, has a maturity date of February 1, 2017. Upon the earlier of the maturity date, prepayment in full or such obligations otherwise becoming due and payable, in addition to repaying the outstanding Third Amendment Borrowed Amount (and all other amounts owed under the Senior Secured Loan Facility, as amended), the Company is also required to pay an end-of-term charge of $767,200. Pursuant to the third amendment, the Company also paid Hercules fees of $1.0 million, $750,000 of which was owed in connection with the expired $15.0 million facility under the second amendment and $250,000 of which was related to the Third Amendment Borrowed Amount. Under the third amendment, the parties agreed that the Company would, commencing on December 1, 2015, be required to pay only the interest accruing on all outstanding loans under the Senior Secured Loan Facility until February 29, 2016. Commencing on March 1, 2016, the Company would have been required to begin repaying principal of all loans under the Senior Secured Loan Facility, in addition to the applicable interest. However, pursuant to the third amendment, the Company could, by achieving certain cash inflow targets in 2016, extend the interest-only period to December 1, 2016. Upon the issuance by the Company of $20.0 million of unsecured promissory notes and warrants in a private placement in February 2016 for aggregate cash proceeds of $20.0 million, the Company satisfied the conditions for extending the interest-only period to May 31, 2016. On June 1, 2016, the Company commenced the repayment of outstanding principal under the Senior Secured Loan Facility. In June 2016, the Company was notified by Hercules that it had transferred and assigned its rights and obligations under the Senior Secured Loan Facility to Stegodon. On June 29, 2016, in connection with the execution by the Company and Ginkgo Bioworks, Inc., an affiliate of Stegodon, of an initial strategic partnership agreement, the Company received a deferment of all scheduled principal repayments under the Senior Secured Loan Facility, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016. Refer to Note 8, “Significant Agreements” to our unaudited consolidated financial statements included in this report for additional details. On October 6, 2016, in connection with the execution by the Company and Ginkgo Bioworks, Inc. of a definitive collaboration agreement, the Company and Stegodon entered into a fourth amendment of the Senior Secured Loan Facility, pursuant to which the parties agreed to (i) subject to the Company extending the maturity of certain of its other outstanding indebtedness, extend the maturity date of the Senior Secured Loan Facility, (ii) make the Senior Secured Loan Facility interest-only until maturity, subject to the requirement that the Company apply certain monies received under the collaboration agreement between the Company and Ginkgo Bioworks, Inc. to repay the amounts outstanding under the Senior Secured Loan Facility, up to a maximum amount of $1 million per month and (iii) waive the Minimum Cash Covenant until the maturity date of the Senior Secured Loan Facility. Refer to Note 8, “Significant Agreements” and Note 18, “Subsequent Events” to our unaudited consolidated financial statements included in this report for additional details.

 

As of September 30, 2016, $28.4 million was outstanding under the Senior Secured Loan Facility, net of discount and issuance cost of $0.1 million. The Senior Secured Loan Facility is secured by liens on our assets, including on certain of our intellectual property. The Senior Secured Loan Facility includes customary events of default, including failure to pay amounts due, breaches of covenants and warranties, material adverse effect events, certain cross defaults and judgments, and insolvency. If an event of default occurs, Stegodon may require immediate repayment of all amounts outstanding under the Senior Secured Loan Facility. The Company was in compliance with the covenants under the Senior Secured Loan Facility as of September 30, 2016 and is in compliance with the covenants under the Senior Secured Loan Facility as of the date hereof.

 

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February 2016 Private Placement. In February 2016, we sold and issued to certain purchasers an aggregate of $20.0 million of unsecured promissory notes and warrants for the purchase, at an exercise price of $0.01 per share, of an aggregate of 2,857,142 shares of our common stock, as described in more detail in Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report. The exercisability of these warrants was subject to stockholder approval, which was obtained on May 17, 2016.

 

June 2016 Private Placement. In June 2016, we sold and issued $5.0 million in aggregate principal amount of secured promissory notes to Foris Ventures, LLC, as described in more detail in Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report.

 

See Note 18, “Subsequent Events” to our unaudited condensed consolidated financial statements included in this report for details regarding financing transactions completed subsequent to September 30, 2016.

 

Common Stock Offerings. In December 2012, we completed a private placement of 14,177,849 shares of our common stock for aggregate cash proceeds of $37.2 million, of which $22.2 million was received in December 2012 and $15.0 million was received in January 2013. Of the 14,177,849 shares issued in the private placement, 1,677,852 of such shares were issued to Total in exchange for cancellation of $5.0 million of an outstanding convertible promissory note we previously issued to Total.

 

In March 2013, we completed a private placement of 1,533,742 of our common stock to Biolding for aggregate proceeds of $5.0 million. This private placement represented the final tranche of Biolding's preexisting contractual obligation to fund $15.0 million upon satisfaction by us of certain criteria associated with the commissioning of our production plant in Brotas, Brazil.

 

In March 2014, we completed a private placement of 943,396 shares of our common stock to Kuraray for aggregate proceeds of $4.0 million.

 

In July 2015, we entered into a Securities Purchase Agreement with certain purchasers under which we agreed to sell 16,025,642 shares of our common stock at a price of $1.56 per share, for aggregate proceeds to the Company of $25 million. The sale of common stock under the Securities Purchase Agreement was completed on July 29, 2015. Pursuant to the Securities Purchase Agreement, the Company granted to each of the purchasers a warrant exercisable at an exercise price of $0.01 per share for the purchase of a number of shares of the Company’s common stock equal to 10% of the shares purchased by such investor. The exercisability of the warrants was subject to stockholder approval, which was obtained on September 17, 2015.

 

On May 10, 2016, we sold and issued 4,385,964 shares of our common stock to the Bill & Melinda Gates Foundation in a private placement at a purchase price per share equal to $1.14, for aggregate proceeds to the Company of approximately $5.0 million, as described in more detail in Note 8, “Significant Agreements.”

 

Cash Flows during the Nine Months Ended September 30, 2016 and 2015

 

Cash Flows from Operating Activities

 

Our primary uses of cash from operating activities are costs related to production and sales of our products and personnel-related expenditures, offset by cash received from product sales, grants and collaborations. Cash used in operating activities was $45.4 million and $52.2 million for the nine months ended September 30, 2016 and 2015, respectively.

 

Net cash used in operating activities of $45.4 million for the nine months ended September 30, 2016 was attributable to our net loss of $48.6 million and net non-cash gain of $15.6 million, offset by net change in our operating assets and liabilities of $18.8 million. Net non-cash gain of $15.6 million for the nine months ended September 30, 2016 consisted primarily of a $41.8 million change in the fair value of derivative instruments related to the embedded derivative liabilities associated with certain of our senior secured convertible promissory notes and currency interest rate swap derivative liability, offset by $8.4 million of depreciation and amortization expenses, $9.2 million of amortization of debt discount and issuance costs, $5.6 million of stock-based compensation, $1.7 million in loss on foreign currency exchange rates, $0.4 million related to technology access, and $0.9 million on loss from extinguishment of debt. Net change in operating assets and liabilities of $18.8 million for the nine months ended September 30, 2016 primarily consisted of a $4.3 million increase in accounts payable, $13.6 million increase in accrued other liabilities, $3.9 million decrease in inventory, and $0.3 increase in deferred revenue, offset by a $1.3 million increase in prepaid expense, $1.4 million increase in accounts receivable, and $0.6 million decrease in deferred rent.

 

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Net cash used in operating activities of $52.2 million for the nine months ended September 30, 2015 was attributable to our net loss of $176.1 million, offset by net non-cash charges of $97.7 million and net change in our operating assets and liabilities of $26.2 million. Net non-cash charges of $97.7 million for the nine months ended September 30, 2015 consisted primarily of a$54.6 million of amortization of debt discount, including a $36.6 million charge due to acceleration of accretion of debt discount on the Total and Temasek convertible notes converted to equity in July 2015, $10.3 million change in the fair value of derivative instruments related to the embedded derivative liabilities associated with our senior secured convertible promissory notes and currency interest rate swap derivative liability, $9.9 million of depreciation and amortization expenses, $7.3 million of loss on purchase commitments and impairment of production assets, $7.0 million of stock-based compensation, $6.0 million of expense associated with extinguishment and cancellation of convertible note, $2.1 million of loss from investment in affiliates, $0.4 million of other noncash expenses and $0.1 million on disposition of property, plant and equipment. Net change in operating assets and liabilities of $26.2 million for the nine months ended September 30, 2015 primarily consisted of $18.7 million increase in accounts payable and accrued other liabilities, $5.1 million decrease in accounts receivable and related party accounts receivable, $2.7 million increase in deferred revenue related to the funds received under collaboration agreements and $3.3 million increase in inventory, offset by $3.6 million decrease in prepaid expenses and other assets and deferred rent.

 

Cash Flows from Investing Activities

 

Our investing activities consist primarily of capital expenditures and other investment activities. Net cash used in investing activities of $0.5 million for the nine months ended September 30, 2016, resulted from $0.7 million of purchases of property, plant and equipment, offset by $0.2 million in net proceeds from maturities of short-term investments.

 

Net cash used in investing activities of $3.3 million for the nine months ended September 30, 2015, resulted from $2.3 million of purchases of property, plant and equipment and $1.2 million in loans made to our equity method investee, Novvi, offset by $0.2 million of change in restricted cash.

 

Cash Flows from Financing Activities

 

Net cash provided by financing activities of $34.8 million for the nine months ended September 30, 2016, was a result of the receipt of $25.0 million of proceeds from debt issued to related parties, $13.3 million of proceeds from other debt issued, net of discounts and issuance costs, $5.0 million of proceeds from issuance of contingently redeemable equity, and the receipt of $0.1 million from exercise of common stock options, offset by $7.4 million of principal payments on debt, $1.0 million of principal payments on capital leases, and $0.2 million of employee's taxes paid upon vesting of restricted stock units.

 

Net cash provided by financing activities of $25.8 million for the nine months ended September 30, 2015, was a result of the receipt of $ 25.0 million from the issuance of common stock in private placements, the receipt of $10.9 million from debt issued to a related party, which related to the closing of the final installment of the Senior Secured Convertible Notes issued to Total under the July 2012 Agreements, the receipt of $1.6 million of proceeds from a one-year term export financing agreement with ABC and the receipt of $0.4 million from exercise of common stock options, offset by $11.2 million of principal payments on debt, $0.6 million of principal payments on capital leases and $0.3 million of employee's taxes paid upon vesting of restricted stock units.

 

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Off-Balance Sheet Arrangements

 

We did not have during the periods presented, and we do not currently have, any material off-balance sheet arrangements, as defined under SEC rules, such as relationships with unconsolidated entities or financial partnerships, which are often referred to as structured finance or special purpose entities, established for the purpose of facilitating financing transactions that are not required to be reflected on our condensed consolidated financial statements.

Contractual Obligations

 

The following is a summary of our contractual obligations as of September 30, 2016 (in thousands):

 

   Total  2016  2017  2018  2019  2020  Thereafter
Principal payments on debt  $208,489   $31,603   $47,809   $20,930   $102,975   $2,002   $3,170 
Interest payments on debt, fixed rate(1)   38,418    7,797    11,269    13,515    5,462    232    143 
Operating leases   47,535    1,762    6,888    6,890    6,777    7,008    18,210 
Principal payments on capital leases   998    463    508    27             
Interest payments on capital leases   26    9    16    1             
Purchase obligations(2)   1,105    268    808    29             
Total  $296,571   $41,902   $67,298   $41,392   $115,214   $9,242   $21,523 

____________________

(1)Does not include any obligations related to make-whole interest or downround provisions. The fixed interest rates are more fully described in Note 5, "Debt” of our condensed consolidated financial statements.
(2)Purchase obligations include noncancellable contractual obligations and construction commitments of $0.6 million, of which zero have been accrued as loss on purchase commitments.

 

Recent Accounting Pronouncements

 

The information contained in Note 2 to the Unaudited Condensed Consolidated Financial Statements under the heading "Recent Accounting Pronouncements" is hereby incorporated by reference into this Part I, Item 2.

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

The market risk inherent in our market risk sensitive instruments and positions is the potential loss arising from adverse changes in: commodity market prices, foreign currency exchange rates, and interest rates as described below.

 

Interest Rate Risk

 

Our exposure to market risk for changes in interest rates relates primarily to our investment portfolio and our outstanding debt obligations (including embedded derivatives therein). We generally invest our cash in investments with short maturities or with frequent interest reset terms. Accordingly, our interest income fluctuates with short-term market conditions. As of September 30, 2016, our investment portfolio consisted primarily of money market funds and certificates of deposit, all of which are highly liquid investments. Due to the short-term nature of our investment portfolio, we do not believe that an immediate 10% increase in interest rates would have a material effect on the fair value of our portfolio. Since we believe we have the ability to liquidate this portfolio, we do not expect our operating results or cash flows to be materially affected to any significant degree by a sudden change in market interest rates on our investment portfolio. Additionally, as of September 30, 2016, 100% of our outstanding debt is in fixed rate instruments or instruments which have capped rates. Therefore, our exposure to the impact of variable interest rates is limited. Changes in interest rates may significantly change the fair value of our embedded derivative liabilities.

 

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Foreign Currency Risk

 

Most of our sales contracts are principally denominated in U.S. dollars and, therefore, our revenues are currently not subject to significant foreign currency risk. The functional currency of our wholly-owned consolidated subsidiary in Brazil is the local currency (Brazilian real) in which recurring business transactions occur. We do not use currency exchange contracts as hedges against amounts permanently invested in our foreign subsidiary. The amount we consider permanently invested in our foreign subsidiary and translated into U.S. dollars using the September 30, 2016 exchange rate is $119.9 million as of September 30, 2016 and $99.5 million at December 31, 2015. The increase in the permanent investments in our foreign subsidiary between December 31, 2015 and September 30, 2016 is due to the depreciation of the U.S. dollar versus the Brazilian real. The potential loss in value, which would be principally recognized in Other Comprehensive Loss, resulting from a hypothetical 10% adverse change in quoted Brazilian real exchange rates, is $2.8 million and $4.9 million as of September 30, 2016 and December 31, 2015, respectively. Actual results may differ.

 

We make limited use of derivative instruments, which include currency interest rate swap agreements, to manage the Company's exposure to foreign currency exchange rate and interest rate fluctuations related to the Company's Banco Pine loan. In June 2012, we entered into a currency interest rate swap arrangement with Banco Pine for R$22.0 million (approximately US$6.8 million based on the exchange rate as of September 30, 2016). The swap arrangement exchanges the principal and interest payments under the Banco Pine loan entered into in July 2012 for alternative principal and interest payments that are subject to adjustment based on fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real. The swap has a fixed interest rate of 3.94%. This arrangement hedges the fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real.

 

We analyzed our foreign currency exposure to identify assets and liabilities denominated in other currencies. For those assets and liabilities, we evaluated the effects of a 10% shift in exchange rates between those currencies and the U.S. dollar. We have determined that there would be an immaterial effect on our results of operations from such a shift.

 

Commodity Price Risk

 

Our primary exposure to market risk for changes in commodity prices currently relates to our purchases of sugar feedstocks. When possible, we manage our exposure to this risk primarily through the use of supplier pricing agreements.

 

 

ITEM 4. CONTROLS AND PROCEDURES

 

Disclosure Controls and Procedures

 

Our management, with the participation of our chief executive officer (or “CEO”) and chief financial officer (or “CFO”), evaluated the effectiveness of our disclosure controls and procedures pursuant to Rules 13a-15 and 15d-15(e) under the Securities Exchange Act of 1934, as amended (or the “Exchange Act”), as of the end of the period covered by this Quarterly Report on Form 10-Q.  Based on this evaluation, our CEO and CFO concluded that, as of September 30, 2016, our disclosure controls and procedures are designed and are effective to provide reasonable assurance that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the SEC's rules and forms, and that such information is accumulated and communicated to our management, including our CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure.

 

Our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

 

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Changes in Internal Control over Financial Reporting

 

There were no changes in our internal control over financial reporting identified in management’s evaluation pursuant to Rules 13a-15(d) or 15d-15(d) of the Exchange Act during our third fiscal quarter ended September 30, 2016 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

Inherent Limitations on the Effectiveness of Internal Controls

 

The effectiveness of any system of internal control over financial reporting, including ours, is subject to inherent limitations, including the exercise of judgment in designing, implementing, operating, and evaluating the controls and procedures, and the inability to eliminate misconduct completely. Accordingly, any system of internal control over financial reporting, including ours, no matter how well designed and operated, can only provide reasonable, not absolute assurances. In addition, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. We intend to continue to monitor and upgrade our internal controls as necessary or appropriate for our business, but cannot assure you that such improvements will be sufficient to provide us with effective internal control over financial reporting.

 

 

 

 

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PART II

ITEM 1. LEGAL PROCEEDINGS

 

We may be involved, from time to time, in legal proceedings and claims arising in the ordinary course of our business. Such matters are subject to many uncertainties and there can be no assurance that legal proceedings arising in the ordinary course of business or otherwise will not have a material adverse effect on our business, results of operations, financial position or cash flows.

 

ITEM 1A. RISK FACTORS

 

Investing in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties described below, together with all of the other information set forth in this Quarterly Report on Form 10-Q, which could materially affect our business, financial condition or future results. If any of the following risks actually occurs, our business, financial condition, results of operations and future prospects could be materially and adversely harmed. The trading price of our common stock could decline due to any of these risks, and, as a result, you may lose all or part of your investment.

 

Risks Related to Our Business

 

We have incurred losses to date, anticipate continuing to incur losses in the future, and may never achieve or sustain profitability.

 

We have incurred significant losses in each year since our inception and believe that we will continue to incur losses and negative cash flow from operations into at least 2017. As of September 30, 2016, we had an accumulated deficit of $1,085.7 million and had cash, cash equivalents and short term investments of $2.3 million. We have significant outstanding debt and contractual obligations related to capital and operating leases, as well as purchase commitments of $1.1 million. As of September 30, 2016, our debt totaled $175.6 million, net of discount and issuance cost of $36.1 million, of which $75.0 million is classified as current. Our debt service obligations over the next twelve months are significant, including approximately $16.2 million of anticipated interest payments (excluding interest paid in kind by adding to outstanding principal) and may include potential early conversion payments of up to approximately $13.2 million (assuming all note holders convert) under our outstanding convertible promissory notes sold on October 20, 2015 pursuant to Rule 144A of the Securities Act (or the "2015 144A Notes"). Furthermore, our debt agreements contain various financial and operating covenants, including restrictions on business that could cause us to be at risk of defaults. We expect to incur additional costs and expenses related to the continued development and expansion of our business, including construction and operation of our manufacturing facilities, contract manufacturing, research and development operations, and operation of our pilot plants and demonstration facility. There can be no assurance that we will ever achieve or sustain profitability on a quarterly or annual basis.

 

Our unaudited condensed consolidated financial statements as of and for the nine months ended September 30, 2016 have been prepared on the basis that we will continue as a going concern, which contemplates the realization of assets and satisfaction of liabilities in the normal course of business. We have incurred significant losses since our inception and we expect that we will continue to incur losses as we aim to successfully execute our business plan and will be dependent on additional public or private financings, collaborations or licensing arrangements with strategic partners, or through additional credit lines or other debt financing sources to fund continuing operations. Based on our cash balances, recurring losses since inception and our existing capital resources to fund our planned operations for a twelve month period, there is substantial doubt about our ability to continue as a going concern. Our operating plan for 2016 contemplates a significant reduction in our net cash outflows resulting from (i) revenue growth from sales of existing and new products with positive gross margins, (ii) reduced production costs as a result of manufacturing and technical developments, (iii) increased cash inflows from collaborations, (iv) reduced operating expenses, (v) access to various financing commitments, and (vi) strategic asset divestments. In addition, as noted below, for our 2016 operating plan, we are dependent on funding from sources that are not subject to existing commitments. We will need to obtain additional funding from equity or debt financings, which may require us to agree to burdensome covenants, grant further security interests in our assets, enter into collaboration and licensing arrangements that require us to relinquish commercial rights, or grant licenses on terms that are not favorable. No assurance can be given at this time as to whether we will be able to achieve our expense reduction or fundraising objectives, regardless of the terms. If we are unable to raise additional financing, or if other expected sources of funding are delayed or not received, our ability to continue as a going concern would be jeopardized and we may be forced to delay, scale back or eliminate some of our general and administrative, research and development, or production activities or other operations and reduce investment in new product and commercial development efforts in an effort to provide sufficient funds to continue our operations. If any of these events occurs, our ability to achieve our development and commercialization goals would be adversely affected. In addition, if we are unable to continue as a going concern, we may be unable to meet our obligations under our existing debt facilities, which could result in an acceleration of our obligation to repay all amounts outstanding under those facilities, and we may be forced to liquidate our assets. In such a scenario, the values we receive for our assets in liquidation or dissolution could be significantly lower than the values reflected in our financial statements.

 

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Our financial statements do not include any adjustments that might result from the outcome of this uncertainty, which could have a material adverse effect on our financial condition and cause investors to suffer the loss of all or a substantial portion of their investment.

 

We have limited experience producing our products at commercial scale and may not be able to commercialize our products to the extent necessary to sustain and grow our current business.

 

To commercialize our products, we must be successful in using our yeast strains to produce target molecules at commercial scale and at a commercially viable cost. If we cannot achieve commercially-viable production economics for enough products to support our business plan, including through establishing and maintaining sufficient production scale and volume, we will be unable to achieve a sustainable integrated renewable products business. Virtually all of our production capacity is through a purpose-built, large-scale production plant in Brotas, Brazil. This plant commenced operations in 2013, and scaling and running the plant has been, and continues to be, a time-consuming, costly, uncertain and expensive process. Given our limited experience commissioning and operating our own manufacturing facilities and our limited financial resources, we cannot be sure that we will be successful in achieving production economics that allow us to meet our plans for commercialization of various products we intend to offer. In addition, until recently we have only produced Biofene at the Brotas plant. Our attempts to scale production of new molecules at the plant are subject to uncertainty and risk. For example, even to the extent we successfully complete product development in our laboratories and pilot and demonstration facilities, and at contract manufacturing facilities, we may be unable to translate such success to large-scale, purpose-built plants. If this occurs, our ability to commercialize our technology will be adversely affected and we may be unable to produce and sell any significant volumes of our products. Also, with respect to products that we are able to bring to market, we may not be able to lower the cost of production, which would adversely affect our ability to sell such products profitably.

 

We will require significant inflows of cash from financing and collaboration transactions to fund our anticipated operations and to service our debt obligations and may not be able to obtain such financing and collaboration funding on favorable terms, if at all.

 

Our planned 2016 and 2017 working capital needs, our planned operating and capital expenditures for 2016 and 2017, and our ability to service our outstanding debt obligations are dependent on significant inflows of cash from existing and new collaboration partners and cash contribution from growth in renewable product sales. We will continue to need to fund our research and development and related activities and to provide working capital to fund production, storage, distribution and other aspects of our business. Some of our anticipated financing sources, such as research and development collaborations, are subject to the risk that we cannot meet milestones, that the collaborations may end prematurely for reasons that may be outside of our control (including technical infeasibility of the project or a collaborator's right to terminate without cause), or the collaborations are not yet subject to definitive agreements or mandatory funding commitments and, if needed, we may not be able to secure additional types of financing in a timely manner or on reasonable terms, if at all. The inability to generate sufficient cash flow, as described above, could have an adverse effect on our ability to continue with our business plans and our status as a going concern.

 

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If we are unable to raise additional financing, or if other expected sources of funding are delayed or not received, our ability to continue as a going concern would be jeopardized and we would take the following actions to support our liquidity needs through the remainder of 2016 and into 2017:

 

Effect significant headcount reductions, particularly with respect to employees not connected to critical or contracted activities across all functions of the Company, including employees involved in general and administrative, research and development, and production activities.

 

Shift focus to existing products and customers with significantly reduced investment in new product and commercial development efforts.

 

Reduce production activity at our Brotas manufacturing facility to levels only sufficient to satisfy volumes required for product revenues forecast from existing products and customers.

 

Reduce expenditures for third party contractors, including consultants, professional advisors and other vendors.

 

Reduce or delay uncommitted capital expenditures, including non-essential facility and lab equipment, and information technology projects.

 

Closely monitor the Company's working capital position with customers and suppliers, as well as suspend operations at pilot plants and demonstration facilities.

 

Implementing this plan could have a negative impact on our ability to continue our business as currently contemplated, including, without limitation, delays or failures in our ability to:

 

Achieve planned production levels;

 

Develop and commercialize products within planned timelines or at planned scales; and

 

Continue other core activities.

 

Furthermore, any inability to scale-back operations as necessary, and any unexpected liquidity needs, could create pressure to implement more severe measures. Such measures could have an adverse effect on our ability to meet contractual requirements, including obligations to maintain manufacturing operations, and increase the severity of the consequences described above.

 

Future revenues are difficult to predict, and our failure to predict revenue accurately may cause our results to be below our expectations or those of analysts or investors and could result in our stock price declining.

 

Our revenues are comprised of product revenues and grants and collaborations revenues. We generate the substantial majority of our product revenues from sales to distributors or collaborators and only a small portion from direct sales. Our collaboration and distribution agreements do not include any specific purchase obligations. The sales volume of our products in any given period has been difficult to predict. A significant portion of our product sales is dependent upon the interest and ability of third party distributors to create demand for, and generate sales of, such products to end-users. For example, if such distributors are unsuccessful in creating pull-through demand for our products with their customers, such distributors may purchase less of our products from us than we expect. In addition, many of our new and novel products are intended to be a component of other companies’ products; therefore, sales of our products may be contingent on our collaborators’ and/or customers’ timely and successful development and commercialization of end-use products that incorporate our products. Furthermore, we have begun to market and sell some of our products directly to end-consumers, initially in the cosmetics and industrial cleaning markets. Because we have no prior experience in marketing and selling directly to consumers, it is difficult to predict how successful our efforts will be and we may not achieve the product sales we expect to achieve in the timeline we anticipate (if at all).

 

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In addition, we have entered into research and development collaboration arrangements pursuant to which we receive payments from our collaborators. Some of such collaboration arrangements include advance payments in consideration for grants of exclusivity or research efforts to be performed by us. It has in the past been difficult for us to know with certainty when we will sign a new collaboration arrangement. As a result, achievement of our quarterly and annual goals, expressed in part via a non-GAAP financial measure that we refer to as cash revenue inflows consisting of GAAP product revenues plus cash payments from collaborations and grants, has been difficult to predict with certainty. Once a collaboration agreement has been signed, receipt of payments and/or recognition of related revenues may depend on our achievement of milestones. In addition, a portion of the revenue we report each quarter results from the recognition of deferred revenue from advance payments we have received from these collaborators during previous quarters. Since our business model depends in part on collaboration agreements with advance payments that we recognize over time, it may also be difficult for us to rapidly increase our revenues through additional collaborations in any period, as revenue from such new collaborations will often be recognized over multiple quarters or years.

 

These factors have made it difficult to predict future revenues and have resulted in our revenues being below our previously announced guidance or analysts’ estimates. We continue to face these risks in the future, which may cause our stock price to decline.

 

A limited number of distributors, customers and collaboration partners account for a significant portion of our revenue, and the loss of major distributors, customers or collaboration partners could harm our operating results.

 

Our revenues have varied significantly from quarter to quarter and are dependent on sales to, and collaborations with, a limited number of distributors, customers and/or collaboration partners. We cannot be certain that distributors, customers and/or collaboration partners that have accounted for significant revenue in past periods, individually or as a group, will continue to generate similar revenue in any future period. If we fail to renew with, or if we lose a major distributor, customer or collaborator or group of distributors, customers or collaborators, our revenue could decline if we are unable to replace the lost revenue with revenue from other sources.

 

Our existing financing arrangements may cause significant risks to our stockholders and may impact our ability to pursue certain transactions and operate our business.

 

As of September 30, 2016, our debt totaled $175.6 million, net of discount and issuance costs of $36.1 million, of which $75.0 million is classified as current. Our cash balance is substantially less than the principal amount of our outstanding debt, and we will be required to generate cash from operations or raise additional working capital through future financings or sales of assets to enable us to repay this indebtedness as it becomes due. There can be no assurance that we will be able to do so.

 

In addition, we have agreed to significant covenants in connection with our debt financing transactions, including restrictions on our ability to incur future indebtedness, and customary events of default, including failure to pay amounts due, breaches of covenants and warranties, material adverse effect events, certain cross defaults and judgments, and insolvency. A failure to comply with the covenants and other provisions of our debt instruments, including any failure to make a payment when required would generally result in events of default under such instruments, which could permit acceleration of such indebtedness and could result in a material adverse effect events on us. If such indebtedness is accelerated, it would generally also constitute an event of default under our other outstanding indebtedness, permitting acceleration of such other outstanding indebtedness. Any required repayment of our indebtedness as a result of acceleration or otherwise would lower our current cash on hand such that we would not have those funds available for use in our business or for payment of other outstanding indebtedness.

 

If we are at any time unable to generate sufficient cash flow from operations to service our indebtedness when payment is due, we may be required to attempt to renegotiate the terms of the instruments relating to the indebtedness, seek to refinance all or a portion of the indebtedness or obtain additional financing. There can be no assurance that we will be able to successfully renegotiate such terms, that any such refinancing would be possible or that any additional financing could be obtained on terms that are favorable or acceptable to us. Any debt financing that is available could cause us to incur substantial costs and subject us to covenants that significantly restrict our ability to conduct our business. If we seek to complete additional equity financings, the interests of existing equity holders may be diluted.

 

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In addition, the covenants in our debt agreements materially limit our ability to take certain actions, including our ability to pay dividends, make certain investments and other payments, undertake certain mergers and consolidations, and encumber and dispose of assets. For example, the purchase agreement for convertible notes that we sold in separate closings in October 2013 and January 2014, which we refer to as the Tranche Notes, requires us to obtain the consent of a majority of the purchasers of these notes before completing any change-of-control transaction, or purchasing assets in one transaction or a series of related transactions in an amount greater than $20.0 million, in each case while the Tranche Notes are outstanding. The holders of the Tranche Notes also have pro rata rights to invest in, and under which they could cancel up to the full amount of their outstanding Tranche Notes to pay for, equity securities that we issue in certain financings, which could delay or prevent us from completing such financings.

 

Our substantial leverage could adversely affect our ability to fulfill our obligations under our existing indebtedness and may place us at a competitive disadvantage in our industry.

 

We continue to have substantial debt outstanding and we may incur additional indebtedness from time to time to finance working capital, product development efforts, strategic acquisitions, investments and alliances, capital expenditures or other general corporate purposes, subject to the restrictions contained in our existing indebtedness and in any other agreements under which we incur indebtedness. Our significant indebtedness and debt service requirements could adversely affect our ability to operate our business and may limit our ability to take advantage of potential business opportunities. For example, our high level of indebtedness presents the following risks:

 

we will be required to use a substantial portion of our cash flow from operations to pay principal and interest on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, product development efforts, acquisitions, investments and strategic alliances and other general corporate requirements;

 

our substantial leverage increases our vulnerability to economic downturns and adverse competitive and industry conditions and could place us at a competitive disadvantage compared to those of our competitors that are less leveraged;

 

our debt service obligations could limit our flexibility in planning for, or reacting to, changes in our business and our industry and could limit our ability to pursue other business opportunities, borrow more money for operations or capital in the future and implement our business strategies;

 

our level of indebtedness and the covenants within our debt instruments may restrict us from raising additional financing on satisfactory terms to fund working capital, capital expenditures, product development efforts, strategic acquisitions, investments and alliances, and other general corporate requirements; and

 

our substantial leverage may make it difficult for us to attract additional financing when needed.

 

If we are at any time unable to generate sufficient cash flow from operations to service our indebtedness when payment is due, we may be required to attempt to renegotiate the terms of the instruments relating to the indebtedness, seek to refinance all or a portion of the indebtedness or obtain additional financing. There can be no assurance that we will be able to successfully renegotiate such terms, that any such refinancing would be possible or that any additional financing could be obtained on terms that are favorable or acceptable to us.

 

A failure to comply with the covenants and other provisions of our debt instruments, including any failure to make a payment when required, could result in events of default under such instruments, and which could permit acceleration of such indebtedness. If such indebtedness is accelerated, it could also constitute an event of default under our other outstanding indebtedness, permitting acceleration of such other outstanding indebtedness. Any required repayment of our indebtedness as a result of acceleration or otherwise would lower our current cash on hand such that we would not have those funds available for use in our business or for payment of other outstanding indebtedness.

 

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Our GAAP operating results could fluctuate substantially due to the accounting for the early conversion payment features of outstanding convertible promissory notes.

 

Several of our outstanding convertible debt instruments are accounted for under Accounting Standards Codification 815, Derivatives and Hedging (or “ASC 815”) as an embedded derivative. For instance, with respect to the 2015 144A Notes, if the holders elect convert their 2015 144A Notes, such converting holders will receive an early conversion payment equal to the present value of the remaining scheduled payments of interest that would have been made on the 2015 144A Notes being converted from the earlier of the date that is three years after the date we receive such notice of conversion and the maturity of the 2015 144A Notes. Our 6.50% Convertible Senior Notes due 2019 (or the “2014 144A Notes”) contain a similar early conversion payment feature, provided that the last reported sale price of our common stock for 20 or more trading days (whether or not consecutive) in a period of 30 consecutive trading days ending within five trading days immediately prior to the date we receive a notice of such election to convert exceeds the conversion price in effect on each such trading day. The early conversion payment features of the 2014 144A Notes and the 2015 144A Notes are accounted for under ASC 815 as embedded derivatives. ASC 815 requires companies to bifurcate conversion options from their host instruments and account for them as free standing derivative financial instruments according to certain criteria. The fair value of the derivative is remeasured to fair value at each balance sheet date, with a resulting non-cash gain or loss related to the change in the fair value of the derivative being charged to earnings (loss). We have determined that we must bifurcate and account for the early conversion payment features of the 2014 144A Notes and the 2015 144A Notes, as well as certain other features of our other convertible debt instruments, as embedded derivatives in accordance with ASC 815. We have recorded these embedded derivative liabilities as non-current liabilities on our consolidated balance sheet with a corresponding debt discount at the date of issuance that is netted against the principal amount of the 2014 144A Notes, the 2015 144A Notes or other convertible debt instrument, as applicable. The derivative liabilities are remeasured to fair value at each balance sheet date, with a resulting non-cash gain or loss related to the change in the fair value of the derivative liabilities being recorded in other income or loss. There is no current observable market for this type of derivative and, as such, we determine the fair value of the embedded derivatives using the binomial lattice model. The valuation model uses the stock price, conversion price, maturity date, risk-free interest rate, estimated stock volatility and estimated credit spread. Changes in the inputs for these valuation models may have a significant impact on the estimated fair value of the embedded derivative liabilities. For example, an increase in the Company's stock price results in an increase in the estimated fair value of the embedded derivative liabilities. The embedded derivative liabilities may have, on a GAAP basis, a substantial effect on our balance sheet from quarter to quarter and it is difficult to predict the effect on our future GAAP financial results, since valuation of these embedded derivative liabilities are based on factors largely outside of our control and may have a negative impact on our earnings and balance sheet.

 

If our major production facilities do not successfully commence or scale up operations, our customer relationships, business and results of operations may be adversely affected.

 

A substantial component of our planned production capacity in the near and long term depends on successful operations at our large-scale production plant in Brazil. We are currently operating our first purpose-built, large-scale production plant in Brotas, Brazil and may complete construction of certain other facilities in the coming years. Delays or problems in the construction, start-up or operation of these facilities will cause delays in our ramp-up of production and hamper our ability to reduce our production costs. Delays in construction can occur due to a variety of factors, including regulatory requirements and our ability to fund construction and commissioning costs. For example, in 2012 we determined it was necessary to delay further construction of our large-scale manufacturing facility with São Martinho in order to focus on the construction and commissioning of our Brotas facility. We have since permanently ceased construction of the São Martinho facility, and expect to need to identify additional production capacity as early as 2017 based on anticipated volume requirements. Once our large-scale production facilities are built, we must successfully commission them and they must perform as we have designed them. If we encounter significant delays, cost overruns, engineering issues, contamination problems, equipment or raw material supply constraints, unexpected equipment maintenance requirements, safety issues, work stoppages or other serious challenges in bringing these facilities online and operating them at commercial scale, we may be unable to produce our initial renewable products in the time frame we have planned. Industrial scale fermentation is an emerging field and it is difficult to predict the effects of scaling up production to commercial scale, which involves various risks to the quality and consistency of our molecules. In addition, in order to produce molecules at our plant at Brotas, we have been and will be required to perform thorough transition activities, and modify the design of the plant. Any modifications to the production plant could cause complications in the operations of the plant, which could result in delays or failures in production. We may also need to continue to use contract manufacturing sources more than we expect (e.g., if the modifications to the Brotas plant are not successful or have a negative impact on the plant's operations), which would reduce our anticipated gross margins and may prevent us from accessing certain markets for our products. Further, if our efforts to increase (or commence, as the case may be) production at these facilities are not successful, other mill owners in Brazil or elsewhere may decide not to work with us to develop additional production facilities, demand more favorable terms or delay their commitment to invest capital in our production.

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Our reliance on the large-scale production plant in Brotas, Brazil subjects us to execution and economic risks.

 

Our decision to focus our efforts for production capacity on the manufacturing facility in Brotas, Brazil means that we have limited manufacturing sources for our products in 2016 and beyond. Accordingly, any failure to establish operations at that plant could have a significant negative impact on our business, including our ability to achieve commercial viability for our products. With the facility in Brotas, Brazil, we are, for the first time, operating a commercial fermentation and separation facility ourselves. We may face unexpected difficulties associated with the operation of the plant. For example, we have in the past, at certain contract manufacturing facilities and at the Brotas facility, encountered delays and difficulties in ramping up production based on contamination in the production process, problems with plant utilities, lack of automation and related human error, issues arising from process modifications to reduce costs and adjust product specifications or transition to producing new molecules, and other similar challenges. We cannot be certain that we will be able to remedy all of such challenges quickly or effectively enough to achieve commercially viable near-term production costs and volumes.

 

To the extent we secure collaboration arrangements with new or existing partners, we may be required to make significant capital investments at our existing or new facilities in order to produce molecules or other products for such collaborations. Any failure or difficulties in establishing, building up or retooling our operations for these new collaboration arrangements could have a significant negative impact on our business, including our ability to achieve commercial viability for our products, lead to the inability to meet our contractual obligations and could cause us to allocate capital, personnel and other resources from our organization which could adversely affect our business and reputation.

 

As part of our arrangement to build the plant in Brotas, Brazil we have an agreement with Tonon Bioenergia S.A. (or “Tonon”) to purchase from Tonon sugarcane juice corresponding to a certain number of tons of sugarcane per year, along with specified water and vapor volumes. Until this annual volume is reached, we are restricted from purchasing sugarcane juice for processing in the facility from any third party, subject to limited exceptions, unless we pay the premium to Tonon that we would have paid if we bought the juice from them. As such, we will be relying on Tonon to supply such juice and utilities on a timely basis, in the volumes we need, and at competitive prices. If a third party can offer superior prices and Tonon does not consent to our purchasing from such third party, we would be required to pay Tonon the applicable premium, which would have a negative impact on our production cost. Furthermore, we agreed to pay a price for the juice that is based on the lower of the cost of two other products produced by Tonon using such juice, plus a premium. Tonon may not want to sell sugarcane juice to us if the price of one of the other products is substantially higher than the one setting the price for the juice we purchase. While the agreement provides that Tonon would have to pay a penalty to us if it fails to supply the agreed-upon volume of juice for a given month, the penalty may not be enough to compensate us for the increased cost if third-party suppliers do not offer competitive prices. Also, if the prices of the other products produced by Tonon increase, we could be forced to pay those increased prices for production without a related increase in the price at which we can sell our products, reducing or eliminating any margins we can otherwise achieve. If in the future these supply terms no longer provide a viable economic structure for the operation in Brotas, Brazil we may be required to renegotiate our agreement, which could result in manufacturing disruptions and delays. In December 2015, Tonon filed for bankruptcy protection in Brazil. If Tonon is unable to supply sugarcane juice, water and steam in accordance with our agreement, we may not be able to obtain substitute supplies from third parties in necessary quantities or at favorable prices, or at all. In such event, our ability to manufacture our products in a timely or cost-effective manner, or at all, would be negatively affected, which would have a material adverse effect on our business.

 

Furthermore, as we continue to scale up production of our products, both through contract manufacturers and at our large-scale production plant in Brotas, Brazil, we may be required to store increasing amounts of our products for varying periods of time and under differing temperatures or other conditions that cannot be easily controlled, which may lead to a decrease in the quality of our products and their utility profiles and could adversely affect their value. If our stored products degrade in quality, we may suffer losses in inventory and incur additional costs in order to further refine our stored products or we may need to make new capital investments in shipping, improved storage or sales channels and related logistics.

 

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Loss or termination of contract manufacturing relationships could harm our ability to meet our production goals.

 

As we have focused on building and commissioning our own plant and improving our production economics, we have reduced our use of contract manufacturing and have terminated relationships with some of our contract manufacturing partners. The failure to have multiple available supply options for farnesene or other target molecules could create a risk for us if a single source or a limited number of sources of manufacturing runs into operational issues. In addition, if we are unable to secure the services of contract manufacturers when and as needed, we may lose customer opportunities and the growth of our business may be impaired. We cannot be sure that contract manufacturers will be available when we need their services, that they will be willing to dedicate a portion of their capacity to our projects, or that we will be able to reach acceptable price and other terms with them for the provision of their production services. If we shift priorities and adjust anticipated production levels (or cease production altogether) at contract manufacturing facilities, such adjustments or cessations could also result in disputes or otherwise harm our business relationships with contract manufacturers. In addition, reducing or stopping production at one facility while increasing or starting up production at another facility generally results in significant losses of production efficiency, which can persist for significant periods of time. Also, in order for production to commence under our contract manufacturing arrangements, we generally must provide equipment, and we cannot be assured that such equipment can be ordered or installed on a timely basis, at acceptable costs, or at all. Further, in order to establish new manufacturing facilities, we need to transfer our yeast strains and production processes from lab to commercial plants controlled by third parties, which may pose technical or operational challenges that delay production or increase our costs.

 

Our use of contract manufacturers exposes us to risks relating to costs, contractual terms and logistics.

 

While we have commenced commercial production at the Brotas, Brazil plant, we continue to commercially produce, process and manufacture some specialty molecules through the use of contract manufacturers, and we anticipate that we will continue to use contract manufacturers for the foreseeable future for chemical conversion and production of end-products and, to mitigate cost and volume risks at our large-scale production facilities, for production of Biofene and other fermentation target compounds. Establishing and operating contract manufacturing facilities requires us to make significant capital expenditures, which reduces our cash and places such capital at risk. Also, contract manufacturing agreements may contain terms that commit us to pay for capital expenditures and other costs incurred or expected to be earned by the plant operators and owners, which can result in contractual liability and losses for us even if we terminate a particular contract manufacturing arrangement or decide to reduce or stop production under such an arrangement.

 

The locations of contract manufacturers can pose additional cost, logistics and feedstock challenges. If production capacity is available at a plant that is remote from usable chemical finishing or distribution facilities, or from customers, we will be required to incur additional expenses in shipping products to other locations. Such costs could include shipping costs, compliance with export and import controls, tariffs and additional taxes, among others. In addition, we may be required to use feedstock from a particular region for a given production facility. The feedstock available in a particular region may not be the least expensive or most effective feedstock for production, which could significantly raise our overall production cost or reduce our product's quality until we are able to optimize the supply chain.

 

If we are unable to reduce our production costs, we may not be able to produce our products at competitive prices and our ability to grow our business will be limited.

 

In order to be competitive in the markets we are targeting, our products must have superior qualities or be competitively priced relative to alternatives available in the market. Currently, our costs of production are not low enough to allow us to offer some of our planned products at competitive prices relative to alternatives available in the market. Our production costs depend on many factors that could have a negative effect on our ability to offer our planned products at competitive prices, including, in particular, our ability to establish and maintain sufficient production scale and volume, and feedstock cost. For example, see "We have limited experience producing our products at commercial scale and may not be able to commercialize our products to the extent necessary to sustain and grow our current business," "Our manufacturing operations require sugar feedstock, energy and steam, and the inability to obtain such feedstock, energy and steam in sufficient quantities or in a timely manner, or at reasonable prices, may limit our ability to produce products profitably or at all," and "The price of sugarcane and other feedstocks can be volatile as a result of changes in industry policy and may increase the cost of production of our products."

 

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We face financial risk associated with scaling up production to reduce our production costs. To reduce per-unit production costs, we must increase production to achieve economies of scale and to be able to sell our products with positive margins. However, if we do not sell production output in a timely manner or in sufficient volumes, our investment in production will harm our cash position and generate losses. Additionally, we may incur added costs in storage and we may face issues related to the decrease in quality of our stored products, which could adversely affect the value of such products. Since achieving competitive product prices generally requires increased production volumes and our manufacturing operations and cash flows from sales are in their early stages, we have had to produce and sell products at a loss in the past, and may continue to do so as we build our business. If we are unable to achieve adequate revenues from a combination of product sales and other sources, we may not be able to invest in production and we may not be able to pursue our business plans.

 

Key factors beyond production scale and feedstock cost that impact our production costs include yield, productivity, separation efficiency and chemical process efficiency. Yield refers to the amount of the desired molecule that can be produced from a fixed amount of feedstock. Productivity represents the rate at which our product is produced by a given yeast strain. Separation efficiency refers to the amount of desired product produced in the fermentation process that we are able to extract and the time that it takes to do so. Chemical process efficiency refers to the cost and yield for the chemical finishing steps that convert our target molecule into a desired product. In order to successfully enter transportation fuels and certain chemical markets, we must produce those products at significantly lower costs, which will require both substantially higher yields than we have achieved to date and other significant improvements in production efficiency, including in productivity and in separation and chemical process efficiencies. There can be no assurance that we will be able to make these improvements or reduce our production costs sufficiently to offer our planned products at competitive prices, and any such failure could have a material adverse impact on our business and prospects.

 

Our ability to establish substantial commercial sales of our products is subject to many risks, any of which could prevent or delay revenue growth and adversely impact our customer relationships, business and results of operations.

 

There can be no assurance that our products will be approved or accepted by customers, that customers will choose our products over competing products, or that we will be able to sell our products profitably at prices and with features sufficient to establish demand. The markets we have entered first are primarily those for specialty chemical products used by large consumer products or specialty chemical companies. In entering these markets, we have sold and we intend to sell our products as alternatives to chemicals currently in use, and in some cases the chemicals that we seek to replace have been used for many years. The potential customers for our molecules generally have well developed manufacturing processes and arrangements with suppliers of the chemical components of their products and may have a resistance to changing these processes and components. These potential customers frequently impose lengthy and complex product qualification procedures on their suppliers, influenced by consumer preference, manufacturing considerations such as process changes and capital and other costs associated with transitioning to alternative components, supplier operating history, established business relationships and agreements, regulatory issues, product liability and other factors, many of which are unknown to, or not well understood by, us. Satisfying these processes may take many months or years. Additionally, we may be subject to product safety testing and may be required to meet certain regulatory and/or product safety standards. Meeting these standards can be a time consuming and expensive process, and we may invest substantial time and resources into such qualification efforts without ultimately securing approval. If we are unable to convince these potential customers (and the consumers who purchase products containing such chemicals) that our products are comparable to the chemicals that they currently use or that the use of our products is otherwise to their benefits, we will not be successful in entering these markets and our business will be adversely affected.

 

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We expect to face competition for our specialty chemical and transportation fuels products from providers of petroleum-based products and from other companies seeking to provide alternatives to these products, and if we cannot compete effectively against these companies or products we may not be successful in bringing our products to market or further growing our business after we do so.

 

We expect that our renewable products will compete with both the traditional, largely petroleum-based specialty chemical and fuels products that are currently being used in our target markets and with the alternatives to these existing products that established enterprises and new companies are seeking to produce.

 

In the specialty chemical markets that we are initially entering, and in other chemical markets that we may seek to enter in the future, we will compete primarily with the established providers of chemicals currently used in products in these markets. Producers of these incumbent products include global oil companies, large international chemical companies and companies specializing in specific products, such as squalane or essential oils. We may also compete in one or more of these markets with products that are offered as alternatives to the traditional petroleum-based or other traditional products being offered in these markets.

 

In the transportation fuels market, we expect to compete with independent and integrated oil refiners, advanced biofuels companies and biodiesel companies. Refiners compete with us by selling traditional fuel products and some are also pursuing hydrocarbon fuel production using non-renewable feedstocks, such as natural gas and coal, as well as processes using renewable feedstocks, such as vegetable oil and biomass. We also expect to compete with companies that are developing the capacity to produce diesel and other transportation fuels from renewable resources in other ways. These include advanced biofuels companies using specific enzymes that they have developed to convert cellulosic biomass, which is non-food plant material such as wood chips, corn stalks and sugarcane bagasse, into fermentable sugars. Similar to us, some companies are seeking to use engineered microbes, such as yeast, bacteria and algae, to convert sugars, in some cases from cellulosic biomass and in others from more refined sugar sources, into renewable diesel and other fuels. Biodiesel companies convert vegetable oils and animal oils into diesel fuel and some are seeking to produce diesel and other transportation fuels using thermochemical methods to convert biomass into renewable fuels.

 

With the emergence of many new companies seeking to produce chemicals and fuels from alternative sources, we may face increasing competition from alternative fuels and chemicals companies. As they emerge, some of these companies may be able to establish production capacity and commercial partnerships to compete with us. If we are unable to establish production and sales channels that allow us to offer comparable products at attractive prices, we may not be able to compete effectively with these companies.

 

We believe the primary competitive factors in both the chemicals and fuels markets are:

 

product price;

 

product performance and other measures of quality;

 

infrastructure compatibility of products;

 

sustainability; and

 

dependability of supply.

 

The oil companies, large chemical companies and well-established agricultural products companies with whom we compete are much larger than us, have, in many cases, well developed distribution systems and networks for their products, have valuable historical relationships with the potential customers we are seeking to serve and have much more extensive sales and marketing programs in place to promote their products. In order to be successful, we must convince customers that our products are at least as effective as the traditional products they are seeking to replace and we must provide our products on a cost basis that does not greatly exceed these traditional products and other available alternatives. Some of our competitors may use their influence to impede the development and acceptance of renewable products of the type that we are seeking to produce.

 

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We believe that for our chemical products to succeed in the market, we must demonstrate that our products are comparable alternatives to existing products and to any alternative products that are being developed for the same markets based on some combination of product cost, availability, performance, and consumer preference characteristics. With respect to our diesel and other transportation fuels products, we believe that our product must perform as effectively as petroleum-based fuel, or alternative fuels, and be available on a cost basis that does not greatly exceed these traditional products and other available alternatives. In addition, with the wide range of renewable fuels products under development, we must be successful in reaching potential customers and convincing them that ours are effective and reliable alternatives.

 

Our relationship with our strategic partner, Total, and certain rights we have granted to Total and other existing stockholders in relation to our future securities offerings have substantial impacts on our company.

 

We have a license, development, research and collaboration agreement with Total, under which we may develop, produce and commercialize products with Total. Under this agreement, Total has a right of first negotiation with respect to certain exclusive commercialization arrangements that we would propose to enter into with third parties, as well as the right to purchase any of our products on terms not less favorable than those offered to or received by us from third parties in any market where Total or its affiliates have a significant market position. These rights might inhibit potential strategic partners or potential customers from entering into negotiations with us about future business opportunities. Total also has the right to terminate this agreement if we undergo a sale or change of control to certain entities, which could discourage a potential acquirer from making an offer to acquire us.

Under certain other agreements with Total related to its original investment in our capital stock, for as long as Total owns 10% of our voting securities, it has rights to an exclusive negotiation period if our Board of Directors decides to sell our company. Total also has the right to designate one director to serve on our Board of Directors. Also, in connection with Total’s investments, our certificate of incorporation includes a provision that excludes Total from prohibitions on business combinations between Amyris and an “interested stockholder.” These provisions could have the effect of discouraging potential acquirers from making offers to acquire us, and give Total more access to Amyris than other stockholders if Total decides to pursue an acquisition.

 

Additionally, in connection with subsequent investments by Total in Amyris, we granted Total, among other investors, a right of first investment if we propose to sell securities in a private placement financing transaction. With these rights, Total and other investors may subscribe for a portion of any new private placement financing and require us to comply with certain notice periods, which could discourage other investors from participating in, or cause delays in our ability to close, such a financing. Further, under the purchase agreement for the Tranche Notes, Total and other holders of Tranche Notes have the right to pay for any securities purchased in connection with an exercise of their right of first investment by cancelling all or a portion of their outstanding Tranche Notes. To the extent Total or other investors exercise these rights, it will reduce the cash proceeds we may realize from the relevant financing.

 

Our jet fuels joint venture with Total limits our ability to independently develop and commercialize farnesene- and farnesane-based jet fuels.

 

In July 2012 and December 2013, we entered into a series of agreements with Total to establish a research and development program regarding farnesene-based diesel and jet fuels and to form a joint venture, Total Amyris BioSolutions B.V., or TAB, to produce and commercialize such products worldwide.

 

In July 2015, we entered into a Letter Agreement with Total regarding the restructuring of the ownership and rights of TAB, pursuant to which, among other things, the parties agreed to enter into an Amended & Restated Jet Fuel License Agreement between us and TAB, or the Jet Fuel Agreement. We entered into the Jet Fuel Agreement with TAB on March 21, 2016.

 

Under the Jet Fuel Agreement, (a) we granted TAB exclusive (co-exclusive in Brazil), world-wide, royalty-free rights to produce and commercialize farnesene- or farnesane-based jet fuel, (b) we granted TAB the option, until March 1, 2018, to purchase our Brazil jet fuel business at a price based on the fair value of the commercial assets and on our investment in other related assets, (c) we granted TAB the right to purchase farnesene or farnesane for its jet fuel business from us on a “most-favored” pricing basis and (d) all rights to farnesene- or farnesane-based diesel fuel previously granted to TAB by us reverted back to us. As a result of Jet Fuel Agreement, we generally no longer have an independent right to make or sell farnesene- or farnesane-based jet fuels outside of Brazil without the approval of TAB.

 

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If, for any reason, TAB is not fully supported, or is not successful, and TAB does not allow us to pursue farnesene-based jet fuels independently, this joint venture arrangement could impair our ability to develop and commercialize such jet fuels, which could have a material adverse effect on our business and long term prospects. For example, this arrangement could adversely affect our ability to enter or expand in the jet fuel market on terms that would otherwise be more favorable to us independently or with third parties.

 

Our diesel fuels license to Total limits our ability to independently develop and commercialize farnesene- and farnesane-based diesel fuels in the European Union.

 

Upon all farnesene- or farnesane-based diesel fuel rights reverting back to us pursuant to the Jet Fuel Agreement, we granted to Total, pursuant to a License Agreement regarding Diesel Fuel in the European Union, or the EU, dated March 21, 2016, between us and Total, (a) an exclusive, royalty-free license to offer for sale and sell farnesene- or farnesane-based diesel fuel in the EU, (b) the non-exclusive right to make farnesene or farnesane anywhere in the world, but Total must (i) use such farnesene or farnesane to produce only diesel fuel to offer for sale or sell in the EU and (ii) pay us a to-be-negotiated, commercially reasonable, “most-favored” basis royalty and (c) the right to purchase farnesene or farnesane for its EU diesel fuel business from us on a “most-favored” pricing basis. As a result of the License Agreement regarding Diesel Fuel in the European Union, we generally no longer have an independent right to sell farnesene- or farnesane-based diesel fuels in the EU without the approval of Total. If, for any reason, Total were not successful in selling farnesene- or farnesane-based diesel fuels in the EU and did not allow us to independently pursue selling farnesene- or farnesane-based diesel fuels there, this arrangement could impair our ability to develop and commercialize such diesel fuels in the EU, which could have a material adverse effect on our business and long term prospects.

 

We have limited control over our jet fuels joint venture with Total.

 

As part of the restructuring of TAB in March 2016 as described above, we sold a portion of our interest in TAB to Total, giving Total an aggregate ownership stake of 75% of TAB and us an aggregate ownership stake of 25% of TAB. As a result, we do not have the right or power to direct the management or policies of TAB, and Total may take action with TAB contrary to our instructions or requests and against our policies and objectives. If Total or TAB acts contrary to our interest, it could harm our brand, business, results of operations and financial condition. Furthermore, if we were to experience a change of control or fail to make any required capital contribution to TAB, Total has a right to buy out our interest in TAB at fair market value. If Total were to exercise these rights, we would, in effect, relinquish our economic rights to the intellectual property we have exclusively licensed to TAB, and our ability to seek future revenue from farnesene- or farnesane-based jet fuel outside of Brazil would be adversely affected (or completely prevented). This could significantly reduce the value of our product offerings and have a material adverse effect on our ability to grow our business in the future.

 

Our relationship with Ginkgo Bioworks, Inc. exposes us to financial and commercial risks.

 

In June 2016, we entered into an initial strategic partnership agreement with Ginkgo Bioworks, Inc. (or “Ginkgo”), pursuant to which we licensed certain intellectual property to Ginkgo in exchange for a license fee and royalty, and agreed to pursue the negotiation and execution of a definitive partnership agreement setting forth the terms of a long-term commercial partnership and collaboration arrangement between us and Ginkgo, and in September 2016 we executed a definitive collaboration agreement with Ginkgo setting forth the terms of a commercial partnership under which the parties would collaborate to develop, manufacture and sell commercial products and would share in the value of such products. In connection with the entry into such commercial agreements, we received a waiver under, and subsequently entered into an amendment of, our senior secured credit facility, the agent and lender under which is an affiliate of Ginkgo, which amendment extends, subject to certain conditions, the maturity of the loans under the senior secured credit facility, eliminates principal repayments under the facility prior to maturity, subject to the requirement that we apply certain monies received by us under the collaboration agreement with Ginkgo to repay the outstanding loans under the facility, and waives the covenant in the senior secured loan facility requiring the Company to maintain unrestricted, unencumbered cash in defined U.S. bank accounts in an amount equal to at least 50% of the principal amount outstanding under the facility until the maturity date. See Note 8, “Significant Agreements” and Note 18, “Subsequent Events” to our unaudited consolidated financial statements included in this report for additional information regarding our relationship with Ginkgo.

 

There can be no assurance that our partnership with Ginkgo will be successful, and the partnership may prevent us from pursuing other business opportunities in the future. If the partnership is unsuccessful, our ability to continue with our business plans would be adversely affected. In addition, negative developments in our commercial partnership with Ginkgo could negatively affect our relationship with the agent and lender under our senior secured credit facility, an affiliate of Ginkgo, which could adversely impact our ability to incur additional indebtedness in the future or take other actions the consent for which would be required from the agent and lender under the facility. In such event, our financial condition and business operations could be adversely affected.

 

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If we do not meet technical, development and commercial milestones in our collaboration agreements, our future revenue and financial results will be adversely impacted.

 

We have entered into a number of agreements regarding the further development of certain of our products and, in some cases, for ultimate sale of certain products to the customer under the agreement. None of these agreements affirmatively obligates the other party to purchase specific quantities of any products at this time, and most contain important conditions that must be satisfied before additional research and development funding or product purchases would occur. These conditions include research and development milestones and technical specifications that must be achieved to the satisfaction of our collaborators, which we cannot be certain we will achieve. If we do not achieve these contractual milestones, our revenues and financial results will be adversely affected.

 

We are subject to risks related to our reliance on collaboration arrangements to fund development and commercialization of our products and the success of such products is uncertain.

 

For most product markets we are trying to address, we either have or are seeking collaboration partners to fund the research and development, commercialization and production efforts required for the target products. Typically we provide limited exclusive rights and revenue sharing with respect to the production and sale of particular types of products in specific markets in exchange for such up-front funding. These exclusivity, revenue-sharing and other similar terms limit our ability to commercialize our products and technology, and may impact the size of our business or our profitability in ways that we do not currently envision. In addition, revenues from these types of relationships are a key part of our cash plan for 2016 and beyond. If we fail to collect expected collaboration revenues, or to identify and add sufficient additional collaborations to fund our planned operations, we may be unable to fund our operations or pursue development and commercialization of our planned products. To achieve our collaboration revenue targets from year to year, we may be forced to enter into agreements that contain less favorable terms. As part of our current and future collaboration arrangements, we may be required to make significant capital investments at our existing or new facilities in order to produce molecules or other products for such collaborations. Any failure or difficulties in establishing, building up or retooling our operations for these collaboration arrangements could have a significant negative impact on our business, including our ability to achieve commercial viability for our products, lead to the inability to meet our contractual obligations and could cause us to allocate capital, personnel and other resources from our organization which could adversely affect our business and reputation.

 

With respect to pharmaceutical collaborations, our experience in this industry is limited, so we may have difficulty identifying and securing collaboration partners and customers for pharmaceutical applications of our products and services. Furthermore, our success in pharmaceuticals depends primarily upon our ability to identify and validate new small molecule compounds of pharmaceutical interest (including through the use of our discovery platform), and identify, test, develop and commercialize such compounds. Our research efforts may initially show promise in discovering potential new therapeutic candidates, yet fail to yield viable product candidates for clinical development for a number of reasons, including:

 

because our research methodology, including our screening technology, may not successfully identify medically relevant product candidates;

 

we may identify and select from our discovery platform novel, untested classes of product candidates for the particular disease indication we are pursuing, which may be challenging to validate because of the novelty of the product candidates or we may fail to validate at all after further research work;

 

our product candidates may cause adverse effects in patients or subjects, even after successful initial toxicology studies, which may make the product candidates unmarketable;

 

our product candidates may not demonstrate a meaningful benefit to patients or subjects; and

 

collaboration partners may change their development profiles or plans for potential product candidates or abandon a therapeutic area or the development of a partnered product.

 

Research programs to identify new product targets and candidates require substantial technical, financial and human resources. We may focus our efforts and resources on potential discovery efforts, programs or product candidates that ultimately prove to be unsuccessful.

 

Our manufacturing operations require sugar feedstock, energy and steam, and the inability to obtain such feedstock, energy and steam in sufficient quantities or in a timely manner, or at reasonable prices, may limit our ability to produce our products profitably, or at all.

 

We anticipate that the production of our products will require large volumes of feedstock. We have relied on a mixture of feedstock sources for use at our contract manufacturing operations, including cane sugar, corn-based dextrose and beet molasses. For our large-scale production facilities in Brazil, we are relying primarily on Brazilian sugarcane. We cannot predict the future availability or price of these various feedstocks, nor can we be sure that our mill partners, which we expect to supply the sugarcane feedstock necessary to produce our products in Brazil, will be able to supply it in sufficient quantities or in a timely manner. For example, in December 2015, Tonon, one of our suppliers of sugarcane juice, filed for bankruptcy protection in Brazil, which may adversely affect its ability to supply us with sugarcane juice in the future. Furthermore, to the extent we are required to rely on sugar feedstock other than Brazilian sugarcane, the cost of such feedstock may be higher than we expect, increasing our anticipated production costs. Feedstock crop yields and sugar content depend on weather conditions, such as rainfall and temperature. Weather conditions have historically caused volatility in the ethanol and sugar industries by causing crop failures or reduced harvests. Excessive rainfall can adversely affect the supply of sugarcane and other sugar feedstock available for the production of our products by reducing the sucrose content and limiting growers' ability to harvest. Crop disease and pestilence can also occur from time to time and can adversely affect feedstock growth, potentially rendering useless or unusable all or a substantial portion of affected harvests. With respect to sugarcane, our initial primary feedstock, seasonal availability and price, the limited amount of time during which it keeps its sugar content after harvest, and the fact that sugarcane is not itself a traded commodity, increases these risks and limits our ability to substitute supply in the event of such an occurrence. If production of sugarcane or any other feedstock we may use to produce our products is adversely affected by these or other conditions, our production will be impaired, and our business will be adversely affected.

 

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Additionally, our facility in Brotas Brazil depends on large quantities of energy and steam to operate. We have a supply agreement with Cogeração de Energia Elétrica Rhodia Brotas S.A. pursuant to which we receive energy and steam in sufficient amounts to meet our current needs. However, we cannot predict the future availability or price of energy and steam. If, for whatever reason, we must purchase energy or steam from a different supplier, the cost of such energy and steam may be higher than we expect, increasing our anticipated production costs. Droughts or other weather conditions or natural disasters in Brazil may also affect energy and steam production, cost and availability and, therefore, may adversely affect our production. If the supply and access to energy or steam is adversely affected by these or other conditions, our production will be impaired, and our business will be adversely affected.

 

The price of sugarcane and other feedstocks can be volatile as a result of changes in industry policy and may increase the cost of production of our products.

 

In Brazil, Conselho dos Produtores de Cana, Açúcar e Álcool (Council of Sugarcane, Sugar and Ethanol Producers or Consecana), an industry association of producers of sugarcane, sugar and ethanol, sets market terms and prices for general supply, lease and partnership agreements for sugarcane. If Consecana makes changes to such terms and prices, this could result in higher sugarcane prices and/or a significant decrease in the volume of sugarcane available for the production of our products. Furthermore, if Consecana were to cease to be involved in this process, such prices and terms could become more volatile. Similar principles apply to pricing of other feedstocks as well. Any of these events could adversely affect our business and results of operations.

 

Our large-scale commercial production capacity is centered in Brazil, and our business will be adversely affected if we do not operate effectively in that country.

 

For the foreseeable future, we will be subject to risks associated with the concentration of essential product sourcing and operations in Brazil. The Brazilian government has changed in the past, and may change in the future, monetary, taxation, credit, tariff, labor and other policies to influence the course of Brazil's economy. For example, the government's actions to control inflation have at times involved setting wage and price controls, adjusting interest rates, imposing taxes and exchange controls and limiting imports into Brazil. We have no control over, and cannot predict what policies or actions the Brazilian government may take in the future. Our business, financial performance and prospects may be adversely affected by, among others, the following factors:

 

delays or failures in securing licenses, permits or other governmental approvals necessary to build and operate facilities and use our yeast strains to produce products;

 

rapid consolidation in the sugar and ethanol industries in Brazil, which could result in a decrease in competition;

 

political, economic, diplomatic or social instability in or affecting Brazil;

 

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changing interest rates;

 

tax burden and policies;

 

effects of changes in currency exchange rates;

 

any changes in currency exchange policy that lead to the imposition of exchange controls or restrictions on remittances abroad;

 

inflation;

 

land reform or nationalization movements;

 

changes in labor related policies;

 

export or import restrictions that limit our ability to move our products out of Brazil or interfere with the import of essential materials into Brazil;

 

changes in, or interpretations of foreign regulations that may adversely affect our ability to sell our products or repatriate profits to the United States;

 

tariffs, trade protection measures and other regulatory requirements;

 

compliance with United States and foreign laws that regulate the conduct of business abroad;

 

compliance with anti-corruption laws recently enacted in Brazil;

 

an inability, or reduced ability, to protect our intellectual property in Brazil including any effect of compulsory licensing imposed by government action; and

 

difficulties and costs of staffing and managing foreign operations.

 

We cannot predict whether the current or future Brazilian government will implement changes to existing policies on taxation, exchange controls, monetary strategy, labor relations, social security and the like, nor can we estimate the impact of any such changes on the Brazilian economy or our operations.

 

Brazil’s economy has recently experienced quarters of slow or negative gross domestic product growth and has experienced high inflation and a growing fiscal deficit of its federal government accounts. In addition, in recent months, major corruption scandals involving members of the executive, state-controlled enterprises and large private sector companies have been disclosed and are the subject of ongoing investigation by federal authorities. The final outcome of these investigations and their impact on the Brazilian economy is not yet known.

 

Our international operations expose us to the risk of fluctuation in currency exchange rates and rates of foreign inflation, which could adversely affect our results of operations.

 

We currently incur significant costs and expenses in Brazilian real and may in the future incur additional expenses in foreign currencies and derive a portion of our revenues in the local currencies of customers throughout the world. As a result, our revenues and results of operations are subject to foreign exchange fluctuations, which we may not be able to manage successfully. During the past few decades, the Brazilian currency in particular has faced frequent and substantial exchange rate fluctuations in relation to the United States dollar and other foreign currencies. There can be no assurance that the Brazilian real will not significantly appreciate or depreciate against the United States dollar in the future. We also bear the risk that the rate of inflation in the foreign countries where we incur costs and expenses or the decline in value of the United States dollar compared to those foreign currencies will increase our costs as expressed in United States dollars. For example, future measures by the Central Bank of Brazil to control inflation, including interest rate adjustments, intervention in the foreign exchange market and actions to fix the value of the real, may weaken the United States dollar in Brazil. Whether in Brazil or otherwise, we may not be able to adjust the prices of our products to offset the effects of inflation or foreign currency appreciation on our cost structure, which could increase our costs and reduce our net operating margins. If we do not successfully manage these risks through hedging or other mechanisms, our revenues and results of operations could be adversely affected.

 

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Our use of genetically-modified feedstocks and yeast strains to produce our products subjects us to risks of regulatory limitations and rejection of our products.

 

The use of genetically modified microorganisms (or “GMMs”), such as our yeast strains, is subject to laws and regulations in many countries, some of which are new and some of which are still evolving. Public attitudes about the safety and environmental hazards of, and ethical concerns over, genetic research and GMMs could influence public acceptance of our technology and products. In the United States, the Environmental Protection Agency (or “EPA”), regulates the commercial use of GMMs as well as potential products produced from the GMMs. Various states or local governments within the United States could choose to regulate products made with GMMs as well. While the strain of genetically modified yeast that we currently use for the development and anticipate using for the commercial production of our target molecules, S. cerevisiae, is eligible for exemption from EPA review because it is recognized as posing a low risk, we must satisfy certain criteria to achieve this exemption, including but not limited to use of compliant containment structures and safety procedures, and we cannot be sure that we will meet such criteria in a timely manner, or at all. If exemption of S. cerevisiae is not obtained, our business may be substantially harmed. In addition to S. cerevisiae, we may seek to use different GMMs in the future that will require EPA approval. If approval of different GMMs is not secured, our ability to grow our business could be adversely affected.

 

In Brazil, GMMs are regulated by the National Biosafety Technical Commission (or “CTNBio”). We have obtained approval from CTNBio to use GMMs in a contained environment in our Campinas facilities for research and development purposes as well as at a contract manufacturing facility in Brazil. In addition, we have obtained initial commercial approval from CTNBio for one of our current yeast strains. As we continue to develop new yeast strains and deploy our technology at new production facilities in Brazil, we will be required to obtain further approvals from CTNBio in order to use these strains in commercial production in Brazil. We may not be able to obtain approvals from relevant Brazilian authorities on a timely basis, or at all, and if we do not, our ability to produce our products in Brazil would be impaired, which would adversely affect our results of operations and financial condition.

 

In addition to our production operations in the United States and Brazil, we have been party to contract manufacturing agreements with parties in other production locations around the world, including Europe. The use of GMM technology is strictly regulated in the European Union, which has established various directives for member states regarding regulation of the use of such technology, including notification processes for contained use of such technology. We expect to encounter GMM regulations in most, if not all, of the countries in which we may seek to establish production capabilities and/or conduct sales to customers or end-use consumers, and the scope and nature of these regulations will likely be different from country to country. If we cannot meet the applicable requirements in other countries in which we intend to produce products using our yeast strains, or if it takes longer than anticipated to obtain such approvals, our business could be adversely affected. Furthermore, there are various non-governmental and quasi-governmental organizations that review and certify products with respect to the determination of whether products can be classified as “natural” or other similar classifications. While the certification from such non-governmental and quasi-governmental organizations is generally not mandatory, some of our current or prospective customers or distributors may require that we meet the standards set by such organizations as a condition precedent to purchasing or distributing our products. We cannot be certain that we will be able to satisfy the standards of such organizations, and any delay or failure to do so could harm our ability to sell or distribute some or all of our products to certain customers and prospective customers, which could have a negative impact on our business.

 

We may not be able to obtain regulatory approval for the sale of our renewable products.

 

Our renewable chemical products may be subject to government regulation in our target markets. In the United States, the EPA administers the Toxic Substances Control Act (or “TSCA”), which regulates the commercial registration, distribution, and use of many chemicals. Before an entity can manufacture or distribute a new chemical subject to TSCA, it must file a Pre-Manufacture Notice (or “PMN”) to add the chemical to a product. The EPA has 90 days to review the filing but may request additional data which significantly extends the timeline for approval. As a result we may not receive EPA approval to list future molecules as expeditiously as we would like in order to make on the TSCA registry, resulting in delays or significant increases in testing requirements. A similar program exists in the European Union, called REACH. Under this program, chemicals imported or manufactured in the European Union in certain quantities must be registered with the European Chemicals Agency, and this process could cause delays or significant costs. To the extent that other geographies in which we are selling (or may seek to sell) our products, such as Brazil and various countries in Asia, may rely on TSCA or REACH (or similar laws and programs) for chemical registration in their geographies, delays with the United States or European authorities, or any relevant local authorities in such other geographies, may subsequently delay entry into these markets as well. In addition, some of our Biofene-derived products are sold for the cosmetics market, and some countries may impose additional regulatory requirements or permits for such uses, which could impair, delay or prevent sales of our products in those markets.

 

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Our diesel and jet fuel is subject to regulation by various government agencies, including the EPA, and the California Air Resources Board (or “CARB”) in the United States and Agência Nacional do Petróleo, Gas Natural e Biocombustíveis (or “ANP”), in Brazil. To date, we have obtained registration with the EPA for the use of our diesel fuel in the United States at a 35% blend rate with petroleum diesel. Farnesane is also listed on the TSCA inventory. In addition, ANP has authorized the use our diesel fuel at blend rates of 10% and 30% for specific transportation fleets. In Europe, we obtained REACH registration for importing/manufacturing less than 1,000 metric tons of farnesane (for use as diesel and jet fuel) per year and are pursuing data validation to maintain registration. Registration with each of these bodies is required for the import, sale and use of our fuels within their respective jurisdictions. Jet fuel (aviation turbine fuel) validation and specifications are subject to the ASTM International industry consensus process and the Brazilian ANP national adoption process. Any failure to achieve required validation and certifications for our jet fuel could impair or delay our plans to introduce a jet fuel product in Brazil, which could have a material adverse impact on our renewable product revenues for the year. In addition, for us to achieve full access to the United States fuels market for our fuel products, we will need to obtain EPA and CARB (and potentially other state agencies) certifications for our feedstock pathway and production facilities, including certification of a feedstock lifecycle analysis relating to greenhouse gas emissions. Any delay in obtaining these additional certifications could impair our ability to sell our renewable fuels to refiners, importers, blenders and other parties that produce transportation fuels as they comply with federal and state requirements to include certified renewable fuels in their products.

 

We expect to encounter regulations in most, if not all, of the countries in which we may seek to sell our renewable chemical and fuel products (and our customers may encounter similar regulations in selling end use products to consumers), and we cannot assure you that we (or our customers) will be able to obtain necessary approvals in a timely manner or at all. If our chemical and fuel products do not meet applicable regulatory requirements in a particular country or at all, then we (or our customers) may not be able to commercialize our products and our business will be adversely affected.

 

 

Changes in government regulations, including subsidies and economic incentives, could have a material adverse effect upon our business.

 

The market for renewable fuels is heavily influenced by foreign, federal, state and local government regulations and policies. Changes to existing or adoption of new domestic or foreign federal, state and local legislative initiatives that impact the production, distribution or sale of renewable fuels may harm our renewable fuels business. In the United States and in a number of other countries, regulations and policies encouraging production and use of alternative fuels have been modified in the past and may be modified again in the future. Any reduction in mandated requirements for fuel alternatives and additives to gasoline or diesel may cause demand for biofuels to decline and deter investment in the research and development of renewable fuels. The market uncertainty regarding this and future standards and policies may also affect our ability to develop new renewable products or to license our technologies to third parties and to sell products to our end customers. Any inability to address these requirements and any regulatory or policy changes could have a material adverse effect on our business, financial condition and results of operations.

 

Concerns associated with renewable fuels, including land usage, national security interests and food crop usage, continue to receive legislative, industry and public attention. This attention could result in future legislation, regulation and/or administrative action that could adversely affect our business. Any inability to address these requirements and any regulatory or policy changes could have a material adverse effect on our business, financial condition and results of operations.

 

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Furthermore, the production of our products will depend on the availability of feedstock, especially sugarcane. Agricultural production and trade flows are subject to government policies and regulations. Governmental policies affecting the agricultural industry, such as taxes, tariffs, duties, subsidies, incentives and import and export restrictions on agricultural commodities and commodity products, can influence the planting of certain crops, the location and size of crop production, whether unprocessed or processed commodity products are traded, the volume and types of imports and exports, and the availability and competitiveness of feedstocks as raw materials. Future government policies may adversely affect the supply of feedstocks, restrict our ability to use sugarcane or other feedstocks to produce our products, and negatively impact our future revenues and results of operations or could encourage the use of feedstocks more advantageous to our competitors which would put us at a commercial disadvantage.

 

We may incur significant costs complying with environmental laws and regulations, and failure to comply with these laws and regulations could expose us to significant liabilities.

 

We use hazardous chemicals and radioactive and biological materials in our business and such materials are subject to a variety of federal, state and local laws and regulations governing the use, generation, manufacture, storage, handling and disposal of these materials in the United States and in Brazil. Although we have implemented safety procedures for handling and disposing of these materials and related waste products in an effort to comply with these laws and regulations, we cannot be sure that our safety measures will prevent accidental injury or contamination from the use, storage, handling or disposal of hazardous materials. In the event of contamination or injury, we could be held liable for any resulting damages, and any liability could exceed our insurance coverage. There can be no assurance that violations of environmental, health and safety laws will not occur in the future as a result of human error, accident, equipment failure or other causes. Compliance with applicable environmental laws and regulations may be expensive, and the failure to comply with past, present, or future laws could result in the imposition of fines, third party property damage, product liability and personal injury claims, investigation and remediation costs, the suspension of production, or a cessation of operations, and our liability may exceed our total assets. Liability under environmental laws can be joint and several, without regard to comparative fault and may be punitive in nature. Environmental laws could become more stringent over time, imposing greater compliance costs and increasing risks and penalties associated with violations, which could impair our research, development or production efforts and harm our business.

 

A decline in the price of petroleum and petroleum-based products has in the past and may in the future reduce demand for some of our renewable products and may otherwise adversely affect our business.

 

While many of our products do not compete with, and do not serve as alternatives to, petroleum-based products, we anticipate that some of our renewable products, and in particular our fuels, will be marketed as alternatives to corresponding petroleum-based products. The price of oil has fallen significantly in recent years, and accordingly, we may be unable to produce certain of our products as cost-effective alternatives to petroleum-based products. Declining oil prices, or the perception of a sustained or future decline in oil prices, has adversely affected the prices or demand for such products in the past and may do so in the future. During sustained periods of lower oil prices we may be unable to sell such products at anticipated levels, which could negatively impact our operating results.

 

Our financial results could vary significantly from quarter to quarter and are difficult to predict.

 

Our revenues and results of operations could vary significantly from quarter to quarter because of a variety of factors, many of which are outside of our control. As a result, comparing our results of operations on a period-to-period basis may not be meaningful. Factors that could cause our quarterly results of operations to fluctuate include:

 

achievement, or failure, with respect to technology, product development or manufacturing milestones needed to allow us to enter identified markets on a cost effective basis;

 

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delays or greater than anticipated expenses associated with the completion or commissioning of new production facilities, or the time to ramp up and stabilize production following completion of a new production facility or the transition to, and ramp up of, producing new molecules at our existing facilities;

 

impairment of assets based on shifting business priorities and working capital limitations;

 

disruptions in the production process at any manufacturing facility, including disruptions due to seasonal or unexpected downtime at our facilities as a result of feedstock availability, contamination, safety or other issues or other technical difficulties or the scheduled downtime at our facilities as a result of transitioning our equipment to the production of different molecules;

 

losses of, or the inability to secure new, major customers, suppliers, distributors or collaboration partners;

 

losses associated with producing our products as we ramp to commercial production levels;

 

failure to recover value added tax (or "VAT") that we currently reflect as recoverable in our financial statements (e.g., due to failure to meet conditions for reimbursement of VAT under local law);

 

the timing, size and mix of sales to customers for our products;

 

increases in price or decreases in availability of feedstock;

 

the unavailability of contract manufacturing capacity altogether or at reasonable cost;

 

exit costs associated with terminating contract manufacturing relationships;

 

fluctuations in foreign currency exchange rates;

 

gains or losses associated with our hedging activities;

 

change in the fair value of derivative instruments;

 

fluctuations in the price of and demand for sugar, ethanol, and petroleum-based and other products for which our products are alternatives;

 

seasonal variability in production and sales of our products;

 

competitive pricing pressures, including decreases in average selling prices of our products;

 

unanticipated expenses associated with changes in governmental regulations and environmental, health, labor and safety requirements;

 

reductions or changes to existing fuel and chemical regulations and policies;

 

departure of executives or other key management employees resulting in transition and severance costs;

 

our ability to use our net operating loss carryforwards to offset future taxable income;

 

business interruptions such as earthquakes, tsunamis and other natural disasters;

 

our ability to integrate businesses that we may acquire;

 

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our ability to successfully collaborate with business venture partners;

 

risks associated with the international aspects of our business; and

 

changes in general economic, industry and market conditions, both domestically and in our foreign markets.

 

As part of our operating plan for 2016, we are planning to reduce our operating expenses in order to conserve cash.

 

Due to the factors described above, among others, the results of any quarterly or annual period may not meet our expectations or the expectations of our investors and may not be meaningful indications of our future performance.

 

Loss of key personnel, including key management personnel, and/or failure to attract and retain additional personnel could delay our product development programs and harm our research and development efforts and our ability to meet our business objectives.

 

Our business involves complex, global operations across a variety of markets and requires a management team and employee workforce that is knowledgeable in the many areas in which we operate. As we continue to build our business, we will need to hire and retain qualified research and development, management and other personnel to succeed. The process of hiring, training and successfully integrating qualified personnel into our operations, in the United States, Brazil and other countries in which we may seek to operate, is a lengthy and expensive one. The market for qualified personnel is very competitive because of the limited number of people available who have the necessary technical skills and understanding of our technology and anticipated products, particularly in Brazil. Our failure to hire and retain qualified personnel could impair our ability to meet our research and development and business objectives and adversely affect our results of operations and financial condition.

 

The loss of any key member of our management or key technical and operational employees, or the failure to attract or retain such employees, could prevent us from developing and commercializing our products for our target markets and executing our business strategy. We also may not be able to attract or retain qualified employees in the future due to the intense competition for qualified personnel among biotechnology and other technology-based businesses, particularly in the renewable chemicals and fuels area, or due to the availability of personnel with the qualifications or experience necessary for our business. In addition, reductions to our workforce as part of cost-saving measures, such as those discussed above with respect to our 2016 operating plan, may make it more difficult for us to attract and retain key employees. If we do not maintain the necessary personnel to accomplish our business objectives, we may experience staffing constraints that will adversely affect our ability to meet the demands of our collaborators and customers in a timely fashion or to support our internal research and development programs and operations. In particular, our product and process development programs depend on our ability to attract and retain highly skilled technical and operational personnel. Competition for such personnel from numerous companies and academic and other research institutions may limit our ability to do so on acceptable terms. All of our employees are “at-will” employees, which means that either the employee or we may terminate their employment at any time.

 

Growth may place significant demands on our management and our infrastructure.

 

We have experienced, and expect to continue to experience, expansion of our business as we continue to make efforts to develop and bring our products to market. We have grown from 18 employees at the end of 2005 to 394 at September 30, 2016. Our growth and diversified operations have placed, and may continue to place, significant demands on our management and our operational and financial infrastructure. In particular, continued growth could strain our ability to:

 

manage multiple research and development programs;

 

operate multiple manufacturing facilities around the world;

 

develop and improve our operational, financial and management controls;

 

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enhance our reporting systems and procedures;

 

recruit, train and retain highly skilled personnel;

 

develop and maintain our relationships with existing and potential business partners;

 

maintain our quality standards; and

 

maintain customer satisfaction.

 

Managing our growth will require significant expenditures and allocation of valuable management resources. If we fail to achieve the necessary level of efficiency in our organization as it grows, our business, results of operations and financial condition would be adversely impacted.

 

Our proprietary rights may not adequately protect our technologies and product candidates.

 

Our commercial success will depend substantially on our ability to obtain patents and maintain adequate legal protection for our technologies and product candidates in the United States and other countries. As of September 30, 2016, we had 441 issued United States and foreign patents and 347 pending United States and foreign patent applications that were owned by or licensed to us. We will be able to protect our proprietary rights from unauthorized use by third parties only to the extent that our proprietary technologies and future products are covered by valid and enforceable patents or are effectively maintained as trade secrets.

 

We apply for patents covering both our technologies and product candidates, as we deem appropriate. However, filing, prosecuting, maintaining and defending patents on product candidates in all countries throughout the world would be prohibitively expensive, and our intellectual property rights in some countries outside the United States are less extensive than those in the United States. We may also fail to apply for patents on important technologies or product candidates in a timely fashion, or at all. Our existing and future patents may not be sufficiently broad to prevent others from practicing our technologies or from designing products around our patents or otherwise developing competing products or technologies. In addition, the patent positions of companies like ours are highly uncertain and involve complex legal and factual questions for which important legal principles remain unresolved. No consistent policy regarding the breadth of patent claims has emerged to date in the United States and the landscape is expected to become even more uncertain in view of recent rule changes by the United States Patent Office (or "USPTO"). Additional uncertainty may result from legal precedent by the United States Federal Circuit and Supreme Court as they determine legal issues concerning the scope and construction of patent claims and inconsistent interpretation of patent laws or from legislation enacted by the U.S. Congress. The patent situation outside of the United States is even less predictable. As a result, the validity and enforceability of patents cannot be predicted with certainty. Moreover, we cannot be certain whether:

 

we (or our licensors) were the first to make the inventions covered by each of our issued patents and pending patent applications;

 

we (or our licensors) were the first to file patent applications for these inventions;

 

others will independently develop similar or alternative technologies or duplicate any of our technologies;

 

any of our or our licensors' patents will be valid or enforceable;

 

any patents issued to us (or our licensors) will provide us with any competitive advantages, or will be challenged by third parties;

 

we will develop additional proprietary products or technologies that are patentable; or

 

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the patents of others will have an adverse effect on our business.

 

We do not know whether any of our pending patent applications or those pending patent applications that we license will result in the issuance of any patents. Even if patents are issued, they may not be sufficient to protect our technology or product candidates. The patents we own or license and those that may be issued in the future may be challenged, invalidated, rendered unenforceable, or circumvented, and the rights granted under any issued patents may not provide us with proprietary protection or competitive advantages. Moreover, third parties could practice our inventions in territories where we do not have patent protection or in territories where they could obtain a compulsory license to our technology where patented. Such third parties may then try to import products made using our inventions into the United States or other territories. Accordingly, we cannot ensure that any of our pending patent applications will result in issued patents, or even if issued, predict the breadth, validity and enforceability of the claims upheld in our and other companies' patents.

 

Many companies have encountered significant problems in protecting and defending intellectual property rights in foreign jurisdictions. The legal systems of certain countries do not favor the enforcement of patents or other intellectual property rights, which could hinder us from preventing the infringement of our patents or other intellectual property rights. Proceedings to enforce our patent rights in the United States or foreign jurisdictions could result in substantial costs and divert our efforts and attention from other aspects of our business, could put our patents at risk of being invalidated or interpreted narrowly and our patent applications at risk of not issuing and could provoke third parties to assert patent infringement or other claims against us. We may not prevail in any lawsuits that we initiate and the damages or other remedies awarded, if any, may not be commercially meaningful. Accordingly, our efforts to enforce our intellectual property rights around the world may be inadequate to obtain a significant commercial advantage from the intellectual property that we develop or license from third parties.

 

Unauthorized parties may attempt to copy or otherwise obtain and use our products or technology. Monitoring unauthorized use of our intellectual property is difficult, and we cannot be certain that the steps we have taken will prevent unauthorized use of our technology, particularly in certain foreign countries where the local laws may not protect our proprietary rights as fully as in the United States or may provide, today or in the future, for compulsory licenses. If competitors are able to use our technology, our ability to compete effectively could be harmed. Moreover, others may independently develop and obtain patents for technologies that are similar to, or superior to, our technologies. If that happens, we may need to license these technologies, and we may not be able to obtain licenses on reasonable terms, if at all, which could cause harm to our business.

 

We rely in part on trade secrets to protect our technology, and our failure to obtain or maintain trade secret protection could adversely affect our competitive business position.

 

We rely on trade secrets to protect some of our technology, particularly where we do not believe patent protection is appropriate or obtainable. However, trade secrets are difficult to maintain and protect. Our strategy for contract manufacturing and scale-up of commercial production requires us to share confidential information with our international business partners and other parties. Our product development collaborations with third parties, including with Total, require us to share confidential information, including with employees of Total who are seconded to Amyris during the term of the collaboration. While we use reasonable efforts to protect our trade secrets, our or our business partners' employees, consultants, contractors or scientific and other advisors may unintentionally or willfully disclose our proprietary information to competitors. Enforcement of claims that a third party has illegally obtained and is using trade secrets is expensive, time consuming and uncertain. In addition, foreign courts are sometimes less willing than United States courts to protect trade secrets. If our competitors independently develop equivalent knowledge, methods and know-how, we would not be able to assert our trade secrets against them.

 

We require new employees and consultants to execute confidentiality agreements upon the commencement of an employment or consulting arrangement with us. We additionally require consultants, contractors, advisors, corporate collaborators, outside scientific collaborators and other third parties that may receive trade secret information to execute confidentiality agreements. These agreements generally require that all confidential information developed by the individual or made known to the individual by us during the course of the individual's relationship with us be kept confidential and not disclosed to third parties. These agreements also generally provide that inventions conceived by the individual in the course of rendering services to us shall be our exclusive property. Nevertheless, our proprietary information may be disclosed, or these agreements may be unenforceable or difficult to enforce. If any of our trade secrets were to be lawfully obtained or independently developed by a competitor, we would have no right to prevent such third party, or those to whom they communicate such technology or information, from using that technology or information to compete with us. Additionally, trade secret law in Brazil differs from that in the United States which requires us to take a different approach to protecting our trade secrets in Brazil. Some of these approaches to trade secret protection may be novel and untested under Brazilian law and we cannot guarantee that we would prevail if our trade secrets are contested in Brazil. If any of the above risks materializes, our failure to obtain or maintain trade secret protection could adversely affect our competitive business position.

 

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We may not be able to fully enforce covenants not to compete and not to solicit with our employees, and therefore we may be unable to prevent our competitors from benefiting from the expertise of such employees.

 

Our proprietary information and inventions agreements with our employees contain non-compete and non-solicitation provisions. These provisions prohibit our employees from competing directly with our business or proposed business or working for our competitors during their term of employment, and from directly and indirectly soliciting our employees and consultants to leave our company for any purpose. Under applicable U.S. and Brazilian law, we may be unable to enforce these provisions. If we cannot enforce these provisions with our employees, we may be unable to prevent our competitors from benefiting from the expertise of such employees. Even if these provisions are enforceable, they may not adequately protect our interests. The defection of one or more of our employees to a competitor could materially adversely affect our business, results of operations and ability to capitalize on our proprietary information.

 

Third parties may misappropriate our yeast strains.

 

Third parties, including contract manufacturers, sugar and ethanol mill owners, other contractors and shipping agents, often have custody or control of our yeast strains. If our yeast strains were stolen, misappropriated or reverse engineered, they could be used by other parties who may be able to reproduce the yeast strains for their own commercial gain. If this were to occur, it would be difficult for us to challenge and prevent this type of use, especially in countries where we have limited intellectual property protection or that do not have robust intellectual property law regimes.

 

If we or one of our collaborators are sued for infringing intellectual property rights or other proprietary rights of third parties, litigation could be costly and time consuming and could prevent us from developing or commercializing our future products.

 

Our commercial success depends on our and our collaborators’ ability to operate without infringing the patents and proprietary rights of other parties and without breaching any agreements we have entered into with regard to our technologies and product candidates. We cannot determine with certainty whether patents or patent applications of other parties may materially affect our ability to conduct our business. Our industry spans several sectors, including biotechnology, renewable fuels, renewable specialty chemicals and other renewable compounds, and is characterized by the existence of a significant number of patents and disputes regarding patent and other intellectual property rights. Because patent applications can take several years to issue, there may currently be pending applications, unknown to us, that may result in issued patents that cover our technologies or product candidates. We are aware of a significant number of patents and patent applications relating to aspects of our technologies filed by, and issued to, third parties. The existence of third-party patent applications and patents could significantly reduce the coverage of patents owned by or licensed to us and our collaborators and limit our ability to obtain meaningful patent protection. If we wish to make, use, sell, offer to sell, or import the technology or compound claimed in issued and unexpired patents owned by others, we will need to obtain a license from the owner, enter into litigation to challenge the validity of the patents or incur the risk of litigation in the event that the owner asserts that we infringe its patents. If patents containing competitive or conflicting claims are issued to third parties and these claims are ultimately determined to be valid, we and our collaborators may be enjoined from pursing research, development, or commercialization of products, or be required to obtain licenses to these patents, or to develop or obtain alternative technologies.

 

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If a third-party asserts that we infringe upon its patents or other proprietary rights, we could face a number of issues that could seriously harm our competitive position, including:

 

infringement and other intellectual property claims, which could be costly and time consuming to litigate, whether or not the claims have merit, and which could delay getting our products to market and divert management attention from our business;

 

substantial damages for past infringement, which we may have to pay if a court determines that our product candidates or technologies infringe a third party's patent or other proprietary rights;

 

a court prohibiting us from selling or licensing our technologies or future products unless the holder licenses the patent or other proprietary rights to us, which it is not required to do; and

 

if a license is available from a third party, such third party may require us to pay substantial royalties or grant cross licenses to our patents or proprietary rights.

 

The industries in which we operate, and the biotechnology industry in particular, are characterized by frequent and extensive litigation regarding patents and other intellectual property rights. Many biotechnology companies have employed intellectual property litigation as a way to gain a competitive advantage. If any of our competitors have filed patent applications or obtained patents that claim inventions also claimed by us, we may have to participate in interference proceedings declared by the relevant patent regulatory agency to determine priority of invention and, thus, the right to the patents for these inventions in the United States. These proceedings could result in substantial cost to us even if the outcome is favorable. Even if successful, an interference proceeding may result in loss of certain claims. Our involvement in litigation, interferences, opposition proceedings or other intellectual property proceedings inside and outside of the United States, to defend our intellectual property rights, or as a result of alleged infringement of the rights of others, may divert management time from focusing on business operations and could cause us to spend significant resources, all of which could harm our business and results of operations.

 

Many of our employees were previously employed at universities, biotechnology, specialty chemical or oil companies, including our competitors or potential competitors. We may be subject to claims that these employees or we have inadvertently or otherwise used or disclosed trade secrets or other proprietary information of their former employers. Litigation may be necessary to defend against these claims. If we fail in defending such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel and be enjoined from certain activities. A loss of key research personnel or their work product could hamper or prevent our ability to commercialize our product candidates, which could severely harm our business. Even if we are successful in defending against these claims, litigation could result in substantial costs and demand on management resources.

 

We may need to commence litigation to enforce our intellectual property rights, which would divert resources and management's time and attention and the results of which would be uncertain.

 

Enforcement of claims that a third party is using our proprietary rights without permission is expensive, time consuming and uncertain. Significant litigation would result in substantial costs, even if the eventual outcome is favorable to us and would divert management's attention from our business objectives. In addition, an adverse outcome in litigation could result in a substantial loss of our proprietary rights and we may lose our ability to exclude others from practicing our technology or producing our product candidates.

 

The laws of some foreign countries do not protect intellectual property rights to the same extent as do the laws of the United States. Many companies have encountered significant problems in protecting and defending intellectual property rights in certain foreign jurisdictions. The legal systems of certain countries, particularly certain developing countries, do not favor the enforcement of patents and other intellectual property protection, particularly those relating to biotechnology and/or bioindustrial technologies. This could make it difficult for us to stop the infringement of our patents or misappropriation of our other intellectual property rights. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and divert our efforts and attention from other aspects of our business. Moreover, our efforts to protect our intellectual property rights in such countries may be inadequate.

 

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We do not have exclusive rights to intellectual property we developed under U.S. federally funded research grants and contracts, including with DARPA and we could ultimately share or lose the rights we do have under certain circumstances.

 

Some of our intellectual property rights have been or may be developed in the course of research funded by the U.S. government, including under our agreements with DARPA. As a result, the U.S. government may have certain rights to intellectual property embodied in our current or future products pursuant to the Bayh-Dole Act of 1980. Government rights in certain inventions developed under a government-funded program include a non-exclusive, non-transferable, irrevocable worldwide license to use inventions for any governmental purpose. In addition, the U.S. government has the right to require us, or an assignee or exclusive licensee to such inventions, to grant licenses to any of these inventions to a third party if they determine that: (i) adequate steps have not been taken to commercialize the invention; (ii) government action is necessary to meet public health or safety needs; (iii) government action is necessary to meet requirements for public use under federal regulations; or (iv) the right to use or sell such inventions is exclusively licensed to an entity within the U.S. and substantially manufactured outside the U.S. without the U.S. government’s prior approval. Additionally, we may be restricted from granting exclusive licenses for the right to use or sell our inventions created pursuant to such agreements unless the licensee agrees to additional restrictions (e.g., manufacturing substantially all of the invention in the U.S.). The U.S. government also has the right to take title to these inventions if we fail to disclose the invention to the government and fail to file an application to register the intellectual property within specified time limits. In addition, the U.S. government may acquire title in any country in which a patent application is not filed within specified time limits. Additionally, certain inventions are subject to transfer restrictions during the term of these agreements and for a period thereafter, including sales of products or components, transfers to foreign subsidiaries for the purpose of the relevant agreements, and transfers to certain foreign third parties. If any of our intellectual property becomes subject to any of the rights or remedies available to the U.S. government or third parties pursuant to the Bayh-Dole Act of 1980, this could impair the value of our intellectual property and could adversely affect our business.

 

Our products subject us to product-safety risks, and we may be sued for product liability.

 

The design, development, production and sale of our products involve an inherent risk of product liability claims and the associated adverse publicity. Our potential products could be used by a wide variety of consumers with varying levels of sophistication. Although safety is a priority for us, we are not always in control of the final uses and formulations of the products we supply or their use as ingredients. Our products could have detrimental impacts or adverse impacts we cannot anticipate. Despite our efforts, negative publicity about Amyris, including product safety or similar concerns, whether real or perceived, could occur, and our products could face withdrawal, recall or other quality issues. In addition, we may be named directly in product liability suits relating to our products, even for defects resulting from errors of our commercial partners, contract manufacturers, chemical finishers or customers or end users of our products. These claims could be brought by various parties, including customers who are purchasing products directly from us or other users who purchase products from our customers. We could also be named as co-parties in product liability suits that are brought against the contract manufacturers or Brazilian sugar and ethanol mills with whom we partner to produce our products. Insurance coverage is expensive, may be difficult to obtain and may not be available in the future on acceptable terms. We cannot be certain that our contract manufacturers or the sugar and ethanol producers who partner with us to produce our products will have adequate insurance coverage to cover against potential claims. Any insurance we do maintain may not provide adequate coverage against potential losses, and if claims or losses exceed our liability insurance coverage, our business would be adversely impacted. In addition, insurance coverage may become more expensive, which would harm our results of operations.

 

During the ordinary course of business, we may become subject to lawsuits or indemnity claims, which could materially and adversely affect our business and results of operations.

 

From time to time, we may in the ordinary course of business be named as a defendant in lawsuits, claims and other legal proceedings. These actions may seek, among other things, compensation for alleged personal injury, worker's compensation, employment discrimination, breach of contract, property damages, civil penalties and other losses of injunctive or declaratory relief. In the event that such actions or indemnities are ultimately resolved unfavorably at amounts exceeding our accrued liability, or at material amounts, the outcome could materially and adversely affect our reputation, business and results of operations. In addition, payments of significant amounts, even if reserved, could adversely affect our liquidity position.

 

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If we fail to maintain an effective system of internal controls, we might not be able to report our financial results accurately or in a timely manner or prevent fraud; in that case, our stockholders could lose confidence in our financial reporting, which would harm our business and could negatively impact the price of our stock.

 

Effective internal controls are necessary for us to provide reliable financial reports and prevent fraud. In addition, Section 404 of the Sarbanes-Oxley Act of 2002 requires us and our independent registered public accounting firm to evaluate and report on our internal control over financial reporting. The process of implementing our internal controls and complying with Section 404 is expensive and time consuming, and requires significant attention of management. We cannot be certain that these measures will ensure that we maintain adequate controls over our financial processes and reporting in the future. In addition, to the extent we create joint ventures or have any variable interest entities and the financial statements of such entities are not prepared by us, we will not have direct control over their financial statement preparation. As a result, we will, for our financial reporting, depend on what these entities report to us, which could result in us adding monitoring and audit processes and increase the difficulty of implementing and maintaining adequate controls over our financial processes and reporting in the future and could lead to delays in our external reporting. This may be particularly true where we are establishing such entities with commercial partners that do not have sophisticated financial accounting processes in place, or where we are entering into new relationships at a rapid pace, straining our integration capacity. Additionally, if we do not receive the information from the joint venture or variable interest entity on a timely basis, this could cause delays in our external reporting. Even if we conclude, and our independent registered public accounting firm concurs, that our internal control over financial reporting provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, because of its inherent limitations, internal control over financial reporting may not prevent or detect fraud or misstatements. Failure to implement required new or improved controls, or difficulties encountered in their implementation, could harm our results of operations or cause us to fail to meet our reporting obligations. If we or our independent registered public accounting firm discover a material weakness, the disclosure of that fact, even if quickly remedied, could reduce the market's confidence in our financial statements and harm our stock price. In addition, failure to comply with Section 404 could subject us to a variety of administrative sanctions, including SEC action, ineligibility for short form resale registration, the suspension or delisting of our common stock from the stock exchange on which it is listed, and the inability of registered broker-dealers to make a market in our common stock, which would further reduce our stock price and could harm our business.

 

Our ability to use our net operating loss carryforwards to offset future taxable income may be subject to certain limitations.

 

In general, under Section 382 of the Internal Revenue Code (or the “Code”), a corporation that undergoes an “ownership change” is subject to limitations on its ability to utilize its pre-change net operating loss carryforwards (or “NOLs”), to offset future taxable income. If the Internal Revenue Service challenges our analysis that our existing NOLs are not subject to limitations arising from previous ownership changes, or if we undergo an ownership change, our ability to utilize NOLs could be limited by Section 382 of the Code. Future changes in our stock ownership, some of which are outside of our control, could result in an ownership change under Section 382 of the Code. Furthermore, our ability to utilize NOLs of companies that we may acquire in the future may be subject to limitations. For these reasons, we may not be able to utilize a material portion of the NOLs carryforward as of June 30, 2016, even if we attain profitability.

 

Loss of, or inability to secure government contract revenues could impair our business.

 

We have contracts or subcontracts with certain governmental agencies or their contractors. Generally, these agreements, as they may be amended or modified from time to time, have fixed terms and may be terminated, modified or be subject to recovery of payments by the government agency under certain conditions (such as failure to comply with detailed reporting and governance processes or failure to achieve milestones). Under these agreements, we are also subject to audits, which can result in corrective action plans and penalties up to and including termination. If these governmental agencies terminate these agreements with us, it could reduce our revenues which could harm our business. Additionally, we anticipate securing additional government contracts as part of our business plan for 2015 and beyond. If we are unable to secure such government contracts, it could harm our business.

 

 104 
 

Our headquarters and other facilities are located in an active earthquake and tsunami zone, and an earthquake or other types of natural disasters affecting us or our suppliers could cause resource shortages and disrupt and harm our results of operations.

 

We conduct our primary research and development operations in the San Francisco Bay Area in an active earthquake and tsunami zone, and certain of our suppliers conduct their operations in the same region or in other locations that are susceptible to natural disasters. In addition, California and some of the locations where certain of our suppliers are located have experienced shortages of water, electric power and natural gas from time to time. The occurrence of a natural disaster, such as an earthquake, drought or flood, or localized extended outages of critical utilities or transportation systems, or any critical resource shortages, affecting us or our suppliers could cause a significant interruption in our business, damage or destroy our facilities, production equipment or inventory or those of our suppliers and cause us to incur significant costs or result in limitations on the availability of our raw materials, any of which could harm our business, financial condition and results of operations. The insurance we maintain against fires, earthquakes and other natural disasters may not be adequate to cover our losses in any particular case.

 

Risks Related to Ownership of Our Common Stock

 

Our stock price may be volatile.

 

The market price of our common stock has been, and we expect it to continue to be, subject to significant volatility, and it has declined significantly from our initial public offering price. As of September 30, 2016, the reported closing price for our common stock on The NASDAQ Stock Market was $0.58 per share. Market prices for securities of early stage companies have historically been particularly volatile. Such fluctuations could be in response to, among other things, the factors described in this “Risk Factors” section, or other factors, some of which are beyond our control, such as:

 

fluctuations in our financial results or outlook or those of companies perceived to be similar to us;

 

changes in estimates of our financial results or recommendations by securities analysts;

 

changes in market valuations of similar companies;

 

changes in the prices of commodities associated with our business such as sugar, ethanol and petroleum or changes in the prices of commodities that some of our products may replace, such as oil and other petroleum sourced products;

 

changes in our capital structure, such as future issuances of securities or the incurrence of debt;

 

announcements by us or our competitors of significant contracts, acquisitions or strategic alliances;

 

regulatory developments in the United States, Brazil, and/or other foreign countries;

 

litigation involving us, our general industry or both;

 

additions or departures of key personnel;

 

investors' general perception of us; and

 

changes in general economic, industry and market conditions.

 

 105 
 

 

Furthermore, stock markets have experienced price and volume fluctuations that have affected, and continue to affect, the market prices of equity securities of many companies. These fluctuations often have been unrelated or disproportionate to the operating performance of those companies. These broad market fluctuations, as well as general economic, political and market conditions, such as recessions, interest rate changes and international currency fluctuations, may negatively affect the market price of our common stock.

 

In the past, many companies that have experienced volatility and sustained declines in the market price of their stock have become subject to securities class action and derivative action litigation. We were involved in two such lawsuits, which were dismissed in 2014, and we may be the target of similar litigation in the future. Securities litigation against us could result in substantial costs and divert our management's attention from other business concerns, which could seriously harm our business.

 

If our common stock is delisted from The NASDAQ Stock Market, our business, financial condition, results of operations and stock price could be adversely affected, and the liquidity of our stock and our ability to obtain financing could be impaired.

 

On June 14, 2016, we received a notice from The NASDAQ Stock Market LLC (or “NASDAQ”) notifying us that we were not in compliance with the requirement of NASDAQ Listing Rule 5450(a)(1) for continued listing on the NASDAQ Global Market as a result of the closing bid price of our common stock being below $1.00 per share for 30 consecutive business days. In accordance with NASDAQ Listing Rule 5810(c)(3)(A), we had 180 calendar days, or until December 12, 2016, to regain compliance with NASDAQ Listing Rule 5450(a)(1). To regain compliance, the closing bid price of our common stock must be at least $1.00 per share for a minimum of 10 consecutive business days. On November 1, 2016, we received a notice from NASDAQ that we had regained compliance with NASDAQ Listing Rule 5450(a)(1) for continued listing on the NASDAQ Global Market. However, there can be no assurance that we will continue to comply with these requirements in the future or that our common stock will remain listed on the NASDAQ Stock Market.

 

Any delisting of our common stock from The NASDAQ Stock Market could adversely affect our ability to attract new investors, decrease the liquidity of our outstanding shares of common stock, reduce our flexibility to raise additional capital, reduce the price at which our common stock trades, and increase the transaction costs inherent in trading such shares with overall negative effects for our stockholders. In addition, delisting of our common stock could deter broker-dealers from making a market in or otherwise seeking or generating interest in our common stock, and might deter certain institutions and persons from investing in our securities at all. Furthermore, the delisting of our common stock from The NASDAQ Stock Market would constitute a breach under certain of our financing agreements, including agreements governing our outstanding convertible indebtedness, which could result in an acceleration of such indebtedness. See Note 5, “Debt” to our unaudited condensed consolidated financial statements included in this report for additional details. If such indebtedness is accelerated, it would generally also constitute an event of default under our other outstanding indebtedness, permitting acceleration of such other outstanding indebtedness as well. For these reasons and others, the delisting of our common stock from The NASDAQ Stock Market could adversely affect our business, financial condition and results of operations.

 

The concentration of our capital stock ownership with insiders will limit the ability to influence corporate matters and presents risks related to the operations of our significant stockholders.

 

As of October 31, 2016:

 

our executive officers and directors and their affiliates together held approximately 14% of our outstanding common stock;

 

Temasek (who has a designee on our Board of Directors) held approximately 26% of our outstanding common stock; and

 

Total held approximately 24% of our outstanding common stock.

 

 106 
 

 

Furthermore, Total and Temasek each hold certain of our convertible promissory notes, which are convertible into approximately 21,143,099 and 2,670,370 shares of our common stock, respectively, as of October 31, 2016. Total and Temasek also hold certain warrants pursuant to which they may purchase shares of our common stock. This significant concentration of share ownership may adversely affect the trading price for our common stock because investors often perceive disadvantages in owning stock in companies with controlling stockholders. Also, these stockholders, acting together, will be able to control our management and affairs and matters requiring stockholder approval, including the election of directors and the approval of significant corporate transactions, such as mergers, consolidations or the sale of all or substantially all of our assets. Consequently, this concentration of ownership may have the effect of delaying or preventing a change of control, including a merger, consolidation or other business combination involving us, or discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control, even if that change of control would benefit our other stockholders.

 

The market price of our common stock could be negatively affected by future sales of our common stock.

 

If our existing stockholders, particularly our largest stockholders, our directors, their affiliates, or our executive officers, sell a substantial number of shares of our common stock in the public market, the market price of our common stock could decrease significantly. The perception in the public market that these stockholders might sell our common stock could also depress the market price of our common stock and could impair our future ability to obtain capital, especially through an offering of equity securities.

 

We also have in place a registration statement for the resale of shares of common stock held by, or issuable to, certain of our largest stockholders. All common stock sold pursuant to an offering covered by such registration statement will be freely transferable.

 

Shares issuable under our equity incentive plans have been registered on a Form S-8 registration statement and may be freely sold in the public market upon issuance, except for shares held by affiliates who have certain restrictions on their ability to sell.

 

If securities or industry analysts do not publish or cease publishing research or reports about us, our business or our market, or if they change their recommendations regarding our stock adversely, our stock price and trading volume could decline.

 

The trading market for our common stock will be influenced by the research and reports that industry or securities analysts may publish about us, our business, our market or our competitors. If any of the analysts who cover us change their recommendation regarding our stock adversely, or provide more favorable relative recommendations about our competitors, our stock price would likely decline. If any analyst who may cover us were to cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline.

 

We do not expect to declare any dividends in the foreseeable future.

 

We do not anticipate declaring any cash dividends to holders of our common stock in the foreseeable future. In addition, certain of our equipment leases and credit facilities currently restrict our ability to pay dividends. Consequently, investors may need to rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investment. Investors seeking cash dividends should not purchase our common stock.

 

Anti-takeover provisions contained in our certificate of incorporation and bylaws, as well as provisions of Delaware law, could impair a takeover attempt.

 

Our certificate of incorporation and bylaws contain provisions that could delay or prevent a change in control of our company. These provisions could also make it more difficult for stockholders to elect directors and take other corporate actions. These provisions include:

 

a staggered board of directors;

 

 107 
 

authorizing the board of directors to issue, without stockholder approval, preferred stock with rights senior to those of our common stock;

 

authorizing the board of directors to amend our bylaws and to fill board vacancies until the next annual meeting of the stockholders;

 

prohibiting stockholder action by written consent;

 

limiting the liability of, and providing indemnification to, our directors and officers;

 

eliminating the ability of our stockholders to call special meetings; and

 

requiring advance notification of stockholder nominations and proposals.

 

Section 203 of the Delaware General Corporation Law prohibits, subject to some exceptions, “business combinations” between a Delaware corporation and an “interested stockholder,” which is generally defined as a stockholder who becomes a beneficial owner of 15% or more of a Delaware corporation's voting stock, for a three-year period following the date that the stockholder became an interested stockholder. We have agreed to opt out of Section 203 through our certificate of incorporation, but our certificate of incorporation contains substantially similar protections to our company and stockholders as those afforded under Section 203, except that we have agreed with Total that it and its affiliates will not be deemed to be “interested stockholders” under such protections.

 

In addition, we have an agreement with Total, which provides that, so long as Total holds at least 10% of our voting securities, we must inform Total of any offer to acquire us or any decision of our Board of Directors to sell our company, and we must provide Total with information about the contemplated transaction. In such events, Total will have an exclusive negotiating period of fifteen business days in the event the Board of Directors authorizes us to solicit offers to buy Amyris, or five business days in the event that we receive an unsolicited offer to purchase us. This exclusive negotiation period will be followed by an additional restricted negotiation period of ten business days, during which we are obligated to continue to negotiate with Total and will be prohibited from entering into an agreement with any other potential acquirer.

 

These and other provisions in our restated certificate of incorporation and our restated bylaws that became effective upon the completion of our initial public offering under Delaware law and in our agreements with Total could discourage potential takeover attempts, reduce the price that investors might be willing to pay in the future for shares of our common stock and result in the market price of our common stock being lower than it would be without these provisions.

 

Conversion of our outstanding convertible promissory notes or the exercise of outstanding warrants to purchase our common stock will dilute the ownership interest of existing stockholders or may otherwise depress the market price of our common stock.

 

The conversion of some or all of our outstanding convertible promissory notes or the exercise of some or all of outstanding warrants to purchase our common stock will dilute the ownership interests of existing stockholders. In particular, the exercise of the warrants which have a $0.01 per share exercise price will dilute the economic ownership interest of our existing stockholders. In addition, any sales in the public market of the shares of our common stock issuable upon such conversion or exercise could adversely affect prevailing market prices of our common stock. Furthermore, the existence of our outstanding convertible promissory notes and warrants may encourage short selling by market participants because the anticipated conversion of such notes into, or exercise of such warrants for, shares of our common stock could depress the market price of our common stock.

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

On August 6, 2016, we issued a warrant to purchase 5,000,000 shares of our common stock, at an exercise price of $0.50 per share, to Ginkgo Bioworks, Inc. (“Ginkgo”) in exchange for the transfer of certain information technology from Ginkgo to the Company. The warrant is exercisable for a period of one year from the date of issuance. See Note 8, “Significant Agreements” and Note 18, “Subsequent Events” to our unaudited condensed consolidated financial statements included in this report for additional details regarding our relationship with Ginkgo.

 

 108 
 

No underwriters or agents were involved in the issuance or sale of such securities. The securities were issued in private placements pursuant to the exemption from registration under Section 4(2) of the Securities Act and Regulation D promulgated under the Securities Act. Each purchaser acquired the applicable securities for investment purposes only and without intent to resell, was able to fend for itself in the relevant transaction, and is an accredited investor as defined in Rule 501 of Regulation D promulgated under Section 3(b) of the Securities Act, and appropriate restrictions were set out in the agreements relating to the respective issuances. Each purchaser had adequate access to information about us in connection with the relevant transaction. The securities may not be offered or sold in the United States absent registration under the Securities Act or an applicable exemption from registration requirements.

 

 

ITEM 3. DEFAULTS UPON SENIOR SECURITIES

 

Not applicable.

 

ITEM 4. MINE SAFETY DISCLOSURES

 

Not applicable.

 

ITEM 5. OTHER INFORMATION

 

Not applicable.

 

ITEM 6. EXHIBITS

 

The exhibits listed in the Exhibit Index included herein at page 111 (other than exhibits 32.01, 32.02 and 101) are filed as part of this Quarterly Report on Form 10-Q and such Exhibit Index is incorporated herein by reference.

 

 

 

 

 109 
 

 

SIGNATURES

 

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

 

 

 

Dated: November 9, 2016 AMYRIS, INC.
   
  /s/  JOHN G. MELO
  John G. Melo
  Director, President and Chief Executive Officer
  (Principal Executive Officer)

 

 

Dated: November 9, 2016  
   
  /s/  RAFFI ASADORIAN
  Raffi Asadorian
  Chief Financial Officer
  (Principal Financial Officer)

 

 

 

 

 

 110 
 

 

EXHIBIT INDEX

 

Exhibit     Previously Filed   Filed
No. Description   Form   File No.   Filing Date   Exhibit   Herewith
3.01 Restated Certificate of Incorporation   10-Q   001-34885   November 10, 2010   3.01    
3.02 Certificate of Amendment, dated May 9, 2013, to Restated Certificate of Incorporation   S-8   333-188711   May 20, 2013   4.02    
3.03 Certificate of Amendment, dated May 12, 2014, to Restated Certificate of Incorporation   10-Q   001-34887   August 8, 2014   3.02    
3.04 Certificate of Amendment, dated September 18, 2015, to Restated Certificate of Incorporation   S-3/A   333-206331   November 4, 2015   3.03    
3.05 Certificate of Amendment, dated May 18, 2016, to Restated Certificate of Incorporation   10-Q   001-34885   August 9, 2016   3.05    
3.06 Restated Bylaws   10-Q   001-34885   November 10, 2010   3.02    
4.01 Specimen of Common Stock Certificate   S-1   333-166135   July 6, 2010   4.01    
4.02 Amended and Restated Investors’ Rights Agreement, dated June 21, 2010, among registrant and its security holders listed therein   S-1   333-166135   June 23, 2010   4.02    
4.03 First Amendment, dated February 23, 2012, to Amended and Restated Investors' Rights Agreement among registrant and registrant's security holders listed therein   S-3   333-180005   March 9, 2012   4.06    
4.04 Amendment No. 2, dated December 24, 2012, to Amended and Restated Investors' Rights Agreement among registrant and registrant's security holders listed therein   10-K   001-34885   March 28, 2013   4.04    
4.05 Amendment No. 3, dated March 27, 2013,  to Amended and Restated Investors' Rights Agreement among registrant and registrant's security holders listed therein   10-Q   001-34885   May 9, 2013   4.02    
4.06 Amendment No. 4, dated October 16, 2013, to Amended and Restated Investors' Rights Agreement among registrant and registrant's security holders listed therein   10-K   001-34885   April 2, 2014   4.06    
4.07 Amendment No. 5, dated December 24, 2013, to Amended and Restated Investors' Rights Agreement among registrant and registrant's security holders listed therein   10-K   001-34885   April 2, 2014   4.07    
4.08 Amendment No. 6, dated July 29, 2015, to Amended and Restated Investors’ Rights Agreement among registrant and registrant’s security holders listed therein   S-3   333-204102   August 12, 2015   4.17    
4.09 Warrant to Purchase Stock, dated December 23, 2011, issued to ATEL Ventures, Inc.   10-K   001-34885   February 28, 2012   4.07    
4.10 Side Letter, dated June 21, 2010, between registrant and Total Gas & Power USA, SAS   S-1   333-166135   June 23, 2010   4.19    
4.11 Agreement, dated February 23, 2012, among registrant, Maxwell (Mauritius) Pte Ltd, Naxyris SA, Biolding Investment SA and Sualk Capital Ltd.   10-Q   001-34885   May 9, 2012   4.02    
4.12 Securities Purchase Agreement, dated February 24, 2012, among registrant and certain investment funds affiliated with Fidelity Investments Institutional Services Company, Inc. listed therein (each, a Fidelity Purchaser)   S-3   333-180005   March 9, 2012   4.02    
4.13 Form of Unsecured Senior Convertible Promissory Note issued by registrant to the Fidelity Purchasers in the amounts set forth next to each Fidelity Purchaser's name on Schedule I of Exhibit 4.12 hereof   S-3   333-180005   March 9, 2012   4.03    
4.14 Registration Rights Agreement, dated February 27, 2012, among registrant and the Fidelity Purchasers   S-3   333-180005   March 9, 2012   4.04    
4.15c Form of Common Stock Purchase Agreement among registrant and certain investors   10-Q   001-34885   August 8, 2012   4.01    
4.16 Securities Purchase Agreement, dated July 30, 2012, between registrant and Total Gas & Power USA, SAS   10-Q   001-34885   November 9, 2012   4.01    

 

 111 
 

 

4.17 Registration Rights Agreement, dated July 30, 2012, between registrant and Total Gas & Power USA, SAS   10-Q   001-34885   November 9, 2012   4.03    
4.18 1.5% Senior Secured Convertible Note, dated July 29, 2015, issued by registrant to Total Energies Nouvelles Activités USA (RS-9)   10-Q   001-34885   November 9, 2015   4.21    
4.19 1.5% Senior Convertible Note, dated March 21, 2016, issued by registrant to Total Energies Nouvelles Activités USA (RS-10)   10-Q   001-34885   May 10, 2016   4.19    
4.20a Securities Purchase Agreement, dated December 24, 2012, between registrant and certain investors listed therein   10-K   001-34885   March 28, 2013   4.16    
4.21a Follow-On Investment Agreement, dated December 24, 2012, between registrant and Biolding Investment SA   10-K   001-34885   March 28, 2013   4.17    
4.22 Securities Purchase Agreement, dated March 27, 2013, between registrant and Biolding Investment SA   10-Q   001-34885   May 9, 2013   4.01    
4.23 Securities Purchase Agreement (including Form of Tranche I Senior Convertible Note and Form of Tranche II Senior Convertible Note) , dated August 8, 2013, between registrant, Maxwell (Mauritius) Pte Ltd and Total Energies Nouvelles Activités USA (f.k.a. Total Gas & Power USA, SAS)   10-Q   001-34885   November 5, 2013   4.01    
4.24a Amendment No. 1, dated October 16, 2013, to the Securities Purchase Agreement, dated August 8, 2013, between registrant and other parties named therein   10-K   001-34885   April 2, 2014   4.24    
4.25 Tranche I Note Amendment and Amendment No. 2, dated December 24, 2013, to the Securities Purchase Agreement, dated August 8, 2013, between registrant and other parties named therein   10-K   001-34885   April 2, 2014   4.25    
4.26ad 5% Unsecured Convertible Note, dated October 16, 2013, issued to Total Energies Nouvelles Activités USA   10-Q   001-34885   May 9, 2014   4.04    
4.27ae 10% Unsecured Convertible Note, dated January 15, 2014, issued to Total Energies Nouvelles Activités USA   10-Q   001-34885   May 9, 2014   4.06    
4.28 Voting Agreement, dated August 8, 2013, among registrant and registrant's security holders named therein   10-Q   001-34885   November 5, 2013   4.02    
4.29 Loan and Security Agreement, dated March 29, 2014, between registrant and Hercules Technology Growth Capital, Inc.   10-Q   001-34885   May 9, 2014   4.02    
4.30 First Amendment, dated June 12, 2014, to Loan and Security Agreement, dated March 29, 2014, between registrant and Hercules Technology Growth Capital, Inc.   10-Q   001-34885   August 8, 2014   4.06    
4.31 Second Amendment, dated March 31, 2015, to Loan and Security Agreement, dated March 29, 2014, between registrant and Hercules Technology Growth Capital, Inc.   10-Q   001-34885   May 7, 2015   10.05    
4.32 Third Amendment, dated November 30, 2015, to Loan and Security Agreement, dated March 29, 2014, between registrant and Hercules Technology Growth Capital, Inc.   10-K   001-34885   March 30, 2013   4.37    
4.33 Letter Agreement, dated March 29, 2014, between registrant and Total Energies Nouvelles Activités USA   10-Q   001-34885   May 9, 2014   4.03    
4.34a Amended and Restated Letter Agreement re: Certain Registration Rights, dated May 8, 2014, between registrant and the purchasers listed therein   10-Q   001-34885   August 8, 2014   4.01    
4.35 Indenture, dated May 29, 2014, between registrant and Wells Fargo Bank, National Association, as Trustee   8-K   001-34885   May 29, 2014   4.01    
4.36 6.5% Convertible Senior Note due 2019, dated May 29, 2014, issued by registrant to Morgan Stanley & Co. LLC   10-Q   001-34885   August 8, 2014   4.02    

 

 112 
 

 

4.37f 6.5% Convertible Senior Note due 2019, dated May 29, 2014, issued by registrant to Maxwell (Mauritius) Pte Ltd.   10-Q   001-34885   August 8, 2014   4.03    
4.38 Registration Rights Agreement, dated February 24, 2015, between the registrant and Nomis Bay Ltd   8-K   001-34885   February 26, 2015   4.01    
4.39g Voting Agreement, dated July 24, 2015, between registrant and Foris Ventures, LLC   10-Q   001-34885   November 9, 2015   4.43    
4.40 Securities Purchase Agreement, dated July 24, 2015, between registrant and the Purchasers listed therein   10-Q   001-34885   November 9, 2015   4.44    
4.41h Warrant to Purchase Stock, issued on July 24, 2015, by registrant to Total Energies Nouvelles Activités USA   S-3   333-204102   August 12, 2015   4.21    
4.42 Exchange Agreement, dated July 29, 2015, between registrant and the Investors therein   10-Q   001-34885   November 9, 2015   4.46    
4.43 Maturity Treatment Agreement, dated July 29, 2015, between registrant and the Investors listed therein   10-Q   001-34885   November 9, 2015   4.47    
4.44 Letter Agreement, dated as of July 29, 2015, among registrant and registrant’s security holders listed therein   S-3   333-204102   August 12, 2015   4.20    
4.45 Warrant to Purchase Stock, issued July 29, 2015, by the registrant to Total Energies Nouvelles Activités USA   S-3   333-204102   August 12, 2015   4.23    
4.46 Warrant to Purchase Stock, issued July 29, 2015, by the registrant to Maxwell (Mauritius) PTE Ltd   S-3   333-204102   August 12, 2015   4.26    
4.47 Indenture, dated October 20, 2015, between registrant and Wells Fargo Bank, National Association, as Trustee   8-K   001-34885   October 20, 2015   4.01    
4.48 9.50% Convertible Senior Note due 2019, dated October 20, 2015, issued by registrant to Cede & Co.   10-K   001-34885   March 30, 2016   4.56    
4.49 Registration Rights Agreement, dated October 20, 2015, between the registrant and the registrant’s security holders listed therein   8-K   001-34885   October 20, 2015   4.02    
4.50 Note and Warrant Purchase Agreement, dated February 12, 2016, between registrant and the purchasers listed therein   10-Q   001-34885   May 10, 2016   4.50    
4.51i Unsecured Promissory Note, dated February 12, 2016, between registrant and Foris Ventures, LLC   10-Q   001-34885   May 10, 2016   4.51    
4.52j Warrant to Purchase Stock, issued February 12, 2016, by registrant to Foris Ventures, LLC   10-Q   001-34885   May 10, 2016   4.52j    
4.53 Form of Convertible Note between registrant and a private investor   8-K   001-34885   May 10, 2016   4.1    
4.54 Note Purchase Agreement, dated June 24, 2016, between registrant and Foris Ventures, LLC   10-Q   001-34885   August 9, 2016   4.50    
4.56 Secured Promissory Note, dated June 24, 2016,  issued by registrant to Foris Ventures, LLC   10-Q   001-34885   August 9, 2016   4.51    
4.57 Form of Additional Note between registrant and a private investor   8-K   001-34885   September 9, 2016   4.1    
4.58 Warrant to Purchase Common Stock, issued August 6, 2016, by registrant to Ginkgo Bioworks, Inc.                   X
10.01 First Addendum to the Share Purchase and Sale Agreement, dated September 1, 2016, among registrant, Amyris Brasil Ltda., São Martinho S.A. and SMA Industria Quimica Ltda                   X
10.02 Second Amended and Restated Operating Agreement, dated July 19, 2016, by and among registrant, Cosan US, Inc., American Refining Group, Inc. and Novvi LLC                   X
10.03b Amended & Restated IP License Agreement, dated July 19, 2016, between registrant and Novvi LLC                   X
10.04b Collaboration Agreement, dated September 30, 2016, between registrant and Ginkgo Bioworks, Inc.                   X

 

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31.01 Certification of Chief Executive Officer pursuant to Securities Exchange Act Rules 13a-14(c) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002                   X
31.02 Certification of Chief Financial Officer pursuant to Securities Exchange Act Rules 13a-14(c) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002                   X
32.01k Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002                   X
32.02k Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002                   X
101l The following materials from registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2016, formatted in XBRL (Extensible Business Reporting Language): (i) the Consolidated Statements of Operations; (ii) the Consolidated Balance Sheets; (iii) the Consolidated Statements of Comprehensive Income; (iv) the Consolidated Statements of Convertible Preferred Stock, Redeemable Noncontrolling Interest and Equity (Deficit); (v) the Consolidated Statements of Cash Flows; and (vi) Notes to Consolidated Financial Statements                   X

 

 

 

 

 

 

 

 

 

 

 

 

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a Portions of this exhibit, which have been granted confidential treatment by the Securities and Exchange Commission, have been omitted.
b Portions of this exhibit have been omitted pending a determination by the Securities and Exchange Commission as to whether these portions should be granted confidential treatment.
c Substantially identical Common Stock Purchase Agreements, each dated May 18, 2012, were entered into with five separate investors.  Registrant has filed the form of such Common Stock Purchase Agreements, which is substantially identical in all material respects to all of such Common Stock Purchase Agreements, except as to the parties thereto and the number of shares being purchased.
d Registrant issued substantially identical 5% Unsecured Convertible Notes (the "5% Notes") to Total Gas & Power USA, SAS (“Total’), FIAM Target Date Large Cap Stock Commingled Pool (formerly known as Fidelity Pyramis Lifecycle Large Cap Stock Commingled Pool. Fidelity Variable Insurance Products Fund Ill: Growth & Income Portfolio, Fidelity Hastings Street Trust: Fidelity Advisor Series Growth & Income Fund. Fidelity Securities Fund: Fidelity Growth & Income Portfolio Fidelity Hastings Street Trust: Fidelity Series Growth & Income Fund. Fidelity Commonwealth Trust: Fidelity Large Cap Stock Fund, and Maxwell (Mauritius) Pte Ltd on October 16. 2013. Registrant has filed the 5% Note issued to Total. and has included with Exhibit 4.04 a schedule (Schedule A to Exhibit 4.04 of registrant’s Form 10-Q filed on May 9, 2014) identifying each of the 5% Notes and setting forth the material detail in which the other 5% Note(s) differ from the filed 5% Note (i.e. the Purchasers. the amounts of the 5% Notes. and the conversion price).
e Registrant issued substantially identical 10% Unsecured Convertible Notes (the "10% Notes") to Total Wolverine Flagship Fund Trading Limited and Maxwell (Mauritius) Pte Ltd on January 15 2014. Registrant has filed the 10% Note issued to Total and has included with Exhibit 4.06. a schedule (Schedule A to Exhibit 4.06 of registrant’s Form 10-Q filed on May 9, 2014) identifying each of the 10% Notes and setting forth the material details in which the other 10% Note(s) differ from the filed 10% Note (i.e. the purchasers and the amounts of the 10% Notes).
f Registrant issued substantially identical 6.5% Senior Convertible Notes due 2019 (the “6.5% Notes”) to Maxwell (Mauritius) Pte Ltd. (“Temasek”), Total Energies Nouvelles Activités USA, and Foris Ventures, LLC on May 29, 2014. Registrant has filed the 6.5% Note issued to Temasek, and has included, with such exhibit, a schedule (Schedule A to Exhibit 4.03 of registrant's Form 10-Q filed August 8, 2014) identifying each of the 6.5% Notes and setting forth the material details in which the other 6.5% Notes differ from the filed 6.5% Note (i.e., the note number, the purchasers, and the amounts of the 6.5% Notes).
g Substantially identical Voting Agreements, each dated July 31, 2015, were entered into with five separate investors.  Registrant has filed Voting Agreement entered into by registrant and Foris Ventures LLC, which is substantially identical in all material respects to all of such Voting Agreements, except as to the parties thereto.
h Registrant issued substantially identical warrants to the purchasers under that certain Securities Purchase Agreement entered into on July 24. 2015~ Registrant has filed the warrant issued to Total Energies Nouvelles Activités USA and has included with such Exhibit a schedule (Schedule A to Exhibit 4.03 of registrants Form 10-Q filed on August 8, 2015) identifying each of the warrants and setting forth the material details in which the other warrants differ from the filed form of warrant (i.e. the names of the purchasers. the certificate numbers and the respective amounts of shares underlying the warrants).
i Substantially identical Unsecured Promissory Notes (the “Notes”) were entered into with three separate investors.  Registrant has filed the Note entered into by registrant and Foris Ventures LLC.  Registrant has included with Exhibit 4.50 a schedule (Schedule I) identifying each of the Notes and setting forth the material details in which the other Notes differ from that of Exhibit 4.51 (i.e. the dates of issuance, the names of the purchasers. the principal and purchase price).
j Substantially identical Warrants to Purchase Stock (the “Warrants”) were entered into with three separate investors.  Registrant has filed the Warrant entered into by registrant and Foris Ventures LLC.  Registrant has included with Exhibit 4.50 a schedule (Schedule I) identifying each of the Warrants and setting forth the material details in which the other Warrants differ from that of Exhibit 4.52 (i.e. the dates of issuance, the names of the purchasers. the amount of warrant shares and purchase price).
k This certification shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that Section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act.
l Pursuant to applicable securities laws and regulations, registrant is deemed to have complied with the reporting obligation relating to the submission of interactive data files in such exhibits and is not subject to liability under any anti-fraud provisions of the federal securities laws as long as registrant has made a good faith attempt to comply with the submission requirements and promptly amends the interactive data files after becoming aware that the interactive data files fails to comply with the submission requirements. These interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act, are deemed not filed for purposes of Section 18 of the Exchange Act and otherwise are not subject to liability under those sections.

 

 

 

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EX-4.58 2 exh_458.htm EXHIBIT 4.58

Exhibit 4.58

 

NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

 

WARRANT TO PURCHASE COMMON STOCK

 

Company:Amyris, Inc., a Delaware corporation
Warrant Certificate:  GW-1
Number of Shares:5,000,000
Class of Stock:Common Stock
Warrant Price:$0.50 per share
Issue Date:August 6, 2016
Expiration Date:The 1st anniversary of the Issue Date

 

THIS WARRANT CERTIFIES THAT, for good and valuable consideration, GINKGO BIOWORKS, INC. (together with any registered holder from time to time of this Warrant or any holder of the shares issuable or issued upon exercise of this Warrant, “Holder”) is entitled to purchase the number of fully paid and nonassessable shares of the class of securities of the Company at the Warrant Price, all as set forth above and as adjusted pursuant to Article 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in this Warrant.

 

ARTICLE 1 EXERCISE.

 

1.1.          Exercise. This Warrant shall be exercisable for 5,000,000 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) (the “Shares”). The number of Shares and the Warrant Price are subject to adjustment as provided herein, and all references to “Shares” and “Warrant Price” herein shall be deemed to include any such adjustment or series of adjustments.

 

1.2.          Method of Exercise.

 

(a)            Mechanics. This Warrant may be exercised by the Holder at any time on or after the Issue Date (an “Exercise Date”), in whole or in part, by delivery (whether via facsimile or otherwise) of a written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise this Warrant. Within one (1) Trading Day following an

 

 

 

 

exercise of this Warrant as aforesaid, the Holder shall deliver payment to the Company of an amount equal to the Warrant Price in effect on the date of such exercise multiplied by the number of Shares as to which this Warrant was so exercised (the “Aggregate Warrant Price”) in cash or via wire transfer of immediately available funds if the Holder did not notify the Company in such Exercise Notice that such exercise was made pursuant to a Cashless Exercise (as defined in Section 1.3). The Holder shall not be required to deliver the original of this Warrant in order to effect an exercise hereunder. Execution and delivery of an Exercise Notice with respect to less than all of the Shares shall have the same effect as cancellation of the original of this Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Shares. Execution and delivery of an Exercise Notice for all of the then-remaining Shares shall have the same effect as cancellation of the original of this Warrant after delivery of the Shares in accordance with the terms hereof. On or before the later of the third (3rd) Trading Day following the date on which the Company has received such Exercise Notice and one (1) Trading Day after the Company’s receipt of the Aggregate Warrant Price (or valid notice of a Cashless Exercise) (such later date, the “Share Delivery Deadline”), the Company shall, (X) provided that the Company’s Common Stock transfer agent (the “Transfer Agent”) is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified in the Exercise Notice, a certificate, registered in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder shall be entitled pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Shares with respect to which this Warrant has been exercised, irrespective of the date such Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Shares (as the case may be). If this Warrant is submitted in connection with any exercise pursuant to this Section 1 and the number of Shares represented by this Warrant submitted for exercise is greater than the number of Shares being acquired upon an exercise and upon surrender of this Warrant to the Company by the Holder, then the Company shall as soon as practicable and in no event later than three (3) business days after any exercise and at its own expense, issue and deliver to the Holder (or its designee) a new Warrant representing the right to purchase the number of Shares purchasable immediately prior to such exercise under this Warrant, less the number of Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock are to be issued upon the exercise of this Warrant, but rather the number of shares of Common Stock to be issued shall be rounded down to the nearest whole number. The Company shall pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer Agent) that may be payable with respect to the issuance and delivery of Shares upon exercise of this Warrant. Notwithstanding the foregoing, the Company’s failure to deliver Shares to the Holder on or prior to Share Delivery Deadline shall not be deemed to be a breach of this Warrant, provided that the Company is in compliance with the other provisions of this Warrant, including without limitation Section 1.2(b).

 

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(b)            Company’s Failure to Timely Deliver Securities. If the Company shall fail, for any reason or for no reason, on or prior to the Share Delivery Deadline, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, to issue and deliver to the Holder (or its designee) a certificate for the number of Shares to which the Holder is entitled and register such Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of the Holder or the Holder’s designee with DTC for such number of Shares to which the Holder is entitled upon the Holder’s exercise of this Warrant (as the case may be), and if on or after such Share Delivery Deadline the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of all or any portion of the number of shares of Common Stock issuable upon such exercise that the Holder anticipated receiving from the Company (a “Buy-In”), then, in addition to all other remedies available to the Holder, the Company shall, within three (3) business days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including, without limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point the Company’s obligation to so issue and deliver such certificate (and to issue such shares of Common Stock) or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Shares to which the Holder is entitled upon the Holder’s exercise hereunder (as the case may be) (and to issue such Shares) shall terminate and the applicable Exercise Notice shall be disregarded as if never submitted by the Holder, or (ii) promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such Shares or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Shares to which the Holder is entitled upon the Holder’s exercise hereunder (as the case may be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of Shares multiplied by (B) the average closing price of the Common Stock across all Trading Days during the period commencing on the date of the applicable Exercise Notice and ending on the date of such issuance and payment under this clause (ii). Nothing shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) upon the exercise of this Warrant as required pursuant to the terms hereof.

 

1.3.          Cashless Exercise Right. In lieu of exercising this Warrant by making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Warrant Price pursuant to Article 1.2, Holder may elect instead to receive upon such exercise the “Net Number” of shares of Common Stock determined according to the following formula (a “Cashless Exercise”):

 

  Net Number = (A x B) - (A x C)  
  B  

 

For purposes of the foregoing formula:

 

A= the total number of shares with respect to which this Warrant is then being exercised.

 

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B= the fair market value of each Share, which shall be (i) the average for the five Trading Days immediately prior to the date of determination thereof of the last reported sale price regular way on each such day, (ii) in the case no such sale takes place on any such day, the average of the reported closing bid and asked prices regular way of the shares of Common Stock on such day, in each case as quoted on the Principal Market, as reported by Bloomberg or such other principal securities exchange or inter-dealer quotation system on which the shares of Common Stock are then traded, or (iii) in the case the shares of Common Stock are not traded publically on the Principal Market, the value mutually agreed up by the Company and the Holder.

 

C= the Warrant Price then in effect for the applicable Shares at the time of such exercise.

 

1.4.          Delivery of Certificate and New Warrant. Promptly after Holder exercises or converts this Warrant, and, if applicable, the Company receives payment of the aggregate Warrant Price, the Company shall deliver to Holder certificates for the Shares acquired and, if this Warrant has not been fully exercised or converted and has not expired, a new Warrant representing the Shares not so acquired. Holder shall be deemed to own and have all of the rights associated with any Shares or other securities or property to which it is entitled pursuant to this Warrant upon the exercise or conversion of the Warrant in accordance with this Article 1.

 

1.5.          Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.

 

1.6.          Treatment of Warrant Upon Acquisition of Company.

 

1.6.1       Acquisition”. For the purpose of this Warrant, “Acquisition” shall mean the occurrence of any of the following: (i) the consolidation of the Company with, or the merger of the Company with or into, another “person” (as such term is used in Rule 13d-3 and Rule 13d-5 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), or the sale, lease, exclusive license, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole, or the consolidation of another “person” with, or the merger of another “person” into, the Company, other than in each case pursuant to a transaction in which the “persons” that “beneficially owned” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, the Voting Shares (as defined below) of the Company immediately prior to the transaction “beneficially own”, directly or indirectly, Voting Shares representing at least a majority of the total voting power of all outstanding classes of voting stock of the surviving or transferee person; (ii) the adoption by the Company of a plan relating to the liquidation or dissolution of the Company; (iii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” becomes the “beneficial owner” directly or indirectly, of more than 50% of the Voting Shares of the Company (measured by voting power rather than number of shares); or (iv) during any period of 24 consecutive months, a majority of the members of the Company’s Board of Directors cease to be composed of individuals (A) who were members of the Board of Directors on the first day of such period, (B) whose election, nomination or appointment to the Board of Directors was approved by at least a majority of the individuals referred to in clause (A) above or (C) whose election, nomination or appointment to the Board was approved by at least a majority of the individuals referred to in clauses (A) and (B) taken together. For the purposes of this Article 1.6.1, “Voting Shares” of any person shall mean capital shares or capital stock of such person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such person.

 

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1.6.2       Notice of Acquisition. The Company shall provide Holder with written notice of an Acquisition (together with such reasonable information as Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Acquisition.

 

1.6.3       Treatment of Warrant at Cash/Public Acquisition. In the event of an Acquisition in which the consideration to be received by the Company’s stockholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”), and the fair market value of one Share as determined in accordance with Section 1.3 above would be greater than the Warrant Price in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant pursuant to Article 1 above as to all Shares, then this Warrant shall automatically be deemed to be exercised as a Cashless Exercise pursuant to Section 1.3 above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition. In the event of a Cash/Public Acquisition where the fair market value of one Share as determined in accordance with Section 1.3 above would be less than the Warrant Price in effect immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisition, unless the Holder elects to exercise the Warrant prior to the consummation of such Cash/Public Acquisition.

 

1.6.4       Treatment of Warrant at Acquisition other than Cash/Public Acquisition. Upon the closing of any Acquisition other than a Cash/Public Acquisition, unless Holder agrees otherwise in writing (but without obligation to do so), the acquiring, surviving or successor entity shall assume the obligations of this Warrant, and this Warrant shall thereafter be exercisable for the same securities and/or other property as would have been paid for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were outstanding on and as of the closing of such Acquisition, subject to further adjustment from time to time in accordance with the provisions of this Warrant.

 

1.7.          Insufficient Authorized Shares. If at any time while the Warrant remains outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon exercise of the Warrant at least a number of shares of Common Stock equal to 100% (the “Required Reserve Amount”) of the number of shares of Common Stock as shall from time to time be necessary to effect the exercise of the Warrant then outstanding, then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Warrant then outstanding.

 

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ARTICLE 2 ADJUSTMENTS TO THE SHARES.

 

2.1.          Stock Dividends, Splits, Etc. If the Company declares or pays a dividend on the Shares payable in common stock of the Company, or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of shares of common stock of the Company to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock for which this Warrant is exercisable, the number of Shares subject to the Warrant shall be proportionately increased and the Warrant Price shall be proportionately decreased. If the outstanding shares are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Warrant Price shall be proportionately increased and the number of Shares subject to the Warrant shall be proportionately decreased.

 

2.2.          Reclassification, Exchange, Combinations or Substitution. Upon any reclassification, exchange, substitution, reorganization, recapitalization or other event that results in a change of the number and/or class of the securities issuable upon exercise or conversion of this Warrant (other than an Acquisition which is subject to the provisions of Article 1.6), Holder shall be entitled to receive, upon exercise or conversion of this Warrant the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or conversion of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or conversion of this Warrant. The amendment to this Warrant shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 2 including, without limitation, adjustments to the Warrant Price and to the number of securities or property issuable upon exercise of the new Warrant. The provisions of this Article 2.2 shall similarly apply to successive reclassifications, exchanges, substitutions, or other events.

 

2.3.          Other Adjustment Events. If any event occurs of the type contemplated by the provisions of this Article 2 but not expressly provided for by such provisions, then the Company’s Board of Directors will make an appropriate adjustment in the Warrant Price and the number of Warrant Shares so as to protect the rights of the Holder; provided that no such adjustment pursuant to this Article 2.4 will increase the Warrant Price or decrease the number of Shares as otherwise determined pursuant to this Article 2.

 

2.4.          No Impairment. Without the consent of the Holder, the Company shall not by amendment of its Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Warrant by the Company, but shall at all times in good faith assist in carrying out of all the provisions of this Article 2 and in taking all such action as may be necessary or appropriate to protect Holder’s rights under this Article 2 against impairment.

 

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2.5.          Fractional Shares. No fractional Shares shall be issuable upon exercise or conversion of this Warrant and the number of Shares to be issued shall be rounded down to the nearest whole Share. If a fractional share interest arises upon any exercise or conversion of the Warrant, the Company shall eliminate such fractional share interest by paying Holder in cash equivalent to the amount computed by multiplying the fractional interest by the fair market value of a full Share (as determined pursuant to Section 1.3 of this Warrant).

 

2.6.          Certificate as to Adjustments. Upon each adjustment of the Warrant Price and Shares, the Company shall promptly notify Holder in writing, and, at the Company’s expense, promptly compute such adjustment, and furnish Holder with a certificate of its Chief Financial Officer, Corporate Secretary or a senior financial officer setting forth such adjustment and the facts upon which such adjustment is based. The Company shall, upon written request, furnish Holder a certificate setting forth the Warrant Price and Shares in effect upon the date thereof and the series of adjustments leading to such Warrant Price and Shares.

 

ARTICLE 3 REPRESENTATIONS AND COVENANTS OF THE COMPANY. The Company represents, warrants and covenants to the Holder as follows:

 

3.1.          Representations and Warranties. The Company represents and warrants and covenants to the Holder as follows: All corporate action required to be taken by the Company’s Board of Directors and stockholders in order to authorize the Company to enter into this Warrant, and to issue the Shares upon exercise thereof, has been taken. All Shares which may be issued upon the exercise of the purchase right represented by this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable federal and state securities laws. The issuance of this Warrant, or the Shares issuable thereunder, will not trigger any anti-dilution adjustment, preemptive rights, rights of first refusal or other similar rights of third parties other than as have been waived prior to the issuance of this Warrant. The Company will at all times reserve and keep available, out of its authorized but unissued share of Common Stock, solely for the purpose of providing the exercise or conversion of this Warrant, the aggregate number of Shares issuable upon exercise or conversion of this Warrant. The Company will use its reasonable best efforts to ensure that the Shares may be issued without violation of any law or regulation applicable to the Company or of any requirement of any securities exchange applicable to the Company on which the Shares are listed or traded.

 

3.2.          All corporate action required to be taken by the Company’s Board of Directors and stockholders in order to authorize the Company to enter into this Warrant, and to issue the Shares at the closing, has been taken or will be taken prior to the closing. All action on the part of the officers of the Company necessary for the execution and delivery of this Warrant, the performance of all obligations of the Company under this Warrant to be performed as of the closing, and the issuance and delivery of the Shares has been taken or will be taken prior to the closing. This Warrant, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

7

 

 

3.3.          No Stockholder Rights. Except as provided in this Warrant, and other than with regard to shares of the Company’s Common Stock acquired by Holder other than pursuant to the exercise of this Warrant, the Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant.

 

3.4.          Charges, Taxes and Expenses. Issuance of certificates for Shares to the Holder or the credit of the Shares to the Holder or the Holder’s designee with DTC upon the exercise or conversion of this Warrant shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company.

 

3.5.             Notice of Certain Events. If the Company proposes at any time to:

 

(a) declare any dividend or distribution upon the outstanding shares of Common Stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend;

 

(b) offer for subscription or sale pro rata to the holders of the outstanding shares of the Common Stock any additional shares of any class or series of the Company’s capital stock (other than pursuant to contractual pre-emptive rights);

 

(c) effect any reclassification, exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of Common Stock; or

 

(d) effect an Acquisition or to liquidate, dissolve or wind up;

 

then, in connection with each such event, the Company shall give Holder:

 

(1) in the case of the matters referred to in (a) and (b) above, at least seven (7) business days prior written notice of the earlier to occur of the effective date thereof or the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of outstanding shares of Common Stock will be entitled thereto) or for determining rights to vote, if any; and

 

(2) in the case of the matters referred to in (c) and (d) above at least seven (7) business days prior written notice of the date when the same will take place (and specifying the date on which the holders of outstanding shares of Common Stock will be entitled to exchange their shares for the securities or other property deliverable upon the occurrence of such event and such reasonable information as Holder may reasonably require regarding the treatment of this Warrant in connection with such event giving rise to the notice).

 

8

 

 

The Company will also provide information requested by Holder that is reasonably necessary to enable Holder to comply with Holder’s accounting or reporting requirements.

 

ARTICLE 4 REPRESENTATIONS, WARRANTIES OF THE HOLDER. The Holder represents and warrants to the Company as follows:

 

4.1.          Purchase for Own Account. This Warrant and the securities to be acquired upon exercise or conversion of this Warrant by the Holder will be acquired for investment for the Holders account, not as a nominee or agent, and not with a view to the public resale or distribution within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), and the Holder has no present intention, and upon exercise or conversion will have no intention, of selling or engaging in any public distribution of the same except pursuant to a registration or exemption. Holder also represents that the Holder has not been formed for the specific purpose of acquiring this Warrant or the Shares.

 

4.2.          Disclosure of Information. The Holder has received or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the acquisition of this Warrant and its underlying securities. The Holder further has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of this Warrant and its underlying securities and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to the Holder or to which the Holder has access.

 

4.3.          Investment Experience. The Holder understands that the purchase of this Warrant and its underlying securities involves substantial risk. The Holder has experience as an investor in securities of companies in the development stage and acknowledges that the Holder can bear the economic risk of such Holder’s investment in this Warrant and its underlying securities and has such knowledge and experience in financial or business matters that the Holder is capable of evaluating the merits and risks of its investment in this Warrant and its underlying securities and/or has a preexisting personal or business relationship with the Company and certain of its officers, directors or controlling persons of a nature and duration that enables the Holder to be aware of the character, business acumen and financial circumstances of such persons.

 

4.4.          Accredited Investor Status. The Holder is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act.

 

9

 

4.5.          Securities Act. The Holder understands that this Warrant and the Shares issuable upon exercise or conversion hereof have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Holder’s investment intent as expressed herein. The Holder understands that this Warrant and the Shares issued upon any exercise or conversion hereof must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless exemption from such registration and qualification are otherwise available. The Holder further understands that settlement of this Warrant is to be made in Shares and, for the elimination of doubt, the fact that the Shares delivered on exercise of this Warrant will not be registered under the Securities Act (as defined below) will not in any way require the Company to settle this Warrant otherwise than in Shares, including without limitation, that there is no circumstance that would require the Company to settle this Warrant in cash.

 

ARTICLE 5 MISCELLANEOUS.

 

5.1.          Term. This Warrant will be exercisable in whole or in part at any time and from time to time on or before the Expiration Date.

 

5.2.          Automatic Cashless Exercise upon Expiration. In the event that, upon the Expiration Date, the fair market value of one Share as determined in accordance with Section 1.3 above is greater than the Warrant Price in effect on such date, then this Warrant shall automatically be deemed on and as of such date to be exercised pursuant to Section 1.3 above as to all Shares for which it shall not previously have been exercised.

 

5.3.          Legends. This Warrant and the Shares shall be imprinted with a legend in substantially the following form:

 

NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

 

5.4.          Compliance with Securities Laws on Transfer. This Warrant and the Shares issuable upon exercise of this Warrant may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). The Company shall not require Holder to provide an opinion of counsel if the transfer is to any affiliate of the Holder, provided that any such transferee is an “accredited investor” as defined in Regulation D under the Securities Act; provided, however, in any such transfer the transferee shall agree to be bound by the terms of this Warrant as if an original holder hereof. Additionally, the Company shall also not require an opinion of counsel if there is no material question as to the availability of Rule 144 promulgated under the Securities Act.

 

10

 

5.5.          Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by first-class registered or certified mail, postage prepaid (or on the first business day after transmission by facsimile), at such address as may have been furnished to the Company or the Holder, as the case may be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to the Holder shall be addressed as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:

 

Ginkgo Bioworks, Inc.

27 Drydock Avenue, 8th Floor

Boston, MA 02210

Attn: CEO

Attn: General Counsel

 

With a copy (which shall not constitute notice) to:

 

Latham & Watkins LLP

1000 Winter Street Suite 3700
Waltham, MA 02451
Attn:
Facsimile:

 

Notice to the Company shall be addressed as follows until the Holder receives notice of a change in address:

 

Amyris, Inc.
5885 Hollis Street, Suite 100

Emeryville, CA 94608

Attn: General Counsel

Facsimile:

 

With a copy (which shall not constitute notice) to:

 

Shearman & Sterling LLP

535 Mission Street, 25th Floor

San Francisco, CA 94105

Attn:

Facsimile:

 

11

 

 

5.6.          Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the parties against which enforcement of such change, waiver, discharge or termination is sought.

 

5.7.          Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.

 

5.8.          Amendment. This Warrant may be amended and the observance of any term of this Warrant may be waived only with the written consent of the Company and the Holder.

 

5.9.          Binding Effect. This Warrant shall be binding upon any successors or assigns of the Company.

 

5.10.       Governing Law. This Warrant, and the provisions, rights, obligations, and conditions set forth herein, and the legal relations between the parties hereto, including all disputes and claims, whether arising in contract, tort, or under statute, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to its conflict of law provisions.

 

ARTICLE 6 CERTAIN DEFINITIONS.

 

Bloomberg” means Bloomberg Financial Markets.

 

Principal Market” means The NASDAQ Stock Market.

 

Trading Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded; provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00 p.m., New York time).

 

“Marketable Securities” means securities meeting all of the following requirements: (i) the issuer thereof is then subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act and is then current in its filing of all required reports and other information under the Act and the Exchange Act; (ii) the class and series of shares or other security of the issuer that would be received by Holder in connection with the Acquisition were Holder to exercise this Warrant on or prior to the closing thereof is then traded in a trading market, and (iii) following the closing of such Acquisition, Holder would not be restricted from publicly re-selling all of the issuer’s shares and/or other securities that would be received by Holder in such Acquisition were Holder to exercise this Warrant in full on or prior to the closing of such Acquisition, except to the extent that any such restriction (x) arises solely under federal or state

securities laws, rules or regulations, and (y) does not extend beyond six (6) months from the closing of such Acquisition.

 

[Balance of Page Intentionally Left Blank]

 

12

 

 

    “COMPANY”
     
    Amyris, Inc.
     
     
    By:  /s/ John Melo
      John Melo, Chief Executive Officer
     
     
AGREED AND ACKNOWLEDGED:    
“HOLDER”    
     
Ginkgo Bioworks, Inc.    
     
     
(Signature)    
     
(Print Name)    
     
(Title)    

 

 

[Signature Page to Warrant]

 

 

 

    “COMPANY”
     
    Amyris, Inc.
     
     
    By: 
      John Melo, Chief Executive Officer
     
     
AGREED AND ACKNOWLEDGED:    
“HOLDER”    
     
Ginkgo Bioworks, Inc.    
     
By:   /s/ Jason Kelly    
  Jason Kelly, Chief Executive Officer    
   


 

 


[Signature Page to Warrant]

 

 

Exhibit A

 

EXERCISE NOTICE

 

TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE COMMON STOCK

 

AMYRIS, INC.

 

The undersigned holder hereby exercises the right to purchase _________________ of the shares of Common Stock (“Shares”) of Amyris, Inc., a Delaware corporation (the “Company”), evidenced by Warrant to Purchase Common Stock No. GW-1 (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.

 

1.        Form of Warrant Price. The Holder intends that payment of the Aggregate Warrant Price shall be made as:
     
          a “Cash Exercise” with respect to  
        Shares; and/or  
         
        a “Cashless Exercise” with respect to  
        Shares.  
           
2.        Payment of Warrant Price. In the event that the Holder has elected a Cash Exercise with respect to some or all of the Shares to be issued pursuant hereto, the Holder shall pay the Aggregate Warrant Price in the sum of $___________________ to the Company in accordance with the terms of the Warrant.
 
3.        Delivery of Shares. The Company shall deliver to Holder, or its designee or agent as specified below, __________ Shares in accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, as follows:
           
[_]   Check here if requesting delivery as a certificate to the following name and to the following address:
     
  Issue to:    
     
     
     
[_]   Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:
     
  DTC Participant:    
     
  DTC Number:  

 

 

 

           
  Account Number:         
     
     
Date:     
      
     
Name of Registered Holder  
   
By:   
  Name:  
  Title:  
     
  Tax ID:                                                            
  Facsimile:    
  E-mail Address:     
       

 

   

 

 

EX-10.01 3 exh_1001.htm EXHIBIT 10.01

Exhibit 10.01

 

 

 

FIRST ADDENDUM TO THE SHARE PURCHASE AND SALE AGREEMENT

 

 

 

of

 

 

 

SMA INDÚSTRIA QUÍMICA LTDA.

 

 

 

entered into by and among,

 

 

 

on one side,

 

 

 

SÃO MARTINHO S.A.

 

 

 

as Seller and,

 

 

 

on the other side,

 

 

 

AMYRIS BRASIL LTDA.

 

 

 

as Purchaser

 

 

 

and, as intervening consenting party,

 

 

 

SMA INDÚSTRIA QUÍMICA LTDA.

 

 

 

And

 

 

 

AMYRIS INC.

 

 

 

 

Dated September 1st, 2016.

 

FIRST ADDENDUM TO THE SHARE PURCHASE AND SALE AGREEMENT

 

By this instrument,

 

In the one side, as a seller:

 

1. SÃO MARTINHO S.A., Brazilian corporation, headquartered at Fazenda São Martinho, in the City of Pradópolis, State of São Paulo, enrolled with the Brazilian Taxpayer's Registry ("CNPJ/MF") under no 51.466.860/0001-56, herein represented in accordance with its By-laws (hereinafter referred to as "Seller");

 

In the other side, as purchaser:

 

2. AMYRIS BRASIL LTDA., Brazilian limited company, headquartered at Rua James Clerk Maxwell, 315, Techno Park, in the City of Campinas, State of São Paulo, Brazil, enrolled with CNPJ/MF under no 09.397.224/0001-20, herein represented in accordancy with its By-laws (hereinafter referred to as "Purchaser");

 

(Seller and Purchaser jointly referred to as "Parties" and, individually and generally referred to as "Party")

 

And, as intervening consenting party:

 

3. SMA INDÚSTRIA QUÍMICA LTDA., a Brazilian limited liability company, headquartered at Fazenda São Martinho, s/n, in the City of Pradópolis, State of São Paulo, enrolled with CNPJ/MF under no 12.065.083/0001-86, herein represented in accordance with its By-Laws ("Company").

 

4. AMYRIS INC., a company duly organized and existing in accordance with the laws of the State of Delaware, United States of America, with its principal place of business at 5885 Hollis Street, Suite 100, Emeryville, State of California, herein represented in accordance with its By-Laws (hereinafter referred to as "ABI").

 

Whereas:

 

I. the parties signed on August 31 date of 2015, the sale and purchase agreement ("Agreement") in which the Seller sold and transferred to the Purchaser the shares it held in the SMA INDÚSTRIA QUÍMICA LTDA.;

 

II. in the said contract among other obligations were established (i) deadlines to transfer of Purchaser's property assets located in the area of the Seller; (ii) as well as a rental contract for said area and through the same term of the transfer of those assets;

 

III. the parties have established a new deadline of 16 (sixteen) months to transfer the Purchaser's assets, which shall start on September, 1st of 2016.

 

The parties agree by mutual consent and in accordance with the legislation in force to establish this First Addendum to the Agreement of Sale and Purchase ("Addendum"), in accordance with the following terms and conditions:

 

1. The parties agree a new deadline specified in the II Agreement", section 6, clauses "6.1" and "6.2" as follow:

 

"6.1. transfer of assets. The Purchaser and ABI hereby undertake to transfer the assets located in the property to another location until December 31, 2017. The Purchaser, have already provided to Seller a schedule for the transfer of the assets, evidencing measures to adapt the transfer of the assets which will be concluded during said period. If the Purchaser and ABI fail to comply with their obligation set forth in the section 6.1, the Purchaser and the Company shall be subject to a penalty of R$1,500.00 (one thousand and five hundred reais) per day, without prejudice to the rental amount owed by the Company to the Seller and to any other measure that may be taken by Seller to guarantee the compliance by Purchaser and ABI of their obligation set forth herein.

 

 

6.2. Rental Agreement. The Parties, the Company and ABI expressly acknowledge that the lease provided for in the Rental Agreement, as amended, was agreed by the Parties, the Company and ABI in light of the JV and the Parties agreed to amend the term of the rental until December 31,2017 in order to allow the Company to transfer its Assets to other location. In this regard, the Parties hereby declare and agree that the lease contained in the Rental Agreement, as amended, will under no circumstances be subject to any renewal rights.”

 

2. All the remaining provisions of the "Agreement" that were not expressly amended or rectified hereby should remain valid and in force, being this Addendum an inseparable part of the Agreement.

 

 

In WITNESS WHEREOF, the Parties hereto have executed this Addendum as of the date first above written.

 

 

 

[Intentionally left blank]

 

 

 

(Signature page of the First Addendum To The Share Purchase And Sale Agreement entered on September 01st, 2016 by and between São Martinho S.A., Amyris Brazil Ltda., Amyris Inc. and SMA Industria Química LTDA.)

 

Seller:

 

SÃO MARTINHO S.A.

 

 

  /s/ ILLEGIBLE /s/ ILLEGIBLE  

 

 

Purchaser:

 

AMYRIS BRASIL LTDA.

 

 

  /s/ Eduardo Loosli /s/ Erica Baumgartner  
  Eduardo Erica B  

 

 

Intervening Consenting Parties:

 

AMYRIS INC.

 

 

  /s/ John Melo    
       

 

 

SMA INDÚSTRIA QUÍMICA LTDA.

 

 

  /s/ Eduardo Loosli /s/ Erica Baumgartner  
  Eduardo Erica B  

 

 

Witness:

 

 


EX-10.02 4 exh_1002.htm EXHIBIT 10.02

Exhibit 10.02

 

CONFIDENTIAL

 

 

 

 

 

 

 

      SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF

 

Novvi LLC

 

by and among

 

Amyris, Inc.,

 

Cosan US, Inc.,

 

American Refining Group, Inc.

 

and   Novvi LLC

 

 

 

 

dated as of July 19, 2016

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

TABLE OF CONTENTS

 

CONTENTS

 

Article I Defined terms 2
       
Section 1.01.   Certain Defined Terms. 2
       
Article II Formation, term, purpose and powers 11
       
Section 2.01.   Formation. 11
Section 2.02.   Name. 11
Section 2.03.   Term. 11
Section 2.04.   Principal Place of Business. 12
Section 2.05.   Title to Company Property. 12
Section 2.06.   Agent for Service of Process. 12
Section 2.07.   Purpose. 12
Section 2.08.   Powers of the Company. 12
Section 2.09.   Maintenance of Separate Existence. 12
Section 2.10.   Strategic Decisions. 13
Section 2.11.   Related Party Transaction. 13
Section 2.12.   Management Goals. 13
Section 2.13.   Conduct of Company Business. 13
Section 2.14.   No Personal Liability. 13
Section 2.15.   Admission of New Members. 13
Section 2.16.   Waiver of Fiduciary Duties; Corporate Opportunities. 14
       
Article III Representations and warranties of the members 15
       
Section 3.01.   Organization and Authority. 15
Section 3.02.   No Conflict. 15
Section 3.03.   Governmental Consents and Approvals. 15
       
Article IV Capital contributions and capital accounts 15
       
Section 4.01.   Capital Contributions. 15
Section 4.02.   Membership Units. 16
Section 4.03.   Additional Membership Units. 16
Section 4.04.   Funding Requirements; Additional Funding. 16
Section 4.05.   Status of Capital Contributions. 18
Section 4.06.   Capital Accounts. 19
       
Article V Board of managers; managers and officers 19
       
Section 5.01.   Management of the Company. 19
Section 5.02.   Board of Managers; Quorum Requirements. 19
Section 5.03.   Removal of Managers; Vacancies. 21
Section 5.04.   Frequency of Meetings; Notice of Meetings; Agenda. 21
Section 5.05.   Board of Managers Voting; Approval Matters. 22
Section 5.06.   Members’ Meetings; Notice; Agenda; Voting; Member Approval Matters. 23
Section 5.07.   Action by Written Consent. 25
Section 5.08.   Telephonic Meetings. 25
Section 5.09.   Company Minutes. 25

 

  i 
 

Section 5.10.   Manager Compensation and Reimbursement. 25
Section 5.11.   Audit Committee. 25
Section 5.12.   Officers. 25
Section 5.13.   Language. 28
Section 5.14.   D&O Insurance. 28
Section 5.15.   Subsidiaries. 28
Section 5.16.   Deadlock of Members or Managers. 28
       
Article VI Change of control event 31
       
Section 6.01.   Change of Control Event. 31
Section 6.02.   Change of Control Event Consequence. 31
       
Article VII Allocations; tax matters 31
       
Section 7.01.   Allocations. 31
Section 7.02.   Special Allocations. 32
Section 7.03.   Curative Allocations. 33
Section 7.04.   Tax Allocations. 33
Section 7.05.   Tax Matters. 34
       
Article VIII Distribution 35
       
Section 8.01.   Distribution. 35
Section 8.02.   Liquidation Distribution. 35
Section 8.03.   Distribution Rules. 35
Section 8.04.   Limitations on Distribution. 36
       
Article IX Books and records; financial statements 36
       
Section 9.01.   Books and Records; Financial Statements. 36
Section 9.02.   Reporting Requirements. 37
Section 9.03.   Access; Due Diligence. 38
Section 9.04.   Semi-Annual Updates to Members regarding Company BioFene Transformation Technology. 38
       
Article X Restrictions on transfer 38
       
Section 10.01.   Legends. 38
Section 10.02.   Restrictions on Transfer; Required Transfers. 39
Section 10.03.   Improper Transfer or Encumbrance. 42
Section 10.04.   Transferees to Execute Agreement. 42
       
Article XI dissolution, liquidation and termination 43
       
Section 11.01.   No Dissolution. 43
Section 11.02.   Events Causing Dissolution. 43
Section 11.03.   Notice of Dissolution. 43
Section 11.04.   Liquidation. 44
Section 11.05.   Termination of the Company. 45
Section 11.06.   Claims of the Members. 45

 

  ii 
 

Article XII Liability and indemnification 45
       
Section 12.01.   Liability of Members. 45
Section 12.02.   Indemnification of Covered Person. 45
Section 12.03.   Indemnification by the Company. 45
Section 12.04.   Advancement of Expenses. 47
       
Article XIII Exclusivity 47
       
Section 13.01.   Exclusivity. 47
Section 13.02.   Non-Solicitation. 48
       
Article XIV Miscellaneous 48
       
Section 14.01.   Confidential Information. 48
Section 14.02.   Notices. 49
Section 14.03.   Public Announcements. 50
Section 14.04.   Interpretation. 50
Section 14.05.   Severability. 50
Section 14.06.   Counterparts. 51
Section 14.07.   Entire Agreement. 51
Section 14.08.   Governing Law; Submission to Jurisdiction; Arbitration. 51
Section 14.09.   Specific Performance. 54
Section 14.10.   Expenses. 54
Section 14.11.   Amendments and Waivers; Assignment. 54
Section 14.12.   No Third Party Beneficiaries. 54
Section 14.13.   Headings. 55
Section 14.14.   Construction. 55
Section 14.15.   Further Assurances. 55

 

Schedule 2.01 List of Members and Addresses
Schedule 4.01(a) Prior Capital Contributions
Schedule 4.01(b) Holders of Membership Units
Exhibit A Member Certificate
Exhibit B Fair Market Value Methodology

 

 

  iii 
 

SECOND AMENDED AND RESTATED OPERATING AGREEMENT

 

OF

 

NOVVI LLC

 

This SECOND AMENDED AND RESTATED OPERATING AGREEMENT of Novvi LLC, a Delaware limited liability company (the “Company”), is made and effective as of July 19, 2016 (the “Effective Date”), among Amyris, Inc., a Delaware corporation (“Amyris”), Cosan US, Inc., a Delaware corporation (“Cosan US”), and American Refining Group, Inc., a Pennsylvania corporation (“ARG” and together with Amyris and Cosan US, each, a “Member” and collectively, the “Members”) and the Company (the “Agreement”).

 

WITNESSETH:

 

WHEREAS, Amyris and Cosan US formed the Company pursuant to and in accordance with the Delaware Limited Company Act, 6 Del. C. § 18-101, et seq. (as the same may be amended from time to time, the “Act”) and entered into an Agreement of Limited Liability Company of Novvi LLC on September 6, 2011, as the same was amended in October of 2011 (the “Original Operating Agreement”);

 

WHEREAS, Amyris, Cosan US and the Company executed and delivered an Amended and Restated Operating Agreement of the Company dated March 26, 2013 (the “First Amended and Restated Agreement”);

 

WHEREAS, in connection with formation of the Company, Amyris and Cosan US agreed to collaborate, through the Company, on the development, production, marketing and distribution of Base Oils, Additives, and Lubricants derived from BioFene (and possibly from other molecules and technologies) for use in the Lubricant Market (“Company Business”), all as further defined and described below;

 

WHEREAS, in pursuit of the Company Business, the Company and Amyris are parties to (i) that certain Amended and Restated IP License Agreement (as the same may be amended from time to time, the “IP License Agreement”), entered into on July 19, 2016 under which Amyris granted the Company certain rights under its intellectual property, including (a) the Expanded License and Rights under Amyris Base Technology and (b) a right of first offer with regard to Amyris’ Alternative Technology, to develop, make and sell Base Oils, Additives and Lubricants for the Lubricant Market, all as further described in the IP License Agreement; and (ii) that certain Farnesene Strain Escrow Agreement, entered into on July 19, 2016 under which Amyris has agreed to deposit into escrow intellectual property relating to the Amyris Base Technology, in accordance with the IP License Agreement.

 

WHEREAS, in pursuit of the Company Business, the Company and Cosan US are parties to that certain Cosan US Alternative Technology License Agreement, entered into on August 23, 2013 (as the same may be amended from time to time, the “Cosan US License Agreement”), under which Cosan US granted the Company a right of first offer with regard to Cosan US’s Alternative Technology to develop, make and sell Base Oils, Additives and Lubricants for the Lubricant Market, all as further described in the Cosan US License Agreement;

 

WHEREAS, in pursuit of the Company Business, effective on the Effective Date, the Company and ARG have entered into an Equity Purchase Agreement (the “Purchase Agreement”), pursuant to which ARG purchased that number of Membership Units specified therein, initially

 

representing a thirty-three and one-third percent (33 1/3%) interest in the Company as of the Effective Date, upon the terms and subject to the conditions set forth therein;

 

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WHEREAS, as contemplated by the Purchase Agreement and Section 2.15 of the First Amended and Restated Agreement, the Members and the Company now desire to enter into this Agreement to amend and restate in its entirety the First Amended and Restated Agreement and to memorialize the admission of ARG as a Member; and

 

WHEREAS, by executing and delivering this Agreement, the Company and each of the Members hereby (i) agree to amend and restate the terms of the First Amended and Restated Agreement as set forth herein, and that upon the effectiveness of this Agreement, the First Amended and Restated Agreement shall be superseded entirely by this Agreement and (ii) declare this Agreement to be the operating agreement of the Company for the purposes and upon the terms and conditions set forth herein;

 

NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members hereby agree as follows:

 

Article I
Defined terms

 

Section 1.01.        Certain Defined Terms. (a) Each of the following terms shall have the following meanings:

 

 

 

Additive” means any material added to a Base Oil to change its properties, characteristics, or performance (e.g., anti-foam, anti-wear, corrosion inhibitor, detergent, dispersant, pour point depressant, anti-oxidant, viscosity index improver, or friction modifier).

 

Adjusted Capital Account” means, with respect to each Member, the balance in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:

 

(i)                   Credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of each of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations); and

 

(ii)                 Debit to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the Regulations.

 

Adjusted Capital Account Deficit” means, with respect to each Member, the deficit balance, if any, in such Member’s Adjusted Capital Account as of the end of the relevant Fiscal Year.

 

Affiliate” means, as regards to a certain Person (a “First Person”), any Person who, directly or indirectly, through one or more intermediates, Controls the First Person, is Controlled by the First Person, or is under common Control with the First Person. Notwithstanding the preceding definition, for purposes of this Agreement, the Company is not considered an Affiliate of Amyris, Cosan US or ARG (or their respective Affiliates) nor are Amyris, Cosan US or ARG (or their respective Affiliates) considered Affiliates of the Company.

 

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Agreement” means this Second Amended and Restated Operating Agreement of Novvi LLC, as amended, modified, supplemented or restated from time to time.

 

Alternative Technology” means a technology (other than a BioFene-related technology) from a renewable source or a molecule (other than a BioFene-derived molecule) from a renewable source from which Base Oils or Additives, in each case, for the Lubricants Market could reasonably be expected to be developed or made.

 

Amyris BioFene Manufacturing Technology” means the Patents and Know-How that (i) are Controlled by Amyris and (ii) are necessary or reasonably useful for the development, making (and having made), offering for sale, sale, and importing of BioFene itself, including, but not limited to, BioFene Production Strains and any Patents and Know-How related to the genetic engineering of such BioFene Production Strains, the fermentation methods for making BioFene, the methods of recovery of BioFene from fermentation broth, the processes of isolating BioFene directly from fermentation broth, and the methods of purifying BioFene. The term “Amyris BioFene Manufacturing Technology” also includes any and all Joint BioFene Manufacturing Improvements (as defined in the IP License Agreement) and Novvi LLC BioFene Manufacturing Improvements (as defined in the IP License Agreement), but expressly excludes any Company BioFene Transformation Technology.

 

Asset Value” means, with respect to any asset, the asset’s adjusted basis for United States federal income tax purposes, except as follows:

 

(i)                   The initial Asset Value of any asset (other than cash) contributed by a Member to the Company shall be the gross fair market value of such asset (A) as set forth in Section 4.01(a)(i), or (B) if such asset is not listed in Section 4.01(a)(i), as agreed to by all of the Members;

 

(ii)                 The Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values as determined by agreement among all of the Members as of the following times: (a) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (b) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for an interest in the Company; or (c) the liquidation of the Company within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations, provided however, that adjustments pursuant to clauses (a) and (b) above shall be made only if all of the Members agree that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company; and

 

(iii)               The Asset Value of any Company asset distributed to any Member shall be the gross fair market value of such asset on the date of distribution, as determined by the agreement among all the Members.

 

If the Asset Value of an asset has been determined or adjusted pursuant to subparagraph (i) or (ii), such Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset.

 

Base Oil” means a fluid base compound to which other oils, Additives, or components are added to produce a Lubricant.

 

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Beneficial Owner” or “Beneficially Own” has the meaning given such term in Rule 13d-3 (or any successor provision) under the United States Securities Exchange Act of 1934, as amended.

 

BioFene” means farnesene produced through Amyris BioFene Manufacturing Technology.

 

Business Day” means any day, except a Saturday, Sunday or other day on which commercial banking institutions in the State of California in the United States of America and in the State of São Paulo in Brazil are authorized or directed by applicable Law or executive order to close.

 

Capital Account” means, with respect to any Member, the account maintained for such Member in accordance with the provisions of Section 4.06.

 

Capital Contribution” means, with respect to any Member, the aggregate amount of cash contributed to the Company and the Asset Value of any property (other than cash) contributed to the Company pursuant to Article IV. In the case of a Member that acquires an interest in the Company by virtue of an assignment or transfer in accordance with the terms of this Agreement, “Capital Contribution” means the Capital Contribution of such Member’s predecessor to the extent relating to the acquired interest.

 

Certificate” means the Certificate of Formation of the Company and any and all amendments thereto and restatements thereof filed on behalf of the Company with the Office of the Secretary of State of the State of Delaware pursuant to the Act.

 

Change of Control of Amyris” means any transaction (or a series of related transactions), as a result of which a Competitor of the Company becomes, direct or indirectly, the Controlling Person of Amyris.

 

Change of Control of Cosan US” means any transaction (or a series of related transactions) as a result of which a Competitor of the Company becomes, direct or indirectly, the Controlling Person of Cosan US.

 

Change of Control of ARG” means any transaction (or a series of related transactions), as a result of which a Competitor of the Company becomes, direct or indirectly, the Controlling Person of ARG.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time, or any corresponding United States federal tax statute enacted after the date of this Agreement. The reference to a specific section of the Code refers not only to such specific section but also to any corresponding provision of any United States federal tax statute enacted after the date of this Agreement, as such specific section or corresponding provision is in effect on the date of application of the provisions of this Agreement containing such reference.

 

Company BioFene Transformation Technology” means the Patents and Know-How in each case that (i) are Controlled by the Company as of March 26, 2013 or become Controlled by the Company during the term of Amyris’s license under Section 2.2 of the IP License Agreement (in each case other than Patents and Know-How licensed from Amyris) and (ii) are related to the chemical transformation of BioFene or a BioFene-derivative into another compound. For clarity, the term “Company BioFene Transformation Technology” does not include Novvi LLC Breach Inventions (as defined in the IP License Agreement).

 

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Competitor of the Company” means any Person that is engaged in the development, production, marketing and distribution of Base Oils, Additives or Lubricants for the Lubricants Market.

 

Control” means, when used with respect to any Person (“Controlled Person”), (i) the power, held by another Person, alone or together with other Persons bound by a voting or similar agreement (each a “Controlling Person”), to elect, directly or indirectly, the majority of the senior management and to establish and conduct the policies and management of the relevant Controlled Person; or (ii) the direct or indirect ownership by a Controlling Person and its Affiliates, alone or together with another Controlling Person and its Affiliates, of at least fifty percent (50%) plus one (1) share/quota representing the voting stock of the Controlled Person. In the context of Patents and Know-How, Control means rights under and to such Patents and Know-How held by a party, whether by ownership or license, sufficient to grant the applicable license or rights under the IP License Agreement without violating the terms of any arrangement with any Third Party. Terms derived from Control, such as “Controlled”, “Controlling” and “under common Control” shall have a similar meaning to Control.

 

Controlled Group Liability” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, (iv) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, or (v) under corresponding or similar provisions of foreign Laws under any employee benefit plan of the Company or its Affiliates.

 

Controlling Member” means a Member who owns more than fifty percent (50%) of the Membership Units of the Company.

 

Copyrights” means all copyrights, whether in published or unpublished works; databases, data collections and rights therein, mask work rights, software, web site content; rights to compilations, collective works and derivative works of any of the foregoing and moral rights in any of the foregoing; registrations and applications for registration for any of the foregoing and any renewals or extensions thereof; and moral rights and economic rights of others in any of the foregoing.

 

Covered Person” means a Member, any Affiliate of a Member, any officers, directors, Managers, shareholders, employees or partners or members of a Member, or its respective Affiliates or any Managers or Officers of the Company.

 

Deadlock Issue” means an issue or a matter with respect to which a decision is required to be made in order to (a) prevent the occurrence of an event that would reasonably be expected to have a Material Adverse Effect on the Company, (b) alleviate the effect on the business, assets, operations, results of operations or financial condition of the Company caused by such event such as to, to the extent possible, restore the Company to the state of affairs enjoyed by the Company immediately prior to the occurrence of such event, (c) avoid a material change in the state of affairs, business, corporate governance, assets, operations, results of operations or financial condition of the Company caused by such event, or (d) approve a Member Approval Matter, as set forth in Section 5.06(e) below, or a Board of Managers Approval Matter, as set forth in Section 5.05(a) below.

 

Depreciation” means, for each Fiscal Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for United States federal income tax purposes with respect to an asset for such Fiscal Year or other period; provided however, that if the Asset Value of an asset differs from its adjusted basis for

 

United States federal income tax purposes at the beginning of such Fiscal Year or other period, Depreciation shall be an amount that bears the same ratio to such beginning Asset Value as the United States federal income tax depreciation, amortization or other cost recovery deduction with respect to such asset for such Fiscal Year or other period bears to such beginning adjusted tax basis; and provided further that, if the United States federal income tax depreciation, amortization or other cost recovery deduction for such Fiscal Year or other period is zero, Depreciation shall be determined with reference to such beginning Asset Value using any reasonable method selected by the Members.

 

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Encumbrance” means any security interest, pledge, mortgage, lien, charge, adverse claim of ownership or use, or other encumbrance of any kind.

 

Expanded Licenses and Rights under Amyris Base Technology” means the licenses and related rights granted by Amyris to the Company in the IP License Agreement.

 

Fair Market Value” means the fair market value of the Company’s Membership Units, as calculated using the methodology set forth in Exhibit B to this Agreement.

 

Fiscal Year” means (i) the period commencing upon the formation of the Company and ending on December 31, 2011, (ii) any subsequent twelve-month period commencing on January 1 and ending on December 31, or (iii) any portion of the period described in clause (ii) of this sentence for which the Company is required to allocate Net Profits, Net Losses and other items of Company income, gain, loss or deduction pursuant to Article VII hereof.

 

GAAP” means United States generally accepted accounting principles as in effect from time to time.

 

Insolvency Event” means (i) an involuntary petition under any bankruptcy or insolvency law or under the reorganization provisions of any such law is filed with respect to a Member or a receiver of, or for, the property of a Member is appointed without the consent of such Member, which petition or appointment remains undischarged or unstayed for an aggregate period of ninety (90) days (whether or not consecutive); or (ii) a Member consents to the entry of an order for relief against it in an involuntary case under any bankruptcy or insolvency law or under the reorganization provisions of any such law; or (iii) a voluntary petition under any bankruptcy or insolvency law or under the reorganization provisions of any such law is filed by a Member, a voluntary assignment of a Member’s property for the benefit of creditors is made, or a receiver of, or for, the property of a Member is appointed by, or consented to, by such Member.

 

Know-How” means any non-patented information and tangible materials, including: (i) technical and non-technical data, specifications, formulae, compounds, formulations, assays, designs, results, information, conclusions, interpretations, inventions, developments, discoveries, ideas, improvements, and trade secrets, (ii) methods, databases, tests, procedures, processes, and techniques, (iii) Production Strains (if applicable), and (iv) other know-how and technology including Copyrights.

 

Law” means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order issued or promulgated by any national, supranational, state, United States federal, provincial, local or municipal government or any administrative or regulatory body with authority therefrom with jurisdiction over Company or the Members, as the case may be.

 

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Lubricant” means all substances introduced between two moving surfaces to reduce the friction between them, improving efficiency and reducing wear, or dissolving or transporting foreign particles, or distributing heat, in each case comprising a formulation of at least one Base Oil combined or blended with Additives, sold as a finished product for automotive and industrial applications, for use in, by way of example only: automotive, 2-cycle, marine and other engines, ship lubrication, hydraulic equipment, food processing equipment and machinery, and wind turbines, However, the term “Lubricants” expressly excludes drilling oils, fluids and muds, in accordance with the standards set by American Petroleum Institute.

 

Lubricants Market” means the worldwide market for automotive, commercial, and industrial Lubricants. For the avoidance of doubt, the following markets, but not limited to the following markets, are expressly excluded from the term “Lubricants Market”: the markets for flavors and fragrances, food additives, cosmetics and personal care, drilling oils, fluids and muds, fuels, cleaners, paints, coatings, ink, consumer-packaged goods, pesticides, and pharmaceuticals.

 

Majority Vote” means, with respect to any matter to be voted on, the written approval of, or the affirmative vote by, a majority of the Managers serving on the Board of Managers entitled to vote on such matter.

 

Material Adverse Effect” means any event, condition, change or effect that materially and adversely affect the business, assets, operations, results of operations or financial condition of the Company, taken as a whole.

 

Member” means any Person named as a member of the Company on Schedule 2.01 hereto and any Person admitted as an additional Member pursuant to the provisions of this Agreement, in each case, in such Person’s capacity as a member of the Company.

 

Membership Unit” means a limited liability company interest in the Company (not including any right to the return of Capital Contributions and any interest thereon) representing such fractional part of the interest of all unit holders pursuant to this Agreement as is equal to the quotient of one divided by the total number of Membership Units as evidenced by a certificate in the form of Exhibit A to this Agreement.

 

Net Profits” and “Net Losses” mean, for each Fiscal Year, an amount equal to the Company’s taxable income or loss for such Fiscal Year, determined in accordance with Section 703(a) of the Code (but including in taxable income or loss, for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code), with the following adjustments:

 

(i)                   any income of the Company exempt from United States federal income tax and not otherwise taken into account in computing Net Profits or Net Losses pursuant to this definition shall be added to such taxable income or loss;

 

(ii)                 any expenditures of the Company described in Section 705(a)(2)(B) of the Code (or treated as expenditures described in Section 705(a)(2)(B) of the Code pursuant to Regulation Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing Net Profits or Net Losses pursuant to this definition shall be subtracted from such taxable income or loss;

 

(iii)               in the event the Asset Value of any asset of the Company is adjusted in accordance with paragraph (ii) or paragraph (iii) of the definition of “Asset Value” above, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Profits or Net Losses;

 

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(iv)               gain or loss resulting from any disposition of any asset of the Company with respect to which gain or loss is recognized for United States federal income tax purposes shall be computed by reference to the Asset Value of the asset disposed of, notwithstanding that the adjusted tax basis of such asset differs from its Asset Value;

 

(v)                 in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year or other period, computed in accordance with the definition of “Depreciation” above; and

 

(vi)               any items which are specially allocated pursuant to Sections 7.02 and 7.03 shall not be taken into account in computing Net Profits or Net Losses.

 

The amounts of the items of Company income, gain, loss or deduction available to be specially allocated pursuant to Sections 6.02 and 6.03 shall be determined by applying rules analogous to those set forth in subparagraphs (i) through (v) above.

 

Patents” means any patents, patent applications, or certificates of invention, together with all additions, divisions, continuations, continuations-in-part, provisionals, converted provisionals, substitutions, reissues, re-examinations, revalidations, extensions, registrations, patent term extensions, supplemental protection certificates, renewals, and the like with respect to any of the foregoing.

 

Percentage Interest” means a fraction, the numerator of which shall be the aggregate number of Membership Units owned by such Member and the denominator of which shall be the total number of outstanding Membership Units of the Company.

 

Person” means any individual, corporation, partnership, limited partnership, limited partnership with share capital, limited liability company, Brazilian limited liability company (sociedade limitada), association, joint-stock company (sociedade por ações), joint venture, other legal entity, trust, unincorporated or governmental organization or any agency or political subdivision thereof.

 

Production Strain” means recombinant yeast or some other microbial agent that has been genetically engineered to make a desired compound or product by means of a fermentation process.

 

Regulations” means the income tax regulations, including temporary regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

 

Related Party Transaction” means any deal, operation, transaction and/or business relationship between, on one side, the Company or a Person Controlled by the Company and, on the other side, a Member or any Affiliate of such Member, or their respective officers, directors, managers or relatives up to three degrees of relationship separation.

 

Restricted Membership Units” means all Membership Units other than (a) Membership Units that have been registered under a registration statement pursuant to the Securities Act, (b) Membership Units with respect to which a Transfer has been made in reliance on and in accordance with Rule 144 or (c) Membership Units with respect to which the holder thereof shall

 

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have delivered to the Company either (i) an opinion, in form and substance reasonably satisfactory to the Company, of counsel, who shall be reasonably satisfactory to the Company, or (ii) a “no action” letter from the staff of the United States Securities and Exchange Commission, to the effect that subsequent transfers of such Membership Units may be effected without registration under the Securities Act or in compliance with Rule 144.

 

Revised Partnership Audit Procedures” means the provisions of Subchapter C of Subtitle A, Chapter 63 of the Code, as amended by P.L. 114 74, the Bipartisan Budget Act of 2015 (together with any subsequent amendments thereto, treasury regulations promulgated thereunder, published administrative interpretations thereof, any guidance issued thereunder and any successor provisions) or any similar procedures established by a state, local, or non-U.S. taxing authority.

 

Rule 144” means Rule 144 (or any successor provision) under the Securities Act.

 

Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

Subsidiary” or “Subsidiaries” of any Person means any corporation, partnership, limited partnership, limited partnership with share capital, limited liability company, Brazilian limited liability company (sociedade limitada), association, joint-stock company (sociedade por ações), joint venture or other legal entity of which such Person (either alone or through or together with any other Subsidiary), owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

 

Transfer” means, in respect of any Membership Unit, property or other asset, any direct or indirect transfer, sale, assignment, exchange, donation, lease, abandonment or other disposition of any kind, voluntary or involuntary, contingent or non-contingent, including any direct or indirect transfer, sale, assignment, exchange, donation, lease, abandonment or other disposition of any kind that results from the foreclosure of any Encumbrance.

 

Transferee” means any Person that is a transferee of a Member’s interest in the Company, or part thereof.

 

Third Party” means any Person, except for the Company, the Members and their respective Affiliates or their respective permitted successors and assigns.

 

Trigger Event” means the Company’s delivery to ARG, following a payment default by ARG under the terms of Section 1.3 of the Purchase Agreement and with approval by a Majority Vote of only the Amyris Managers and Cosan Managers, of written notice that the Company elects to declare an uncured Unpaid Contribution (as defined in the Purchase Agreement) by ARG as no longer curable, in which event ARG shall be subject to the consequences set forth in Section 2.17 below.

 

(b)                The following terms have the meanings set forth in the Section set forth opposite such term:

 

Term Section
Act Recitals
Amyris Preamble
Amyris Managers 5.02(a)

 

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Term Section
Applicable Deadlock Issue 5.16(d)
Appraisers Exhibit B
Arbitration Chamber 14.08(b)
Arbitration Rules 14.08(b)
Arbitration Tribunal 14.08(c)
ARG Preamble
ARG Initial Capital Contribution 4.01(b)
ARG Managers 5.02(a)
Board of Managers Approval Matter 5.05(a)
Capital Call 4.04(c)
Chair 5.02(a)
Change of Control Event 6.01(a)
Company Preamble
Company Business Recitals
Confidential Information 14.01(a)
Corporate Opportunities Group 2.16(a)(i)
Cosan US Preamble
Cosan US License Agreement Recitals
Cosan US Managers 5.02(a)
Deadlock 5.16(a)
Deadlock Mediation Period 5.16(e)
Deadlock Notice 5.16(a)
Deadlock Question 5.16(c)
Declaration 5.16(d)
Declaring Member 5.16(c)
Deciding Members 5.16(f)
Disclosing Party 14.01(a)
Effective Date Preamble
Employee Units 4.02(b)
Exercise Date 11.01(a)
First Amended and Restated Agreement Recitals
Former Member 11.04(a)
Initiating Member 5.16(f)
IP License Agreement Recitals
Liquidating Trustee 11.05
Losses 12.02
Manager 5.02(a)
Mediator 5.16(e)
Member Approval Matter 5.06(e)
Negotiation Period 5.16(d)
Non Cash Consideration 10.02(c)(ii)
Officers 5.12(a)
Offer Notice 5.16(f)
Original Operating Agreement Recitals
President 5.12(a)
Prior Capital Contributions 4.01(a)
Prospective Transferee 10.04
Purchase Agreement Recitals

 

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Term Section
Receiving Party 14.01(a)
Regulatory Allocations 7.03
Representatives 14.01(a)
Response Notice 5.16(f)
Right of First Refusal 10.02(c)
ROFR Notice 10.02(c)
Sale Notice 10.02(c)
Selected Arbitration 14.08(h)
Selling Member 10.02(c)
Sole Appraiser Exhibit B
Tag Along Notice 10.02(c)
Tag Along Right 10.02(c)
Tax Matters Partner 7.05(c)
Termination Date 5.16(f)
Third Appraiser Exhibit B

 

 

Article II
Formation, term, purpose and powers

 

Section 2.01.        Formation. (a) The Members hereby confirm the formation of the Company as a Delaware limited liability company under and pursuant to the provisions of the Act and all other pertinent Laws of the State of Delaware for the purposes and upon the terms and conditions hereinafter set forth. The parties hereto agree that their rights, duties and liabilities and the rights, duties and liabilities of any additional Member admitted to the Company in accordance with the terms hereof, shall be as provided in the Act, except as otherwise provided herein.

 

(b)                The name and mailing address of each Member shall be listed on Schedule 2.01 attached hereto. Each of the Members is hereby admitted as a Member of the Company. Additional Members shall be admitted as Members of the Company in accordance with Section 2.11. The President, or a designee of the President, shall be required to update Schedule 2.01 from time to time, as necessary to reflect accurately the information therein as known by the President, but no such update shall modify Schedule 2.01 in any manner inconsistent with this Agreement or the Act. Any amendment or revision to Schedule 2.01 made in accordance with this Agreement shall not be deemed an amendment to this Agreement for purposes of Section 13.13. Any reference in this Agreement to Schedule 2.01 shall be deemed to be a reference to Schedule 2.01, as amended and in effect from time to time.

 

(c)                 The President, together with at least one other Officer of the Company, shall be designated as authorized persons, within the meaning of the Act, to execute, deliver and file, or to cause the execution, delivery and filing of, any amendments or restatements of the Certificate and any other certificates, notices, statements or other instruments (and any amendments or restatements thereof) necessary or advisable for the formation of the Company or the operation of the Company in all jurisdictions where the Company may elect to do business, but no such amendment, restatement or other instrument may be executed, delivered or filed unless adopted by the Members in a manner authorized by Section 5.06(e) this Agreement.

 

Section 2.02.        Name. The name of the Company is Novvi LLC. The Company Business may not be conducted under any other name unless the Members expressly agree in writing.

 

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Section 2.03.        Term. The term of the Company commenced, and the Certificate was filed in the Office of the Secretary of State of the State of Delaware, on September 6, 2011, and the Company shall continue for any term set forth from time to time in the Certificate, subject to the provisions set forth in Article XI and applicable Law. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate in the manner required by the Act.

 

Section 2.04.        Principal Place of Business. The principal place of business of the Company shall be located at 5885 Hollis Street, Emeryville, CA 94608, or such other place as the Board of Managers may determine from time to time per Section 5.05, and the Company shall have other regional offices and operations as the Board of Managers may determine from time to time per Section 5.05.

 

Section 2.05.        Title to Company Property. Any property of the Company, whether real, personal or mixed, tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Member, individually, shall have any direct ownership interest in such property.

 

Section 2.06.        Agent for Service of Process. The Company’s registered agent for service of process in the State of Delaware shall be as set forth in the Certificate, as the same may be amended by the Members from time to time per Section 5.06(e).

 

Section 2.07.        Purpose. The purpose of the Company is to engage in the Company Business.

 

Section 2.08.        Powers of the Company. Subject to the limitations set forth in this Agreement, the Company will possess and may exercise all of the powers and privileges granted to it by the Act, by any other applicable Law or this Agreement, together with all powers incidental thereto, so far as such powers are necessary or convenient to the conduct, promotion or attainment of the purpose of the Company set forth in Section 2.07.

 

Section 2.09.        Maintenance of Separate Existence. (a) The Company shall do all things necessary to maintain its limited liability company existence separate and apart from each Member and any Affiliate of any Member, including holding regular meetings of the Members and maintaining its books and records on a current basis separate from that of any Affiliate of the Company or any other Person, and shall not commingle the Company’s assets with those of any Affiliate of the Company or any other Person. In furtherance, and not in limitation, of the foregoing, the Company shall not:

 

(i)                   Authorize or permit any Person other than the Board of Managers and the Officers as provided herein, to act on its own behalf with respect to matters (other than matters customarily delegated to others under powers of attorney) for which a limited liability company’s members or managing member would customarily be responsible;

 

(ii)                 Fail (A) to maintain or cause to be maintained by an agent under the Company’s control physical possession of all its books and records, (B) to maintain capitalization adequate for the conduct of its business, (C) to account for and manage all of its liabilities separately from those of any other Person, including payment by it of administrative expenses and taxes, other than income taxes, from its own assets, or (d) to identify or cause to be identified separately all of its assets from those of any other Person;

 

(iii)               Commingle, or permit the commingling of, its funds with the funds of any Member or any Affiliate of any Member or use its funds for other than the Company’s uses; or

 

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(iv)               Maintain, or permit the maintenance of, joint bank accounts or other depository accounts to which any Member would have independent access.

 

Section 2.10.        Strategic Decisions. The Company’s strategic decisions shall always take into account the Company’s best interests, with the purpose of (a) providing the Members with the best possible sustainable return on their investments and (b) achieving the goals and objectives set forth in any approved business plan.

 

Section 2.11.        Related Party Transaction. Any Related Party Transaction shall be carried out on an arms’ length basis under terms and conditions consistent to those that such parties would be offered in case such transaction were carried out with Third Parties, without conflict of interest and in the best interests of the Company and its Subsidiaries. Notwithstanding any provision in this Agreement to the contrary, if the Board of Managers has been called upon to consider a Related Party Transaction, any Manager may request that the Manager(s) appointed by any Member with an interest in such Related Party Transaction recuse himself or herself from all Board of Managers’ discussions, activities, and voting relating to such Related Party Transaction. All approvals, modifications, or terminations of a Related Party Transaction must be approved by a majority vote of all of the unconflicted Managers before the Company may proceed.

 

Section 2.12.        Management Goals. The Managers and Officers of the Company and its Subsidiaries shall be instructed, subject to any applicable fiduciary duties of Officers under applicable Delaware Law, to use their best efforts in pursuing return over capital employed, efficiency, productivity, safety and competitiveness with respect to the activities of the Company and its Subsidiaries.

 

Section 2.13.        Conduct of Company Business. The Company, its Subsidiaries, and its and their respective Managers, directors, Officers, agents, employees and any other Person acting on behalf of the Company or any of its Subsidiaries shall not, under any circumstances and for any reason whatsoever, engage in any illegal or unlawful business conduct, and the Company shall use its reasonable best efforts — and cause its Subsidiaries to use their reasonable best efforts − to maintain good labor, social and environmental standards, in the conduct of the Company Business.

 

Section 2.14.        No Personal Liability. Except as provided by the Act, no Member or any Manager shall be personally liable for any obligations of the Company and except as specifically provided in Article IV, no Member shall have any obligation or be required to make any Capital Contribution or loan or otherwise advance any funds to the Company.

 

Section 2.15.        Admission of New Members. (a) New Members shall be admitted to the Company, subject to the terms of this Section 2.15, only with the approval of Members representing at least seventy-five percent (75%) of the Membership Units and on terms and conditions which are consistent with this Agreement (including without limitation any applicable restrictions on transfer set forth in Article X), the Certificate, the Act and any applicable Law. Any such new Members shall execute and deliver to the Company a joinder agreement in a form to be supplied by the Company (a “Joinder Agreement”), and shall obtain Membership Units and shall participate in the management, profits, losses, and distributions of the Company on such terms and with such amendments to this Agreement as are approved by the affirmative vote of the existing Members representing at least seventy-five percent (75%) of the Voting Membership Units. Any such new Member shall be deemed a “Member” for purposes of this Agreement and shall have the rights and be subject to the obligations of a Member under this Agreement with respect to the Membership Units owned by such new Member.

 

(b)                A Transferee will be admitted as a substitute Member only if the Transfer to the Transferee is made in compliance with all the requirements of Article X (including, but not limited to, the

 

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requirement that such Transferee becomes a party to this Agreement) and the Transferee complies with all of the terms of this Agreement applicable to it.

 

Section 2.16.        Waiver of Fiduciary Duties; Corporate Opportunities. (a) This Agreement is not intended to, and does not, create or impose any fiduciary duty on any of the Members hereto or their respective Affiliates or designated Managers. Further, the Members hereby waive any and all fiduciary duties that, absent such waiver, may be implied by applicable Law, and in doing so, recognize, acknowledge and agree that their duties and obligations to one another and to the Company are only as expressly set forth in this Agreement. Additionally, each Member acknowledges that the other Members and the Affiliates of such Members own and/or manage other businesses, including businesses that may compete with the Company, the other Members or the Affiliates of such other Members. Without any accountability to the Company or any Member by virtue of this Agreement (other than obligations in Section 14.01):

 

(i)                   Each Member and its Affiliates, and their respective officers, directors, shareholders, partners, members, agents and employees, and each Manager designated by such Member (collectively, a “Corporate Opportunities Group”), shall not in any way be prohibited or restricted from engaging or investing in, independently or with others, any business opportunity of any type or description, including, without limitation, those business opportunities that might be the same or similar to the Company Business;

 

(ii)                 Neither the Company nor any Member or such Member’s Corporate Opportunities Group shall have any right in or to such other business opportunities of any other Member or such Member’s Corporate Opportunities Group or to the income or proceeds derived therefrom;

 

(iii)               No Member or its Corporate Opportunities Group shall be obligated to present any business opportunity to the Company or any other Member or such other Member’s Corporate Opportunities Group, even if the opportunity is of the character that, if presented to the Company, could be taken by the Company, or if presented to any other Member or other Member’s Corporate Opportunities Group, could be taken by such Persons; and

 

(iv)               Each Member and its Corporate Opportunities Group shall have the right to hold any such business opportunity for its own account or to recommend such opportunity to Persons other than the Company, any other Member, or any Person in such other Member’s Corporate Opportunities Group.

 

(b)                Notwithstanding the foregoing, nothing in this Section 2.16 shall alter or amend the rights and obligations of the Company, Amyris and its Affiliates, or Cosan US and its Affiliates under Article 3 of the IP License Agreement (including with respect to the Company’s right of first offer regarding Amyris’ Alternative Technology), the Cosan US License Agreement (including with respect to the Company’s right of first offer to Cosan US’s Alternative Technology), or in Section 13.1 of this Agreement (with respect to Exclusivity).

 

2.17       Trigger Event Consequence. If, following a Trigger Event, ARG continues to hold at least twenty-eight percent (28%) of the Membership Units, the Parties agree that, following a Trigger Event, ARG shall be accorded the same status, solely for purposes of Sections 5.02(a), 5.02(d), 5.02(e), 5.05, 5.06(c) and 5.16(f) of this Agreement, as a Member holding less than twenty-eight percent (28%) of the Membership Interests. In addition, in such event this Agreement shall be deemed automatically amended, without further action of the Members (who by execution of this Agreement hereby consent to such amendment), to substitute “sixty-eight percent (68%)” in place of each reference

 

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herein to “seventy-five percent (75%)” as it relates to the affirmative vote of Members required to approve certain matters as provided in Sections 2.15(a), 5.06(e) and 7.05(c) of this Agreement. The Trigger Event consequences described herein are in addition to any Trigger Event consequences set forth in the Purchase Agreement.

 

Article III
Representations and warranties of the members

 

Each Member severally, but not jointly, represents and warrants to the Company and each other Member as follows:

 

Section 3.01.        Organization and Authority. To the extent such Member is not a natural person, it is duly incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to perform the actions contemplated hereby. Such Member is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the properties owned or leased by it or the operation of its business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed or qualified would not prevent or materially hinder the performance of the actions contemplated by this Agreement. The execution and delivery of this Agreement by such Member, the performance by it of its obligations hereunder and the performance by it of the actions contemplated hereby have been duly authorized by all requisite action on its part. This Agreement has been duly executed and delivered by such Member, and (assuming due authorization, execution and delivery by the other Persons signatory hereto) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms.

 

Section 3.02.        No Conflict. The execution, delivery and performance of this Agreement by such Member do not and will not (a) violate, conflict with or result in the breach of any provision of its charter or by-laws (or similar organizational documents), to the extent it has such, (b) conflict with or violate any Law, governmental regulation or governmental order applicable to such party or any of its assets, properties or businesses or (c) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights pursuant to, any contract, agreement or arrangement, whether among the Members or otherwise, by which such party is bound, except to the extent that any conflict under (b) or (c) above would not prevent or materially hinder the performance of the actions contemplated by this Agreement.

 

Section 3.03.        Governmental Consents and Approvals. The execution, delivery and performance of this Agreement by such party do not and will not require any consent, approval, authorization or other order of, action by, filing with or notification to, any governmental authority.

 

Article IV
Capital contributions and capital accounts

 

Section 4.01.        Capital Contributions.

 

(a)                 Schedule 4.01(a) sets forth the Capital Contributions made to the Company by each of Amyris and Cosan US as of the Effective Date, which (i) with respect to Amyris, shall include the unpaid principal and interest accrued under the notes and the deferred payables converted into Units pursuant to the Loan Conversion Agreement by and between Amyris and the Company, dated July 19, 2016; and (ii) with respect to Cosan US, shall include the unpaid principal and interest under the notes converted into Units pursuant to the Loan Conversion Agreement by and between Cosan US and the Company, dated July 19, 2016 (the “Prior Capital Contributions”).

 

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(b)                Concurrently with the execution of this Agreement and in accordance with the Purchase Agreement, ARG will contribute to the Company as its initial Capital Contribution the amount set forth in the Purchase Agreement, subject to the terms and conditions of the Purchase Agreement (the “ARG Initial Capital Contribution”). As a result of the Prior Capital Contributions and the ARG Initial Capital Contribution, as of the Effective Date the Members will hold an interest in the Company represented by the Membership Units set forth opposite such Member’s name on Schedule 4.01(b).

 

Section 4.02.        Membership Units. All Membership Units shall have identical rights in all respects as all other Membership Units except as otherwise specified in this Agreement. Each Member hereby agrees that its interest in the Company and in its Membership Units shall for all purposes be personal property. The Members agree that, within ninety (90) days after the Effective Date, to discuss, agree upon, and implement a performance incentive plan for Company employees involving granting a non-voting, economic interest in the Company in an aggregate amount equivalent to up to seven percent (7%) of the Company’s outstanding Membership Units.

 

Section 4.03.        Additional Membership Units. In the event (i) additional Membership Units shall be issued to a Member or to any other Person or (ii) Membership Units are sold or Transferred to another Member or any other Person (subject to the restrictions and provisions of this Agreement) and such Person shall be admitted as a Member in accordance with Section 2.15, the President shall amend Schedule 2.01 accordingly. Any Capital Contribution to be made by such Person in exchange for Membership Units shall be subject to the restrictions and provisions of this Agreement and in the form and amount determined by the Members per Section 5.06(e), and the amount of such Capital Contribution, if any, shall be credited to such Person’s Capital Account.

 

Section 4.04.        Funding Requirements; Additional Funding.

 

(a)                 In the event that the Board of Managers determines, at any time, that additional capital is required to support the operations of the Company, such capital will be obtained through any one or a combination of the following means (in no particular order), at the election of the Board of Managers, in each case subject to any applicable approval requirement set forth in this Agreement including without limitation the approval of the Members with respect to financing obtained through (i), (ii), and (iii) below as required under Section 5.06(e)(i):

 

(i)                   cash advances or other credit or loan facilities provided by the Members or their Affiliates;

 

(ii)                 additional cash Capital Contributions by the Members; or

 

(iii)               revolving credit or other loan facilities provided by unrelated Persons (such as banks).

 

(b)                In the event that such additional Member approved capital raise under Section 4.04(a) is to be obtained in the form of cash advances or other credit or loan facilities provided by a Member, the Company shall notify the Members of the advances to be made or other credit or loan facilities to be provided pursuant to Section 4.04(a) by delivering a written notice to the Members in accordance with Section 14.02 specifying (i) the aggregate amount of cash advances or other credit or loan facilities required at such time and (ii) the amount of cash advances to be made or loan or credit facilities to be provided by the Member, which amount shall be the product of (A) the aggregate amount of cash advances or other credit or loan facilities to be made and (B) such Member’s Percentage Interest. The cash advances to be made by each Member shall be made in immediately available funds by wire transfer or other similar means to a bank account designated by the Company in such notice prior to the close of business on the tenth Business Day following the date of delivery of such notice.

 

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Notwithstanding anything in this Agreement to the contrary, neither Amyris nor Cosan nor ARG shall be required to make a cash advance or other credit or loan facility absent its written consent thereto.

 

(c)                 In the event that such additional Member approved funding pursuant to Section 4.04(a) is to be made in the form of additional Capital Contributions by the Members (a “Capital Call”), the Members satisfying such Capital Call shall receive additional Membership Units at a price per Membership Unit equal to the Fair Market Value of the Membership Units. The Company shall notify each Member of the Capital Call to be made pursuant to Section 4.04(a) by delivering written notice to each Member in accordance with Section 14.02 specifying (i) the aggregate amount of the Capital Call required at such time and (ii) the amount of the Capital Call to be provided by such Member, which amount shall be the product of (A) the aggregate amount of the Capital Call to be made and (B) such Member’s Percentage Interest. In the event a Member is authorized by the Capital Call to satisfy its share of such Capital Call in the form of assets (instead of cash), the value of such additional Capital Contribution shall be deemed to be the fair market value of such assets as determined per clause (i) of the definition of Asset Value. Notwithstanding anything in this Agreement to the contrary, neither Amyris nor Cosan nor ARG (except, with regard to ARG, as required by the Purchase Agreement) shall be required to make a Capital Contribution absent its written consent thereto.

 

(d)                Any written notice delivered by the Company to the Members pursuant to this Section 4.04 shall specify, in addition to the information otherwise required, the date on which any advance, other credit support or Capital Call is due, account numbers for the wire transfer of cash amounts and any other information the Company determines.

 

(e)                 Notwithstanding anything to the contrary set forth herein, any (i) cash advances or other credit or loan facilities provided by the Members or their Affiliates or (ii) additional cash or non-cash Capital Contributions by the Members contemplated herein in connection with the funding of the Company shall be made by each Member at the same time, on the same terms, in the same manner and in the same proportion as each other Member, based on such Member’s Percentage Interest as contemplated in this Section 4.04.

 

(f)                 Amyris and the Company entered into a Renewable Farnesene Supply Agreement, dated July 19, 2016 (as amended from time-to-time, the “Supply Agreement”), under which the Company can purchase farnesene from Amyris.  The Members and the Company agree that the Sales Losses (as defined in Section 2.2(b) of the Supply Agreement) incurred by Amyris under the Supply Agreement will be credited, at Amyris’s election, either to Amyris’s Capital Account or against any Member cash advance, credit or loan facility, or other Capital Contribution obligation Amyris may have under this Agreement; provided that, if Amyris elects to credit Sales Losses to its Capital Account such credit will not result in the issuance of additional Membership Units to Amyris or otherwise increase its Percentage Interest and will not trigger any obligation by the other Members to match this credit by making a Capital Contribution under Section 4.04(e) hereof. 

 

(g)                 The Members and the Company contemplate that ARG and ARG personnel will provide services to the Company from time to time, subject to a written services agreement(s) between ARG and the Company that has been approved by the Board of Managers per Section 2.11, and in connection therewith will incur unreimbursed direct costs and out-of-pocket expenses described and authorized in such approved agreements creditable under this subsection (“ARG Costs”). Within fifteen (15) days following the end of each calendar quarter, ARG will provide the Board of Managers with a detailed, itemized report of ARG Costs incurred during the preceding quarter per each service agreement. Absent objection by any Manager within thirty (30) days following receipt of a report, the ARG Costs set forth in such report shall be deemed approved. The Members and the Company further agree that the approved ARG Costs will be credited, at ARG’s election, either to ARG’s Capital Account or against any

 

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Member cash advance, credit or loan facility, or other Capital Contribution obligation ARG may have under this Agreement; provided that, if ARG elects to credit ARG Costs to its Capital Account such credit will not result in the issuance of additional Membership Units to ARG or otherwise increase its Percentage Interest and will not trigger any obligation by the other Members to match this credit by making a Capital Contribution Section 4.04(e) hereof.  The maximum aggregate ARG Costs creditable under this subsection is $1,000,000.

 

(h)                The Members and the Company contemplate that Cosan and Cosan personnel will provide services to the Company from time to time, subject to a written services agreement(s) between Cosan and the Company that has been approved by the Board of Managers per Section 2.11, and in connection therewith will incur unreimbursed direct costs and out-of-pocket expenses described and authorized in such approved agreements creditable under this subsection (“Cosan Costs”). Within fifteen (15) days following the end of each calendar quarter, ARG will provide the Board of Managers with a detailed, itemized report of Cosan Costs incurred during the preceding quarter per each service agreement. Absent objection by any Manager within thirty (30) days following receipt of a report, the Cosan Costs set forth in such report shall be deemed approved. The Members and the Company further agree that the approved Cosan Costs will be credited, at Cosan’s election, either to Cosan’s Capital Account or against any Member cash advance, credit or loan facility, or other Capital Contribution obligation Cosan may have under this Agreement; provided that, if Cosan elects to credit Cosan Costs to its Capital Account such credit will not result in the issuance of additional Membership Units to Cosan or otherwise increase its Percentage Interest and will not trigger any obligation by the other Members to match this credit by making a Capital Contribution Section 4.04(e) hereof.  The maximum aggregate Cosan Costs creditable under this subsection is $1,000,000.

 

(i)                  The Members and the Company contemplate that Amyris and Amyris personnel will provide services to the Company from time to time, subject to a written services agreement(s) between Amyris and the Company that has been approved by the Board of Managers per Section 2.11, and in connection therewith will incur unreimbursed direct costs and out-of-pocket expenses described and authorized in such approved agreements creditable under this subsection (“Amyris Costs”). Within fifteen (15) days following the end of each calendar quarter, Amyris will provide the Board of Managers with a detailed, itemized report of Amyris Costs incurred during the preceding quarter per each service agreement. Absent objection by any Manager within thirty (30) days following receipt of a report, the Amyris Costs set forth in such report shall be deemed approved. The Members and the Company further agree that the approved Amyris Costs will be credited, at Amyris’s election, either to Amyris’s Capital Account or against any Member cash advance, credit or loan facility, or other Capital Contribution obligation Amyris may have under this Agreement; provided that, if Amyris elects to credit Amyris Costs to its Capital Account such credit will not result in the issuance of additional Membership Units to Amyris or otherwise increase its Percentage Interest and will not trigger any obligation by the other Members to match this credit by making a Capital Contribution Section 4.04(e) hereof.  The maximum aggregate Amyris Costs creditable under this subsection is $1,000,000. For clarity, this subsection (i) does not apply to either the IP License Agreement or to the Supply Agreement.

 

Section 4.05.        Status of Capital Contributions. (a) No Member shall receive any interest, salary or drawing with respect to its Capital Contributions or its Capital Account or, except pursuant to any Related Party Transaction between the Company and a Member that is in writing and approved by the Board of Managers as expressly provided herein, for services rendered on behalf of the Company or otherwise in its capacity as a Member. Except as otherwise expressly provided herein, no Member will be permitted to borrow, make an early withdrawal of, or demand or receive a return of any Capital Contributions. Under circumstances requiring a return of any Capital Contributions, except as otherwise expressly provided in this Agreement, no Member will have the right to receive property other than cash.

 

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(b)                Except as otherwise provided herein, the Members shall be liable only to make their Capital Contributions pursuant to this Article IV, and no Member shall be required to lend any funds to the Company or, after a Member’s Capital Contributions have been fully paid pursuant to this Article IV, to make any additional capital contributions to the Company. No Member shall have any personal liability for the repayment of any Capital Contribution of any other Member or Transferee. A Member’s obligation to contribute capital to the Company is conditional; payable only to the extent, and only in such amounts, required to be paid to the Company pursuant to this Agreement. Notwithstanding any other provision in this Agreement, the obligations of the Members pursuant to this Section 4.05 shall not be, and shall not be deemed to be, a guaranty, maintenance agreement or other similar agreement, or under any circumstances utilized to satisfy the general obligations and liabilities of the Company.

 

Section 4.06.        Capital Accounts. (a) An individual Capital Account shall be established and maintained for each Member.

 

(b)                The Capital Account of each Member shall be maintained in accordance with the following provisions:

 

(i)                   to each Member’s Capital Account there shall be credited all such Member’s Capital Contributions (including all Prior Capital Contributions), such Member’s distributive share of Net Profits, any items in the nature of income or gain that are specially allocated to such Member pursuant to Article VII and the amount of any Company liabilities that are assumed by such Member or that are secured by any Company assets distributed to such Member;

 

(ii)                 to such Member’s Capital Account there shall be debited the amount of cash and the Asset Value of any Company assets distributed to such Member pursuant to any provision of this Agreement, such Member’s distributive share of Net Losses, any items in the nature of deductions or losses that are specially allocated to such Member pursuant to Article VII and the amount of any liabilities of such Member that are assumed by the Company or that are secured by any property contributed by such Member to the Company;

 

(iii)               in the event all or some of a Member’s interest in the Company is sold in accordance with Article X, the Transferee shall succeed to the Capital Account of the assignor to the extent it relates to the transferred interest; and

 

(iv)               no Member shall be required to pay to the Company or to any other Member or Person any deficit in such Member’s Capital Account upon dissolution of the Company or otherwise.

 

Article V
Board of managers; managers and officers

 

Section 5.01.        Management of the Company. The management of the Company shall be vested exclusively in the Board of Managers (the “Board of Managers”), which may from time to time by resolution delegate authority to the Officers pursuant to Section 5.12, to act on behalf of the Company. Except as otherwise agreed by the Members, no Member shall have any right or authority to take any action on behalf of the Company or to bind or commit the Company with respect to Third Parties or otherwise. Each Member hereby (a) specifically delegates to the Board of Managers its rights and powers to manage and control the business and affairs of the Company in accordance with the provisions in Section 18-407 of the Act, and (b) revokes its right to bind the Company, as contemplated by the

 

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provisions of Section 18-402 of the Act. Each Manager shall have the right to one (1) vote on all matters to be decided by the Board of Managers, except as otherwise provided for Related Party Transactions.

 

Section 5.02.        Board of Managers; Quorum Requirements. (a) So long as a Member owns at least sixteen percent (16%) of the total number of Membership Units of the Company, such Member shall have the right to appoint one (1) individual, as set forth below, to act on its behalf at meetings of the Board of Managers (each a “Manager”). So long as a Member owns at least twenty-eight percent (28%) of the total number of Membership Units of the Company, such Member shall have the right to appoint two (2) Managers. For clarity, if a Member owns less than sixteen percent (16%) of the total number of Membership Units of the Company, such Member shall have no right to appoint any Manager. Initially, the Board of Managers of the Company shall be composed of six (6) Managers. The President, who shall be designated by the Board of Managers from time to time, shall be a Board observer (so long as such person holds such officer position) but shall not be considered a Manager and has no voting capacity on the Board of Managers. The President also does not count toward establishing a quorum for any meeting of the Board of Managers. Furthermore, as long as each of Amyris, Cosan US and ARG hold at least twenty-eight percent (28%) of the Membership Units of the Company, each of Amyris, Cosan US and ARG shall alternate the appointment of the chairman of the Board of Managers (the “Chair”) from one of its appointed Managers. For clarity, the Chair is treated as any other Manager for purposes of this Agreement (e.g., his or her vote carries no additional weight or significance). If one of the Members, at any time, becomes the Company’s Controlling Member, then such Member shall always have the right to appoint the Chair while such Member remains the Company’s Controlling Member. The Chair shall be appointed for a two (2) year term and shall preside over meetings of the Board of Managers during his or her term of office. The first Chair following the Effective Date shall be appointed by Amyris. Any Managers appointed by Amyris shall be designated as “Amyris Managers”, any Managers appointed by Cosan US shall be designated as “Cosan US Managers”, and any Managers appointed by ARG shall be designated as “ARG Managers”. Each of the Amyris Managers, the Cosan US Managers and the ARG Managers shall be officers or employees of Amyris or its Affiliates, Cosan US or its Affiliates, or ARG or its Affiliates, respectively.

 

(b)                A Manager appointed as provided herein shall serve for a two (2) year term or until such Manager’s successor is appointed by the Member who appointed such Manager, including in the event of any retirement, removal, resignation or death of a Manager. A Manager may be re-appointed to serve as a Manager of the Company, with no maximum number of consecutive terms.

 

(c)                 In addition to the Amyris Managers, the Cosan US Managers and the ARG Managers, the officers, directors, employees or other professional representatives (including the accountants, attorneys and/or financial advisors) of Amyris, Cosan US and ARG and their Affiliates shall be permitted to attend Board of Managers meetings as observers upon unanimous approval of the Managers.

 

(d)                At all meetings of the Board of Managers, the presence of at least a majority of the Managers (whether present in person or via phone or video conference) will be required for, and will constitute, a quorum for the transaction of business. However, for as long as a Member holds at least twenty-eight percent (28%) of the Membership Units, the presence of at least one (1) of its Managers is required for a quorum. A quorum must exist at all times of a meeting, including the reconvening of any meeting that has been adjourned, for any action taken at such meeting to be valid. If no quorum is present at such duly called meeting of the Board of Managers, the Managers present shall adjourn the meeting to a time not less than three (3) Business Days from the time of such adjournment (taking into account any circumstances that may prevent any Manager from attending or participating in such reconvened meeting), and shall promptly give written notice to the Managers of the time and place at which the meeting shall reconvene. If no quorum is present at such reconvened meeting, the Managers present shall re-adjourn the

 

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meeting to a time not less than three (3) Business Days from the time of such adjournment (taking into account any circumstances that may prevent any Manager from attending or participating in such reconvened meeting), and shall promptly give written notice to the Managers of the time and place at which the meeting shall reconvene. The presence of any two (2) Managers at the re-adjourned meeting will constitute a quorum for such meeting, provided that such two (2) Managers must have been appointed by different Members.

 

(e)                 At any time a Member ceases to own at least sixteen percent (16%) or at least twenty-eight percent (28%) of the total number of Membership Units of the Company as applicable, such Member shall remove or cause the removal of one or more Managers appointed by such Member so that the total number of Managers appointed by such Member complies with Section 5.02(a). Such removed Manager(s) will not be replaced and the Board will operate with such decreased number of Managers, unless another Member(s) acquires sufficient Membership Units to reach or surpass another sixteen percent (16%) ownership threshold and thereby qualifies to appoint an additional Manager(s).

 

Section 5.03.        Removal of Managers; Vacancies. A Member may at any time remove any Manager appointed by such Member pursuant to Section 5.02, with or without cause. Except as required by Section 5.02(e), in the event a vacancy occurs on the Board of Managers as a result of the retirement, removal, resignation or death of a Manager designated pursuant to Section 5.02, such vacancy shall be filled by a person designated by the Member, the retirement, removal, resignation or death of whose designee or nominee created the vacancy.

 

Section 5.04.        Frequency of Meetings; Notice of Meetings; Agenda. (a) The Board of Managers shall hold ordinary meetings at such time and place as shall be determined by the Board of Managers by Majority Vote. In the first month of every Fiscal Year, the Board of Managers shall meet and approve the schedule of meetings for the starting Fiscal Year. In the absence of an agreement, the Board of Managers shall hold ordinary meetings every quarter during each Fiscal Year. Special meetings of the Board of Managers, to be held at the offices of the Company as herein provided (or such other place as shall be agreed by Majority Vote), shall be called at the direction of the Chair. Per Section 5.08, a Manager may attend any meeting via phone or video conference, instead of attending a meeting in-person.

 

(b)                The Chair shall call all meetings of the Board of Managers by his or her own initiative or at the written request of any Manager. The notice of meeting shall be delivered, either personally, by facsimile or by international mail. Failure by the Chair to call any meeting requested by any Manager within five (5) calendar days from the date of receipt of the request by any Manager allows any other Manager to call the requested meeting. The meetings of the Board of Managers shall be called at least eight (8) calendar days prior to the date of each meeting. The notice of meeting shall specify the place, date and time of the meeting and shall inform the detailed agenda, subject to the provisions of Section 5.04(c) below, and attach any proposal of resolutions, any document prepared by the Company in advance of the meeting in order to support any resolution and all necessary documentation related thereto. Notice may be waived in writing or by the attendance of all Managers. The attendance of a Manager at a meeting shall constitute a waiver of notice of such meeting, except when the Manager attends the meeting for the express purpose of objecting at the beginning thereof to the transaction of any business because the meeting has not been properly called or convened. Unless otherwise agreed by Majority Vote, the Board of Managers’ meetings shall be held at the Company’s headquarters, but per Section 5.08, a Manager may attend any meeting via phone or video conference, instead of attending a meeting in-person.

 

(c)                 With respect to quarterly meetings and non-quarterly non-emergency meetings, not later than five (5) Business Days before each such meeting, the Chair shall deliver to each Manager, together with the notice of each such meeting, an agenda specifying in reasonable detail the matters to be discussed at the applicable Board of Managers meeting, which agenda shall include any matters the

 

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Managers are required to discuss pursuant to the terms of this Agreement; it being expressly forbidden to include generic items such as, for example, “general matters of interest of the Company”. Moreover, no resolutions shall be passed on any matters that are not expressly included in the agenda, as stated in the notice of such meeting, and any such resolutions shall be void and of no force and effect unless such resolutions are approved by the unanimous vote of all of the Managers representing one hundred percent (100%) of the Board of Managers.

 

Section 5.05.        Board of Managers Voting; Approval Matters. (a) Except with respect to Member Approval Matters pursuant to Section 5.06(e) and as delegated to the Officers pursuant to Section 5.12, the Board of Managers shall have the authority with respect to all aspects of the operation of the Company. All decisions of the Board of Managers shall be made by Majority Vote, except that resolutions on the following matters shall always require the approval of at least one (1) Manager appointed by each Member then-owning at least twenty-eight percent (28%) of the Membership Units (each of the following enumerated matters being referred to as a “Board of Managers Approval Matter”):

 

(i)                   approval of any annual business and R&D plans and annual operating and investment budgets of the Company, as prepared and recommended by the Officers, and material modifications thereto; provided, however, that the Officers will be responsible for the execution of any approved annual business and R&D plans and operational and investment budgets;

 

(ii)                 any decision to make distributions to the Members, to the extent not otherwise required pursuant to Section 7.01, or any decision not to make a quarterly distribution to the Members as required by Section 8.01(b);

 

(iii)               incurrence, amending, modifying, refinancing or alteration of material terms by the Company of any indebtedness, which incurrence, amendment, modification, refinancing or alteration was not contemplated by the approved annual business or R&D plans or in the approved budget(s);

 

(iv)               granting of guarantees, sureties or indemnities by the Company, except for those guarantees related to Company indebtedness specified in the approved annual business plan or in the budget(s) and those indemnities required in connection with contracts entered into in the ordinary course of business consistent with the approved business or R&D plans or approved budget(s);

 

(v)                 acquisition and/or disposal of or divestiture of any material assets outside of the ordinary course of business and not contemplated by the approved annual business or R&D plans or approved budget(s);

 

(vi)               any transaction that creates any non-capital expenditure by, or obligation of, the Company not contemplated by the approved annual business or R&D plans or approved budget(s);

 

(vii)             any capital expenditure not contemplated in the approved annual business plan, R&D plan, or budget(s) or which otherwise exceeds the amount of such expenditure in the approved annual business or R&D plans or approved budget(s);

 

(viii)           any non-compete or exclusivity obligation binding on the Company;

 

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(ix)               decision whether the Company (or any if its Subsidiaries) shall produce its own BioFene or purchase it from Amyris or Third Parties, based on a substantiated proposal to be prepared and recommended by the Officers;

 

(x)                 decision for the Company (or any if its Subsidiaries) to build a manufacturing facility for the production of the Company’s products and the site for such facility, based on a substantiated proposal to be prepared and recommended by the Officers;

 

(xi)               the sending of any notice requesting Capital Contributions or cash advances or other credit or loan facilities to a Member pursuant to Section 4.04; and

 

(xii)             the entering into of any contract, arrangement, understanding or other similar agreement with respect to any of the foregoing (i)-(xi).

 

Section 5.06.        Members’ Meetings; Notice; Agenda; Voting; Member Approval Matters. (a) Members’ meetings shall be annual or special. The Members acknowledge that an annual Members’ meeting shall be held within the four (4) months following the close of each Fiscal Year. Furthermore, special Members’ meetings may be held whenever and insofar as the business of the Company so requires. The Members’ meetings may be called at any time by the Chair, by his or her own initiative or at the written request of any Member or otherwise as contemplated by the Act. Failure by the Chair to call any such meeting requested by any Member within five (5) calendar days from the date of receipt of the pertinent request shall allow such Member to call the applicable meeting. Subject to the applicable Law, the call notices shall be delivered to each Member at least eight (8) calendar days in advance of the date scheduled for the holding of each Members’ meeting and shall contain information on the place, date and time the relevant Members’ meeting will be held and the detailed agenda, as well as any documentation that shall be used to support the matters to be discussed at such meeting, subject to the provisions of Subsection (b) below. Unless otherwise agreed by the Members, Members’ meetings shall be held at the Company’s headquarters, but per Section 5.08, a Member may attend any meeting via phone or video conference, instead of attending a meeting in-person.

 

(b)                The call notice to the Members’ meeting shall set forth, in detail, the relevant agenda, which agenda shall include any matters the Members are required to discuss pursuant to the terms of this Agreement; it being expressly forbidden to include generic items such as, for example, “general matters of interest of the Company”. Moreover, no resolutions shall be passed on any matters that are not expressly included in the agenda set forth in the call notice, under penalty of being deemed void, except for (i) the resolutions that are approved by the unanimous vote of all of the Members representing one hundred percent (100%) of the Membership Units; or (ii) as provided in the Act.

 

(c)                 At all meetings of Members, the presence of the holder(s) of at least a majority of the Membership Units (whether present in person or via phone or video conference) will be required for, and will constitute, a quorum for the transaction of business. However, for as long as Amyris, Cosan US and ARG each hold at least twenty-eight percent (28%) of the Membership Units, the presence of each of Amyris, Cosan US and ARG is required to constitute a quorum for a Members’ meeting. A quorum must exist at all times of a Member meeting, including the reconvening of any Member meeting that has been adjourned, for any action taken at such meeting to be valid. If the required quorum is not present at a duly called Members’ meeting, the meeting shall be adjourned to a time not less than three (3) Business Days from the time of such adjournment (taking into account any circumstances that may prevent a Member from attending or participating in such reconvened meeting) and written notice shall be promptly given to the Members of the time and place at which the meeting shall reconvene. If the required quorum is not met at such reconvened meeting, that meeting shall be re-adjourned to a time not less than three (3)

 

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Business Days from the time of such adjournment (taking into account any circumstances that may prevent a Member from attending or participating in such reconvened meeting) and written notice shall be promptly given to the Members of the time and place at which the meeting shall reconvene. The presence of at least a majority of the Membership Units of the Company at the re-adjourned meeting will constitute a quorum.

 

(d)                Each Membership Unit shall have the right to one (1) vote on all matters to be decided by Members. Except for those special matters provided for by applicable Law or referred to in Subsection (e) below, resolutions at Members’ meetings shall be passed by a majority vote of the Membership Units present at the meetings or, in lieu of a meeting, by written consent of at least that number of Member Units, as the case may be, required to approve the matter at a meeting.

 

(e)                 Notwithstanding anything contained in this Agreement to the contrary, resolutions on the following matters shall always require the approval of at least seventy-five percent (75%) of the Membership Units (each of the following enumerated matters being referred to as a “Member Approval Matter”):

 

(i)                   any proposed funding of, or financing for, the Company, whether from the Members or third parties, beyond the Prior Capital Contributions and the ARG Initial Capital Contribution;

 

(ii)                 admission of any new Member, except as expressly otherwise permitted in this Agreement;

 

(iii)               the authorization, issuance, sale, acquisition, repurchase or redemption by the Company of any Membership Units or other equity interest (or option, warrant, conversion or similar right with respect to any equity interest) in or of the Company, or any change in the characteristics, rights and privileges of the Membership Units;

 

(iv)               redemption, amortization or repurchase of Membership Units or any convertible securities, or changes in the conditions applicable to redemption, amortization or repurchase of Membership Units or convertible securities;

 

(v)                 any merger or other form of corporate reorganization, or any spin-off or drop down of assets and liabilities, involving the Company; provided however that in connection with the sale of the Company, whether through a merger or consolidation in which the Company is a constituent party, or the sale, transfer or other disposition of all or substantially all of the assets of the Company (a “Sale Transaction”), except a Sale Transaction in which the net proceeds to be received by each Member is sufficient to return at least two (2) times each Member’s cumulative Capital Contributions (a “Qualified Sale Transaction”) which transaction shall require approval of only a simple majority of the Membership Units and upon such majority approval any Member who abstained or voted against such Qualified Sale Transaction shall be deemed to have voted all of its Membership Units to approve such Qualified Sale Transaction;

 

(vi)               change in accounting or tax principles or policies with respect to the financial statements, except as required by GAAP or by applicable Law;

 

(vii)             change of corporate type or conversion into any other form of entity;

 

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(viii)           the conduct by the Company of any business other than, or the engagement by the Company in any transaction not substantially related to, the Company Business;

 

(ix)               the dissolution, liquidation or winding up of the Company or the commencement of a voluntary proceeding seeking reorganization or other similar relief;

 

(x)                 approval of any stock option, profit sharing or similar compensation plan and any amendments thereto;

 

(xi)               approval of the Company’s initial public offering of any equity or convertible debt securities;

 

(xii)             the amendment or restatement of the Certificate or other constituent documents of the Company;

 

(xiii)           any change in the number of, or method of designating, Managers on the Board of Managers;

 

(xiv)           the continuing of the Company under the Laws of another jurisdiction; and

 

(xv)             the entering into of any contract, arrangement, understanding or other similar agreement with respect to any of the foregoing (i)-(xiv).

 

Section 5.07.        Action by Written Consent. Except as expressly otherwise provided in Sections 5.05 or 5.06(e), any action required or permitted to be taken by the Members or the Board of Managers, either at a meeting or otherwise, may be taken without a meeting if the Members or the Managers, as the case may be, consent in writing to such action and the writing or writings are filed with the minutes of proceedings of the Members or the Managers, as the case may be. For such written consent to be effective, at least that number of Member Units or Managers and that type of Member or Manager (e.g., ≥28% holder), as the case may be, required to approve the matter shall also be required to execute such written consent. Written notice of the action to be taken by written consent will be given by the Chair to all Members or the Managers, as the case may be, at least five (5) Business Days prior to the effectiveness of any such action.

 

Section 5.08.        Telephonic Meetings. Members and Managers may participate in a meeting by means of a conference telephone or similar communications equipment through which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.

 

Section 5.09.        Company Minutes. The decisions and resolutions of the Members and the Board of Managers shall be reported in minutes, which shall state the date, time and place of the meeting (or the date of the written consent in lieu of meeting), the Members or Managers, as the case may be, present at the meeting, the resolutions put to a vote (or the subject of a written consent) and the results of such voting (or written consent). The minutes shall be entered in a minute book kept at the principal office of the Company, and a copy of the minutes shall be provided to each Member or Manager, as the case may be.

 

Section 5.10.        Manager Compensation and Reimbursement. Only Managers that are neither (a) Officers nor (b) employees or shareholders of any of Amyris, Cosan US or ARG or of their respective Affiliates, shall be entitled to receive any compensation for their service as a Manager. The compensation of any such Managers shall be based on market practices, not exceeding the annual gross

 

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amount approved by the Members. Moreover, all Managers shall be entitled to be reimbursed by the Company for any reasonable travel expenses arising from the performance of their activities and functions.

 

Section 5.11.        Audit Committee. The Company shall establish and maintain an Audit Committee, which shall consist of three (3) Managers of the Board of Managers - one Manager nominated by each of Amyris, Cosan US and ARG.

 

Section 5.12.        Officers. (a) The Company shall have certain employees or agents appointed by the Board of Managers, per Section 5.05, serve as the officers of the Company (the “Officers”). Such Officers will include a president (the “President”) and may include, at the Board of Managers’ discretion, one or more vice presidents, a chief financial officer, a treasurer, one or more assistant treasurers, chief operations officer, chief technical officer, a secretary, and/or one or more assistant secretaries. All Officers must be professionals with proven qualification and experience in their respective areas of responsibility, as determined by the Board of Managers. The Board of Managers will establish the annual compensation for each Officer. The Officers shall operate under the supervision and direction of the Board of Managers and generally obtain the written approval of the Board of Managers prior to taking any actions relating to or on behalf of the Company. Notwithstanding the foregoing, the Officers shall, subject to Subsection (b) below, maintain powers to perform the following tasks without prior written approval of the Board of Managers:

 

(i)                   designate one or more banks or similar financial institutions as depositories of the funds of the Company;

 

(ii)                 open, maintain and close general and special accounts with any such depositories;

 

(iii)               deposit in such accounts funds of the Company as the Officers deem necessary or advisable;

 

(iv)               sign or countersign checks, drafts, or other orders (including authorizations of electronic transfers) for the payment of money of the Company against any funds deposited in any of such accounts, for amounts up to US$250,000;

 

(v)                 approve the use of facsimile signatures for the signing or countersigning of checks, drafts or other orders for the payment of money, and to enter into such agreements as banks and similar financial institutions customarily require as a condition for permitting the use of facsimile signatures;

 

(vi)               make such general and special rules and regulations with respect to such accounts, respecting the funding limits mentioned in items (iii) and (iv) above as such Officers deem necessary or advisable for the Company and execute and certify any customary printed blank signature card forms in order to exercise conveniently the authority granted by this Section 5.12(a);

 

(vii)             negotiate and execute equipment or office lease agreements and related documents of up to US$250,000;

 

(viii)           negotiate and execute ordinary agreements and/or contracts, bids and proposals that do not exceed the amount of US$250,000 and that shall not last longer than twelve (12) months; and

 

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(ix)               approve, sign, execute and implement any transaction contemplated by, or consistent with, the annual business or R&D plans or budget(s) approved by the Board of Managers, up to the amounts provided therein;

 

(x)                 day-to-day management, administration and oversight of the Company’s business and affairs and all decisions related to the Company’s daily activities, including development, production, sales and distribution (except to the extent such decisions are the responsibility of a particular Member as set forth in this Agreement);

 

(xi)               preparation of the Company’s annual business plan or any operational and investment budgets and recommendation to the Board of Managers;

 

(xii)             implementation of the Company’s annual business plan and operational and investment budgets that are approved by the Board of Managers;

 

(xiii)           preparation of the Company’s R&D plan and amendments thereto under any R&D agreement;

 

(xiv)           preparation of an R&D and commercialization plan regarding any BioFene-derived Additive the Officers would like the Company to pursue;

 

(xv)             preparation of a substantiated proposal regarding whether the Company (or any of its Subsidiaries) shall produce its own BioFene or purchase it from Amyris or Third Parties, and recommending a decision to the Board of Managers;

 

(xvi)           negotiating any supply agreement, off-take agreement or any agreements related to the actual production and sale of the Company’s products;

 

(xvii)         preparation of a substantiated proposal regarding whether the Company (or any of its Subsidiaries) shall build a manufacturing facility for the production of the Company’s products and the site for such facility, and recommending a decision to the Board of Managers;

 

(xviii)       determination of the products to be manufactured by or on behalf of the Company as well as the volumes to be produced and the pricing thereof;

 

(xix)           compromise, waive, settle and sign commitments, assume obligations, invest funds, acquire, dispose, mortgage, pledge or otherwise create a lien on the Company’s assets, in each case that do not exceed the amount of US$250,000;

 

(xx)             approve all necessary measures and perform the ordinary acts of a management, financial and economic nature in accordance with the provisions set forth in this Agreement and the resolutions approved by the Members and the Board of Managers meetings; and

 

(xxi)           prepare the Company’s financial statements and be responsible for the bookkeeping of the Company’s corporate, tax and accounting books and records.

 

(b)                (A) In the event that the Company has an opportunity or an obligation to perform any of the acts listed in items (iv), (vii), (viii) and (xix) of Section 5.12(a) hereto involving an amount greater than US$250,000 and up to US$1,000,000, the Officers shall be authorized to perform such acts after receiving written authorization from three (3) Managers, constituting one Manager appointed by each of Amyris, Cosan US and ARG, without the requirement to have a prior written approval of the

 

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Board of Managers or a meeting of the Board of Managers for such purpose. In this case, the three (3) Managers shall send a letter, fax or e-mail to the Officers of the Company confirming his or her approval for the performance of such act. A copy of such confirmations by the Managers will be kept with the Company records with regard to the relevant act. (B) (i) All checks, drafts, or other orders (including authorizations of electronic transfers) for the payment of money by the Company and (ii) any contract (other than a confidentiality agreement or a material transfer agreement) to which the Company will be a party shall require the signature of two (2) Officers to bind the Company, preferably one of which is always the President.

 

(c)                 The Officers shall at all times be subject to the supervision and control of the Board of Managers and shall conform to policies and programs established by the Board of Managers, and the scope of the Officers’ authority shall be limited to such policies and programs. Except as otherwise authorized by the Members, no other Person shall have authority to bind or act for, or assume any obligations or responsibilities on behalf of, the Company. The President shall keep the Board of Managers informed as to all matters of concern to the Company.

 

Section 5.13.        Language. The meetings of the Board of Managers shall be held in English, with simultaneous translation to Portuguese if requested by any Member. All materials to be presented at such meeting, the minutes of such meetings, as well as any action of the Board of Managers taken by written consent, shall be drafted in English, together with a Portuguese translation, but the English version of such materials, minutes and written consents shall prevail between the parties.

 

Section 5.14.        D&O Insurance. The Company shall contract, with a reputable insurer, at its own cost, in favor of the Managers and the Officers that shall so desire, directors and officers liability insurance, consistent with market terms and conditions.

 

Section 5.15.        Subsidiaries. The Managers shall cause the Company to exercise its voting rights in its Subsidiaries in accordance with this Agreement. Therefore, any matter that would be deemed to be a Member Approval Matter or a Board of Managers Approval Matter, when it relates to a Subsidiary, shall be treated as a Board of Managers Approval Matter, and, therefore, before the Company exercises its voting rights in the Subsidiary in favor of any such matter, the matter shall be voted at a Company’s Board of Managers’ meeting and receive the necessary approval required for any Board of Managers Approval Matter.

 

Section 5.16.        Deadlock of Members or Managers. (a) Declaration of a Deadlock. Subject to Subsection (c) below, at any time after the date hereof, a Member may declare a deadlock by delivering a written notice of the deadlock (“Deadlock Notice”) to the other Members (each such case, a “Deadlock”) if:

 

(i)                   the Board of Managers is unable, at any two (2) consecutive meetings, within fifteen (15) days of one another and called in accordance with Section 5.04 above, to reach a decision concerning a Deadlock Issue (to the extent such Deadlock Issue is required to be acted on by the Board of Managers); or

 

(ii)                 the Members are unable, for a period of more than thirty (30) days, to reach a decision concerning a Deadlock Issue (to the extent such Deadlock Issue constitutes a Member Approval Matter).

 

(b)                Non-Deadlock Matters. A Member may not declare a Deadlock (i) for failure to achieve a quorum at a duly convened Board of Managers meeting if such failure results from the failure of such Member’s designated Managers to attend such meeting or if such failure results from the fact that such Member’s designated Managers have refrained from voting either for or against the relevant matter;

 

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(ii) for failure to achieve approval for a Member Approval Matter if such failure results from the fact that such Member has refrained from voting either for or against the relevant matter; (iii) by virtue of its disapproval of any proposal by the other Member unless such disapproval of such proposal is made in good faith; or (iv) in respect of any proposal it has made unless such proposal is delivered in good faith.

 

(c)                 Deadlock Question Arbitration. In the event a Deadlock is declared by a Member (the “Declaring Member”) and another Member(s) reasonably believes that such Member was not entitled to make such declaration pursuant to this Section 5.16, such other Member(s) may deliver, within five (5) Business Days of such declaration, to the Declaring Member a detailed written request for an expedited arbitration, to be held pursuant to the provisions of Section 14.08 and this Section 5.16(c) to determine the question of whether the Declaring Member was entitled to make such declaration.

 

(i)                   Within five (5) Business Days after delivery of such request, the Members will meet to select one arbitrator to decide and settle the question whether the Declaring Member was entitled to declare a Deadlock pursuant to this Section 5.16 (such question, the “Deadlock Question”). Except as provided herein or as otherwise agreed by the Members, such arbitrator shall decide no other question. The Members will select the arbitrator at random by a drawing from the list of available arbitrators provided by the Arbitration Chamber and shall immediately contact such nominee by telephone to confirm such nominee’s acceptance as arbitrator. If such nominee declines to be the arbitrator, then immediately upon such notice (or, in the event that, by the close of business on the date of selection, such nominee either has not been contacted or has not accepted such appointment for whatever reason, then at the opening of business on the next succeeding Business Day), the Members shall, in accordance with the preceding sentence, select at random by drawing another arbitrator from the same list and shall proceed to confirm such nominee’s acceptance as arbitrator and shall repeat such process until a nominee accepts the appointment.

 

(ii)                 Within five (5) Business Days following the arbitrator’s acceptance, the arbitrator shall convene the arbitral proceedings at the place of arbitration provided for in Section 14.08(d) hereunder and shall conduct such proceedings in such manner as such arbitrator considers appropriate, but in accordance with the rules of the Arbitration Chamber and any applicable Law, provided that the Members are treated with equality and that each Member is given a full and fair opportunity in accordance with the Arbitration Rules to present its ease. The arbitrator shall use his/her best efforts to resolve the Deadlock Question within five (5) Business Days after the arbitration is first convened. The resolution shall be final (not subject to appeal of any nature whatsoever) and binding on the Members, shall state the reasons upon which it is based, shall be signed by the arbitrator and shall contain the date on which, and place where, it was made.

 

(iii)               The arbitrator shall be entitled to reasonable fees, taking into account the time spent by the arbitrator, the relative complexity of the issues considered and the scheduling conditions hereby imposed by the Members. Notwithstanding anything herein to the contrary, all of the costs and expenses of the arbitration (including the reasonable fees and expenses of counsel of the prevailing Member(s)) in connection with such arbitration shall be borne by the non-prevailing Member(s) pro rata in accordance with their respective ownership of the total number of Membership Units owned by such non-prevailing Member(s). For the avoidance of doubt and notwithstanding anything herein to the contrary, any dispute, controversy or claim between or among the Members relating to a Deadlock Question shall be resolved exclusively in accordance with this Section 5.16(c).

 

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(d)                Escalation. Each Member agrees that immediately following delivery of a Deadlock Notice (the “Declaration”) or, if such delivery is challenged pursuant to Section 5.16(c), immediately following the arbitrator’s determination that a Deadlock was properly declared, representatives of the senior management of each of Amyris, Cosan US and ARG, or any of their respective Affiliates (which representatives shall in each case not be Managers or Officers of the Company or of any of its Subsidiaries) shall endeavor in good faith, for a period of thirty (30) days immediately following such delivery or decision (the “Negotiation Period”), to reach a mutually satisfactory resolution of the Deadlock Issue (the “Applicable Deadlock Issue”).

 

(e)                 Deadlock Mediation. If by the end of the Negotiation Period the Members have been unable to reach a mutually satisfactory resolution of the Applicable Deadlock Issue, then the Members shall appoint an impartial Third Party (“Mediator”), for a period of thirty (30) days (the “Deadlock Mediation Period”), to assist the Members to reach a mutually satisfactory resolution of the Applicable Deadlock Issue. The Mediator shall be chosen upon mutual consent of the Members among trusted individuals and with no relations whatsoever to the Members or any of their Affiliates, and the costs and expenses for hiring such Mediator shall be shared equally by the Members.

 

(f)                 Buy/Sell Option. If by the end of the Deadlock Mediation Period the Members have been unable to reach a mutually satisfactory resolution of the Applicable Deadlock Issue because the approval of one Member (or such Manager(s) designated by such Member) holding at least twenty-eight percent (28%) of the Membership Units does not approve the proposed resolution relating to the Applicable Deadlock Issue (the “Initiating Member”), then commencing on the first Business Day following the expiration of the Deadlock Mediation Period (the “Termination Date”), the Initiating Member shall be required to:

 

(i)                   deliver a written notice (the “Offer Notice”) to the other Members (the “Deciding Members”) specifying in such notice that the Initiating Member offers to sell all, but not less than all, of its Membership Units in the Company to the Deciding Members on a pro rata basis upon the terms and conditions specified in reasonable detail in the Offer Notice, at a price equal to the greater of the Fair Market Value of the Membership Units as hereinafter determined, or an amount equal to the full return such Member’s Capital Account plus a 5% per annum return compounded annually the “Sale Price”);

 

(ii)                 upon receipt of an Offer Notice, the Members shall promptly determine, per Exhibit B, the Fair Market Value of the Membership Units; and

 

(iii)               each Deciding Member shall have ten (10) Business Days after receipt of the final Sale Price to deliver a written notice (the “Response Notice”) to the Initiating Member, which notice shall indicate that such Deciding Member agrees to buy its pro rata portion of the Membership Units from the Initiating Member, within thirty (30) days of the Initiating Member’s receipt of the Response Notice, at the Sale Price and upon the terms and conditions specified in the Offer Notice. Provided that all Deciding Members have delivered a Response Notice (or a single Deciding Member delivers a Response Notice, after otherwise agreeing with the other Deciding Members, to buy 100% of the Initiating Member’s Membership Units), the Initiating Member shall sell, and such Deciding Member(s) shall purchase, all but not less than all of the Initiating Member’s Membership Units, within thirty (30) days of the Initiating Member’s receipt of the Response Notice, at the Sale Price and upon the terms and conditions specified in the Offer Notice.

 

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(g)                 An Offer Notice shall only be valid if delivered on or after the Termination Date, and any Offer Notice delivered prior to such time shall be deemed null and void and have no force or effect. Each Member agrees that if a Response Notice is not sent by all Deciding Members (or by a single Deciding Member if, after otherwise agreeing with the other Deciding Members, buying 100% of the Initiating Member’s Membership Units) or if the Deciding Members collectively have not otherwise agreed to buy 100% of the Initiating Member’s Membership Units within ten (10) Business Days after receipt of the final Sale Price determination, then any Response Notice sent by a Deciding Member will be void and the Initiating Member shall be entitled to sell all, but not less than all, of its Membership Units in the Company to a third party; provided that (i) such third party is not a Competitor of the Company, and (ii) if the purchase price offered to the third party is less than the final Sale Price and/or the other terms and conditions are more favorable than specified in the Offer Notice, then the Initiating Member shall be required to offer such Membership Units at such price, terms and conditions as offered to the third party in accordance to Section 4.16(f) above. Until such sale of such Initiating Member’s Membership Units, the Members shall continue to discuss in good faith such Applicable Deadlock Issue until it is satisfactorily resolved but shall cause the Company to conduct its business during such time as if the matter that raised the Applicable Deadlock Issue had not been approved by the Managers or the Members, as the case may be.

 

Article VI
Change of control event

 

Section 6.01.        Change of Control Event. (a) A “Change of Control Event” shall occur if, after the Effective Date:

 

(i)                   with respect to Amyris, Cosan US or ARG, a Change of Control of Amyris occurs, a Change of Control of Cosan US occurs, or a Change of Control of ARG occurs, respectively; and

 

(ii)                 the Members which have not undergone the Change of Control described in clause (i) above are able to reasonably substantiate, within sixty (60) days afterwards, that the Change of Control will likely have a Material Adverse Effect on the Company Business.

 

Section 6.02.        Change of Control Event Consequence. If a Change of Control Event occurs, then the Member that is the object of such Change of Control Event will no longer be entitled to exercise, or benefit from, the Right of First Refusal and/or the Tag Along Right in Section 10.02(c) with regard to other Members’ proposed transfers of Membership Units.

 

Article VII
Allocations; tax matters

 

Section 7.01.        Allocations. (a) The Company’s Net Profits and Net Losses, subject to the special allocations pursuant to Sections 7.02 and 7.03, shall be allocated for each Fiscal Year to the Members as follows:

 

(i)                   Net Profits shall be allocated:

 

(A)                first, to offset previous allocations of Net Loss pursuant to Sections 7.01(a)(ii)(B) and (C)) hereof on a cumulative basis, in reverse order of the priorities described therein; and

 

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(B)                second, the balance to the Members in proportion to their respective Membership Units;

 

(ii)                 Net Losses shall be allocated:

 

(A)                first, to offset previous allocations of Net Income pursuant to Section 7.01(a)(i)(B), to the extent such Net Income has not been distributed;

 

(B)                second, to the Members in proportion to their positive Capital Account balances until such Capital Account balances have been reduced to zero; and

 

(C)                third, the balance to the Members in proportion to their respective Membership Units.

 

(b)                Notwithstanding anything to the contrary in Section 7.01(a), in the event of the winding up and termination of the Company pursuant to Section 11.05 hereof, Net Profit and Net Loss (and items of gross income, loss or deduction, if necessary), including gain or loss realized by the Company upon the sale (or deemed sale) of its property or assets, shall be allocated to the extent possible, subject to the special allocations of Sections 7.02 and 7.03, in a manner so as to cause the Capital Accounts of the Members to equal the amounts due the respective Members pro rata in accordance with their respective Membership Units consistent with the provisions of Section 11.05.

 

Section 7.02.        Special Allocations. (a) Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the Regulations, notwithstanding any other provision of this Article VII, if there is a net decrease in partnership minimum gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for the Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of the net decrease in partnership minimum gain, determined in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Section 7.02(a) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith.

 

(b)                Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this Article VII, if there is a net decrease in partner nonrecourse debt minimum gain attributable to a partner nonrecourse debt during any Fiscal Year, each Member who has a share of the partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specifically allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of the net decrease in partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with Section 1.704-2(i)(4) of the Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This Section 7.02(b) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith.

 

(c)                 Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent

 

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required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section 7.02(c) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article VII have been tentatively made as if this Section 7.02(c) were not in the Agreement.

 

(d)                Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to any provision of this Agreement, and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided that an allocation pursuant to this Section 7.02(d) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit in excess of such sum after all other allocations provided for in this Article VII have been made as if Section 7.02(c) and this Section 7.02(d) were not in the Agreement.

 

(e)                 Nonrecourse Deductions. Nonrecourse deductions for any Fiscal Year shall be allocated to the Members pro rata in accordance with the number of Membership Units owned by such Member.

 

(f)                 Partner Nonrecourse Deductions. Partner nonrecourse deductions for any Fiscal Year shall be specially allocated to the Member who bears the economic risk of loss, or to the Members in the proportions in which they bear the economic risk of loss, with respect to the partner nonrecourse debt to which such partner nonrecourse deductions are attributable in accordance with Section 1.704-2(i)(1) of the Regulations.

 

(g)                 Net Loss Limitation. The Net Losses and items of deduction or loss allocated pursuant to Sections 7.01 and 7.02 shall not exceed the maximum amount of Net Losses and items of deduction and loss that can be so allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Fiscal Year. All Net Losses and items of deduction or loss in excess of the limitations set forth in this Section 7.02 shall be allocated to the Members who do not have Adjusted Capital Account Deficits in proportion to their Adjusted Capital Accounts. To the extent that Members have been allocated Net Losses pursuant to the previous sentence, prior to any allocation of Net Profits pursuant to Section 7.01(a) such Members shall be allocated Net Profits pro rata in proportion to such allocated Net Losses.

 

Section 7.03.        Curative Allocations. The allocations set forth in Section 7.02 hereof (the “Regulatory Allocations”) are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 7.03. Therefore, notwithstanding any other provision of this Article VII (other than the Regulatory Allocations), the Members shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner they determine appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement and all Company items were allocated pursuant to this Article VII without regard to the Regulatory Allocations. In exercising their discretion under this Section 7.03, the Members shall take into account future Regulatory Allocations under Section 7.02 that, although not yet made, are likely to offset other Regulatory Allocations previously made under Section 7.02.

 

Section 7.04.        Tax Allocations. (a) In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the

 

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capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for United States federal income tax purposes and its initial Asset Value (computed in accordance with the definition of Asset Value).

 

(b)       In the event the Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Asset Value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for United States federal income tax purposes and its Asset Value in the same manner as under Code Section 704(c) and the Regulations thereunder.

 

(c)       Any elections or other decisions relating to such allocations shall be made by the Tax Matters Partner in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 7.04 are solely for purposes of United States federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Net Profit, Net Loss, other items, or distributions pursuant to any provision of this Agreement.

 

(d)       Except as otherwise provided in this Agreement, all items of Company gain, loss, deduction, and any other allocations not otherwise provided for shall be divided among the Members in the same proportions as they share Net Profit or Net Loss, or amounts specially allocated pursuant to Section 7.02 or 7.03 hereof, as the case may be, for the Fiscal Year.

 

Section 7.05.        Tax Matters. (a) The Company shall file as a partnership for United States federal and state income tax purposes.

 

(b)                All decisions with respect to Taxes of the Company shall be made by the Board of Managers in accordance with the provisions of Article V.

 

(c)                 Amyris shall (i) be the initial tax matters partner within the meaning of Section 6231 of the Code and any comparable provision of state or local income tax Law, and (ii) the initial “partnership representative” for purposes of Section 6223 and Section 6231 of the Code, as amended by the Revised Partnership Audit Procedures (the designated roles in clauses (i) and (ii) above shall collectively be referred to herein as the “Tax Matters Partner”). A different Tax Matters Partner may be selected at any time by Members representing at least seventy-five percent (75%%) of the Membership Units.

 

(d)                Tax audits, controversies and litigations shall be conducted under the direction of the Tax Matters Partner, in consultation with the Company’s attorneys and/or accountants, and if desired by a Member with the Member’s attorneys and/or accountants. The Tax Matters Partner shall furnish promptly to the Company which shall furnish promptly to the other Members a copy of all notices or other written communications received by the Tax Matters Partner from the Internal Revenue Service or any state of local taxing authority. The Tax Matters Partner shall submit to the Board of Managers, for their review, comment, and approval, any settlement or compromise offer with respect to any disputed item, including any item of income, gain, loss, deduction or credit of the Company.

 

(e)                 The Tax Matters Partner shall cause all tax returns of the Company to be timely prepared in consultation with the Company’s attorneys and/or accountants, and if desired by a Member with the Member’s attorneys and/or accountants, and timely filed. Copies of such returns shall be kept at the Company’s principal place of business or at such other place as the Tax Matters Partner shall determine and shall be available for inspection by the Members or their duly authorized representatives during regular business hours. The Tax Matters Partner shall distribute to the Company which shall

 

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distribute to each of the Members, as soon as practicable after the end of the Fiscal Year of the Company, information with respect to the Company necessary for each Member to prepare its United States federal, state and local, or foreign, tax returns. Each Member agrees to promptly provide to the Tax Matters Partner any information requested by the Tax Matters Partner so as to enable the Company to make any election under Section 6225 or 6226 of the Code (as amended by the Revised Partnership Audit Procedures), comply with any documentation requirements in connection with any such election, modify any “imputed underpayment” as defined under the Revised Partnership Audit Procedures, and comply with any other requirements in the Revised Partnership Audit Procedures. The Company shall retain all information collected from each Member pursuant to this Section 7.05(e). All elections required or permitted to be made by the Company, and all other tax decisions and determinations relating to United States federal, state or local tax matters that may affect the Company or any Member shall be communicated to the relevant governmental taxing authorities on behalf of the Company by the Tax Matters Partner, in consultation with the Company’s attorneys and/or accountants, and if desired by a Member with the Member’s attorneys and/or accountants, but only after prior approval by the Board of Managers of such communication by the Tax Matters Partner.

 

(f)                 Any taxes, penalties, and interest payable under the Revised Partnership Audit Procedures by the Company or any fiscally transparent entity in which the Company owns an interest shall be treated as specifically attributable to the Members, and the Tax Matters Partner shall use commercially reasonable efforts to allocate the burden of (or any diminution in distributable proceeds resulting from) any such taxes, penalties or interest to those Members to whom such amounts are specifically attributable (whether as a result of their status, actions, inactions or otherwise), as determined in good faith by the Tax Matters Partner and approved by the Board of Managers. In connection with the foregoing, to the extent that the Company is assessed amounts under Section 6221(a) of the Code (as amended by the Revised Partnership Audit Procedures), each current or former Member to which the assessment relates shall remit to the Company, within thirty (30) days’ written notice by the Tax Matters Partner, an amount equal to such Member’s allocable share of the assessment, including such Member’s allocable share of any interest imposed on the Company. The foregoing sentence shall survive the dissolution of the Company, the withdrawal of any Member from the Company and the Transfer of any Member’s Membership Units.

 

Article VIII
Distribution

 

Section 8.01.        Distribution. (a) Subject to Section 8.01(b), the Company, as determined by the Board of Managers in accordance with Article V, may make distributions to the Members, pro rata in accordance with their respective Membership Units.

 

(b) Unless determined by the Managers in accordance with Section 5.05(a)(vi) (taking into account the ongoing capital needs of the Company), the Company shall make quarterly distributions, to the extent of available cash, to each Member, in an amount equal to such Member’s share, pro rata in accordance with their respective Membership Units, of the Company’s Assumed Tax Liability. For the purposes of this Section 8.01(b), “Assumed Tax Liability” means the product of the Company’s assumed taxable income through the payment date multiplied by the highest combined maximum effective United States federal, state and local income tax rate applicable to any Member. The Company will make a good faith estimate of the Assumed Tax Liability each quarter, and cash distributions will be made, the extent of available cash, to the Members in an amount equal to the appropriate percentage of such estimate adjusted for prior distributions on April 14, June 14, September 14 and December 14 of such year. A final determination of Assumed Tax Liability will be made no later than March 1 of the year succeeding the year with respect to which such Assumed Tax Liability is being calculated, with adjusting payments to be made to or from the Company by March 15 of such year.

 

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Distributions not made for any reason pursuant to this Section 8.01(b) shall accumulate without interest until paid. In addition, any distribution made by the Company in excess of the required distributions for a required distribution date shall be applied towards the next scheduled distribution.

 

Section 8.02.        Liquidation Distribution. Distributions made upon liquidation of the Company shall be made as provided in Section 11.05.

 

Section 8.03.        Distribution Rules. (a) All amounts withheld pursuant to the Code or any provision of any state or local tax Law with respect to any payment, distribution or allocation by the Company to the Members shall be treated as amounts distributed to the Members pursuant to this Article VIII for all purposes of this Agreement. The President is authorized and directed to withhold from distribution, or with respect to allocations, to the Members and to pay over to any United States federal, state or local government any amounts required to be so withheld pursuant to the Code or any provision of any other applicable United States federal, state or local Law and shall allocate such amounts to those Members with respect to which such amounts were withheld. Promptly -upon learning of any requirement under any provision of the Code or any other applicable Law requiring the Company to withhold any sum from a distribution to a Member or to make any payment to any taxing authority in respect of such Member, the Company shall give written notice to such Member of such requirement and, if practicable and if requested by such Member, shall cooperate with such Member in all lawful respects to minimize or to eliminate any such withholding or payment.

 

(b)                A Member shall not have the status of, and is not entitled to the remedies available to, a creditor of the Company with regard to distributions that such Member becomes entitled to receive pursuant to this Agreement and the Act.

 

Section 8.04.        Limitations on Distribution. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member on account of its Membership Units if such distribution would violate Section 18-607 of the Act or other applicable Law.

 

Article IX
Books and records; financial statements

 

Section 9.01.        Books and Records; Financial Statements. (a) At all times during the continuance of the Company, the Company shall prepare and maintain separate books of account for the Company that shall show a true and accurate record of all costs and expenses incurred, all charges made, all credits made and received and all income derived in connection with the operation of the Company Business in accordance with GAAP consistently applied, and, to the extent inconsistent therewith, in accordance with this Agreement. Such books of account, together with a certified copy of this Agreement and of the Certificate, shall at all times be maintained at the principal place of business of the Company. The books of account and the records of the Company shall be examined by and reported upon as of the end of each Fiscal Year by a firm of independent certified public accountants that shall be selected by the Board of Managers per Section 5.05 (the “Auditors”).

 

(b)                The following financial information, prepared, in accordance with GAAP, together with an operating report in a form to be determined by the Board of Managers analyzing such information, shall be transmitted by the Company to each Member at the times hereinafter set forth:

 

(i)                   Within sixty (60) days after the close of each Fiscal Year, the following financial statements, examined, and certified to, by the Auditors:

 

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(A)                the balance sheet of the Company as of the close of such Fiscal Year;

 

(B)                a statement of Company Net Profits and Net Losses for such Fiscal Year;

 

(C)                a statement of the Company’s cash flows for such Fiscal Year; and

 

(D)                a statement of such Member’s Capital Account as of the close of such Fiscal Year, and changes therein during such Fiscal Year.

 

(ii)                 Within sixty (60) days after the close of each Fiscal Year, a statement indicating such Member’s share of each item of Company income, gain, loss, deduction or credit for such Fiscal Year for income tax purposes.

 

(iii)               As soon as available and in any event within forty (40) days after the end of each three-month period ended March 31, June 30 and September 30 of each Fiscal Year, balance sheets of the Company as of the end of such three-month period and statements of income and Company Net Profits and Net Losses for the period commencing at the end of the previous Fiscal Year and ending with the end of such three-month period, certified by the chief financial officer or treasurer of the Company.

 

(iv)               As soon as practicable and in any event within twenty (20) days following the end of each calendar month, a monthly operating summary of the Company’s activities in a form to be established by the Board of Managers.

 

(c)                 Each Member shall provide to the Company upon request tax basis information about contributed assets and other tax information reasonably requested by the Company.

 

(d)                The following financial information, prepared by the Company in accordance with International Financial Reporting Standards - IFRS, together with an operating report in a form to be determined by the Board of Managers analyzing such information, shall be transmitted by the Company to each Member at the times hereinafter set forth:

 

(i)                   Within ten (10) Business Days after the end of each three-month period ended March 31, June 30, September 30 and December 31 of each Fiscal Year, the following financial statements:

 

(A)                the balance sheet of the Company as of the three-month period ended compared with the last Fiscal Year;

 

(B)                the income statement as of the three-month period ended and year-to-date compared with the relative three-month period and year-to-date;

 

(C)                the statement of cash flow as of the three-month period ended and year-to-date compared with the relative three-month period and year to-date;

 

(D)                the statement of changes in equity as of the three-month period ended compared with the last Fiscal Year.

 

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Section 9.02.        Reporting Requirements. The President shall furnish or cause to be furnished to each Manager:

 

(i)                   as soon as possible and in any event within ten (10) days after the Company has received notice of the occurrence of any default or event of default continuing on the date of such statement under any agreement relating to any material obligation of the Company, a statement of the Company setting forth details of such default or event of default and the action which the Company has taken and proposes to take with respect thereto;

 

(ii)                 promptly after the sending or filing thereof, copies of all reports that the Company sends to any of its lenders or creditors, and copies of all tax returns that the Company files with any United States federal or state taxing authority;

 

(iii)               within fifteen (15) days of the filing by the Tax Matters Partner of the Company’s United States federal tax return (United States federal Form 1065), a copy of Schedule K-1 of United States federal Form 1065 reporting the Member’s allocable share of Net Profits, Net Losses and other items of income, gain, deductions or loss for such Fiscal Year, and, from time to time, such additional information as the Member may reasonably require for tax purposes; and

 

(iv)               such other information regarding the condition or operations, financial or otherwise, of the Company as any Member may from time to time reasonably request including any information that any Member determines to be necessary for such Member or its Affiliates to fulfill legal or statutory reporting and disclosure requirements.

 

Section 9.03.        Access; Due Diligence.1.1              Any Member, along with its respective Affiliates and auditors, shall have access to the Company’s financial records and personnel to enable such Member, along with its respective Affiliates and auditors, to undertake review and audit procedures in accordance with the auditing standards in force in the United States or in Brazil, as applicable. The Board of Managers shall cause the Company to keep accurate and complete records, books and accounts on the basis appropriate to the Company’s business, as required by applicable Law. Each Member shall have the right (which it may exercise through any of its duly authorized employees or agents or its independent accountants or the duly authorized employees or agents or its independent accountants of its Affiliates, as applicable) to audit, examine and make copies of or extracts from any books, accounts and records of the Company, at such Member’s own cost and expense, upon prior written notice to the Company and/or the other Members, during the regular business hours of the Company, on the premises of the Company or where such records, books and accounts are kept; provided, however that no Member shall have the right to have a private audit of the Company books and records conducted more than once in any Fiscal Year. If the Company incurs any additional costs to produce and deliver such information to the requesting Member, such requesting Member shall bear the costs related thereto. In addition, the Company will give, or cause to be given, to each Member and its representatives, during normal business hours, such reasonable access (upon reasonable notice and in a manner as to not unreasonably interfere with normal business operations) to the personnel, properties, contracts, books, records, files and documents as may be reasonably necessary to allow the Members to participate fully in the continued operations of the Company as appropriate in their respective roles as Members, including the negotiation of financing for the Company’s initial plant and the subsequent management of the construction process for such plant.

 

Section 9.04.        Semi-Annual Updates to Members regarding Company BioFene Transformation Technology. Every January 15 and July 15 while Amyris’s license under Section 2.2 of

 

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the IP License Agreement is in effect, the Company will provide the Members with a written update on Company BioFene Transformation Technology. Such semi-annual updates will include a list of any Patents in the Company BioFene Transformation Technology identified by their respective title, inventors, serial numbers, filing date, and status. The Company also agrees to copy the Members on any official correspondence between the Company (or the Company’s counsel) and any patent office regarding Patents in Company BioFene Transformation Technology.

 

Article X
Restrictions on transfer

 

Section 10.01.    Legends. (a) If the Company issues to Members a certificate evidencing Membership Units issued to Members, it shall affix to each such certificate a legend in substantially the following form:

 

“THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE UNITED STATES SECURITIES ACT OF 1933 OR AN EXEMPTION THEREFROM AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS.

 

THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SECOND AMENDED AND RESTATED OPERATING AGREEMENT DATED AS OF JULY 19, 2016, AS IT MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY. NO REGISTRATION OF TRANSFER OF THESE MEMBERSHIP UNITS WILL BE MADE ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH.”

 

(b)                Certificates representing Membership Units issued prior to the date hereof shall bear the legend set forth in Section 10.01(a).

 

(c)                 In the event that any Membership Units shall cease to be Restricted Membership Units and the Company issues Membership Unit certificates to Members, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate evidencing such Membership Units without the first paragraph of the legend required by Section 10.01(a) endorsed thereon. In the event that the Membership Units shall cease to be subject to the restrictions on transfer set forth in this Agreement and the Company issues Membership Unit certificates to Members, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate evidencing such Membership Units without the legend required by the second paragraph of Section 10.01(a). Before issuing a new certificate omitting part or all of the legend set forth in Section 10.01(a), the Company may request an opinion of counsel reasonably satisfactory to it to the effect that the restrictions discussed in the legend to be omitted no longer apply to the Membership Units represented by such certificate.

 

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Section 10.02.    Restrictions on Transfer; Required Transfers.

 

(a)                 Restrictions on Transfer and Encumbrance. Each of the Members hereby agrees that it shall not be permitted to Transfer, or create, incur or assume any Encumbrance with respect to, any of its Membership Units, and the Company shall be prohibited from registering any such Transfer or Encumbrance on any of its corporate documents and books, except (i) where otherwise agreed upon in writing by all of the Members or (ii) for any Transfer made in accordance with the provisions of this Agreement. Any voluntary or involuntary Transfer or Encumbrance of Membership Units or rights to subscribe for additional Membership Units by the Members shall be subject to the provisions of this Agreement. Notwithstanding any provision to the contrary, the Members hereby agree and covenant not to Transfer to any Third Party any of their Membership Units before December 31, 2016.

 

(b)                Transfers to Affiliates. Irrespective of the restrictions on Transfer set forth in this Section 10.02, at any time a Member may, after giving prior written notice to the other Members, Transfer all or part of its Membership Units to an Affiliate, provided that:

 

(i)                   the transferring Member jointly guarantees with such Affiliate all of the obligations of such Affiliate under this Agreement;

 

(ii)                 the Membership Units are transferred back to the transferring Member prior to the Affiliate ceasing to be an Affiliate of such Member. The transferring Member shall provide to the other Members such information as may be reasonably requested to ascertain that the Affiliate has not ceased to be an Affiliate of the transferring Member; and

 

(iii)               the Affiliate unconditionally adheres to this Agreement and the corresponding instrument of adhesion is filed with the Company, together with this Agreement.

 

(c)                 Right of First Refusal; Tag Along Right. Subject to the provisions of this Agreement, including Section 10.02(a) above, in case any Member (the “Selling Member”) wishes to Transfer any of its Membership Units, directly or indirectly, to any Third Party, the other Members shall have the right of first refusal to acquire all—and not less than all—of the Membership Units that such Selling Member wishes to Transfer (the “Right of First Refusal”). As long as a Member owns Membership Units representing fifty percent (50%) or less of the Company’s Membership Units, such Member shall also have the right to include in the offer of the Selling Member its own Membership Units, as per the provisions below (“Tag Along Right”). Each such right shall be exercised in accordance with the terms set forth below.

 

(i)                   Sale Notice. If the Selling Member has received a good-faith binding purchase offer from a Third Party for its Membership Units (which is a condition precedent to any Transfer although such binding purchase offer may be made in response to an offer to sell by the Selling Member) and is willing to accept the terms of such purchase offer, then the Selling Member shall notify the other Members in writing of its intention to Transfer its Membership Units, indicating the purchase offer terms, which shall include the name (and, if a legal entity, the owners) of the purchaser, the number of Membership Units intended to be Transferred, and the price, payment terms, and any other commercial terms applicable to such transaction, and enclose a copy of the offer received from the relevant Third Party evidencing such terms and conditions (“Sale Notice”). The Sale Notice shall be delivered to the other Members within five (5) Business Days from the acceptance by the Selling Member of the Third Party offer, which acceptance shall be subject in all respects to the provisions of this Section 10.02. Such

 

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terms indicated in the Sale Notice shall be applicable to the Transfer of the Membership Units by the Selling Member, to the Right of First Refusal and to the exercise of the Tag Along Right, if applicable.

 

(ii)                 Payment Terms on Sale Notice. The payment terms on the Sale Notice shall always provide for payment in cash or in shares that are listed and publicly traded in the BM&FBOVESPA, New York Stock Exchange, or NASDAQ Global Select Market (“Non Cash Consideration”). In case of payment in shares, if the Right of First Refusal is exercised by any of the other Members, the purchase price under the Sale Notice shall be computed based on the market price of such Non Cash Consideration, as per the weighted average of the sale prices per share of the Non Cash Consideration (or if no closing sale price is reported, the weighted average of the bid and asked prices or, if more than one in either case, the average of the average bid and average asked prices) in the last sixty (60) trading days prior to the Sale Notice. Once such purchase price is computed, payment by any non-Selling Member, if it exercises its Right of First Refusal, shall be made in cash.

 

(iii)               Right of First Refusal. No later than thirty (30) days following the receipt of the Sale Notice, each non-Selling Member may send the Selling Member a written notice expressing its intention to exercise its Right of First Refusal (each, a “ROFR Notice” and collectively, the “ROFR Notices”). Each Member’s ROFR Notice must indicate the maximum number of Membership Units such Member is willing to purchase from the Selling Member. If the ROFR Notices do not contain an offer to acquire all of the Selling Member’s Membership Units that such Member wishes to Transfer, then the Right of First Refusal of each non-Selling Member that delivered a ROFR Notice with respect to the transactions set forth in the Sale Notice shall be deemed terminated. If the ROFR Notices contain an offer to acquire exactly all of the Selling Member’s Membership Units, then the Right of First Refusal of each non-Selling Member that delivered a ROFR Notice is deemed to be exercised, with each such Member agreeing to purchase from the Selling Member the maximum number of Membership Units such Member indicated a willingness to purchase in its ROFR Notice. If the combined ROFR Notices contain an offer to acquire Membership Units in excess of the Selling Member’s Membership Units, then the Right of First Refusal of each non-Selling Member that delivered a ROFR Notice is deemed to be exercised, with each such Member agreeing to purchase from the Selling Member that number of Membership Units that equals (A) the total number of Membership Units offered for sale by the Selling Member multiplied by (B) the ratio of (1) the number of Membership Units such non-Selling Member indicated a willingness to purchase divided by (2) the aggregate of the number of Membership Units that all non-Selling Members indicated a willingness to purchase. In any case where a non-Selling Member successfully exercises its Right of First Refusal as set forth in this Section 10.02(c)(iii), it shall be obligated to acquire, and the Selling Member obligated to sell to such non-Selling Member, those Membership Units of the Selling Member required under the terms of this Section 10.02(c)(iii) within sixty (60) days following the receipt of the Sale Notice, pursuant to the terms and conditions set forth in the Sale Notice.

 

(iv)               Tag Along Right. If no non-Selling Member successfully exercises its Right of First Refusal, each non-Selling Member (if it owns fifty percent (50%) or less of the Company’s Membership Units) may instead send the Selling Member, no later than thirty (30) days following the receipt of the Sale Notice, a written notice expressing its intention to exercise its Tag Along Right (each, a “Tag Along Notice” and collectively, the “Tag Along Notices”). Each Member’s Tag Along Notice must indicate the maximum

 

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number of Membership Units such Member is willing to sell to the Third Party for the consideration stated in the Sale Notice. If the Third Party is unwilling to purchase any number of Membership Units greater than the Selling Member’s Membership Units, then each Member that exercised its Tag Along Right will have a right to sell a number of Membership Units equal to (A) the total number of Membership Units offered for sale by the Selling Member multiplied by (B) such Member’s Percentage Interest. If the Third Party is willing to purchase a number of Membership Units greater than the Selling Member’s Membership Units, but less than all of the Membership Units offered for sale in the Tag Along Notices, then each Member that exercised its Tag Along Right will have a right to sell a number of Membership Units equal to (Y) the total number of Membership Units the Third Party is willing to purchase multiplied by (Z) such Member’s Percentage Interest. In any case where a non-Selling Member successfully exercises its Tag Along Right as set forth in this Section 10.02(c)(iv), the number of Membership Units of each Member that successfully exercised its Tag Along Right will replace an equal number of the Membership Units offered for sale by the Selling Member, and such Member shall be obligated to sell those Membership Units required under the terms of this Section 10.02(c)(iv) within sixty (60) days following receipt the receipt of the Sale Notice, pursuant to the terms and conditions set forth in the Sale Notice.

 

(v)                 Rights not Exercised; Transfer to Third Party. If no non-Selling Member successfully exercises its Right of First Refusal or Tag Along Right within the above mentioned thirty (30)-day period, the Selling Member may, within one hundred and twenty (120) days from the expiry of such thirty (30)-day period, freely Transfer all of its Membership Units mentioned in the Sale Notice to the relevant Third Party, pursuant to the terms set forth in the Sale Notice. The transferee shall agree in writing, per Section 10.04, to be bound by the terms of this Agreement, as amended from time to time. Once the transferee formally adheres to this Agreement, it will inherit all rights and obligations of the Selling Member, except in any case where the Third Party does not acquire all of the Membership Units owned by the Selling Member, in such case, all voting rights inherent to the acquired Membership Units under this Agreement shall be exercised by the Selling Member and the Third Party collectively, as a block.

 

(vi)               Failure to Complete Transfer. If the final terms and conditions for the Transfer under Section 10.02(c)(v) above have changed in any material respect in relation to those originally contained in the Sale Notice, or if at the end of the one hundred and twenty (120)-day period referred to in such Section, the Selling Member has not Transferred its Membership Units, but still intends to do so, then the procedures described above shall be resumed and repeated.

 

(vii)             Solicitation of Offers. The Members hereby agree that in the event the Selling Member wishes to solicit an offer for a part or all of its Membership Units from a Third Party, the Selling Member shall inform, in writing, the non-Selling Members of its intention to initiate a process to solicit offers for the Transfer of its Membership Units. The non-Selling Members have no right of first offer or right of first negotiation with regard to the Selling Member’s solicitation for offers; however, if the Selling Member receives a good-faith binding purchase offer from any Third Party as a result of such solicitation, such offer will be subject to this Section 10.02(c) (as noted in Section 10.02(c)(i)).

 

(d)                Indemnification. In the case of a Transfer, Encumbrance, or attempted Transfer or Encumbrance of Membership Units or other interest in the Company contrary to the provisions of the

 

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Agreement, the parties engaging or attempting to engage in such Transfer shall indemnify and hold harmless the Company and each of the Members from all losses that such indemnified Persons may incur (including, without limitation, incremented tax liability and reasonable lawyers’ fees and expenses) in enforcing the provisions of this Agreement.

 

Section 10.03.    Improper Transfer or Encumbrance. Any attempt not in compliance with this Agreement to make any Transfer of, or create, incur or assume any Encumbrance with respect to, any Membership Units shall be null and void and of no force and effect, the purported transferee shall have no rights or privileges in or with respect to the Company, and the Company shall not give any effect in the Company’s records to such attempted Transfer or Encumbrance.

 

Section 10.04.    Transferees to Execute Agreement. Each Member agrees that it will not, during the term of this Agreement, directly or indirectly, make any Transfer of any Membership Units Beneficially Owned by such Member unless prior to the consummation of any such Transfer, the Person to whom such Transfer is proposed to be made (a “Prospective Transferee”) (i) executes and delivers to the Company a Joinder Agreement and (ii) unless such Prospective Transferee is a recognized institutional investor, delivers to the Company an opinion of counsel, satisfactory in form and substance to the Company, to the effect that the execution of the Joinder Agreement by such Prospective Transferee makes this Agreement a legal, valid and binding obligation of such Prospective Transferee enforceable against such Prospective Transferee in accordance with its terms. Upon the execution and delivery by such Prospective Transferee of the Joinder Agreement, compliance of the Transfer with the provisions of this Agreement (including Section 2.15), and, if required, the delivery of the opinion of counsel referred to in clause (ii) of the preceding sentence, such Prospective Transferee shall be deemed a “Member” for purposes of this Agreement and shall have the rights and be subject to the obligations of a Member under this Agreement with respect to the Membership Units owned by such Prospective Transferee.

 

Article XI
dissolution, liquidation and termination

 

Section 11.01.    No Dissolution. The Company shall not be dissolved by the admission of additional Members in accordance with the terms of this Agreement.

 

Section 11.02.    Events Causing Dissolution. (a) The Company shall be dissolved and its affairs shall be wound up upon the occurrence of any of the following events:

 

(i)                   the expiration of the term of the Company as provided in Section 2.03;

 

(ii)                 the unanimous vote of the Members to dissolve, wind up and liquidate the Company;

 

(iii)               the Insolvency Event of a Member, unless, within one hundred twenty (120) days after the occurrence of such event, the other Members, in their sole discretion, agree in writing to continue the business of the Company and to exercise the right to purchase all of the bankrupt or insolvent Member’s Membership Units as described below;

 

(iv)               the entry of a decree of judicial dissolution under Section 18-802 of the Act; or

 

(v)                 the termination of the IP License Agreement.

 

If the Company is continued pursuant to clause (iii) above after the Insolvency Event of a Member (the “Former Member”), the remaining Members shall have the right to purchase all, but not less than all, of the Membership Units of such Former Member at the Fair Market Value of such Membership Units, and

 

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each Member shall be entitled to purchase from the Former Member that number of Membership Units that equals (A) the total number of Membership Units of such Former Member multiplied by (B) the ratio of (1) such Member’s Membership Units divided by (2) the aggregate of the Membership Units of all Members other than the Former Member. The Former Member shall, upon exercise of such right, sell to such Members all such Membership Units at such price. Any acquisition pursuant to this Section 11.02 shall be completed within thirty (30) days from the final determination of the Fair Market Value of the Membership Units of the Former Member. In case an Insolvency Event occurs and the non-insolvent Members exercise their rights to purchase hereunder, then any and all actions pursuant to any meeting resolutions or written consents of the Members or the Board of Managers thereafter shall be decided by the non-insolvent Members, except if otherwise required under applicable Law.

 

Section 11.03.    Notice of Dissolution. Upon the dissolution of the Company, the Person or Persons unanimously approved by the Members to carry out the winding up of the Company (the “Liquidating Trustee”) shall promptly notify the Members of such dissolution, except that, in the case of a dissolution pursuant to Section 11.02(a)(iii), the Liquidating Trustee shall be the Person or Persons approved by the Members that are not bankrupt or insolvent.

 

Section 11.04.    Liquidation.

 

(a)                 Upon dissolution of the Company, the Liquidating Trustee shall immediately commence to wind up the Company’s affairs; provided however, that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of liabilities to creditors so as to enable the Members to minimize the normal losses attendant upon a liquidation. The Members shall continue to share Net Profits and Net Losses during liquidation in the same proportions, as specified in Article VII hereof, as before liquidation. Each Member shall be furnished with a statement audited by the Auditors that shall set forth the assets and liabilities of the Company as of the date of dissolution. Each Member (and its Affiliates) shall pay to the Company all amounts then owing by it (and them) to the Company. The proceeds of liquidation shall be distributed, as realized, in the following order and priority:

 

(i)                   to creditors of the Company (including holders of Membership Units that are creditors to the extent otherwise permitted by applicable Law), in satisfaction of the liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof), other than liabilities for distributions to holders of Membership Units; and

 

(ii)                 to the Members pro rata in accordance with their positive Capital Account balances to the extent thereof, after giving effect to all contributions, distributions and allocations for all periods.

 

To the extent that the Members determine that any or all of the assets of the Company shall be sold, such assets shall be sold as promptly as practicable, in a commercially reasonable manner. For purposes of making the liquidating distributions required by this Section 11.04, the Liquidating Trustee may determine, subject to the direction of the Members per Section 5.06(e), whether to distribute all or any portion of the assets of the Company in kind or to sell all or any portion of the assets of the Company and distribute the proceeds therefrom.

 

(b)                Notwithstanding any provision to the contrary in this Section 11.04, upon dissolution of the Company, the Liquidating Trustee shall, to the extent practicable and consistent with Sections 11.04(a)(i) and 11.04(a)(ii) and the direction of the Members in Subsection (a) above, (i) distribute in kind to each Member the respective assets contributed or transferred by such Member to the Company, (ii) distribute in kind to Amyris any assets primarily used in or related to the business of Amyris and its Affiliates, (iii) distribute in kind to Cosan US any assets primarily used in or related to the

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business of Cosan US and its Affiliates, and (iv) distribute in kind to ARG any assets primarily used in or related to the business of ARG and its Affiliates. To the extent the principles set forth in the preceding sentence would result in a Member receiving more than the portion of distributions it would otherwise be entitled to receive pursuant to Section 11.04(a) upon dissolution of the Company, such Member shall, at its election, pay an amount in cash to the other Members equal to such excess value received pursuant to the preceding sentence or direct the Company to sell assets otherwise distributable to such Member, for the benefit of the other Members, for a price equal to such excess value received pursuant to the preceding sentence, with each other Member receiving the portion of such amount it would otherwise be entitled to receive pursuant to Section 11.04(a). The value of each such asset at dissolution shall be determined using the same methodology that was used to determine the value of the assets to be contributed to the Company.

 

(c)                 As soon as practicable, the Liquidating Trustee shall deliver a written notice to each Member setting forth the value assigned to each asset and the Member to which such asset will be distributed, in connection with the provisions of subsections (a) and (b) above. Each Member shall have fifteen (15) days to dispute such valuation, and if no written notice of dispute is delivered to the Liquidating Trustee and the other Members, the notice of valuation shall become final. If such notice of dispute is delivered, the matter shall be submitted to an internationally recognized investment banking firm, accounting firm or valuation firm selected by the Liquidating Trustee from a list of three such firms provided by the disputing Member. The banking, accounting or valuation firm shall make a decision within sixty (60) days of referral, which decision shall be final and binding, and the fees and expenses of such firm shall be borne by the Company.

 

Section 11.05.    Termination of the Company.

 

The Company shall terminate when all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company, shall have been distributed to the holders of Membership Units in the manner provided for in this Article XI, and the Certificate has been cancelled in the manner required by the Act.

 

Section 11.06.    Claims of the Members.. The Members shall look solely to the Company’s assets for the return of their Capital Contributions, and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company are insufficient to return such Capital Contributions, the Members shall have no recourse against the Company or the other Members or any other Person. No Member with a negative balance in such Member’s Capital Account shall have any obligation to the Company or to the other Members or to any creditor or other Person to restore such negative balance upon dissolution or termination of the Company or otherwise.

 

Article XII
Liability and indemnification

 

Section 12.01.    Liability of Members. (a) Except as otherwise provided by the Act or this Agreement, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Covered Person shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Covered Person.

 

(b)                Except as otherwise expressly required by applicable Law, a Member, in its capacity as such, shall have no liability to the Company or to any other Members in respect of any distributions wrongfully distributed to it unless such Member had actual knowledge at the time of the distribution of facts indicating the impropriety of the distribution and if immediately after giving effect to

 

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such distribution all liabilities of the Company (other than liabilities to Members or assignees on account of their Membership Units and liabilities as to which recourse is limited to specific property of the Company) exceed the fair market value of the Company’s assets; provided however, that a Member shall have no liability under this Section 12.01 in respect of any distribution on or after the fourth anniversary of the distribution unless an action to recover such distribution from such Member is commenced prior to such fourth anniversary and an adjudication of liability against such Member is made in such action.

 

Section 12.02.    Indemnification of Covered Person. The Company shall indemnify each Covered Person against, and hold each Covered Person harmless from, all claims, suits, judgments, losses, damages, fines or costs (including reasonable legal fees and expenses) (“Losses”) arising out of or resulting from any breach of any representation or warranty made by the Company herein or the breach of or failure to perform any agreement or covenant made by the Company and contained herein.

 

Section 12.03.    Indemnification by the Company. (a) To the fullest extent permitted by applicable Law, a Covered Person shall be entitled to indemnification from the Company for any Losses incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any Losses incurred by such Covered Person by reason of gross negligence, bad faith or willful misconduct with respect to such acts or omissions; provided however, that any indemnity under this Section 12.03 shall be provided out of and to the extent of Company assets only, and no other Covered Person shall have any personal liability on account thereof.

 

(b)                (i) In the event that any claim, demand, action, suit or proceeding shall be instituted or asserted or any Losses shall arise in respect of which indemnity may be sought by a Covered Person pursuant to Section 12.03(a), such Covered Person shall promptly notify the Company thereof in writing. Failure to provide notice shall not affect the Company’s obligations hereunder except to the extent the Company is actually and materially prejudiced thereby.

 

(ii)                 The Company shall have the right, exercisable subject to the approval of the disinterested Members, to participate in and control the defense of any such claim, demand, action, suit or proceeding and, in connection therewith, to retain counsel reasonably satisfactory to each Covered Person, at the Company’s expense, to represent each Covered Person and any others the Company may designate in such claim, demand, action, suit or proceeding. The Company shall keep the Covered Person advised of the status of such claim, demand, action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Covered Person with respect thereto.

 

(iii)               In any such claim, demand, action, suit or proceeding, any Covered Person shall have the right to retain its own counsel at its own expense; provided however, that the fees and expenses of such Covered Person’s counsel shall be at the expense of the Company if (A) each other Member and such Covered Person shall have mutually agreed to the retention of such counsel, (B) the Company shall have failed, within a reasonable time after having been notified of the existence of an indemnified claim, to assume the defense of such indemnified claim or (C) the named parties to any such claim, demand, action, suit or proceeding (including any impleaded parties) include both the Company and such Covered Person and representation of both parties by the same counsel would be inappropriate in the judgment of the Covered Person (as evidenced by an opinion of counsel) due to actual or potential differing interests between them and the Company shall have failed, within a reasonable time after having been notified of the Covered Person’s objection under this Section 12.03(b)(iii)(C) to such joint representation, to

 

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retain counsel for such Covered Person reasonably satisfactory to such Covered Person. It is understood that the Company shall not, in respect of the legal expenses of any Covered Person, in connection with any claim, demand, action, suit or proceeding or related claims, demands, actions, suits or proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel reasonably satisfactory to the Company) for all such Covered Persons and that all such fees and expenses shall be reimbursed as they are incurred; provided however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of a Covered Person (as evidenced by an opinion of counsel) for the same counsel to represent such Covered Person and any other Covered Person, then such Covered Person shall be entitled to retain its own counsel, in each jurisdiction for which the Covered Person reasonably determines counsel is required, at the expense of the Company.

 

(iv)               The Company shall not be liable for any settlement of any claim, demand, action, suit or proceeding effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with such consent or if there be a final judgment for the plaintiff, the Company agrees to indemnify each Covered Person, to the extent provided in Section 12.03(a), from and against all Losses by reason of such settlement or judgment. The Company shall not effect any settlement of any pending or threatened claim, demand, action, suit or proceeding in respect of which any Covered Person is seeking indemnification hereunder without the prior written consent of each such Covered Person (which consent shall not be unreasonably withheld or delayed by any such Covered Person), unless such settlement includes an unconditional release of each such Covered Person from all liability and claims that are the subject matter of such claim, demand, action, suit or proceeding.

 

(v)                 As necessary or useful to the defending party in effecting the foregoing procedures, the parties shall cooperate in the execution and delivery of agreements, instruments and other documents and in the provision of access to witnesses, documents and property (including access to perform interviews, physical investigations or other activities).

 

(vi)               No amendment or repeal of any of the provisions of this Agreement shall limit or eliminate the benefits provided to the Members under this Section 12.03 or this Article XII.

 

Section 12.04.    Advancement of Expenses. To the fullest extent permitted by applicable Law, expenses (including legal fees) actually and reasonably incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified therefor as authorized in this Article XII.

 

Article XIII
Exclusivity

 

Section 13.01.    Exclusivity. Subject to the Exclusivity Exceptions as defined in the IP License Agreement and also excepting viscosity index improvers, the Members agree that, effective as of the Effective Date, the Company shall be the exclusive vehicle through which they and their respective Affiliates (either individually, together, or with Third Parties) shall develop, make (have made), offer for

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sale, sell, and import Base Oils and Additives derived from BioFene for the Lubricant Market. To the extent that Cosan US or Amyris licenses or sells an Alternative Technology to the Company per the terms of the IP License Agreement or Cosan US License Agreement (as applicable), then the above exclusivity will also include Base Oils and Additives derived from such Alternative Technology for the Lubricants Market. Notwithstanding the foregoing, ARG (directly or through one or more of its Affiliates) may develop, manufacture and sell Base Oils derived from Alternative Technology.

 

Each Member acknowledges and agrees that the covenant contained in this Section has been negotiated in good faith, is reasonable and not more restrictive or broader than is necessary to protect the interests of the Members, and would not achieve its intended purpose if it was on different terms or for a period of time shorter than the period provided for herein or was applied in more restrictive geographical areas than is provided herein. Each Member further acknowledges and agrees that it would not have entered into this Agreement, but for the covenant contained in this Section and that such covenant is essential to protect the value of the Company. Each Member acknowledges that the Company would be irreparably harmed by any breach or threatened breach of this Section and that there will be no adequate remedy at law or in damages to compensate the Company and the other Members for any such breach.

 

Section 13.02.    Non-Solicitation. (a) Each of the Members shall not, and shall cause its respective Affiliates, during the term of each contract between the Company and each employee of the Company, and for a period of one (1) year after the date of such employee’s termination not to, directly or indirectly:

 

(i)                   employ or contract, attempt to employ or contract, or assist anyone in employing or contracting any person who is then, or was, an employee of the Company; or

 

(ii)                 persuade or attempt to persuade any employee of the Company to leave such employment or to become employed by anyone other than the Company.

 

Notwithstanding the foregoing, the provisions of this Section 13.02 shall not apply to (1) any advertisement or general solicitation (or hiring as a result thereof) that is not specifically targeted at the persons described in Section 13.02(a)(i) or (ii) above; (2) any Member’s hiring of any such person who has terminated employment with the Company at least twelve (12) months prior to the commencement of the solicitation of such employee; (3) any Company employee or former employee who initiates such interest in employment; or (4) any employee or former employee of the Company that was an employee of a Member or its Affiliate immediately prior to being an employee of the Company, exclusively in relation to the respective Member that was the employer.

 

Article XIV
Miscellaneous

 

Section 14.01.    Confidential Information. (a) As used herein, “Confidential Information” means any and all information provided by or on behalf of a party hereto (“Disclosing Party”) to another party (or parties) hereto (each a “Receiving Party”) or to their Representatives between March 26, 2013 and the termination of this Agreement, regardless of the form or medium of communication, that relates to the Company or a Member in each case which information is either proprietary to the Company or a Member, as applicable, or is otherwise not available to the general public including, but not limited to, information about properties, employees, finances, strategies, businesses and operations of the Company or of a Member or its Affiliates. In addition, those portions of any notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by a Receiving Party or its Representatives that contain, reflect or are based upon, in whole or in part, Confidential Information furnished to or acquired by such Receiving Party shall also be considered Confidential Information. As used herein,

 

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Representative” means the officers, directors, employees, attorneys, accountants, advisors, consultants, auditors, agents, and actual or prospective investors, underwriters, or acquirers of the applicable party hereto and of its Affiliates.

 

(b)                Except with the prior written consent of the Disclosing Party or as specifically authorized in this Agreement, each Receiving Party shall, and shall cause its Representatives (to the extent such Persons receive any Confidential Information) to, (i) maintain in confidence any and all Confidential Information, (ii) take reasonable precautions to protect Confidential Information, (iii) not disclose Confidential Information to any Person, and (iv) not make any use of such Confidential Information except for the purposes specifically authorized herein.

 

(c)                 A Receiving Party may disclose Confidential Information, without the Disclosing Party’s consent, to those of its Representatives who (1) need to know such Confidential Information for the purpose of assisting such Receiving Party (1) fulfill its obligations or exercise its rights under this Agreement or (ii) evaluate or assist the Company and its business activities and (2) are bound by written obligations of confidentiality and non-use substantially similar to those herein. A Receiving Party may also disclose Confidential Information, without the Disclosing Party’s consent, to the Company and to other Members, but such Receiving Party is not responsible for any breach of this Section 14.01 by the Company or other Members with such Confidential Information. Finally, a Receiving Party or its Affiliates may disclose the terms of this Agreement to actual or prospective investors, underwriters, or acquirers who need to know such Confidential Information to evaluate the Receiving Party’s (or its Affiliates’) business and who are bound by written obligations of confidentiality and non-use substantially similar to those herein.

 

(d)                In addition, a Receiving Party may disclose Confidential Information (including filing this Agreement and all necessary documents regarding this transaction), without the Disclosing Party’s consent, to the extent such disclosure is required, on advice of counsel, by applicable Law (including pursuant to any listing agreement with, or the rules or regulations of, any national securities exchange on which any securities of such Receiving Party (or any Affiliate thereof) are listed or traded); provided, that the Receiving Party making such disclosure or whose Affiliates are making such disclosure shall so notify the other parties hereto as promptly as practicable (and if possible and legally allowed, prior to making such disclosure) and shall seek confidential treatment of such information to the extent available.

 

(e)                 Notwithstanding Section 14.01(a), the provisions of Section 14.01 shall not apply to, and Confidential Information shall not include:

 

(i)                   any information that is or has become generally available to the public other than as a result of a disclosure by any Receiving Party or any Representative thereof in breach of any of the provisions of this Section 14.01;

 

(ii)                 any information that has been independently developed by a Receiving Party (or any Affiliate thereof) without violating any of the provisions of this Agreement or any other similar contract to which such Receiving Party or any of its Representatives, is or are bound; or

 

(iii)               any information made available to such Receiving Party (or any Affiliate thereof), on a non-confidential basis by any third party who is not prohibited from disclosing such information to such Person by a legal, contractual or fiduciary obligation to the Disclosing Party or any of its Representatives.

 

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(f)                 Except as otherwise provided for in this Section 14.01, Confidential Information received hereunder shall be used by each Receiving Party and its Representatives solely for use in connection with such Receiving Party fulfilling its obligations or exercising its rights under this Agreement or evaluating or assisting the Company and its business activities.

 

(g)                 The obligations under this Section 14.01 shall survive for two (2) years after the termination of this Agreement, notwithstanding the possible earlier occurrence of a dissolution of the Company, a Member’s Transfer of its Membership Units, a withdrawal by a Member from the Company and/or any Person ceasing to be an Affiliate of a Member.

 

(h)                Nothing in this Agreement shall be interpreted as vesting, in favor of any Receiving Party or any other Person, any right of ownership or other right in Confidential Information or other intellectual property of a Disclosing Party.

 

Section 14.02.    Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by courier service, by fax or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specification notice given in accordance with this Section 14.02:

 

(i)                   If to the Company:

 

Novvi LLC
5885 Hollis Street
Emeryville, CA 94608
Attention: Jeff Brown, President

 

(ii)                 if to a Member, then to the address or fax number set forth opposite such Member’s name on Schedule 2.01 hereto.

 

In addition, in case of any notice to Cosan US, with a copy to (which shall not constitute notice):

 

Cosan Lubrificantes e Especialidades S.A.
Rua Victor Civita n° 77, Bloco 1, 4° andar
Rio de Janeiro − RJ − Brazil
CEP: 22775-905
Attention: Departamento Juridico

 

Jones Day
222 East 41st Street
New York, NY 10017-6702
Attention:

 

Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados
Alameda Joaquim Eugenio de Lima, 447,
São Paulo − SP − Brazil
Attention:

 

Section 14.03.    Public Announcements. Except per Section 14.01(d), no party to this Agreement (including the Company) shall (i) make, or cause to be made, any press release or public announcement in respect of this Agreement, (ii) use, or caused to be used, the names of any Member or any Affiliate of any Member in any press release or public announcement regarding this Agreement or the

 

 50 
 

Company, or (iii) otherwise communicate with any news media about this Agreement or the Company without the prior written consent of the Members, not to be unreasonably withheld. The parties shall cooperate as to the timing and contents of any such press release or public announcement. Following the initial press release or other authorized public disclosure announcing the existence of this Agreement (if any), each party hereto shall be free to disclose, without the other parties’ prior written consent, the existence of this Agreement, the identity of the other the other parties, and those terms of this Agreement, each to the extent they have already been publicly disclosed in accordance herewith.

 

Section 14.04.    Interpretation. Throughout this Agreement, nouns, pronouns and verbs shall be construed as masculine, feminine, neuter, singular or plural, whichever shall be applicable, Unless otherwise specified, all references herein to “Articles,” “Sections” and paragraphs shall refer to corresponding provisions of this Agreement.

 

Section 14.05.    Severability. If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by any rule of applicable Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions is not affected in any manner materially adverse to any party. Upon a determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

Section 14.06.    Counterparts. This Agreement may be executed and delivered (including by facsimile or email transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Copies of executed counterparts transmitted by telecopy, email, or other electronic transmission service shall be considered original executed counterparts for purposes of this Section 14.06.

 

Section 14.07.    Entire Agreement. This Agreement, together with the Purchase Agreement, the IP License Agreement and the Cosan US License Agreement, constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.

 

Section 14.08.    Governing Law; Submission to Jurisdiction; Arbitration. (a) This Agreement shall be governed by, and construed, interpreted and enforced in accordance with, the Laws of the State of Delaware, without giving effect to the principles or rules of conflicts of law or of choice of law thereof.

 

(b)                In the event of any dispute between the Members and/or the Company involving any of this Agreement, the activities of the Company, or the Company Business, or any combination of the foregoing (other than a dispute subject to Section 5.16), such dispute shall be governed by and resolved subject to this Section 14.08. Notwithstanding anything contained in this Agreement, the Members undertake to use their reasonable efforts to amicably resolve by mutual negotiation of their chief executive officers (or their designees) any disputes between themselves and/or the Company arising from or in connection to this Agreement and/or related hereto, including but not limited to any issues relating to the existence, validity, effectiveness, contractual performance, interpretation, breach or termination hereof. In case such mutual agreement is not reached under this Section, within thirty (30) days after submission of the dispute to the Members’ chief executive officers (or their designees), either Member may refer the dispute to binding arbitration under the then-existing rules (“Arbitration Rules”) of

 

 51 
 

the American Arbitration Association (“Arbitration Chamber”), which will exclusively and finally settle such dispute. The Arbitration Rules are deemed to be incorporated by reference to this Agreement, except as such Arbitration Rules may be modified herein or by mutual agreement by the Members. The arbitration proceedings filed based on this Agreement shall be administered by the Arbitration Chamber. Any such arbitration shall be conducted in accordance with, and subject in all respect to, the following: For the avoidance of doubt, this Section 14.08 equally binds all parties hereto (including the Company) to this Agreement, and such parties hereby agree to submit to and comply with all the terms and conditions of this Section 14.08, which shall be in full force and effect irrevocably, and subject to specific performance. The Company expressly agrees to be bound to these arbitration provisions for all legal purposes. Unless otherwise agreed in writing, the Members shall continue to diligently perform their respective duties and obligations under this Agreement while an arbitral proceeding is pending.

 

(c)                 Any arbitration under this Section 14.08 will be settled by a panel of three (3) arbitrators. If there are only two parties to the arbitration, each party shall nominate one arbitrator in accordance with the Arbitration Rules and the two arbitrators so nominated shall nominate jointly a third arbitrator, who shall serve as the chair of the arbitral tribunal (“Arbitral Tribunal”), within fifteen (15) days from the receipt of a communication from the Arbitration Chamber by the two previously nominated arbitrators. If there are multiple parties, whether as claimants or as respondents, the multiple claimants, jointly, and the multiple respondents, jointly, shall nominate an arbitrator within the time limits set forth in the Arbitration Rules. If any arbitrator has not been nominated within the time limits specified herein and/or in the Arbitration Rules, as applicable, such appointment shall be made by the Arbitration Chamber upon the written request of any party within fifteen (15) days of such request, If at any time a vacancy occurs in the Arbitral Tribunal, the vacancy shall be filled in the same manner and subject to the same requirements as provided for the original appointment to that position. The Company as an intervening party to this Agreement shall be a party to the arbitration proceeding only to the extent it may have to implement the award to be rendered, but it waives its right to appoint any arbitrator.

 

(d)                The place of arbitration shall be the city of New York, New York, U.S.A., where the award(s) shall be rendered, and all arbitration proceedings shall be conducted in English.

 

(e)                 An arbitration award shall be final, unappealable and binding on the parties, including the Company, their successors and assignees, who agree to comply with it and spontaneously and expressly waive any form of appeal, except for the request for fraud, correction of material error or clarification of uncertainty, doubt, contradiction or omission of the arbitration award. If necessary, an arbitration award may be enforced in any court that has jurisdiction or authority over the Members, the Company, or their assets. The arbitration award will include the distribution of costs, including reasonable attorney’s fees and reasonable expenses as the Arbitral Tribunal sees fit.

 

(f)                 The Members and the Company are fully aware of all terms and effects of the arbitration provisions herein agreed upon and irrevocably agree that arbitration hereunder is the only form of resolution of any disputes between any of the Members or any Member and the Company or among themselves arising from or in connection with this Agreement and/or related thereto (except those subject to Section 5.16). Without prejudice to the validity of these arbitration provisions, the Members and/or the Company may seek judicial assistance and/or relief, if and when necessary, for the sole purposes of:

 

(i)                   executing obligations that admit, forthwith, specific performance;

 

(ii)                 obtaining coercive or precautionary measures or procedures of a preventive, provisional or permanent nature, as security for the arbitration to be commenced or already in course between the Members and/or to ensure the existence and efficacy of the arbitration proceeding; or

 

 52 
 

(iii)               fraud, correction of material error or clarification of uncertainty, doubt, contradiction or omission of the arbitration award; or

 

(iv)               obtaining measures of a mandatory and specific nature;

 

it being understood that, upon accomplishment of the mandatory or specific enforcement procedures sought, the dispute shall be returned to the Arbitral Tribunal to be established or already established, as applicable, full and exclusive authority to decide on all and any issues, whether related to procedure or merit, which has caused the mandatory or specific enforcement claim, with the respective judicial proceeding being interrupted until the partial or final decision of the Arbitral Tribunal.

 

For the measures indicated in (i) through (iv) above, the Members and/or the Company elect any state or U.S. federal court located in the city of New York, New York, U.S.A., to the exclusion of any other courts, and the Members and/or the Company hereby irrevocably submit to the exclusive jurisdiction of any state or U.S. federal court located within the city of New York, New York, U.S.A. over any such action. The Members and/or the Company hereby irrevocably waive, to the fully extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such action brought in such court or any defense of inconvenient forum for the maintenance of such action. The filing of any measure under this Subsection (f) does not entail any waiver to the arbitration under this Section 14.08 or to the full jurisdiction of the Arbitral Tribunal.

 

(g)                 The Members, the Company, and their respective Representatives, the witnesses, the Arbitral Tribunal, the Arbitration Chamber and its secretariat agree to treat the existence, content, awards and decisions relating to an arbitration proceeding hereunder, together with all the materials, information and testimony used therein or created for the purposes thereof, as well as other documents produced or disclosed by the other Member or by the Company during the arbitration proceeding as Confidential Information of the other Member or the Company, subject to the obligations and exceptions in Section 14.01.

 

(h)                In order to facilitate the comprehensive resolution of related disputes under this Agreement, the Purchase Agreement, the IP License Agreement, and/or the Cosan US License Agreement, any or all such disputes may be brought in a single arbitration under the following circumstances and conditions: If one or more arbitrations are already pending between the Members and/or the Company hereunder or under the Purchase Agreement, the IP License Agreement or under the Cosan US License Agreement and a new dispute arises between the Members and/or the Company under any of said agreements or a subsequently filed arbitration is brought between the Members and/or the Company under any said agreements, then a Member or the Company may request that such new dispute or any subsequently filed arbitration be consolidated into any prior pending arbitration. Within twenty (20) days of a request to consolidate, the parties to the new dispute or the subsequently filed arbitration shall select one of the prior pending arbitrations into which the new dispute or subsequently filed arbitration may be consolidated (“Selected Arbitration”). If the parties to the new dispute or subsequently arbitration are unable to agree on the Selected Arbitration within such twenty (20) day period, then the Arbitration Chamber shall indicate the Selected Arbitration within twenty (20) days of a written request by a party to the new dispute or the subsequently filed arbitration. If the Arbitration Chamber fails to indicate the Selected Arbitration within the 20-day time limit indicated above, the arbitration first initiated shall be considered the Selected Arbitration. The new dispute or subsequently filed arbitration shall be so consolidated, provided that the Arbitral Tribunal for the Selected Arbitration determines that: (i) the new dispute or subsequently filed arbitration presents significant issues of law or fact common with those in the Selected Arbitration; (ii) no party to the new dispute or to the Selected Arbitration would be unduly harmed; and (iii) consolidation under these circumstances would not result in undue delay for the Selected Arbitration, Any such order of consolidation issued by the Arbitral Tribunal shall be final and binding

 

 53 
 

upon the parties to the new dispute, the Selected Arbitration and subsequently filed arbitrations, The Members and the Company waive any right they may have to appeal or to seek interpretation, revision or annulment of such order of consolidation under the Arbitration Rules and/or the applicable Law in any court. The Arbitral Tribunal for the Selected Arbitration into which a new dispute or subsequently filed arbitration is consolidated shall serve as the Arbitral Tribunal for the consolidated arbitration.

 

(i)                  Subject to applicable Law and this Section 14.08, process in any dispute, claim, action, suit or proceeding to enforce any arbitral award rendered pursuant to and as provided in this Agreement may be served on a Member or the Company anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Member and the Company agrees that service of process on a Member or the Company at the location, and as provided, in Section 14.02 shall be deemed effective service of process on such Member or the Company, as applicable. Nothing herein shall affect the right of any Member or the Company to serve legal process in any other manner permitted by applicable Law or at equity.

 

(j)                  WITH RESPECT TO ANY DISPUTE, CLAIM, ACTION, SUIT OR PROCEEDING BETWEEN THE PARTIES IN CONNECTION WITH THIS AGREEMENT THAT, PER THIS AGREEMENT OR APPLICABLE LAW MAY BE BROUGHT IN A COURT, EACH OF THE PARTIES IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH DISPUTE, CLAIM, ACTION, SUIT OR PROCEEDING.

 

Section 14.09.    Specific Performance. Subject to compliance with Section 14.08 above, the parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties hereto shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.

 

Section 14.10.    Expenses. Except as otherwise specified in this Agreement, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shalt be paid by the party incurring such costs and expenses.

 

Section 14.11.    Amendments and Waivers; Assignment. (a) Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all parties hereto, or in the case of a waiver, by the party or parties against whom the waiver is to be effective; provided, however, that Schedule 2.01 to this Agreement shall be deemed amended from time to time to reflect the admission of a new Member, the withdrawal or resignation of a Member and the adjustment of the Membership Units resulting from any Transfer or other disposition of a Membership Unit, in each case that is made in accordance with the provisions hereof.

 

(b)                No failure or delay by any party in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable Law.

 

(c)                 The respective rights and obligations of the Members under this Agreement may not be assigned without the prior written consent of the other Members. The consent of the other Members shall not be unreasonably withheld. In case of an assignment to a Controlled company, Controlling company or company under common Control, such consent shall not be withheld in any circumstance if the assigning party remains liable for the obligations of the assignee under this Agreement

 

 54 
 

or guarantees the fulfillment of such obligations, as provided for in Section 10.02(b), except in the case in which Cosan US requests assignment to a joint venture company formed by Cosan US or any Affiliate thereof and Shell International Petroleum Company Limited or any Affiliate thereof, in which case the consent of Amyris may be withheld in its sole and absolute discretion.

 

Section 14.12.    No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their permitted assigns and successors and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Without limiting the foregoing, any obligation of the Members to make Capital Contributions to the Company under this Agreement is an agreement only between the Members and no other person or entity, including the Company, shall have any rights to enforce such obligations.

 

Section 14.13.    Headings. The headings and subheadings in this Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.

 

Section 14.14.    Construction. Each party hereto acknowledges and agrees it has had the opportunity to draft, review and edit the language of this Agreement and that no presumption for or against any party arising out of drafting all or any part of this Agreement will be applied in any controversy, claim or dispute relating to, in connection with or involving this Agreement. Accordingly, the parties hereby waive the benefit of any rule of applicable Law, including California Civil Code Section 1654 and any successor or amended statute, or any legal decision which would require that in cases of uncertainty, the language of a contract should be interpreted most strongly against the party who drafted such language.

 

Section 14.15.    Further Assurances. Each of the Members hereto shall use reasonable efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective the transactions contemplated hereunder, including, without limitation, using reasonable efforts to obtain all licenses, permits, consents, approvals, authorizations, qualifications and orders of the competent governmental entities. Each of the Members shall cooperate with the other when required in order to effect the transactions contemplated hereunder. In case at any time after the date hereof, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each of the parties hereto shall use their reasonable efforts to take all such action.

 

 55 
 

IN WITNESS WHEREOF, the parties hereto have entered into this Agreement or have caused this Agreement to be duly executed by their respective authorized officers, in each case as of the Effective Date.

 

  AMYRIS, INC.  
       
  By:    /s/ R. Asadorian  
    Name: R. Asadorian  
    Title:   CFO  
       
  COSAN US, INC.  
       
  By:    
    Name:  
    Title:  
       
  American Refining Group, Inc.
       
  By:    
    Name:  
    Title:  
       
  NOVVI LLC  
       
  By:    
    Name:  
    Title:  
       
  By:    
    Name:  
    Title:  

 

[Second Amended and Restated Operating Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have entered into this Agreement or have caused this Agreement to be duly executed by their respective authorized officers, in each case as of the Effective Date.

 

 

  AMYRIS, INC.  
       
  By:      
    Name:  
    Title:     
       
  COSAN US, INC.  
       
  By:    
    Name:  
    Title:  
       
  COSAN US, INC.
       
  By: /s/ (ILLEGIBLE)  
    Name: (ILLEGIBLE)  
    Title: Director  
       
  American Refining Group, Inc.
       
  By:    
    Name:  
    Title:  
       
  NOVVI LLC
       
  By:     
    Name:  
    Title:  
       
  By:     
    Name:  
    Title:  
       

 

[Second Amended and Restated Operating Agreement]

 

IN WITNESS WHEREOF, the parties hereto have entered into this Agreement or have caused this Agreement to be duly executed by their respective authorized officers, in each case as of the Effective Date.

 

  AMYRIS, INC.  
       
  By:      
    Name:  
    Title:     
       
  COSAN US, INC.  
       
  By:    
    Name:  
    Title:  
       
  American Refining Group, Inc.
       
  By:   /s/ Timothy M. Brown  
    Name: Timothy M. Brown  
    Title: CEO  
       
  NOVVI LLC
       
  By:     
    Name:  
    Title:  
       
  By:     
    Name:  
    Title:  
       

 

[Second Amended and Restated Operating Agreement]

 

IN WITNESS WHEREOF, the parties hereto have entered into this Agreement or have caused this Agreement to be duly executed by their respective authorized officers, in each case as of the Effective Date.

 

  AMYRIS, INC.  
       
  By:      
    Name:  
    Title:     
       
  COSAN US, INC.  
       
  By:    
    Name:  
    Title:  
       
  American Refining Group, Inc.
       
  By:    
    Name:  
    Title:  
       
  NOVVI LLC
       
  By:  /s/ Jason R. Wells  
    Name: Jason R. Wells  
    Title: CTO  
       
  By:  /s/ Jeffrey Brown  
    Name: Jeffrey Brown  
    Title: President & CEO  
       

 

 

[Second Amended and Restated Operating Agreement]

 

Schedule 2.01

 

List of Members and Addresses

 

 

 

Amyris, Inc.
5885 Hollis Street, Suite 101
Emeryville, CA 94608
Attn:     General Counsel

 

Cosan US, Inc.
2711 Centerville Road, Suite 400
Wilmington, Delaware 19808
Attn:     President

 

American Refining Group, Inc.

100 Four Falls, Suite 215

West Conshohocken, PA 19428

Attn:     General Counsel

 

 

i

 

SCHEDULE 4.01(a)

 

Prior Capital Contributions

 

Amyris:

 

Capital Contribution         M. Units Event
     
$10,000,100* 100,001 Original allocation upon execution of Amended & Restated Operating Agreement (March 26, 2013) ($100 was from the original incorporation of Novvi LLC)
     
$237,266.78 2,372 LAO reconciliation (April 1, 2014)
     
$2,075,000.00 20,750 Capital Call (April 10, 2014)
     
$545,219.26** 5,452 Capital Call (February 4, 2016)
     
$4,778,673.00** 71,425 Conversion of Member Loans (July 19, 2016)
     
$17,636,259.04 200,000 TOTAL
     
*Represents entrance into an expanded IP License Agreement as its contribution
**Represents forgiveness of past due rent & Glycotech payments as its contribution
 
Cosan US:
 
Capital Contribution M. Units Event
     
$10,000,100 100,001 Original allocation upon execution of Amended & Restated Operating Agreement (March 26, 2013) ($100 was from the original incorporation of Novvi LLC)
     
$237,266.78 2,372 LAO reconciliation (April 1, 2014)
     
$2,075,000.00 20,750 Capital Call (April 10, 2014)
     
$545,219.26 5,452 Capital Call (February 4, 2016)
     
$ 4,778,673.00 71,425 Conversion of Member Loans (July 19, 2016)
     
$17,636,259.04 200,000 TOTAL
     
ARG:
     
Capital Contribution M. Units Event
     
$4,000,000 200,000 Initial cash investment pursuant to that certain Equity Purchase Agreement, dated July 19, 2016.

 

i

 

SCHEDULE 4.01(c)

 

Holder of Membership Units

 

Membership Units Initial Percentage Interest Holder
200,000 33.33% Amyris
200,000 33.33% Cosan US
200,000 33.33% ARG
600,000 100%  

 

 

 

i

 

Exhibit A

 

Member Certificate
Second Amended and Restated Operating Agreement of Novvi LLC

 

THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE UNITED STATES SECURITIES ACT OF 1933 OR AN EXEMPTION THEREFROM AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS.

 

THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SECOND AMENDED AND RESTATED OPERATING AGREEMENT DATED AS OF JUNE ___, 2016, AS IT MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY. NO REGISTRATION OF TRANSFER OF THESE MEMBERSHIP UNITS WILL BE MADE ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH.

 

All capitalized terms used herein, and not otherwise defined, have the meaning set forth in the Second Amended and Restated Operating Agreement of Novvi LLC, dated as of June ___, 2016, as amended from time to time (the “Agreement”).

 

The undersigned hereby acknowledges that [in exchange for a capital contribution with a value of US$___________,] the undersigned [has received/is the Transferee of] [__] Membership Units in Novvi LLC (the “Company”).

 

The undersigned further acknowledges that it has been given a copy of, and has reviewed carefully, the Agreement. The undersigned agrees to be bound by all terms and provisions of the Agreement [and to assume all obligations of the transferor of such Membership Units]. The undersigned hereby accepts, ratifies and agrees to be bound by all actions duly taken pursuant to the terms and provisions of the Agreement by the Company prior to the date hereof.

 

Dated ,   .  
           
           
          [Name of Member]
             

 

 

A-1

 

Exhibit B

 

Fair Market Value Methodology

 

Fair Market Value”, for purposes of the Agreement, shall be calculated in accordance with the rules set forth below.

 

The Fair Market Value of the Company and its corresponding Membership Units shall be calculated according to the following procedure:

 

(i)the Fair Market Value shall be determined by two (2) internationally recognized and reputable investment banks, with experience in the appraisal of assets in the lubricants (or similar market), being chosen by unanimous agreement of Amyris, Cosan US, and ARG (“Appraisers”) within ten (10) Business Days as from the date the determination of a Fair Market Value is triggered. The Appraisers shall be engaged by the Company, but the costs arising in connection with the determination of the Fair Market Value shall be equally shared by the Members. The Company shall provide both Appraisers with the same information that may be required by any Appraiser;

 

(ii)with respect to the Membership Units, the Fair Market Value shall be determined by the Appraisers based on the following criteria: (a) such Membership Units shall be appraised as if the total number of Membership Units were available for purchase and were purchased by Third Parties on an arms’ length basis, without any discount; (b) the then-current status and the expected future results of the Company; and (c) the discounted projected future cash flows of the Company, based on the Company’s applicable business plan and budget, or, if the Company has not started to conduct the business, the Fair Market Value shall be determined considering the capital employed by the Members;

 

(iii)if any Appraiser presents a value range/band instead of a single value, the Fair Market Value provided by such Appraiser shall be the mean of such value range/band, provided that the Appraisers shall be aware that in no event such band, for the purposes of the assessment of the Fair Market Value, shall exceed twenty percent (20%) of either the minimum or the maximum value amongst the value range/bands presented;

 

(iv)the Appraisers shall determine the Fair Market Value within thirty (30) days as from the date on which they were engaged for such purpose, and the result of their work shall be submitted simultaneously to the Company and all Members in writing;

 

(v)the binding Fair Market Value shall be the mean of both appraisals

 

(vi)absent of a manifest error, the Fair Market Value assessed according to the terms hereof shall be final, binding and shall not be subject to any opposition from any Member, and shall remain valid for the purposes hereof for a period of one hundred and twenty (120) days from the date it was finally assessed.

 

B-1

 

EX-10.03 5 exh_1003.htm EXHIBIT 10.03

Exhibit 10.03

 

CONFIDENTIAL TREATMENT REQUESTED. CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND, WHERE APPLICABLE, HAVE BEEN MARKED WITH AN ASTERISK TO DENOTE WHERE OMISSIONS HAVE BEEN MADE. THE CONFIDENTIAL MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

 

CONFIDENTIAL

Amended & Restated IP License Agreement

 

 

 

This Amended & Restated IP License Agreement (the “License Agreement”) is made and entered into effective as of July 19, 2016 (the “Effective Date”) by and between Amyris, Inc., a Delaware corporation, having its place of business at 5885 Hollis Street, Suite 100, Emeryville, California 94608 (“Amyris”) and Novvi LLC, a Delaware limited liability corporation, having its place of business at 5885 Hollis Street, Suite 100, Emeryville, California 94608 (“Novvi LLC”). Amyris and Novvi LLC are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

 

WHEREAS, Amyris and Cosan US, Inc. formed Novvi LLC on September 6, 2011, with each owning fifty percent (50%) of the membership units of Novvi LLC, to operate a joint venture involving the development, production, marketing and sale of Base Oils (as defined below), Additives (as defined below), and Lubricants (as defined below) for use in the Lubricants Markets (as defined below);

 

WHEREAS, on March 26, 2013, Amyris and Cosan US executed an Amended and Restated Operating Agreement for Novvi LLC (“Amended and Restated Operating Agreement”) to memorialize their respective initial capital contributions to Novvi LLC and to establish how they will operate Novvi LLC;

 

WHEREAS, in order to fulfill its initial capital contribution to Novvi LLC under the Amended and Restated Operating Agreement and to enable Novvi LLC to fulfill its intended purpose to develop, produce, market, and sell Base Oils, Additives, and Lubricants, Amyris and Novvi LLC executed an IP License Agreement (the “Original License Agreement”) under which Amyris agreed to license Novvi LLC rights under certain of its intellectual property;

 

WHEREAS, the Parties amended certain portions of the Original License Agreement on March 21, 2016 through an amendment #1 to the Original License Agreement;

 

WHEREAS, on July 19, 2016, due to the addition of American Refining Group, Inc. as a new member of Novvi LLC, Amyris and Cosan US amended and restated the Amended and Restated Operating Agreement (as such document may be further amended from time-to-time, the “Second Amended and Restated Operating Agreement”);

 

WHEREAS, in conjunction with the execution of the Second Amended and Restated Operating Agreement, the Parties desire to further amend and restate the Original License Agreement through their execution of this License Agreement; and

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained in this License Agreement, the Parties hereby agree as follows:

 

ARTICLE 1

 

DEFINITIONS

 

Terms defined in this Article 1 and parenthetically elsewhere, including the introductory paragraph and the recitals, will have the same meaning throughout this License Agreement unless otherwise specified.

 

Additive” means any material added to a Base Oil to change its properties, characteristics, or performance (e.g., anti-foam, anti-wear, corrosion inhibitor, detergent, dispersant, pour point depressant, anti-oxidant, viscosity index improver, or friction modifier).

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Affiliate” means, with regard to a particular entity (a “First Person”), any person or entity who, directly or indirectly, through one or more intermediates, Controls the First Person, is Controlled by the First Person, or is under common Control with the First Person. Notwithstanding the preceding definition, for purposes of this License Agreement, Novvi LLC is not considered an Affiliate of Amyris or Cosan US (or their respective Affiliates) nor are Amyris and Cosan US (or their respective Affiliates) considered Affiliates of Novvi LLC.

 

Alternative Technology” means a technology (other than a BioFene-related technology) from a renewable source or a molecule (other than a BioFene-derived molecule) from a renewable source from which Base Oils or Additives, in each case, for the Lubricants Market could reasonably be expected to be developed or made.

 

Amyris Base Technology” means the Patents and Know-How that (i) are Controlled by Amyris as of the Effective Date or become Controlled by Amyris during the term of Novvi LLC’s licenses under Section 2.1 and (ii) are necessary or reasonably useful for the development, making (and having made), offering for sale, sale, and importing of Base Oils, Additives, and Lubricants derived from BioFene. For the avoidance of doubt, the term “Amyris Base Technology” expressly excludes any Amyris BioFene Manufacturing Technology.

 

Amyris BioFene Manufacturing Technology” means the Patents and Know-How that (i) are Controlled by Amyris and (ii) are necessary or reasonably useful for the development, making (and having made), offering for sale, sale, and importing of BioFene itself, including, but not limited to, the escrowed BioFene Production Strain and any Patents and Know-How related to the genetic engineering of such BioFene Production Strain, the fermentation methods for making BioFene, the methods of recovery of BioFene from fermentation broth, the processes of isolating BioFene directly from fermentation broth, and the methods of purifying BioFene. The term “Amyris BioFene Manufacturing Technology” also includes any and all Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements, but expressly excludes any Novvi LLC BioFene Transformation Technology

 

Amyris Breach Invention” means any and all inventions, discoveries, data, and information, whether or not copyrightable or patentable, conceived, reduced to practice, made, observed or developed (together with all intellectual property rights related thereto) by or on behalf of Amyris or its Affiliates or sublicensees, solely or jointly with others, in violation of the license granted to it in Section 2.2.

 

"Amyris Invention" means any and all inventions, discoveries, data, and information, whether or not copyrightable or patentable, conceived, reduced to practice, made, observed or developed (together with all intellectual property rights related thereto) by or on behalf of Amyris, solely or jointly with others. The term “Amyris Invention” includes any improvement by or on behalf of Amyris, solely or jointly with others, during the term of Amyris’s license under Section 2.2 to Novvi LLC BioFene Transformation Technology, but excludes Amyris Breach Inventions.

 

Amyris Pre-Signature Base Technology” means Amyris Base Technology used by Amyris or an Amyris Affiliate to produce Base Oils or Lubricants offered for sale, sold, or sampled to Third Parties before the Effective Date.

 

Applicable Law” means any law, rule, treaty, or regulation of any governmental authority or any judgment, order, write, decree, permit or license of any governmental authority of competent jurisdiction, in each case applicable to the Party or activity at issue.

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Base Oil” means a fluid base compound to which other oils, Additives, or components are added to produce a Lubricant.

 

BioFene” means farnesene produced through Amyris BioFene Manufacturing Technology.

 

By-Products” means those by-products directly resulting from (1) Novvi LLC’s manufacture, under its license in Section 2.1(a)(i), of Base Oils, Additives, or Lubricants derived from BioFene solely for the Lubricants Market or (2) the manufacture of Base Oils, Additives, or Lubricants derived from BioFene solely for the Lubricants Market by a permitted sublicensee of Novvi LLC per a sublicense under Sections 2.1(b) or (c). For clarity, Diesel By-Products are a subset of By-Products.

 

Copyrights” means all copyrights, whether in published or unpublished works; databases, data collections and rights therein, mask work rights, software, web site content; rights to compilations, collective works and derivative works of any of the foregoing and moral rights in any of the foregoing; registrations and applications for registration for any of the foregoing and any renewals or extensions thereof; and moral rights and economic rights of others in any of the foregoing.

 

Control” (including any variations such as “Controls, “Controlled” or “Controlling”) means:

 

(i)in the context of Patents and Know-How, rights under and to such Patents and Know-How held by a Party, whether by ownership or license, sufficient to grant the applicable license or rights under this License Agreement without violating the terms of any arrangement with any Third Party; and

 

(ii)in the definition of Affiliate, (1) possessing, directly or indirectly, the power to direct the management or policies, whether through the ownership of voting securities, by contract relating to voting rights or corporate governance, or otherwise, or (2) ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities or other ownership interest.

 

“Escrow Agreement” means the Strain Escrow Agreement, dated July 19, 2016, by and between Amyris, Novvi LLC, and SciSafe Inc., as may be amended from time-to-time.

 

European Union” means those countries that were members of the European Union as March 21, 2016, which countries are listed on Exhibit A to this Agreement.”

 

Exclusivity Exceptions” means the rights retained by Amyris under Amyris Base Technology for (i) itself and its Affiliates working independently or together, (ii) Total working independently, and (iii) Total and Amyris (and/or Amyris Affiliates) working together, to develop, make (and have made), offer for sale, sell, and import Base Oils derived from BioFene for use in the Lubricants Market but only to the extent such Base Oils are used as a component in such entities’ own Lubricants in such market. For clarity, Total, Amyris and/or Amyris Affiliates have no retained rights under Amyris Base Technology to develop, make (have made), offer for sale, sell, or import any Base Oil derived from BioFene for use in the Lubricants Market as a product separate and apart from a finished Lubricant.

 

Exploit” means to make, have made, import, use, sell, have sold, distribute, dispose of or offer to dispose of, market, promote or offer for sale including to research and develop.

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Insolvency Event” means:

 

(i)an involuntary petition under any bankruptcy or insolvency law or under the reorganization provisions of any such law is filed with respect to a Party or a receiver of, or for, the property of a Party is appointed without acquiescence or consent of such Party, which petition or appointment remains undischarged or unstayed for an aggregate period of ninety (90) days (whether or not consecutive); or

 

(ii)a Party consents to the entry of an order for relief against it in an involuntary case under any bankruptcy or insolvency law or under the reorganization provisions of any such law; or

 

(iii)a voluntary petition under any bankruptcy or insolvency law or under the reorganization provisions of any such law is filed by a Party, a voluntary assignment of a Party’s property for the benefit of creditors is made, or a receiver of, or for, the property of a Party is appointed by, or acquiesced or consented to, by such Party.

 

Joint BioFene Manufacturing Improvements” means any and all inventions, discoveries, data, and information, whether or not copyrightable or patentable, conceived, reduced to practice, made, observed or developed (together with all intellectual property rights related thereto) jointly by or on behalf of Amyris and Novvi LLC (or their respective Affiliates, employees, sublicensees, contractors, or agents) that are based upon, derived from, incorporating, in connection with or related to Amyris BioFene Manufacturing Technology, including in connection with the conversion or operation of a sugar/ethanol mill to include the manufacture of BioFene or the operation of such mill or facility in connection with Novvi LLC’s manufacture of BioFene.

 

Joint Invention” means any and all inventions, discoveries, data, and information, whether or not copyrightable or patentable, conceived, reduced to practice, made, observed or developed (together with all intellectual property rights related thereto) jointly by or on behalf of Amyris and Novvi LLC (or their respective Affiliates, employees, sublicensees, contractors, or agents) during the term of this License Agreement, other than Joint BioFene Manufacturing Improvements.

 

Know-How” means any non-patented information and tangible materials, including: (i) technical and non-technical data, specifications, formulae, compounds, formulations, assays, designs, results, information, conclusions, interpretations, inventions, developments, discoveries, ideas, improvements, and trade secrets, (ii) methods, databases, tests, procedures, processes, and techniques, (iii) escrowed Production Strains (if applicable), and (iv) other know-how and technology including Copyrights.

 

Lubricant” means all substances introduced between two moving surfaces to reduce the friction between them, improving efficiency and reducing wear, or dissolving or transporting foreign particles, or distributing heat, in each case comprising a formulation of at least one Base Oil combined or blended with Additives, sold as a finished product for automotive and industrial applications, for use in, by way of example only: automotive, 2-cycle, marine and other engines, ship lubrication, hydraulic equipment, food processing equipment and machinery, and wind turbines. However, the term “Lubricants” expressly excludes drilling oils, fluids and muds, in accordance with the standards set by American Petroleum Institute.

 

Lubricants Market” means the worldwide market for automotive, commercial, and industrial Lubricants. For the avoidance of doubt, the following markets, but not limited to the following markets, are expressly excluded from the term “Lubricants Market”: the markets for flavors and fragrances, food additives, cosmetics and personal care, drilling oils, fluids and muds, fuels, cleaners, paints, coatings, ink,

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consumer-packaged goods, pesticides, and pharmaceuticals.

 

Novvi LLC BioFene Transformation Technology” means the Patents and Know-How in each case that (i) are Controlled by Novvi LLC as of the Effective Date or become Controlled by Novvi LLC during the term of Amyris’s license under Section 2.2 (in each case other than Patents and Know-How licensed from Amyris) and (ii) are related to the chemical transformation of BioFene or a BioFene-derivative into another compound. For clarity, the term “Novvi LLC BioFene Transformation Technology” does not include Novvi LLC Breach Inventions.

 

"Novvi LLC BioFene Manufacturing Improvement" means any and all inventions, discoveries, data, and information, whether or not copyrightable or patentable, conceived, reduced to practice, made, observed or developed (together with all intellectual property rights related thereto) by or on behalf of Novvi LLC or its Affiliates or sublicensees, solely or jointly with others that are based upon, derived from, incorporating, in connection with or related to Amyris BioFene Manufacturing Technology.

 

Novvi LLC Breach Invention” means any and all inventions, discoveries, data, and information, whether or not copyrightable or patentable, conceived, reduced to practice, made, observed or developed (together with all intellectual property rights related thereto) by or on behalf of Novvi LLC or its Affiliates or sublicensees, solely or jointly with others, in violation of the licenses granted to it in Sections 2.1 or 2.3.

 

"Novvi LLC Invention" means any and all inventions, discoveries, data, and information, whether or not copyrightable or patentable, conceived, reduced to practice, made, observed or developed (together with all intellectual property rights related thereto) by or on behalf of Novvi LLC, solely or jointly with others. The term “Novvi LLC Invention” includes any improvement by or on behalf of Novvi LLC, solely or jointly with others, during the term of Novvi LLC’s licenses under Section 2.1 to Amyris Base Technology, but excludes Novvi LLC Breach Inventions and any Novvi LLC BioFene Manufacturing Improvements or Joint BioFene Manufacturing Improvements.

 

Patents” means any patents, patent applications, or certificates of invention, together with all additions, divisions, continuations, continuations-in-part, provisionals, converted provisionals, substitutions, reissues, re-examinations, revalidations, extensions, registrations, patent term extensions, supplemental protection certificates, renewals, and the like with respect to any of the foregoing.

 

Production Strain” means a recombinant yeast or some other microbial agent that has been genetically engineered to make a desired compound or product by means of a fermentation process. For clarity, the term Production Strain encompasses populations, subpopulations, and derivatives of such genetically engineered yeast or other microbial agent.

 

Third Party” means any person, corporation, joint venture or other entity, other than Novvi LLC, Amyris, Cosan US, their respective Affiliates, or their respective permitted successors and assigns.

 

Total” means Total Gas & Power USA, SAS, a société par acions simplifiée organized under the laws of the Republic of France, and its Affiliates.

 

The following terms have the meanings set forth in the Section set forth opposite such term.

 

Term Section
   
Amended and Restated Operating Agreement Recitals
Amyris Introductory paragraph

 

 

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Amyris Designate 5.9(a)
Amyris Indemnitees 7.2
Amyris Third Party Claim 7.2
Arbitral Tribunal 8.2(c)
Arbitration Chamber 8.2(b)
Arbitration Rules 8.2(b)
Assumption Notice 7.3(b)
Code 2.6
Confidential Information 5.10(a)
Diesel By-Products 4.1
Disclosing Party 5.10(a)
Effective Date Introductory paragraph
Escrow Agent 2.3(c)
Escrowed Materials 2.3(c)
Exercise Notice 3.3(a)
Indemnification Claim Notice 7.3(a)
Indemnified Party 7.3(a)
Indemnifying Party 7.3(a)
Jet Fuel By-Product 4.2(a)
License Agreement Introductory paragraph
License Conversion Event 2.3(b)
Losses 7.1
Novvi LLC Introductory paragraph
Novvi LLC Designate 5.9(b)
Novvi LLC Indemnitees 7.1
Novvi LLC Third Party Claim 7.1
Original License Agreement Recitals
Parties Introductory paragraph
Party Introductory paragraph
Receiving Party 5.10(a)
Representative 5.10(a)
ROFO 3.1
ROFO Notice 3.2
Second Amended and Restated Operating Agreement Recitals
Selected Arbitration 8.2(h)
SOPs 2.3(c)
Third Party Claim 7.3(a)

 

ARTICLE 2

 

LICENSE GRANTS

 

2.1 Licenses to Novvi LLC under Amyris Base Technology.

 

(a) Licenses to Make Base Oils, Additives, and Lubricants from BioFene. Subject to the terms and conditions in this License Agreement, Amyris hereby grants Novvi LLC:

 

(i)an exclusive (except as to the rights retained in the scope of the Exclusivity Exceptions), worldwide, royalty-free, non-sublicensable (except as set forth in Subsections (b) and (c) below), and non-assignable license under Amyris Base Technology to Exploit Base Oils, Additives (other than viscosity index improvers), and Lubricants derived from BioFene

 

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solely for the Lubricants Market and, as described below in this Section 2.1(a), for such customers outside the Lubricants Market for whom Amyris grants a waiver; and

 

(ii)subject to the limitations in Article 4 restricting the sale of By-Products for use in or as (i) diesel fuel in the European Union and (ii) jet fuel worldwide, a non-exclusive, worldwide, royalty-free, non-sublicensable, and non-assignable license under Amyris Base Technology to offer for sale, sell, and import any By-Products

 

(iii)a non-exclusive, worldwide, royalty-free, non-sublicensable (except as set forth in Subsections (b) and (c) below), and non-assignable license under Amyris Base Technology to Exploit Additives that are viscosity index improvers derived from BioFene solely for the Lubricants Market.

 

Consistent with the scope of its licenses in (a)(i) and (iii), Novvi LLC and its Affiliates shall not sell any Base Oil, Additive, or Lubricant derived from BioFene to any Third Party that Novvi LLC or its Affiliates knows has previously resold or used, or intends to resell or use, such product outside of the Lubricants Market, and Amyris acknowledges that Novvi LLC and its Affiliates will not be responsible for any resale or use of a Novvi LLC or Novvi LLC Affiliate’s Base Oil, Additive, or Lubricant derived from BioFene outside of the Lubricants Market by any Third Party whom Novvi LLC or its Affiliates did not know had previously resold or used, or intended to resell or use, such product outside of the Lubricants Market.

 

If Novvi LLC or its Affiliate identify an opportunity to sell Base Oil derived from BioFene outside of the Lubricants Market to a potential customer that is currently using a Base Oil composed of any combinations of Base Oil Groups I-IV as defined by the American Petroleum Institute, Novvi LLC will provide written notice to Amyris of the opportunity and state the rationale for seeking a waiver to the scope of the license in Section 2.1(a)(i) regarding such opportunity.  Amyris will promptly consider such waiver request in good faith and not unreasonably withhold its approval of such request. However, if Amyris has licensed such opportunity to a Third Party or has an ongoing business relationship with such prospective customer as of the date of such notice, then declining to grant such waiver will never be considered unreasonable. If Amyris approves a waiver, it must be in writing to be effective, and then the sale of Base Oil derived from BioFene by Novvi LLC to such potential customer for such approved use, and future sales to such potential customer for such approved use, will not be a breach of its license hereunder, subject to compliance with the preceding paragraph regarding knowledge of such customer’s previous or intended use or resale of the products outside such approved use or the Lubricants Market.

 

(b) Sublicense Rights to Affiliates. Novvi LLC may sublicense its rights under the licenses granted in Subsections (a)(i) and (iii) to an Affiliate of Novvi LLC; provided, that,:

 

(i)Novvi LLC shall grant such sublicense to an Affiliate only while such entity is and remains an Affiliate;

 

(ii)such sublicense automatically and immediately terminates upon such entity no longer being an Affiliate of Novvi LLC;

 

(iii)each such sublicense to an Affiliate shall be in writing and contain terms that are consistent in all material respects with this License Agreement including confidentiality terms regarding non-disclosure and non-use of Amyris Confidential Information and provisions governing intellectual property rights and obligations;

 

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(iv)Novvi LLC shall only grant such a sublicense subject to terms that prohibit the Affiliate from using the sublicensed Amyris Base Technology for any purpose other than to Exploit a Base Oil, Additive, or Lubricant derived from BioFene solely for the Lubricants Market;

 

(v)Novvi LLC shall reasonably monitor such sublicensed Affiliate to ensure it is not violating the prohibition in clause (iv), its confidentiality obligations, or its intellectual property obligations in a manner consistent with the procedures Novvi LLC uses to monitor its own licensees and sublicensees to ensure proper use of Novvi LLC’s intellectual property, but no less than commercially reasonable efforts;

 

(vi)Novvi LLC shall retain the right to terminate any such sublicense in the event the applicable sublicensed Affiliate violates the prohibition in clause (iv), its confidentiality obligations, or its intellectual property obligations; and

 

(vii)Novvi LLC shall immediately terminate any such sublicense in the event the applicable sublicensed Affiliate violates the prohibition in clause (iv), its confidentiality obligations, or its intellectual property obligations and fails to cure such breach within a reasonable period, which, in no event, shall exceed thirty (30) days after written notice.

 

(c) Limited Sublicense to Third Party Manufacturing and R&D Subcontractors. Novvi LLC may not sublicense any of its rights under the licenses granted in Subsections (a)(i) or (iii) to Third Parties, except to a Third Party that is (x) manufacturing for Novvi LLC or an Affiliate of Novvi LLC, in a subcontractor role, a Base Oil, Additive, and/or Lubricant derived from BioFene for the Lubricants Market or (y) performing research and development for Novvi LLC or an Affiliate of Novvi LLC, in a subcontractor role, on a Base Oil, Additive, and/or Lubricant derived from BioFene for the Lubricants Market; provided, that,:

 

(i)Novvi LLC shall grant such Third Party manufacturing subcontractor a sublicense only to make, solely for Novvi LLC or its Affiliates, either a Base Oil, Additive, and/or Lubricant, as the case may be, derived from BioFene solely for the Lubricants Market; shall grant such Third Party R&D subcontractor a sublicense only to perform research and development, solely for Novvi LLC or its Affiliates, of Base Oils, Additives, and/or Lubricants, as the case may be, derived from BioFene solely for the Lubricants Market; and, in each case, shall prohibit such sublicensed Third Party subcontractors from using the sublicensed Amyris Base Technology for any other purpose;

 

(ii)each such sublicense agreement shall be in writing and contain terms that are consistent in all material respects with this License Agreement including confidentiality terms regarding non-disclosure and non-use of Amyris Confidential Information and provisions governing intellectual property rights and obligations;

 

(iii)Novvi LLC shall reasonably monitor such sublicensed Third Party subcontractors to ensure they are not violating the prohibitions in clause (i), their confidentiality obligations, or their intellectual property obligations in a manner consistent with the procedures Novvi LLC uses to monitor its own licensees and sublicensees to ensure proper use of Novvi LLC’s intellectual property, but no less than commercially reasonable efforts;

 

(iv)Novvi LLC shall retain the right to terminate any such sublicense in the event the applicable sublicensed Third Party subcontractor violates the prohibitions in clause (i),

 

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its confidentiality obligations, or its intellectual property obligations; and

 

(v)Novvi LLC shall immediately terminate any such sublicense in the event the applicable sublicensed Third Party subcontractor violates the prohibitions in clause (i), its confidentiality obligations, or its intellectual property obligations and fails to cure such breach within a reasonable period, which, in no event, shall exceed thirty (30) days after written notice.

 

(d) No Right to Manufacture BioFene. For clarity, under the licenses granted in Subsection (a) above, Novvi LLC has no right to make or have made BioFene under any Amyris intellectual property. The rights of Novvi LLC to make or have made BioFene are set forth in Section 2.3.

 

2.2 License to Amyris under Novvi LLC BioFene Transformation Technology.

 

(a) License. Subject to the terms and conditions in this License Agreement, Novvi LLC hereby grants Amyris an exclusive, worldwide, royalty-free, fully paid-up, sublicensable, and non-assignable license under Novvi LLC BioFene Transformation Technology for any use other than to Exploit Base Oils, Additives, or Lubricants derived from BioFene for the Lubricants Market.

 

(b) Sublicense Rights. Amyris may sublicense any of its rights under the license granted in Subsection (a) through multiple tiers of sublicensees; provided, that,:

 

(i)Amyris shall only grant such sublicenses subject to terms that prohibit all such sublicensees, including direct sublicensees, any sublicensees of such sublicensees, or any other sublicensee pursuant to one of the multiple tiers of such sublicenses, from using the sublicensed Novvi LLC BioFene Transformation Technology to Exploit any Base Oil, Additive, or Lubricant derived from BioFene for the Lubricants Market;

 

(ii)each such sublicense agreement shall be in writing and contain terms that are consistent in all material respects with this License Agreement including confidentiality terms regarding non-disclosure and non-use of Novvi LLC’s Confidential Information and provisions governing intellectual property rights and obligations;

 

(iii)Amyris shall reasonably monitor such sublicensees to ensure they are not violating the prohibition in clause (i), their confidentiality obligations, or their intellectual property obligations in a manner consistent with the procedures Amyris uses to monitor its own licensees and sub-licensees to ensure proper use of Amyris’s intellectual property, but no less than commercially reasonable efforts;

 

(iv)Amyris shall retain the right to terminate any such sublicense in the event the applicable sublicensee violates the prohibition in clause (i), its confidentiality obligations, or its intellectual property obligations; and

 

(v)Amyris shall immediately terminate any such sublicense in the event the applicable sublicensee violates the prohibition in clause (i), its confidentiality obligations, or its intellectual property obligations and fails to cure such breach within a reasonable period, which, in no event, shall exceed thirty (30) days after written notice.

 

2.3 License to Novvi LLC to Manufacture BioFene under Amyris BioFene Manufacturing Technology.

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(a) Non-Exclusive License to Manufacture BioFene. Amyris grants, subject to the conditions described below, Novvi LLC a non-exclusive, non-assignable, royalty-free, and non-sublicensable (except as necessary to exercise its “have made” rights using Third Party subcontractor manufacturers or Affiliates) license under Amyris BioFene Manufacturing Technology to make and have made BioFene solely to produce Novvi LLC’s (and, if applicable, Novvi LLC’s Affiliates’) Base Oils, Additives, and Lubricants derived from BioFene for the Lubricants Market.

 

(b) Conversion to a Royalty-Bearing License. Should Amyris no longer own any membership units or other equity interest in Novvi LLC (the “License Conversion Event”), the royalty-free license granted to Novvi LLC under subsection (a) above automatically becomes royalty-bearing, and within thirty (30) days after the License Conversion Event, the Parties will agree in writing upon a commercially-reasonable royalty rate and terms for such license. In the event the Parties do not agree within such time period, the Parties will promptly engage in an accelerated “baseball arbitration” process to determine a commercially-reasonable royalty rate and terms for the license.

 

(c) Escrowed Materials. By September 1, 2016, Amyris shall deposit with SciSafe Inc. (the “Escrow Agent”), pursuant to the Escrow Agreement, (1) the Production Strain presently used by Amyris to commercially produce BioFene and (2) the process, including the applicable standard operating procedures (“SOPs”), presently used by Amyris to commercially produce BioFene with such escrowed Production Strain (collectively (1) and (2), as annually updated per the next paragraph, the “Escrowed Materials”).

 

Amyris shall, on or about every June 30, update the Escrowed Materials by replacing the escrowed Production Strain with the Production Strain then being used by Amyris to commercially produce BioFene and replacing the escrowed BioFene production process information with the process, including the applicable SOPs, then used by Amyris to commercially produce BioFene with the newly escrowed Production Strain. Amyris’s obligations to update the Escrowed Materials shall terminate upon the earlier of (i) the date the Escrowed Materials are released to Novvi LLC per the procedures in the Escrow Agreement and (ii) thirty (30) days after the date on which Amyris concludes its BioFene strain development program.

 

(d) Release of Escrowed Materials to Novvi LLC. Upon release of the Escrowed Materials to Novvi LLC per the procedures in the Escrow Agreement, Novvi LLC may use the Escrowed Materials only to exercise its license under Subsection (a) above and only at a manufacturing location (whether such location is owned by Novvi LLC, a Novvi LLC Affiliate, or a Third Party) approved in advance by Amyris in writing, which approval will not be unreasonably withheld. Immediately upon expiration or earlier termination of its license in Subsection (a), Novvi LLC will cease its and any Affiliate’s or Third Party’s use of, and will properly destroy, all of the Production Strain, the other Escrowed Materials, and any other intellectual property of Amyris in Novvi LLC’s, a Novvi LLC’s Affiliate’s or a Third Party’s possession and certify such destruction in writing to Amyris. Novvi LLC may not, and shall not allow any other person or entity to, reverse engineer, engineer, or otherwise genetically modify the Production Strain or to genetically modify engineer any other strain from the Production Strain and, except as expressly permitted in this Section 2.3, may not to distribute, disclose or transfer the Production Strain, the other Escrowed Materials, or any other intellectual property of Amyris to any other person or entity. Despite a release to Novvi LLC, the Escrowed Materials remain the exclusive property and Confidential Information of Amyris, and such release does not grant any ownership rights or, except as specifically set forth herein, any other rights of use, express or implied, in the Escrowed Materials to Novvi LLC or any other person or entity.

 

(e) Manufacturing through an Affiliate or Third Party. To the extent Novvi LLC, in the exercise of its “have made” rights under Subsection (a), desires to engage an Affiliate or Third Party to

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produce BioFene for it, such Affiliate or Third Party must execute a binding written contract with Novvi LLC, subject to Amyris’s prior written approval, containing at least the following provisions before Novvi LLC provides any of the released Escrowed Materials (including the applicable Production Strain) to such Affiliate or Third Party:

 

(i)a covenant by the Affiliate or Third Party to not use the Escrowed Materials except to make BioFene solely for Novvi LLC per Novvi LLC’s license under Section 2.3(a);

 

(ii)a covenant by the Affiliate or Third Party to not reverse engineer the Production Strain, to not to engineer or genetically modify the Production Strain, and to not distribute, disclose or transfer the Production Strain, the other Escrowed Materials, or any related intellectual property of Amyris to any other person or entity;

 

(iii)a covenant by the Affiliate or Third Party to hold in strict confidence, and to take all reasonable precautions to protect, the Escrowed Materials (including the Production Strain) and any other Confidential Information of Amyris that it obtains and to not divulge any of such information or any information derived therefrom to any person, except an employee who has a need to know for the Affiliate or Third Party to produce BioFene for Novvi LLC;

 

(iv)a covenant by the Affiliate or Third Party that its manufacture and supply of BioFene on behalf of Novvi LLC will, at all times, be conducted in accordance with applicable laws, rules and regulations;

 

(v)automatic termination of the Affiliate’s or Third Party’s contract with Novvi LLC and of its use and possession of the Production Strain, the other Escrowed Materials, or any other intellectual property of Amyris upon the Affiliate’s or Third Party’s breach of such contract;

 

(vi)a covenant by the Affiliate or Third Party that, immediately following termination of the Affiliate’s or Third Party’s contract with Novvi LLC, it will properly destroy all of the Production Strain, the other Escrowed Materials, or any other intellectual property of Amyris in the Affiliate’s or Third Party’s possession and certify such destruction in writing to Amyris;

 

(vii)Amyris has the right, at least once per calendar quarter, upon reasonable prior notice and during normal business hours, to inspect such Affiliate’s or Third Party’s facilities at which BioFene is being manufactured;

 

(viii)Amyris has the right, upon reasonable prior notice and during normal business hours, to have a representative present from time-to-time during the Affiliate’s or Third Party’s manufacture of BioFene;

 

(ix)Amyris is expressly named in the contract as a third party beneficiary with the right to enforce such contract against the Affiliate or Third Party;

 

(x)Amyris, as third party beneficiary, is entitled to injunctive or other equitable remedies, in addition to all other available remedies, against the Affiliate’s or Third Party’s breach or threatened breach of contract with regard to the Production Strain, the other Escrowed Materials, or any other intellectual property of Amyris without the necessity of showing irreparable harm, balancing of harms, consideration of the public interest or

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inadequacy of monetary damages as a remedy and without posting any bond or other security as a condition for obtaining any such relief and the Affiliate or Third Party irrevocably and unconditionally waives any such requirements;

 

(xi)agreement by the Affiliate or Third Party to fully defend, indemnify, and hold harmless Amyris for the Affiliate’s or Third Party’s actions, inactions or breaches under such contract; and

 

(xii)agreement by the Affiliate or Third Party that to obtain and maintain insurance coverage with a reputable carrier at coverage amounts commercially reasonable for its activities and commitments under such contract.

 

Amyris and Novvi LLC agree that Amyris has the primary right, but not obligation, to pursue actions against the Affiliate or Third Party to protect the Production Strain, other Escrowed Materials, and other intellectual property of Amyris.

 

(f) Tech Transfer. Upon release of the Escrowed Materials to Novvi LLC per the procedures in the Escrow Agreement, Amyris agrees to provide a one-time, site-specific, and reasonable amount (but no more than one hundred (100) hours) of technical assistance to Novvi LLC to enable Novvi LLC to implement the Escrowed Materials consistent with the license in subsection (a). However, due to the potential variances in manufacturing facilities, equipment, capabilities, personnel, experience, locations, infrastructure, and/or operations, there is no guarantee of successful implementation or performance of the Escrowed Materials at any facility, even after the one-time technical assistance.

 

(g) Disputes. Any dispute between the Parties regarding the deposit or release of the Escrowed Materials shall be resolved as provided in Section 8.2.

 

2.4 No Implied or Additional Rights or Licenses. Except as specified in this License Agreement, Amyris grants no rights to Novvi LLC to use any of Amyris’s Confidential Information or intellectual property. Except as specified in this License Agreement, Novvi LLC grants no rights or licenses to Amyris to use any of Novvi LLC’s Confidential Information or intellectual property.

 

2.5 Novvi LLC Efforts in Brazil. Novvi LLC agrees it will exert commercially reasonable efforts to use the licensed technology in order to try to maintain the validity of the Patents in the Amyris Base Technology and, if licensed to Novvi LLC, in the Amyris BioFene Manufacturing Technology and any Alternative Technology, in each case in the territory of Brazil.

 

2.6 Effect of Bankruptcy on the Licenses. All rights and licenses granted under this Article 2 by Amyris or Novvi LLC are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code (the “Code”), licenses of rights to “intellectual property” as defined under Section 101 of the Code. The Parties agree that, in the event of a Party’s Insolvency Event, the other Party in its capacity as a licensee under this Article 2 will, to the extent that its license is still in effect at the time of such Insolvency Event, retain and may fully exercise all of its rights and elections under the Code (or any same or similar provision in any jurisdiction other than the United States) with regard to such license and rights, subject to payments due the licensor Party (if any) as a result of the exercise of such rights and subject to the terms and conditions of such license and rights set forth in this License Agreement.

 

The Parties further agree that, in any Insolvency Event involving a Party, that the other Party will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property

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licensed to such licensee Party under its continuing license and all tangible embodiments of such intellectual property, and same, if not already in its possession, will be promptly delivered to the licensee Party (i) upon any such commencement of a bankruptcy proceeding upon such licensee Party’s written request or (ii) if not promptly delivered under (i) above, following any rejection of this License Agreement by or on behalf of such Party (e.g. by a bankruptcy trustee), upon written request for such transfer by the licensee Party. For the avoidance of doubt, nothing in this clause may be construed as forcing a Party to act in breach of any mandatory bankruptcy laws and regulations applicable in its jurisdiction.

 

 

ARTICLE 3

 

RIGHT OF FIRST OFFER REGARDING ALTERNATIVE TECHNOLOGY

 

3.1 Right of First Offer to Amyris’s Alternative Technology. Notwithstanding the exclusivity provisions in Section 13.01 of the Second Amended and Restated Operating Agreement, if while Novvi LLC’s licenses under Section 2.1 are in effect, Amyris (i) develops, acquires, or in-licenses an Alternative Technology and (ii) wishes to exclusively license or sell to a Third Party the use or ownership of such Alternative Technology for purposes of developing, making (having made), offering for sale, selling, or importing Base Oils, Additives, or Lubricants for the Lubricants Market, then, prior to engaging in a discussion with any Third Party or soliciting an offer from any Third Party in this respect, Amyris shall first offer Novvi LLC the right to exclusively license or acquire (subject to the Exclusivity Exceptions) use or ownership of such Alternative Technology for the development, making (having made), offering for sale, sale, and importation of Base Oils, Additives, and Lubricants solely in the Lubricants Market (“ROFO”); provided such ROFO does not violate the terms of any arrangement with any Third Party from whom Amyris acquired or licensed such Alternative Technology, if applicable.

 

For the avoidance of doubt, the foregoing ROFO obligation shall not apply to an Alternative Technology developed by Amyris in connection with activities that fall within an Exclusivity Exception.

 

3.2 ROFO Notice. Amyris shall promptly notify Novvi LLC in writing when it has an Alternative Technology that is subject to the ROFO (a “ROFO Notice”). The ROFO Notice shall include a reasonable description of the applicable Alternative Technology and the fundamental license and/or sale terms and conditions proposed by Amyris.

 

3.3 Exercise of the ROFO.

 

(a) Due Diligence Period. Novvi LLC shall have sixty (60) days from receipt of a ROFO Notice to (i) conduct an assessment of the applicable Alternative Technology (and, for such purpose, Amyris hereby undertakes to provide to Novvi LLC all information it believes in good faith is necessary for Novvi LLC’s full and complete assessment) and (ii) deliver to Amyris a written notice expressing its intention to exercise its ROFO (an “Exercise Notice”).

 

(b) Negotiation Period. In the event it delivers an Exercise Notice per Subsection (a) above, Novvi LLC shall be obligated, within sixty (60) days from Amyris’s receipt of the Exercise Notice, to enter into a definitive agreement with Amyris (separate from this License Agreement) regarding either an exclusive license to, or acquisition of, (subject to the Exclusivity Exceptions) the use or ownership of such Alternative Technology for the development, making (having made), offering for sale, sale, and importation of Base Oils, Additives, and Lubricants solely in the Lubricants Market and on terms and conditions consistent with those referred to in the ROFO Notice. In addition, any license granted by

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Amyris to Novvi LLC with regard to Alternative Technology shall be terminable upon the expiration or earlier termination of Novvi LLC’s licenses under Section 2.1.

 

(c) Negotiate with Third Parties. If Novvi LLC does not deliver an Exercise Notice in compliance with Subsection (a) above or is not successful in executing a definitive agreement with Amyris within the sixty (60) days in Subsection (b) above, then Amyris shall be free to solicit and negotiate with any Third Party the exclusive license or sale of such Alternative Technology, provided that (i) the economic terms offered by such Third Party shall be no less favorable to Amyris than those offered by Novvi LLC under the ROFO Notice; (ii) the fundamental business terms, including the structure of the relevant transaction (e.g., sale, license, formation of a joint venture and contribution of the Alternative Technology), are substantially the same as those offered to Novvi LLC under the ROFO Notice; and (iii) Amyris and the Third Party have entered into a definitive agreement within one hundred and twenty (120) days after the end of the sixty (60) day period in Subsections (a) or (b) above, whichever is applicable.

 

3.4 Repetition of ROFO. If Amyris and the Third Party have not entered into a definitive agreement in compliance with Section 3.3(c) above, then Amyris must again comply with the provisions of the ROFO before exclusively licensing or selling to a Third Party the use or ownership of such Alternative Technology for purposes of Base Oils, Additives, or Lubricants in the Lubricants Market.

 

3.5 Alternative Technology Production Strain Restrictions. If an Alternative Technology to be exclusively licensed to Novvi LLC by Amyris under this Article 3 includes rights for Novvi LLC to manufacture or have manufactured such Alternative Technology with a Production Strain, the Parties hereby agree that such manufacturing license granted to Novvi LLC shall be conditioned on, among other things, compliance with provisions equivalent to those for BioFene in Section 2.3 above.

 

3.6 Termination of Article 3. Upon the expiration or earlier termination of Novvi LLC’s licenses under Section 2.1, all rights and obligations of the Parties under this Article 3 automatically terminate, and this Article 3 will be of no further effect.

 

 

ARTICLE 4

 

SALE OF BY-PRODUCTS

 

4.1 No Sale of By-Products as Diesel Fuel in the European Union. Novvi LLC agrees that it shall not, at any time, offer for sale or sell any By-Products, including, but not limited to, any farnesane or diesel-related By-Products (“Diesel By-Products”), for use in or as diesel fuel in any of the European Union.

 

4.2 No Sale of Jet Fuel By-Products except to Amyris; Amyris’s Obligation to Purchase.

 

(a)                Novvi LLC agrees that it will not offer for sale or sell any Jet Fuel By-Products to any person or entity except to Amyris as set forth in this Section 4.2, and Amyris agrees that it will purchase all such Jet Fuel By-Products. As used in this Section, “Jet Fuel By-Product” means a By-Product (i) whose concentration of farnesane, partially hydrogenated farnesene or farnesene, by volume, is at least [*] or greater; and (ii) that when blended with petroleum-derived jet fuel, meets the ASTM D1655 and D7566 specifications (or successors thereto) for use as a jet fuel.

 

(b)               The purchase price payable by Amyris to Novvi LLC for each liter of any Jet Fuel By-Product will be equal to the price per liter that Amyris sells farnesene to Novvi LLC, in case such

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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price is higher than US$ [*] per liter. If the per liter of farnesene price Amyris charges to Novvi LLC is below US$ [*] per liter, Amyris will purchase such Jet Fuel By-Product at the NYMEX ULSD diesel one-month forward price.

 

(c)                In connection with the sale of any By-Products by Novvi LLC to a third party, Novvi LLC shall require any such purchaser to agree in writing that (i) such By-Products may not be used in or as diesel fuel in the European Union or in or as jet fuels anywhere, and (ii) if any such By-Products are incorporated into any diesel fuel outside the European Union, that such diesel fuels may not be imported into any of the European Union.

 

(d)               Other than as set forth in this Section, Amyris has no obligation or rights to purchase any By-Products from Novvi LLC.

 

4.3 No Other Limits on Novvi LLC. Other than as set forth in this Article 4, Novvi LLC may, pursuant to its license in Section 2.1(a)(ii), freely offer for sale, sell, and import its By-Products.

 

ARTICLE 5

 

INTELLECTUAL PROPERTY

 

5.1 Inventorship. Inventorship of all inventions and discoveries conceived, reduced to practice, discovered or made pursuant to this License Agreement, whether or not patentable, shall be determined in accordance with U.S. patent laws. Other than as set forth below, as among the Parties, ownership of all inventions and discoveries conceived, reduced to practice, discovered or made or created during the Term of this License Agreement shall be determined consistent with inventorship.

 

5.2 Amyris’s Ownership. Amyris’s intellectual property ownership rights are as follows:

 

(a)                Amyris Base Technology, Amyris BioFene Manufacturing Technology, Amyris Inventions, and Amyris Alternative Technology. As between the Parties, all rights, title, and interest in and to Amyris Base Technology, Amyris BioFene Manufacturing Technology, Amyris Inventions, and Amyris’s Alternative Technology are exclusively owned solely by Amyris. Novvi LLC and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Amyris Base Technology, Amyris BioFene Manufacturing Technology, or Amyris Inventions, or Amyris’s Alternative Technology except to the extent the licenses described in Sections 2.1 and 2.3 or Article 3 are in place between the Parties.

 

(b)               Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements. All rights, title, and interest in and to Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements are exclusively owned solely by Amyris. Novvi LLC will promptly disclose Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements, if any, in writing to Amyris and, without further consideration, hereby assigns to Amyris any and all rights, title and interests of Novvi LLC (and, as applicable, its Affiliates, sublicensees, contractors, agents, and employees) in and to all Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements.

 

Upon Amyris’s reasonable request and at Amyris’s expense, Novvi LLC will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to perfect the delivery, assignment, and conveyance to Amyris, its successors, assigns, and nominees, of

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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the entire right, title, and interest in and to all Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements.

 

For purposes of this License Agreement, Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements will be considered Amyris BioFene Manufacturing Technology, and Novvi LLC and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Joint BioFene Manufacturing Improvements or Novvi LLC BioFene Manufacturing Improvements except to the extent the license described in Section 2.3 is in place between the Parties.

 

(c)                Novvi LLC Breach Inventions. All rights, title, and interest in and to Novvi LLC Breach Inventions are also exclusively owned solely by Amyris. Novvi LLC will promptly disclose Novvi LLC Breach Inventions, if any, in writing to Amyris and, without further consideration, hereby assigns to Amyris any and all rights, title and interests of Novvi LLC (and, as applicable, its Affiliates, sublicensees, contractors, agents, and employees) in and to Novvi LLC Breach Inventions.

 

Upon Amyris’s reasonable request and at Amyris’s expense, Novvi LLC will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to perfect the delivery, assignment, and conveyance to Amyris, its successors, assigns, and nominees, of the entire right, title, and interest in and to all Novvi LLC Breach Inventions.

 

For purposes of this License Agreement, Novvi LLC Breach Inventions will be considered Amyris Inventions, and Novvi LLC and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Novvi LLC Breach Inventions.

 

5.3 Novvi LLC’s Ownership. Novvi LLC’s intellectual property ownership rights are as follows:

 

(a) Novvi LLC BioFene Transformation Technology and Novvi LLC Inventions. As between the Parties, all rights, title, and interest in and to Novvi LLC BioFene Transformation Technology and Novvi LLC Inventions are exclusively owned solely by Novvi LLC. Amyris and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Novvi LLC BioFene Transformation Technology or Novvi LLC Inventions except to the extent the license described in Section 2.2 is in place between the Parties.

 

(b) Amyris Breach Inventions. All rights, title, and interest in and to Amyris Breach Inventions are also exclusively owned solely by Novvi LLC. Amyris will promptly disclose Amyris Breach Inventions, if any, in writing to Novvi LLC and, without further consideration, hereby assigns to Novvi LLC any and all rights, title and interests of Amyris (and, as applicable, its Affiliates, sublicensees, contractors, agents, and employees) in and to Amyris Breach Inventions.

 

Upon Novvi LLC’s reasonable request and at Novvi LLC’s expense, Amyris will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to perfect the delivery, assignment, and conveyance to Amyris, its successors, assigns, and nominees, of the entire right, title, and interest in and to all Amyris Breach Inventions.

 

For purposes of this License Agreement, Amyris Breach Inventions will be considered Novvi Inventions,

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and Amyris and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Amyris Breach Inventions.

 

5.4 Joint Inventions. Joint Inventions will be jointly owned by Amyris and Novvi LLC, and the Parties will have co-exclusive rights to use and practice Joint Inventions (i.e., neither Party can individually grant another person or entity any exclusive rights) and without accounting.

 

5.5 Semi-Annual Updates to Amyris regarding Novvi LLC BioFene Transformation Technology. Every January 15 and July 15 while Amyris’s license under Section 2.2 is in effect, Novvi LLC will provide Amyris with a written update on Novvi LLC BioFene Transformation Technology. Such semi-annual updates will include a list of any Patents in the Novvi LLC BioFene Transformation Technology identified by their respective title, inventors, serial numbers, filing date, and status. Novvi LLC also agrees to copy Amyris on any official correspondence between Novvi LLC (or Novvi LLC’s counsel) and any patent office regarding Patents in Novvi LLC BioFene Transformation Technology.

 

5.6 Semi-Annual Updates to Novvi LLC regarding Amyris Base Technology. Every January 15 and July 15 while Novvi LLC’s license under Section 2.1 is in effect, Amyris will provide Novvi LLC with a written update on Amyris Base Technology. Such semi-annual updates will include a list of any Patents in the Amyris Base Technology identified by their respective title, inventors, serial numbers, filing date, and status. Amyris also agrees to copy Novvi LLC on any official correspondence between Amyris (or Amyris’ counsel) and any patent office regarding Patents in Amyris Base Technology.

 

5.7 Semi-Annual Updates to Novvi LLC regarding Amyris BioFene Manufacturing Technology. Following the technical transfer from Amyris to Novvi LLC described in Section 2.3, every January 15 and July 15 while Novvi LLC’s license under Section 2.3 remains in effect, Amyris will provide Novvi LLC with a written update on Amyris BioFene Manufacturing Technology. Such semi-annual updates will include a list of any Patents in the Amyris BioFene Manufacturing Technology identified by their respective title, inventors, serial numbers, filing date, and status. Amyris also agrees to copy Novvi LLC on any official correspondence between Amyris (or Amyris’ counsel) and any patent office regarding Patents in Amyris BioFene Manufacturing Technology.

 

5.8 Patent Strategy and Prosecution.

 

(a) Amyris’s Rights. As between the Parties, Amyris shall have the sole right and discretion to: (i) determine the process for protecting any Amyris Inventions (as well as any Amyris Base Technology and any Amyris BioFene Manufacturing Technology) worldwide, including whether or not to obtain Patent protection and in what countries and (ii) at its own expense, but without obligation, prepare, file, prosecute, maintain, and defend throughout the world any and all Patents claiming or relating to the Amyris Inventions, Amyris Base Technology and Amyris BioFene Manufacturing Technology or, at any time, abandon or discontinue such activities.

 

Upon Amyris’s reasonable request and at Amyris’s expense, Novvi LLC will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to allow Amyris to apply for, register, obtain, maintain, defend, and enforce any Patent claiming or relating to any Joint BioFene Manufacturing Improvements, Novvi LLC BioFene Manufacturing Improvements, or Novvi LLC Breach Inventions and/or its rights therein.

 

(b) Novvi LLC’s Rights. As between the Parties, Novvi LLC shall have the sole right and

 

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discretion to (i) determine the process for protecting any Novvi LLC Inventions (as well as any Novvi LLC BioFene Transformation Technology) worldwide, including whether or not to obtain Patent protection and in what countries and (ii) at its own expense, but without obligation, prepare, file, prosecute, maintain, and defend throughout the world any and all Patents claiming or relating to the Novvi LLC Inventions and Novvi LLC BioFene Transformation Technology or, at any time, abandon or discontinue such activities.

 

Upon Novvi LLC’s reasonable request and at Novvi LLC’s expense, Amyris will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to allow Novvi LLC to apply for, register, obtain, maintain, defend, and enforce any Patent claiming or relating to any Amyris Breach Invention and/or its rights therein.

 

(c) Joint Inventions Rights. For each Joint Invention, the Parties will mutually select which Party shall have the sole right and discretion to (i) determine the process for protecting such Joint Invention worldwide, including whether or not to obtain Patent protection and in what countries and (ii) at its own expense, but without obligation, prepare, file, prosecute, maintain, and defend throughout the world any and all Patents claiming or relating to such Joint Invention or, at any time, abandon or discontinue such activities.

 

5.9 Infringement by Third Parties.

 

(a) Amyris Base Technology and Amyris BioFene Manufacturing Technology. In the event either Party becomes aware of any Third Party activity that infringes or misappropriates (or is likely to infringe or misappropriate) Amyris Base Technology or Amyris BioFene Manufacturing Technology, that Party will notify the other Party promptly in writing of the actual or threatened infringement or misappropriation. Whether or not to take action against such infringement or misappropriation will be the sole right, and at the sole discretion, of Amyris or its designated representative (“Amyris Designate”). However, at Amyris’s expense, Novvi LLC will cooperate to the extent reasonably required by Amyris or the Amyris Designate to stop such infringement or misappropriation, and, if so requested by Amyris, will join with Amyris or the Amyris Designate as a party to any action brought by Amyris or the Amyris Designate for such purpose. Amyris or the Amyris Designate will have full control over any action taken, including, without limitation, the right to select counsel, to settle on any terms it deems advisable in its discretion, to appeal any adverse decision rendered in any court, to discontinue any action taken by it, and otherwise to make any decision in respect thereto as it in its discretion deems advisable.

 

(b) Novvi LLC BioFene Transformation Technology. In the event either Party becomes aware of any Third Party activity that infringes or misappropriates (or is likely to infringe or misappropriate) Novvi LLC BioFene Transformation Technology, that Party will notify the other Party promptly in writing of the actual or threatened infringement or misappropriation. Whether or not to take action against such infringement or misappropriation will be the sole right, and at the sole discretion, of Novvi LLC or its designated representative (“Novvi LLC Designate”). However, Amyris will cooperate to the extent reasonably required by Novvi LLC or the Novvi LLC Designate to stop such infringement or misappropriation, and, if so requested by Novvi LLC, will join with Novvi LLC or the Novvi LLC Designate as a party to any action brought by Novvi LLC or the Novvi LLC Designate for such purpose. Novvi LLC or the Novvi LLC Designate will have full control over any action taken, including, without limitation, the right to select counsel, to settle on any terms it deems advisable in its discretion, to appeal any adverse decision rendered in any court, to discontinue any action taken by it, and otherwise to make any decision in respect thereto as it in its discretion deems advisable.

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5.10 Confidentiality Obligations.

 

(a) Confidential Information. As used herein, “Confidential Information” means any and all information provided by or on behalf of a Party (“Disclosing Party”) to the other Party (“Receiving Party”) or to its Representatives between the Effective Date and the termination of this License Agreement, regardless of the form or medium of communication, that relates to the Disclosing Party’s intellectual property licensed or created under this License Agreement or its activities under this License Agreement, in each case which information is either proprietary to the Disclosing Party or is otherwise not available to the general public. The Parties agree to treat this License Agreement as the Confidential Information of the other Party. As used herein, “Representative” means the officers, directors, members, shareholders, employees, attorneys, accountants, advisors, consultants, auditors, agents, contractors, and sublicensees of the applicable Party and of its Affiliates.

 

(b) Obligations. Except with the prior written consent of the Disclosing Party or as specifically authorized in this License Agreement, each Receiving Party shall, and shall cause its Representatives (to the extent such persons receive any Confidential Information) to,:

 

(i)maintain in confidence any and all Confidential Information;

 

(ii)take reasonable precautions to protect Confidential Information;

 

(iii)not disclose Confidential Information to any person or entity; and

 

(iv)not make any use of such Confidential Information except for the purposes specifically authorized herein.

 

(c) Permitted Disclosures. A Receiving Party may disclose Confidential Information, without the Disclosing Party’s written consent, to those of its Representatives who (i) need to know such Confidential Information for the purpose of assisting such Receiving Party fulfill its obligations or exercise its rights under this License Agreement and (ii) are bound by written obligations of confidentiality and non-use substantially similar to those herein. A Receiving Party or its Affiliates may also disclose the terms of this License Agreement to actual or prospective investors, underwriters, or acquirers who need to know such Confidential Information to evaluate the Receiving Party’s (or its Affiliates’) business and who are bound by written obligations of confidentiality and non-use substantially similar to those herein.

 

(d) Legally Required Disclosures. In addition, a Receiving Party may disclose Confidential Information (including the terms of this License Agreement), without the Disclosing Party’s written consent, to the extent such disclosure is required, on advice of counsel, by Applicable Law (including pursuant to any listing agreement with, or the rules or regulations of, any national securities exchange on which any securities of such Receiving Party or any Affiliate thereof are listed or traded); provided, that the Receiving Party making such disclosure, or whose Affiliates are making such disclosure, shall notify the other Party as promptly as practicable (and if possible and legally allowed, prior to making such disclosure) and shall minimize such disclosure as much as possible and reasonably seek confidential treatment of such Confidential Information to the extent available.

 

(e) Exceptions to Confidential Information. The provisions of Subsection (b) above shall not apply to, and Confidential Information shall not include, any information of a Disclosing Party that:

 

(i)is or has become generally available to the public other than as a result of a disclosure by a Receiving Party or any of its Representatives in breach of this Section 5.10;

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(ii)has been independently developed by a Receiving Party (or any Affiliate thereof) without violating any of the provisions of this License Agreement or any other similar contract to which such Receiving Party or any of its Representatives, is or are bound; or

 

(iii)was made available to a Receiving Party (or any Affiliate thereof), on a non-confidential basis by a Third Party who is not prohibited from disclosing such information to such person or entity by a legal, contractual or fiduciary obligation to the Disclosing Party or any of its Representatives.

 

(f) Public Announcements. Except as required by Applicable Law or by the requirements of any national securities exchange on which the securities of a Party (or its Affiliates) are listed or traded, no Party shall make, or cause to be made, any press release or public announcement in respect of this License Agreement or otherwise communicate with any news media without the prior written consent of the other Party, and the Parties shall cooperate as to the timing and contents of any such press release or public announcement.

 

(g) Duration of Obligations. Except as otherwise provided for in this Section 5.10, Confidential Information received hereunder shall be used by each Receiving Party and its Representatives solely in connection with such Receiving Party fulfilling its obligations or exercising its rights under this License Agreement. Nothing in this License Agreement shall be interpreted as vesting, in favor of any Receiving Party or any other person or entity, any right of ownership or other right in the Confidential Information of a Disclosing Party. The obligations under this Section 5.10 shall survive for two (2) years after the termination of this License Agreement.

 

 

ARTICLE 6

 

REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS

 

6.1 Representations and Warranties by Amyris. Amyris hereby represents and warrants to Novvi LLC that, as of the Effective Date,:

 

(a) Organization; Good Standing. Amyris is a corporation duly organized and in good standing under the laws of Delaware and has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as is contemplated to be conducted by this License Agreement.

 

(b) Corporate Authority. Amyris has the power and authority and the legal right to enter into this License Agreement and perform its obligations hereunder and has taken all necessary action on its part required to authorize the execution and delivery of this License Agreement and the performance of its obligations hereunder.

 

(c) Binding Obligation. This License Agreement has been duly executed and delivered by Amyris and constitutes a legal, valid, and binding obligation of Amyris and is enforceable against it in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity, whether enforceability is considered in a proceeding at law or equity.

 

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(d) Consents and Approvals. All necessary consents, approvals and authorizations of all regulatory and governmental authorities and other persons or entities required to be obtained by Amyris in connection with the execution and delivery of this License Agreement and the performance of its obligations hereunder have been obtained or will be obtained prior to such performance.

 

(e) No Conflicts. The execution and delivery of this License Agreement and the performance of Amyris’s obligations hereunder (i) do not conflict with or violate any provision of Amyris’s articles of incorporation or bylaws, (ii) do not conflict with, violate, or constitute a default of any contractual obligation of Amyris, or (iii), to its knowledge, do not conflict with or violate any requirement of Applicable Law.

 

(f) Amyris Base Technology. Amyris owns or otherwise has all necessary rights in and to the Amyris Base Technology to grant Novvi LLC the licenses described in Sections 2.1 and 2.3.

 

6.2 Representations and Warranties by Novvi LLC. Novvi LLC hereby represents and warrants to Amyris that, as of the Effective Date,:

 

(a) Organization; Good Standing. Novvi LLC is a limited liability company duly organized and in good standing under the laws of Delaware and has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as it is contemplated to be conducted by this License Agreement.

 

(b) Corporate Authority. Novvi LLC has the power and authority and the legal right to enter into this License Agreement and perform its obligations hereunder and has taken all necessary action on its part required to authorize the execution and delivery of this License Agreement and the performance of its obligations hereunder.

 

(c) Binding Obligation. This License Agreement has been duly executed and delivered by Novvi LLC and constitutes a legal, valid, and binding obligation of Novvi LLC and is enforceable against it in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity, whether enforceability is considered in a proceeding at law or equity.

 

(d) Consents and Approvals. All necessary consents, approvals and authorizations of all regulatory and governmental authorities and other persons or entities required to be obtained by Novvi LLC in connection with the execution and delivery of this License Agreement and the performance of its obligations hereunder have been obtained or will be obtained prior to such performance.

 

(e) No Conflicts. The execution and delivery of this License Agreement and the performance of Novvi LLC’s obligations hereunder (i) do not conflict with or violate any provision of Novvi LLC’s certificate of incorporation or Second Amended and Restated Operating Agreement, (ii) do not conflict with, violate, or constitute a default of any contractual obligation of Novvi LLC, or (iii), to its knowledge, do not conflict with or violate any requirement of Applicable Law.

 

6.3 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 6, NEITHER PARTY MAKES ANY REPRESENTATIONS OR GRANTS ANY WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE

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OR PURPOSE, OR SAFETY, ANY WARRANTY AS TO THE ACCURACY, VALIDITY OR SCOPE OF ANY PATENTS OR KNOW-HOW LICENSED HEREUNDER, AND ANY WARRANTY AS TO THE NON-INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS THROUGH THE PRACTICE OF ANY PATENTS OR KNOW-HOW LICENSED HEREUNDER.

 

 

ARTICLE 7

 

INDEMNIFICATION

 

7.1 Amyris’s Indemnification Obligations. Amyris will defend, indemnify, and hold harmless Novvi LLC, its Affiliates and its and their respective members, directors, officers, employees, and agents and their respective successors, heirs, and permitted assigns (collectively, “Novvi LLC Indemnitees”) from and against any and all losses, damages, liabilities, fines, costs, interest and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising from a Third Party’s claim, action, suit, or demand (or judgments or settlements arising therefrom) against a Novvi LLC Indemnity, in each case to the extent resulting from:

 

(i)any breach by Amyris of this License Agreement;

 

(ii)the negligent, reckless, or intentionally wrongful acts or omissions on the part of any Amyris Indemnitee in performing any activity related to this License Agreement;

 

(iii)Amyris’s development, making, having made, offer for sale, sale, or import of any product for which it used Novvi LLC BioFene Transformation Technology licensed to it under Section 2.2, including any claims of product liability or claims of infringement or misappropriation of a Third Party’s intellectual property;

 

(iv)Novvi LLC’s making (have made), offer for sale, sale, or importing, in each case between the Effective Date and June 1, 2013, of any Base Oil or Lubricant for the Lubricants Market derived from BioFene using Amyris Pre-Signature Base Technology allegedly infringing or misappropriating a Third Party’s intellectual property but only to the extent such alleged infringement or misappropriation is directly attributable to Novvi LLC’s adherence to the Amyris Pre-Signature Base Technology and not to any deviation or modification from such process made by or on behalf Novvi LLC or a permitted sublicensee of Novvi LLC, other than a deviation or modification made by Novvi LLC at the written direction of Amyris;

 

(v)if Novvi LLC is licensed under Section 2.3 to make BioFene, Novvi LLC’s manufacture of BioFene in either the United States of America or Brazil allegedly infringing or misappropriating a Third Party’s intellectual property, but only to the extent such alleged infringement or misappropriation is directly attributable to Novvi LLC’s adherence to Amyris’s then-approved BioFene manufacturing process licensed from Amyris as part of the licensed Amyris BioFene Manufacturing Technology and not to any deviation or modification from such process made by or on behalf of Novvi LLC or a permitted sublicensee of Novvi LLC, other than a deviation or modification made by Novvi LLC at the written direction of Amyris; or

 

(vi)Amyris’s or its Affiliates’ activities prior to the Effective Date with regard to its use of Base Oils, Additives or Lubricants for the Lubricants Market, including any sampling of

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such products by Amyris or its Affiliates to Third Parties prior to the Effective Date (collectively (i)-(vi), each a “Novvi LLC Third Party Claim”);

 

provided that Amyris will not defend, indemnify, or hold harmless Novvi LLC Indemnities under this Section to the extent such Losses and/or Novvi LLC Third Party Claim is determined to have resulted from the causes described in Section 7.2(i)-(iv).

 

7.2 Novvi LLC’s Indemnification Obligations. Novvi LLC will defend, indemnify, and hold harmless Amyris, its Affiliates and its and their respective shareholders, directors, officers, employees, and agents and their respective successors, heirs, and permitted assigns (collectively, “Amyris Indemnitees”) from and against any and all Losses arising from a Third Party’s claim, action, suit, or demand (or judgments or settlements arising therefrom) against an Amyris Indemnity, in each case to the extent resulting from:

 

(i)any breach by Novvi LLC of this License Agreement;

 

(ii)the negligent, reckless, or intentionally wrongful acts or omissions on the part of any Novvi LLC Indemnitee in performing any activity related to this License Agreement;

 

(iii)except as set forth in Section 7.1(iv), Novvi LLC’s development, making (have made), offer for sale, sale, or import of any Base Oil, Additive, or Lubricant derived from BioFene, including any claims of product liability or claims of infringement or misappropriation of a Third Party’s intellectual property; or

 

(iv)except as set forth in Section 7.1(v), Novvi LLC’s manufacture of BioFene allegedly infringing or misappropriating a Third Party’s intellectual property (collectively (i)-(iv), each an “Amyris Third Party Claim”);

 

provided that Novvi LLC will not defend, indemnify, or hold harmless Amyris Indemnities under this Section to the extent such Losses and/or Amyris Third Party Claim is determined to have resulted from the causes described in Section 7.1(i)-(vi).

 

7.3 Indemnification Procedures. The Parties’ obligations under Sections 7.1 and 7.2 shall be governed by and contingent upon the following:

 

(a) Notice of Claim. All indemnification claims in respect of a Novvi LLC Indemnitee or Amyris Indemnitee shall be made solely by Novvi LLC or Amyris, as applicable (each of Novvi LLC or Amyris in such capacity, the “Indemnified Party”). Promptly after a Novvi LLC Indemnitee or an Amyris Indemnitee receives notice of a threatened, pending, or actual Novvi LLC Third Party Claim or Amyris Third Party Claim (a “Third Party Claim”), the applicable Indemnified Party shall give written notice of the Third Party Claim to the Party to whom that Indemnified Party is entitled to look for indemnification pursuant to this Article 7 (the “Indemnifying Party”). Such written notice (an “Indemnification Claim Notice”) shall contain a description of the claim, the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known at such time), and the basis for indemnification under this Article 7. An Indemnified Party’s delay in providing, or failure to provide, an Indemnification Claim Notice will not relieve the Indemnifying Party of its obligations under this Article 7 for the Third Party Claim, except to the extent it can demonstrate that such delay or failure materially adversely affects the ability of the Indemnifying Party to defend the Third Person Claim, to cure the breach (if applicable) giving rise to such Third Person Claim, or minimize the applicable Loss. The Indemnified Party shall also furnish promptly to the Indemnifying Party copies of all papers and official documents received in respect of the Third Party Claim.

 

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(b) Assumption of Defense. At its option, the Indemnifying Party may assume the defense of the Third Party Claim by giving written notice to the Indemnified Party within thirty (30) days after receipt of the Indemnification Claim Notice (an “Assumption Notice”). Such assumption shall not be construed as an acknowledgement of liability or a waiver of any defenses by the Indemnifying Party (and the Indemnifying Party shall be reimbursed by the Indemnified Party in the case in which the Indemnified Party is not liable under this Article 7).

 

(c) Control of Defense by the Indemnifying Party. Upon giving a timely Assumption Notice to the Indemnified Party, the Indemnifying Party:

 

(i)has the exclusive right, at its own expense and by counsel of its choosing (but who is reasonably satisfactory to the Indemnified Party), conduct and control the defense and the disposition or, subject to Subsection (d) below, settlement of the Third Party Claim (including all decisions relative to litigation, appeal, and settlement);

 

(ii)will conduct the defense and, if applicable, settlement of such Third Person Claim in a reasonable and diligent manner;
   
 (iii)will keep the Indemnified Party informed on a reasonable and timely basis as to the status of such Third Party Claim to the extent the Indemnified Party is not participating in the defense;
  
 (iv)is not liable for the fees or expenses of counsel hired by the Indemnified Party in connection with the defense of the Third Party Claim (except in the case where the interests of the Indemnified Party and Indemnifying Party are sufficiently adverse to prohibit the representation by the same counsel of both Parties under Applicable Law, ethical rules or equitable principles); and
   
 (v)is not liable for any other expenses subsequently incurred by the Indemnified Party in connection with such defense, other than the Indemnified Party’s reasonable out-of-pocket costs incurred in cooperating with the Indemnifying Party per Subsection (e) below.

 

(d) Settlement by the Indemnifying Party. If an Indemnifying Party has assumed the defense of a Third Party Claim under Subsection (b) above, the Indemnifying Party may not settle or compromise a Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned, or delayed) unless such settlement or compromise (i) involves no payment (whether by cash, securities or other instrument), assignment, obligation, granting of a license, or admission of fault or wrongdoing by, or injunctive or other equitable relief against, the Indemnified Party and (ii) the Indemnified Party receives a comprehensive general release of all claims from the applicable Third Party. In no event will an Indemnifying Party, without the written consent of the other Party, be entitled to settle any Third Party Claim by granting a license or covenant not to sue under or with respect to the Patents or other intellectual property rights owned by the other Party. Furthermore, in the case of a Novvi LLC Third Party Claim under Section 7.1(v), Novvi LLC agrees that, if Amyris has assumed the defense of such Third Party Claim under Subsection (b) above, Novvi LLC will work together with Amyris in good faith should Amyris reasonably determine that settling such matter and/or the Parties avoiding additional such Third Party Claims is to modify the BioFene manufacturing process that is both licensed to Novvi LLC and used by Amyris for its own BioFene manufacturing.

 

(e) Indemnified Party’s Cooperation. If an Indemnifying Party has assumed the defense of a Third Party Claim under Subsection (b), the Indemnified Party shall, and shall cause each of its Novvi

 

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LLC Indemnitees or Amyris Indemnitees (as applicable), to reasonably cooperate with the Indemnifying Party, mitigate potential Losses, and furnish such records, information and testimony, provide such witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours by the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party Claim and making the Indemnified Party and its Novvi LLC Indemnitees or Amyris Indemnitees (as applicable) available on a mutually convenient basis to provide additional information and explanation of any records or information provided. In addition, if an Indemnifying Party has assumed the defense of a Third Party Claim under Subsection (b), the Indemnified Party may employ separate counsel to participate in the defense of such Third Party Claim, but such counsel will be at the Indemnified Party’s sole expense.    

 

(f) Expenses. Any reasonable and verifiable costs and expenses incurred by the Indemnified Party in connection with a Third Party Claim and reimbursable as set forth this Article 7 shall be reimbursed on a calendar quarter basis by the Indemnifying Party, without prejudice to the Indemnifying Party’s right to contest the Indemnified Party’s right to indemnification and subject to refund in the event the Indemnifying Party is ultimately held not to be obligated to defend, indemnify, or hold harmless the Indemnified Party under this Article 7.

 

(g) Breach by the Indemnifying Party of its Article 7 Obligations. If the Indemnifying Party denies its obligations under this Article 7, fails to timely provide an Assumption Notice with regard to a Third Party Claim, or fails to diligently defend, indemnify, and hold harmless such Third Party Claim throughout the period that such claim exists, then its right to defend that Third Party Claim shall immediately terminate upon written notice from the Indemnified Party, and the Indemnified Party may assume the defense of, and settle, such claim with counsel of its own choice and on such terms as it deems reasonably appropriate, with written notice to the Indemnifying Party but without any obligation to obtain the consent of the Indemnifying Party. The Indemnifying Party will be obligated to indemnify and hold harmless the Indemnified Party for the costs of such defense and settlement if it is determined that the Indemnifying Party breached its obligations under this Article 7 with regard to such Third Party Claim and that the Third Party Claim is subject to the indemnification provisions of this Article 7. 

 

7.4 Disclaimer of Consequential Damages. EXCEPT FOR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE OR SPECIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE), EVEN IF SUCH PARTY WAS ADVISED OR OTHERWISE AWARE OF THE LIKELIHOOD OF SUCH DAMAGES AND REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING DISCLAIMER DOES NOT APPLY TO OR LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS ARTICLE 7 WITH REGARD TO THIRD PERSON CLAIMS.

 

7.5 Insurance. While a Party’s license(s) under this License Agreement are in effect and for three (3) years thereafter, such Party shall have and maintain such type and amounts of liability insurance covering its activities under this License Agreement as is normal and customary in such Party’s industry for parties similarly situated, and such Party shall upon request provide the other Party a certificate confirming such insurance is in place.

 

 

ARTICLE 8

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DISPUTE RESOLUTION

 

8.1 Governing Law. This License Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law or of choice of law thereof (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law, which shall apply to this License Agreement). The Parties agree to exclude the application to this License Agreement of the United Nations Convention on Contracts for the International Sale of Goods.

 

8.2 Binding Arbitration.

 

(a) Informal Resolution. In the event of any dispute between the Parties involving this License Agreement, such dispute shall be governed by and resolved subject to this Article 8. Notwithstanding anything contained in this License Agreement, the Parties undertake to use their reasonable efforts to amicably resolve by mutual negotiation of their chief executive officers (or their designees) any disputes between themselves involving this License Agreement.

 

(b) Submit to AAA Arbitration. In case such mutual agreement is not reached under Subsection (a) above within thirty (30) days after submission of the dispute to the Parties’ chief executive officers (or their designees), either Party, subject to Subsection (i) below with regard to Patent disputes, may refer the dispute to binding arbitration under the then-existing rules (“Arbitration Rules”) of the American Arbitration Association (“Arbitration Chamber”), which will exclusively and finally settle such dispute. The Arbitration Rules are deemed to be incorporated by reference into this License Agreement, except as such Arbitration Rules may be modified herein or by subsequent mutual agreement by the Parties. The arbitration proceedings filed based on this License Agreement shall be administered by the Arbitration Chamber. Any such arbitration shall be conducted in accordance with, and subject in all respect to, the following: For the avoidance of doubt, this Article 8 equally binds all Parties to this License Agreement, and such Parties hereby agree to submit to and comply with all the terms and conditions of this Article 8, which shall be in full force and effect irrevocably, and subject to specific performance. Unless otherwise agreed in writing, the Parties shall continue to diligently perform their respective duties and obligations under this License Agreement while an arbitral proceeding is pending.

 

(c) Selection of the Arbitral Tribunal. Each arbitration under this Article 8 will be settled by a panel of three (3) arbitrators. Each Party shall nominate one arbitrator in accordance with the Arbitration Rules, and the two arbitrators so nominated shall nominate jointly a third arbitrator, who shall serve as the chair of the arbitral tribunal (“Arbitral Tribunal”), within fifteen (15) days from the receipt of a communication from the Arbitration Chamber by the two previously nominated arbitrators. If any arbitrator has not been nominated within the time limits specified herein and/or in the Arbitration Rules, as applicable, such appointment shall be made by the Arbitration Chamber upon the written request of either Party within fifteen (15) days of such request. If at any time a vacancy occurs in the Arbitral Tribunal, the vacancy shall be filled in the same manner and subject to the same requirements as provided for the original appointment to that position.

 

(d) Location of the Arbitration. The place of arbitrations shall be the city of New York, New York, U.S.A., where the award(s) shall be rendered, and all arbitrations shall be conducted in English.

 

(e) Arbitration Decision. An arbitration award shall be final, unappealable and binding on the Parties, their successors and assignees, who agree to comply with it and spontaneously and expressly

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waive any form of appeal, except for the request for fraud, correction of material error or clarification of uncertainty, doubt, contradiction or omission of the arbitration award. If necessary, an arbitration award may be performed in any court that has jurisdiction or authority over a Party or its assets. The arbitration award will include the distribution of costs, including reasonable attorney’s fees and reasonable expenses as the Arbitral Tribunal sees fit.

 

(f) Exclusive Dispute Resolution Process; Exceptions. The Parties are fully aware of all terms and effects of the arbitration provisions herein agreed upon and irrevocably agree that arbitration hereunder is the only form of resolution of any disputes arising between themselves involving this License Agreement, except as expressly set forth to the contrary in this Section 8.2. Without prejudice to the validity of these arbitration provisions, either Party may seek judicial assistance and/or relief, if and when necessary, for the sole purposes of:

 

(i)executing obligations that admit, forthwith, specific performance;

 

(ii)obtaining coercive or precautionary measures or procedures of a preventive, provisional or permanent nature, as security for the arbitration to be commenced or already in course between the Parties and/or to ensure the existence and efficacy of the arbitration proceeding; or

 

(iii)fraud, correction of material error or clarification of uncertainty, doubt, contradiction or omission of the arbitration award; or

 

(iv)obtaining measures of a mandatory and specific nature;

 

it being understood that, upon accomplishment of the mandatory or specific enforcement procedures sought, the dispute shall be returned to the Arbitral Tribunal to be established or already established, as applicable, full and exclusive authority to decide on all and any issues, whether related to procedure or merit, which has caused the mandatory or specific enforcement claim, with the respective judicial proceeding being interrupted until the partial or final decision of the Arbitral Tribunal. The Parties agree that irreparable damage would occur in the event any provision of this License Agreement was not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.

 

For the measures indicated in (i) through (iv) above, the Parties elect any state or U.S. federal court located in the city of New York, New York, U.S.A., to the exclusion of any other courts, and the Parties hereby irrevocably submit to the exclusive jurisdiction of any state or U.S. federal court located within the City of New York, New York, U.S.A. over any such action. The Parties hereby irrevocably waive, to the fullest extent permitted by Applicable Law, any objection which they may now or hereafter have to the laying of venue of any such action brought in such court or any defense of inconvenient forum for the maintenance of such action. The filing of any measure under this Subsection (f) does not entail any waiver to the arbitration under this Article 8 or to the full jurisdiction of the Arbitral Tribunal.

 

(g) Confidentiality. The Parties and their respective Representatives, the witnesses, the Arbitral Tribunal, the Arbitration Chamber and its secretariat agree to treat the existence, content, awards and decisions relating to an arbitration proceeding hereunder, together with all the materials, information and testimony used therein or created for the purposes thereof, as well as other documents produced or disclosed by each Party during the arbitration proceeding, as Confidential Information of the other Party, subject to the obligations and exceptions in Section 5.10.

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(h) Consolidation with Second Amended and Restated Operating Agreement Arbitrations. In order to facilitate the comprehensive resolution of related disputes between the Parties under this License Agreement and the Second Amended and Restated Operating Agreement, any or all such disputes may be brought in a single arbitration under the following circumstances and conditions: If one or more arbitrations are already pending between the Parties hereunder or under the Second Amended and Restated Operating Agreement and a new dispute arises between the Parties under any of said agreements or a subsequently filed arbitration is brought between the Parties under any said agreements, then a Party may request that such new dispute or any subsequently filed arbitration be consolidated into any prior pending arbitration. Within twenty (20) days of a request to consolidate, the Parties shall select one of the prior pending arbitrations into which the new dispute or subsequently filed arbitration may be consolidated (“Selected Arbitration”). If the Parties are unable to agree on the Selected Arbitration within such twenty (20) day period, then the Arbitration Chamber shall indicate the Selected Arbitration within twenty (20) days of a written request by a Party. If the Arbitration Chamber fails to indicate the Selected Arbitration within the 20-day time limit indicated above, the arbitration first initiated shall be considered the Selected Arbitration. The new dispute or subsequently filed arbitration shall be so consolidated, provided that the Arbitral Tribunal for the Selected Arbitration determines that: (i) the new dispute or subsequently filed arbitration presents significant issues of law or fact common with those in the Selected Arbitration; (ii) neither Party would be unduly harmed in the new dispute or in the Selected Arbitration; and (iii) consolidation under these circumstances would not result in undue delay for the Selected Arbitration. Any such order of consolidation issued by the Arbitral Tribunal shall be final and binding upon the Parties. The Parties waive any right they may have to appeal or to seek interpretation, revision or annulment of such order of consolidation under the Arbitration Rules and/or the Applicable Law in any court. The Arbitral Tribunal for the Selected Arbitration into which a new dispute or subsequently filed arbitration is consolidated shall serve as the Arbitral Tribunal for the consolidated arbitration.

 

(i) Exception for Patent-related Disputes. In the event that a dispute arises with respect to the inventorship, scope, ownership, validity, enforceability, revocation or infringement of a Patent and such dispute cannot be resolved by the Parties in accordance with Subsection (a) above, then, unless otherwise agreed by the Parties in writing, such dispute will not be submitted to arbitration under this Section 8.2, and either Party may initiate litigation solely in a court of competent jurisdiction in the country of issuance of the Patent that is the subject of the dispute.

 

8.3 Service of Process. Each Party agrees that, in any dispute, claim, action, suit or proceeding between the Parties in connection with this License Agreement that, per this License Agreement or Applicable Law, may be brought in a court, process may be served on a Party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that service of process on such Party at the location, and as provided, in Section 10.10 shall be deemed effective service of process on such Party. Nothing herein shall affect the right of either Party to serve legal process in any other manner permitted by Applicable Law or at equity.

 

8.4 Waiver of Jury Trial. WITH RESPECT TO ANY DISPUTE, CLAIM, ACTION, SUIT OR PROCEEDING BETWEEN THE PARTIES IN CONNECTION WITH THIS LICENSE AGREEMENT THAT, PER THIS LICENSE AGREEMENT OR APPLICABLE LAW, MAY BE BROUGHT IN A COURT, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY JURY AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH DISPUTE, CLAIM, ACTION, SUIT OR PROCEEDING.

 

 

ARTICLE 9

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TERM AND TERMINATION

 

9.1 Term of the License Agreement. The term of this License Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all licenses granted pursuant to Sections 2.1, 2.2, and 2.3.

 

9.2 Initial Term of the Licenses.

 

(a) Novvi LLC’s Licenses in Section 2.1. The licenses granted to Novvi LLC in Section 2.1 will be effective as of the Effective Date and will continue, unless earlier terminated per this Article 9, until (i) with respect to any Know-How in the Amyris Base Technology, the twentieth (20th) anniversary of the Effective Date and (ii) with respect to each Patent in the Amyris Base Technology, the twentieth (20th) anniversary of the Effective Date or the expiration or invalidation of the applicable Patent, whichever is sooner.

 

(b) Novvi LLC’s License under Section 2.3. If Amyris grants Novvi LLC a license under Section 2.3, then such license will be effective upon the date Amyris grants it per the terms of Section 2.3 and will continue, unless earlier terminated per this Article 9, until (i) with respect to any Know-How in the Amyris BioFene Manufacturing Technology, the twentieth (20th) anniversary of the Effective Date and (ii) with respect to each Patent in the Amyris BioFene Manufacturing Technology, the twentieth (20th) anniversary of the Effective Date or the expiration or invalidation of the applicable Patent, whichever is sooner.

 

(c) Amyris’s License in Section 2.2. The license granted to Amyris in Section 2.2 will be effective as of the Effective Date and will continue, unless earlier terminated per this Article 9, until (i) with respect to any Know-How in the Novvi LLC BioFene Transformation Technology, the twentieth (20th) anniversary of the Effective Date and (ii) with respect to each Patent in the Novvi LLC BioFene Transformation Technology, the twentieth (20th) anniversary of the Effective Date or the expiration or invalidation of the applicable Patent, whichever is sooner.

 

9.3 Extend the Term of Licenses. If a license granted to Novvi LLC in Section 2.1 or under Section 2.3, or to Amyris under Section 2.2, has not been earlier terminated under this Article 9, the Parties agree to decide, no later than the eighteenth (18th) anniversary of the Effective Date, whether or not to extend the term of such license(s) set forth in Section 9.2(a)-(c) beyond the twentieth (20th) anniversary of the Effective Date. If the Parties agree to extend the term of such licenses to Novvi LLC and/or Amyris, such extension shall be set forth in writing signed by both Parties, but such licenses will still be subject to earlier termination under this Article 9.

 

9.4 Expiration of a Novvi LLC License. Upon the expiration of the term (as may be extended per Section 9.3) of a license granted to Novvi LLC in Section 2.1 or under Section 2.3 if such license was not earlier terminated,

 

 (i)such expired license will immediately cease;
   
(ii)Novvi LLC will have no rights to or under any intellectual property or Confidential Information of Amyris, unless, at the time, it continues to have another unexpired and un-terminated license(s) under this License Agreement, in which case such unexpired and un-terminated license(s) of Novvi LLC will continue unaffected, as will this License Agreement with regard to such unexpired and un-terminated license(s);

 

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(iii)any sublicense Novvi LLC may have granted an Affiliate or Third Party under the expired license automatically terminates;

 

(iv)Section 2.1 or 2.3 (whichever is applicable to the expired license) and Article 3 (if the expired license had been granted under Section 2.1) automatically terminate;

 

(v)Novvi LLC, if upon such expiration it has no more licenses under this License Agreement, will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

 

(vi)Amyris’s license under Section 2.2 will continue unaffected, as will this License Agreement with regard to such license.

 

9.5 Expiration of Amyris License. Upon the expiration of the term (as may be extended per Section 9.3) of the license granted to Amyris in Section 2.2,

 

 (i)such expired license will immediately cease;
   
(ii)Amyris will have no rights to or under any intellectual property or Confidential Information of Novvi LLC;

 

(iii)any sublicense Amyris may have granted an Affiliate or Third Party under the expired license automatically terminates;

 

(iv)Section 2.2 automatically terminates;

 

(v)Amyris will remain obligated to perform its obligations pursuant to this License Agreement; and

 

(vi)Novvi LLC’s licenses under Sections 2.1 and 2.3 will continue unaffected, as will this License Agreement with regard to such licenses.

 

9.6 Uncured Material Breach by Novvi LLC. If Novvi LLC materially breaches this License Agreement and does not cure such breach within sixty (60) days after receiving written notice from Amyris of such breach, Amyris may, with another written notice to Novvi LLC, immediately terminate all of the licenses granted to Novvi LLC under this License Agreement. If, per this Section, Amyris terminates Novvi LLC’s licenses under this License Agreement, then, upon such termination,:

 

(i)Novvi LLC will have no rights to or under any intellectual property or Confidential Information of Amyris;

 

(ii)any sublicense Novvi LLC may have granted an Affiliate or Third Party automatically terminates;

 

(iii)Sections 2.1 and 2.3 and Article 3 automatically terminate;

 

(iv)Novvi LLC will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

 

(v)Amyris’s license under Section 2.2 will continue unaffected, as will this License

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Agreement with regard to such license.

 

Termination under this Section is not Amyris’s exclusive remedy for a Novvi LLC breach but is in addition to any other rights or remedies Amyris may have under this License Agreement or Applicable Law for such breach.

 

9.7 Uncured Material Breach by Amyris. If Amyris materially breaches this License Agreement and does not cure such breach within sixty (60) days after receiving written notice from Novvi LLC of such breach, Novvi LLC may, with another written notice to Amyris, immediately terminate the license granted to Amyris under this License Agreement. If, per this Section, Novvi LLC terminates Amyris’s license under this License Agreement, then, upon such termination,:

 

(i)Amyris will have no rights to or under any intellectual property or Confidential Information of Novvi LLC;

 

(ii)any sublicense Amyris may have granted an Affiliate or Third Party under the license automatically terminates;

 

(iii)Section 2.2 automatically terminates;

 

(iv)Amyris will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

 

(v)Novvi LLC’s licenses under Sections 2.1 and 2.3 will continue unaffected, as will this License Agreement with regard to such licenses.

 

9.8 Event of Dissolution of Novvi LLC. Upon the occurrence of an event described in Section 11.03 of the Second Amended and Restated Operating Agreement that triggers dissolution of Novvi LLC and Novvi LLC is dissolved and wound up:

 

(i)all of the licenses granted to Novvi LLC under this License Agreement, if not previously expired or terminated, will automatically terminate;

 

(ii)Novvi LLC will have no rights to or under any intellectual property or Confidential Information of Amyris;

 

(iii)any sublicense Novvi LLC may have granted an Affiliate or Third Party automatically terminates; and

 

(iv)Sections 2.1 and 2.3 and Article 3 automatically terminate (if not previously terminated).

 

9.9 Insolvency Event for Novvi LLC. Upon the occurrence of an Insolvency Event for Novvi LLC:

 

(i)all of the licenses granted to Novvi LLC under this License Agreement, if not previously expired or terminated, will automatically terminate;

 

(ii)Novvi LLC will have no rights to or under any intellectual property or Confidential Information of Amyris;

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(iii)any sublicense Novvi LLC may have granted an Affiliate or Third Party automatically terminates;

 

(iv)Sections 2.1 and 2.3 and Article 3 automatically terminate (if not previously terminated or expired);

 

(v)Novvi LLC will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

 

(vi)Amyris’s license under Section 2.2 will continue unaffected per Section 2.6, as will this License Agreement with regard to such license.

 

9.10 Insolvency Event for Amyris. Upon the occurrence of an Insolvency Event for Amyris:

 

(i)the license granted to Amyris under this License Agreement, if not previously expired or terminated, will automatically terminate;

 

(ii)Amyris will have no rights to or under any intellectual property or Confidential Information of Novvi LLC;

 

(iii)any sublicense Amyris may have granted an Affiliate or Third Party under the license automatically terminates;

 

(iv)Section 2.2 automatically terminates (if not previously terminated or expired);

 

(v)Amyris will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

 

(vi)Novvi LLC’s licenses under Sections 2.1 and 2.3 will continue unaffected per Section 2.6, as will this License Agreement with regard to such licenses.

 

9.11 Surviving Provisions. Notwithstanding anything to the contrary, in the event that this License Agreement expires or is terminated, the following provisions, and the Parties’ respective rights and obligations under them, will survive such circumstances: Article 1, Sections 5.1, 5.2, 5.3, 5.4, 5.8, and 5.10 (for the time period set forth in Section 5.10), Article 7, Article 8, and Article 10, and this Section.

 

 

ARTICLE 10

 

MISCELLANEOUS

 

10.1 Compliance with Law. With respect to the performance of this License Agreement and the activities contemplated by this License Agreement, each Party shall comply with all Applicable Laws.

 

10.2 No Conflicting Rights. Neither Party will grant any license, right, or encumbrance to any Affiliate or Third Party that would conflict with the licenses or rights granted hereunder or enter into any agreement that would impair such Party’s ability to perform its obligations under this License Agreement.

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10.3 Further Assurances.  After the Effective Date, each of the Parties shall execute and deliver such additional documents, certificates, and instruments and perform such additional acts, as may be reasonably requested and necessary or appropriate to carry out the purposes and intent and all of the provisions of this License Agreement and to consummate all of the transactions contemplated by this License Agreement.

 

10.4 Expenses.  Each Party shall be responsible for and bear all of its own costs and expenses (including but not limited to any attorneys’ fees, accountants’ fees, or financial advisors’ fees or any prior commitment in respect thereof) with regard to the negotiation and consummation of the transactions contemplated by this License Agreement. 

 

10.5 Relationship of the Parties.  Each Party is an independent contractor relative to the other Party under this License Agreement. This License Agreement is not a partnership agreement, and nothing in this License Agreement shall be construed to establish a relationship of co-partners or joint venturers between the Parties.  No employee or representative of a Party, per this License Agreement, shall have any authority to bind or obligate the other Party or to create or impose any contractual or other liability on the other Party.

 

10.6 No Third Party Beneficiaries. Except with regard to the Novvi LLC Indemnitees and Amyris Indemnitees under Article 7 and Total with regard to Section 4.1, all rights, benefits, and remedies under this Licensee Agreement are solely intended for the benefit of the Parties and their respective permitted successors and assigns. No Third Party (except Novvi LLC Indemnitees and Amyris Indemnitees with regard to their rights, benefits and remedies Article 7 and Total with regard to Section 4.1) shall have any rights whatsoever to enforce any obligation contained this License Agreement, seek a benefit or remedy for any breach, or take any other action relating to this License Agreement under any legal or equitable theory.

 

10.7 Amendments and Waivers. This License Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all Parties or, in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof; nor shall any waiver by a Party of any term or condition of this License Agreement in any one or more instances, be deemed to be or construed as a waiver of the same or any other term or condition of this License Agreement on any future occasion.

 

10.8 Assignment. Other than its sublicensing rights under Section 2.1 and potentially under Section 2.3, Novvi LLC may not assign or delegate, in whole or in part, this License Agreement or any of its rights or obligations under this License Agreement without the prior written consent of Amyris, such consent not to be unreasonably withheld. In addition to its sublicense rights under Section 2.2, Amyris may, without Novvi LLC’s consent, assign or delegate, in whole or in part, this License Agreement or any of its rights or obligations under this License Agreement to (i) an Affiliate but only while such Affiliate remains an Affiliate and if Amyris remains responsible for such Affiliate’s performance of the License Agreement, (ii) a buyer of all or substantially all of Amyris’s assets as long as such buyer delivers a writing expressly agreeing to assume such performance, or (iii) a surviving entity with whom Amyris is merged as long as such surviving entity delivers a writing expressly agreeing to assume such performance. Any assignment or delegation or attempted assignment or delegation not in accordance with this Section 10.8 shall be null and void. This License Agreement shall be binding upon and inure solely to the benefit of the Parties and their permitted successors and assigns.

 

10.9 Severability.  If any provision of this License Agreement should be held invalid, illegal

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or unenforceable in any jurisdiction, the Parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. Nothing in this License Agreement shall be interpreted so as to require a Party to violate any Applicable Law.

 

10.10 Notices.  All notices, consents, claims, waivers, requests and other communications hereunder shall be in writing and shall be delivered in person, sent by overnight courier (e.g., Federal Express), facsimile transmission or posted by registered or certified mail, return receipt requested, with postage prepaid, to the following address of each Party:

 

If to Amyris:

 

Amyris, Inc.

5885 Hollis Street, Suite 100

Emeryville, CA 94608

Attn: General Counsel

 

If to Novvi LLC:

 

Novvi LLC

5885 Hollis Street

Emeryville, CA 94608

Attn: President

 

with a copy to, but only for such time as Cosan US remains a member of Novvi LLC, (but which shall not constitute notice):

 

Cosan US, Inc.

2711 Centerville Road, Suite 400

Wilmington, Delaware 19808

Attn: President

 

Cosan Lubrificantes e Especialidades S.A.

Rua Victor Civita, 77 – Edifício 6 / Bloco 1 – 4º andar

Barra da Tijuca – Rio de Janeiro – RJ

CEP 22775-905 Brazil

Attn: Chief Executive Officer

 

or to such other address or addresses as each Party may from time-to-time designate by notice as provided herein.  Any such notice shall be deemed given (i) when actually received when so delivered personally or by overnight courier or (ii) if mailed, other than during a period of general discontinuance or disruption of postal service due to strike, lockout or otherwise, on the fifth (5th) day after its postmarked date thereof or (iii) if sent by facsimile transmission on the date sent if such day is a business day or the next following business day if such day is not a business day. 

 

10.11 Entire Agreement.  This License Agreement sets forth all the covenants, promises, agreements, warranties, representations, conditions and understandings between the Parties and supersedes and terminates all prior agreements and understandings between the Parties relating to the

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subject matter hereof.  There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties other than as set forth in this License Agreement that relate to the subject matter hereof. 

 

10.12 Interpretation.  When a reference is made in this License Agreement to Articles, Sections, or Subsections, such reference shall be to an Article, Section, or Subsection to this License Agreement unless otherwise indicated.  The words “include,” “includes,” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.  The headings and captions in this License Agreement are for convenience and reference purposes only and shall not be considered a part of or affect the construction or interpretation of any provision of this License Agreement.  Words of any gender include the other gender, and words using the singular or plural number also include the plural or singular number, respectively.  Each Party acknowledges and agrees it has had the opportunity to draft, review and edit the language of this License Agreement and that no presumption for or against any Party arising out of drafting all or any part of this License Agreement will be applied in any controversy, claim or dispute relating to, in connection with or involving this License Agreement. Accordingly, the Parties hereby waive the benefit of any rule of Applicable Law, including California Civil Code Section 1654 and any successor or amended statute, or any legal decision that would require that in cases of uncertainty, the language of a contract should be interpreted most strongly against the party who drafted such language.

 

10.13 Counterparts.  This License Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This License Agreement may be executed by facsimile or other electronic signatures (including exchange of emailed pdf), and such signatures shall be deemed to bind each Party as if they were original signatures.

 

THIS LICENSE AGREEMENT is hereby executed effective as of the Effective Date by the authorized representatives of the Parties.

 

AMYRIS, INC.   NOVVI LLC  
           
/s/ R. Asadorian        
         
By: R. Asadorian   By:    
           
Title: CFO   Title:    
           
           
           
           
           
      By:    
           
      Title:    

 

 

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subject matter hereof.  There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties other than as set forth in this License Agreement that relate to the subject matter hereof. 

 

10.12 Interpretation.  When a reference is made in this License Agreement to Articles, Sections, or Subsections, such reference shall be to an Article, Section, or Subsection to this License Agreement unless otherwise indicated.  The words “include,” “includes,” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.  The headings and captions in this License Agreement are for convenience and reference purposes only and shall not be considered a part of or affect the construction or interpretation of any provision of this License Agreement.  Words of any gender include the other gender, and words using the singular or plural number also include the plural or singular number, respectively.  Each Party acknowledges and agrees it has had the opportunity to draft, review and edit the language of this License Agreement and that no presumption for or against any Party arising out of drafting all or any part of this License Agreement will be applied in any controversy, claim or dispute relating to, in connection with or involving this License Agreement. Accordingly, the Parties hereby waive the benefit of any rule of Applicable Law, including California Civil Code Section 1654 and any successor or amended statute, or any legal decision that would require that in cases of uncertainty, the language of a contract should be interpreted most strongly against the party who drafted such language.

 

10.13 Counterparts.  This License Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This License Agreement may be executed by facsimile or other electronic signatures (including exchange of emailed pdf), and such signatures shall be deemed to bind each Party as if they were original signatures.

 

THIS LICENSE AGREEMENT is hereby executed effective as of the Effective Date by the authorized representatives of the Parties.

 

AMYRIS, INC.   NOVVI LLC  
           
    /s/ Jeffrey Brown  
         
By:     By: Jeffrey Brown  
           
Title:     Title: President & CEO  
           
           
           
      /s/ Jason R. Wells  
           
      By: Jason R. Wells  
           
      Title: CTO  

 

 

 

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Exhibit A

 

Definition of European Union

 

 

 

1.Austria
2.Belgium
3.Bulgaria
4.Croatia
5.Cyprus
6.Czech Republic
7.Denmark
8.Estonia
9.Finland
10.France
11.Germany
12.Greece
13.Hungary
14.Ireland
15.Italy
16.Latvia
17.Lithuania
18.Luxembourg
19.Malta
20.Netherlands
21.Poland
22.Portugal
23.Romania
24.Slovakia
25.Slovenia
26.Spain
27.Sweden
28.United Kingdom

 

Page 37 of 37


EX-10.04 6 exh_1004.htm EXHIBIT 10.04

Exhibit 10.04

 

CONFIDENTIAL TREATMENT REQUESTED. CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND, WHERE APPLICABLE, HAVE BEEN MARKED WITH AN ASTERISK TO DENOTE WHERE OMISSIONS HAVE BEEN MADE. THE CONFIDENTIAL MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

 

PRIVILEGED AND CONFIDENTIAL

 

 

 

 

 

 

COLLABORATION AGREEMENT

BY AND BETWEEN

 

GINKGO BIOWORKS, INC.

 

AND

 

AMYRIS, INC.

 

 

 

 

 

 

 

 

 

 

 
 

COLLABORATION AGREEMENT

 

THIS COLLABORATION AGREEMENT (the “Agreement”) is entered into as of September 30, 2016 (the “Effective Date”) by and between Ginkgo Bioworks, Inc., a Delaware corporation having its principal office at 27 Drydock Avenue, 8th Floor, Boston, MA 02210 (“Ginkgo”), and Amyris, Inc., a Delaware corporation having its principal office at 5885 Hollis Street, Ste. 100, Emeryville, CA 94608 (“Amyris”). Ginkgo and Amyris may be referred to in this Agreement individually as a “Party” and, collectively, as the “Parties”.

 

RECITALS

 

WHEREAS, Ginkgo and Amyris each have certain capabilities, technology and know-how useful in collaborating to develop a biotechnology platform that will benefit both Parties’ customers;

 

WHEREAS, Ginkgo and Amyris are interested in forming an alliance in the Field (as hereinafter defined) whose goal is to discover, develop and commercialize a robust portfolio of products to address the needs of each Party’s customers; and

 

WHEREAS, concurrent with the execution and delivery of this Agreement, (a) Amyris has issued to Ginkgo the warrant attached hereto as Exhibit A, (b) Amyris and Stegodon Corporation have entered into the Amendment to Loan and Security Agreement Relating to (i) Maturity Date, (ii) Payments and (iii) Cash Covenants, and (c) Amyris and Ginkgo have entered into an Escrow Agreement (the “Escrow Agreement”) in the form attached hereto as Exhibit B.

 

NOW, THEREFORE, in consideration of the respective representations, warranties, covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

Article I.    DEFINITIONS

 

When used in this Agreement, each of the following terms shall have the meanings set forth in this Article I:

 

1.1              “Action” means any claim, audit, examination, action, cause of action or suit (whether in contract or tort or otherwise), litigation (whether at law or in equity, whether civil or criminal), assessment, arbitration, mediation, investigation, hearing, charge, complaint, demand, notice or proceeding.

 

1.2              “Accounting Principles” means GAAP, to the extent applicable. In the event of a conflict between GAAP and any provision of this Agreement, this Agreement shall control.

 

1.3              “Actual Cost of Goods Sold” means, with respect to a Product, the costs and expenses per unit, such as a kilogram, of manufacturing said Product associated with the manufacturing, and commercialization of such Product under this Agreement, including: (a) the direct labor costs (including salary and wages and fringe benefits) incurred by the applicable Party or its Affiliates in conducting the applicable activity; (b) the cost of materials used by the applicable Party or its Affiliates (including feedstock and raw materials, intermediates,

 

 
 

components and packaging materials, and including shipping and handling costs, freight-in charges and any applicable sales taxes and/or customs duties therefor); (c) a reasonable allocation of overhead (including without limitation indirect labor costs, supplies and materials, plant insurance and property taxes) and facilities and equipment expense (including utilities, repairs and maintenance costs, and equipment rental), (d) costs for administration and for management of material procurement and other manufacturing or other applicable activities, including QA/QC, performed directly in support of the applicable activity, calculated in accordance with reasonable cost accounting methods in effect from time to time, consistently applied; (e) if applicable, amounts paid (net of rebates or discounts, if any) to Third Party manufacturers or service providers in connection with their supply of the product or subcontracting of the applicable activity (including shipping costs and any applicable taxes and/or duties therefor), and (f) any royalties payable to a Third Party directly attributable to the applicable activity; provided, however, that no cost may be counted more than once in such calculation. Actual Cost of Goods Sold shall not include non-cash GAAP expenses such as depreciation expense and utilization charges except that for Products manufactured at Amyris’ existing BROTAS facility, a reasonable allocation of either (1) depreciation expense over the expected life of the buildings and equipment in existence as of the Effective Date or (2) rent, leaseback fees and similar costs for the existing BROTAS facility shall be included in facilities and equipment expense, which amount of all such depreciation expense, rent, leaseback fees, and similar costs for all products manufactured (whether or not for customers under this Agreement) at the existing BROTAS facility for purposes of calculating Actual Cost of Goods Sold hereunder is capped at $[*] in the aggregate per year. For clarity, under this Agreement, the payment of a share of the Net Profits to the other Party does not constitute a royalty under this definition. Actual Cost of Goods Sold shall be calculated in accordance with the Accounting Principles. For the avoidance of doubt, (A) any Losses hereunder, (B) any Capital Expenditures, (C) any costs or expenses associated with the Parties’ activities directed to the development or scale up of technologies necessary for the manufacture of any Product, (D) any losses in excess of the amount that the JSC has agreed to be greater than generally expected (i.e., for theft, spillage, etc.) for the applicable Product, (E) any losses related to manufacturing or batch failures, which failures shall be the sole responsibility of Amyris, (F) any depreciation expense, rent, leaseback fees, and similar costs in excess of $[*] in the aggregate per year for the existing BROTAS facility or any depreciation expense, rent, leaseback fees, and similar costs for any new facility (including without limitation the proposed BROTAS2 facility), and (G) any amounts determined by the JSC that should not be included in ACOGS for the applicable Product, and (H) fees and royalties under Section 2.3(g) herein shall be excluded from the calculation of Actual Cost of Goods Sold, and the applicable Party will calculate the Actual Cost of Goods for Products under this Agreement in the manner at least as favorable to Ginkgo as compared with other Amyris products not subject to this Agreement. In the event that a Party uses a Third Party contract manufacturing organization (“CMO”) for the manufacturing of a Product in accordance with the terms hereof, the Actual Cost of Goods Sold for such Product shall be equal to the pricing paid by the applicable Party to such Third Party CMO attributable solely to the manufacture of such Product.

 

1.4              “Affiliate” means, as to a Person, any entity which, directly or indirectly, controls, is controlled by, or is under common control with such Person. For the purposes of this definition, “control” refers to any of the following: (a) direct or indirect ownership of fifty percent (50%) or more of the voting securities entitled to vote for the election of directors or managers in the case of a corporation or limited liability company, or of fifty percent (50%) or more of the equity interest

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

with the power to direct management in the case of any other type of legal entity; (b) status as a general partner in any partnership; or (c) any other arrangement where an entity possesses, directly or indirectly, the power to direct the management or policies of another entity, whether through ownership of voting securities, by contract or otherwise.

 

1.5              “Amyris Customer Agreement” means any agreement between Amyris and a customer entered into during the Term pertaining to the development, improvement and/or manufacturing of one or more chemical small molecule compounds in the Field other than (a) the agreement between Amyris and [*]; (b) any agreement with a Governmental Entity; (c) agreements related to the [*]; and (d) the agreements listed on Exhibit 1.5. [*].

 

1.6              “Average Selling Price” means, with respect to a Product sold by a Party, the aggregate net sales price per unit (such as a kilogram) of said Product for all items, instances, or increments of such Product by all customers of the Party, excluding any Incentive Payments related to such Product. Average Selling Price shall be calculated in accordance with the Accounting Principles.

 

1.7              “Background Intellectual Property” means, with respect to a given Party (i) any and all information and inventions, and all Intellectual Property rights therein or pertaining thereto, including all Intellectual Property in the Strains, that are in existence and Controlled by such Party or its Affiliates at the beginning of the Term and that are necessary, required or actually used in the development, manufacture and/or commercialization of any Product under this Agreement, and (ii) such Party’s Included Non-Collaboration Intellectual Property. Background Intellectual Property excludes Foreground Intellectual Property, Foundry Intellectual Property and Non-Collaboration Intellectual Property.

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

1.8              “Business Day” means a day other than a Saturday or Sunday or other day on which banking institutions located in New York, New York, USA are authorized or obligated by law or executive order to close.

 

1.9              “Calendar Quarter” means a calendar quarter ending on the last day of March, June, September or December.

 

1.10          “Calendar Year” means a period of time commencing on January 1 and ending on the following December 31.

 

1.11          “Capital Expenditures” means the funds used by a Party to acquire or upgrade fixed or physical assets, including property, industrial buildings, or equipment, including without limitation any costs associated with the Parties’ activities directed to the development of technologies necessary for the manufacture of any Product. Capital Expenditures shall be calculated in accordance with the Accounting Principles.

 

1.12          “Change in Control” means, with respect to a Party, an event in which: (a) any Third Party not then beneficially owning more than fifty percent (50%) of the voting power of the outstanding securities of such Party acquires or otherwise becomes the beneficial owner of securities of such Party representing more than fifty percent (50%) of the voting power of the then-outstanding securities of such Party with respect to the election of the board of directors, board of managers or similar governing body; or (b) such Party consummates a merger, consolidation or similar transaction with a Third Party where the voting securities of such Party outstanding immediately preceding such transaction represent less than fifty percent (50%) of the voting power of such Party or surviving entity, as the case may be, immediately following such transaction; or (c) such Party sells all or substantially all of its assets relating to this Agreement to a Third Party.

 

1.13          “Control” of Intellectual Property means that the applicable party has the rights necessary to grant the rights and licenses granted or to be granted in this Agreement, whether by ownership or otherwise, without breaching any Third Party obligation included in an agreement set forth on Exhibit  1.13, which may be updated from time to time by agreement of the Parties. For clarity, any new restriction on Control after the Effective Date (and therefore any addition to Exhibit 1.13), whether pursuant to a Customer Agreement or an agreement of a Party excluded from this Collaboration, requires approval by the JSC, which approval, solely in regards to a Customer Agreement, may be provided by virtue of joint approval of a Customer Agreement pursuant to Article IV.

 

1.14          “Customer Agreement” means any agreement between one or more of the Parties and a Third Party for the development, manufacture, and/or commercialization of a Strain or a Product.

 

1.15          “Earned Incentive Payments” means any Incentive Payments under a Customer Agreement in effect prior to the Effective Date, which Incentive Payments have been earned prior to the Effective Date or are reasonably expected to be earned during the term of such Customer Agreement.

 

 
 

1.16          “Executive Committee” means a committee comprised of the Chief Executive Officers of each of Ginkgo and Amyris (or a senior executive officer of Ginkgo or Amyris designated by such Chief Executive Officers).

 

1.17          “Field” means activities related to the development, scale-up, and manufacture of a chemical small molecule compound(s) whose manufacture is enabled at least in part by the use of microbial strains and fermentation technologies.

 

1.18          “Flavors and Fragrances Market” means the worldwide market for individual ingredient(s), including the ingredient(s), flavor(s) and/or fragrance(s), whose intended or primary functionality (individually or as part of a blend with auxiliary materials) is to: (a) impart, modify, boost or enhance a desirable scent or odor, in consumer and industrial grade products (including, without limitation, fine fragrances, cosmetics, toiletries, home and body care, detergents, repellants, fertilizers, air fresheners and soaps); and (b) impart, modify, boost or enhance a desirable taste, flavor or sensation, or to conceal, modify or minimize an undesirable taste, flavor or sensation, in materials designed for consumption (including food, beverages, drugs, tobacco and any animal feed).

 

1.19          “Force Majeure Event” means, with respect to a Party, an event, act, occurrence, condition or state of facts, in each case outside the reasonable control of such Party (which may include acts of God, acts of any government, any rules, regulations or orders issued by any governmental authority or by any officer, department, agency or instrumentality thereof, fire, storm, flood, earthquake, accident, war, rebellion, insurrection, riot, terrorism and invasion) that interferes with the normal business operations of such Party.

 

1.20          “Foreground Intellectual Property” means, with respect to a given Party, any and all information and inventions, and all Intellectual Property rights therein or pertaining thereto, including all Intellectual Property in the Strains and the Products, that have been or are conceived, discovered, developed or otherwise made or obtained by or on behalf of either Party or its Affiliates or jointly by or on behalf of the Parties or their Affiliates in the performance of any activities under this Agreement and Controlled by either Party or its Affiliates, and, in each case, all Intellectual Property rights therein or pertaining thereto, and excludes Foundry Intellectual Property (that is not Overlapping Process Intellectual Property), and Non-Collaboration Intellectual Property.

 

1.21          “Foundry Intellectual Property” means any and all information and inventions, which information or inventions relate to the design and genetic engineering, measurement or analysis of microbial host cells, and all Intellectual Property rights therein or pertaining thereto and excludes (i) [*] , (ii) analytical methods related to [*] and (iii) any Non-Collaboration Intellectual Property.

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

1.22          “GAAP” means U.S. generally accepted accounting principles, consistently applied between years in the normal course of business.

 

1.23          “Ginkgo Customer Agreement” means any agreement between Ginkgo and a customer entered into during the Term pertaining to the manufacturing of one or more chemical small molecule compound(s) in the Field where such customer requires third party manufacturing of such chemical small molecule compound(s) other than: (a) any agreement between Ginkgo and a Governmental Entity, (b) certain aspects of existing Ginkgo agreements with both [*] (related to the scale-up and manufacture of [*]) and [*] (related to the scale-up and manufacture of [*]), and (c) the agreements listed in Exhibit 1.23. For the avoidance of doubt, Ginkgo Customer Agreements exclude agreements between Ginkgo and a Third Party under which such parties are engaged in the development of strains or strain improvements only (i.e., the agreement does not contemplate the industrial scale manufacture of chemical small molecule compounds).

 

1.24          “Governmental Entity” means any instrumentality, subdivision, court, administrative agency, commission, official or other authority of any country, state, province, prefect, municipality, locality or other government or political subdivision thereof, or any quasi-governmental, private body or arbitral body exercising any executive, legislative, judicial, quasi-judicial, regulatory, taxing, importing, administrative or other governmental or quasi-governmental authority.

 

1.25          “Incentive Payments” means any fees and/or milestone payments under a Customer Agreement.

 

1.26          “Included Non-Collaboration Intellectual Property” means Non-Collaboration Intellectual Property of a Party that such Party has used or offers for the other Party to use for the development, manufacture and/or commercialization of any Product under this Agreement.

 

1.27          “Independent Accounting Firm” means an independent certified public accounting firm that is one of the six (6) largest, by revenue, accounting firms in the United States and is approved by both Parties (such approval not to be unreasonably withheld).

 

1.28          “Initial Strategic Partnership Agreement” means the Initial Strategic Partnership Agreement, dated June 28, 2016, by and between Amyris and Ginkgo.

 

1.29          “Intellectual Property” means any and all rights in data, discoveries, goodwill, information and inventions, specifically including each of copyright, know-how, patent, and trade secret rights and any documents or materials that may embody, incorporate, or utilize them.

 

1.30          “Isoprenoid” means [*]

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

[*].

 

1.31          “Isoprenoid Strain” means [*].

 

1.32          “Law” means any law, statute, common law, rule, regulation, ordinance, code or other pronouncement having the effect of law, of any federal, national, multinational, state, provincial, county, city or other political subdivision, including, as applicable: (a) good manufacturing practices, good laboratory practices, good clinical practices and all other rules, regulations and requirements of any applicable Governmental Entities; (b) the Foreign Corrupt Practices Act of 1977, as amended, or any comparable laws in any country; (c) the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended; and (d) all export control laws.

 

1.33          “Net Profits” means, with respect to a Product, the number of units of Product sold multiplied by the difference between the (a) the Average Selling Price for such Product and (b) the product of (i) 1.1 and (ii) the Actual Cost of Goods Sold for such Product. Net Profits shall be calculated in accordance with the Accounting Principles. In the event such difference is a negative number, then such Net Profits shall equal zero.

 

1.34          “Non-Collaboration Intellectual Property” means, with respect to a Party, any Intellectual Property created (whether as of or following the Effective Date) outside the scope of this Agreement, including (i) the Intellectual Property listed on Exhibit 1.34, (ii) all Intellectual Property granted to Amyris pursuant to (a), (b) and (c) from the definition of “Amyris Customer Agreement”, (iii) any Intellectual Property arising out of Excluded Products, and (iv) any Intellectual Property related to pharmaceuticals, including without limitation Amyris’ “microPharm” platform; provided that Non-Collaboration Intellectual Property shall not include any Intellectual Property of a Party that such Party has used or voluntarily includes for the development, manufacture and/or commercialization of any Product under this Agreement. Any such use or voluntary inclusion will render the relevant Intellectual Property a part of Included Non-Collaboration Intellectual Property. For clarity, any of Amyris’ Intellectual Property related to pharmaceuticals and/or Amyris’ “micropharm” work is excluded from this Agreement, unless such Intellectual Property related to pharmaceuticals and/or Amyris’ “micropharm” work is voluntarily provided to Ginkgo by Amyris.

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

1.35          “Non-Isoprenoid” means [*].

 

1.36          “Non-Isoprenoid Strain” means [*].

 

1.37          “Overlapping Process Intellectual Property” means the Intellectual Property rights pertaining to analytical methods related to small molecule end product and side-product detection and purity determination for the purposes of product quality and suitability in the intended application, as well as scale-down fermentation methods and compositions including microtiter plates, flasks and fermenters of less than [*] in volume, as required for successful development of a commercial process for production. Overlapping Process Intellectual Property excludes Non-Collaboration Intellectual Property.

 

1.38          “Patent Filing” includes any application or patent, whether provisional or nonprovisional, filed and/or granted anywhere in the world.

 

1.39          “Patent Lead” is the Party that has ultimate decision making authority with respect to patent prosecution strategy and is responsible for filing, prosecution, and maintenance of patents, including any related interference, re-issuance, re-examination, opposition, inter partes review, or post grant review proceedings.

 

1.40          “Permitted Subcontractor” means an Affiliate or a Third Party to which a Party may subcontract portions of the activities allocated to it under a Technical Development Plan or any other Product development plan in accordance with the terms of this Agreement.

 

1.41          “Person” means any natural person, general or limited partnership, corporation, limited liability company, limited liability partnership, firm, association or organization or other legal entity.

 

1.42          “Prior Confidentiality Agreement” means the Mutual Confidential Disclosure Agreement, dated May 11, 2016, by and between Amyris and Ginkgo, as amended.

 

1.43          “Priority Access” means being provided with the right to first access when taking into account lead times and reasonably balancing capacity with utilization, including any access required to meet requirements or other obligations under Customer Agreements, unless otherwise approved by the JSC

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions..

 

 
 

1.44          “Process Intellectual Property” means any and all information and inventions, which information or inventions relate to fermentation methods for making compounds using genetically modified host cells, recovery of such chemical small molecule compound(s) from fermentation broth (or other media), purification of such chemical small molecule compound(s) isolated from fermentation broth (or other media), finishing of such chemical small molecule compound(s) isolated from fermentation broth (or other media) and all Intellectual Property rights therein or pertaining thereto.

 

1.45          “Product” means an ingredient created pursuant to a Ginkgo Customer Agreement or an Amyris Customer Agreement, and any other ingredient listed on Tables 1 through 4 on Exhibit  6.2(a).

 

1.46          “Program” means a program to develop, manufacture, commercialize and/or sell Products for a single customer under this Agreement.

 

1.47          “Strain” means [*]

 

1.48          “Strain Intellectual Property” means [*].

 

1.49          “Third Party” means any Person other than a Party or its Affiliates.

 

1.50          Construction.  In construing this Agreement, unless expressly specified otherwise:

 

(a)                references to Articles, Sections and Exhibits are to articles and sections of, and exhibits to, this Agreement;

 

(b)               except where the context otherwise requires, use of either gender includes any other gender, and use of the singular includes the plural and vice versa;

 

(c)                headings and titles are for convenience only and do not affect the interpretation of this Agreement;

 

(d)               any list or examples following the word “including”, “include” or “includes” shall be interpreted without limitation to the generality of the preceding words;

 

(e)                except where the context otherwise requires, the word “or” is used in the inclusive sense;

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

(f)                the terms “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement;

 

(g)               the term “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if”;

 

(h)               except where the context otherwise requires, “will” means “shall”;

 

(i)                 references to an agreement or instrument mean such agreement or instrument as from time to time amended, modified or supplemented (subject to any restrictions on such amendments, supplements or modifications set forth herein);

 

(j)                 references to a Person are also to its successors, heirs and permitted assigns;

 

(k)               except if Business Days are specified, “day” or “days” refers to calendar days;

 

(l)                 if a period of time is specified and dates from a given day or Business Day, or the day or Business Day of an act or event, it is to be calculated exclusive of that day or Business Day;

 

(m)             “monthly” means on a calendar month basis;

 

(n)               “quarter” or “quarterly” means on a Calendar Quarter basis;

 

(o)               “annual” or “annually” means on a Calendar Year basis;

 

(p)               “year” means a three hundred sixty-five (365) day period unless Calendar Year is specified;

 

(q)               references to a Law include any amendment or modification to such Law and any rules or regulations issued thereunder, whether such amendment or modification is made, or issuance of such rules or regulations occurs, before or, only with respect to events or developments occurring or actions taken or conditions existing after the date of such amendment, modification or issuance, after the Effective Date, but only to the extent such amendment or modification, to the extent it occurs after the date hereof, does not have a retroactive effect;

 

(r)                 all references to “Dollars” or “$” herein shall mean U.S. Dollars;

 

(s)                a capitalized term not defined herein but reflecting a different part of speech than a capitalized term which is defined herein shall be interpreted in a correlative manner;

 

(t)                 any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); and

 

 
 

(u)               each Party represents that it has been represented by legal counsel in connection with this Agreement and acknowledges that it has participated in the drafting hereof.  In interpreting and applying the terms and provisions of this Agreement, the Parties agree that no presumption will apply against the Party which drafted such terms and provisions.

 

Article II. LICENSES

 

2.1              Technology Transfer.

 

(a)                The Parties hereby confirm that, pursuant to the Initial Strategic Partnership Agreement, Amyris has provided Ginkgo with access to certain Intellectual Property owned or Controlled by Amyris, including, without limitation, certain Foundry Intellectual Property (the “ISPA Intellectual Property”). For clarity, the Initial Strategic Partnership Agreement itself did not obligate Amyris to provide Ginkgo access to any updates and/or modifications to the ISPA Intellectual Property; any and all obligations to update are solely as set forth in this Agreement.

 

(b)               Amyris shall provide Ginkgo any Intellectual Property that is necessary or has a material benefit for Ginkgo to engineer and develop robust strains that scale up to commercial production of Product(s) under this Agreement and that has not already been provided to Ginkgo under the Initial Strategic Partnership Agreement; Amyris commits to continue providing such access throughout the Term, including updates and modifications to such Intellectual Property (including the ISPA Intellectual Property) for the purposes of Ginkgo performing its obligations under this Agreement (including without limitation to the full extent necessary or useful under this Agreement, and specifically to facilitate strain design, engineering, production, and small scale fermentation by Ginkgo under this Agreement). For clarity, Amyris shall not provide Foundry Intellectual Property or Overlapping Process Intellectual Property to Ginkgo that (i) is not owned or Controlled by Amyris or (ii) is not necessary or does not have a material benefit for Ginkgo to engineer and develop robust strains that scale to commercial production of Product(s) under this Agreement. For clarity and notwithstanding anything to Section 1.5 to the contrary, Amyris shall not be obligated to provide ASE or Foundry Intellectual Property developed under the Amyris DARPA Agreement to Ginkgo under this Section 2.1(b) unless otherwise determined by the JSC.

 

(c)                Ginkgo shall provide Amyris with access to the Intellectual Property licensed by Ginkgo to Amyris pursuant to this Article II, including the current stable and best performing version of any Strain; Ginkgo commits to continue providing such access throughout the Term, including updates and modifications to such Intellectual Property for the purposes of Amyris performing its obligations under this Agreement (including without limitation to the full extent necessary or useful under this Agreement, and specifically to facilitate scale up, manufacture and commercialization of Products by Amyris under this Agreement). For clarity, Ginkgo shall not provide Foundry Intellectual Property to Amyris, unless mutually agreed to in writing by the Parties.

 

2.2              Inventions. Subject to the value sharing provisions provided in Article VI, the Parties agree to the following:

 

(a)                Inventorship. The determination of inventorship for any invention which arises in connection with performance of activities conducted under this Agreement (i.e.,

 

 
 

Foreground Intellectual Property and Foundry Intellectual Property) shall be made in accordance with the patent laws of the United States. Should any dispute arise with respect to determination of inventorship, the JSC shall attempt in good faith to resolve the dispute. In the event that the JSC is unable to resolve such dispute within thirty (30) days after receipt of notice of the dispute, such dispute will be resolved by independent patent counsel not engaged or regularly employed in the past two (2) years by either Party and reasonably acceptable to both Parties. The decision of such independent patent counsel will be binding on the Parties. Expenses of such patent counsel will be shared equally by the Parties. For the avoidance of doubt, nothing in this Agreement shall change or modify a Party’s ownership of its Background Intellectual Property or any of its Foundry Intellectual Property that exists as of the Effective Date.

 

(b)               Ownership and Control.

 

(i)                 Foreground IP and Overlapping Process IP. (A) Foreground Intellectual Property that is Process Intellectual Property (and that is not Strain Intellectual Property) and (B) Overlapping Process Intellectual Property, regardless of inventorship, in each case, are and will be owned and Controlled by Amyris. Ginkgo agrees to assign, and hereby does assign, to Amyris any and all rights in and to such Foreground Intellectual Property and such Overlapping Process Intellectual Property, including any and all rights in any patent filings and/or rights of priority to such patent filings, that claim such Foreground Intellectual Property or such Overlapping Process Intellectual Property. Foreground Intellectual Property, other than Process Intellectual Property and Overlapping Process Intellectual Property but including Strain Intellectual Property, regardless of inventorship, is and will be owned and Controlled jointly by the Parties.

 

(ii)               Foundry IP. As between the Parties, ownership and Control of Foundry Intellectual Property (and that is not Overlapping Process Intellectual Property) created in the performance of any activities under this Agreement will be determined according to inventorship as set forth in Section 2.2(b)(iii). Any Foundry Intellectual Property owned by a Party prior to the Effective Date shall continue to be owned by such Party.

 

(iii)             Ownership according to Inventorship. For clarity, ownership “determined according to inventorship” means that, as between the Parties, any invention (and any Patent Filing with claims to that invention) made by one or more inventors from Ginkgo and no inventors from Amyris is and will be owned and Controlled by Ginkgo; any invention (and any Patent Filing with claims to that invention) made by one or more inventors from Amyris and no inventors from Ginkgo is and will be owned and Controlled by Amyris; any invention (and any Patent Filing with claims to that invention) made by one or more inventors from Ginkgo together with one or more inventors from Amyris is and will be owned jointly by Ginkgo and Amyris.

 

(c)                Patent Lead. For any Patent Filing which arises in connection with performance of activities conducted under this Agreement and, as between the Parties, is solely owned or Controlled by one Party, that Party is Patent Lead for that Patent Filing. For any Patent Filing which arises in connection with the performance of activities conducted under this Agreement and that is jointly owned and Controlled by the Parties, the JSC will designate a Patent

 

 
 

Lead. In accordance with the previous sentence, it is expected that the JSC will designate Amyris as Patent Lead for all Foreground Intellectual Property that is Process Intellectual Property, for all Overlapping Process Intellectual Property, [*], and will designate Ginkgo as Patent Lead for all Foreground Intellectual Property that is primarily related to a [*] and for all Foundry Intellectual Property that arises as a result of performance under this Agreement. Any disputes as to which Party will be designated as the Patent Lead will be resolved by the JSC.

 

(i)                 Responsibilities. The Patent Lead shall be responsible for preparation, filing, prosecution and maintenance of patents, including any related interference, re-issuance, re-examination, opposition, inter partes review, or post grant review proceedings, and shall give the other Party at least five (5) days’ notice prior to filing an application for a patent hereunder for any Foundry Intellectual Property, unless filing sooner is necessary to avert an impending loss of patent rights. The other Party shall be permitted but not obliged to provide input to the Patent Lead on the determination of whether and where to seek patent protection and shall assist the Patent Lead. The Patent Lead shall consider any suggestions timely provided by the other Party in good faith, and, for any jointly-owned and Controlled Intellectual Property, the Patent Lead shall implement such suggestions or provide a reasonable explanation for a decision not to implement them. Each Party shall provide the status of jointly-owned Patent Filings to the other party on a quarterly basis.

 

(ii)               Costs. The Patent Lead shall bear all costs associated with the preparation, filing, prosecution and maintenance of patents which arise in connection with the performance of activities conducted under this Agreement, including any related interference, re-issuance, re-examination, opposition, inter partes review, or post grant review proceedings unless the JSC determines otherwise.

 

(d)               Enforcement.

 

(i)                 Subject to Section (ii) below, each Party has an independent right to assert any Foreground Intellectual Property or Foundry Intellectual Property that it solely owns or Controls. Should either Party become aware of any infringement of any jointly owned Intellectual Property (A) during the Term, it will promptly notify the JSC which will determine whether the jointly owned Intellectual Property should be asserted against the particular alleged infringer and develop an enforcement strategy or (B) after the Agreement has been terminated, it will promptly notify the other Party and the Parties will work together to jointly determine whether the jointly-owned Intellectual Property should be asserted against the particular alleged infringer and develop an enforcement strategy.

 

(ii)               Each Party has a perpetual option to assert Intellectual Property of the other Party (the option-granting party) (A) that is owned or Controlled by such other Party or (B) that is licensed under this Agreement, in each case, in a proceeding against any Third Party who has brought or threatened to bring an action against the option-holding Party, or against any Intellectual Property owned or Controlled by the option-holding Party. For clarity, this Section 2.2(d)(ii) does not constitute a license to practice such Intellectual Property of such other Party.

 

 

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

(iii)             Whenever one Party is exercising a right to assert Intellectual Property hereunder, the other Party hereby agrees to be named in, or otherwise join, initiate or perform, any such assertion or Action if necessary for standing or otherwise to ensure that the asserting Party can effect the assertion. If the other Party should be required to be so named or otherwise join, initiate or otherwise facilitate an assertion, then the option-holding Party will pay all reasonable costs associated with such naming, joining or assertion.

 

(iv)             Any royalties, damage awards, or other payments resulting from any assertion of Intellectual Property hereunder shall first be applied to recover all reasonable costs incurred by the asserting Party in pursuing the assertion or such costs of both Parties if the Intellectual Property is jointly asserted, and thereafter shall be shared between the Parties in such amounts as determined by the JSC subject to the guiding principles that (i) to the extent that such royalties, damage awards or other payments relate to a Product or jointly owned Intellectual Property, they shall be shared between the Parties in accordance with the terms herein applicable to sharing of Net Profits related to such Product; (ii) to the extent that such royalties, damage awards or other payments relate to products or operations outside the scope of this Agreement or Intellectual Property that is not licensed under this Agreement, they shall be retained one hundred percent (100%) by the Party owning or Controlling the asserted Intellectual Property (or split 50%/50% if the Intellectual Property is jointly owned or Controlled); and (iii) to the extent that such royalties, damage awards or other payments relate to punitive awards, they shall be retained one hundred percent (100%) by the asserting Party or split 50%/50% if the Intellectual Property is jointly asserted by both Parties.

 

(v)               Whenever a Party wishes to or does assert Intellectual Property of the other Party, the asserting Party will consult with and consider in good faith all recommendations from the other Party regarding the assertion.

 

(vi)             Each Party will have the first right, but not the obligation, at its sole expense, to control the defense of any claim by a Third Party, including any defenses or counterclaims, that any of such Party’s Controlled Intellectual Property is invalid, unpatentable or unenforceable. Each Party will have the first right, but not the obligation, at its sole expense, to control the settlement and licensing of such Party’s owned or Controlled Intellectual Property.

 

2.3              Licenses

 

(a)                License of IP.

 

(i)                 Amyris grants to Ginkgo, as of the effective date of the Initial Strategic Partnership Agreement, a royalty-free, fully paid-up, sublicensable, non-exclusive, perpetual (i.e., surviving any termination and extending after the Term) license under any of its (A) Foundry Intellectual Property that is provided pursuant to Section 2.1 of this Agreement and (B) Overlapping Process Intellectual Property that is provided pursuant to Section 2.1 of this Agreement or that is invented in whole or in part by Ginkgo. For clarity, such licenses shall survive termination (regardless of basis) under Section 7.2.

 

 
 

For further clarity, the license provided in this Section 2.3.(a)(i) with respect to Foundry Intellectual Property and Overlapping Process Intellectual Property includes, but is not limited to, any and all Foundry Intellectual Property and Overlapping Process Intellectual Property that was included in the ISPA Intellectual Property, and also any updates and/or modification thereto that Amyris provided pursuant to Section 2.1(b).

 

(ii)               Subject to the value-sharing provisions in Article VI, each Party hereby grants to the other Party, as of the effective date of the Initial Strategic Partnership Agreement, a royalty-free, fully paid-up, sublicensable (only as provided in Section 2.3(b)), non-exclusive license to its Background Intellectual Property and its Foreground Intellectual Property within the Field for the purpose of allowing such other Party to carry out relevant activities under this Agreement. For clarity, the license granted with respect to Background Intellectual Property in this Section 2.3.(a)(ii) includes, but is not limited to, any and all Background Intellectual Property that was included in the ISPA Intellectual Property

 

(iii)             Amyris perpetually (i.e., surviving any termination and extending after the Term) covenants not to sue Ginkgo or its customers with respect to Process Intellectual Property that is necessary or required for Ginkgo to exploit Foreground Intellectual Property that relates to a Non-Isoprenoid Strain for products not subject to this Agreement, including such Intellectual Property that Amyris provided Ginkgo access to pursuant to the Initial Strategic Partnership Agreement.

 

(b)               Sublicensing. If a Party enters into a sublicensing arrangement with a Third Party, such Party will ensure that such sublicense will be consistent with the terms of this Agreement and such Party will be responsible for the actions of its sublicensees. Neither Party may sublicense its rights related to the other Party’s Background Intellectual Property or Foreground Intellectual Property, other than to a customer pursuant to a Customer Agreement (in accordance with Article IV), without the prior written consent of the licensing Party except that each Party may sublicense its rights to the other Party’s Background Intellectual Property or Foreground Intellectual Property to any Third Party manufacturer solely for the purpose of performing obligations under this Agreement, including without limitation the manufacture of Refused Products, without the consent of the other Party.

 

(c)                Rights of First Refusal. Upon termination of this Agreement, the Parties agree as follows:

 

(i)                 From Amyris. Amyris grants to Ginkgo a royalty-free, sublicensable, fully paid-up, perpetual (i.e., surviving any termination and extending after the Term) license to its Background Intellectual Property and Foreground Intellectual Property for the purposes of strain engineering and process development, scale-up and production within the Field with respect to the small molecule compound identified below in (A), subject to the following conditions:

 

(A)             Ginkgo grants Amyris a right of first refusal (“ROFR”) pursuant to the process described in Section 2.3(c)(iii) for scale-up and production (including strain engineering and optimization but only if necessary for scale-up

 

 
 

and production) for any new chemical small molecule compound in the Field (other than an Excluded Product) developed by Ginkgo for a Third Party that requires third-party manufacturing after the Term;

 

(B)              in the event Amyris declines to exercise its ROFR, such license shall be subject to the Supplier Restrictions;

 

(C)              if Amyris exercises its ROFR, the Net Profits will be split between the parties in accordance with Section 6.2(a)(i) as though such molecule or ingredient were a “Product” hereunder; if Amyris declines its ROFR, then the Net Profits will be split as though such molecule or ingredient were a “Refused Product” hereunder where such molecule or ingredient uses the other Party’s Intellectual Property that is licensed under this Agreement; and

 

(D)             Ginkgo provides prompt written notice to Amyris for any such small molecule compounds for which Ginkgo will provide a ROFR pursuant to Section 2.3(c)(i)(A).

 

(ii)               From Ginkgo. Ginkgo grants to Amyris a royalty-free, sublicensable, fully paid-up, perpetual (i.e., surviving any termination and extending after the Term) license to its Background Intellectual Property and Foreground Intellectual Property for the purposes of strain engineering and process development, scale-up and production within the Field with respect to the small molecule compound identified below in (A), subject to the following conditions:

 

(A)             Amyris grants Ginkgo a ROFR pursuant to the process described in Section 2.3(c)(iii) for strain engineering and small-scale process development for any new chemical small molecule compound in the Field (other than an Excluded Product) with respect to which Amyris proposes to develop for a Third Party after the Term;

 

(B)              in the event Ginkgo declines to exercise its ROFR, such license shall be subject to the Supplier Restrictions;

 

(C)              if Ginkgo exercises its ROFR, then Net Profits will be split between the parties in accordance with Section 6.2(a)(i) as though such molecule or ingredient were a “Product” hereunder; if Ginkgo declines its ROFR, then the Net Profits will be split as though such molecule or ingredient were a “Refused Product” hereunder where such molecule or ingredient uses the other Party’s Intellectual Property that is licensed under this Agreement; and

 

(D)             Amyris provides prompt written notice to Ginkgo for any such small molecule compounds for which Amyris will provide a ROFR pursuant to Section 2.3(c)(ii)(A).

 

 
 

(iii)             Rights of First Refusal Process.

 

(A)             If a Party receives a bona fide offer subject to the ROFR in Section 2.3(c)(i) or 2.3(c)(ii) (each, an “Offer”), and the Party receiving such offer (the “Developing Party”) intends to accept such offer, the Developing Party shall provide the other Party with written notice of such offer (a “ROFR Notice”). The ROFR Notice shall identify the Third Party making the Offer, the chemical small molecule compound, and all material terms and conditions of the Offer.

 

(B)              In the case of a ROFR Notice delivered by Amyris, such ROFR Notice shall constitute an exclusive offer by Amyris for Ginkgo to conduct strain engineering and small-scale process development for the applicable new chemical small molecule compound. In the case of a ROFR Notice delivered by Ginkgo, such ROFR Notice shall constitute an exclusive offer by Ginkgo for Amyris to conduct for scale-up and production for the applicable new chemical small molecule compound. Any such offer shall remain open and irrevocable until expiration of fifteen (15) days after receipt of such ROFR Notice by the other Party (the “Offer Period”). At any time prior to expiration of the Offer Period, the other Party shall have the right to accept the Developing Party’s offer set forth in the ROFR Notice by giving a written notice of acceptance to the Developing Party.

 

(d)               Rights of First Refusal upon Certain Terminations. If this Agreement is terminated by a Party pursuant to Section 7.2(a), Section 7.2(b), Section 7.2(c) or Section 7.2(d), neither Party has any further obligation to offer the other Party a ROFR as provided under Sections 2.3(c)(i)(A) and 2.3(c)(ii)(A), and any new products of either Party pertaining to chemical small molecule compounds in the Field which use the other Party’s Intellectual Property that is licensed under this Agreement shall be treated as a Refused Product hereunder. For clarity, nothing in this Section alters the licenses set forth in Section 2.3(c)(i) and 2.3(c)(ii).

 

(e)                Escrows. Each Party agrees to maintain a Third Party escrow on the terms of the Escrow Agreement. Each Party shall update its Third Party escrow whenever a new Product is commercialized and no less frequently than annually during the Term. Such Third Party escrow shall include the applicable Party’s commercial strains and protocols (including but not limited to materials lists and media recipes), Standard Operating Procedures, detailed process descriptions, and process flow diagrams pertaining to manufacturing of Products.

 

(f)                No Payment of Third Party Royalties or Fees. Notwithstanding anything herein to the contrary, none of the sublicenses granted hereunder constitutes a covenant by the granting Party to pay any royalties or other fees that become due to a Third Party licensor in respect of the practice of such Intellectual Property by the other Party.  Unless otherwise agreed by the Parties, each Party shall be responsible for any such royalty obligations or other fees resulting from its practice of any Intellectual Property sublicensed to it, except as provided in Section 2.3(g).‎ For clarity, any fees (i) under the licensing agreement between Amyris and [*]

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

[*].

 

(g)               [*]

 

(h)               No Other Licenses Granted. Other than as expressly provided for in this Agreement, no other licenses to any Intellectual Property, including implied licenses, are granted between the Parties.

 

(i)                 Third Party Obligations. Each Party is responsible for identifying any Third Party obligations in its own agreements where such Party does not have the rights necessary to grant the Intellectual Property rights and licenses granted or to be granted in this Agreement (i.e., Intellectual Property that is not Controlled). The identifying Party will use commercially reasonable efforts to remove such Third Party obligation(s) wherever possible and wherever no reasonable work-around solution exists that would not require such Intellectual Property.

 

2.4              Section 365(n).

 

(a)                All rights and licenses granted under or pursuant to any section of this Agreement, including all rights to sublicense, are, and shall otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the U.S. Code (the “Bankruptcy Code”), licenses of rights to “intellectual property” as defined in Section 101(35A) of the Bankruptcy Code. The Parties shall retain and may fully exercise all of their respective rights and elections under the Bankruptcy Code. Each Party agrees that the other Party, to the extent that it is a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code, and that upon commencement of a bankruptcy proceeding by or against one Party under the Bankruptcy Code, the other Party shall be entitled to a complete duplicate of, or complete access to (as such other Party deems appropriate), any such Intellectual Property and all embodiments of such Intellectual Property; provided, that such other Party continues to fulfill its obligations as specified herein in full. Such Intellectual Property and all embodiments thereof shall be promptly delivered to the other Party (i) upon any such commencement of a bankruptcy

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

proceeding upon written request therefor by the other Party, unless the Party subject to such bankruptcy proceeding elects to continue to perform all of its obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of the Party subject to such bankruptcy proceeding, upon written request therefor by the other Party. The foregoing is without prejudice to any rights that either Party may have arising under the Bankruptcy Code, other applicable Law, or this Agreement.

 

(b)               Nothing in this Section 2.4 shall be deemed any admission that this Agreement is an executory contract or that this Agreement or any obligation hereunder is otherwise subject to rejection or disavowal in the bankruptcy, liquidation, reorganization, receivership, assignment for the benefit of creditors, administration, insolvency, or similar proceeding or circumstance (an “Insolvency Proceeding”) of any Party (the “Withdrawing Party”), nor any admission that upon any such proceeding or circumstance involving a Party, or upon any such rejection or disavowal by a Party, the other Party (or any sublicensee thereof) would lose or not be able to enforce or benefit from any right hereunder (or under any applicable sublicense).

 

(c)                Each of the Parties agrees and acknowledges, as a licensor of Intellectual Property under this Agreement, in entering this Agreement and granting the rights it respectively grants under this Agreement, and in its efforts to protect its own valuable Intellectual Property, it has relied on the particular skills and business qualities of the other Party as recipient of such rights. Such skills and business qualities include the expected future innovation of the other Party, and the particular market segments addressed by the other Party in its business. Each of the Parties further agrees and acknowledges that upon the occurrence of any Insolvency Proceeding, this Agreement is of the type described in Section 365(c)(1) and (e)(2) of the Bankruptcy Code, and under any other applicable Law, for such reasons.

 

(d)               In the event of an Insolvency Proceeding, the Party that is not the Withdrawing Party (the “Non-Withdrawing Party”) shall have the right, but not the obligation, to purchase the Withdrawing Party’s interests hereunder (the “Withdrawing Party’s Interest”), including any right to receive any future payments hereunder (whether for Net Profits, Incentive Payments, or otherwise), any rights to exclusive ownership of any Intellectual Property that is owned jointly hereunder, and any rights in the Withdrawing Party’s Customer Agreements. The purchase price for the Withdrawing Party’s Interest (the “Withdrawing Purchase Price”) shall be fair market value, where such fair market value takes into consideration future amounts payable under this Agreement, as well as all the additional development and manufacturing costs for Products that a Third Party with standard manufacturing capacity would bear alone (as opposed to splitting with the Withdrawing Party), and shall be determined by the applicable bankruptcy court overseeing the Insolvency Proceeding. In the event the Non-Withdrawing Party desires to exercise to purchase the Withdrawing Party’s Interest for the Withdrawing Purchase Price, the Non-Withdrawing Party shall deliver a written notice to the Withdrawing Party indicating the desire to exercise such right and setting a closing date for consummation of the purchase of the Withdrawing Party’s Interest, which closing date shall be no earlier than seventy-five (75) days after the date of such notice (the “Withdrawal Date”). Payment of the Withdrawing Purchase Price shall be made in cash on the Withdrawal Date unless the parties agree otherwise, and, upon the Withdrawal Date, the Withdrawing Party shall, and hereby does, assign all Intellectual Property that is owned jointly hereunder to the Non-Withdrawing Party, and the Withdrawing Party further agrees to take all

 

 
 

action and execute all documents in order to effectuate the transfer of the Withdrawing Party’s Interest to the Non-Withdrawing Party thereafter.

 

Article III.                      COVENANTS

 

3.1              Obligations of Amyris. Amyris agrees to do the following:

 

(a)                Paying Agent Agreement. As soon as reasonably practicable after the date hereof, but no later than five (5) calendar days following the Effective Date, Amyris and Citibank, N.A. (the “Paying Agent”) shall deliver to Ginkgo counterpart signature pages to the Paying Agent Agreement, in substantially the form attached hereto as Exhibit 3.1(a) (the “Paying Agent Agreement”).

 

(b)               Amendment to Third Party Agreements. As of the Effective Date, Amyris shall have a plan mutually agreed upon by the Parties in place for amending all Customer Agreements to require payments thereunder (other than Incentive Payments) to be delivered to the Paying Agent, which plan Amyris shall follow in order to complete as soon as reasonably practicable after the Effective Date.

 

3.2              Obligations of Ginkgo. Ginkgo agrees to do the following:

 

(a)                Paying Agent Agreement. As soon as reasonably practicable after the date hereof, but no later than five (5) calendar days following the Effective Date, Ginkgo and the Paying Agent shall deliver to Amyris counterpart signature pages to the Paying Agent Agreement.

 

Article IV.                      OPERATIONS

 

4.1              New Customers. The Parties shall collaborate to source prospective Customer Agreements in accordance with the guidelines set forth by the Antitrust Committee; however, neither Party may enter into a proposed Ginkgo Customer Agreement or proposed Amyris Customer Agreement during the Term except in compliance with the terms herein. The applicable Party shall attempt to determine each prospective product to be developed under a proposed Customer Agreement (each, a “Prospective Product”) and, for such Prospective Product, the target costs, estimated annual market volume, product specifications, and chemistry of such Prospective Product. Thereafter, such Party shall cross-check the prospective customer and the Prospective Product against the Excluded Products list in Table 5 on Exhibit  6.2(a), as may be amended from time to time. If the Prospective Product is on such list, or if the Prospective Product is already being developed, manufactured, or commercialized pursuant to an existing Customer Agreement under terms that would restrict one or both of the Parties from entering into such proposed Customer Agreement, then the Prospective Product shall be abandoned and the proposed Customer Agreement shall be amended to remove any obligations related to a Prospective Product; otherwise, if one or more Prospective Products are permitted under a proposed Customer Agreement, such proposed Customer Agreement shall be referred to the JSC. The JSC, or a designated Subcommittee, shall draft a technical development plan for each Prospective Product under a proposed Customer Agreement based on the form attached hereto as Exhibit  4.1 (each, a “Technical Development Plan”), which shall be drafted in good faith by one or more appointees of the JSC based on the most-recent information available at the time of the drafting of such Technical Development Plan. Each Technical Development Plan shall be submitted to the JSC,

 

 

 
 

which may request amendments to the Technical Development Plan or approve such Technical Development Plan in accordance with Section 4.2.

 

4.2              Approval of Technical Development Plan.

 

(a)                Joint Approval. If the JSC or the Executive Committee approves the Technical Development Plan, the applicable proposed Ginkgo Customer Agreement or proposed Amyris Customer Agreement shall be executed and the development, manufacture, and commercialization of each remaining Product under such Customer Agreement shall be considered a Program hereunder, and Table 1 on Exhibit 6.2(a) shall be updated to include such Product and the relevant additional information specified therein.

 

(b)               Single Party Approval. If the JSC and Executive Committee are unable to approve a Technical Development Plan, but one Party approves the Technical Development Plan, the applicable proposed Ginkgo Customer Agreement or Amyris Customer Agreement may be executed, and the product thereunder shall be considered a Refused Product under this Agreement.

 

(c)                No Approval. If the JSC and Executive Committee are unable to approve a Technical Development Plan, and neither Party wishes to pursue such Technical Development Plan, such Technical Development Plan and the proposed Ginkgo Customer Agreement or proposed Amyris Customer Agreement shall be abandoned.

 

4.3              Capital Expenditures. Except as provided herein, each Party shall be responsible for its Capital Expenditures required for the development, manufacture and commercialization of Products under this Agreement.

 

4.4              Manufacturing. Amyris shall expand its production facilities (the “BROTAS2 Facility”) to enable production of Products hereunder, and Amyris shall consult Ginkgo in connection with such expansion and shall consider any of Ginkgo’s comments or concerns in good faith. Products shall have Priority Access to manufacturing capacity at any of Amyris’ manufacturing facilities. If Amyris is, as determined by the JSC in good faith, unable to meet scale-up needs, production needs, or timelines for Products for technical reasons or other reasons, then (i) Amyris may manufacture as much of the Products as possible pursuant to a manufacturing agreement to be entered into between Amyris and Ginkgo in accordance with the Amyris manufacturing terms set forth on Exhibit 4.4(a), and, with the approval of the JSC, Amyris may outsource to a Third Party to manufacture any remaining Products in accordance with the Third Party manufacturing terms set forth on Exhibit 4.4(b) (the “Supplier Restrictions”) to meet such needs and timelines and until such time as Amyris is able to meet such needs and timelines itself. Subject to approval of the JSC under the guiding principles that the Parties shall use reasonable efforts to attempt to manufacture and commercialize a Product at the most efficient production location for such Product taking into account minimizing Actual Cost of Goods Sold, the manufacturing location of other Products and/or Excluded Products, time and other relevant considerations, Amyris reserves the right to utilize a CMO facility as the main and/or sole production site to manufacture one or more Products including as a bundle with Excluded Products. Amyris shall take all reasonable steps to evaluate Strain performance prior to startup of Product production. If a Product production issue is identified or is anticipated to result from the

 

 
 

production Strain, Ginkgo will assist Amyris and provide the technical resources needed to troubleshoot and resolve the issue. 

 

4.5              Cooperation. The Parties will reasonably cooperate in connection with the execution of any new Customer Agreement and the development, manufacture, and commercialization of any new or existing Product hereunder including, without limitation, (a) Amyris providing Ginkgo with its most up-to-date manufacturing cost models, which shall be updated at least once per Calendar Quarter during the Term; (b) the Parties shall continue to establish and refine the template for technical development plans set forth in Exhibit 4.1 to this Agreement; and (c) the business development teams from each Party shall meet periodically, and no less frequently than at least once per year, to discuss customer needs and market conditions pertaining to the Field and consistent with the guidelines developed by the Antitrust Committee.

 

Article V. GOVERNANCE

 

5.1              Executive Committee. The Executive Committee shall meet (a) at such times as required by this Agreement and (b) within ten (10) days after the request of a Party for the Executive Committee to hold a meeting. Meetings of the Executive Committee shall be effective only if at least one (1) representative of each Party is present or participating. The Executive Committee may meet either (i) in person at either Party’s facilities in the United States or at such locations as the Parties may otherwise agree or (ii) by audio or video teleconference.

 

5.2              Partnership Joint Steering Committee.

 

(a)                Establishment.  The Parties shall maintain a four-person partnership steering committee (“JSC”) that will have the responsibilities set forth in Section 5.2(b) hereof.  Amyris appoints, and shall be entitled to remove solely at their discretion, two (2) representatives to the JSC: (x) Joel Cherry and (y) Chuck Kraft; and Ginkgo appoints, and shall be entitled to remove solely at their discretion, two (2) representatives to the JSC: (A) Kevin Madden and (B) Herve Garant.  Each Party’s representatives and any substitute for a representative shall be bound by the obligations of confidentiality set forth in Article X. The JSC shall be led by a chairperson (the “Chairperson”), who shall not have any greater authority than any other representative on the JSC, but shall be responsible for the following activities: (i) calling meetings of the JSC and preparing; (ii) preparing an agenda for each meeting and including any items requested by a member of the JSC on such agenda; (iii) preparing and issuing minutes of each such meeting within thirty (30) days thereafter; (iv) ensuring that any decision-making delegated to the JSC is carried out in accordance with this Article V; and (v) preparing and circulating an agenda for the upcoming meeting; provided that the Chairperson shall include any agenda items proposed by the other Party. Each Chairperson shall serve for six (6) month terms and appointment of the Chairperson shall rotate between the Parties, with Amyris appointing the first Chairperson. Each Party shall be free to change its representatives on notice to the other Party or to send a substitute representative to any JSC meeting; provided, however, that each Party shall ensure that at all times during the existence of the JSC, its representatives on the JSC are appropriate in terms of expertise and seniority for the then-current stage of development, manufacture or commercialization of the Products.

 

 
 

(b)               Responsibilities.  The JSC shall have responsibility for:  (i) ensuring regular communication between the Parties; (ii) ensuring the establishment of, and monitoring of progress of, Programs; (iii) monitoring, reviewing, and reporting on the progress of any Products developed pursuant to this Agreement; and (iv) performing such other functions as expressly set forth in this Agreement or appropriate to further the purposes of this Agreement, as mutually agreed upon by the Parties in writing. The JSC has the authority to delegate any of these responsibilities as it sees fit. Each individual member of the JSC shall be bound by the obligations of confidentiality set forth in Article X.  Each individual member of the JSC shall not have any independent authority to act on behalf of the JSC unless such authority has been delegated to such individual in advance by the JSC.

 

5.3              Program Management Teams; Other Subcommittees.  The JSC shall establish a program management team (each, a “Program Management Team”) for each Program and a project management team (each, a “Project Management Team”) for each Product under a Program (each, a “Project”) unless otherwise agreed by the JSC (and, for clarity, the JSC may instead determine that there should be different Project Management Teams for early stage vs. late stage activities for a Product under a Program, or any other approach approved by the JSC). The JSC shall designate a program lead (each, a “Program Lead”) from one Party and, if deemed appropriate by the JSC, a co-program lead (the “Co-Program Lead”) from the other Party for each Program Management Team, who shall be responsible for monitoring each Program and reporting to the JSC concerning status of each Program and the progress of any Products developed pursuant to this Agreement. The JSC shall also designate a project lead (each, a “Project Lead”) from one Party and, if deemed appropriate by the JSC, a co-project lead (the “Co-Project Lead”) from the other Party for each Project Management Team, who shall be responsible for monitoring each Project under a Program and reporting to the JSC concerning status of each Project under a Program and the progress of any Products developed pursuant to this Agreement. The Project Lead and Co-Project Lead shall use good faith efforts to execute the applicable Project in accordance with its Technical Development Plan. The Project Lead for a given Project shall be primarily responsible for (a) achieving any milestones under the Project; (b) commercializing the Product under a given Project at scale; and (c) with reasonable consultation with the Co-Project Lead, developing and overseeing the Project, including defining tasks, task dependencies and goals that leverage the capabilities of each Party to commercialize the Product under the Program at scale; provided, the Project Lead shall use commercially reasonable efforts to allocate early stage development work and later stage scale-up and manufacturing work, in each case, as appropriate based on capabilities and capacity of each Party with the intention of maximizing speed to market for the Product; and provided, further, that the Party that is a party to the applicable Customer Agreement shall be solely responsible for interfacing with the customer of such Program (including, without limitation, serving on any steering or similar committee under the applicable Customer Agreement for such Program). In the event that there is a dispute concerning a Program between a Program Lead and a Co-Program Lead or a Project between a Project Lead and a Co-Project Lead, the JSC shall attempt to resolve such dispute in good faith and, if the JSC is unable to do so, such dispute shall be resolved in accordance with Section 5.6. The JSC may establish and disband such other subcommittees as deemed necessary by the JSC (each, a “Subcommittee”). Within 15 calendar days of the Effective Date, the JSC will establish a Subcommittee responsible for handling all legal and intellectual property matters that may arise under the collaboration (“Legal and Intellectual Property Subcommittee”). The responsibilities of the Legal and Intellectual Property Subcommittee shall include addressing all freedom-to-operate issues that

 

 
 

arise during the course of the Term. Each Program Management Team, Project Management Team and Subcommittee shall consist of the same number of representatives from each Party, which number shall be mutually agreed by the JSC.  For the avoidance of doubt, either Party may designate the same representatives to serve on multiple or all Program Management Teams (including as Program Lead and/or Co-Program Lead), Project Management Teams (including as Project Lead and/or Co-Project Lead) or Subcommittees or on the JSC and any Program Management Team, Project Management Team or Subcommittee. Each Party shall be free to change its representatives on notice to the other or to send a substitute representative to any Program Management Team, Project Management Team or Subcommittee meeting; provided, however, that (x) the JSC shall be required to approve each Program Lead, Co-Program Lead, Project Lead and Co-Project Lead, and (y) each Party shall ensure that at all times during the existence of any Program Management Team, Project Management Team or Subcommittee, its representatives on such Program Management Team, Project Management Team or Subcommittee are appropriate in terms of expertise and seniority for the then-current stage of the development, manufacture and commercialization of a Product under the given Program. Each Party’s representatives and any substitute for a representative shall be bound by the obligations of confidentiality set forth in Article X.  No Program Management Team, Project Management Team or Subcommittee shall have the authority to bind the Parties hereunder and each Program Management Team, Project Management Team or Subcommittee shall report to, and any decisions shall be made by, the JSC.

 

5.4              Committee Meetings.  The JSC and each of the Program Management Teams, Project Management Teams and Subcommittees shall each hold at least one (1) meeting per Calendar Quarter at such times during such Calendar Quarter as the Chairperson elects to do so.  Meetings of the JSC and each of the Program Management Teams, Project Management Teams or Subcommittees, respectively, shall be effective only if at least one (1) representative of each Party is present or participating.  The JSC and each Program Management Team, Project Management Team or Subcommittee may meet either (a) in person at either Party’s facilities in the United States or at such locations as the Parties may otherwise agree or (b) by audio or video teleconference; provided that no less than one (1) JSC meeting during each Calendar Year shall be conducted in person.  Other representatives of each Party involved with the relevant Programs or Projects may attend meetings as non-voting participants, subject to the confidentiality provisions set forth in Article X.  Additional meetings of the JSC, Program Management Teams, Project Management Teams or Subcommittees may also be held with the consent of each Party, and neither Party shall unreasonably withhold its consent to hold such additional meetings, or as required under this Agreement.  Each Party shall be responsible for all of its own expenses incurred in connection with participating in all such meetings, and such expenses shall not be included in the calculation of Actual Cost of Goods Sold hereunder.

 

5.5              Authority.  The JSC, each Program Management Team, each Project Management Team and each Subcommittee shall have only the powers assigned expressly to it in this Article V and elsewhere in this Agreement, and shall not have any power to amend, modify or waive compliance with this Agreement.  In furtherance thereof, each Party shall retain the rights, powers and discretion granted to it under this Agreement and no such rights, powers or discretion shall be delegated or vested in the JSC or any Program Management Team or any Project Management Team or Subcommittee unless such delegation or vesting of rights is expressly provided for in this Agreement or the Parties expressly so agree in writing.

 

 
 

5.6              Decisions.

 

(a)                Initial Dispute Resolution Procedures.  Subject to the provisions of this Article V, actions to be taken by the JSC and each of the Program Management Teams, Project Management Teams or Subcommittees shall be taken only following a unanimous vote, with each Party (through its representatives) having one (1) vote.  If any Program Management Team, Project Management Team or Subcommittee fails to reach consensus on a matter before it for decision for a period in excess of thirty (30) days, either Party shall have the right to refer the matter to the JSC.

 

(b)               Final Decision-Making. If the JSC fails to reach unanimous agreement on a matter properly before it for decision for a period in excess of ten (10) days, the matter shall be referred to the Executive Committee. If the Executive Committee fails to reach unanimous agreement on a matter before it for decision for a period in excess of ten (10) days, the matter shall be resolved in accordance with Section 11.2; provided, if the matter before the Executive Committee is approval of a Technical Development Plan and the Executive Committee is unable to reach a consensus, the matter shall be resolved in accordance with Section 4.2.

 

5.7              Conduct of Meetings; Future Adjustments in Governance

 

(a)                Any meetings of the Executive Committee, JSC, a Program Management Team, a Project Management Team or a Subcommittee shall have an agenda circulated in advance of such meeting. The Party responsible for preparing an agenda for any such meeting shall include on the agenda any items suggested by the representatives of the other Party to be addressed at such meeting. Minutes will be taken at each meeting by an individual appointed by the applicable committee, and circulated for review and approval of the same. Copies of all final agendas and approved meeting minutes will be provided to each Party’s legal counsel.

 

(b)               The Parties may at any time by mutual written agreement create or delete governance committees or subcommittees or make other modifications to the governance structures contemplated by this Agreement in order to promote the efficient operation of the Programs and/or the Projects.

 

Article VI.                      FINANCIAL PROVISIONS

 

6.1              BROTAS2 Fee. Subject to Amyris fully funding and breaking ground on the BROTAS2 Facility by March 30, 2017, Ginkgo shall pay to Amyris a non-refundable fee of $[*] on or before March 31, 2017. For clarity, the Parties agree that the term “breaking ground” means that Amyris has completed the following items: (A) proof of adequate funding; (B) engineering plans and layout plans generated by a licensed and reputable engineer have been completed (with a copy provided to Ginkgo); (C) all necessary easements or real property acquisitions necessary for BROTAS2 Facility have been secured; (D) all necessary approvals from the relevant authorities to begin construction have been obtained (with a copy of such approval(s)

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

provided to Ginkgo); and (E) Amyris has begun actual digging in the earth to start the construction of BROTAS2 Facility.

 

6.2              Sharing of Net Profits.

 

(a)                Allocation of Net Profits and Incentive Payments.

 

(i)                 New Contract for a Product. For any Products that are not Refused Products that are (A) developed under an Amyris Customer Agreement or Ginkgo Customer Agreement or (B) listed on Table 1 in Exhibit 6.2(a), Net Profits plus any Incentive Payments for such Products under such Customer Agreement shall be allocated fifty percent (50%) to each of Amyris and Ginkgo until the development, manufacture, and commercialization of such Products under such Customer Agreement are permanently discontinued.

 

(ii)               Existing Contract for a New Product. For any Products listed on Table 2 in Exhibit 6.2(a), Net Profits plus any Incentive Payments less any Earned Incentive Payments for such Products under the applicable Customer Agreement shall be allocated fifty percent (50%) to each of Amyris and Ginkgo until the development, manufacture, and commercialization of such Products under such Customer Agreement are permanently discontinued. Earned Incentive Payments under a Customer Agreement for such Products shall be allocated [*] to the Party indicated as “Sourcing Party” on such Table. Any extension after the Effective Date of a Customer Agreement for a Product listed on Table 2 in Exhibit  6.2(a) (other than pursuant to the exercise of a pre-existing renewal or extension option included in such Customer Agreement) shall be considered a new Customer Agreement subject to Section 6.2(a)(i) hereof, unless such extension extends the term of the underlying Customer Agreement by no more than six months from the termination date in effect on the Effective Date and does not otherwise materially alter the provisions of such Customer Agreement.

 

(iii)             Existing Contract for a Product Under Development. For any Products listed on Table 3 in Exhibit  6.2(a), Net Profits plus any Incentive Payments less any Earned Incentive Payments for such Products under the applicable Customer Agreement shall be allocated fifty percent (50%) to each of Amyris and Ginkgo until the development, manufacture, and commercialization of such Products under such Customer Agreements are permanently discontinued. Earned Incentive Payments under a Customer Agreement for such Products shall be allocated [*] to the Party indicated as “Sourcing Party” on Table 3 in Exhibit  6.2(a). Any extension after the Effective Date of a Customer Agreement listed on Table 3 in Exhibit  6.2(a) (other than pursuant to the exercise of a pre-existing renewal or extension option included in such Customer Agreement) after the Effective Date shall be considered a new Customer Agreement subject to Section 6.2(a)(i) hereof, unless such extension extends the term of the underlying Customer Agreement by no more than six months from the termination date in effect on the Effective Date and does not otherwise materially alter the provisions of such Customer Agreement. Any termination of a Customer Agreement listed on Table 3 in Exhibit  6.2(a) after the Effective Date as a result of a conflict with a Customer Agreement of the other Party shall result in the corresponding Customer Agreement of

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

such other Party, and any Products thereunder, being treated as a new Customer Agreement subject to Section 6.2(a)(i) thereafter.

 

(iv)             Existing Commercial Product. Table 4 in Exhibit 6.2(a) sets forth the Actual Cost of Goods Sold for each Product currently being commercialized by Amyris. For each new Customer Agreement for such Products sourced by Ginkgo, Net Profits and Incentive Payments under such new Customer Agreement for such Product shall be allocated between the Parties as though such Customer Agreement is for a new Product subject to Section 6.2(a)(i). For each Customer Agreement for a Product listed in Table 4 in Exhibit  6.2(a) originated by Amyris (whether before or after the Effective Date), Net Profits and Incentive Payments under such Customer Agreement for such Product shall be allocated [*] to Amyris. Notwithstanding the foregoing, should the Actual Cost of Goods Sold for a Product listed in Table 4 in Exhibit 6.2(a) be reduced from the amount set forth in such Table, Ginkgo shall be entitled to receive a percentage of the savings as a result of such reduction in Actual Cost of Goods Sold, with the specific percentage of the savings for such Product as set forth across from the name of such Product in Table 4 in Exhibit  6.2(a) (the “Ginkgo Cost Savings”). In the event that Ginkgo requests to help Amyris improve its farnesene strain by providing a technical proposal to the Executive Committee, the Executive Committee will approve any such reasonable technical proposal, and provided that Ginkgo performs work under such proposal, but regardless of whether such work achieves any particular success or outcome (including production of any strain meeting any particular requirements) or whether results of such work are incorporated into any production of any farnesene strains Product, Ginkgo shall be entitled to receive [*]of the savings for any reduction in Actual Cost of Goods Sold for any farnesene sold thereafter as Ginkgo Cost Savings hereunder.

 

(v)               Refused Products. In the event that one Party elects, at any time during the development of a Product, not to participate in the development of such Product (such Party, the “Non-Participating Party”, and such Product, a “Refused Product”), such Party shall provide written notice of such election to the other Party, and where such Product uses the other Party’s Intellectual Property that is licensed under this Agreement, Net Profits for such Product shall be allocated [*] to the Non-Participating Party and [*] to the other Party until the development, manufacture, and commercialization of such Refused Product are permanently discontinued. The Parties agree that [*] shall be considered a Refused Product. In the event that Ginkgo engages a Third Party manufacturer to manufacture a Refused Product, such manufacturing shall be subject to the Supplier Restrictions set forth in Exhibit 4.4(b). For clarity, the Parties recognize that the decision not to participate in the development of a Product shall cause any Intellectual Property created in connection with such development to be owned, as between the Parties, solely by the developing Party; provided, however, that such Intellectual Property shall be considered Foreground Intellectual Property for purposes of the license granted in Section 2.3(a)(ii).

 

(vi)             Excluded Products. Notwithstanding anything in this Agreement to the contrary, the products listed in Table 5 in Exhibit  6.2(a), which shall be amended with the approval of the JSC from time to time to reflect such chemical small molecule compound(s) developed, manufactured, and/or commercialized in the Field that are outside

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

the scope of this Agreement, shall not be considered Products hereunder (the “Excluded Products”), the development, manufacture, and commercialization of such Excluded Products shall be outside the scope of this Agreement, and, absent any other agreement to the contrary, no Party shall be obligated to make any payments to the other Party (whether directly or indirectly) for the development, manufacture, or commercialization of any Excluded Products.

 

6.3              Reporting. From and after the Effective Date, the Parties shall conduct a quarterly reconciliation of Net Profits, Incentive Payments, Actual Cost of Goods Sold, and Ginkgo Cost Savings as follows, on a Product-by-Product basis:

 

(a)                Within forty-five (45) days after the filing by Amyris of each Quarterly Report on Form 10-Q with the Securities and Exchange Commission, and within thirty (30) days after the filing by Amyris of its Annual Report on Form 10-K with the Securities and Exchange Commission, or, if Amyris is no longer making such filings with the Securities and Exchange Commission, within the applicable amount of time after such filings would have been made, each Party shall submit to the JSC a written report setting forth, as applicable:

 

(i)                 actual revenues and expenses included in Net Profits, Incentive Payments, Earned Incentive Payments (if applicable), Actual Cost of Goods Sold, and Ginkgo Cost Savings (if applicable) for such Product on a customer-by-customer basis for such Calendar Quarter, including, as applicable:

 

(A)             all sales in units, in Net Profits value, and any Incentive Payments received from a Customer during such Calendar Quarter;

 

(B)              the relevant Actual Cost of Goods Sold and, if applicable, Ginkgo Cost Savings for such Product incurred by each Party or its Affiliates with respect to such Product during such Calendar Quarter, along with all ACOGS Invoices (as defined herein) delivered pursuant to Section 6.4(c) during such Calendar Quarter; and

 

(C)              if applicable, any Earned Incentive Payments received from a Customer during such Calendar Quarter.

 

(b)               Within thirty (30) days after the receipt of the report pursuant to subparagraph (b) above, the Party then entitled to appoint the JSC Chairperson shall submit to the JSC a written reconciliation report (the “Quarterly Payment Report”) setting forth in reasonable detail the calculation of Net Profits, Incentive Payments, Earned Incentive Payments, Actual Cost of Goods Sold, Ginkgo Cost Savings, Withholding Taxes, the calculation of the net amount owed by the Paying Agent to each of Amyris and Ginkgo, as applicable, and the calculation of any Incentive Payments that need to be made from one Party to the other Party, as applicable, in order to ensure compliance with Section 6.2 and the proper allocation of Withholding Taxes pursuant to Section 6.6.

 

(c)                Each Party shall have ninety (90) days after delivery of a Quarterly Payment Report (the “Objection Period”) to dispute the calculations therein by delivery of a written notice to the JSC of any objections thereto (the “Objection Notice”). The Objection Notice shall set

 

 
 

forth in reasonable detail the particulars of such objections (the “Disputed Amount”). If no Objection Notice is delivered in the Objection Period, the Quarterly Payment Report shall be considered final and binding on the Parties.

 

(d)               If an Objection Notice is delivered, the JSC shall as soon as possible, and in any event no later than twenty (20) days after delivery of the Objection Notice, negotiate in good faith to resolve any disputes related to the Quarterly Payment Report. If the JSC is not able to resolve a dispute in such period, either Party may submit such dispute to, and such dispute shall be resolved fully, finally, and exclusively through the use of, an Independent Accounting Firm. The fees and expenses of the Independent Accounting Firm incurred in the resolution of such dispute shall be borne by the Parties in such proportion as is appropriate to reflect the relative benefits received by each Party based on the final resolution of the Disputed Amount in accordance with this Section 6.3. For example, if Party A challenges the calculation in the Quarterly Payment Report by an amount of $[*], but the Independent Accounting Firm believes that Party A has a valid claim for only $[*], Party B shall bear [*] of the fees and expenses of the Independent Accounting Firm and Party A shall bear [*] of the fees and expenses of the Independent Accounting Firm. The Independent Accounting Firm shall determine (and written notice thereof shall be given to the Parties) as promptly as practicable, but in any event within fifteen (15) days following its appointment and based solely on the written submissions detailing the disputed items submitted to it by both Parties, the disputed items submitted to the Independent Accounting Firm. All negotiations pursuant to this Section 6.3 shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable other laws including state rules of evidence, and all negotiations, submissions to the Independent Accounting Firm, and dispute resolution proceedings under this Section 6.3(d) shall be treated as confidential information. The Independent Accounting Firm shall be bound by a mutually agreeable confidentiality agreement. The determination of the Independent Accounting Firm shall be final and binding on the Parties. The decision rendered pursuant to this Section 6.3(d) may be filed as a judgment in any court of competent jurisdiction. Either Party may seek specific enforcement or take other necessary legal action to enforce any decision under this Section 6.3(d). The other Party’s only defense to such a request for specific enforcement or other legal action shall be fraud by or upon the Independent Accounting Firm. Absent such fraud, such other Party shall reimburse the Party seeking enforcement for its expenses related to such enforcement.

 

(e)                The final determination of each Quarterly Payment Report under this Section 6.3 shall not impair any other rights of a Party under this Agreement including, without limitation, any rights to indemnification.

 

6.4              Payment Mechanics.

 

(a)                Each Customer Agreement shall require that all payments of invoices and purchase orders related to the sale of a Product issued pursuant to such Customer Agreement shall be paid directly to the Paying Agent and the payment terms shall be net 30 days unless otherwise approved by the Executive Committee. In the event a Party receives a payment of any invoice or purchase order issued pursuant to a Customer Agreement, such Party shall promptly, and in any event no later than three (3) Business Days after receipt of such payment, wire an amount equal to the amount of such payment to the Paying Agent.

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

(b)               All payments of Incentive Payments, whether or not such Incentive Payments are Earned Incentive Payments, shall be made directly to the Party named in the Customer Agreement to which such Incentive Payment relates, and any portion of the Incentive Payments that are not Earned Incentive Payments allocable to the other Party shall be paid to the other Party no later than thirty (30) days after the end of the applicable Calendar Quarter as payment of a fee for the services of the business development team of the other Party during such Calendar Quarter. For any Incentive Payments that are not Earned Incentive Payments that have been collected by a Party as of the Effective Date and are allocable to the other Party, including without limitation the Incentive Payments collected under the [*], the portion allocable to the other Party shall be paid within thirty (30) days after the Effective Date for the services of the business development team of the other Party prior to the date hereof.

 

(c)                As soon as reasonably practicable following the shipping of any Products manufactured by or on behalf of a Party, such Party shall send an invoice (an “ACOGS Invoice”) to the other Party in an amount equal to the product of (i) 1.1 and (ii) the Actual Cost of Goods Sold for the Products reflected in such ACOGS Invoice. Within three (3) Business Days after payment by a customer of any invoice or purchase order issued pursuant to a Customer Agreement, the Parties shall execute joint written instructions to the Paying Agent to wire an amount equal to the amount set forth in the ACOGS Invoice corresponding to such invoice or purchase order to the Party submitting such ACOGS Invoice to the other Party. Within three (3) Business Days after a Quarterly Payment Report is deemed final and binding on the Parties:

 

(i)                 If the final Quarterly Payment Report indicates that the payments a Party received pursuant to Section 6.4(c) during the applicable Calendar Quarter were greater than an amount equal to the product of (i) 1.1 and (ii) the applicable Actual Cost of Goods Sold for such Calendar Quarter, such Party shall pay the amount of any such excess payment, by wire transfer of immediately available funds, to the Paying Agent for distribution in accordance with Section 6.4(c)(ii).

 

(ii)               The Parties shall deliver joint written instructions to the Paying Agent instructing the Paying Agent to deliver to Amyris and Ginkgo, as applicable, such Party’s share of the Net Profits, and Ginkgo Cost Savings set forth in the final Quarterly Payment Report.

 

6.5              Audits.  For a period beginning as of the Effective Date and ending on the date that is three (3) years following the final payment of Net Profits and/or Incentive Payments under this Agreement, each Party shall keep, and shall cause its Affiliates to keep, full, true and accurate books and records containing all particulars relevant to the calculation of Net Profits, Actual Cost of Goods Sold, Ginkgo Cost Savings, Incentive Payments and Earned Incentive Payments in sufficient detail to enable the other Party to verify the amounts payable by or to it under this Agreement. Each Party shall have the right, not more than once during any Calendar Year and at its own expense, to have the books and records of the other Party and its Affiliates, as applicable, audited by an Independent Accounting Firm. Audits under this Section 6.5 shall be conducted at the principal place of business of the financial personnel with responsibility for preparing and maintaining such records, during normal business hours, upon at least thirty (30) days’ prior written notice, and for the sole purpose of verifying amounts payable by or to such Party under

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

this Agreement. All information and data reviewed in any audit conducted under this Section 6.5 shall be used only for the purpose of verifying amounts payable by or to a Party under this Agreement and shall be treated as Confidential Information of the audited Party subject to the terms of this Agreement. The auditing Party shall cause its accounting firm to enter into a reasonably acceptable confidentiality agreement with the audited Party and its Affiliates, as applicable. The accounting firm shall disclose to the auditing Party only whether the calculation of Net Profits, Actual Cost of Goods Sold, Ginkgo Cost Savings, Incentive Payments and Earned Incentive Payments, and payments hereunder are correct or incorrect and the specific details concerning any discrepancies. If the audit demonstrates that the payments owed under this Agreement have been understated, the audited Party shall pay the balance to the auditing Party, which shall be paid together with interest in accordance with Section 6.8.  Further, if the amount of the understatement is greater than [*] of the amount owed to the auditing Party with respect to the audited period, then the audited Party shall reimburse the auditing Party for the reasonable out-of-pocket cost of the audit.  If the audit demonstrates that the payments owed under this Agreement have been overstated, the audited Party shall be entitled to credit such amount against payments due to the auditing Party.  All payments owed by or to a Party under this Section 6.5 shall be made within forty-five (45) days after the results of the audit are delivered to the Parties.

 

6.6              Tax Matters.  Any amounts payable by a Party or the Paying Agent (the “Payor”) to the other Party (the “Payee”) pursuant to this Agreement (each a “Payment”) shall be made without deduction or withholding for taxes except to the extent that any such deduction or withholding is required by Law in effect at the time of the Payment. In the event that the Payor is required by applicable Law to deduct, withhold and pay over (collectively, “Withhold”) any tax (a “Withholding Tax”) from or in respect of such Payment, the Payor shall (a) notify the Payee of such requirement promptly upon first becoming aware thereof, and in no event less than five (5) days prior to Withholding, (b) Withhold the full amount of such Withholding Tax to the relevant taxing authority as and when due and (c) pay the net after-Withholding Tax amount of such Payment to the Payee, together with documentation confirming the amount and fact of the associated Withholding. The amount of Withholding Tax required to be Withheld in respect of a Payment shall be (i) determined in the good-faith discretion of the Payor, with due regard to any valid documentation previously provided to the Payor by or for the benefit of the Payee, in form and substance reasonably satisfactory to the Payor, that supports a reduced rate of Withholding Tax in respect of the Payment, and (ii) treated for all purposes of this Agreement as having been duly and timely paid by the Payor to or for the benefit of the Payee. The Parties agree to cooperate in good faith to (x) minimize the amount of any Withholding Tax prior to Withholding, and (y) permit a Payee to recover any excess Withholding Tax previously Withheld. On the date of execution of this Agreement, each Party will deliver to the other an accurate and complete Internal Revenue Service Form W-9.

 

6.7              Currency Exchange.  All payments to be made by a Party to the other Party shall be made in Dollars.  In the case of Actual Cost of Goods Sold outside the United States, the average reasonable foreign exchange rates in effect when the transactions occur as recorded in Amyris’ books and records for monthly external reporting will be used. In the case of any other payments made pursuant to a Customer Agreement that are not in Dollars, the reasonable exchange rate used when the funds are converted to Dollars shall be used as the conversion rate.

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

6.8              Late Payments.  Without limiting any other rights or remedies available to a Party hereunder, if the paying Party does not pay any amount due on or before the due date, the paying Party shall pay to such Party interest on any such amounts from and after the date such payments are due under this Agreement at a rate per annum equal to the [*] in effect published in The Wall Street Journal, Eastern Edition, plus [*] basis points, or the maximum applicable legal rate, if less, calculated on the total number of days payment is delinquent; provided that with respect to any disputed payments, no interest payment shall be due until such dispute is resolved and the interest which shall be payable thereon shall be based on the finally-resolved amount of such payment, calculated from the original date on which the disputed payment was due through the date on which payment is actually made.

 

6.9              General Payment Provisions.  Notwithstanding anything to the contrary in this Agreement, (a) there shall be no double-counting of expenses or revenue in the calculation of Net Profits, Actual Cost of Goods Sold, and Incentive Payments hereunder, and (b) Net Profits, Actual Cost of Goods Sold, Ginkgo Cost Savings, Incentive Payments, and any components thereof shall be determined from the books and records of the applicable Party and its Affiliates maintained in accordance with the Accounting Principles.

 

Article VII.                   TERM AND TERMINATION

 

7.1              Agreement Term.  The term of this Agreement shall commence on the Effective Date and shall continue for three (3) years from the Effective Date unless terminated pursuant to Sections 7.2(a), 7.2(b), 7.2(c) or 7.2(d) below (the “Initial Term”). The Agreement shall automatically be extended for successive one-year periods (each, a “Renewal Term” and, collectively with the Initial Term, the “Term”) unless a Party delivers a written notice of non-renewal to the other Party not less than ninety (90) days prior to a Renewal Term.

 

7.2              Termination.

 

(a)                Termination by Mutual Agreement. At any time during the Term, the Agreement may be terminated upon the mutual written consent of the Parties.

 

(b)               Termination for Material Non-Performance.  If, as of the eighteen (18) month anniversary of the Effective Date, the Executive Committee, after receiving input from the members of the JSC, determines that a Party is repeatedly unable to perform or meet commitments under its Customer Agreements or Technical Development Plans, the other Party shall have a right to terminate the Agreement on thirty (30) days’ prior written notice. Notwithstanding the foregoing, if a Party disputes the termination, then Section 7.2(e) shall apply.

 

(c)                Termination for Material Breach.  If either Party (the “Non-Breaching Party”) believes that the other Party (the “Breaching Party”) is in material breach of this Agreement, then the Non-Breaching Party may deliver notice of such breach to the Breaching Party.  To the extent such breach is reasonably capable of being cured, if the Breaching Party fails to cure such breach, or to initiate such steps as would be considered reasonable to effectively cure such breach (and thereafter diligently pursues such cure), within thirty (30) days after receipt of such notice of breach, the Non-Breaching Party may terminate this Agreement upon written notice

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

to the Breaching Party.  Notwithstanding the foregoing, if a Party disputes the termination, then Section 7.2(e) shall apply.

 

(d)               Termination for Change in Control. A Party (the “Changed Party”) shall provide fifteen (15) days’ prior written notice (a “Change in Control Notice”) of any Change in Control of the Changed Party. The other Party may terminate this Agreement in its sole and absolute discretion upon written notice given to the Changed Party not later than ten (10) days after the receipt of such Change in Control Notice.

 

(e)                Termination Disputes.  If a Party gives notice of non-performance, notice of breach or notice of termination under Sections 7.2(b) or 7.2(c), and the other Party disputes whether such notice was proper, then the issue of whether or not such non-performance or breach entitled the Party providing such notice to terminate this Agreement shall be resolved in accordance with Section 11.2, and the Agreement shall remain in full force and effect until such dispute is resolved.  All cure periods shall be tolled during such dispute resolution process. If, as a result of such dispute resolution process it is determined that the notice of termination was proper, then the Breaching Party shall be entitled to the remainder of the relevant cure period and such termination shall only be effective if the relevant breach is not cured or otherwise addressed in accordance with this Agreement during such period.  On the other hand, if, as a result of the dispute resolution process, it is determined that the notice of termination was improper, then no termination shall have occurred or shall occur as a result of such notice and this Agreement shall remain in full force and effect.

 

7.3              Effects of Termination.

 

(a)                Upon termination of this Agreement for any reason:

 

(i)                 Ginkgo shall retain each Ginkgo Customer Agreement, Amyris shall retain each Amyris Customer Agreement, and the JSC shall determine what the Parties shall do with respect to any Customer Agreement to which both Parties are a party;

 

(ii)               Each Party shall return the other Party’s Confidential Information in accordance with Section 10.3; and

 

(iii)             Subject to Section 7.3(d) below, each provision of this Agreement that does not expressly survive termination of this Agreement or extend beyond the Term shall terminate and be of no further force and effect.

 

(iv)             If during the Term:

 

(A)             The Parties had determined that there are no restrictions on the Parties relating to (1) use of Amyris Background Intellectual Property in the Flavors and Fragrances Market and/or (2) the manufacture of Products for the Flavors and Fragrances Market, then for the Products listed in Table 2 of Exhibit 6.2(a) where Amyris is listed as the “Sourcing Party”, Ginkgo shall have no rights and Amyris shall have no obligations to Ginkgo after the termination of this Agreement unless Amyris has been directed to perform research or development on such Products prior to such termination by the relevant Third Party.

 

 
 

(B)              Amyris and/or Ginkgo was unable to use Amyris Background Intellectual Property for Products in the Flavors and Fragrances Market and/or the Parties were unable to produce each Product in the Flavors and Fragrances Market under this Agreement for more than one Third Party, Ginkgo shall be entitled after such termination to receive 50% of the Net Profits to make such Products in Table 2 of Exhibit 6.2(a), as well as other products not listed in Table 2 of Exhibit 6.2(a) for the relevant Third Party, regardless of whether Ginkgo performed research or development on such Products prior to such termination.

 

(b)               Termination of this Agreement shall be in addition to, and shall not prejudice, the Parties’ remedies at law or in equity, including the Parties’ ability to receive legal damages and/or equitable relief with respect to any breach of this Agreement, regardless of whether or not such breach was the reason for the termination.

 

(c)                Expiration or termination of this Agreement for any reason shall not release either Party from any obligation or liability which, on the effective date of such expiration or termination, has already accrued to the other Party or which is attributable to a period prior to such expiration or termination.

 

(d)               Article I, Section 2.3(a)(i), Section 2.3(a)(iii), Section 2.3(e), Section 2.3(f), Section 2.4, Article VI, Section 7.3, Article VIII, the last sentence of Section 9.5, Article X, and Article XI shall survive termination or expiration of this Agreement. Section 2.3(a)(ii) and Section 2.3(b) shall survive solely A) with respect to any updates and/or modifications to the Intellectual Property provided under the Initial Strategic Partnership Agreement, to the extent and for such time as Section 2.1 survives as indicated below, and (B) for any other Intellectual Property actually provided by the Parties prior to termination or expiration of this Agreement in connection with the performance of activities under this Agreement for the Parties’ continued use of the existing (as of such termination or expiration) Products or Refused Products with the existing (as of such termination or expiration) customers, as the case may be. Notwithstanding the foregoing, (i) Section 2.3(c) shall survive subject to Section 2.3(d) and (ii) Section 2.1 shall survive solely to the extent applicable to Section 2.3(c) or in connection with the performance of activities under this Agreement for the Parties’ continued use of the existing (as of such termination or expiration) Products or Refused Products with the existing (as of such termination or expiration) customers, as the case may be. The Parties shall meet after such termination or expiration of this Agreement to determine in good faith whether any changes should be made with respect to the Parties’ completion of any Products or Refused Products that are still under development as of such termination or expiration, taking into account the best course of action for the customers of such products; any such changes must be mutually agreed to by the Parties, and approval of such changes is not to be unreasonably withheld. Section 2.2 shall survive termination or expiration of this Agreement in its entirety except that subpart (A) of Section 2.2(d)(ii) shall not survive.

 

Article VIII.                INDEMNIFICATION; LIMITATION OF LIABILITY

 

8.1              By Amyris.

 

(a)                Subject to Section 8.1(b), Amyris agrees, at Amyris’ cost and expense, to defend, indemnify and hold harmless Ginkgo and its Affiliates, and their respective directors,

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

officers, employees and agents (the “Ginkgo Indemnified Parties”) from and against any losses, costs, damages, fees or expenses (“Losses”) arising out of any Action brought by a Third Party to the extent relating to (i) any breach by Amyris of any of its representations, warranties or obligations pursuant to this Agreement; (ii) the negligence or willful misconduct of Amyris; (iii) any infringement by Intellectual Property licensed from Amyris; (iv) any of Excluded Products developed, manufactured, or commercialized by Amyris; or (v) except as otherwise provided in Section 8.3, actions taken solely by Amyris that serve as the sole basis for such Action brought by a Third Party where such actions are inconsistent with the directions of the JSC.

 

(b)               In the event of any such Action against any of the Ginkgo Indemnified Parties by any Third Party, Ginkgo shall promptly notify Amyris in writing of the Action. Subject to Section 8.1(c), Amyris shall have the right, exercisable by notice to Ginkgo within thirty (30) days after receipt of notice from Ginkgo of the Action, to assume direction and control of the Action (including the right to settle the Action solely for monetary consideration) with counsel selected by Amyris and reasonably acceptable to Ginkgo.  The Ginkgo Indemnified Parties shall cooperate with Amyris and may, at their option and expense, be separately represented in any such action or proceeding.  Amyris shall not be liable for any Action costs or expenses incurred by the Ginkgo Indemnified Parties without Amyris’ prior written authorization. In addition, Amyris shall not be responsible for the indemnification or defense of any Ginkgo Indemnified Party to the extent arising from any negligent or intentional acts by any Ginkgo Indemnified Party or the breach by Ginkgo of any representation, obligation or warranty under this Agreement, or any Actions compromised or settled without its prior written consent. Notwithstanding the foregoing, Amyris shall not settle an Action brought by a Third Party without the prior written consent of Ginkgo, if such settlement would impose any monetary obligation on Ginkgo or require Ginkgo to submit to an injunction.

 

(c)                Notwithstanding anything to the contrary above, (i) in the event of any such Action against a Ginkgo Indemnified Party brought by a Governmental Entity or criminal action seeking an injunction against a Ginkgo Indemnified Party, or (ii) in the event Amyris does not assume direction and control of the Action pursuant to Section 8.1(b), Ginkgo shall have the right to control the Action at Amyris’ expense.

 

8.2              By Ginkgo.

 

(a)                Subject to Section 8.2(b), Ginkgo agrees, at Ginkgo’s cost and expense, to defend, indemnify and hold harmless Amyris and its Affiliates and their respective directors, officers, employees and agents (the “Amyris Indemnified Parties”) from and against any Losses arising out of any Action brought by a Third Party to the extent relating to (i) any breach by Ginkgo of any of its representations, warranties or obligations pursuant to this Agreement; (ii) the negligence or willful misconduct of Ginkgo; (iii) any infringement by Intellectual Property licensed from Ginkgo hereunder (iv) any of Excluded Products developed, manufactured, or commercialized by Ginkgo; (v) except as otherwise provided in Section 8.3, actions taken solely by Ginkgo that serve as the sole basis for such Action brought by a Third Party where such actions are inconsistent with the directions of the JSC; or (vi) any Losses related to Ginkgo’s failure to make payments to SRD under Section 2.3(f).

 

 
 

(b)               In the event of any such Action against any of the Amyris Indemnified Parties by any Third Party, Amyris shall promptly notify Ginkgo in writing of the Action. Subject to Section 8.2(c), Ginkgo shall have the right, exercisable by notice to Amyris within thirty (30) days after receipt of notice from Amyris of the Action, to assume direction and control of the Action (including the right to settle the Action solely for monetary consideration) with counsel selected by Ginkgo and reasonably acceptable to Amyris. The Amyris Indemnified Parties shall cooperate with Ginkgo and may, at their option and expense, be separately represented in any such action or proceeding.  Ginkgo shall not be liable for any Action costs or expenses incurred by the Amyris Indemnified Parties without Ginkgo’s prior written authorization.  In addition, Ginkgo shall not be responsible for the indemnification or defense of any Amyris Indemnified Party to the extent arising from any negligent or intentional acts by any Amyris Indemnified Party, or the breach by Amyris of any representation, obligation or warranty under this Agreement, or any Actions compromised or settled without its prior written consent.  Notwithstanding the foregoing, Ginkgo shall not settle an Action brought by a Third Party without the prior written consent of Amyris, if such settlement would impose any monetary obligation on Amyris or require Amyris to submit to an injunction.

 

(c)                Notwithstanding anything to the contrary above, (i) in the event of any such Action against an Amyris Indemnified Party brought by a Governmental Entity or a criminal action seeking an injunction against an Amyris Indemnified Party, or (ii) in the event Ginkgo does not assume direction and control of the Action pursuant to Section 8.2(b), Amyris shall have the right to control the Action at Ginkgo’s expense.

 

8.3              Shared Claims. Any Losses arising out of any Action brought by a Third Party involving any actual or alleged death or bodily injury arising out of or resulting from the development, manufacture or commercialization of any Product, to the extent that such Losses exceed the amount (if any) covered by the applicable Party’s product liability insurance, shall be shared equally by the Parties, except to the extent such Losses arise out of any Action brought by a Third Party based on (a) a Party’s breach of any of its representations, obligations or warranties under to this Agreement, or (b) the negligence or intentional act of a Party, its Affiliates, or their respective permitted sublicensees, or any of the respective officers, directors, employees and agents of each of the foregoing entities, in the performance of obligations or exercise of rights under this Agreement.

 

8.4              Limitation of Liability.  EXCEPT WITH RESPECT TO A BREACH OF Article VIII, Article X, OR A PARTY’S LIABILITY PURSUANT TO Article VIII OR Article X, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT OR REMOTE DAMAGES, OR, EXCEPT WITH RESPECT TO A BREACH OF SECTIONS 2.1, 2.3(d) OR 2.3(e), FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.

 

 
 

Article IX.                      REPRESENTATIONS, WARRANTIES AND COVENANTS

 

9.1              Representation of Authority; Consents.  Ginkgo and Amyris each represents and warrants, and covenants, as applicable, to the other Party that, except as set forth on Schedule 9.1 of the Amyris Disclosure Schedules and the Ginkgo Disclosure Schedules:

 

(a)                it has full right, power and authority to enter into this Agreement;

 

(b)               its board of directors has determined that this business arrangement, and the structure of the resulting partnership, is in the best interest of such party and its stockholders;

 

(c)                this Agreement has been duly executed by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other Laws relating to or affecting creditors’ rights generally and by general equitable principles and public policy constraints (including those pertaining to limitations and/or exclusions of liability, competition Laws, penalties and jurisdictional issues including conflicts of Laws); and

 

(d)               except as otherwise contemplated in this Agreement, all necessary consents, approvals and authorizations of all government authorities and other persons required to be obtained by such Party in connection with the execution, delivery and performance of this Agreement have been and shall be obtained.

 

9.2              No Conflict.  Each Party represents and warrants to the other Party that, except as set forth on Schedule 9.2 of the Amyris Disclosure Schedules and the Ginkgo Disclosure Schedules, the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder (a) do not conflict with or violate such Party’s corporate organizational documents or any requirement of applicable Laws and (b) do not conflict with, violate or breach or constitute a default or require any consent under, any material oral or written contractual obligation of such Party.  Each Party agrees that it shall not during the Term grant any right, license, consent or privilege to any Third Party or otherwise undertake any action, either directly or indirectly, that would conflict with the rights granted to the other Party or interfere with any obligations of such Party set forth in this Agreement.

 

9.3              Intellectual Property. Each Party represents and warrants to the other Party, except as set forth on Schedule 9.3 of the Amyris Disclosure Schedules and the Ginkgo Disclosure Schedules, and solely (other than subpart (e) or (f), below) with respect to, as applicable, the Background Intellectual Property, Foreground Intellectual Property and Foundry Intellectual Property, as follows:

 

(a)                Such Party has the legal power to and such Party is not subject to any agreement which restricts or impairs its ability to convey to the other Party all of the license rights for such Intellectual Property contemplated hereby;

 

(b)               Such Party does not pay or receive any royalty to or from anyone with respect to any of such Party’s Intellectual Property, nor has such Party licensed anyone to commercially exploit any of such Party’s Intellectual Property;

 

 
 

(c)                There are no pending or, to the knowledge of such Party, contemplated Actions relating to any of such Party’s Intellectual Property, nor has such Party received written communication from any Person threatening the institution of any Action against such Party relating to any of such Intellectual Property;

 

(d)               Except as contemplated by this Agreement, all rights of such Party in and to such Intellectual Property will be unaffected by this Agreement and the other transactions contemplated hereunder;

 

(e)                To the knowledge of such Party, neither the conduct of its business, nor the use of the technology it is providing pursuant to this Agreement, interferes with, infringes, violates or misappropriates any rights under any valid and unexpired Intellectual Property of any other Person;

 

(f)                Such Party has not received any notice alleging any such interference, infringement, violation or misappropriation (including any such claim that such Party must license or refrain from using any such Intellectual Property); and

 

(g)               To the knowledge of such Party, no Third Party has interfered with, infringed, violated or misappropriated, or is currently interfering with, infringing, violating or misappropriating any rights under such Party’s Intellectual Property.

 

9.4              Compliance with Laws. Each Party represents and warrants to the other Party that such Party is in compliance with all applicable Laws applicable to it. Each Party shall comply in all material respects with all applicable Laws in connection with the development, manufacture and commercialization of the Products.

 

9.5              Insurance. Each Party represents and warrants that it is insured with financially sound and reputable insurance companies, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses. Each Party shall not decrease or materially change its insurance policies for so long as this Agreement is in effect and for a period of five years thereafter.

 

9.6              No Other Molecules in the Field. Each Party represents and warrants that it has no rights to develop, manufacture or sell any other molecules in the Field as of the date hereof that are not listed in one of the Tables on Exhibit 6.2(a).

 

9.7              Disclaimer of Warranty.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS, WAIVES, RELEASES AND RENOUNCES ANY WARRANTY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

 

9.8              Exclusivity.

 

(a)                Each Party agrees that, during the Term, neither Party will collaborate, work with, or otherwise engage [*] or any of its Affiliates within the Field. For clarity,

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

during the Term, neither party will license its Intellectual Property to [*] or any of its Affiliates within the Field.

 

(b)               During the Term, all future Amyris contracts pertaining to manufacturing of a [*] are subject to this Agreement except for the following: (i) the agreement between [*]; (ii)  any agreement with a Governmental Entity; (iii) agreements related to the [*]; and (iv) the agreements listed on Exhibit 1.5. For clarity and notwithstanding Section 9.8(b)(iv), [*].

 

(c)                During the Term, all future Ginkgo contracts pertaining to manufacturing of a chemical small molecule compound in the Field where the customer requires third party manufacturing of the molecule are subject to this Agreement except for the following: (i) any agreement between Ginkgo and a Governmental Entity or (ii) certain aspects of existing Ginkgo agreements with both [*] (related to the scale-up and manufacture of [*]) and [*] (related to the scale-up and manufacture of champignol and nonadienols/als); provided, that process development and scale-up of such chemical small molecule compound shall remain subject to this Agreement. For the avoidance of doubt, all agreements between Ginkgo and a Third Party for the development of strains or strain improvements only (i.e., the agreement does not contemplate the industrial scale manufacture of chemical small molecule compounds) are not subject to this Agreement and nothing herein shall prohibit the entry by Ginkgo into any such agreement.

 

(d)               The Parties recognize and affirm that, in the event of a breach by a Party of this Section 9.8, money damages would be inadequate and such Party would not have any adequate remedy at Law. Accordingly, the Parties agree that the non-breaching Party shall have the right, in addition to any other rights and remedies existing in its favor, to enforce its rights and the breaching Party’s obligations under this Section 9.8 by an action or actions for specific

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

performance, injunction or other equitable relief against the breaching Party to enforce or prevent any violations, whether anticipatory, continuing or future, of the provisions of this Section 9.8.

 

9.9              Non-Solicitation. Each Party agrees that, during the Term, it will not, directly or indirectly, solicit the employment of any officer or employee of the other Party. The foregoing will not prevent a Party from soliciting the employment of or from employing any officer or employee of the other Party if such officer or employee of the other Party leaves the employment of the other Party without any prior solicitation of employment of such officer or employee of the other Party by or on behalf of such Party. The phrase “solicit the employment of” will not be deemed to include (a) general solicitations or advertisements of employment not specifically directed towards officers or employees of the other Party, or from employing any such person who contacts such Party in response to any of the foregoing, or (b) retaining and deploying recruiting firms and individuals to identify, seek and solicit prospective employees on behalf of such Party so long as such recruiting firms and individuals are not directed, orally or in writing, to solicit the employment of any officer or employee of the other Party, or from employing any such person who responds to any recruiting efforts of the foregoing. For purposes of clarity, the provisions of this Section 9.9 will apply whether an officer or employee of the other Party is employed on the date of this Agreement or hereafter.

 

Article X. CONFIDENTIALITY

 

10.1          Confidential Information

 

(a)                In connection with the performance of their respective obligations under this Agreement, each Party (the “Disclosing Party”) may, itself or through or its Affiliates, disclose certain Confidential Information to the other Party (the “Recipient”) or its Affiliates. During the Term and at all times thereafter, the Recipient shall maintain all Confidential Information of the Disclosing Party in strict confidence and shall not use such Confidential Information for any purpose, except that the Recipient may disclose or permit the disclosure of any such Confidential Information to its Affiliates and permitted sublicensees, or its or their respective directors, officers, employees, consultants, advisors and agents, and its Permitted Subcontractors, who in each case are obligated to maintain the confidential nature of such Confidential Information on terms no less stringent than those of this Article X. In addition, the Recipient may use or disclose Confidential Information of the Disclosing Party (i) in exercising the Recipient’s rights and licenses granted hereunder (including exercising these rights to discuss with Third Party sublicensing opportunities) or to fulfill its obligations and/or duties hereunder; provided that such disclosure is made to a Person who is obligated to confidentiality and non-use obligations no less rigorous than those of this Section 10.1 and (ii) subject to Section 10.1(c), in prosecuting or defending an Action, complying with applicable Law and/or submitting information to tax or other Governmental Entities. For the purposes of this Agreement, “Confidential Information” shall mean (x) any confidential or proprietary information related to the Products and (y) any confidential or proprietary information relating to the Disclosing Party’s business, including without limitation trade secrets, processes, formulae, data and know-how, improvements, inventions, chemical or biological materials, techniques, methods for making compounds, target compounds, product development plans, marketing plans, strategies, customer lists or other information that has been created, discovered or developed by the Disclosing Party, or has otherwise become known to the Disclosing Party, or for which proper rights have been

 

 
 

assigned to the Disclosing Party, as well as any other information and materials that are deemed confidential or proprietary to or by the Disclosing Party (including, without limitation, all information and materials of the Disclosing Party’s customers and consultants and any other third party), regardless of whether any of the foregoing are marked as “confidential” or “proprietary” or communicated to the Recipient by the Disclosing Party in oral, written, graphic or electronic form.

 

(b)               The obligations of confidentiality and non-use set forth above shall not apply to the extent that the Recipient can demonstrate that the relevant Confidential Information of the Disclosing Party: (i) was publicly known prior to the time of its disclosure under this Agreement or the Prior Confidentiality Agreement; (ii) became publicly known after the time of its disclosure under this Agreement other than through acts or omissions of the Recipient, its Affiliates, potential sublicensees or permitted sublicensees in violation of this Agreement; (iii) is or was disclosed to the Recipient or any of its Affiliates at any time, whether prior to or after the time of its disclosure under this Agreement or the Prior Confidentiality Agreement, by a Third Party having no fiduciary relationship with the Disclosing Party or any of its Affiliates and having no obligation of confidentiality with respect to such Confidential Information; (iv) is independently developed by the Recipient or any of its Affiliates without access to such Confidential Information as evidenced by written records; or (v) was known by the Recipient or any of its Affiliates at the time of receipt from the Disclosing Party or any of its Affiliates as documented by the Recipient’s or any of its Affiliates’ records.

 

(c)                In addition, the Recipient or any of its Affiliates may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with applicable Laws or a court or administrative order; provided that the Recipient provides to the Disclosing Party prior written notice of such disclosure, to the extent reasonably possible, and that the Recipient takes all reasonable and lawful actions to obtain confidential treatment for such disclosure and, to the extent possible, to minimize the extent of such disclosure.

 

(d)               Notwithstanding the obligations in Section 10.1(a) and 10.1(c), a Party may disclose (and, in connection therewith, use) Confidential Information of the other Party, if such disclosure:

 

(i)                 is made to Governmental Entities in order to obtain patent rights;

 

(ii)               is made to its Affiliates, permitted sublicensees, agents, consultants or other Third Parties (including service providers) for the development, manufacture or commercialization of Products as provided hereunder, or in connection with an assignment of this Agreement, a licensing transaction related to products under this Agreement, a loan, financing or investment, or an acquisition, merger, consolidation or similar transaction (or for such Persons to determine their interest in performing such activities or entering into such transactions), in each case on the condition that any Third Parties to whom such disclosures are made agree to be bound by confidentiality and non-use obligations no less rigorous than those contained in this Agreement; or

 

(iii)             consists entirely of Confidential Information previously approved by the Disclosing Party for disclosure by the Recipient.

 

 
 

(e)                Each Recipient shall be responsible for any breach of the obligations of this Section 10.1 by any Person to whom such Recipient or its Affiliate disclosed the Disclosing Party’s Confidential Information.

 

10.2          Publicity; Attribution; Terms of this Agreement; Non-Use of Names.

 

(a)                The Parties shall issue a press release to announce the execution of this Agreement and describe the material financial and operational terms of this Agreement. Such press release and the date of its issuance shall be mutually agreed to by the Parties. Except as required by judicial order or applicable Law, or as set forth below, neither Party shall make any public announcement concerning this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Party preparing any such public announcement shall provide the other Party with a draft thereof at least three (3) Business Days prior to the date on which such Party would like to make the public announcement. Neither Party shall use the name, trademark, trade name or logo of the other Party or its employees in any publicity or news release relating to this Agreement or its subject matter, without the prior express written permission of the other Party.

 

(b)               Notwithstanding the terms of this Article X, either Party shall be permitted to disclose the existence and terms of this Agreement to the extent required, based on the advice of such Party’s legal counsel, to comply with applicable Laws, including the rules and regulations promulgated by the U.S. Securities and Exchange Commission (“SEC”) or any other Governmental Entity. Notwithstanding the foregoing, before disclosing this Agreement or any of the terms hereof pursuant to this Section 10.2(b), the Parties will consult with one another on the terms of this Agreement for which confidential treatment will be sought in making any such disclosure. If a Party wishes to disclose this Agreement or any of the terms hereof in accordance with this Section 10.2(b), such Party agrees, at its own expense, to seek confidential treatment of the portions of this Agreement or such terms as may be reasonably requested by the other Party; provided that the disclosing Party shall always be entitled to comply with legal requirements, including the requirements of the SEC.

 

(c)                Either Party may also disclose the existence and terms of this Agreement in confidence to its attorneys and advisors, and to potential acquirors (and their respective professional advisors), in connection with a potential merger, acquisition or reorganization and to existing and potential investors or lenders of such Party, as a part of their due diligence investigations, or to existing and potential sublicensees or to permitted sublicensees and assignees, or to any other Person described in Section 10.1(d)(ii), in each case under an agreement to keep the terms of this Agreement confidential under terms of confidentiality and non-use substantially no less rigorous than the terms contained in this Agreement and to use such information solely for the purpose permitted pursuant to this Section 10.2(c) or Section 10.1(d)(ii).

 

(d)               For purposes of clarity, either Party may issue a press release or public announcement or make such other disclosure if the content of such press release, public announcement or disclosure has previously been made public other than through a breach of this Agreement by the issuing Party or its Affiliates.

 

 
 

10.3          Return of Confidential Information.  Subject to Section 7.3(a), upon the expiration or termination of this Agreement, upon request, the Recipient shall return to the Disclosing Party or destroy all Confidential Information received by the Recipient or any of its Affiliates from the Disclosing Party or any of its Affiliates (and all copies and reproductions thereof).  In addition, the Recipient and its Affiliates shall destroy:  (a) any notes, reports or other documents prepared by the Recipient which contain Confidential Information of the Disclosing Party; and (b) any Confidential Information of the Disclosing Party (and all copies and reproductions thereof) which is in electronic form or cannot otherwise be returned to the Disclosing Party.  Nothing in this Section 10.3 shall require the alteration, modification, deletion or destruction of archival tapes or other electronic back-up media made in the ordinary course of business; provided that the Recipient and its Affiliates shall continue to be bound by its obligations of confidentiality and other obligations under this Article X with respect to any of the Disclosing Party’s Confidential Information contained in such archival tapes or other electronic back-up media.  Any requested destruction of the Disclosing Party’s Confidential Information shall be certified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction.  Notwithstanding the foregoing, (i) the Recipient and its Affiliates may retain one copy of the Disclosing Party’s Confidential Information solely for the purpose of determining the Recipient’s continuing obligations under this Article X and (ii) the Recipient and its Affiliates may retain the Disclosing Party’s Confidential Information and its own notes, reports and other documents to the extent reasonably required (x) to exercise the rights and licenses of the Recipient expressly surviving expiration or termination of this Agreement; (y) to perform the obligations of the Recipient expressly surviving expiration or termination of this Agreement; or (z) for regulatory or archival purposes.  Notwithstanding the return or destruction of the Disclosing Party’s Confidential Information, the Recipient shall continue to be bound by its obligations of confidentiality and other obligations under this Article X.

 

Article XI.                      MISCELLANEOUS

 

11.1          Governing Law.  This Agreement (and any Actions arising out of or related thereto or to the transactions contemplated thereby or to the inducement of any Party to enter therein, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise) shall in all respects be governed by and construed in accordance with the laws of the State of New York, USA, including all matters of construction, validity and performance, in each case without reference to any conflict of law rules that might lead to the application of the laws of any other jurisdiction.

 

11.2          Dispute Resolution.  Any Action arising out of or relating to this Agreement that is not subject to Article V shall be settled, if possible, through good faith negotiations between the Parties.  If the Parties are unable to settle such dispute within thirty (30) days or in accordance with the terms of Article V, as applicable, such Action arising out of or relating to this Agreement, or the breach thereof, shall be resolved as follows:

 

(a)                Such Action shall be settled by binding arbitration in Chicago, Illinois in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered may be entered in any court having jurisdiction. The arbitrator shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding subject to any limits set forth herein.

 

 
 

(b)               Such arbitration shall be conducted by a single, independent arbitrator or, if the Parties are unable to agree on such arbitrator, each Party shall appoint a single, independent arbitrator who must collectively agree on a Third Party, independent arbitrator to serve as arbitrator hereunder. For clarity, the arbitrator can be either judicial or non-judicial, depending on the nature of the dispute (i.e., if the dispute is technical in nature, the Parties may elect to agree upon an arbitrator who possesses a relevant technical background).

 

(c)                The arbitrator may rule upon motions to compel or limit discovery and shall have the authority to impose sanctions for discovery abuses, including reasonable attorneys’ fees and costs, to the extent and upon the grounds available for such in the United States District Courts for the District in which the arbitration is taking place.

 

(d)               The decision of the arbitrator (the “Award”) as to any Action (including the validity and amount of any Action) shall be final, binding, and conclusive upon the Parties. Such Award shall be written and shall be supported by written findings of facts and conclusions. Within 30 days of issuance of an Award any payment required by the Award shall be made unless before such date any Party shall commence legal action to vacate or modify the Award.

 

(e)                The Parties to the arbitration may apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction or other interim or conservatory relief, as necessary, including without limitation for breach of Section 9.8 or Article X hereunder, without breach of this arbitration provision and without abridgment of the powers of the arbitrator.

 

(f)                The Parties agree, and agree to direct the arbitrator, that the arbitration will be kept confidential and that the existence of the proceeding and any proceedings therein, including without limitation any pleadings, briefs or other documents, any testimony or other oral submissions and any Award, will not be disclosed beyond the arbitrator or arbitration tribunal, the Parties, their counsel and any Person (including witnesses, if any) involved in the conduct of the proceeding, except (i) in any legal proceeding concerning the arbitration, including without limitation any proceeding to compel or to stay arbitration or otherwise in aid of arbitration, for other relief as described in Section 11.2(e), to vacate, modify or confirm an Award, or to enforce an Award or any judgment based upon an Award, (ii) to the tax, legal, financial or other professional advisors of such Person who are obligated to keep such information confidential, or (iii) as may be required by Law.

 

(g)               Each Party shall pay its own costs and expenses (including counsel fees) of any such arbitration, except as may be awarded by the arbitrator pursuant to Section 11.2(c) above.

 

11.3          General Release. Effective as of the effective date of the Initial Strategic Partnership Agreement, each Party voluntarily, knowingly and irrevocably releases and forever discharge the other Party and its officers, directors, managers, employees and affiliates from any and all actions, agreements, amounts, claims, damages, expenses, liabilities and obligations of every kind, nature or description, known or unknown, arising or existing prior to the Effective Date, except for any rights of such Party under this Agreement and any agreement entered into pursuant to this Agreement.

 

 
 

11.4          Assignment. Neither Party may assign its rights and obligations under this Agreement without the prior written consent of the other Party, except that either Party may make such assignment without the prior written consent of the other Party to an Affiliate (so long as such Party shall remain jointly and severally liable with such Affiliate with respect to all obligations so assigned).  Subject to a Party’s right to terminate this Agreement in connection with a Change in Control pursuant to Section 7.2(d), any request for consent to assignment shall not be unreasonably withheld or delayed.  Any purported assignment in contravention of this Section 11.3 shall, at the option of the non-assigning Party, be null and void and of no effect.  No assignment shall release either Party from responsibility for the performance of any accrued obligation of such Party hereunder.  This Agreement shall be binding upon and enforceable against the successor to or any permitted assignee from either of the Parties.

 

11.5          Entire Agreement; Amendments.  This Agreement, the Letter Agreement executed between the Parties on August [__], 2016 and the Exhibits referred to in this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersede all previous arrangements with respect to the subject matter hereof, whether written or oral, including without limitation the Initial Strategic Partnership Agreement, and the Prior Confidentiality Agreement.  Any amendment or modification to this Agreement shall be made in writing signed by both Parties.

 

11.6          Notices.  All communications, notices, instructions and consents provided for herein or in connection herewith shall be made in writing and be sent to the address below and will be (a) given in person, (b) sent by registered or certified mail, return receipt requested, postage prepaid, or (c) sent by a reputable international overnight courier service. Any such communication, notice, instruction or consent will be deemed to have been delivered: (i) on receipt if given in person; (ii) three (3) Business Days after it is sent by registered or certified airmail, return receipt requested, postage prepaid within the same country as the recipient’s address or five (5) Business Days after it is sent by registered or certified airmail, return receipt requested, postage prepaid from another country; or (iii) one (1) Business Day after it is sent via a reputable international overnight courier service.

 

Notices to Ginkgo shall be addressed to:

 

Ginkgo Bioworks, Inc.

27 Drydock Avenue, 8th Floor

Boston, MA 02210

Attention: CEO

Attention: General Counsel

and

 

Notices to Amyris shall be addressed to:

 

Amyris, Inc.

5885 Hollis Street, Ste. 100

Emeryville, CA 94608

Attention: CEO

Attention: General Counsel;

 

 
 

provided, however, that if either Party will have designated a different address by notice to the other Party in accordance with this Section 11.6, then to the last address so designated.

 

11.7          Force Majeure.  No failure or omission by either Party in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement or create any liability if the same shall arise from a Force Majeure Event; provided that the Party affected by such cause promptly notifies the other Party and uses diligent efforts to cure such failure or omission as soon as is practicable after the occurrence of one or more of the above mentioned causes.

 

11.8          Compliance with Laws; Anti-Corruption Laws

 

(a)                      Each Party shall perform its obligations under this Agreement in compliance with all applicable Laws.

 

(b)                     Anti-Corruption Laws.

 

(i)                 Compliance with Anti-Corruption Law. In carrying out their responsibilities and exercising their rights under this Agreement, the Parties shall, and shall ensure that their Permitted Subcontractors shall, comply with all applicable anti-corruption laws in the countries where the Parties or such Permitted Subcontractors have their principal or other places of business and where they conduct activities under this Agreement.

 

(ii)               Certain Covenants regarding Anti-Corruption. Additionally, each Party represents and warrants to the other Party that neither it nor any of its directors, employees, agents, Permitted Subcontractors or consultants will directly or indirectly pay or give or promise to pay or give anything of value to any government official or a foreign public official for purposes of (a) influencing any act or decision of any such person in his official capacity; (b) inducing such person to do or omit to do any act in violation of the lawful duty of such official; (c) securing any improper advantage; or (d) inducing such person to use his position to affect or influence any act or decision of government or any legislative, administrative, public agency or other public body, in all cases with respect to any activities undertaken relating to this Agreement. Additionally, the Parties will make reasonable efforts to comply with requests for information, including answering questionnaires and narrowly tailored audit inquiries, to enable the other Party to ensure compliance with any applicable anti-corruption laws.

 

(iii)       Breach of Anti-Corruption Covenants. The Parties agree that a breach of the anti-corruption commitments in this Section 11.7(b) shall be considered a material breach of this Agreement by the relevant Party and that the other Party may immediately seek all remedies available under law and equity including termination of this Agreement pursuant to Section 7.2(c) if the covenants under the anti-corruption commitments in this Section 11.7(b) have been breached by a Party (including by its directors, employees, agents, Permitted Subcontractors or consultants, as relevant), without owing to the other any damages or indemnification resulting solely from such termination.

 

11.9          Independent Contractors.  It is understood and agreed that the relationship between the Parties is that of independent contractors and that nothing in this Agreement shall be construed to create a joint venture or any relationship of employment, agency or partnership

 

 
 

between the Parties to this Agreement.  Neither Party is authorized to make any representations, commitments or statements of any kind on behalf of the other Party or to take any action that would bind the other Party.  Furthermore, none of the transactions contemplated by this Agreement shall be construed as a partnership for any tax purposes. Each Party shall select, employ, pay, supervise, direct and discharge all of its personnel providing services on behalf of such Party, and each Party shall be solely responsible for the payment of all wages, bonuses, benefits and any other direct or indirect compensation for such Party’s personnel, as well as worker’s compensation insurance, employment taxes and other employer liabilities relating to such personnel.

 

11.10      No Implied Waivers; Rights Cumulative.  No failure on the part of Ginkgo or Amyris to exercise, and no delay by either Party in exercising, any right, power, remedy or privilege under this Agreement, or provided by statute or at law or in equity or otherwise, shall impair, prejudice or constitute a waiver of any such right, power, remedy or privilege by such Party or be construed as a waiver of any breach of this Agreement or as an acquiescence therein by such Party, nor shall any single or partial exercise of any such right, power, remedy or privilege by a Party preclude any other or further exercise thereof or the exercise of any other right, power, remedy or privilege.

 

11.11      Severability.  If, under applicable Laws, any provision of this Agreement is invalid or unenforceable, or otherwise directly or indirectly affects the validity of any other material provision(s) of this Agreement (such invalid or unenforceable provision, a “Severed Clause”), this Agreement shall endure except for the Severed Clause.  The Parties shall consult one another and use good faith efforts to agree upon a valid and enforceable provision that is a reasonable substitute for the Severed Clause in view of the intent of this Agreement.

 

11.12      Execution in Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.  Signatures provided by facsimile transmission or in Adobe™ Portable Document Format (.pdf) sent by electronic mail shall be deemed to be original signatures.

 

11.13      No Third Party Beneficiaries.  No Person other than Amyris and Ginkgo (and their respective successors and permitted assignees) shall be deemed an intended beneficiary hereunder or have any right to enforce any obligation of this Agreement.

 

11.14      Performance by Affiliates.  Either Party may use one or more of its Affiliates to perform its obligations and duties hereunder and Affiliates of a Party are expressly granted certain rights herein; provided that each such Affiliate shall be bound by the corresponding obligations of such Party and the Parties shall remain liable hereunder for the prompt payment and performance of all their respective obligations hereunder.

 

11.15      Exhibits.  In the event of inconsistencies between this Agreement and any Exhibit hereto, the terms of this Agreement shall control.

 

 
 

Article XII.                   ANTITRUST COMMITTEE

 

12.1          Cooperation.

 

(a)                The Parties have developed and agreed to the antitrust guidelines attached in Exhibit C (“the Antitrust Guidelines”) under which the Parties shall operate and which Antitrust Guidelines are a part of this Agreement. The Parties shall establish a Subcommittee within thirty (30) days after the Effective Date to, in conjunction with counsel, to advise the Parties on such Antitrust Guidelines. If deemed appropriate by such Subcommittee, the Antitrust Guidelines may be amended.

 

(b)               In addition to the foregoing, the Parties acknowledge that this Agreement relates to the operations of the Parties in the Field only. The Parties further stipulate that they do not have any agreement on any topic outside the Field, and they shall not have any agreement on any topic outside the Field unless such agreement is stated in writing, reviewed by the Antitrust Committee, and approved by each Party’s counsel.

 

 

 

 

 

 

 

[***Remainder of the Page Intentionally Left Blank; Signature Page to Follow***]

 

 

 

 
 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

 

 

AMYRIS, INC.

 

 

By: /s/ John Melo                            

John Melo

Chief Executive Officer

 

 

 

GINKGO BIOWORKS, INC.

 

 

By: /s/ Jason Kelly                         

Jason Kelly

Chief Executive Officer

 

 

 

 
 

EXHIBIT 1.5

 

 

Per Section 1.5, any agreements entered between Amyris and a Third Party before the Effective Date is not an Amyris Customer Agreement, because, by definition, they are not agreements entered during the Term. These include, but are not limited to:

 

Services Agreement dated [*], between Amyris and [*].

 

Collaboration Agreement dated October 28, 2014, between Amyris and Genome Compiler Corporation and Genome Compiler Israel Ltd. (acquired by Twist Bioscience)

 

GLS Inbound Services Agreement dated [*], between Amyris and [*]

 

Collaboration Agreement dated [*] between Amyris and [*]

 

Collaboration Agreement dated June 30, 2014 among Amyris, Amyris Brazil, Braskem, S.A., Braskem America, Inc. and Manufacture Francaise Des Pneumatiques Michelin

 

Joint Development and License Agreement dated April 23, 2013 between Amyris and International Flavors & Fragrances Inc.

 

Second Amended and Restated Collaboration Agreement dated March 28, 2014 between Amyris and Kuraray Co., Ltd.

 

Any agreement with a Governmental Entity (including the Technology Investment Agreement between Amyris and DARPA concerning [*]; Agreement No.: HR0011-15-3-0001)

 

Development Agreement dated June 6, 2014 between Amyris and Takasago International Corporation

 

Collaboration Agreement dated [*] between Amyris and [*]

 

Amended & Restated Jet Fuel License Agreement dated March 21, 2016 between Amyris and Total Amyris BioSolutions N.V.

 

License Agreement regarding Diesel Fuel in the EU dated March 21, 2016 between Amyris and Total Energies Nouvelles Activités USA

 

Technology License, Development, Research and Collaboration Agreement dated June 21, 2010 between Amyris and Total Energies Nouvelles Activités USA (as assignee of Total Gas & Power USA Biotech, Inc.)

 

Amended & Restated IP License Agreement dated July 19, 2016 between Amyris and Novvi LLC

 

Letter Agreement dated April 8, 2016 between Amyris and the Bill & Melinda Gates Foundation

 

[*]

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.5

 

Research Collaboration Agreement dated June 6, 2016 between Amyris and Janssen Biotech, Inc.

 

U.S. Master Services Agreement dated July 28, 2016 between Amyris and Biogen, MA, Inc.

 

Any agreements between Amyris and a Third Party entered during the Term that pertain primarily to the [*], are not Amyris Customer Agreements.

 

Any agreement between Amyris and a Third Party entered during the Term under which Amyris and the Third Party are engaged in the [*] are not Amyris Customer Agreements.

 

Except for the Products included in Exhibit 6.2(a), any agreement between Amyris and a Third Party entered during the Term, which is a [*], is not an Amyris Customer Agreement.

 

Any agreement between Amyris and a Third Party entered during the Term under which Amyris and the Third Party are engaged in [*]

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.13 - AMYRIS

 

 

“Control” is limited by the restrictions set forth in all agreements, each as amended from time-to-time, to which Amyris is a party as of the Effective Date, including without limitation the following:

 

Collaboration Agreement dated March 13, 2013 between Amyris and Firmenich SA

 

Supply Agreement dated September 26, 2014 between Amyris and Firmenich SA

 

Collaboration Agreement dated June 23, 2016 between Amyris and Givaudan International SA

 

Collaboration Agreement dated [*] between Amyris and [*]

 

Collaboration Agreement dated June 30, 2014 among Amyris, Amyris Brazil, Braskem, S.A., Braskem America, Inc. and Manufacture Francaise Des Pneumatiques Michelin

 

Joint Development and License Agreement dated April 23, 2013 between Amyris and International Flavors & Fragrances Inc.

 

Amended and Restated Research Agreement dated February 14, 2011 between Amyris and Givaudan Schweiz AG

 

Second Amended and Restated Collaboration Agreement dated March 28, 2014 between Amyris and Kuraray Co., Ltd.

 

Technology Investment Agreement between Amyris, Inc. and DARPA concerning [*]; Agreement No.: HR0011-15-3-0001

 

Development Agreement dated June 6, 2014 between Amyris and Takasago International Corporation

 

Collaboration Agreement dated [*] between Amyris and [*]

 

Research and Development Agreement dated April 3, 2014 between Amyris and BASF SE

 

Amended & Restated Jet Fuel License Agreement dated March 21, 2016 between Amyris and Total Amyris BioSolutions N.V.

 

License Agreement regarding Diesel Fuel in the EU dated March 21, 2016 between Amyris and Total Energies Nouvelles Activités USA

 

Technology License, Development, Research and Collaboration Agreement dated June 21, 2010 between Amyris and Total Energies Nouvelles Activités USA (as assignee of Total Gas & Power USA Biotech, Inc.)

 

Amended & Restated IP License Agreement dated July 19, 2016 between Amyris and Novvi LLC

 

Letter Agreement dated April 8, 2016 between Amyris and the Bill & Melinda Gates Foundation

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.13 - AMYRIS

 

 

[*]

 

Research Collaboration Agreement dated June 6, 2016 between Amyris and Janssen Biotech, Inc.

 

U.S. Master Services Agreement and Statement of Work Number 1 dated July 25, 2016 between Amyris and Biogen MA Inc.

 

 

 

 

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.13 - GINKGO

 

“Control” is limited by the restrictions set forth in all agreements, each as amended from time-to-time, to which Ginkgo is a party as of the Effective Date, including without limitation the following:

 

Non-Disclosure Agreement, dated March 6, 2012, between Ginkgo and [*], as amended on June 9, 2012

 

Collaboration agreement, dated July 2, 2012, between Ginkgo and [*], as amended on April 2, 2013, July 2, 2014, and February 10, 2016

 

Master Collaboration Agreement, dated July 4, 2014, between Ginkgo and [*], as amended on August 12, 2014, and [*] dated August 12, 2014, May 1, 2015, and October 25, 2015 thereunder

 

Master Collaboration Agreement, dated October 22, 2014, between Ginkgo and [*]

 

Chemical Commercialization Program Agreement, dated July 22, 2013, between Ginkgo and [*]

 

Master Laboratory Study Agreement, dated February 1, 2014, between Ginkgo and [*], and the [*] dated February 6, 2014 and October 27, 2014

 

Master Collaboration Agreement and [*] thereunder, dated February 27, 2014, between Ginkgo and [*].

 

Collaboration Agreement, dated November 28, 2014, between Ginkgo and [*]

 

Evaluation Agreement, dated August 6, 2014, between Ginkgo and [*], as amended on February 12, 2015

 

Collaboration Agreement, dated August 5, 2015, between Ginkgo and [*]

 

Extension Agreement, dated August 5, 2016, between Ginkgo and [*]

 

Master Agreement for Services, dated January 9, 2014, between Ginkgo and [*]

 

Master Agreement for Research Collaboration and Statement of Work Number 1, dated December 10, 2014, between Ginkgo and [*], as amended on October 6, 2015

 

Professional Services Agreement, dated October 15, 2015, between Ginkgo [*]

 

Collaboration and License Agreement, dated December 8, 2015, between Ginkgo and [*]

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.13 - GINKGO

 

Research Services Agreement, dated June 30, 2016 between Ginkgo and [*]

 

Collaboration and License Agreement, dated June 1, 2016, between Ginkgo and [*]

 

Collaboration and License Agreement, dated May 24, 2016, between Ginkgo and [*]

 

Collaboration and License Agreement, dated May 2, 2016 between Ginkgo and [*]

 

Collaboration Agreement, dated August 7, 2016 between Gingko and [*]

 

Professional Service Agreement, dated July 28, 2016 between Ginkgo and [*]

 

Collaboration and License Agreement, dated August 3, 2016 between Ginkgo and [*]

 

Collaboration and License Agreement, dated June 10, 2016 between Ginkgo and [*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.13 - GINKGO

 

 

[*]

 

[*]

 

[*]

 

[*]

 

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.23

 

Per Section 1.23, any agreements entered between Ginkgo and a Third Party before the Effective Date are not Ginkgo Customer Agreements, because, by definition, they are not agreements entered into during the Term. These include, but are not limited to:

 

Collaboration agreement, dated July 2, 2012, between Ginkgo and [*], as amended on April 2, 2013, July 2, 2014, and February 10, 2016

 

Master Collaboration Agreement, dated July 4, 2014, between Ginkgo and [*], as amended on August 12, 2014, and [*] dated August 12, 2014, May 1, 2015, and October 25, 2015 thereunder (as it relates to the scale-up and manufacture of [*])

 

Master Collaboration Agreement, dated October 22, 2014, between Ginkgo and [*]

 

Chemical Commercialization Program Agreement, dated July 22, 2013, between Ginkgo and [*]

 

Master Laboratory Study Agreement, dated February 1, 2014, between Ginkgo and [*], and the [*] dated February 6, 2014 and October 27, 2014

 

Master Collaboration Agreement and the Ingredient Commercialization Programs thereunder, dated February 27, 2014, between Ginkgo and [*]

 

Collaboration Agreement, dated November 28, 2014, between Ginkgo and [*]

 

Collaboration Agreement, dated August 5, 2015, between Ginkgo and [*]

 

Extension Agreement, dated August 5, 2016, between Ginkgo and [*]

 

Master Agreement for Services, dated January 9, 2014, between Ginkgo and [*]

 

Master Agreement for Research Collaboration and Statement of Work Number 1, dated December 10, 2014, between Ginkgo and [*], as amended on October 6, 2015.

 

Professional Services Agreement, dated October 15, 2015, between Ginkgo and [*]

 

Collaboration and License Agreement, dated December 8, 2015, between Ginkgo and [*]

 

Research Services Agreement, dated June 30, 2016 between Ginkgo and [*]

 

Collaboration and License Agreement, dated June 1, 2016, between Ginkgo and [*]

Collaboration and License Agreement, dated May 24, 2016, between Ginkgo and [*]

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.23

 

 

Collaboration and License Agreement, dated May 2, 2016 between Ginkgo and [*]

 

Collaboration Agreement, dated August 7, 2016 between Gingko and [*]

 

Professional Service Agreement, dated July 28, 2016 between Ginkgo and [*]

Collaboration and License Agreement, dated August 3, 2016 between Ginkgo and [*]

 

Collaboration and License Agreement, dated June 10, 2016 between Ginkgo and [*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

Any agreements between Ginkgo and a Third Party entered during the Term that pertain primarily to the [*] are not Ginkgo Customer Agreements

 

Any agreements between Ginkgo and a Third Party entered during the Term under which Ginkgo and the Third Party are engaged in the [*] are not Ginkgo Customer Agreements.

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.23

 

Any agreements between Ginkgo and a Third Party entered during the Term under which Ginkgo and the Third Party are engaged in the [*].

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 1.34

 

“Non-Collaboration Intellectual Property” includes:

 

1.Intellectual Property conceived, discovered, developed or otherwise made or obtained for products and/or activities primarily related to production of macromolecules, including without limitation, bioactive macromolecules, proteins, nucleic acids, and polymers.

 

 

2.Intellectual Property conceived, discovered, developed or otherwise made or obtained for products and/or activities related to any agreements between Amyris and a customer to produce any molecules in the Field using a program developed through an agreement between Amyris and a Governmental Entity.

 

 

3.Intellectual Property conceived, discovered, developed or otherwise made or obtained from Amyris’s work related to the development, manufacture, or commercialization of products that do not contemplate the use of microbial strains and fermentation technologies, such as downstream chemical processing of compounds.

 

 

4.Intellectual Property conceived, discovered, developed or otherwise made or obtained from Amyris’s valorization and/or co-production work related to spent microbial cells.

 

 
 

EXHIBIT 3.1

 

PAYING AGENT AGREEMENT

 

This Paying Agent Agreement (this “Agreement”), dated as of [______], 2016, is by and among: (i) Ginkgo Bioworks, Inc., a Delaware corporation (“Ginkgo”); (ii) Amyris, Inc., a Delaware corporation (“Amyris” and together with “Ginkgo”, sometimes referred to individually as a “Party” and collectively as the “Parties”); and (iii) Citibank, N.A as paying agent (the “Paying Agent”).

 

Introduction

 

Ginkgo and Amyris have entered into a Collaboration Agreement, dated as of September 12, 2016 (the “Collaboration Agreement”), which provides, among other things, for Ginkgo and Amyris to form an alliance in the Field, on the terms and conditions set forth in the Collaboration Agreement.

 

Ginkgo and Amyris acknowledge that the Paying Agent is not a party to, is not bound by, and has no duties or obligations under, the Collaboration Agreement, that all references in this Agreement to the Collaboration Agreement are for convenience, and that the Paying Agent shall have no implied duties beyond the express duties set forth in this Agreement.

 

The Paying Agent has agreed to hold and administer the Fund in accordance with the terms and conditions of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

 

 

AGREEMENT

 

1.                  Definitions. Except as hereinafter defined, capitalized terms used in this Agreement will have the meanings assigned to such terms in the Collaboration Agreement. As used herein, the following terms shall have the following respective meanings:

 

Business Day” means any day that is not a Saturday, Sunday, or other day in which the Paying Agent is authorized or obligated by law or executive order to be closed.

 

Deposit” means payment of the entire amount of an invoice, which will equal the sum, minus any credits, of (i) the Actual Cost of Goods Sold for the Product in the quantity purchased, (ii) ten percent (10%) of such Actual Cost of Goods Sold, (iii) 100% of any taxes owed, (iv) any fees owed to Third Parties, and (v) any debits.

 

Fund” means the amount held by the Paying Agent pursuant to this Agreement.

 

Joint Written Instructions” means a written notice in substantially the form attached as Exhibit C hereto given to the Paying Agent directing the disbursement of the Fund, or any

 

 

 
 

portion thereof, which shall be signed by an authorized signer of each of Ginkgo and Amyris set forth on Exhibits A-1 and A-2 attached hereto.

 

2.                  Appointment of the Paying Agent. Ginkgo and Amyris hereby designate and appoint Citibank, N.A. as the Paying Agent for the purposes set forth herein, and the Paying Agent hereby accepts such appointment on the terms herein provided. The Paying Agent shall constitute the agent of the Parties hereto solely to the extent required to execute its duties hereunder.

 

3.                  Deposit(s); Commencement of Duties. Beginning on the date hereof, in accordance with the Collaboration Agreement, Ginkgo and Amyris shall instruct their customers to make all payments of invoices (including any credit or debit memos thereto) issued pursuant to the applicable Customer Agreement(s) directly to the Paying Agent in accordance with the wire instructions attached hereto as Attachment A. The Paying Agent shall provide Ginkgo and Amyris with online access to the Paying Agent’s reporting system to confirm Deposits made. Ginkgo and Amyris shall provide the Paying Agent with the appropriate documentation for a customer that the Paying Agent may request to complete the identity verification process prior to such customer providing a Deposit to the Fund.

 

4.                  Maintenance of Fund. During the term of this Agreement, the Paying Agent shall hold and safeguard the Fund in accordance with this Agreement and shall disburse the Fund, or any portion(s) thereof, only in accordance with this Agreement. As between Ginkgo and Amyris, the Fund shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any Party except as otherwise provided in Section 28 below, and shall be held and distributed solely for the purposes and in accordance with this Agreement.

 

5.                  Investment of Fund; Tax and Other Reporting.

 

(a)                No Permitted Investments. The Paying Agent shall maintain the Fund in a “noninterest-bearing deposit account” insured by the Federal Deposit Insurance Corporation (“FDIC”) to the applicable limits.

 

(b)               Tax Treatment. The Parties hereby represent to the Paying Agent no tax reporting of any kind is required giving rise to this Agreement.

 

(c)                RESERVED .

 

(d)               Statements of Account. The Paying Agent shall provide Ginkgo and Amyris with monthly statements of the balance of the account(s) in which the Fund is held showing, the beginning and ending balance for the applicable period, Deposits made into, and distributions made from, the Fund during the applicable period.

 

6.                  Distribution of Fund.

 

(a)                Disbursements upon Joint Written Instructions. Ginkgo and Amyris may, at such times as required pursuant to the Collaboration Agreement or at any other time, execute and deliver Joint Written Instructions to the Paying Agent setting forth payment instructions for amounts to be distributed from the Fund, and the Paying Agent shall distribute the Fund, or

 

 
 

portion(s) thereof, in accordance therewith promptly (and in any event, within one (1) Business Day) following receipt by the Paying Agent of each such Joint Written Instructions and responses from the authorized representatives under the Agreement for security callbacks.

 

(b)               Wire Transfers. Any distributions of all or any portion of the Fund made to a Party shall be made by wire transfer of immediately available funds to such Party pursuant to wire instructions provided in writing to the Paying Agent by such Party.

 

7.                  Reliance by the Paying Agent; Liability of the Paying Agent.

 

(a)                The Paying Agent may rely upon any written notice, request, waiver, consent, certificate, receipt, authorization or other paper or document with respect to the Fund that the Paying Agent reasonably believes to be genuine and what it purports to be. The Paying Agent may confer with its counsel in the event of any dispute or question as to the construction of any of the provisions hereof, or its duties hereunder, and shall incur no liability and shall be fully protected in acting in accordance with the written opinions of such counsel. The duties of the Paying Agent hereunder will be limited to the observance of the express provisions of this Agreement and any Joint Written Instructions. The Paying Agent will not be subject to, or be obliged or entitled to recognize, any other agreement between the parties hereto or directions or instructions not specifically set forth (or as provided for) herein. The Paying Agent will not make any distribution of any portion of the Fund that is not expressly authorized pursuant to this Agreement. The Paying Agent will not be liable to any party hereto for any action taken or not taken by it in good faith under the terms hereof in the absence of gross negligence or willful misconduct on the part of the Paying Agent.

 

(b)               The Paying Agent undertakes to perform only such duties as are expressly set forth herein or in this Agreement and no duties shall be implied. The Paying Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. The Paying Agent shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction finally adjudicates that the Paying Agent’s gross negligence or willful misconduct was the primary cause of any loss to Ginkgo or Amyris. The Paying Agent’s sole responsibility with respect to the Fund shall be for the safekeeping and disbursement of the Fund in accordance with the terms of this Agreement. The Paying Agent is obligated only to perform the duties specifically set forth in this Agreement, which shall be deemed purely ministerial in nature. Under no circumstance will the Paying Agent be deemed to be a fiduciary to any Party or any other person under this Agreement. The Paying Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein or in Joint Written Instructions. The Paying Agent shall not be obligated to take any legal action or commence any proceeding in connection with the Fund, any accounts in which the Fund is deposited, this Agreement, or to appear in, prosecute or defend any such legal action or proceeding. The Paying Agent shall not be responsible or liable in any manner for the performance by any other Party of such other Party’s obligations under the Collaboration Agreement nor shall the Paying Agent be responsible or liable in any manner for the failure of any other Party to honor any of the provisions of this Agreement. The Paying Agent may consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any

 

 
 

dispute involving any Party , and shall incur no liability whatsoever in acting in good faith in accordance with the written opinion or written instruction of such counsel. Ginkgo and Amyris shall be responsible to pay the reasonable fees of the Paying Agent’s outside counsel in accordance with the provisions of Section 9 hereof; provided, however, solely as between Ginkgo and Amyris, each of Amyris, on the one hand, and Ginkgo, on the other hand, agrees between them that it will pay 50% of such fees if any, and each of Amyris, on the one hand, and Ginkgo, on the other hand, shall fully indemnify the other in the event that it pays the other such Party’s portion of such amount.

 

(c)                The Paying Agent shall not be liable, directly or indirectly, for any (i) damages, losses or expenses arising out of the services provided hereunder, other than damages, losses or expenses which have been finally adjudicated to have directly resulted from the Paying Agent’s gross negligence or willful misconduct or (ii) special, indirect, punitive, or consequential damages or losses of any kind whatsoever (including without limitation lost profits), even if the Paying Agent has been advised of the possibility of such losses or damages and regardless of the form of action.

 

8.                  Indemnification of the Paying Agent. Ginkgo and Amyris, jointly and severally, hereby agree that each shall to the fullest extent permitted by law, defend, indemnify and hold the Paying Agent and each director, officer, employee and agent of the Paying Agent (the “Agent Indemnified Parties”) harmless from and against any and all actions, claims (whether or not valid), losses, costs, liabilities, damages or expenses of any kind or nature whatsoever (including, but not limited to, reasonable attorneys’ fees, costs and expenses) incurred by or asserted against the Agent Indemnified Parties from and after the date hereof (a) in connection with the negotiation, preparation, execution, performance of this Agreement or any transactions contemplated herein,; provided, however, that such Agent Indemnified Party shall not have the right to be indemnified hereunder for any liability finally adjudicated by a court of competent jurisdiction, subject to no further appeal, to have the gross negligence or willful misconduct of such Agent Indemnified Party; or (b) its following any joint instructions from Ginkgo and Amyris, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. Each of the Agent Indemnified Parties shall, in its reasonable discretion, have the right to select and employ separate counsel with respect to any action or claim brought or asserted against it, and the reasonable fees of such outside counsel shall be paid upon presentation of evidence thereof reasonably satisfactory to Ginkgo and Amyris in the form of customary invoices. The obligations of Amyris and Ginkgo under this Section 8 shall survive any termination of this Agreement and the resignation or removal of the Paying Agent.

 

Solely as between the Parties, Ginkgo and Amyris agree that the payment by Ginkgo or Amyris of any claim by the Paying Agent for indemnification hereunder shall not impair, limit, modify or affect, as between Ginkgo, on the one hand, or Amyris, on the other hand, the respective rights and obligations of Ginkgo, on the one hand, or Amyris, on the other hand, under the Collaboration Agreement.

 

9.                  Fees and Expenses of the Paying Agent. Ginkgo, on the one hand, and Amyris, on the other, shall each pay 50% of the fees and expenses of the Paying Agent owed to it on the date hereof for its services hereunder in accordance with the Fee Schedule attached hereto as Exhibit B. The fee agreed upon for the services rendered hereunder is intended as full

 

 
 

compensation for the Paying Agent’s services as contemplated by this Agreement. The Paying Agent is hereby granted the right to set off and deduct from the Fund any fees, expenses and indemnification rights owed to the Paying Agent under this Agreement that remain unpaid, unreimbursed, and/or unsatisfied after notice to Ginkgo and Amyris of such set-off and a reasonable opportunity to cure. Solely between Ginkgo and Amyris , each of Amyris, on the one hand, and Ginkgo, on the other hand, agrees between them that it will pay 50% of all amounts payable under this Section 9, if any, and each of Amyris, on the one hand, and Ginkgo, on the other hand, shall fully indemnify the other in the event that it pays the other such Party’s portion of such amount.

 

10.              Resignation and Removal of the Paying Agent. The Paying Agent may resign from its duties hereunder by giving each of the Parties not less than 30 days’ prior written notice of the effective date of such resignation. The Paying Agent may be removed by joint written direction of Ginkgo and Amyris upon 30 days’ prior written notice. Ginkgo and Amyris shall appoint a substitute Paying Agent prior to the effective date of a resignation or removal of the Paying Agent. The substitute Paying Agent shall fulfill the duties of the Paying Agent hereunder for the remaining term of this Agreement and such substitute Paying Agent shall be a recognized bank or trust company. Upon the effective date of such successor’s appointment, the Paying Agent will take all appropriate action to transfer all funds and other property including notices or other written communications to such successor, who shall thereafter be the “Paying Agent” under this Agreement. If a successor paying agent has not been appointed or has not accepted such appointment by the end of such 30-day period, the Paying Agent may apply to a court of competent jurisdiction for the appointment of a successor paying agent, and Ginkgo and Amyris shall each pay the reasonable and documented costs and expenses (including reasonable attorneys’ fees) which are incurred in connection with such proceeding. Solely between Ginkgo and Amyris, each of Amyris, on the one hand, and Ginkgo, on the other hand, agrees between them that it will pay 50% of all amounts payable under this Section 10, if any, and each of Amyris, on the one hand, and Ginkgo, on the other hand, shall fully indemnify the other in the event that it pays the other such Party’s portion of such amount. Until a successor paying agent has accepted such appointment and the Paying Agent has transferred the Fund to such successor paying agent or an interpleader action has been commenced with the payment of the Fund into a court of competent jurisdiction, the Paying Agent shall continue to retain and safeguard the Fund until receipt of Joint Written Instructions or otherwise pursuant to the terms of this Agreement. Upon delivery of the Fund to a successor paying agent in accordance with this Section 10, the Paying Agent shall thereafter be discharged from any further obligations hereunder except for any liability accruing hereunder prior to such delivery. Any corporation or association into which the Paying Agent may be merged or converted or with which it may be consolidated, or any corporation or association to which all or substantially all of the escrow business of the Paying Agent’s line of business may be transferred, shall be the Paying Agent under this Agreement without further act.

 

11.              Notices. All notices, demands or other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person, by e-mail with a signed PDF attachment or fax, by United States mail, certified or registered with return receipt requested, or by a nationally recognized overnight courier service, or otherwise actually delivered:

 

 

 
 

If to Amyris, to:                                    Amyris, Inc.

5885 Hollis Street, Ste. 100 

Emeryville, CA 94608 

Attn: [_________] 

Fax: 

Email:

 

 

 

If to Ginkgo, to:                                     Ginkgo Bioworks, Inc.

27 Drydock Avenue, 8th Floor 

Boston, MA 02210 

Attn: CEO 

Attn: General Counsel 

Email:

 

 

 

If to the Paying Agent, to:                                  Citibank, N.A

153 East 53rd St, 21st Fl

New York, NY 10022

Attn:

Fax:

e-mail:

 

or at such other address as may have been furnished by such person in writing to the other parties. Any such notice, demand or communication shall be deemed given on the date given, if delivered in person, e-mailed or faxed or otherwise actually delivered, on the date received, if given by registered or certified mail, return receipt requested or given by overnight delivery service, or three days after the date mailed, if otherwise given by first class mail, postage prepaid.

 

 

12.              Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any Party without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns, and no other person shall have any right, benefit or obligation under this Agreement as a third-party beneficiary or otherwise. Notwithstanding the preceding two sentences, Ginkgo may (i) assign this Agreement and any of its interests, rights and obligations in, to and with respect to this Agreement to any of Ginkgo’s affiliates or any Person acquiring a material portion of the assets, business or securities of the Company or the Ginkgo, whether by merger, consolidation, sale of assets or securities or otherwise and/or (ii) collaterally assign its rights and remedies under this Agreement to any agents and lenders (and their successors and assigns and whether current or future) providing financing to Ginkgo or its affiliates; provided however, that Ginkgo shall provide the Paying Agent with reasonable advance notice of any such assignment and cause such assignee(s) to comply with all reasonable requests for information by the Paying Agent pursuant to Section 21 of this Agreement. The undersigned acknowledge and agree that, notwithstanding any such assignment, Ginkgo shall remain liable under this Agreement to observe and perform all of the conditions and obligations herein contained to be observed and performed by Ginkgo, and that neither a collateral assignment, nor any action taken pursuant thereto, shall cause the agents or lenders providing the debt financing (or their affiliates, successors or assigns) to have any

 

 
 

obligation or liability in any respect whatsoever to any party to this Agreement for the observance or performance of any of the representations, warranties, conditions, covenants, agreements or terms contained in this Agreement. Any assignment of interest shall be noted in writing to the Paying Agent and such new person or entity shall provide any necessary due diligence documentation to the Paying Agent as it may request. Notwithstanding anything to the contrary in this Section 12, in no event shall the Paying Agent be obligated hereunder to (x) make any payments from the Fund directly to any assignee of any rights under this Agreement, or (y) obey any written instructions delivered pursuant hereto from any assignee of Ginkgo of any rights under this Agreement, unless, in the case of clauses (x) and (y), such assignee has become a Party to this Agreement.

 

13.              Amendment and Termination; Waiver. This Agreement may be amended by and upon written notice to the Paying Agent given by both Ginkgo and Amyris, but the duties and responsibilities of the Paying Agent may not be modified in any way whatsoever without its written consent. This Agreement will terminate on the date on which the entire Fund has been distributed, except such provisions, including without limitation Section 8 and Section 9 hereof, which by their terms are intended to survive any such distribution. No waiver by any party with respect to any condition, default or breach of covenant hereunder shall be deemed to extend to any prior or subsequent condition, default or breach of covenant hereunder or affect in any way any rights arising prior or subsequent to such occurrence.

 

14.              Multiple Counterparts; Electronic Delivery. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures to this Agreement transmitted by facsimile transmission, electronic mail in “portable document format” (.pdf) or any other electronic means shall have the same effect as physical delivery of the paper document bearing the original signature.

 

15.              Invalidity. In the event that any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement.

 

16.              Titles. The titles, captions or headings of the sections herein are for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

 

17.              Cumulative Remedies. All rights and remedies of any party hereto are cumulative of each other and of every other right or remedy such party may otherwise have at law or in equity, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies.

 

18.              Choice of Law; Forum; WAIVER OF JURY TRIAL. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles. Any proceeding arising out of or relating to this Agreement shall be brought only in the federal courts located in the State of New York. The parties hereto consent to and agree (i) to submit to the jurisdiction of any of the courts specified herein, (ii) to accept

 

 
 

service of process to vest personal jurisdiction over them in any of these courts and (iii) that this provision may be filed with any court as written evidence of the knowing and voluntary irrevocable agreement between the parties to waive any objections to jurisdiction, to venue or to convenience of forum. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE DOCUMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

19.              Specific Performance. In addition to any and all other remedies that may be available at law in the event of any breach of this Agreement, Ginkgo and Amyris t shall be entitled to specific performance of the agreements and obligations of the Parties and to such other injunctive or other equitable relief as may be granted by a court of competent jurisdiction.

 

20.              Entire Agreement; Conflict. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes any prior understandings, agreements or representations by or among the parties, written or oral, with respect to the subject matter hereof; provided, that nothing in this Agreement shall or shall be deemed to modify or alter the respective rights and obligations of the parties to the Collaboration Agreement as set forth in therein and, in furtherance of the foregoing, the parties hereto agree and acknowledge that, as between the Parties, to the extent any terms and provisions of this Agreement are in any way inconsistent with or conflict with any term, condition or provision of the Collaboration Agreement (as between parties other than the Paying Agent), the Collaboration Agreement shall govern and control , the terms and conditions of this Agreement shall control the actions of the Paying Agent. Unless and until the Paying Agent shall be notified in writing that an inconsistency or a conflict exists between this Agreement and the Collaboration Agreement, it shall be entitled to assume that no such inconsistency or conflict exists.

 

21.              Patriot Act. To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a trust or other legal entity, the Paying Agent may ask for documentation to verify its formation and existence as a legal entity. The Paying Agent may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity, or other relevant documentation.

 

22.              Force Majeure. No party shall be liable or responsible to the other parties, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire or explosion; (c) war, invasion, riot or other civil unrest; (d) government order or law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; and (g) national or regional emergency (each a “Force Majeure Event”).

 

 
 

26. Security Procedure For Funds Transfers. The Paying Agent shall confirm each funds transfer instruction received in the name of a Party listed on Exhibit A-1 or Exhibit A-2 attached hereto, which upon receipt by the Paying Agent shall become a part of this Agreement. Once delivered to the Paying Agent, Exhibit A-1 or Exhibit A-2 may be revised or rescinded only by a writing signed by an authorized representative of the Party. Such revisions or rescissions shall be effective only after actual receipt and following such period of time as may be necessary to afford the Paying Agent a reasonable opportunity to act on it. If a revised Exhibit A-1 or A-2 or a rescission of an existing Exhibit A-1 or A-2 is delivered to the Paying Agent by an entity that is a successor-in-interest to such Party, such document shall be accompanied by additional documentation satisfactory to the Paying Agent showing that such entity has succeeded to the rights and responsibilities of the Party under this Agreement. In the event a Joint Written Instruction is delivered to the Paying Agent, whether in writing, by telecopier or otherwise, the Paying Agent is authorized to seek confirmation of such instruction by telephone call back to the person or persons designated in Exhibits A-1 and or A-2 annexed hereto (the “Call Back Authorized Individuals”), and the Paying Agent may rely upon the confirmations of anyone purporting to be a Call Back Authorized Individual. To assure accuracy of the instructions it receives, the Paying Agent may record such call backs. If the Paying Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for call backs may be changed only in writing, executed by authorized signers of the applicable Party set forth on Exhibits A-1 and A-2 and actually received and acknowledged by the Paying Agent. Each of Ginkgo and Amyris understand that the Paying Agent’s inability to receive or confirm funds transfer instructions pursuant to the security procedure selected by such party may result in a delay in accomplishing such funds transfer, and agree that the Paying Agent shall not be liable for any loss caused by any such delay.

 

27.       Use of Citibank Name. No printed or other material in any language, including prospectuses, notices, reports, and promotional material which mentions "Citibank" by name or the rights, powers, or duties of the Paying Agent under this Agreement shall be issued by any other parties hereto, or on such party’s behalf, without the prior written consent of the Paying Agent.

 

28. Compliance with Court Orders. In the event that the Fund shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Agreement, the Paying Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction, and in the event that the Paying Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the Parties hereto or to any other person, by reason of such compliance notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.

 

 

 

[Signature Page Follows]

 

 
 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

 

 

 

GINKGO BIOWORKS, INC.

 

By:______________________________
Name: Jason Kelly
Title: Chief Executive Officer

 

AMYRIS, INC.

 

By:______________________________
Name: John Melo
Title: Chief Executive Officer

 

CITIBANK, N.A.

 

By:______________________________
Name:
Title:

 

 

 

 

 

 

 

[ Signature Page to Paying Agent Agreement ]

 
 

Attachment A

 

 

[Note to draft: To be provided.]

 

 

 

 

 

 

 

 

 

 

 

 

 
 

EXHIBIT A-1

 

Certificate as to Amyris Authorized Signatures

 

 

 

The specimen signatures shown below are the specimen signatures of the individuals who have been designated as authorized representatives of Amyris and are authorized to initiate and approve transactions of all types for the accounts established under this Paying Agent Agreement, on behalf of Amyris. The below listed persons (must list at least two individuals) have also been designated Call Back Authorized Individuals and will be notified by Citibank N.A. upon the release of all or a portion of the Fund from the applicable account(s) unless an original “Standing or Predefined Instruction” letter is on file with the Paying Agent.

 

Name / Title /Telephone # Specimen Signature

___ ________________
Name

 

____ __________ _
Title

 

____ __________ _
Telephone #

___________________________
Signature
   

______________________________
Name

 

______________________________
Title

 

______________________________
Telephone #

_____________________________
Signature
   

______________________________
Name

 

______________________________
Title

 

______________________________
Telephone #

_____________________________
Signature

 

 
 

EXHIBIT A-2

 

Certificate as to Ginkgo Authorized Signatures

 

 

 

The specimen signatures shown below are the specimen signatures of the individuals who have been designated as authorized representatives of Ginkgo and are authorized to initiate and approve transactions of all types for the accounts established under this Paying Agent Agreement, on behalf of Ginkgo. The below listed persons (must list at least two individuals) have also been designated Call Back Authorized Individuals and will be notified by Citibank N.A. upon the release of all or a portion of the Fund from the applicable account(s) unless an original “Standing or Predefined Instruction” letter is on file with the Paying Agent.

 

Name / Title /Telephone # Specimen Signature

______________________________
Name

 

______________________________
Title

 

______________________________
Telephone #

_____________________________
Signature

 

 

 

______________________________
Name

 

______________________________
Title

 

______________________________
Telephone #

_____________________________
Signature

 

 

 

______________________________
Name

 

______________________________
Title

 

______________________________
Telephone #

_____________________________
Signature

 

 

 

 
 

Exhibit B

 

 

 

PAYING AGENT FEE SCHEDULE

 

Citibank, N.A., Paying Agent

 

Acceptance Fee

 

To cover the acceptance of the Paying Agency appointment, the study of the Paying Agent Agreement, and supporting documents submitted in connection with the execution and delivery thereof, and communication with other members of the working group:

 

Fee: WAIVED

 

Administration Fee

 

The annual administration fee covers maintenance of the Fund including safekeeping of assets in the Fund, normal administrative functions of the Paying Agent, including maintenance of the Paying Agent’s records, follow-up of the Paying Agent Agreement’s provisions, and any other safekeeping duties required by the Paying Agent under the terms of the Paying Agent Agreement. Fee is based on Fund being deposited in a non-interest bearing transaction deposit account, FDIC insured to the applicable limits.

 

Fee: $3,500.00 annually

 

Tax Preparation Fee

 

To cover preparation and mailing of Forms 1099-INT, if applicable for the parties for each calendar year:

 

Fee: WAIVED

 

Transaction Fees

 

To oversee all required disbursements or release of property from the Fund to any party, including cash disbursements made via check and/or wire transfer, fees associated with postage and overnight delivery charges incurred by the Paying Agent as required under the terms and conditions of the Paying Agent Agreement:

 

Fee: WAIVED

 

 
 

Other Fees

 

 

 

Material amendments to the Paying Agent Agreement: additional fee(s), if any, to be discussed at time of amendment

 

 

 

 
 

Exhibit C

 

 

 

 

 

FORM OF JOINT WRITTEN INSTRUCTION

 

 
 

EXHIBIT 4.1

  

TECHNICAL DEVELOPMENT PLAN

 

This Technical Development Plan (“TDP”) is dated (month) _(day)__ of (year). This TDP hereby incorporates by reference the terms and conditions of the Collaboration Agreement.

 

I.                   Product and Product Application (e.g. field of use from contract)

Include name, InChl and FEMA and/or CAS numbers when possible

 

 

 

II.       Product(s) Specification

 

Include as much detail as possible

 

 

 

III.       Product Projections

 

Include:

 

  • Production organism
  • Maximum stoichiometric yield
  • Productivity
  • Target yield
  • Manufacturing volume (Product tonnage): volume projections for the next 5 years, assuming success.
  • Cost of goods range:
  • Selling price estimate:

 

 

IV.Background and Opportunity Summary

 

V.Project Outline

Include description of:

 

  • Key tasks (strain and process development)
  • Major deliverables (strain and process development)
  • Major project risks
  • Description of major resource requirements
  • Gantt chart mapping tasks and deliverables onto a timeline
  • R&D capital expenditures required

 

 
 

EXHIBIT 4.1

 

VI.       Additional Process and Manufacturing Plan Information

 

Include description of:

 

  • Block flow diagram for projected end to end manufacturing process
  • Brief description of envisioned physical assets required for manufacturing and any key regulatory or permitting requirements
    • Include statement about compatibility with existing Amyris facilities or other manufacturing options and whether significant capital expenditures may be necessary
  • Summary page of cost model for the Product opportunity
    • Include estimates for required rate, titer, yield (on major substrate), yield (Product recovery), and Product purity
  • Description of path from lab-scale validation to commercial production
oPackaging requirements envisioned (bulk truck, drum, totes, etc.).
oList of ingredients/raw materials required.
oCapital improvement requirements, if any
oEH&S evaluation of molecule and process for production
      • Is it TSCA listed? Reference number:
      • Detailed description of anticipated host strain (for CTNBio approval):
      • Anticipated process hazards of additional chemicals used in production:
      • Safety Data Sheet for the product, if available
      • Anticipated waste generated:
      • Air emissions anticipated:
      • Additional safety data for assessment, as requested

 

Remainder of page left intentionally blank.

 

 
 

EXHIBIT 4.1

 

IN WITNESS WHEREOF, the parties hereby have caused this Exhibit 4.1 Technical Development Plan to be included as part of the Collaboration Agreement between Amyris and Ginkgo as of the date first written above.

 

 

 

Amyris       

 

By: ________________________________

 

Name: ______________________________

 

Title: ______________________________

 

 

Ginkgo

 

 

By: ________________________________

 

Name: ______________________________

 

Title: _______________________________

 

 
 

EXHIBIT 4.4(a)

 

Manufacturing Terms

 

This Exhibit 4.4(a) sets forth the manufacturing terms and conditions (collectively, the “Manufacturing Terms”) for all Products that Amyris shall produce for a customer under an Amyris Customer Agreements or a Ginkgo Customer Agreements (“Customer”). Amyris and Ginkgo shall ensure that all provisions relating to the supply of Products under their respective Customer Agreements are consistent with the Manufacturing Terms, and that all of the Manufacturing Terms that are expressly designated for inclusion in their respective Customer Agreements are so included

 

1)The following definitions and other terms shall be included in all supply agreements between Amyris and Ginkgo for Customer Agreements (each a “Supply Agreement”):
a.Supplier: Amyris
b.Purchaser: Customer
c.Product(s): Product to be produced by Amyris for the Customer.
d.Product Specification(s): As set forth by the applicable Technical Development Plan.
e.Delivery Terms: As specified by the approved Joint Steering Committee.
f.Price: The Product price agreed to with the Customer and approved by the Joint Steering Committee.
g.Payment Terms: Not more than 30 days upon invoice.
h.Term of Supply Agreement: As approved by the Joint Steering Committee.

 

2)In the event that Product volumes for a given Customer Agreement exceed the top end of the volume estimate for such Product provided to Amyris in the most recent Product forecast, Amyris shall use commercially reasonable efforts to accommodate the production and delivery of the additional volume by the Customer’s expected delivery date. Amyris will provide an estimate for additional costs, if any, to meet the delivery date for the additional volume and will not commence work prior to receipt of Customer’s approval.

 

3)The Customer will provide Amyris with a rolling forecast for Product volumes. Each such forecast shall include quarterly volume forecasts for the next four (4) calendar quarters. Unless otherwise agreed in advance by the JSC, the volumes indicated for the first two (2) quarters of each forecast shall constitute a binding commitment to purchase such volumes in such quarters. For avoidance of doubt, once a binding forecast is provided by the Customer for a given calendar quarter, such forecast may not be amended without the prior written consent of Amyris.

 

4)Rights and limitations on use (e.g., for Program markets) consistent with the Agreement, shall be included in (or cross-referenced by) the Supply Agreement.

 

5)Amyris and Ginkgo obligations under the Agreement with respect to Strain engineering, if any, and up-scaling that is covered under Incentive Payments, concludes at the delivery of a technical transfer package that has been validated by at least one Pilot Run that is Successful. After this step, any work Amyris or Ginkgo performs is deemed part of its Product manufacturing work. 
a.“Pilot Run” is defined as fermentation at a maximum 300 liter tank capacity and associated downstream processing. Such downstream processing will include any necessary steps to achieve a result from which the final Product can be derived. For clarity, any final chemical processing steps that are industry standard and proven may be excluded from a Pilot Run.
b.“Successful” in connection with a Pilot Run means that Amyris has demonstrated the ability to produce the Product within the defined final Product specifications or the defined specifications needed to complete the remaining downstream processing steps.
 
 

EXHIBIT 4.4(a)

 

6)Amyris shall be responsible for indirect costs associated with the startup of production of a Product, including without limitation licenses, approvals, and permits necessary for performance

 

 

 

 

 

 

 

 

 

 

 
 

EXHIBIT 4.4(a)

 

of services, up to a maximum aggregate amount of $[*] per Product. Any amounts above $[*]will be billed to the Customer. 

 

7)The Parties agree that the Customer shall be responsible for any licenses, authorizations, approvals, permits, and the like required for the distribution and sale of the Product.

 

8)Amyris shall be responsible for all procurement and personnel required for the production of a Product.

 

9)Amyris shall provide Ginkgo with a standard supply agreement template for reference and use by Ginkgo and Amyris in the negotiation of Customer Agreements.

 

10)Ginkgo shall involve Amyris in the negotiation and approval of any manufacturer liabilities, representations and warranties for a Ginkgo Customer Agreement to the extent that any such provisions deviate from the standard provisions included in the template described in paragraph 9, above.

 

11)If for any reason a Product under a Customer Agreement is to be no longer supplied by Amyris, the Customer will purchase all Product that is currently in production and all Product in Amyris’ owned inventory, to the extent such current production or inventory was based on any binding estimates or purchase orders. If the Product is also sold to another customer, Amyris will deduct the forecasted demand for that Product from the amount the Customer will be required to purchase from Amyris.

 

12)In the event a Customer requests a change in production of a Product under an existing Customer Agreement that increases production costs, Amyris will provide a cost estimate for the Customer to approve prior to implementing the change.

 

13)Ginkgo will manage and maintain the manufacturing Strain banks for all Products under a Ginkgo Customer Agreement and demonstrate standard QC checks for such Strain banks. The standard test protocol for such Strain banks is as follows:

[*]

14)Amyris will manage and maintain the manufacturing Strain banks for all Products under an Amyris Customer Agreement and demonstrate standard QC checks for such Strain banks. The standard test protocol for such Strain banks is as follows:

[*]

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 4.4(b)

 

Supplier Restrictions

 

In the event that Amyris engages a Third Party to manufacture Products under Section 4.4 of the Agreement or Ginkgo engages a Third Party to manufacture Products under Section [6.2(a)(v)] of the Agreement (Amyris or Ginkgo, as applicable, the “Contracting Party” and the Third Party, the “Permitted Manufacturer”), the Contracting Party shall include in any agreement with the Permitted Manufacturer (the “Third Party Manufacturing Agreement”) the following substantive terms and provisions:

 

1. Permitted Manufacturer will confine its manufacturing of the Product to the following geographic territories: [*] and any other countries, or territories as may be agreed in writing by the Parties’ respective Executive Officers from time to time.

 

2. The Party that is not the Contracting Party (the “Non-Contracting Party”) will have the right, upon reasonable prior notice and during normal business hours, to accompany the Contracting Party on an inspection of the facility at which the Product is manufactured (the “Permitted Facility”) at least once per year.

 

3. The Non-Contracting Party will be named as a third party beneficiary to the agreement between Contracting Party and the Permitted Manufacturer, with the express right to pursue claims against the Permitted Manufacturer in the event of a breach of any of the provisions set forth in this Exhibit 4.4 (b)

 

4. As between the Parties, The Contracting Party will have the primary right to pursue actions required to protect the Strain used for production of the applicable Product(s) and related intellectual property vis-a-vis the Permitted Manufacturer.

 

5. Permitted Manufacturer will agree to (a) hold Confidential Information (including, but not limited to, process technology, confidential information related to the Strain, know-how and other confidential information and technology of the Parties) in confidence and take all reasonable precautions to protect such Confidential Information (subject to customary exceptions) and (b) subject to customary exceptions, not divulge any such Confidential Information or any information derived therefrom to any Third Party.

 

6. Permitted Manufacturer covenants not to reverse engineer the applicable Strain used in production, not to engineer any strains from such Strain, not to use such Strain except to manufacture and supply the Product to the Contracting Party as permitted under the Agreement and pursuant to the Third Party Manufacturing Agreement, and not to distribute, disclose or transfer such Strain or any related intellectual property to any Third Party or to any location or facility that is not a Permitted Facility, and in the event of such transfer, the Contracting Party shall notify the Non-Contracting Party in writing at least thirty (30) days in advance of the transfer.

 

7. Permitted Manufacturer shall represent and warrant that its manufacture and supply of the Product to the Contracting Party will be conducted in accordance with agreed commercial specifications and manufactured in accordance with the reasonable instructions provided by the Contracting Party and with all applicable Laws.

 

8. Permitted Manufacturer shall maintain insurance of the type, minimum rating and in amounts not less than is customary for similarly situated manufacturers.

 

9. The Contracting Party shall use its best efforts to cause Permitted Manufacturer to grant each Party a non-exclusive royalty-free license to use any process improvements with respect to the manufacture of the Product that are conceived, discovered, developed or otherwise made by Permitted Manufacturer.

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT 4.4(b)

 

10. In the event that Permitted Manufacturer ceases to use any Strain for production of the Product under the Third Party Manufacturing Agreement, or in the event of a termination or expiration of the Third Party Manufacturing Agreement, Permitted Manufacturer shall promptly return any such Strain or, at the Contracting Party’s election, destroy such Strain.

 

11. Permitted Manufacturer will defend, indemnify and hold harmless the Parties for any direct losses incurred by the Parties or any Amyris Indemnified Party or Ginkgo Indemnified Party, as applicable, arising from or as a result of its willful misconduct or gross negligence or a breach of any provision of the Third Party Manufacturing Agreement, including any representation, warranty or covenant thereunder.

 

 

 

 

 

 
 

Table 1

Product Sourcing Party Customer Agreement  
[*] Amyris [*]  
[*] Amyris [*]  
[*] Amyris [*]  
[*] Amyris [*]  
[*] Amyris [*]  
[*] Amyris [*]  
[*] Amyris [*]  
[*] Ginkgo No contract signed as of the Effective Date  
[*] Ginkgo No contract signed as of the Effective Date  
[*] Ginkgo No contract signed yet as of the Effective Date  
[*] Ginkgo No contract signed yet as of the Effective Date
[*] Ginkgo No contract signed yet as of the Effective Date
[*] Ginkgo No contract signed yet as of the Effective Date
[*] Ginkgo No contract signed yet as of the Effective Date
[*] Ginkgo No contract signed yet as of the Effective Date
[*] Ginkgo No contract signed yet as of the Effective Date
Molecules stemming from [*] Amyris No contract signed as of the Effective Date  
         

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Table 2

Product Sourcing Party Customer Agreement
[*] Amyris [*]
[*] Amyris [*]
[*] Amyris [*]
[*] Amyris [*]
[*] Amyris [*]
[*] Amyris [*]
[*] Amyris [*]
[*] Amyris [*]
beta-pinene (IFF) Amyris Joint Development and License Agreement dated April 23, 2013 between Amyris and International Flavors & Fragrances Inc.
 
 
duct Sourcing Party Customer Agreement
[*] Amyris [*]
other [*] Amyris [*]

 

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 

 
 

Table 3

Product Sourcing Party Customer Agreement
[*] Amyris [*]
[*] Amyris [*]
[*] Amyris [*]
[*] Ginkgo [*]
[*] Ginkgo [*]
[*] Ginkgo [*]
[*] Ginkgo [*]
[*] Ginkgo [*]
[*] Ginkgo [*]

 

 

Table 4

Existing Commercial Product Percentage of COGS Savings COGS Model for Calculating COGS Savings
[*] [*] See file “Copy of BGT'16 Mfg Model - 8-26-16 v0.xlsx”
[*] [*] See file “AA cost model 2016_08_26.xlsx”
[*] [*] See file “Copy of BGT'16 Mfg Model - 8-26-16 v0.xlsx”
[*] [*] See file “Copy of BGT'16 Mfg Model - 8-26-16 v0.xlsx”
[*] [*] See file “Manatee_2016_08_26_v2.xlsx”

 

 

Within 30 days of the Effective Date, the JSC will proscribe a method for calculation of COGS savings using the listed COGS models.

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 

 

 

 
 

Table 5

Amyris Excluded Product Ginkgo Excluded Product
[*] [*]
  [*]
  [*]
  [*]
  [*]
  [*]
  Chemical small molecule compounds in the Field for which the customer does not require Third Party manufacturing.

 

 

 

 

 

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

EXHIBIT A

 

NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

 

WARRANT TO PURCHASE COMMON STOCK

 

Company: Amyris, Inc., a Delaware corporation
Warrant Certificate: GW-1
Number of Shares: 5,000,000
Class of Stock: Common Stock
Warrant Price: $0.50 per share
Issue Date: August 4, 2016
Expiration Date: The 1st anniversary of the Issue Date

 

 

THIS WARRANT CERTIFIES THAT, for good and valuable consideration, GINKGO BIOWORKS, INC. (together with any registered holder from time to time of this Warrant or any holder of the shares issuable or issued upon exercise of this Warrant, “Holder”) is entitled to purchase the number of fully paid and nonassessable shares of the class of securities of the Company at the Warrant Price, all as set forth above and as adjusted pursuant to Article 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in this Warrant.

 

ARTICLE 1 EXERCISE.

·     Exercise. This Warrant shall be exercisable for 5,000,000 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) (the “Shares”). The number of Shares and the Warrant Price are subject to adjustment as provided herein, and all references to “Shares” and “Warrant Price” herein shall be deemed to include any such adjustment or series of adjustments.

·     Method of Exercise.

·     Mechanics. This Warrant may be exercised by the Holder at any time on or after the Issue Date (an “Exercise Date”), in whole or in part, by delivery (whether via facsimile or otherwise) of a written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise this Warrant. Within one (1) Trading Day following an exercise of this Warrant as aforesaid, the Holder shall deliver payment to the Company of an amount equal to the Warrant Price in effect on the date of such exercise multiplied by the number of Shares as to which this Warrant was so exercised (the “Aggregate Warrant Price”) in cash or via wire transfer of immediately available funds if the Holder did not notify the Company in such Exercise Notice that such exercise was made pursuant to a Cashless Exercise (as defined in Section 1.3). The Holder shall not be required to deliver the original of this Warrant in order to effect an exercise hereunder. Execution and delivery of an Exercise Notice with respect to less than all of the Shares shall have the same effect as cancellation of the original of this Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Shares.

 
 

Execution and delivery of an Exercise Notice for all of the then-remaining Shares shall have the same effect as cancellation of the original of this Warrant after delivery of the Shares in accordance with the terms hereof. On or before the later of the third (3rd) Trading Day following the date on which the Company has received such Exercise Notice and one (1) Trading Day after the Company’s receipt of the Aggregate Warrant Price (or valid notice of a Cashless Exercise) (such later date, the “Share Delivery Deadline”), the Company shall, (X) provided that the Company’s Common Stock transfer agent (the “Transfer Agent”) is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified in the Exercise Notice, a certificate, registered in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder shall be entitled pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Shares with respect to which this Warrant has been exercised, irrespective of the date such Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Shares (as the case may be). If this Warrant is submitted in connection with any exercise pursuant to this Section 1 and the number of Shares represented by this Warrant submitted for exercise is greater than the number of Shares being acquired upon an exercise and upon surrender of this Warrant to the Company by the Holder, then the Company shall as soon as practicable and in no event later than three (3) business days after any exercise and at its own expense, issue and deliver to the Holder (or its designee) a new Warrant representing the right to purchase the number of Shares purchasable immediately prior to such exercise under this Warrant, less the number of Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock are to be issued upon the exercise of this Warrant, but rather the number of shares of Common Stock to be issued shall be rounded down to the nearest whole number. The Company shall pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer Agent) that may be payable with respect to the issuance and delivery of Shares upon exercise of this Warrant. Notwithstanding the foregoing, the Company’s failure to deliver Shares to the Holder on or prior to Share Delivery Deadline shall not be deemed to be a breach of this Warrant, provided that the Company is in compliance with the other provisions of this Warrant, including without limitation Section 1.2(b).

 

·                     Company’s Failure to Timely Deliver Securities. If the Company shall fail, for any reason or for no reason, on or prior to the Share Delivery Deadline, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, to issue and deliver to the Holder (or its designee) a certificate for the number of Shares to which the Holder is entitled and register such Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of the Holder or the Holder’s designee with DTC for such number of Shares to which the Holder is entitled upon the Holder’s exercise of this Warrant (as the case may be), and if on or after such Share Delivery Deadline the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of all or any portion of the number of shares of Common Stock issuable upon such exercise that the Holder anticipated receiving from the Company (a “Buy-In”), then, in addition to all other remedies available to the Holder, the Company shall, within three (3) business days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including, without limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point the Company’s obligation to so issue and deliver such certificate (and to issue such shares of Common Stock) or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Shares to which the Holder is entitled upon the Holder’s exercise hereunder (as the case may be) (and to issue such Shares) shall terminate and the applicable Exercise Notice shall be disregarded as if never submitted by the Holder, or (ii) promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such Shares or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Shares to which the Holder

 
 

is entitled upon the Holder’s exercise hereunder (as the case may be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of Shares multiplied by (B) the average closing price of the Common Stock across all Trading Days during the period commencing on the date of the applicable Exercise Notice and ending on the date of such issuance and payment under this clause (ii). Nothing shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) upon the exercise of this Warrant as required pursuant to the terms hereof.

 

·                     Cashless Exercise Right. In lieu of exercising this Warrant by making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Warrant Price pursuant to Article 1.2, Holder may elect instead to receive upon such exercise the “Net Number” of shares of Common Stock determined according to the following formula (a “Cashless Exercise”):

Net Number = (A x B) - (A x C)

B

 

For purposes of the foregoing formula:

 

A= the total number of shares with respect to which this Warrant is then being exercised.

 

B= the fair market value of each Share, which shall be (i) the average for the five Trading Days immediately prior to the date of determination thereof of the last reported sale price regular way on each such day, (ii) in the case no such sale takes place on any such day, the average of the reported closing bid and asked prices regular way of the shares of Common Stock on such day, in each case as quoted on the Principal Market, as reported by Bloomberg or such other principal securities exchange or inter-dealer quotation system on which the shares of Common Stock are then traded, or (iii) in the case the shares of Common Stock are not traded publically on the Principal Market, the value mutually agreed up by the Company and the Holder.

 

C= the Warrant Price then in effect for the applicable Shares at the time of such exercise.

 

·                     Delivery of Certificate and New Warrant. Promptly after Holder exercises or converts this Warrant, and, if applicable, the Company receives payment of the aggregate Warrant Price, the Company shall deliver to Holder certificates for the Shares acquired and, if this Warrant has not been fully exercised or converted and has not expired, a new Warrant representing the Shares not so acquired. Holder shall be deemed to own and have all of the rights associated with any Shares or other securities or property to which it is entitled pursuant to this Warrant upon the exercise or conversion of the Warrant in accordance with this Article 1.

·                     Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.

·                     Treatment of Warrant Upon Acquisition of Company.

 
 

·                     Acquisition”. For the purpose of this Warrant, “Acquisition” shall mean the occurrence of any of the following: (i) the consolidation of the Company with, or the merger of the Company with or into, another “person” (as such term is used in Rule 13d-3 and Rule 13d-5 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), or the sale, lease, exclusive license, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole, or the consolidation of another “person” with, or the merger of another “person” into, the Company, other than in each case pursuant to a transaction in which the “persons” that “beneficially owned” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, the Voting Shares (as defined below) of the Company immediately prior to the transaction “beneficially own”, directly or indirectly, Voting Shares representing at least a majority of the total voting power of all outstanding classes of voting stock of the surviving or transferee person; (ii) the adoption by the Company of a plan relating to the liquidation or dissolution of the Company; (iii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” becomes the “beneficial owner” directly or indirectly, of more than 50% of the Voting Shares of the Company (measured by voting power rather than number of shares); or (iv) during any period of 24 consecutive months, a majority of the members of the Company’s Board of Directors cease to be composed of individuals (A) who were members of the Board of Directors on the first day of such period, (B) whose election, nomination or appointment to the Board of Directors was approved by at least a majority of the individuals referred to in clause (A) above or (C) whose election, nomination or appointment to the Board was approved by at least a majority of the individuals referred to in clauses (A) and (B) taken together. For the purposes of this Article 1.6.1, “Voting Shares” of any person shall mean capital shares or capital stock of such person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such person.

·                     Notice of Acquisition. The Company shall provide Holder with written notice of an Acquisition (together with such reasonable information as Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Acquisition.

·                     Treatment of Warrant at Cash/Public Acquisition. In the event of an Acquisition in which the consideration to be received by the Company’s stockholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”), and the fair market value of one Share as determined in accordance with Section 1.3 above would be greater than the Warrant Price in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant pursuant to Article 1 above as to all Shares, then this Warrant shall automatically be deemed to be exercised as a Cashless Exercise pursuant to Section 1.3 above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition. In the event of a Cash/Public Acquisition where the fair market value of one Share as determined in accordance with Section 1.3 above would be less than the Warrant Price in effect immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisition, unless the Holder elects to exercise the Warrant prior to the consummation of such Cash/Public Acquisition.

·                     Treatment of Warrant at Acquisition other than Cash/Public Acquisition. Upon the closing of any Acquisition other than a Cash/Public Acquisition, unless Holder agrees otherwise in writing (but without obligation to do so), the acquiring, surviving or successor entity shall assume the obligations of this Warrant, and this Warrant shall thereafter be exercisable for the same securities and/or other property as would have been paid for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were outstanding on and as of the closing of such Acquisition, subject to further adjustment from time to time in accordance with the provisions of this Warrant.

 
 

·                     Insufficient Authorized Shares. If at any time while the Warrant remains outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon exercise of the Warrant at least a number of shares of Common Stock equal to 100% (the “Required Reserve Amount”) of the number of shares of Common Stock as shall from time to time be necessary to effect the exercise of the Warrant then outstanding, then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Warrant then outstanding.

·                     ADJUSTMENTS TO THE SHARES.

·                     Stock Dividends, Splits, Etc. If the Company declares or pays a dividend on the Shares payable in common stock of the Company, or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of shares of common stock of the Company to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock for which this Warrant is exercisable, the number of Shares subject to the Warrant shall be proportionately increased and the Warrant Price shall be proportionately decreased. If the outstanding shares are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Warrant Price shall be proportionately increased and the number of Shares subject to the Warrant shall be proportionately decreased.

·                     Reclassification, Exchange, Combinations or Substitution. Upon any reclassification, exchange, substitution, reorganization, recapitalization or other event that results in a change of the number and/or class of the securities issuable upon exercise or conversion of this Warrant (other than an Acquisition which is subject to the provisions of Article 1.6), Holder shall be entitled to receive, upon exercise or conversion of this Warrant the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or conversion of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or conversion of this Warrant. The amendment to this Warrant shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 2 including, without limitation, adjustments to the Warrant Price and to the number of securities or property issuable upon exercise of the new Warrant. The provisions of this Article 2.2 shall similarly apply to successive reclassifications, exchanges, substitutions, or other events.

 

·                     Other Adjustment Events. If any event occurs of the type contemplated by the provisions of this Article 2 but not expressly provided for by such provisions, then the Company’s Board of Directors will make an appropriate adjustment in the Warrant Price and the number of Warrant Shares so as to protect the rights of the Holder; provided that no such adjustment pursuant to this Article 2.4 will increase the Warrant Price or decrease the number of Shares as otherwise determined pursuant to this Article 2.

·                     No Impairment. Without the consent of the Holder, the Company shall not by amendment of its Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Warrant by the Company, but shall at all times in good faith assist in carrying out of all

 
 

the provisions of this Article 2 and in taking all such action as may be necessary or appropriate to protect Holder’s rights under this Article 2 against impairment.

·                     Fractional Shares. No fractional Shares shall be issuable upon exercise or conversion of this Warrant and the number of Shares to be issued shall be rounded down to the nearest whole Share. If a fractional share interest arises upon any exercise or conversion of the Warrant, the Company shall eliminate such fractional share interest by paying Holder in cash equivalent to the amount computed by multiplying the fractional interest by the fair market value of a full Share (as determined pursuant to Section 1.3 of this Warrant).

·                     Certificate as to Adjustments. Upon each adjustment of the Warrant Price and Shares, the Company shall promptly notify Holder in writing, and, at the Company’s expense, promptly compute such adjustment, and furnish Holder with a certificate of its Chief Financial Officer, Corporate Secretary or a senior financial officer setting forth such adjustment and the facts upon which such adjustment is based. The Company shall, upon written request, furnish Holder a certificate setting forth the Warrant Price and Shares in effect upon the date thereof and the series of adjustments leading to such Warrant Price and Shares.

·                     REPRESENTATIONS AND COVENANTS OF THE COMPANY. The Company represents, warrants and covenants to the Holder as follows:

·                     Representations and Warranties. The Company represents and warrants and covenants to the Holder as follows: All corporate action required to be taken by the Company’s Board of Directors and stockholders in order to authorize the Company to enter into this Warrant, and to issue the Shares upon exercise thereof, has been taken. All Shares which may be issued upon the exercise of the purchase right represented by this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable federal and state securities laws. The issuance of this Warrant, or the Shares issuable thereunder, will not trigger any anti-dilution adjustment, preemptive rights, rights of first refusal or other similar rights of third parties other than as have been waived prior to the issuance of this Warrant. The Company will at all times reserve and keep available, out of its authorized but unissued share of Common Stock, solely for the purpose of providing the exercise or conversion of this Warrant, the aggregate number of Shares issuable upon exercise or conversion of this Warrant. The Company will use its reasonable best efforts to ensure that the Shares may be issued without violation of any law or regulation applicable to the Company or of any requirement of any securities exchange applicable to the Company on which the Shares are listed or traded.

·                     All corporate action required to be taken by the Company’s Board of Directors and stockholders in order to authorize the Company to enter into this Warrant, and to issue the Shares at the closing, has been taken or will be taken prior to the closing. All action on the part of the officers of the Company necessary for the execution and delivery of this Warrant, the performance of all obligations of the Company under this Warrant to be performed as of the closing, and the issuance and delivery of the Shares has been taken or will be taken prior to the closing. This Warrant, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

·                     No Stockholder Rights. Except as provided in this Warrant, and other than with regard to shares of the Company’s Common Stock acquired by Holder other than pursuant to the exercise of this Warrant, the Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant.

 
 

·                     Charges, Taxes and Expenses. Issuance of certificates for Shares to the Holder or the credit of the Shares to the Holder or the Holder’s designee with DTC upon the exercise or conversion of this Warrant shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company.

·                        Notice of Certain Events. If the Company proposes at any time to:

(a) declare any dividend or distribution upon the outstanding shares of Common Stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend;

 

(b) offer for subscription or sale pro rata to the holders of the outstanding shares of the Common Stock any additional shares of any class or series of the Company’s capital stock (other than pursuant to contractual pre-emptive rights);

 

(c) effect any reclassification, exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of Common Stock; or

 

(d) effect an Acquisition or to liquidate, dissolve or wind up;

 

then, in connection with each such event, the Company shall give Holder:

 

(1) in the case of the matters referred to in (a) and (b) above, at least seven (7) business days prior written notice of the earlier to occur of the effective date thereof or the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of outstanding shares of Common Stock will be entitled thereto) or for determining rights to vote, if any; and

 

(2) in the case of the matters referred to in (c) and (d) above at least seven (7) business days prior written notice of the date when the same will take place (and specifying the date on which the holders of outstanding shares of Common Stock will be entitled to exchange their shares for the securities or other property deliverable upon the occurrence of such event and such reasonable information as Holder may reasonably require regarding the treatment of this Warrant in connection with such event giving rise to the notice).

 

The Company will also provide information requested by Holder that is reasonably necessary to enable Holder to comply with Holder’s accounting or reporting requirements.

 

·                     REPRESENTATIONS, WARRANTIES OF THE HOLDER. The Holder represents and warrants to the Company as follows:

·                     Purchase for Own Account. This Warrant and the securities to be acquired upon exercise or conversion of this Warrant by the Holder will be acquired for investment for the Holders account, not as a nominee or agent, and not with a view to the public resale or distribution within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), and the Holder has no present intention, and upon exercise or conversion will have no intention, of selling or engaging in any public distribution of the same except pursuant to a registration or exemption. Holder also represents that the Holder has not been formed for the specific purpose of acquiring this Warrant or the Shares.

·                     Disclosure of Information. The Holder has received or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the acquisition of this Warrant and its underlying securities. The Holder further has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of this Warrant and its underlying securities and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to the Holder or to which the Holder has access.

 
 

·                     Investment Experience. The Holder understands that the purchase of this Warrant and its underlying securities involves substantial risk. The Holder has experience as an investor in securities of companies in the development stage and acknowledges that the Holder can bear the economic risk of such Holder’s investment in this Warrant and its underlying securities and has such knowledge and experience in financial or business matters that the Holder is capable of evaluating the merits and risks of its investment in this Warrant and its underlying securities and/or has a preexisting personal or business relationship with the Company and certain of its officers, directors or controlling persons of a nature and duration that enables the Holder to be aware of the character, business acumen and financial circumstances of such persons.

·                     Accredited Investor Status. The Holder is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act.

·                     Securities Act. The Holder understands that this Warrant and the Shares issuable upon exercise or conversion hereof have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Holder’s investment intent as expressed herein. The Holder understands that this Warrant and the Shares issued upon any exercise or conversion hereof must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless exemption from such registration and qualification are otherwise available. The Holder further understands that settlement of this Warrant is to be made in Shares and, for the elimination of doubt, the fact that the Shares delivered on exercise of this Warrant will not be registered under the Securities Act (as defined below) will not in any way require the Company to settle this Warrant otherwise than in Shares, including without limitation, that there is no circumstance that would require the Company to settle this Warrant in cash.

·                     MISCELLANEOUS.

·                     Term. This Warrant will be exercisable in whole or in part at any time and from time to time on or before the Expiration Date.

·                     Automatic Cashless Exercise upon Expiration. In the event that, upon the Expiration Date, the fair market value of one Share as determined in accordance with Section 1.3 above is greater than the Warrant Price in effect on such date, then this Warrant shall automatically be deemed on and as of such date to be exercised pursuant to Section 1.3 above as to all Shares for which it shall not previously have been exercised.

·                     Legends. This Warrant and the Shares shall be imprinted with a legend in substantially the following form:

NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

 

 
 

·                     Compliance with Securities Laws on Transfer. This Warrant and the Shares issuable upon exercise of this Warrant may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). The Company shall not require Holder to provide an opinion of counsel if the transfer is to any affiliate of the Holder, provided that any such transferee is an “accredited investor” as defined in Regulation D under the Securities Act; provided, however, in any such transfer the transferee shall agree to be bound by the terms of this Warrant as if an original holder hereof. Additionally, the Company shall also not require an opinion of counsel if there is no material question as to the availability of Rule 144 promulgated under the Securities Act.

·                     Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by first-class registered or certified mail, postage prepaid (or on the first business day after transmission by facsimile), at such address as may have been furnished to the Company or the Holder, as the case may be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to the Holder shall be addressed as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:

Ginkgo Bioworks, Inc.

27 Drydock Avenue, 8th Floor

Boston, MA 02210

Attn: CEO

Attn: General Counsel

 

With a copy (which shall not constitute notice) to:

 

Latham & Watkins LLP

1000 Winter Street Suite 3700
Waltham, MA 02451
Attn:
Facsimile:

 

 

 

Notice to the Company shall be addressed as follows until the Holder receives notice of a change in address:

 

Amyris, Inc.
5885 Hollis Street, Suite 100

Emeryville, CA 94608

Attn: General Counsel

Facsimile:

 

With a copy (which shall not constitute notice) to:

 

Shearman & Sterling LLP

535 Mission Street, 25th Floor

San Francisco, CA 94105

Attn:

Facsimile:

 

 
 

·                     Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the parties against which enforcement of such change, waiver, discharge or termination is sought.

 

·                     Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.

·                     Amendment. This Warrant may be amended and the observance of any term of this Warrant may be waived only with the written consent of the Company and the Holder.

·                     Binding Effect. This Warrant shall be binding upon any successors or assigns of the Company.

·                     Governing Law. This Warrant, and the provisions, rights, obligations, and conditions set forth herein, and the legal relations between the parties hereto, including all disputes and claims, whether arising in contract, tort, or under statute, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to its conflict of law provisions.

·                  CERTAIN DEFINITIONS.

Bloomberg” means Bloomberg Financial Markets.

 

Principal Market” means The NASDAQ Stock Market.

 

Trading Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded; provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00 p.m., New York time).

 

“Marketable Securities” means securities meeting all of the following requirements: (i) the issuer thereof is then subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act and is then current in its filing of all required reports and other information under the Act and the Exchange Act; (ii) the class and series of shares or other security of the issuer that would be received by Holder in connection with the Acquisition were Holder to exercise this Warrant on or prior to the closing thereof is then traded in a trading market, and (iii) following the closing of such Acquisition, Holder would not be restricted from publicly re-selling all of the issuer’s shares and/or other securities that would be received by Holder in such Acquisition were Holder to exercise this Warrant in full on or prior to the closing of such Acquisition, except to the extent that any such restriction (x) arises solely under federal or state securities laws, rules or regulations, and (y) does not extend beyond six (6) months from the closing of such Acquisition.

 

[Balance of Page Intentionally Left Blank]

 

 

 

 

 

 
 

“COMPANY”

 

Amyris, Inc.

 

 

 

By: ___________________________________

John Melo, Chief Executive Officer

 

AGREED AND ACKNOWLEDGED:
“HOLDER”
 
Ginkgo Bioworks, Inc.
 

By: _________________________________

Jason Kelly, Chief Executive Officer

 

 

 

 

 

 

[Signature Page to Warrant]

 
 

ARTICLE 2Exhibit A

ARTICLE 3EXERCISE NOTICE

ARTICLE 4TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE COMMON STOCK

ARTICLE 5AMYRIS, INC.

ARTICLE 6The undersigned holder hereby exercises the right to purchase _________________ of the shares of Common Stock (“Shares”) of Amyris, Inc., a Delaware corporation (the “Company”), evidenced by Warrant to Purchase Common Stock No. GW-1 (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.

ARTICLE 71. Form of Warrant Price. The Holder intends that payment of the Aggregate Warrant Price shall be made as:

____________a “Cash Exercise” with respect to _________________ Shares; and/or

 

____________a “Cashless Exercise” with respect to _______________ Shares.

 

ARTICLE 82. Payment of Warrant Price. In the event that the Holder has elected a Cash Exercise with respect to some or all of the Shares to be issued pursuant hereto, the Holder shall pay the Aggregate Warrant Price in the sum of $___________________ to the Company in accordance with the terms of the Warrant.

ARTICLE 93. Delivery of Shares. The Company shall deliver to Holder, or its designee or agent as specified below, __________ Shares in accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, as follows:

ARTICLE 10[_] Check here if requesting delivery as a certificate to the following name and to the following address:

Issue to:  
   
   

ARTICLE 11 

[_]Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:
DTC Participant:  
DTC Number:  
Account Number:  
   
     

 

Date: _____________ __, ___

 

 _______________________
Name of Registered Holder

 

 

 

 
 

By: __________________________________
Name:
Title:

 

Tax ID:____________________________

 

Facsimile:__________________________

 

E-mail Address:_____________________

 

 

 

 

 

 

 

 
 

EXHIBIT B

 

ESCROW AGREEMENT

 

This Escrow Agreement (the “Agreement”) is entered into as of [●] (the “Effective Date”), by and among Amyris, Inc., a Delaware corporation, having its place of business at 5885 Hollis Street, Suite 100, Emeryville, California 94608 (the “Amyris”), Ginkgo Bioworks, Inc., a Delaware corporation having its principal office at 27 Drydock Avenue, 8th Floor, Boston, MA 02210 (the “Ginkgo”), and [●] (“Escrow Agent”). Amyris, Ginkgo, and Escrow Agent may be referred to individually as a “Party” or collectively as the “Parties” throughout this Agreement.

 

RECITALS

 

WHEREAS, Amyris and Ginkgo have entered into that certain Collaboration Agreement dated [●] (the “Collaboration Agreement”);

 

WHEREAS, pursuant to the Collaboration Agreement, Amyris and Ginkgo are required to establish and maintain a third party escrow of each Party’s materials described on Exhibit A (the “Escrowed Materials”);

 

WHEREAS, capitalized terms used but not defined herein shall have the meanings set forth in the Collaboration Agreement; and

 

WHEREAS, Amyris and Ginkgo desire to appoint Escrow Agent as escrow agent with respect to the Escrowed Materials, and Escrow Agent desires to act in such capacity, in each case in accordance with the terms and conditions of this Agreement.

 

NOW, THEREFORE, in consideration of the respective representations, warranties, covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.

 

1.Depositor Responsibilities

 

(a)Each of Amyris and Ginkgo, as a “Depositor”, shall make an initial deposit of the Escrowed Materials to Escrow Agent within three (3) months of the Effective Date. In conjunction with such deposit, the applicable Depositor will submit an itemized list of the initial Escrowed Materials to the other Party that is not the Escrow Agent, as the applicable “Beneficiary”. From time to time in accordance with the Collaboration Agreement, each Depositor may deposit additional or updated versions of the Escrowed Materials together with any applicable written instructions regarding return or destruction of any replaced Escrowed Materials (such instructions, the “Replacement Instructions”). In conjunction with any Replacement Instructions, such Depositor will submit to the applicable Beneficiary an updated itemized list of the Escrowed Materials resulting from such Replacement Instructions.

 

(b)Prior to or in conjunction with the initial deposit of Escrowed Materials by a Depositor, such Depositor shall provide Escrow Agent with written instructions regarding the storage, handling & shipping conditions for the Depositor’s Escrowed Materials (the “Storage, Handling & Shipping Instructions”). Such Depositor may supplement or revise the Storage, Handling & Shipping Instructions at any time upon written notice to Escrow Agent. In conjunction with providing or updating any Storage, Handling & Shipping Instructions to Escrow Agent, such Depositor will also simultaneously provide a copy of such Storage, Handling & Shipping Instructions to the applicable Beneficiary.

 

 
 

EXHIBIT B

 

(c)In the event of a dispute between Ginkgo and Amyris regarding the contents of the Escrowed Materials, either (i) upon the initial deposit of such Escrowed Materials or (ii) following the delivery of any Replacement Instructions or Storage, Handling & Shipping Instructions, then such dispute shall be resolved between them in accordance with the applicable provisions of the Collaboration Agreement.

 

2.Beneficiary Acknowledgment

 

(a)Each of Ginkgo and Amyris acknowledge that, except as set forth in Section 3 below, Escrow Agent has no obligations hereunder with respect to the sufficiency or functionality of the Escrowed Materials for any purpose.

 

3.Escrow Agent Responsibilities

 

(a)Escrow Agent shall store the Escrowed Materials at its facility located at [●] in two separate escrows, one with Amyris as Depositor, Ginkgo as Beneficiary and containing Amyris’ Escrowed Materials (“Amyris’ Escrow”), and the other with Ginkgo as Depositor, Amyris as Beneficiary and containing Ginkgo’s Escrowed Materials (“Ginkgo’s Escrow”) (Amyris’ Escrow and Ginkgo’s Escrow, each an “Escrow” and collectively the “Escrows”). The Escrows shall at all times be (i) controlled by Escrow Agent (by ownership, lease or otherwise), (ii) covered by all and amounts of insurance required by applicable Law and /or as is necessary to fully protect Ginkgo and Amyris from and against any and all loss, damage, or destruction of the Escrowed Materials, including those set forth in the Storage, Handling & Shipping Instructions and (iii) accessible only to employees and agents of Escrow Agent authorized to carry out Escrow Agent’s obligations under this Agreement and, pursuant to the terms and conditions of Section 3(d) or Section 7(a), to such limited other individuals who may be permitted to access the Escrowed Materials under those sections. Escrow Agent shall not transfer the Escrowed Materials to any other facility without the prior written consent of Ginkgo and Amyris.

 

(b)Escrow Agent shall immediately notify Ginkgo and Amyris in writing upon its receipt of the initial deposit and any subsequent deposits or updates of Escrowed Materials.

 

(c)Escrow Agent shall at all times store and handle all Escrowed Materials in accordance with the terms hereof and the Storage, Handling & Shipping Instructions and in compliance with applicable Laws. Escrow Agent will immediately acknowledge receipt of new or revised Storage, Handling & Shipping Instructions in writing to both Ginkgo and Amyris. Escrow Agent shall at all times segregate (i) the Escrowed Materials contained in Amyris’ Escrow from the Escrowed Materials contained in Ginkgo’s Escrow and (ii) all Escrowed Materials from any other materials of Ginkgo or Amyris that are then being stored with Escrow Agent.

 

 
 

EXHIBIT B

 

(d)Escrow Agent shall permit the authorized representatives of Ginkgo and Amyris access to the Escrow Agent’s facilities, at reasonable times during Escrow Agent’s normal business hours upon notice to Escrow Agent, and provide each of Ginkgo and Amyris, individually and collectively, all cooperation and assistance as may be necessary or reasonably useful for Ginkgo and Amyris, together or individually, to inspect and audit the Escrow Agent’s deposit facilities and any records, information, and other materials comprising or relating to the Escrowed Materials, to determine Escrow Agent’s compliance herewith; provided, that no such inspection and audit will be unduly disruptive of the Escrow Agent's business or operations.

 

(e)Escrow Agent shall, subject to Section 1(c), comply with any Replacement Instructions delivered by a Depositor in connection with any deposit by such Depositor of additional or updated versions of the Escrowed Materials. Escrow Agent shall (i) immediately notify Ginkgo and Amyris in writing upon receipt of any Replacement Instructions and (ii) subject to Section 1(c), comply with such Replacement Instructions at all times.

 

(f)Escrow Agent shall comply with the provisions of Exhibit B with respect to the release of Escrowed Materials to Beneficiary.

 

4.Payment

 

(a)As entire compensation for the services to be performed by Escrow Agent hereunder, (i) Ginkgo, as Beneficiary, shall pay to Escrow Agent the fees and expenses set forth in Exhibit C with respect to Amyris’ Escrow and (ii) Amyris, as Beneficiary, shall pay to Escrow Agent the fees and expenses set forth in Exhibit C with respect to Ginkgo’s Escrow. All payments shall be made in U.S. currency within sixty (60) days after the date of the applicable undisputed invoice. If the applicable Beneficiary wishes to dispute an invoiced amount, it must provide written notice to Escrow Agent within ten (10) days of receipt of the applicable invoice. All invoices must be addressed to the applicable Beneficiary at its address set forth at the signature page or such other address as may be notified by the applicable Beneficiary from time to time, with a copy to the other Parties at their applicable address.

 

5.Term and Termination

 

(a)The term of this Agreement is for a period of one (1) year from the Effective Date and, if not terminated earlier, shall automatically renew each anniversary of the Effective Date for additional one (1) year periods (the initial one (1) year period and any subsequent renewal period, collectively, the “Term”). This Agreement shall continue in full force and effect until (i) Ginkgo and Amyris provide Escrow Agent with joint written notice of the termination of this Agreement, in which case termination shall be effective twenty (20) days after the date of such notice; (ii) not more than ninety (90), nor less than sixty (60) days, prior to the expiration of the then-current Term, Escrow Agent provides Ginkgo and Amyris written notice of the termination of this Agreement, in which case termination shall be effective upon the expiration of the Term; (iii) this Agreement is terminated by Escrow Agent pursuant to Section 5(b); (iv) this Agreement is terminated upon the release of all Escrowed Materials in accordance with Exhibit B; or (v) this Agreement is terminated under Section 8(g).

 

 
 

EXHIBIT B

 

(b)In the event of the nonpayment of any undisputed fees owed to Escrow Agent, Escrow Agent shall provide Ginkgo and Amyris with written notice thereof. If the undisputed fees are not paid in full by the non-paying Party within thirty (30) days of the date of such written notice, then Escrow Agent shall have the right to terminate the Escrow to which the non-paying Party is the Beneficiary upon ten (10) days’ written notice to the non-paying Party and either return to the Depositor of such Escrow or destroy the applicable Escrowed Materials (unless such fees are paid during such period).

 

(c)Unless otherwise agreed in writing by Ginkgo and Amyris, upon any termination of this Agreement (other than under clauses (iii) or (iv) of Section 5(a)), Escrow Agent shall, as instructed by the other Parties, either (i) return the Escrowed Materials to each applicable Depositor or (ii) destroy the Escrowed Materials and certify to the other Parties in writing that Escrow Agent has completed such destruction.

 

(d)Expiration or termination of this Agreement will not affect the rights and obligations of the Parties accrued prior to the date of expiration or termination. In addition, termination of this Agreement is not a Party’s sole or exclusive remedy for another Party’s breach of this Agreement.

 

6.Indemnification and Limitation of Liability

 

(a)Escrow Agent shall not, by reason of its execution of this Agreement, assume any responsibility or liability for any transaction between Ginkgo and Amyris. However, each Party shall indemnify and hold harmless each other Party and their respective affiliates from any and all liability, damages, costs, or expenses, including reasonable attorney’s fees, that shall be sustained or incurred by such other Party (“Losses”) to the extent that such Losses are attributable to such indemnifying Party’s intentional misconduct or gross negligence in connection with the performance of its obligations under this Agreement or its breach of any provision of this Agreement. As between Ginkgo and Amyris, in the case of a conflict between this Article 6 and any indemnification provisions set forth in the Collaboration Agreement, the provisions in the Collaboration Agreement shall prevail solely to the extent necessary to avoid such conflict.

 

(b)EXCEPT IN THE CASE OF A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, FRAUD, LIABILITY WHICH CANNOT BE EXCLUDED UNDER LAW OR BREACH OF A PARTY’S OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANOTHER PARTY UNDER THIS AGREEMENT FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE POSSIBILITY THEREOF MAY BE KNOWN IN ADVANCE.

 

7.Confidential Information

 

(a)Escrow Agent shall maintain and protect the Escrowed Materials as valuable proprietary and confidential information, using at least the same high level of care that it would use to protect its own valuable confidential information or trade secrets and in no event less than a reasonable degree of care. Except as required to perform its obligations under this Agreement, Escrow Agent shall not use the Escrowed Materials for any purpose and shall not disclose or otherwise make available the Escrowed Materials to any third party other than its employees and agents to the extent required for performing its obligations under this Agreement; provided, that such employees and agents are subject to confidentiality obligations at least as restrictive as those set forth herein. Notwithstanding the foregoing, if Escrow Agent receives a subpoena or similar order from a court of competent jurisdiction requiring the disclosure or release of the Escrowed Materials, Escrow Agent may comply in good faith with such order; provided, that Escrow Agent, to the extent not legally prohibited, gives Ginkgo and Amyris reasonable notice prior to such disclosure or release, and cooperates with any reasonable efforts of Ginkgo and Amyris to limit or restrict such disclosure or release.

 

 
 

EXHIBIT B

 

(b)Escrow Agent acknowledges and agrees that any breach or threatened breach of Section 7(a) may result in irreparable injury to any other Party for which there will be no adequate remedy at law. Notwithstanding anything herein to the contrary, in the event of any such breach or threatened breach, any other Party shall be entitled to enforce the provisions of this Agreement by injunction and seek other equitable relief in any court of competent jurisdiction. Escrow Agent irrevocably and unconditionally waives any requirement that such other Party (i) post a bond or other security as a condition for obtaining any such relief or (ii) show irreparable harm, balancing of harms, consideration of the public interest or inadequacy of monetary damages as a remedy in connection with such relief.

 

8.General

 

(a)Supplementary to the Collaboration Agreement. As between Ginkgo and Amyris, this Agreement shall be considered supplementary to the Collaboration Agreement. In the event of any conflict between the terms and provisions of this Agreement and those of the Collaboration Agreement, the terms and conditions of the Collaboration Agreement shall control the rights, obligations, and relationship between Ginkgo and Amyris.

 

(b)Choice of Law. This Agreement (and any Actions arising out of or related thereto or to the transactions contemplated thereby or to the inducement of any Party to enter therein, whether for breach of contract, tortious conduct, or otherwise and whether predicated on common law, statute or otherwise) shall in all respects be governed by and construed in accordance with the laws of the State of New York, USA, including all matters of construction, validity and performance, in each case without reference to any conflict of law rules that might lead to the application of the laws of any other jurisdiction

 

(c)Right to Rely on Instructions. Escrow Agent may act in reliance upon any written instruction, instrument, or signature reasonably believed by Escrow Agent to be genuine and from an authorized representative of a Party. Escrow Agent may assume that any representative of a Party who gives any written notice, request, or instruction has the authority to do so. Escrow Agent will not be required to inquire into the truth of, or evaluate the merit of, any statement or representation contained in any notice or document reasonably believed to be from such a representative.

 

(d)Force Majeure. No failure or omission by either Party in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement or create any liability if the same shall arise from a Force Majeure Event; provided that the Party affected by such cause promptly notifies the other Party and uses diligent efforts to cure such failure or omission as soon as is practicable after the occurrence of one or more of the above mentioned causes.

 

 
 

EXHIBIT B

 

(e)Notices. Any notices or other written communications permitted or required under this Agreement shall be given by facsimile transmission (with transmission confirmed) or internationally recognized delivery service that maintains records of delivery, addressed to a Party at its address set forth on the signature page hereto or to such other address as the Party to whom notice is to be given may have provided to each other Party in accordance herewith. Such notice shall be deemed to have been given as of the date (if a Business Day, otherwise the next Business Day) transmitted by facsimile (with transmission confirmed) or on the third (3rd) Business Day (at the place of delivery) after deposit with an internationally recognized delivery service. Any notice delivered by facsimile will be confirmed by a hard copy delivered as soon as practicable thereafter.

 

(f)Assignment. Neither Ginkgo nor Amyris shall assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Escrow Agent, which shall not be unreasonably withheld or delayed. Escrow Agent shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Ginkgo and Amyris.

 

(g)Severability. In the event any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. If this paragraph becomes applicable and, as a result, the value of this Agreement is materially impaired for any Party, as determined by such Party in its sole discretion, then the affected Party may terminate this Agreement by thirty (30) days’ written notice to each other Party.

 

(h)Independent Contractor Relationship. Ginkgo and Amyris understand, acknowledge, and agree that Escrow Agent’s relationship with Ginkgo and Amyris will be that of an independent contractor and that nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, or employment relationship. No Party has any right or authority hereunder to assume or create any obligation of any nature whatsoever on behalf of any other Party or bind any other Party in any respect.

 

(i)Disputes. Any dispute solely between Ginkgo and Amyris concerning the construction, meaning, effect or implementation of this Agreement or the rights or obligations of any Party hereunder shall be resolved in accordance with the applicable terms of the Collaboration Agreement. Any other dispute among the Parties concerning the construction, meaning, effect or implementation of this Agreement or the rights or obligations of any Party hereunder that cannot be settled by good faith negotiation within thirty (30) Business Days after the first notice of such dispute shall be finally settled by binding arbitration in Chicago, Illinois in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered may be entered in any court having jurisdiction. The arbitrator shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding subject to any limits set forth herein. Such arbitration shall be conducted by a single, independent arbitrator or, if the Parties are unable to agree on such arbitrator, each Party shall appoint a single, independent arbitrator who must collectively agree on a Third Party, independent arbitrator to serve as arbitrator hereunder. For clarity, the arbitrator can be either judicial or non-judicial, depending on the nature of the dispute (i.e., if the dispute is technical in nature, the Parties may elect to agree upon an arbitrator who possesses a relevant technical background). The arbitrator may rule upon motions to compel or limit discovery and shall have the authority to impose sanctions for discovery abuses, including reasonable attorneys’ fees and costs, to the extent and upon the grounds available for such in the United States District Courts for the District in which the arbitration is taking place. The decision of the arbitrator (the “Award”) as to any Action (including the validity and amount of any Action) shall be final, binding, and conclusive upon the Parties. Such Award shall be written and shall be supported by written findings of facts and conclusions. Within thirty (30) days of issuance of an Award any payment required by the Award shall be made unless before such date any Party shall commence legal action to vacate or modify the Award. The Parties to the arbitration may apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction or other interim or conservatory relief, as necessary, without breach of this arbitration provision and without abridgment of the powers of the arbitrator. The Parties agree, and agree to direct the arbitrator, that the arbitration will be kept confidential and that the existence of the proceeding and any proceedings therein, including without limitation any pleadings, briefs or other documents, any testimony or other oral submissions and any Award, will not be disclosed beyond the arbitrator or arbitration tribunal, the Parties, their counsel and any Person (including witnesses, if any) involved in the conduct of the proceeding, except (i) in any legal proceeding concerning the arbitration, including without limitation any proceeding to compel or to stay arbitration or otherwise in aid of arbitration, for other relief as described in the immediately prior sentence, to vacate, modify, or confirm an Award, or to enforce an Award or any judgment based upon an Award, (ii) to the tax, legal, financial or other professional advisors of such Person who are obligated to keep such information confidential, or (iii) as may be required by Law. Each Party shall pay its own costs and expenses (including counsel fees) of any such arbitration, except as may be awarded by the arbitrator pursuant to this Section.

 

 
 

EXHIBIT B

 

(j)No Third Party Rights. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective permitted successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement.

 

(k)Entire Agreement. The Parties agree that this Agreement (together with the Collaboration Agreement and any existing confidentiality agreement (to the extent in effect), including any amendments to either of them, with regard to Ginkgo and Amyris) is the complete agreement among the Parties concerning the subject matter of this Agreement and replaces any prior or contemporaneous oral or written communications among the Parties. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein. Each Party represents and warrants that the execution, delivery, and performance of this Agreement by such Party has been duly authorized and that this Agreement has been duly executed by an authorized representative of such Party. This Agreement may not be modified except by written agreement of all the Parties. No waiver of any right under this Agreement by any Party shall constitute a subsequent waiver of that or any other right under this Agreement.

 

 
 

EXHIBIT B

 

(l)Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

 

(m)Survival. Sections 5(b), (c) and (d), 6, 7 and 8 shall survive any expiration or termination of this Agreement.

 

[Remainder of page left intentionally blank; signature page follows]

 

 

 

 
 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective Date by their authorized representatives:

 

GINKGO AMYRIS
Signature   Signature  
Print Name   Print Name  
Title   Title  
Address for Notices

 

 

 

 

 

 

 

 

 

 

 

 

Address for Notices  
       
ESCROW AGENT    
Signature      
Print Name      
Title      
Address for Notices

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

 
 

Exhibit A

Escrowed Materials

 

All items, materials, and other Intellectual Property required to be deposited pursuant to Section 2.3(e) of the Collaboration Agreement.

 

 

 

 

 

 

 

 

 

 
 

Exhibit B

Release of Escrowed Materials

 

Escrow Agent shall use the following procedures to process any request by a Beneficiary to release any Escrowed Materials to such Beneficiary (“Release Request”):

 

1.Release Conditions.

 

A Beneficiary may submit a Release Request to Escrow Agent upon the occurrence of any one or more of the following (the “Release Conditions”):

 

(a)The Collaboration Agreement expires or is terminated pursuant to Section 7.2(a);

 

(b)The Collaboration Agreement is terminated pursuant to Section 7.2(b), Section 7.2(c), or Section 7.2(d); provided, that only the non-breaching may submit a Release Request;

 

(c)If Amyris, as Depositor, permanently withdraws from its business of manufacturing and commercializing chemical small molecule compounds using microbial strains and fermentation technologies;

 

(d)If Ginkgo, as Depositor, permanently withdraws from its business of strain engineering and small-scale process development of chemical small molecule compounds in the Field; or

 

(e)the applicable Depositor becomes the subject of an Insolvency Proceeding.

 

2.Release Request.

 

Each of Ginkgo and Amyris, as Beneficiary, agrees that a Release Request shall be made solely in accordance with the Release Conditions. Any Release Request shall be submitted by such Beneficiary to the Escrow Agent in writing, shall cite the triggering Release Condition, and shall specify the Escrowed Materials to be released. Promptly upon receipt of the Release Request, Escrow Agent shall send a copy thereof to the applicable Depositor.

 

3.Contrary Instructions.

 

From the date of delivery by Escrow Agent of notice of the Release Request, the applicable Depositor shall have a period of fifteen (15) days to deliver to Escrow Agent written notice of any dispute regarding the occurrence of the Release Conditions (“Contrary Instructions”). Upon receipt of any Contrary Instructions, Escrow Agent shall promptly send a copy thereof to the applicable Beneficiary. In the event the applicable Depositor timely delivers Contrary Instructions to Escrow Agent, Escrow Agent shall continue to store the applicable Escrowed Materials without release pending the earlier of (i) joint written instructions from Ginkgo and Amyris to release the applicable Escrowed Materials; (ii) written notice from the applicable Depositor withdrawing the Contrary Instructions; or (iii) receipt by the Escrow Agent of an order from a court of competent jurisdiction requiring release of the applicable Escrowed Materials.

 

 
 

EXHIBIT B

 

4.Release of Escrowed Materials.

 

If the applicable Depositor does not timely deliver Contrary Instructions to Escrow Agent, Escrow Agent shall release the applicable Escrowed Materials to the applicable Beneficiary in accordance with any written instructions pertaining to the delivery of such Escrowed Materials provided by such Beneficiary, subject to the terms and conditions of the Collaboration Agreement.

 

5.Right to Use Following Release.

 

Upon any release of Escrowed Materials in accordance with this Exhibit B, such Beneficiary shall have the right to use the Escrowed Materials solely in accordance with the terms and conditions of the Collaboration Agreement.

 

 

 

 
 

Exhibit C

Fees and Expenses

 

Monthly Storage Fee:

 

$[●] per cubic foot per month.

 

Shipping or Destruction Costs:

 

Any shipping or destruction expenses incurred by Escrow Agent related to the applicable Escrowed Materials will be to the applicable Beneficiary at cost plus [●] percent ([●]%).

 

 
 

EXHIBIT C

 

Antitrust Guidelines

 

I.Scope

 

These antitrust guidelines (“Guidelines”) shall govern the operation of the Collaboration formed between Amyris, Inc. (“Amyris”) and Ginkgo Bioworks, Inc. (“Ginkgo”) (each a “Party” or collectively the Parties) on September 12, 2016 (the “Collaboration Agreement”). It is the policy of the Parties to comply fully with all U.S. and international antitrust laws, and all other laws applicable to its operations.

 

The purpose of these Guidelines is to assure that opportunities falling outside the scope of the Collaboration, and/or opportunities subject to a defined exclusion, will be explored by either Party on an individual basis only (except as provided for in certain circumstances below), while opportunities within the scope of the Collaboration will be pursued by the Collaboration. Thus, this document provides guidance for your day-to-day conduct. Whenever you have any questions about the possible application of the antitrust laws to any of your activities, you should consult with your company’s General Counsel (See Section IX below).

 

II.Background

 

In order to compete in modern markets, competitors sometimes need to collaborate. Competitive forces are driving firms toward complex collaborations to achieve goals such as expanding into different markets, funding expensive innovation efforts, and lowering production and other costs. Such collaborations often are not only benign but procompetitive. The Field of the Collaboration is defined as activities related to the development, scale-up, and manufacture of a chemical small molecule compound(s) whose manufacture is enabled at least in part by the use of microbial strains and fermentation technologies. The Parties formed the present Collaboration in recognition of the likely benefits of developing a biotechnology platform in the Field, which would generate additional possibilities to expand each of their businesses and stimulate innovation in the Field, as well as improve the ability of the Parties to serve the emerging demands of many current and potential end-use sectors by offering solutions relying upon compounds within the Field.

 

The Parties have worked together to provide guidance to the business development teams within both Amyris and Ginkgo (collectively “Collaboration BD Team”; individually “Amyris BD Team” or “Ginkgo BD Team”) on how best to source opportunities and to work collaboratively and cohesively under the Collaboration without triggering certain antitrust issues. These Guidelines are intended to describe the analytical framework that will assist the Collaboration BD Team in sourcing and evaluating proposed transactions with greater understanding of possible antitrust implications.

 

III.Exclusions from the Collaboration

 

The Collaboration excludes specific contractual relationships of the Party as outside the Field, as well as excluding certain Party-specific commercial areas (hereinafter referred to as an “Exclusion” or collectively “Exclusions”; when specific to one Party, it shall be referred to as either a Ginkgo Exclusion or Amyris Exclusion) and are enumerated in Table 1 below.

 

 

 
 

Table 1:

Amyris Exclusions Ginkgo Exclusions
[*] Any agreement with a customer that does not require Third Party manufacturing.
Agreements related to the pharmaceuticals market, including without limitation agreements relating to Amyris’ [*] platform Any agreement with a customer relating solely to the [*]
Agreements listed in Section 1.5 and Exhibit 1.5. Certain aspects of the existing agreement with [*] related to the scale-up and manufacture of [*]
  Certain aspects of the existing agreement with [*] related to the scale-up and manufacture of [*]
  Agreements with a Governmental Entity
  Agreements listed in Exhibit 1.23.

 

IV.Opportunities Within the Collaboration

 

If a party sources an opportunity that falls within the scope of the Collaboration (as defined by the Field above) and that is not an Exclusion, the Parties may work together to share any information necessary to structure a potential Customer Agreement in accordance with the Collaboration Agreement. For example, the Parties may jointly develop: (i) a unified business strategy that includes a common pricing structure, (ii) a go-to market position for the Collaboration, (iii) product pricing strategies, (iv) a market, customer and/or geographic allocation as between the Parties, and (v) common forms or templates for use in the Collaboration.

 

V.Opportunities Outside the Collaboration

 

If a party sources an opportunity that falls outside the scope of the Collaboration (as defined by the Field above) and is not subject to an Exclusion (which is addressed separately below), the Parties may not work together or share any information related to such opportunities.

 

VI.Ambiguous Opportunities or Opportunities Relating to One Party’s Exclusions

 

In the event of ambiguity as to whether: (i) an opportunity is within the Collaboration, (ii) is outside the Collaboration, or (iii) is subject to any Exclusion, the opportunity should be summarized accurately but generically in order to describe: (a) the name of the third party with which the opportunity lies, (b) the subject matter of the opportunity, and (c) any other information that may be useful to the Parties in determining whether such opportunity falls within the Collaboration. The summary should be disclosed promptly to the JBDSC (as defined in the Collaboration Agreement) once complete. The JBDSC, with input and guidance from the Executive Committee (as deemed necessary by the JBDSC), will then make a determination if the opportunity falls within the Collaboration, outside of the Collaboration or is subject to an Exclusion and, if subject to an Exclusion, whether any Products encompassed by such opportunity shall be deemed Refused Products under Section 6.2(a)(v) of the Collaboration Agreement.

 

VII.General Dos & Don’ts

 

1.DO exercise independent judgment and, to the extent possible, avoid even the appearance of collusion on opportunities outside the scope of the Collaboration.
2.DO make all pricing decisions independently of the other Party on opportunities that fall outside the Collaboration.

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 

 
 

3.DO NOT make statements—orally or in writing—which exaggerate your company's or the Collaboration’s competitive power or which might suggest a predatory intent.
4.DO NOT suggest that due to your company’s participation in the Collaboration, enhances its ability to exclude competitors; it is all right to suggest truthfully that these factors enhance your company's ability to do things for customers.
5.DO NOT enter into any discussion with the other Party on opportunities that fall outside the scope of the Collaboration – if you are not sure it falls outside, talk to your General Counsel.
6.DO NOT remain at any meetings with the other Party (including informal social gatherings) where opportunities outside the Collaboration are discussed.
7.DO NOT provide business information to the other Party regarding opportunities outside the scope of the Collaboration.
8.DO document the source of any sensitive information you may obtain about an opportunity outside the scope of the Collaboration to avoid any later inference that the information was improperly obtained; if you obtain this information from customers or other third-party sources, document where you obtained the information.
9.DO keep these guidelines in mind as you prepare your day-to-day business correspondence and memoranda, including electronic mail. When matters arise which are related to any of the subjects discussed, consult with the General Counsel in advance to determine how to prepare the necessary documentation.
10.DO consult with your General Counsel immediately if you have any concerns about discussions you may have had with a Party, at a trade association or elsewhere.
11.DO seek guidance from the General Counsel immediately if you receive an inquiry from any government agency, or from any lawyer who purports to represent a customer, competitor, supplier or other third party with a grievance.

 

VIII.Conclusion

 

As mentioned at the beginning, these Guidelines are not intended to make you experts in the antitrust laws and cannot cover all the problems that may arise. You should consult with your manager and/ or the General Counsel when you are in doubt about the legality of any business activity.

 

IX.Contacts

 

 

Ginkgo Bioworks, Inc.:

Shelby J. Walker

General Counsel

 

Amyris, Inc.:

Chris Jaenike

General Counsel, Interim

 

 

 
 

Amyris’ Disclosure Schedules

 

Information contained in any section of these disclosure schedules shall be deemed to be disclosed for purposes of all other sections of the disclosure schedule to the extent that the relevance of any such disclosure to any other section of the disclosure schedules is reasonably apparent on the face of such disclosure.

 

Section 9.2

 

For the avoidance of doubt, it is understood by the Parties that certain provisions of the agreements in Exhibit 1.13 limit the rights and obligations of Amyris granted pursuant to Article II of the Agreement.

 

Section 9.3(a)

 

With respect to section 9.3(a), scheduled exceptions are as follows:

 

Security Interest Granted to Stegodon. Under the certain Loan and Security Agreement dated as of March 29, 2014, as amended on June 12, 2014, March 31, 2015, October 12, 2015, November 30, 2015, May 9, 2016, June 24, 2016 and June 29, 2016 by and between Amyris and Stegodon Corporation, a Delaware corporation, as assignee of Hercules Capital, Inc.(“Stegodon”) (the “Loan and Security Agreement”), Amyris has granted Stegodon a security interest in certain of Amyris’s intellectual property and other collateral.

 

Ordinary Course Licenses and Sublicenses Granted. All licenses and rights granted by Amyris under the Agreement and all of Amyris’s obligations under the Agreement are subject to and qualified by the exclusive and/or non-exclusive licenses and the covenants not to compete that Amyris and its subsidiaries have granted to Third Parties (including the U.S. government in some cases) as of the Effective Date.

 

Section 9.3(b)

 

Regarding payment of royalty

 

Amyris has paid a one-time licensing fee under License Agreement dated [*] between Amyris and the [*].

 

Amyris pays an annual licensing fee under the following agreements with the [*]:

 

Amended and Restated License Agreement effective [*].

 

 

 

Amended and Restated Exclusive Patent and Non-Exclusive Know-how License [*]

 

Amyris pays an annual licensing fee under License Agreement dated [*] between Amyris and [*].

 

Amyris pays an annual licensing fee under the Agreement dated [*] between Amyris and [*].

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 


Amyris has paid a one-time licensing fee under the Agreement on [*] between Amyris and [*] dated [*], Amyris must pay a fee of [*] provided to a third party [*].

 

Regarding receipt of royalty payment

 

Amyris and/or its subsidiaries, in return for the licenses and covenants that Amyris and its subsidiaries have granted to Third Parties as of the Effective Date, receive compensation in various forms from such Third Parties.

 

Regarding licensing to commercially exploit any of Amyris’s Intellectual Property

 

See Section 9.3(a) and response in 9.3(b) regarding receipt of royalty payment

 

Section 9.3(c)

 

During the ordinary course of business, Amyris has ongoing examinations, prosecutions, and appeal proceedings for patent and trademark applications with the U.S. Patent & Trademark Office and foreign counterpart offices or government entities.

 

[*]

 

 

 

[*]

 

Section 9.3 (e)

 

[*]

 

 

 

Section 9.6

 

The molecules contemplated by (i) the Intellectual Property (A) excluded from the definition of Non-Collaboration Intellectual Property in Section 1.34 and (B) listed on Exhibit 1.34, and (ii) the agreements listed (A) in the definition of Amyris Customer Agreement in Section 1.5 and (B) on Exhibit 1.5.

 

 

 

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 
 

SCHEDULE 9.1

 

Ginkgo’s Disclosure Schedules

 

Information contained in any section of these disclosure schedules shall be deemed to be disclosed for purposes of all other sections of the disclosure schedule to the extent that the relevance of any such disclosure to any other section of the disclosure schedules is reasonably apparent on the face of such disclosure.

 

Section 9.2

 

For the avoidance of doubt, it is understood by the Parties that certain provisions of the agreements in Exhibit 1.13 limit the rights and obligations of Ginkgo granted pursuant to Article II of the Agreement.

 

Section 9.3(a)

 

With respect to section 9.3(a), scheduled exceptions are as follows:

 

Ordinary Course Licenses and Sublicenses Granted. All licenses and rights granted by Ginkgo under the Agreement and all of Ginkgo’s obligations under the Agreement are subject to and qualified by the exclusive and/or non-exclusive licenses and the covenants not to compete that Ginkgo and its affiliates have granted to Third Parties (including the U.S. government in some cases) as of the Effective Date.

 

Section 9.3(b)

 

Regarding receipt of royalty payment

 

Ginkgo and/or its affiliates, in return for the licenses and covenants that Ginkgo and its affiliates have granted to Third Parties as of the Effective Date, receive compensation in various forms from such Third Parties.

 

Regarding licensing to commercially exploit any of Ginkgo’s Intellectual Property

 

See Section 9.3(a) and response in 9.3(b) regarding receipt of royalty payment

 

Section 9.3(c)

 

During the ordinary course of business, Ginkgo has ongoing examinations, prosecutions, and appeal proceedings for patent and trademark applications with the U.S. Patent & Trademark Office and foreign counterpart offices or government entities.

 

 

EX-31.01 7 exh_3101.htm EXHIBIT 31.01

Exhibit 31.01

 

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

 

PURSUANT TO RULE 13a-14(c) and 15d-(14(a) OF THE SECURITIES EXCHANGE ACT OF 1934

 

I, John Melo, certify that:

 

1.I have reviewed this Quarterly Report on Form 10-Q of Amyris, Inc.;
   
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
   
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
   
4.The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
   
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
   
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
   
c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
   
d)Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
   
5.The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
   
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
   
b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

 

       
Date: November 9, 2016     /s/  JOHN G. MELO
      John Melo
      President and Chief Executive Officer

 

EX-31.02 8 exh_3102.htm EXHIBIT 31.02

Exhibit 31.02

 

CERTIFICATION OF CHIEF FINANCIAL OFFICER

 

PURSUANT TO RULE 13a-14(c) and 15d-(14(a) OF THE SECURITIES EXCHANGE ACT OF 1934

 

I, Raffi Asadorian, certify that:

 

1.I have reviewed this Quarterly Report on Form 10-Q of Amyris, Inc.;
   
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
   
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
   
4.The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
   
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
   
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
   
c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
   
d)Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
   
5.The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
   
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
   
b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

 

       
Date: November 9, 2016     /s/  RAFFI ASADORIAN
      Raffi Asadorian
      Chief Financial Officer

 

EX-32.01 9 exh_3201.htm EXHIBIT 32.01

Exhibit 32.01

 

Certification of CEO Furnished Pursuant to 18 U.S.C. Section 1350,

As Adopted Pursuant To

Section 906 of The Sarbanes-Oxley Act of 2002

 

In connection with the Quarterly Report of Amyris, Inc. (the “Company”) on Form 10-Q for the quarterly period ended September 30, 2016, as filed with the Securities and Exchange Commission on the date hereof, I, John Melo, Chief Executive Officer of the Company, certify for the purposes of section 1350 of chapter 63 of title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge,

 

(i) the Quarterly Report of the Company on Form 10-Q for the quarterly period ended September 30, 2016 (the “Report”), fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, and

 

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

 

Date: November 9, 2016     /s/  JOHN G. MELO
      John Melo
      President and Chief Executive Officer
      (Principal Executive Officer)

 

 

 

 

EX-32.02 10 exh_3202.htm EXHIBIT 32.02

Exhibit 32.02

 

Certification of CFO Furnished Pursuant to 18 U.S.C. Section 1350,

As Adopted Pursuant To

Section 906 of The Sarbanes-Oxley Act of 2002

 

In connection with the Quarterly Report of Amyris, Inc. (the “Company”) on Form 10-Q for the quarterly period ended September 30, 2016, as filed with the Securities and Exchange Commission on the date hereof, I, Raffi Asadorian, Chief Financial Officer of the Company, certify for the purposes of section 1350 of chapter 63 of title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge,

 

(i) the Quarterly Report of the Company on Form 10-Q for the quarterly period ended September 30, 2016 (the “Report”), fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, and

 

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

       
Date: November 9, 2016     /s/  RAFFI ASADORIAN
      Raffi Asadorian
      Chief Financial Officer
      (Principal Financial Officer)

 

 

 

 

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background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">SMA relocation accrual</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,380</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,641</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Accrued interest</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">8,283</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,984</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Tax-related liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,325</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,505</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Accrued vacation</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,932</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,023</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Payroll and related expenses</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,268</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,122</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Deferred rent, current portion</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,110</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,111</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Contractual obligations to contract manufacturers</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">680</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Fair value swap short-term</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">586</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Other</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">978</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,142</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total accrued and other current liabilities</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">34,912</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">24,268</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold; text-align: left; padding-left: 20pt">Years ending December&nbsp;31:</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Capital<br /> Leases</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Operating<br /> Leases</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Total Lease <br /> Obligations</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 64%; font-size: 10pt; text-align: left">2016 (remaining three months)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">471</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">1,762</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2,233</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">2017</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">525</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,888</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7,413</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">2018</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">28</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,890</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,918</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">2019</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,777</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,777</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">2020</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7,008</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7,008</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 1.1pt; text-align: left">Thereafter</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">18,210</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">18,210</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Total future minimum lease payments</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,024</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">47,535</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">48,559</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: amount representing interest</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(26</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Present value of minimum lease payments</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">998</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: current portion</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(942</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Long-term portion</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">56</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> 1 3000000 5898952 2.72 P1Y142D 50000 15426 4385964 30935344 5000000 13506000 3000 13506000 2500000 P2D <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Unaudited Interim Financial Information</div></div></div><div style=" font-size: 10pt; text-indent: 12pt; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The accompanying interim condensed consolidated financial statements and related disclosures are unaudited, have been prepared on the same basis as the annual consolidated financial statements, except for the impact of adoption of certain accounting standards as described below, and in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary for a fair statement of the results of operations for the periods presented. In the quarter ended March 31, 2016 the Company adopted Accounting Standards Update (&#x201c;ASU&#x201d;) No. 2015-01, <div style="display: inline; font-style: italic;">Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items, </div>ASU No. 2015-02, <div style="display: inline; font-style: italic;">Consolidation</div> (Topic 810), ASU No. 2015-03, <div style="display: inline; font-style: italic;">Interest - Imputation of Interest</div> (Subtopic 835-30): <div style="display: inline; font-style: italic;">Simplifying the Presentation of Debt Issuance Costs</div>, ASU 2015-05, <div style="display: inline; font-style: italic;">Intangibles - Goodwill and Other - Internal-Use Software</div> (Subtopic 350-40) and ASU No. 2015-15, <div style="display: inline; font-style: italic;">Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements</div>. Refer to Note 5. &quot;Debt&quot; for the impact of adoption of ASU No. 2015-03 on the Company's condensed consolidated financial statements. None of the other ASU&#x2019;s adopted had a material impact on the Company&#x2019;s condensed consolidated financial statements.</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The year-end condensed consolidated balance sheet data was derived from audited financial statements, but does not include all disclosures required by GAAP. The condensed consolidated results of operations for any interim period are not necessarily indicative of the results to be expected for the full year or for any other future year or interim period.</div></div></div></div></div></div></div></div></div> 200000 1100000 400000 1500000 100000 100000 0 300000 100000 5200000 1 2 2 -110600000 false --12-31 Q3 2016 2016-09-30 10-Q 0001365916 263016079 Yes Accelerated Filer AMYRIS, INC. No No amrs 22000000 6800000 13756000 7943000 5707000 4004000 700000 1200000 0 500000 651000 1176000 5304000 34912000 24268000 5406000 4017000 1932000 2023000 400000 500000 84459000 72822000 -39801000 -47198000 -39801000 -47198000 963075000 926216000 5645000 5645000 4387000 4387000 481000 530000 1457000 1776000 1327000 1726000 4191000 5188000 1808000 2256000 5648000 6964000 23000 479000 9190000 54633000 13860918 11307679 13860918 11307679 66474148 43451433 23760389 43451433 14663411 2901926 14663411 2901926 7474555 3558243 7474555 3558243 102473032 61219281 59759273 61219281 99419000 106116000 21117000 34377000 1772000 1772000 3598000 3598000 1713000 1713000 1520000 1520000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Basis of Presentation</div></div></div><div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The accompanying interim condensed consolidated financial statements have been prepared in accordance with the accounting principles generally accepted in the United States of America (or &#x201c;GAAP&#x201d;) and with the instructions for Form 10-Q and Regulation S-X. Accordingly, they do not include all of the information and notes required for complete financial statements. These interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto contained in the Company&#x2019;s Form 10-K for the fiscal year ended December 31, 2015 as filed with the Securities and Exchange Commission (or the &#x201c;SEC&#x201d;) on March 30, 2016. The unaudited condensed consolidated financial statements include the accounts of the Company and its consolidated subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company uses the equity method to account for investments in companies, if its investments provide it with the ability to exercise significant influence over operating and financial policies of the investee. Consolidated net income or loss includes the Company&#x2019;s proportionate share of the net income or loss of these companies. Judgments made by the Company regarding the level of influence over each equity method investment include considering key factors such as the Company&#x2019;s ownership interest, representation on the board of directors, participation in policy-making decisions and material intercompany transactions.</div></div></div></div></div></div></div></div></div> 35000000 942000 523000 56000 176000 1024000 471000 28000 525000 26000 998000 100000 100000 582000 11992000 42047000 10903000 59000 59000 2078000 2078000 -11410000 -31144000 2300000 0.01 0.01 0.01 0.01 0.01 0.50 0.01 10.67 0.50 1000000 1000000 18924191 2000000 14677861 2000000 880339 1000000 127194 2335342 12700244 2571428 285714 2285714 5000000000000 10000000 2462536 14663411 50699368 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">8. Significant Agreements</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Research and Development Activities</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Total Collaboration Arrangement</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In June 2010, the Company entered into a technology license, development, research and collaboration agreement (or the &#x201c;Total Collaboration Agreement&#x201d;) with Total Gas&nbsp;&amp; Power USA Biotech, Inc., an affiliate of Total. This agreement provided for joint collaboration on the development of products through the use of the Company&#x2019;s synthetic biology platform. In November 2011, the Company entered into a first amendment of the Total Collaboration Agreement with respect to development and commercialization of Biofene for fuels. This represented an expansion of the initial collaboration with Total, and established a global, exclusive collaboration for the development of Biofene for fuels and a framework for the creation of a joint venture to manufacture and commercialize Biofene for diesel. In addition, a limited number of other potential products were subject to development by the joint venture on a non-exclusive basis.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The first amendment provided for an exclusive strategic collaboration for the development of renewable diesel products and contemplated that the parties would establish a joint venture (or the &#x201c;JV&#x201d;) for the production and commercialization of such renewable diesel products on an exclusive, worldwide basis. In addition, the first amendment contemplated providing the JV with the right to produce and commercialize certain other chemical products on a non-exclusive basis. The first amendment further provided that definitive agreements to form the JV had to be in place by March&nbsp;31, 2012 or such other date as agreed to by the parties or the renewable diesel program, including any further collaboration payments by Total related to the renewable diesel program, would terminate. In the second quarter of 2012, the parties extended the deadline to June 30, 2012, and, through June 30, 2012, the parties were engaged in discussions regarding the structure of future payments related to the program, until the first amendment was superseded by a second amendment in July 2012 (as further described below).</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Pursuant to the first amendment, Total agreed to fund the following amounts: (i)&nbsp;the first $30.0 million in research and development costs related to the renewable diesel program incurred since August&nbsp;1, 2011, which amount would be in addition to the $50.0 million in research and development funding contemplated by the Total Collaboration Agreement, and (ii)&nbsp;for any research and development costs incurred following the JV formation date that were not covered by the initial $30.0 million, an additional $10.0 million in 2012 and up to an additional $10.0 million in 2013, which amounts would be considered part of the $50.0 million contemplated by the Total Collaboration Agreement. In addition to these payments, Total further agreed to fund 50%&nbsp;of all remaining research and development costs for the renewable diesel program under the Amendment.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In July 2012, the Company entered into a second amendment of the Total Collaboration Agreement that expanded Total&#x2019;s investment in the Biofene collaboration, incorporated the development of certain JV products for use in diesel and jet fuel into the scope of the collaboration, and changed the structure of the funding from Total for the collaboration by establishing a convertible debt structure for the collaboration funding (see Note 5, &#x201c;Debt&#x201d;). In connection with such second amendment Total and the Company also executed certain other related agreements. Under these agreements (collectively referred to as the &#x201c;Total Fuel Agreements&#x201d;), the parties would grant exclusive manufacturing and commercial licenses to the JV for the JV products (diesel and jet fuel from Biofene) when the JV was formed. The licenses to the JV were to be consistent with the principle that development, production and commercialization of the JV products in Brazil would remain with Amyris unless Total elected, after formation of the operational JV, to have such business contributed to the joint venture. Further, as part of the Total Fuel Agreements, Total's royalty option contingency related to diesel was removed and the jet fuel collaboration was combined with the expanded Biofene collaboration. As a result, $46.5 million of payments previously received from Total that had been recorded as an advance from Total were no longer contingently repayable. Of this amount, $23.3 million was treated as a repayment by the Company and included as part of the senior unsecured convertible promissory note issued to Total in July 2012 and the remaining $23.2 million was recorded as a contract to perform research and development services, which was offset by the reduction of the capitalized deferred charge asset of $14.4 million resulting in the Company recording revenue from a related party of $8.9 million in 2012. On March 21, 2016, the Company and Total consummated a restructuring of the JV pursuant to a letter agreement dated July 26, 2015, as amended on February 12, 2016, which restructuring included, among other things, the parties amending certain of the Total Fuel Agreements and the Company selling part of its ownership stake in the JV to Total in exchange for Total cancelling certain outstanding indebtedness issued to Total by the Company. In July 2016, the Company and Total agreed to extend the term of the Total Collaboration Agreement from July 31, 2016 to March 1, 2017 pursuant to the terms of the Total Collaboration Agreement. See Note 5, &quot;Debt&quot; and Note 7, &quot;Joint Ventures and Noncontrolling Interest&quot; for further details of the Company&#x2019;s relationship with Total.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 42 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">F&amp;F Collaboration Agreement</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In March&nbsp;2013, the Company entered into a Master Collaboration Agreement (or, as amended in July 2015, the &#x201c;F&amp;F Collaboration Agreement&#x201d;) with a collaboration partner to establish a collaboration arrangement for the development and commercialization of multiple renewable flavors and fragrances compounds. Under the F&amp;F Collaboration Agreement, except for rights granted under pre-existing collaboration relationships, the Company granted the collaboration partner exclusive access to specified Company intellectual property for the development and commercialization of flavors and fragrances compounds in exchange for research and development funding and a profit sharing arrangement. The F&amp;F Collaboration Agreement superseded and expanded the November 2010 Master Collaboration and Joint Development Agreement between the Company and the collaboration partner.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The F&amp;F Collaboration Agreement provided for annual, up-front funding to the Company by the collaboration partner of $10.0 million for each of the first three years of the collaboration. Payments of $10.0 million were received by the Company in each of March 2013, 2014 and 2015. The F&amp;F Collaboration Agreement contemplates additional funding by the collaboration partner of up to $5.0 million under four potential milestone payments, as well as additional funding by the collaboration partner on a discretionary basis. Through September 2016, the Company had achieved the third performance milestone under the F&amp;F Collaboration Agreement and recognized collaboration revenues of $1.3 million under the F&amp;F Collaboration Agreement for the three months ended September 30, 2016 and $5.5 million for the nine months ended September 30, 2016. The F&amp;F Collaboration Agreement does not impose any specific research and development obligations on either party after year six, but provides that if the parties mutually agree to perform research and development activities after year six, the parties will fund such activities equally.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Under the F&amp;F Collaboration Agreement, the parties agreed to jointly select target compounds, subject to final approval of compound specifications by the collaboration partner. During the development phase, the Company would be required to provide labor, intellectual property and technology infrastructure and the collaboration partner would be required to contribute downstream polishing expertise and market access. The F&amp;F Collaboration Agreement provides that the Company will own research and development and strain engineering intellectual property, and the collaboration partner will own blending and, if applicable, chemical conversion intellectual property. Under certain circumstances, such as the Company&#x2019;s insolvency, the collaboration partner would gain expanded access to the Company&#x2019;s intellectual property. The F&amp;F Collaboration Agreement contemplates that, following development of flavors and fragrances compounds, the Company will manufacture the initial target molecules for the compounds and the collaboration partner will perform any required downstream polishing and distribution, sales and marketing. The F&amp;F Collaboration Agreement provides that the parties will mutually agree on a supply price for each compound developed under the agreement and, subject to certain exceptions, will share product margins from sales of each such compound on a 70/30 basis (70% for the collaboration partner) until the collaboration partner receives $15.0 million more than the Company in the aggregate from such sales, after which time the parties will share the product margins 50/50. The Company also agreed to pay a one-time success bonus to the collaboration partner of up to $2.5 million if certain commercialization targets are met.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In September 2014, the Company entered into a supply agreement with the collaboration partner for a compound developed under the F&amp;F Collaboration Agreement. The Company recognized $0.1 million and $1.3 million of revenues from product sales under this agreement for the three months ended September 30, 2016 and 2015, respectively and $4.7 million and $1.3 million for the nine months ended September 30, 2016 and 2015.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 43 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Michelin and Braskem Collaboration Agreements</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In June 2014, the Company entered into a collaboration agreement with Braskem S.A. (or &#x201c;Braskem&#x201d;) and Manufacture Francaise de Pnematiques Michelin (or &#x201c;Michelin&#x201d;) to collaborate to develop the technology to produce and possibly commercialize renewable isoprene. The term of the collaboration agreement commenced on June 30, 2014 and will continue, unless earlier terminated in accordance with the agreement, until the first to occur of (i) the date that is three years following the actual date on which a work plan is completed, which date is estimated to occur on or about December 30, 2020, or (ii) the date of the commencement of commissioning of a production plant for the production of renewable isoprene. The June 2014 collaboration agreement terminated and superseded the September 2011 collaboration agreement between the Company and Michelin and, as a result of the signing of the June 2014 collaboration agreement, the upfront payment by Michelin of $5.0 million under the September 2011 collaboration agreement was rolled forward into the new collaboration agreement as Michelin&#x2019;s funding towards the research and development activities to be performed under the new collaboration agreement. Braskem contributed $4.0 million of funding to the research and development activities under the June 2014 collaboration agreement, of which $2.0 million was received in July 2014 and $2.0 million was received in January 2015.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">For this collaboration agreement, the Company recognized collaboration revenues of zero and zero for the three months ended September 30, 2016 and 2015, respectively, and $0.1 million and $1.9 million for the nine months ended September 30, 2016 and 2015, respectively. As of September 30, 2016 and 2015, $6.5 million and $6.3 million, respectively, of deferred revenues were recorded in the condensed consolidated balance sheet related to these agreements.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Kuraray Collaboration Agreement and Securities Purchase Agreement</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In March 2014, the Company entered into the Second Amended and Restated Collaboration Agreement with Kuraray Co., Ltd (or &#x201c;Kuraray&#x201d;) in order to extend the term of the original collaboration agreement between the Company and Kuraray dated July&nbsp;21, 2011 for an additional two years and add additional fields and products to the scope of development. In consideration for the Company&#x2019;s agreement to extend the term of the original collaboration agreement and add additional fields and products, Kuraray agreed to pay the Company $4.0 million in two equal installments of $2.0 million. The first installment was paid on April&nbsp;30, 2014 and the second installment was due on April&nbsp;30, 2015. In connection with entering into the Second Amended and Restated Collaboration Agreement, Kuraray signed a Securities Purchase Agreement in March 2014 to purchase 943,396 shares of the Company's common stock at a price per share of $4.24 per share, which shares were sold and issued in April 2014 for aggregate cash proceeds to the Company of $4.0 million. In March 2015, the Company and Kuraray entered into the First Amendment to the Second Amended and Restated Collaboration Agreement to extend the term of the original collaboration agreement until December 31, 2016 and to accelerate payment to the Company of the second installment of $2.0 million due from Kuraray under the Second Amended and Restated Collaboration Agreement to March 31, 2015.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company recognized collaboration revenues of $0.4 million and $0.3 million for the three months ended September&nbsp;30, 2016 and 2015, and $1.1 million and $1.2 million for the nine months ended September 30, 2016 and 2015, respectively, under this agreement.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">DARPA</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In September 2015, the Company entered into a Technology Investment Agreement (or the &#x201c;2015 TIA&#x201d;) with The Defense Advanced Research Projects Agency (or &#x201c;DARPA&#x201d;), under which the Company, with the assistance of five specialized subcontractors, will work to create new research and development tools and technologies for strain engineering and scale-up activities. The program that is the subject of the 2015 TIA will be performed and funded on a milestone basis, where DARPA, upon the Company&#x2019;s successful completion of each milestone event in the 2015 TIA, will pay the Company the amount set forth in the 2015 TIA corresponding to such milestone event. Under the 2015 TIA, the Company and its subcontractors could collectively receive DARPA funding of up to $35.0 million over the program&#x2019;s four year term if all of the program&#x2019;s milestones are achieved. In conjunction with DARPA&#x2019;s funding, the Company and its subcontractors are obligated to collectively contribute approximately $15.5 million toward the program over its four year term (primarily by providing specified labor and/or purchasing certain equipment). The Company can elect to retain title to the patentable inventions it produces under the program, but DARPA receives certain data rights as well as a government purposes license to certain of such inventions. Either party may, upon written notice and subject to certain consultation obligations, terminate the 2015 TIA upon a reasonable determination that the program will not produce beneficial results commensurate with the expenditure of resources.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 44 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The Company recognized collaboration revenues of $1.3 million and zero under this agreement for the three months ended September 30, 2016 and 2015, respectively, and $4.8 million and zero for the nine months ended September 30, 2016 and 2015, respectively.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Givaudan Collaboration Agreement</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In June 2016, the Company entered into a Collaboration Agreement with Givaudan International, SA (or &#x201c;Givaudan&#x201d;), a global flavors and fragrances company, to establish a collaboration for the development and commercialization of certain renewable compounds for use in the fields of active cosmetics and flavors. Under this collaboration agreement, the Company will use its labor, intellectual property and technology infrastructure to develop and commercialize certain compounds for Givaudan. In exchange, Givaudan will pay to the Company $12.0 million in semi-annual installments of $3.0 million each, beginning on June 30, 2016. The Company received the first installment of $3.0 million on June 30, 2016 and this amount was recognized in deferred revenue as of that date.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Pursuant to this collaboration agreement, the Company will grant to Givaudan an exclusive license to the intellectual property that the Company generates under the agreement. Such license will include the rights to make, use and sell compounds in the active cosmetics and flavors fields, and is subject to certain &#x2018;claw back&#x2019; rights by the Company if a compound is not commercialized by Givaudan during the term of the agreement. The Company will also grant to Givaudan non-exclusive rights to certain portions of the Company&#x2019;s existing intellectual property in order to facilitate activities under the agreement. Givaudan, on the other hand, will grant to the Company a non-exclusive license to the intellectual property that is generated under the agreement. Such non-exclusive license will include the rights to make, use and sell compounds in all fields except active cosmetics and flavors.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Subject to certain rights granted to a third party, Givaudan will have the exclusive right to commercialize the compounds in the active cosmetics and flavors markets during the term of the agreement. Further, the Company has agreed that it will not assist any third party in the development or commercialization of other compounds for sale or use in the active cosmetics or flavors markets during the term of the agreement. In addition, the agreement contemplates that the Company will be the primary supplier of commercial quantities of the compounds to Givaudan pursuant to supply agreements to be mutually negotiated by the parties.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The Company recognized collaboration revenues of $1.6 million under this agreement for the three months ended September 30, 2016.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in"><div style="display: inline; font-style: italic;">Ginkgo Initial Strategic Partnership Agreement and Collaboration Agreement</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In June 2016, the Company entered into an Initial Strategic Partnership Agreement (or the &#x201c;Initial Ginkgo Agreement&#x201d;) with Ginkgo Bioworks, Inc. (or &#x201c;Ginkgo&#x201d;), pursuant to which the Company licensed certain intellectual property to Ginkgo in exchange for a fee of $20.0 million, to be paid by Ginkgo to the Company in two installments, and a ten percent royalty. The first installment of $15.0 million was received on July 25, 2016. The second installment, in the amount of $5.0 million is to be received, based upon the satisfaction of certain conditions as set forth below, by March 31, 2017. The Company recognized $15 million of collaboration revenue under the Initial Ginkgo Agreement for the three months ended September 30, 2016. Furthermore, in connection with the Initial Ginkgo Agreement, on June 29, 2016, the Company received a deferment of all scheduled principal repayments under the Senior Secured Loan Facility, the lender and administrative agent under which is an affiliate of Ginkgo, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In addition, addition, pursuant to the Initial Ginkgo Agreement, the Company and Ginkgo agreed to pursue the negotiation and execution of a detailed definitive partnership and license agreement setting forth the terms of a commercial partnership and collaboration arrangement between the parties (or the &#x201c;Collaboration&#x201d;) and, in connection with the entry into the Initial Ginkgo Agreement, on June 29, 2016, the Company received a deferment of all scheduled principal repayments under the Senior Secured Loan Facility, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016. Furthermore, pursuant to the Initial Ginkgo Agreement, in connection with the execution of the definitive agreement for the Collaboration, (i) the Company would issue to Ginkgo an option to purchase five million shares of common stock of the Company at an exercise price of $0.50, exercisable for one year from the date of issuance and (ii) the parties would effect an amendment of the Company&#x2019;s Senior Secured Loan Facility to (x) extend the maturity date of all outstanding loans under the Senior Secured Loan Facility, (y) waive any required amortization payments under the Senior Secured Loan Facility until maturity and (z) eliminate the Minimum Cash Covenant under the Senior Secured Loan Facility.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 45 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">On August 6, 2016, the Company issued to Ginkgo a warrant to purchase five million shares of the Company&#x2019;s common stock at an exercise price of $0.50 per share, exercisable for one year from the date of issuance. The warrant was issued prior to the execution of the definitive agreement for the Collaboration in connection with the transfer of certain information technology from Ginkgo to the Company.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On September 30, 2016, the Company and Ginkgo entered into a Collaboration Agreement (or the &#x201c;Ginkgo Collaboration Agreement&#x201d;) setting forth the terms of the Collaboration, under which the parties will collaborate to develop, manufacture and sell commercial products and will share in the value created thereby. The Ginkgo Collaboration Agreement provides that, subject to certain exceptions, all third party contracts for the development of chemical small molecule compounds whose manufacture is enabled by the use of microbial strains and fermentation technologies that are entered into by the Company or Ginkgo during the term of the Ginkgo Collaboration Agreement will be subject to the Collaboration and the approval of the other party (not to be unreasonably withheld). Responsibility for the engineering and small-scale process development of the newly developed products will be allocated between the parties on a project-by-project basis, and the Company will be principally responsible for the commercial scale-up and production of such products, with each party generally bearing their own respective costs and expenses relating to the Collaboration, including capital expenditures. Notwithstanding the foregoing, subject to the Company sourcing funding and breaking ground on a new production facility by March 30, 2017, Ginkgo will pay the Company a fee of $5 million on or before March 31, 2017.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">Under the Ginkgo Collaboration Agreement, subject to certain exceptions, including excluded or refused products and cost savings initiatives, the profit on the sale of products subject to the Ginkgo Collaboration Agreement as well as cost-sharing, milestone and &#x201c;value-creation&#x201d; payments associated with the development and production of such products will be shared equally between the parties. The parties also agreed to provide each other with a license and other rights to certain intellectual property necessary to support the development and manufacture of the products under the Collaboration, and also to provide each other with access to certain other intellectual property useful in connection with the activities to be undertaken under the Ginkgo Collaboration Agreement, subject to certain carve-outs.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The initial term of the Ginkgo Collaboration Agreement is three years, and will automatically renew for successive one-year terms unless either party provides written notice of termination not less than 90 days prior to the expiration of the then-current term, subject to the right of the parties to terminate the Ginkgo Collaboration Agreement by mutual agreement, in the event of a material breach by the other party, or in the event the other party undergoes a change of control. In addition, the Ginkgo Collaboration Agreement provides that the parties will evaluate the performance of the Collaboration as of the 18-month anniversary of the Ginkgo Collaboration Agreement, and if either party has been repeatedly unable to perform or meet its commitments under the Ginkgo Collaboration Agreement, the other party will have the right to terminate the Ginkgo Collaboration Agreement on 30 days written notice.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The Ginkgo Collaboration Agreement contains customary representations and warranties of the parties, as well as customary terms and provisions regarding, among other things, indemnification, dispute resolution, governing law and confidentiality.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">See Note 18, &#x201c;Subsequent Events&#x201d; for additional details regarding the amendment to the Company&#x2019;s Senior Secured Loan Facility entered into in connection with the execution of the Ginkgo Collaboration Agreement.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 46 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Financing Agreements</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Bill &amp; Melinda Gates Foundation Investment</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">On April&nbsp;8, 2016, the Company entered into a Securities Purchase Agreement with the Bill&nbsp;&amp; Melinda Gates Foundation (the &#x201c;Gates Foundation&#x201d;), pursuant to which the Company agreed to sell and issue 4,385,964 shares of its common stock to the Gates Foundation in a private placement at a purchase price per share equal to $1.14, the average of the daily closing price per share of the Company&#x2019;s common stock on the NASDAQ Stock Market for the twenty consecutive trading days ending on April&nbsp;7, 2016, for aggregate proceeds to the Company of approximately $5,000,000 (the &#x201c;Gates Foundation Investment&#x201d;). The Securities Purchase Agreement includes customary representations, warranties and covenants of the parties.&nbsp; The closing of the Gates Foundation Investment occurred on May 10, 2016.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In connection with the entry into the Securities Purchase Agreement, on April&nbsp;8, 2016, the Company and the Gates Foundation entered into a Charitable Purposes Letter Agreement, pursuant to which the Company agreed to expend an aggregate amount not less than the amount of the Gates Foundation Investment to develop a yeast strain that produces artemisinic acid and/or amorphadiene at a low cost and to supply such artemisinic acid and amorphadiene to companies qualified to convert artemisinic acid and amorphadiene to artemisinin for inclusion in artemisinin combination therapies used to treat malaria commencing in 2017. If the Company defaults in its obligation to use the proceeds from the Gates Foundation Investment as set forth above or defaults under certain other commitments in the Charitable Purposes Letter Agreement, the Gates Foundation will have the right to request that the Company redeem, or facilitate the purchase by a third party of, the Gates Foundation Investment shares then held by the Gates Foundation at a price per share equal to the greater of (i) the closing price of the Company&#x2019;s common stock on the trading day prior to the redemption or purchase, as applicable, or (ii) an amount equal to $1.14 plus a compounded annual return of 10%. The funding received is classified as mezzanine equity.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">2016 Convertible Note Offering</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; margin: 0pt 0; text-indent: 0.5in">See Note 5, &#x201c;Debt&#x201d; for details regarding the 2016 Convertible Note Offering.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">February and June 2016 Private Placements</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; margin: 0pt 0; text-indent: 0.5in">See Note 5, &#x201c;Debt&#x201d; for details regarding the February and June 2016 Private Placements.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">At Market Issuance Sales Agreement</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">On March 8, 2016, the Company entered into an At Market Issuance Sales Agreement (the &#x201c;ATM Sales Agreement&#x201d;) with FBR Capital Markets &amp; Co. and MLV &amp; Co. LLC (the &#x201c;Agents&#x201d;) under which the Company may issue and sell shares of its common stock having an aggregate offering price of up to $50.0 million (the &#x201c;ATM Shares&#x201d;) from time to time through the Agents, acting as its sales agents, under the Company&#x2019;s Registration Statement on Form S-3 (File No. 333-203216), effective April 15, 2015. Sales of the ATM Shares through the Agents, if any, will be made by any method that is deemed an &#x201c;at the market offering&#x201d; as defined in Rule 415 under the Securities Act, including by means of ordinary brokers&#x2019; transactions at market prices, in block transactions, or as otherwise agreed by the Company and the Agents. Each time that the Company wishes to issue and sell ATM Shares under the ATM Sales Agreement, the Company will notify one of the Agents of the number of ATM Shares to be issued, the dates on which such sales are anticipated to be made, any minimum price below which sales may not be made and other sales parameters as the Company deems appropriate. The Company will pay the designated Agent a commission rate of up to 3.0% of the gross proceeds from the sale of any ATM Shares sold through such Agent as agent under the ATM Sales Agreement. The ATM Sales Agreement contains customary terms, provisions, representations and warranties. The ATM Sales Agreement includes no commitment by other parties to purchase shares the Company offers for sale.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 47 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">During the nine months ended September 30, 2016, the Company did not sell any shares of common stock under the ATM Sales Agreement. As of the date hereof, $50.0 million remained available for future sales under the ATM Sales Agreement.</div></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">6. Commitments and Contingencies</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Lease Obligations</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.25in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company leases certain facilities and finances certain equipment under operating and capital leases, respectively. Operating leases include leased facilities and capital leases include leased equipment (see Note 4, &quot;Balance Sheet Components&quot;). The Company recognizes rent expense on a straight-line basis over the non-cancellable lease term and records the difference between rent payments and the recognition of rent expense as a deferred rent liability. Where leases contain escalation clauses, rent abatements, and/or concessions, such as rent holidays and landlord or tenant incentives or allowances, the Company applies them as a straight-line rent expense over the lease term. The Company has non-cancellable operating lease agreements for office, research and development, and manufacturing space that expire at various dates, with the latest expiration in February 2031. Rent expense under operating leases was $1.3 million and $1.4 million for the three months ended September&nbsp;30, 2016 and 2015, respectively, and was $4.0 million and $3.9 million for the nine months ended September 30, 2016 and 2015, respectively.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">Future minimum payments under the Company's lease obligations as of September&nbsp;30, 2016, are as follows (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold; text-align: left; padding-left: 20pt">Years ending December&nbsp;31:</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Capital<br /> Leases</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Operating<br /> Leases</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Total Lease <br /> Obligations</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 64%; font-size: 10pt; text-align: left">2016 (remaining three months)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">471</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">1,762</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2,233</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">2017</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">525</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,888</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7,413</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">2018</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">28</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,890</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,918</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">2019</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,777</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,777</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">2020</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7,008</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7,008</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 1.1pt; text-align: left">Thereafter</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">18,210</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">18,210</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Total future minimum lease payments</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,024</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">47,535</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">48,559</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: amount representing interest</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(26</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Present value of minimum lease payments</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">998</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: current portion</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(942</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Long-term portion</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">56</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Guarantor Arrangements</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company has agreements whereby it indemnifies its officers and directors for certain events or occurrences while the officer or directors are serving in their official capacities. The indemnification period remains enforceable for the officer's or director&#x2019;s lifetime. The maximum potential amount of future payments the Company could be required to make under these indemnification agreements is unlimited; however, the Company has a director and officer insurance policy that limits its exposure and enables the Company to recover a portion of any future payments. As a result of its insurance policy coverage, the Company believes the estimated fair value of these indemnification agreements is minimal. Accordingly, the Company had no liabilities recorded for these agreements as of September&nbsp;30, 2016 and December&nbsp;31, 2015.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company entered into the FINEP Credit Facility to finance a research and development project on sugarcane-based biodiesel (see Note 5, &quot;Debt&quot;). The FINEP Credit Facility is guaranteed by a chattel mortgage on certain equipment of the Company. The Company's total acquisition cost for the equipment under this guarantee is approximately R$6.0 million (approximately US$1.8 million based on the exchange rate as of September&nbsp;30, 2016).</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 34 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company entered into the BNDES Credit Facility to finance a production site in Brazil (see Note 5, &quot;Debt&quot;).The BNDES Credit Facility is collateralized by a first priority security interest in certain of the Company's equipment and other tangible assets with a total acquisition cost of R$24.9 million (approximately US$7.7 million based on the exchange rate as of September&nbsp;30, 2016). The Company is a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, the Company is required to provide certain bank guarantees under the BNDES Credit Facility.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company entered into loan agreements and security agreements whereby the Company pledged certain farnesene production assets as collateral (the fiduciary conveyance of movable goods) with each of Nossa Caixa and Banco Pine (see Note 5, &quot;Debt&quot;). The Company's total acquisition cost for the farnesene production assets pledged as collateral under these agreements is approximately R$68.0 million (approximately US$20.9 million based on the exchange rate as of September&nbsp;30, 2016). The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements.&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company had an export financing agreement with Banco ABC Brasil S.A for approximately $2.2 million for a one year term to fund exports through March 2015. As of September&nbsp;30, 2016, the loan was fully repaid. On April 8, 2015, the Company entered into another export financing agreement with the same bank for approximately $1.6 million for a one year term to fund exports through March 2016. The loan was fully repaid as of September 30, 2016. This loan is collateralized by future exports from Amyris Brasil. The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements.&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In October 2013, the Company entered into a letter agreement with Total relating to the Temasek Bridge Note and to the closing of the August 2013 Financing (or the &quot;Amendment Agreement&quot;) (see Note 5, &quot;Debt&quot;). In the August 2013 Financing, the Company was required to provide the purchasers under the August 2013 SPA with a security interest in the Company&#x2019;s intellectual property if Total still held such security interest as of the initial closing of the August 2013 Financing. Under the terms of a previous Intellectual Property Security Agreement by and between the Company and Total (or the &quot;Security Agreement&quot;), the Company had previously granted a security interest in favor of Total to secure the obligations of the Company under the R&amp;D Notes issued and issuable to Total under the Total Purchase Agreement. The Security Agreement provided that such security interest would terminate if Total and the Company entered into certain agreements relating to the formation of the Fuels JV. In connection with Total&#x2019;s agreement to (i) permit the Company to grant the security interest under the Temasek Bridge Note and the August 2013 Financing and (ii) waive a secured debt limitation contained in the outstanding R&amp;D Notes issued pursuant to the Total Purchase Agreement and held by Total, the Company entered into the Amendment Agreement. Under the Amendment Agreement, the Company agreed to reduce, effective December 2, 2013, the conversion price for the R&amp;D Notes issued in 2012 from $7.0682 per share to $2.20, the market price per share of the Company&#x2019;s common stock as of the signing of the Amendment Agreement, as determined in accordance with applicable NASDAQ rules, unless the Company and Total entered into the JV Documents on or prior to December 2, 2013. The Company and Total entered into the JV agreements on December 2, 2013 and the Amendment Agreement and all security interests thereunder were automatically terminated and the conversion price of such R&amp;D Notes remained at $7.0682 per share.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In December&nbsp;2013, in connection with the execution of JV Documents entered into by and among Amyris, Total and TAB relating to the establishment of TAB (see Note 5, &quot;Debt&quot; and Note 7, &quot;Joint Venture and Noncontrolling Interests&quot;), the Company agreed to exchange the $69.0 million outstanding R&amp;D Notes issued pursuant to the Total Purchase Agreement for replacement 1.5% Senior Secured Convertible Notes due March 2017, and grant a security interest to Total in and lien on all the Company&#x2019;s rights, title and interest in and to the Company&#x2019;s shares in the capital of TAB. Following execution of the JV Documents, all Unsecured R&amp;D Notes that had been issued were exchanged for Secured R&amp;D Notes. Further, the $10.85 million in principal amount of such notes issued in the initial tranche of the third closing under the Total Purchase Agreement in July 2014 and the $10.85 million in principal amount of such notes issued in the second tranche of the third closing were Secured R&amp;D Notes instead of Unsecured R&amp;D Notes. &quot;See Note 5,&quot;Debt&quot; for details regarding the impact of the Exchange and Maturity Treatment Agreement on the R&amp;D Notes. In March 2016, as a result of the restructuring of TAB discussed under Note 5, &quot;Debt&quot; and Note 7, &quot;Joint Venture and Noncontrolling Interests,&quot; the remaining Secured R&amp;D Notes were exchanged for an unsecured R&amp;D Note in the principal amount of $3.7 million.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 35 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Senior Secured Loan Facility and the June 2016 Notes (see Note 5, &quot;Debt&quot;) are collateralized by first and second priority liens, respectively, on the Company's assets, including certain Company intellectual property.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Purchase Obligations</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016 and December 31, 2015, the Company had $1.1 million and $1.3 million, respectively, in purchase obligations which included $0.6 million and $0.5 million, respectively, of non-cancellable contractual obligations and construction commitments.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Other Matters</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Certain conditions may exist as of the date the financial statements are issued, which may result in a loss to the Company but will only be recorded when one or more future events occur or fail to occur. The Company's management assesses such contingent liabilities, and such assessment inherently involves an exercise of judgment. In assessing loss contingencies related to legal proceedings that are pending against and by the Company or unasserted claims that may result in such proceedings, the Company's management evaluates the perceived merits of any legal proceedings or unasserted claims as well as the perceived merits of the amount of relief sought or expected to be sought.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">If the assessment of a contingency indicates that it is probable that a material loss has been incurred and the amount of the liability can be estimated, then the estimated liability would be accrued in the Company's financial statements. If the assessment indicates that a potential material loss contingency is not probable but is reasonably possible, or is probable but cannot be reasonably estimated, then the nature of the contingent liability, together with an estimate of the range of possible loss if determinable and material would be disclosed. Loss contingencies considered to be remote by management are generally not disclosed unless they involve guarantees, in which case the guarantee would be disclosed. The Company has levied indirect taxes on sugarcane-based biodiesel sales by Amyris Brasil to customers in Brasil based on advice from external legal counsel. In the absence of definitive rulings from the Brazilian tax authorities on the appropriate indirect tax rate to be applied to such product sales, the actual indirect rate to be applied to such sales could differ from the rate we levied.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company is subject to disputes and claims that arise or have arisen in the ordinary course of business and that have not resulted in legal proceedings or have not been fully adjudicated. Such matters that may arise in the ordinary course of business are subject to many uncertainties and outcomes are not predictable with reasonable assurance and therefore an estimate of all the reasonably possible losses cannot be determined at this time. Therefore, if one or more of these legal disputes or claims resulted in settlements or legal proceedings that were resolved against the Company for amounts in excess of management&#x2019;s expectations, the Company&#x2019;s consolidated financial statements for the relevant reporting period could be materially adversely affected.</div></div> 0.0001 0.0001 500000000 400000000 253364428 206130282 253364428 206130282 50000000 50000000 25000 21000 -21588000 -87268000 -41182000 -194989000 -24000 -78000 -21588000 -87147000 -41182000 -194674000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; text-indent: -27pt; margin: 0pt 0 0pt 27pt"><div style="display: inline; font-weight: bold;">16. Comprehensive Loss</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Comprehensive loss represents all changes in stockholders&#x2019; deficit except those resulting from investments or contributions by stockholders. The Company&#x2019;s foreign currency translation adjustments represent the components of comprehensive loss excluded from the Company&#x2019;s net loss and have been disclosed in the condensed consolidated statements of comprehensive loss for the periods presented.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The components of accumulated other comprehensive loss are as follows (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Foreign currency translation adjustment, net of tax</td> <td style="width: 2%; font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="width: 1%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(39,801</td> <td style="width: 1%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="width: 2%; font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="width: 1%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(47,198</td> <td style="width: 1%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt">Total accumulated other comprehensive loss</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(39,801</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(47,198</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> </tr> </table> </div></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Principles of Consolidation</div></div></div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The condensed consolidated financial statements of the Company include the accounts of Amyris, Inc., its subsidiaries and two consolidated variable interest entities (or &#x201c;VIEs&#x201d;), with respect to which the Company is considered the primary beneficiary, after elimination of intercompany accounts and transactions. Disclosure regarding the Company&#x2019;s participation in the VIEs is included in Note&nbsp;7, &quot;Joint Ventures and Noncontrolling Interest.&quot;</div></div></div></div></div></div></div></div></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Variable Interest Entities</div></div></div><div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company has interests in joint venture entities that are VIEs. Determining whether to consolidate a VIE requires judgment in assessing (i)&nbsp;whether an entity is a VIE and (ii)&nbsp;if the Company is the entity&#x2019;s primary beneficiary and thus required to consolidate the entity. To determine if the Company is the primary beneficiary of a VIE, the Company evaluates whether it has (i)&nbsp;the power to direct the activities that most significantly impact the VIE&#x2019;s economic performance and (ii)&nbsp;the obligation to absorb losses or the right to receive benefits of the VIE that could potentially be significant to the VIE. The Company&#x2019;s evaluation includes identification of significant activities and an assessment of its ability to direct those activities based on governance provisions and arrangements to provide or receive product and process technology, product supply, operations services, equity funding and financing and other applicable agreements and circumstances. The Company&#x2019;s assessment of whether it is the primary beneficiary of its VIEs requires significant assumptions and judgment.</div></div></div></div></div></div></div></div></div> 600000 500000 680000 10000000 2 75000000 5000000 21700000 23300000 15300000 14600000 40600000 42800000 64800000 43000000 2000000 109885000 109885000 96291000 96291000 25000000 10000000 25000000 9700000 15300000 14876000 8455000 33945000 26057000 38572000 40160000 106397000 109696000 2016 2019 2015 2019 30400000 30860000 30860633 30434782 70000000 71000000 71000000 70000000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">5. Debt and Mezzanine Equity</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Debt and mezzanine equity are comprised of the following (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, <br /> 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Senior secured loan facility</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">28,438</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">31,590</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">BNDES credit facility</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,471</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,956</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">FINEP credit facility</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">777</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">840</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Total credit facilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">30,686</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">34,386</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Convertible notes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">68,533</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">61,233</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Related party convertible notes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">40,611</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">42,749</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Related party loan payable</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">22,847</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Loans payable</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">12,954</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">13,606</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Total debt</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">175,631</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">151,974</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: current portion</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(75,016</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(36,281</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Long-term debt</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">100,615</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">115,693</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Mezzanine equity<div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,000 </td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: left; margin-top: 0pt; margin-right: 0; margin-bottom: 0pt"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div>_____________</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0; margin-bottom: 6pt; width: 700px;"> <tr style="vertical-align: top; text-align: justify"> <td style="width: 3%; text-align: left"><div style="display: inline; font-size: 8pt">(1)</div></td> <td style="text-align: justify; width: 97%"><div style="display: inline; font-size: 8pt">See Note 8, &quot;Significant Agreements&quot; for details regarding the Bill &amp; Melinda Gates Foundation Investment, classified as mezzanine equity.</div></td> </tr> </table> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <!-- Field: Page; Sequence: 18 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 14pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Senior Secured Loan Facility</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In March 2014, the Company entered into a Loan and Security Agreement with Hercules Technology Growth Capital, Inc. (or &#x201c;Hercules&#x201d;) to make available to Amyris a loan facility in the aggregate principal amount of up to $25.0 million (or the &quot;Senior Secured Loan Facility&quot;), which loan facility was fully drawn at the closing. The initial loan of $25.0 million under the Senior Secured Loan Facility accrues interest at a rate per annum equal to the greater of either the prime rate reported in the Wall Street Journal plus 6.25% or 9.50%. The Company may repay the outstanding amounts under the Senior Secured Credit Facility before the maturity date (February 1, 2017) if it pays an additional fee of 1% of the outstanding loans. The Company was also required to pay a 1% facility charge at the closing of the Senior Secured Credit Facility, and is required to pay a 10% end of term charge with respect to the initial loan of $25.0 million. In connection with the execution of the Senior Secured Loan Facility, Amyris agreed to certain customary representations and warranties and covenants, as well as certain covenants that were subsequently amended (as described below).</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In June 2014, the Company and Hercules entered into a first amendment of the Senior Secured Loan Facility. Pursuant to the first amendment, the parties agreed to adjust the term loan maturity date from May 31, 2015 to February&nbsp;1, 2017 and remove (i) a requirement for the Company to pay a forbearance fee of $10.0 million in the event certain covenants were not satisfied, (ii) a covenant that the Company maintain positive cash flow commencing with the fiscal quarter beginning October 1, 2014, (iii) a covenant that, beginning with the fiscal quarter beginning July 1, 2014, the Company and its subsidiaries achieve certain projected cash product revenues and projected cash product gross profits, and (iv) an obligation for the Company to file a registration statement on Form S-3 with the SEC by no later than June 30, 2014 and complete an equity financing of more than $50.0 million by no later than September 30, 2014. The Company further agreed to include a new covenant requiring the Company to maintain unrestricted, unencumbered cash in defined U.S. bank accounts in an amount equal to at least 50% of the principal amount then outstanding under the Senior Secured Loan Facility (or the &#x201c;Minimum Cash Covenant&#x201d;) and borrow an additional $5.0 million. The additional $5.0 million borrowing was completed in June 2014, and accrues interest at a rate per annum equal to the greater of (i) the prime rate reported in the Wall Street Journal plus 5.25% and (ii) 8.5%.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In March 2015, the Company and Hercules entered into a second amendment of the Senior Secured Loan Facility. Pursuant to the second amendment, the parties agreed to, among other things, establish an additional credit facility in the principal amount of up to $15.0 million, which would be available to be drawn by the Company through the earlier of March 31, 2016 or such time as the Company raised an aggregate of at least $20.0 million through the sale of new equity securities. Under the terms of the second amendment, the Company agreed to pay Hercules a 3.0% facility availability fee on April 1, 2015. The Company had the ability to cancel the additional facility at any time prior to June 30, 2015 at its own option, and the additional facility would terminate upon the Company securing a new equity financing of at least $20.0 million. If the facility was not canceled, and any outstanding borrowings were not repaid, before June 30, 2015, an additional 5.0% facility fee would become payable on June 30, 2015. The Company did not cancel the facility prior to June 30, 2015, and the 5.0% facility fee became payable as of June 30, 2015. The Company did not pay the additional facility fee and thereafter received a waiver from Hercules with respect thereto. The additional facility was cancelled undrawn upon the completion of the Company&#x2019;s private offering of common stock and warrants in July 2015.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In November 2015, the Company and Hercules entered into a third amendment of the Senior Secured Loan Facility. Pursuant to the third amendment, the Company borrowed $10,960,000 (or the &#x201c;Third Amendment Borrowed Amount&#x201d;) from Hercules on November 30, 2015. As of December 1, 2015, after the funding of the Third Amendment Borrowed Amount (and including repayment of $9.1 million of principal that had occurred prior to the third amendment), the aggregate principal amount outstanding under the Senior Secured Loan Facility was approximately $31.7 million. The Third Amendment Borrowed Amount accrues interest at a rate per annum equal to the greater of (i) 9.5% and (ii) the prime rate reported in the Wall Street Journal plus 6.25%, and, like the previous loans under the Senior Secured Loan Facility, has a maturity date of February 1, 2017. Upon the earlier of the maturity date, prepayment in full or such obligations otherwise becoming due and payable, in addition to repaying the outstanding Third Amendment Borrowed Amount (and all other amounts owed under the Senior Secured Loan Facility, as amended), the Company is also required to pay an end-of-term charge of $767,200. Pursuant to the third amendment, the Company also paid Hercules fees of $1.0 million, $750,000 of which was owed in connection with the expired $15.0 million facility under the second amendment and $250,000 of which was related to the Third Amendment Borrowed Amount. Under the third amendment, the parties agreed that the Company would, commencing on December 1, 2015, be required to pay only the interest accruing on all outstanding loans under the Senior Secured Loan Facility until February 29, 2016. Commencing on March 1, 2016, the Company would have been required to begin repaying principal of all loans under the Senior Secured Loan Facility, in addition to the applicable interest. However, pursuant to the third amendment, the Company could, by achieving certain cash inflow targets in 2016, extend the interest-only period to December 1, 2016. Upon the issuance by the Company of $20.0 million of unsecured promissory notes and warrants in a private placement in February 2016 for aggregate cash proceeds of $20.0 million, the Company satisfied the conditions for extending the interest-only period to May 31, 2016. On June 1, 2016, the Company commenced the repayment of outstanding principal under the Senior Secured Loan Facility. In June 2016, the Company was notified by Hercules that it had transferred and assigned its rights and obligations under the Senior Secured Loan Facility to Stegodon Corporation (or &#x201c;Stegodon&#x201d;). On June 29, 2016, in connection with the execution by the Company and Ginkgo Bioworks, Inc., an affiliate of Stegodon, of an initial strategic partnership agreement, the Company received a deferment from Stegodon of all scheduled principal repayments under the Senior Secured Loan Facility, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016. Refer to Note 8, &#x201c;Significant Agreements&#x201d; for additional details. On October 6, 2016, in connection with the execution by the Company and Ginkgo Bioworks, Inc. of a definitive collaboration agreement, the Company and Stegodon entered into a fourth amendment of the Senior Secured Loan Facility, pursuant to which the parties agreed to (i) subject to the Company extending the maturity of certain of its other outstanding indebtedness, extend the maturity date of the Senior Secured Loan Facility, (ii) make the Senior Secured Loan Facility interest-only until maturity, subject to the requirement that the Company apply certain monies received under the collaboration agreement between the Company and Ginkgo Bioworks, Inc. to repay the amounts outstanding under the Senior Secured Loan Facility, up to a maximum amount of $1 million per month and (iii) waive the Minimum Cash Covenant until the maturity date of the Senior Secured Loan Facility. Refer to Note 8, &#x201c;Significant Agreements&#x201d; and Note 18, &#x201c;Subsequent Events&#x201d; for additional details.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 19 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016, $28.4 million was outstanding under the Senior Secured Loan Facility, net of discount and issuance costs of $0.1 million. The Senior Secured Loan Facility is secured by liens on the Company's assets, including on certain Company intellectual property. The Senior Secured Loan Facility includes customary events of default, including failure to pay amounts due, breaches of covenants and warranties, material adverse effect events, certain cross defaults and judgments, and insolvency. If an event of default occurs, Stegodon may require immediate repayment of all amounts outstanding under the Senior Secured Loan Facility. The Company was in compliance with the covenants under the Senior Secured Loan Facility as of September 30, 2016.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">BNDES Credit Facility</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In December 2011, the Company entered into a credit facility with the Brazilian Development Bank (or &#x201c;BNDES&#x201d; and such credit facility, the &#x201c;BNDES Credit Facility&#x201d;) in the amount of R$22.4 million (approximately US$6.9 million based on the exchange rate as of September&nbsp;30, 2016). This BNDES Credit Facility was extended as project financing for a production site in Brazil. The credit line was divided into an initial tranche of up to approximately R$19.1 million and an additional tranche of approximately R$3.3 million that would become available upon delivery of additional guarantees. The credit line was cancelled in 2013.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The principal of the loans under the BNDES Credit Facility is required to be repaid in 60 monthly installments, with the first installment paid in January 2013 and the last due in December 2017. Interest was due initially on a quarterly basis with the first installment due in March 2012. From and after January 2013, interest payments are due on a monthly basis together with principal payments. The loaned amounts carry interest of 7% per annum. Additionally, there is a credit reserve charge of 0.1% on the unused balance from each credit installment from the day immediately after it is made available through its date of use, when it is paid.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The BNDES Credit Facility is collateralized by a first priority security interest in certain of the Company's equipment and other tangible assets totaling R$24.9 million (approximately $7.7 million based on the exchange rate as of September&nbsp;30, 2016). The Company is a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, the Company was required to provide a bank guarantee equal to 10% of the total approved amount (R$22.4 million in total debt) available under the BNDES Credit Facility. For advances of the second tranche (above R$19.1 million), the Company is required to provide additional bank guarantees equal to 90% of each such advance, plus additional Company guarantees equal to at least 130% of such advance. The BNDES Credit Facility contains customary events of default, including payment failures, failure to satisfy other obligations under this credit facility or related documents, defaults in respect of other indebtedness, bankruptcy, insolvency and inability to pay debts when due, material judgments, and changes in control of Amyris Brasil. If any event of default occurs, BNDES may terminate its commitments and declare immediately due all borrowings under the facility. As of September&nbsp;30, 2016 and December&nbsp;31, 2015, the Company had R$4.8 million (approximately US$1.5 million based on the exchange rate as of September&nbsp;30, 2016) and R$7.6 million (approximately US$1.9 million based on the exchange rate as of December&nbsp;31, 2015), respectively, in outstanding advances under the BNDES Credit Facility.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 20 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 14pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">FINEP Credit Facility</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In November&nbsp;2010, the Company entered into a credit facility with Financiadora de Estudos e Projetos (or the &#x201c;FINEP Credit Facility&#x201d;). The FINEP Credit Facility was extended to partially fund expenses related to the Company&#x2019;s research and development project on sugarcane-based biodiesel (or the &#x201c;FINEP Project&#x201d;) and provided for loans of up to an aggregate principal amount of R$6.4 million (approximately US$2.0 million based on the exchange rate as of September&nbsp;30, 2016), which is secured by a chattel mortgage on certain equipment of Amyris Brasil as well as by bank letters of guarantee. All available credit under this facility is fully drawn.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Interest on loans drawn under the FINEP Credit Facility is fixed at 5%&nbsp;per annum. In case of default under or non-compliance with the terms of the agreement, the interest on loans will be dependent on the long-term interest rate as published by the Central Bank of Brazil (such rate, the &#x201c;TJLP&#x201d;). If the TJLP at the time of default is greater than 6%, then the interest will be 5% plus a TJLP adjustment factor, otherwise the interest will be 11%&nbsp;per annum. In addition, a fine of up to 10% shall apply to the amount of any obligation in default. Interest on late balances will be 1% per month, levied on the overdue amount. Payment of the outstanding loan balance is being made in 81 monthly installments, which commenced in July 2012 and extends through March 2019. Interest on loans drawn and other charges are paid on a monthly basis and commenced in March 2011. As of September&nbsp;30, 2016 and December&nbsp;31, 2015, the total outstanding loan balance under this credit facility was R$2.5 million (approximately US$0.8 million based on the exchange rate as of September&nbsp;30, 2016) and R$3.4 million (approximately US$0.9 million based on exchange rate as of December&nbsp;31, 2015), respectively.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 14pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Convertible Notes</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 14pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Fidelity</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In February&nbsp;2012, the Company completed the sale of senior unsecured convertible promissory notes in an aggregate principal amount of $25.0 million pursuant to a securities purchase agreement, between the Company and certain investment funds affiliated with FMR LLC (or the &quot;Fidelity Securities Purchase Agreement&quot;). The offering consisted of the sale of 3% senior unsecured convertible promissory notes with a March&nbsp;1, 2017 maturity date and an initial conversion price equal to $7.0682 per share of the Company's common stock, subject to proportional adjustment for adjustments to outstanding common stock and anti-dilution provisions in case of dividends and distributions (or the &quot;Fidelity Notes&quot;). In October 2015, the Company issued $57.6 million of convertible senior notes and used approximately $8.8 million of the proceeds therefrom to repurchase $9.7 million aggregate principal amount of outstanding Fidelity Notes. As of September&nbsp;30, 2016, the Fidelity Notes were convertible into an aggregate of up to 2,165,898 shares of the Company's common stock. The holders of the Fidelity Notes have a right to require repayment of 101% of the principal amount of the Fidelity Notes in an acquisition of the Company, and the Fidelity Notes provide for payment of unpaid interest on conversion following such an acquisition if the note holders do not require such repayment.&nbsp;The Fidelity Securities Purchase Agreement and Fidelity Notes include covenants regarding payment of interest, maintaining the Company's listing status, limitations on debt, maintenance of corporate existence, and timely filing of SEC reports. The Fidelity Notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults and breaches of the covenants in the Fidelity Securities Purchase Agreement and Fidelity Notes, with default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, the Fidelity Notes include restrictions on the amount of debt the Company is permitted to incur. With exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the Fidelity Notes provide that the Company's total outstanding debt at any time cannot exceed the greater of $200.0 million or 50% of its consolidated total assets and its secured debt cannot exceed the greater of $125.0 million or 30% of its consolidated total assets. In connection with the Company&#x2019;s closing of a short-term bridge loan for $35.0 million in October 2013, holders of the Fidelity Notes waived compliance with the debt limitations outlined above as to the $35.0 million bridge loan (or the &#x201c;Temasek Bridge Note&#x201d;) and the August 2013 Financing (defined below). In consideration for such waiver, the Company granted to holders of the Fidelity Notes or their affiliates the right to purchase up to an aggregate of $7.6 million worth of convertible promissory notes in the first tranche of the August 2013 Financing.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 21 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Pursuant to a Securities Purchase Agreement among the Company, Maxwell (Mauritius) Pte Ltd (or &#x201c;Temasek&#x201d;) and Total, dated as of August 8, 2013 (or, as amended, the &#x201c;August 2013 SPA&#x201d;), as amended in October 2013 to include certain entities affiliated with FMR LLC (or the &#x201c;Fidelity Entities&#x201d;), the Company sold and issued certain senior convertible notes (or the &#x201c;Tranche I Notes&#x201d;) pursuant to a financing (or the &#x201c;August 2013 Financing&#x201d;) exempt from registration under the Securities Act of 1933, as amended (or the &#x201c;Securities Act&#x201d;), in an aggregate principal amount of $7.6 million to the Fidelity Entities. See &quot;Related Party Convertible Notes&quot; in this Note 5, &quot;Debt.&quot;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">2014 Rule 144A Convertible Note Offering</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In May 2014, the Company entered into a Purchase Agreement with Morgan Stanley &amp; Co. LLC, as the initial purchaser (or the &#x201c;Initial Purchaser&#x201d;), relating to the sale of $75.0 million aggregate in principal amount of its 6.50% Convertible Senior Notes due 2019 (or the &quot;2014 144A Notes&quot;) to the Initial Purchaser in a private placement, and for initial resale by the Initial Purchaser to certain qualified institutional buyers (or the &quot;2014 144A Convertible Note Offering&quot;). In addition, the Company granted the Initial Purchaser an option to purchase up to an additional $15.0 million aggregate principal amount of 2014 144A Notes, which option expired unexercised according to its terms. Under the terms of the purchase agreement for the 2014 144A Notes, the Company agreed to customary indemnification of the Initial Purchaser against certain liabilities. The Notes were issued pursuant to an Indenture, dated as of May 29, 2014 (or the &#x201c;2014 Indenture&#x201d;), between the Company and Wells Fargo Bank, National Association, as trustee. The net proceeds from the offering of the 2014 144A Notes were approximately $72.0 million after payment of the Initial Purchaser&#x2019;s discounts and offering expenses.&nbsp;In addition, in connection with obtaining a waiver from Total of its preexisting contractual right to exchange certain senior secured convertible notes previously issued by the Company for new notes issued in the 2014 144A Convertible Note Offering, the Company used approximately $9.7 million of the net proceeds to repay previously issued notes (representing the amount of 2014 144A Notes purchased by Total from the Initial Purchaser). Certain of the Company's affiliated entities purchased $24.7 million in aggregate principal amount of 2014 144A Notes from the Initial Purchaser (described further below under &quot;Related Party Convertible Notes&quot;). In October 2015, as discussed below, the Company issued $57.6 million of convertible senior notes and used approximately $18.3 million of the net proceeds therefrom to repurchase $22.9 million aggregate principal amount of outstanding 2014 144A Notes. The 2014 144A Notes bear interest at a rate of 6.50% per year, payable semiannually in arrears on May 15 and November 15 of each year, beginning November&nbsp;15, 2014. The 2014 144A Notes mature on May&nbsp;15, 2019, unless earlier converted or repurchased. The 2014 144A Notes are convertible into shares of the Company's common stock at any time prior to the close of business day on May 15, 2019, at the initial conversion rate of 267.037 shares of Common Stock per $1,000 principal amount of 2014 144A Notes (subject to adjustment in certain circumstances). This represents an effective conversion price of approximately $3.74 per share of common stock. For any conversion on or after May&nbsp;15, 2015, in the event that the last reported sale price of the Company&#x2019;s common stock for 20 or more trading days (whether or not consecutive) in a period of 30 consecutive trading days ending within five trading days immediately prior to the date the Company receives a notice of conversion exceeds the then-applicable conversion price per share on each such trading day, the holders, in addition to the shares deliverable upon conversion, noteholders will be entitled to receive a cash payment equal to the present value of the remaining scheduled payments of interest that would have been made on the 2014 144A Notes being converted from the conversion date to the earlier of the date that is three years after the date the Company receives such notice of conversion and maturity (May&nbsp;15, 2019), which will be computed using a discount rate of 0.75%. In the event of a fundamental change, as defined in the 2014 Indenture, holders of the 2014 144A Notes may require the Company to purchase all or a portion of the 2014 144A Notes at a price equal to 100% of the principal amount of the 2014 144A Notes, plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. In addition, holders of the 2014 144A Notes who convert their 2014 144A Notes in connection with a make-whole fundamental change will, under certain circumstances, be entitled to an increase in the conversion rate. Refer to the &#x201c;Exchange&#x201d; and &#x201c;Maturity Treatment Agreement&#x201d; sections of this Note 5, &quot;Debt&quot;, for details of the impact of the Maturity Treatment and Exchange agreements on the 2014 144A Notes.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 22 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">2015 Rule 144A Convertible Note Offering</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In October 2015, the Company entered into a purchase agreement with certain qualified institutional buyers relating to the sale of $57.6 million aggregate principal amount of its 9.50% Convertible Senior Notes due 2019 (or the &#x201c;2015 144A Notes&#x201d;) to the purchasers in a private placement (or the &#x201c;2015 144A Offering&#x201d;). The Notes were issued pursuant to an Indenture, dated as of October 20, 2015 (or the &#x201c;2015 Indenture&#x201d;), between the Company and Wells Fargo Bank, National Association, as trustee. The net proceeds from the offering of the 2015 144A Notes were approximately $54.4 million after payment of the estimated offering expenses and placement agent fees. The Company used approximately $18.3 million of the net proceeds to repurchase $22.9 million aggregate principal amount of outstanding 2014 144A Notes and approximately $8.8 million to repurchase $9.7 million aggregate principal amount of outstanding Fidelity Notes, in each case held by purchasers of the 2015 144A Notes. The 2015 144A Notes bear interest at a rate of 9.50% per year, payable semiannually in arrears on April 15 and October 15 of each year, beginning April 15, 2016. Interest on the 2015 144A Notes is payable, at the Company&#x2019;s option, entirely in cash or entirely in common stock. The Company elected to make the April 15, 2016 interest payment in shares of common stock and the October 15, 2016 interest payment in cash. The 2015 144A Notes will mature on April 15, 2019 unless earlier converted or repurchased.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The 2015 144A Notes are convertible into shares of the Company's common stock at any time prior to the close of business on April 15, 2019. The 2015 144A Notes had an initial conversion rate of 443.6557 shares of Common Stock per $1,000 principal amount of 2015 144A Notes (subject to adjustment in certain circumstances). This represented an initial effective conversion price of approximately $2.25 per share of common stock. Following the issuance by the Company of warrants to purchase common stock in a private placement transaction in February 2016 and the issuance by the Company of convertible notes in May and September 2016, as described below, the conversion rate of the 2015 144A Notes was 446.6719 shares of Common Stock per $1,000 principal amount of 2015 144A Notes as of September 30, 2016. Furthermore, following the issuance by the Company of additional convertible notes in October 2016, the conversion rate of the 2015 144A Notes is 446.8707 shares of Common Stock per $1,000 principal amount of 2015 144A Notes as of the date hereof. For any conversion on or after November 27, 2015, in addition to the shares deliverable upon conversion, noteholders will be entitled to receive a payment equal to the present value of the remaining scheduled payments of interest that would have been made on the 2015 144A Notes being converted from the conversion date to the earlier of the date that is three years after the date the Company receives such notice of conversion and maturity (April 15, 2019), which will be computed using a discount rate of 0.75%. The Company may make such payment (the &#x201c;Early Conversion Payment&#x201d;) either in cash or in common stock, at its election, provided that it may only make such payment in common stock if such common stock is not subject to restrictions on transfer under the Securities Act by persons other than the Company&#x2019;s affiliates. If the Company elects to pay an Early Conversion Payment in common stock, then the stock will be valued at 92.5% of the simple average of the daily volume-weighted average price per share for the 10 trading days ending on and including the trading day immediately preceding the conversion date. Through September 30, 2016, the Company has elected to make each Early Conversion Payment in shares of common stock. In the event of a fundamental change, as defined in the 2015 Indenture, holders of the 2015 144A Notes may require the Company to purchase all or a portion of the 2015 144A Notes at a price equal to 100% of the principal amount of the 2015 144A Notes, plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. In addition, holders of the 2015 144A Notes who convert their 2015 144A Notes in connection with a make-whole fundamental change will, under certain circumstances, be entitled to an increase in the conversion rate. The issuance of shares of common stock upon conversion of the 2015 144A Notes, <div style="display: inline; color: #231F20">upon the Company&#x2019;s election to pay interest on the 2015 144A Notes in shares of common stock and upon the Company&#x2019;s election to pay the Early Conversion Payment in shares of common stock in an aggregate amount in excess of </div>38,415,626 shares of the Company&#x2019;s common stock was subject to stockholder approval, which was obtained on May 17, 2016. With exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the 2015 144A Notes provide that, as long as the aggregate outstanding principal amount of the 2015 144A Notes exceeds $25.0 million, the Company's outstanding unsecured debt at any time cannot exceed $200.0 million and its secured debt cannot exceed the greater of $65.0 million or 30% of its consolidated total assets.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 23 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">2016 Convertible Note Offering</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In May 2016, the Company entered into a securities purchase agreement (or the &#x201c;May 2016 Purchase Agreement&#x201d;) between the Company and a private investor relating to the sale of up to $15.0 million aggregate principal amount of convertible notes (or the &#x201c;2016 Convertible Notes&#x201d;) that are convertible into shares of the Company&#x2019;s common stock at an initial conversion price of $1.90 per share. The conversion price will be subject to adjustment in the event of any stock split, reverse stock split, recapitalization, reorganization or similar transaction. The May 2016 Purchase Agreement includes customary representations, warranties and covenants by the Company. The May 2016 Purchase Agreement also provides the purchaser with a right of first refusal with respect to any variable rate transaction on the same terms and conditions as are offered to a third-party purchaser for as long as the purchaser holds any 2016 Convertible Notes or shares of the Company&#x2019;s common stock underlying the 2016 Convertible Notes.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Pursuant to the May 2016 Purchase Agreement, the 2016 Convertible Notes were to be issued and sold in two separate closings. The initial closing occurred on May 10, 2016. At the initial closing, the Company issued and sold a 2016 Convertible Note in a principal amount of $10.0 million to the purchaser, resulting in net proceeds to the Company of approximately $9.9 million. The second closing was to occur on the first trading day following the completion of the first three installment periods under the 2016 Convertible Notes and the satisfaction or waiver of certain other closing conditions, including certain equity conditions, such as that no Triggering Event (as defined below) had occurred. At the second closing, the Company was to issue and sell a 2016 Convertible Note in a principal amount of $5.0 million to the purchaser, resulting in expected net proceeds to the Company of approximately $5.0 million. On September 2, 2016, in connection with the Company and the purchaser waiving certain conditions to the second closing under the May 2016 Purchase Agreement, the Company issued and sold an additional 2016 Convertible Note in the principal amount of $3.0 million to the purchaser, for proceeds to the Company of approximately $3.0 million, and granted the purchaser the option to purchase a further 2016 Convertible Note in the principal amount of $2.0 million (the &#x201c;<div style="display: inline; font-style: italic;">$2 Million Note</div>&#x201d;), representing the remaining 2016 Convertible Notes provided for in the May 2016 Purchase Agreement, on or before December 31, 2016. On October 13, 2016, the Company issued and sold the $2 Million Note to the purchaser for proceeds to the Company of $2.0 million. See Note 18, &#x201c;Subsequent Events&#x201d; for additional details regarding the issuance of the $2 Million Note.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The 2016 Convertible Notes are general unsecured obligations of the Company. Unless earlier converted or redeemed, the 2016 Convertible Notes will mature on the 18-month anniversary of their respective issuance, subject to the rights of the holders to extend the maturity date in certain circumstances.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The 2016 Convertible Notes will&nbsp;be payable in monthly installments, in either cash at 118% of such installment amount or, at the Company&#x2019;s option, subject to the satisfaction of certain equity conditions, shares of common stock at a discount to the then-current market price, subject to a price floor. In addition, in the event that the Company elects to pay all or any portion of a monthly installment in common stock, the holders of the 2016 Convertible Notes shall have the right to require that the Company repay in common stock an additional amount of the 2016 Convertible Notes not to exceed 50% of the cumulative sum of the aggregate amounts by which the dollar-weighted trading volume of the Company&#x2019;s common stock for all trading days during the applicable installment period exceeds $200,000. The Company elected to make the June, July, August and September 2016 installment payments on the 2016 Convertible Notes in shares of common stock.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The 2016 Convertible Notes contain customary terms and covenants, including certain events of default after which the holders may require the Company to redeem all or any portion of their 2016 Convertible Notes in cash at a price equal to the greater of (i)&nbsp;118% of the amount being redeemed and (ii)&nbsp;the intrinsic value of the shares of common stock issuable upon an installment payment of the amount being redeemed in shares.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In the event of a Fundamental Transaction (as defined in the 2016 Convertible Notes), holders of the 2016 Convertible Notes may require the Company to redeem all or any portion of their 2016 Convertible Notes at a price equal to the greater of (i)&nbsp;118% of the amount being redeemed and (ii)&nbsp;the intrinsic value of the shares of common stock issuable upon an installment payment of the amount being redeemed in shares.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 24 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company has the right to redeem the 2016 Convertible Notes for cash, in whole, at any time, or in part, from time to time, at a redemption price equal to 118% of the principal amount of the 2016 Convertible Notes being redeemed. In addition, if the volume-weighted average price of the Company&#x2019;s common stock is (i) less than $1.00 for 30 consecutive trading days or (ii) less than $0.50 for five consecutive trading days (each, a &#x201c;Triggering Event&#x201d;) within four months of the issuance of any 2016 Convertible Notes, the Company will have the option to redeem such 2016 Convertible Notes in whole for cash at a redemption price equal to 112% of the principal amount of such 2016 Convertible Notes.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: left; margin-top: 0pt; margin-right: 0; margin-bottom: 0pt"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Related Party Convertible Notes</div></div></div> <div style=" font-size: 10pt; text-indent: 23pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Total R&amp;D Convertible Notes</div></div> <div style=" font-size: 10pt; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In July&nbsp;2012 and December 2013, the Company entered into a series of agreements (or the &quot;Total Fuel Agreements&quot;) with Total Energies Nouvelles Activit&eacute;s USA (formerly known as Total Gas &amp; Power USA, SAS, and referred to as &#x201c;Total&#x201d;) to establish a research and development program (or the &quot;Program&quot;) and form a joint venture (or the &quot;Fuels JV&quot;) with Total to produce and commercialize farnesene- or farnesane-based diesel and jet fuels, and established a convertible debt structure for the collaboration funding from Total.</div> <div style=" font-size: 10pt; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The purchase agreement for the notes related to the funding from Total (or the &#x201c;Total Purchase Agreement&#x201d;) provided for the sale of an aggregate of $105.0 million in 1.5% Senior Unsecured Convertible Notes due March 2017 (the &#x201c;Unsecured R&amp;D Notes&#x201d;) as follows:</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 6pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 27pt"></td> <td style="width: 18pt">&#x2022;</td> <td style="text-align: justify">As part of an initial closing under the purchase agreement (which was completed in two installments), (i) on July&nbsp;30, 2012, the Company sold an Unsecured R&amp;D Note with a principal amount of $38.3 million, including $15.0 million in new funds and $23.3 million in previously-provided diesel research and development funding by Total, and (ii) on September&nbsp;14, 2012, the Company sold another Unsecured R&amp;D Note for $15.0 million in new funds from Total. These Unsecured R&amp;D Notes had an initial conversion price of $7.0682 per share.</td> </tr> </table> <table cellpadding="0" cellspacing="0" style="; font-size: 10pt; margin-top: 0pt; margin-bottom: 6pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 27pt"></td> <td style="width: 18pt">&#x2022;</td> <td style="text-align: justify">At a second closing under the Total Purchase Agreement (also completed in two installments) the Company sold additional Unsecured R&amp;D Notes for an aggregate of $30.0 million in new funds from Total ($10.0 million in June 2013 and $20.0 million in July 2013). These Unsecured R&amp;D Notes had an initial conversion price of $3.08 per share, as described below.</td> </tr> </table> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 27pt"></td> <td style="width: 18pt">&#x2022;</td> <td style="text-align: justify">At a third closing under the Total Purchase Agreement (also completed in two installments) the Company sold additional Unsecured R&amp;D Notes for an aggregate of $21.7 million in new funds from Total ($10.85 million in July 2014 and $10.85 million in January 2015) (or the &#x201c;Third Closing Notes&#x201d;). These Unsecured R&amp;D Notes had an initial conversion price of $4.11 per share, as described below.</td> </tr> </table> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 25 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In March&nbsp;2013, the Company entered into a letter agreement with Total (or the March 2013 Letter Agreement) under which Total agreed to waive its right to cease its participation in the parties' fuels collaboration at the July 2013 decision point and committed to proceed with the July 2013 funding tranche of $30.0 million (subject to the Company's satisfaction of the relevant closing conditions for such funding in the Total Purchase Agreement).&nbsp;As consideration for this waiver and commitment, the Company agreed to:</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="; font-size: 10pt; margin-top: 0pt; margin-bottom: 6pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 27pt"></td> <td style="width: 18pt">&#x2022;</td> <td style="text-align: justify">reduce the conversion price for the $30.0 million in principal amount of Unsecured R&amp;D Notes to be issued in connection with the second closing of the Unsecured R&amp;D Notes (as described above) from $7.0682 per share to a price per share equal to the greater of (i) the consolidated closing bid price of the Company's common stock on the date of the March 2013 Letter Agreement, plus $0.01, and (ii) $3.08 per share, provided that the conversion price would not be reduced by more than the maximum possible amount permitted under the rules of The NASDAQ Stock Market (or &#x201c;NASDAQ&#x201d;) such that the new conversion price would require the Company to obtain stockholder consent; and</td> </tr> </table> <table cellpadding="0" cellspacing="0" style="; font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 27pt"></td> <td style="width: 18pt">&#x2022;</td> <td style="text-align: justify">grant Total a senior security interest in the Company's intellectual property, subject to certain exclusions and subject to release by Total when the Company and Total enter into final documentation regarding the establishment of the Fuels JV.</td> </tr> </table> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In addition to the waiver by Total described above, Total also agreed that, at the Company's request and contingent upon the Company meeting its obligations described above, it would pay advance installments of the amounts otherwise payable at the second closing.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In June&nbsp;2013, the Company sold and issued $10.0 million in principal amount of Unsecured R&amp;D Notes to Total pursuant to the second closing of the Unsecured R&amp;D Notes as discussed above. In accordance with the March 2013 Letter Agreement, this Unsecured R&amp;D Note had an initial conversion price equal to $3.08 per share of the Company's common stock.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In July&nbsp;2013, the Company sold and issued $20.0 million in principal amount of Unsecured R&amp;D Notes to Total pursuant to the Total second closing of the Unsecured R&amp;D Notes as discussed above. This purchase and sale completed Total's commitment to purchase $30.0 million of the Unsecured R&amp;D Notes in the second closing by July 2013. In accordance with the March 2013 Letter Agreement, this Unsecured R&amp;D Note has an initial conversion price equal to $3.08 per share of the Company's common stock.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In December 2013, in connection with the Company's entry into a Shareholders Agreement dated December 2, 2013 and License Agreement dated December 2, 2013 (or, collectively, the &#x201c;JV Documents&#x201d;) with Total and Total Amyris BioSolutions B.V. (or &#x201c;TAB&#x201d;) relating to the establishment of TAB (see Note 7, &quot;Joint Ventures and Noncontrolling Interest&quot;), the Company (i) exchanged the $69.0 million of the then-outstanding Unsecured R&amp;D Notes issued pursuant to the Total Purchase Agreement for replacement 1.5% Senior Secured Convertible Notes due March 2017 (or the &#x201c;Secured R&amp;D Notes&#x201d;, and together with the Unsecured R&amp;D Notes, the &#x201c;R&amp;D Notes&#x201d;), in principal amounts equal to the principal amount of each cancelled note and with substantially similar terms except that such replacement notes were secured, (ii) granted to Total a security interest in and lien on all Amyris&#x2019; rights, title and interest in and to Company&#x2019;s shares in the capital of TAB and (iii) agreed that any securities to be purchased and sold at the third closing under the Total Purchase Agreement by Total would be Secured R&amp;D Notes instead of Unsecured R&amp;D Notes. As a consequence of executing the JV Documents and forming TAB, the security interest in all of the Company's intellectual property, granted by the Company in favor of Total, Temasek, and certain Fidelity Entities pursuant to the Restated Intellectual Property Security Agreement dated as of October 16, 2013, were automatically terminated effective as of December 2, 2013 upon Total&#x2019;s and the Company&#x2019;s joint written notice to Temasek and the Fidelity Entities.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In April 2014, the Company and Total entered into a letter agreement dated as of March 29, 2014 (or the &#x201c;March 2014 Total Letter Agreement&#x201d;) to amend the Amended and Restated Master Framework Agreement entered into as of December 2, 2013 (included as part of JV Documents) and the Total Purchase Agreement. Under the March 2014 Total Letter Agreement, the Company agreed to, (i) amend the conversion price of the Secured R&amp;D Notes to be issued in the third closing under the Total Purchase Agreement from $7.0682 per share to $4.11 per share subject to stockholder approval at the Company's 2014 annual meeting (which was obtained in May 2014), (ii) extend the period during which Total may exchange for other Company securities Secured R&amp;D Notes issued under the Total Fuel Agreements from June 30, 2014 to the later of December&nbsp;31, 2014 and the date on which the Company shall have raised $75.0 million of equity and/or convertible debt financing (excluding any convertible promissory notes issued pursuant to the Total Purchase Agreement), (iii) eliminate the Company&#x2019;s ability to qualify, in a disclosure letter to Total, certain of the representations and warranties that the Company must make at the closing of any third closing sale, and (iv) beginning on March 31, 2014, provide Total with monthly reporting on the Company&#x2019;s cash, cash equivalents and short-term investments. In consideration of these agreements, Total agreed to waive its right not to consummate the closing of the issuance of the Third Closing Notes if it had decided not to proceed with the collaboration and had made a &quot;No-Go&quot; decision with respect thereto.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 26 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In July&nbsp;2014, the Company sold and issued a Secured R&amp;D Note to Total with a principal amount of $10.85 million with a March&nbsp;1, 2017 maturity date pursuant to the Total Purchase Agreement. This purchase and sale constituted the initial installment of the $21.7 million third closing described above. In accordance with the March 2014 Total Letter Agreement, this Secured R&amp;D Note had an initial conversion price equal to $4.11 per share of the Company's common stock.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In January 2015, the Company sold and issued a Secured R&amp;D Note to Total with a principal amount of $10.85 million with a March&nbsp;1, 2017 maturity date pursuant to the Total Purchase Agreement. This purchase and sale constituted the final installment of the $21.7 million third closing described above. In accordance with the March 2014 Total Letter Agreement, this Secured R&amp;D Note had an initial conversion price equal to $4.11 per share of the Company's common stock.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In July 2015, Total exchanged all but $5.0 million of R&amp;D Notes then held by Total, such cancelled notes having an aggregate principal amount of $70 million, in exchange for approximately 30.4 million shares of the Company&#x2019;s common stock in connection with the Exchange. Refer to the &#x201c;Exchange&#x201d; section of this Note 5, &quot;Debt&quot;, for additional details of the impact of the Exchange on the R&amp;D Notes.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In March 2016, in connection with the restructuring of the Fuels JV (see Note 7, &quot;Joint Ventures and Noncontrolling Interest&quot;), the Company sold to Total one half of the Company&#x2019;s ownership stake in the Fuels JV (giving Total an aggregate ownership stake of 75% of the Fuels JV and giving the Company an aggregate ownership stake of 25% of the Fuels JV) in exchange for Total cancelling (i) approximately $1.3 million of R&amp;D Notes, plus all paid-in-kind and accrued interest under all outstanding R&amp;D Notes ($2.8 million, including all such interest that was outstanding as of July 29, 2015) and (ii) a note in the principal amount of Euro 50,000, plus accrued interest, issued to Total in connection with the original capitalization of the Fuels JV. To satisfy its purchase obligation above, Total surrendered to the Company the remaining R&amp;D Note of approximately $5.0 million in principal amount, and the Company executed and delivered to Total a new, Unsecured R&amp;D Note in the principal amount of $3.7 million. The disposal of the 25% ownership stake in the Fuels JV resulted in a gain to the Company of $4.2 million, which was recognized as a capital contribution from Total within equity.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016 and December 31, 2015, $3.7 million and $5.0 million, respectively, of R&amp;D Notes were outstanding, net of debt discount of $0.0 million and $0.0 million, respectively. The R&amp;D Notes have a maturity date of March&nbsp;1, 2017, an initial conversion price equal to $3.08 per share for the Unsecured R&amp;D Notes, subject to certain adjustments as described below. The R&amp;D Notes bear interest of 1.5% per annum (with a default rate of 2.5%), accruing from the date of issuance and payable at maturity or on conversion or a change of control where Total exercises the right to require the Company to repay the notes, as described below.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The R&amp;D Notes become convertible into the Company's common stock (i) within 10 trading days prior to maturity, (ii) on a change of control of the Company, and (iii) on a default by the Company. The conversion price of the R&amp;D Notes are subject to adjustment for proportional adjustments to outstanding common stock and under anti-dilution provisions in case of certain dividends and distributions. Total has a right to require repayment of 101% of the principal amount of the R&amp;D Notes in the event of a change of control of the Company and the R&amp;D Notes provide for payment of unpaid future interest through the maturity date on conversion following such a change of control if Total does not require such repayment. The Total Purchase Agreement and Unsecured R&amp;D Notes include covenants regarding payment of interest, maintenance of the Company's listing status, limitations on debt, maintenance of corporate existence, and filing of SEC reports. The R&amp;D Notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults, and breaches of the covenants in the Total Purchase Agreement and R&amp;D Notes, with added default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, with exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the R&amp;D Notes provided that the Company's total outstanding debt at any time may not exceed the greater of $200.0 million or 50% of its consolidated total assets and its secured debt may not exceed the greater of $125.0 million or 30% of its consolidated total assets.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 27 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">August 2013 Financing Convertible Notes and Temasek Bridge Note</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In connection with the August&nbsp;2013 Financing, the Company entered into the August 2013 Share Purchase Agreement with Total and Temasek to sell up to $73.0 million in convertible promissory notes in private placements, with such notes to be sold and issued over a period of up to 24 months from the date of signing. The August 2013 SPA provided for the August 2013 Financing to be divided into two tranches (the first tranche for $42.6 million and the second tranche for $30.4 million), each with differing closing conditions. Of the total possible purchase price in the financing, $25.0 million was paid in the form of cash by Temasek ($25.0 million in the second tranche), $35.0 million was paid by the exchange and cancellation of the Temasek Bridge Note, as described below, and $13.0 million was paid by the exchange and cancellation of outstanding R&amp;D Notes held by Total in connection with its exercise of pro rata rights ($7.6 million in the first tranche and $5.4 million in the second tranche). The August 2013 SPA included requirements that the Company meet certain production milestones before the second tranche would become available, obtain stockholder approval prior to completing any closing of the transaction, and issue a warrant to Temasek to purchase 1,000,000 shares of the Company's common stock at an exercise price of $0.01 per share, exercisable only if Total converts R&amp;D Notes previously issued to Total in the second closing under the Total Purchase Agreement. In September 2013, prior to the initial closing of the August 2013 Financing, the Company's stockholders approved the issuance in the private placement of up to $110.0 million aggregate principal amount of senior convertible promissory notes, the issuance of a warrant to purchase 1,000,000 shares of the Company's common stock and the issuance of the common stock issuable upon conversion or exercise of such notes and warrant, which approval included the transactions contemplated by the August 2013 Financing.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In October 2013, the Company sold and issued a senior secured promissory note to Temasek (or the &#x201c;Temasek Bridge Note&#x201d;) in exchange for a bridge loan of $35.0 million. The Temasek Bridge Note was due on February 2, 2014 and accrued interest at a rate of 5.5% quarterly from the October 4, 2013 date of issuance. The Temasek Bridge Note was cancelled on October 16, 2013 as payment for Temasek&#x2019;s purchase of Tranche I Notes in the first tranche of the August 2013 Financing, as further described below.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In October 2013, the Company amended the August 2013 SPA to include the investment by the Fidelity Entities in the first tranche of the August 2013 Financing of $7.6 million, and to proportionally increase the amount of first tranche notes acquired by exchange and cancellation of outstanding R&amp;D Notes held by Total in connection with its exercise of pro rata rights up to $9.2 million in the first tranche. Also in October 2013, the Company completed the closing of the first tranche of the August 2013 Financing, issuing a total of $51.8 million in Tranche I Notes for cash proceeds of $7.6 million and cancellation of outstanding convertible promissory notes of $44.2 million, of which $35.0 million resulted from cancellation of the Temasek Bridge Note and the remaining $9.2 million from the exchange and cancellation of an outstanding R&amp;D Note held by Total. As a result of the exchange and cancellation of the $35.0 million Temasek Bridge Note and the $9.2 million R&amp;D Note held by Total for the Tranche I Notes, the Company recorded a loss from extinguishment of debt of $19.9 million. The Tranche I Notes are due sixty months from the date of issuance and were initially convertible into the Company&#x2019;s common stock at a conversion price equal to $2.44, which represents a 15% discount to a trailing 60-day weighted-average closing price of the common stock on The NASDAQ Stock Market (or &#x201c;NASDAQ&#x201d;) through August 7, 2013, subject to certain adjustments, as described below. The Tranche I Notes are convertible at the option of the holder: (i) at any time after 18 months from the date of the August 2013 SPA, (ii) on a change of control of the Company and (iii) upon the occurrence of an event of default. Each Tranche I Note accrues interest from the date of issuance until the earlier of the date that such Tranche I Note is converted into the Company&#x2019;s common stock or is repaid in full. Interest accrues at a rate of 5% per six months, compounded semiannually (with graduated interest rates of 6.5% applicable to the first 180 days and 8% applicable thereafter as the sole remedy should the Company fail to maintain NASDAQ listing status or at 6.5% for all other defaults). Interest for the first 30 months is payable in kind and added to the principal every six months and thereafter, the Company may continue to pay interest in kind by adding to the principal every six months or may elect to pay interest in cash. Through September 30, 2016, the Company has elected to pay interest on the Tranche I Notes in kind. The Tranche I Notes may be prepaid by the Company on the 30-month anniversary of the issuance date, and thereafter every six months at the date of payment of the semi-annual coupon.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 28 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In January 2014, the Company sold and issued, for face value, approximately $34.0 million of convertible promissory notes in the second tranche of the August 2013 Financing (or the &#x201c;Tranche II Notes&#x201d;). At the closing, Temasek purchased $25.0 million of the Tranche II Notes and funds affiliated with Wolverine Asset Management, LLC purchased $3.0 million of the Tranche II Notes, each for cash. Total purchased approximately $6.0 million of the Tranche II Notes through cancellation of the same amount of principal of previously outstanding R&amp;D Notes held by Total. As a result of the exchange and cancellation of the $6.0 million R&amp;D Note held by Total for the Tranche II Notes, the Company recorded a loss from extinguishment of debt of $9.4 million. The Tranche II Notes will be due sixty months from the date of issuance and were initially convertible into shares of common stock at a conversion price equal to $2.87 per share, which represents a trailing 60-day weighted-average closing price of the common stock on NASDAQ through August 7, 2013, subject to certain adjustments, as described below. Specifically, the Tranche II Notes are convertible at the option of the holder (i) at any time 12 months after issuance, (ii) on a change of control of the Company, and (iii) upon the occurrence of an event of default. Each Tranche II Note will accrue interest from the date of issuance until the earlier of the date that such Tranche II Note is converted into common stock or repaid in full. Interest will accrue at a rate per annum equal to 10%, compounded annually (with graduated interest rates of 13% applicable to the first 180 days and 16% applicable thereafter as the sole remedy should the Company fail to maintain NASDAQ listing status or at 12% for all other defaults). Interest for the first 36 months shall be payable in kind and added to principal every year following the issue date and thereafter, the Company may continue to pay interest in kind by adding to principal on every year anniversary of the issue date or may elect to pay interest in cash. Through September 30, 2016, the Company has elected to pay interest on the Tranche II Notes in kind.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The conversion prices of the Tranche I Notes and Tranche II Notes are subject to adjustment (i) according to proportional adjustments to outstanding common stock of the Company in case of certain dividends and distributions, (ii) according to anti-dilution provisions, and (iii) with respect to notes held by any purchaser other than Total, in the event that Total exchanges existing convertible notes for new securities of the Company in connection with future financing transactions in excess of its pro rata amount. Notwithstanding the foregoing, holders of a majority of the principal amount of the notes outstanding at the time of conversion may waive any anti-dilution adjustments to the conversion price. The purchasers have a right to require repayment of 101% of the principal amount of the notes in the event of a change of control of the Company and the notes provide for payment of unpaid interest on conversion following such a change of control if the purchasers do not require such repayment. The August 2013 SPA, Tranche I Notes and Tranche II Notes include covenants regarding payment of interest, maintenance of the Company&#x2019;s listing status, limitations on debt and on certain liens, maintenance of corporate existence, and filing of SEC reports. The Tranche Notes include standard events of default including failure to pay, bankruptcy and insolvency, cross-defaults, and breaches of the covenants in the August 2013 SPA, Tranche I Notes and Tranche II Notes, after which the Tranche Notes may be due and payable immediately, as well as associated with default interest rates as set forth above.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In July 2015, Temasek exchanged all of the Tranche I and Tranche II Notes then held by Temasek, such notes having an aggregate principal amount of approximately $71.0 million, in exchange for approximately 30.86 million shares of the Company&#x2019;s common stock in connection with the Exchange. Refer to the &#x201c;Exchange&#x201d; section of this Note 5, &quot;Debt&quot;, for additional details of the impact of the Exchange on the R&amp;D Notes.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The conversion price of the Tranche I Notes and Tranche II Notes was reduced to $1.42 per share upon the completion of a private placement of common stock and warrants to purchase common stock in July 2015, as described below.&nbsp;Following the issuance by the Company of warrants to purchase common stock in a private placement transaction in February 2016, as described below, the conversion price of the Tranche I Notes and Tranche II Notes was further adjusted to $1.40 per share, and following the sale by the Company of shares of common stock to the Bill&nbsp;&amp; Melinda Gates Foundation in May 2016, as described below, the conversion price of the Tranche I Notes and Tranche II Notes was further adjusted to $1.14 per share.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016 and December&nbsp;31, 2015, the related party convertible notes outstanding under the Tranche I Notes and Tranche II Notes were $21.7 million and $23.3 million, respectively, net of debt discount of $0.0 million and $0.0 million, respectively. Refer to the &#x201c;Exchange&#x201d; and &#x201c;Maturity Treatment Agreement&#x201d; sections of this Note 5, &quot;Debt&quot;, for details of the impact of the Maturity Treatment and Exchange agreements on the Tranche I and II Notes.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 29 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">2014 144A Notes Sold to Related Parties</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016 and December 31, 2015, the related party convertible notes outstanding under the 2014 Rule 144A Convertible Note Offering were $15.3 million and $14.6 million, respectively, net of discount and issuance costs of $2.4 million and $1.6 million, respectively.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016 and December&nbsp;31, 2015, the total related party convertible notes outstanding were $40.6 million and $42.8 million, respectively, net of discount and issuance costs of $2.6 million and $1.9 million, respectively.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 14pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Loans Payable</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In July 2012, the Company entered into a Note of Bank Credit and a Fiduciary Conveyance of Movable Goods Agreement (together, the &quot;July 2012 Bank Agreements&quot;) with each of Nossa Caixa Desenvolvimento (or &#x201c;Nossa Caixa&#x201d;) and Banco Pine S.A. (or &#x201c;Banco Pine&#x201d;). Under the July 2012 Bank Agreements, the Company pledged certain farnesene production assets as collateral for the loans of R$52.0 million. The Company's total acquisition cost for such pledged assets was approximately R$68.0 million (approximately US$20.9 million based on the exchange rate as of September&nbsp;30, 2016). The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements. Under the July 2012 Bank Agreements, the Company could borrow an aggregate of R$52.0 million (approximately US$16.0 million based on the exchange rate as of September&nbsp;30, 2016) as financing for capital expenditures relating to the Company's manufacturing facility located in Brotas, Brazil.&nbsp;Specifically, Banco Pine, agreed to lend R$22.0 million and Nossa Caixa agreed to lend R$30.0 million.&nbsp;The funds for the loans are provided by BNDES, but are guaranteed by the lenders. The loans have a final maturity date of July&nbsp;15, 2022 and bear a fixed interest rate of 5.5% per year.&nbsp;The loans are also subject to early maturity and delinquency charges upon occurrence of certain events including interruption of manufacturing activities at the Company's manufacturing facility in Brotas, Brazil for more than 30 days, except during the sugarcane off-season. For the first two years that the loans are outstanding, the Company is required to pay interest only on a quarterly basis.&nbsp;Since August&nbsp;15, 2014, the Company has been required to pay equal monthly installments of both principal and interest for the remainder of the term of the loans. As of September&nbsp;30, 2016 and December&nbsp;31, 2015, a principal amount of R$37.9 million (approximately US$11.7 million based on the exchange rate as of September 30, 2016) and R$43.0 million (approximately US$11.0 million based on the exchange rate as of December 30, 2015), respectively, was outstanding under these loan agreements.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In March&nbsp;2014, the Company entered into an export financing agreement with Banco ABC Brasil S.A. (or &#x201c;ABC&#x201d;) for approximately $2.2 million to fund exports through March 2015. This loan is collateralized by future exports from the Company's subsidiary in Brazil. In April, 2015, we entered into an additional export financing agreement with ABC for approximately $1.6 million to fund exports through March 2016. This loan is collateralized by future exports from the Company's subsidiary in Brazil. As of September 30, 2016, the aggregate principal amount outstanding under the ABC financing agreements was zero ($1.6 million at December 31, 2015). The Company was also a parent guarantor for the payment of the outstanding balance under these loan agreements.&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.25in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Exchange (debt conversion)</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">On July 29, 2015, the Company closed the &quot;Exchange&quot; pursuant to that certain Exchange Agreement, dated as of July 26, 2015 (or the &#x201c;Exchange Agreement&#x201d;), among the Company, Temasek and Total.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Under the Exchange Agreement, at the closing, Temasek exchanged $71.0 million in principal amount of outstanding Tranche I and Tranche II Notes (including paid-in-kind and accrued interest through July 29, 2015) and Total exchanged $70.0 million in principal amount of outstanding R&amp;D Notes for shares of the Company&#x2019;s common stock. The exchange price was $2.30 per share (the &#x201c;Exchange Price&#x201d;) and was paid by the exchange and cancellation of such outstanding convertible promissory notes, and Temasek and Total received 30,860,633 and 30,434,782 shares of the Company&#x2019;s common stock, respectively, in the Exchange. As a result of the Exchange, accretion of debt discount was accelerated based on the Company&#x2019;s estimate of the expected conversion date, resulting in an additional interest expense of $39.2 million for the year ended December 31, 2015.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 30 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Under the Exchange Agreement, Total also received at the closing the following warrants, each with a five-year term:</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 38pt"></td> <td style="width: 18pt">&#x2022;</td> <td>A warrant to purchase 18,924,191 shares of the Company&#x2019;s Common Stock (or the &#x201c;Total Funding Warrant&#x201d;).</td> </tr> </table> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0 0pt 56pt">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 38pt"></td> <td style="width: 18pt">&#x2022;</td> <td style="text-align: justify">A warrant to purchase 2,000,000 shares of the Company&#x2019;s common stock that will only be exercisable if the Company fails, as of March 1, 2017, to achieve a target cost per liter to manufacture farnesene (or the &#x201c;Total R&amp;D Warrant&#x201d;). The Total Funding Warrant and the Total R&amp;D Warrant are collectively referred to as the &#x201c;Total Warrants.&#x201d;</td> </tr> </table> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Additionally, under the Exchange Agreement, Temasek received the following warrants:</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.25in; margin: 0pt 0">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 38pt"></td> <td style="width: 18pt">&#x2022;</td> <td>A warrant to purchase 14,677,861 shares of the Company&#x2019;s common stock. (the &#x201c;Temasek Exchange Warrant&#x201d;).</td> </tr> </table> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0 0pt 56pt">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 38pt"></td> <td style="width: 18pt">&#x2022;</td> <td style="text-align: justify">A warrant exercisable for that number of shares of the Company&#x2019;s common stock equal to (1) (A) the number of shares for which Total exercises the Total Funding Warrant plus (B) the number of additional shares for which the certain convertible notes remaining outstanding following the completion of the Exchange may become exercisable as a result of a reduction in the conversion price of such remaining notes as of a result of and/or subsequent to the date of the Exchange plus (C) that number of additional shares in excess of 2,000,000, if any, for which the Total R&amp;D Warrant becomes exercisable multiplied by a fraction equal to 30.6% divided by 69.4% plus (2) (A) the number of any additional shares for which certain other outstanding convertible promissory notes may become exercisable as a result of a reduction to the conversion price of such notes multiplied by (B) a fraction equal to 13.3% divided by 86.7% (or the &#x201c;Temasek Funding Warrant&#x201d;).</td> </tr> </table> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0 0pt 56pt">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 38pt"></td> <td style="width: 18pt">&#x2022;</td> <td style="text-align: justify">A warrant exercisable for that number of shares of the Company&#x2019;s common stock equal to 880,339 multiplied by a fraction equal to the number of shares for which Total exercises the Total R&amp;D Warrant divided by 2,000,000. If Total is entitled to, and does, exercise the Total R&amp;D Warrant in full, this warrant would be exercisable for 880,339 shares (or the &#x201c;Temasek R&amp;D Warrant&#x201d;).</td> </tr> </table> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Temasek Exchange Warrant, the Temasek Funding Warrant and the Temasek R&amp;D Warrant each have ten-year terms and are referred to herein as the &#x201c;Temasek Warrants&#x201d; and, the Temasek Warrants and Total Warrants are hereinafter collectively referred to as the &#x201c;Exchange Warrants&#x201d;. All of the Exchange Warrants have an exercise price of $0.01 per share.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In addition to the grant of the Exchange Warrants, a warrant issued by the Company to Temasek in October 2013 in conjunction with a prior convertible debt financing (the &#x201c;2013 Warrant&#x201d;) became exercisable in full upon the completion of the Exchange. There were 1,000,000 shares underlying the 2013 Warrant, with an exercise price of $0.01 per share.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The exercisability of all of the Exchange Warrants was subject to stockholder approval, which was obtained on September 17, 2015.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In February and May 2016, as a result of the adjustments to the Tranche I and Tranche II Notes conversion prices discussed above under &#x201c;Related Party Convertible Notes&#x201d;, the Temasek Funding Warrant became exercisable for an additional 127,194 and 2,335,342 shares of common stock, respectively.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September 30, 2016, the Total Funding Warrant, the Temasek Exchange Warrant, and the 2013 Warrant had been fully exercised and Temasek had exercised the Temasek Funding Warrant with respect to 12,700,244 shares of common stock. Neither the Total R&amp;D Warrant nor the Temasek R&amp;D Warrant were exercisable as of September 30, 2016. Warrants to purchase 2,462,536 shares of common stock under the Temasek Funding Warrant were unexercised as of September 30, 2016.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 31 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Maturity Treatment Agreement</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">At the closing of the Exchange, the Company, Total and Temasek also entered into a Maturity Treatment Agreement, dated as of July 29, 2015, pursuant to which Total and Temasek agreed to convert any Tranche I Notes, Tranche II Notes or 2014 144A Notes held by them that were not cancelled in the Exchange (the &#x201c;Remaining Notes&#x201d;) into shares of the Company&#x2019;s common stock in accordance with the terms of such Remaining Notes upon maturity, provided that certain events of default have not occurred with respect to the applicable Remaining Notes prior to such maturity. As of immediately following the closing of the Exchange, Temasek held $10.0 million in aggregate principal amount of Remaining Notes (consisting of 2014 144A Notes) and Total held approximately $25.0 million in aggregate principal amount of Remaining Notes (consisting of $9.7 million of 2014 144A Notes and $15.3 million of Tranche I and II Notes).</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">February 2016 Private Placement</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On February 12, 2016, the Company entered into a Note and Warrant Purchase Agreement (the &#x201c;February 2016 Purchase Agreement&#x201d;) with the purchasers named therein for the sale of $18.0 million in aggregate principal amount of unsecured promissory notes (or the &#x201c;February 2016 Notes&#x201d;) to the purchasers, as well as warrants to purchase 2,571,428 shares of the Company&#x2019;s common stock at an exercise price of $0.01 per share, representing aggregate proceeds to the Company of $18 million (the &#x201c;Initial Sale&#x201d;). On February 15, 2016, an additional purchaser joined the Purchase Agreement and purchased $2.0 million in aggregate principal amount of the February 2016 Notes, as well as warrants to purchase 285,714 shares of the Company&#x2019;s common stock at an exercise price of $0.01 per share, representing aggregate proceeds to the Company of $2 million (or the &#x201c;Subsequent Sale&#x201d; and together with the Initial Sale, the &#x201c;February 2016 Private Placement&#x201d;). The February 2016 Notes and the warrants were issued in a private placement pursuant to the exemption from registration under Section 4(2) of the Securities Act and Regulation D promulgated under the Securities Act. The purchasers are existing stockholders of the Company and affiliated with certain members of the Company&#x2019;s Board of Directors: Foris Ventures, LLC (an entity affiliated with director John Doerr of Kleiner Perkins Caufield &amp; Byers, a current stockholder), which purchased $16.0 million aggregate principal amount of the Notes and warrants to purchase 2,285,714 shares of the Company&#x2019;s common stock; Naxyris S.A. (an investment vehicle owned by Naxos Capital Partners SCA Sicar; director Carole Piwnica is Director of NAXOS UK, which is affiliated with Naxos Capital Partners SCA Sicar), which purchased $2.0 million aggregate principal amount of the Notes and warrants to purchase 285,714 shares of the Company&#x2019;s common stock; and Biolding Investment SA, a fund affiliated with director HH Sheikh Abdullah bin Khalifa Al Thani, which purchased $2.0 million aggregate principal amount of the Notes and warrants to purchase 285,714 shares of the Company&#x2019;s common stock. The Initial Sale closed on February 12, 2016, and the Subsequent Sale closed on February 15, 2016.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The February 2016 Notes are unsecured obligations of the Company and are subordinate to the Company&#x2019;s obligations under the Senior Secured Loan Facility pursuant to a Subordination Agreement, dated as of February 12, 2016, by and among the Company, the purchasers and the administrative agent under the Senior Secured Loan Facility. Interest will accrue on the February 2016 Notes from and including, with respect to the Initial Sale, February 12, 2016, and with respect to the Subsequent Sale, February 15, 2016, at a rate of 13.50% per annum and is payable on May 15, 2017, the maturity date of the February 2016 Notes, unless the February 2016 Notes are prepaid in accordance with their terms prior to such date. The February 2016 Purchase Agreement and the February 2016 Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the February 2016 Notes may be due and payable immediately, as set forth in the February 2016 Notes.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The exercisability of the warrants issued in the February 2016 Private Placement, which each have a term of five years, was subject to stockholder approval, which was obtained on May 17, 2016. As of September 30, 2016, the carrying amount of the February 2016 Notes was $17.8 million.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">June 2016 Private Placement</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On June 24, 2016, the Company entered into a Note Purchase Agreement (or the &#x201c;June 2016 Purchase Agreement&#x201d;) with Foris Ventures, LLC for the sale of $5.0 million in aggregate principal amount of secured promissory notes (or the &#x201c;June 2016 Notes&#x201d;) to Foris Ventures, LLC in exchange for aggregate proceeds to the Company of $5.0 million (or the &#x201c;June 2016 Private Placement&#x201d;). The June 2016 Notes were issued in a private placement pursuant to the exemption from registration under Section 4(2) of the Securities Act of 1933, as amended and Regulation D promulgated under the Securities Act. The June 2016 Private Placement closed on June 24, 2016.</div> <div style=" font-size: 10pt; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 32 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The June 2016 Notes are collateralized by a second priority lien on the assets securing the Company&#x2019;s obligations under the Senior Secured Loan Facility, and are subordinate to the Company&#x2019;s obligations under the Senior Secured Loan Facility pursuant to a Subordination Agreement, dated as of June 24, 2016, by and among the Company, Foris Ventures, LLC and the administrative agent under the Company&#x2019;s Senior Secured Loan Facility. Interest will accrue on the June 2016 Notes from and including June 24, 2016 at a rate of 13.50% per annum and is payable in full on May 15, 2017, the maturity date of the June 2016 Notes, unless the June 2016 Notes are prepaid in accordance with their terms prior to such date. The June 2016 Purchase Agreement and the June 2016 Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the June 2016 Notes may be due and payable immediately, as set forth in the June 2016 Notes.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">See Note 18, &#x201c;Subsequent Events&#x201d; for details regarding debt-related financing transactions completed subsequent to September 30, 2016.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 14pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Letters of Credit</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In June 2012, the Company entered into a letter of credit agreement for $1.0 million under which it provided a letter of credit to the landlord of its headquarters in Emeryville, California, in order to cover the security deposit on the lease. This letter of credit is secured by a certificate of deposit. Accordingly, the Company has $1.0 million as restricted cash under this arrangement as of September&nbsp;30, 2016 and December&nbsp;31, 2015.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Future minimum payments under the debt agreements as of September&nbsp;30, 2016 are as follows (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold">Years ending December&nbsp;31:</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Related Party <br /> Convertible <br /> Debt</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Convertible <br /> Debt</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Loans <br /> Payable</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Related <br /> Party Loans <br /> payable</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Credit <br /> Facility</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Total</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 46%; font-size: 10pt; text-align: left">2016 (remaining three months)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">312</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">3,240</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">1,770</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">844</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">33,234</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">39,400</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">2017</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,837</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">23,562</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,870</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">26,257</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,551</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">59,077</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">2018</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">13,937</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">17,736</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,450</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">322</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">34,445</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">2019</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">26,080</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">79,937</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,342</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">78</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">108,437</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">2020</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,234</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,234</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Thereafter</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,314</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,314</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Total future minimum payments</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">45,166</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">124,475</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">14,980</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">27,101</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">35,185</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">246,907</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left; padding-bottom: 1.1pt">Less: amount representing interest<div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(4,555</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(55,942</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(2,026</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(4,254</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(4,499</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(71,276</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Present value of minimum debt payments</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">40,611</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">68,533</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">12,954</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">22,847</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">30,686</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">175,631</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: current portion present value of minimum debt payments</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(3,611</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(15,357</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(3,275</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(22,847</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(29,926</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(75,016</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Noncurrent portion of debt</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">37,000</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">53,176</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">9,679</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">760</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">100,615</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; margin: 0pt 6.5in 0pt 0">______________</div> <div style=" font-size: 10pt; text-indent: -9pt; margin: 0pt 0 0pt 0.25in"><div style="display: inline; font-size: 8pt">(1) Including debt discount of $33.0 million related to the embedded derivatives associated with the related party and non-related party debt which will be accreted to interest expense under the effective interest method over the term of the debt and debt issuance costs of $3.0 million.</div></div> <div style=" font-size: 10pt; text-indent: -9pt; margin: 0pt 0 0pt 0.25in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In the quarter ended March 31, 2016, the Company adopted ASU 2015-03, <div style="display: inline; font-style: italic;">Interest - Imputation of Interest: Simplifying the Presentation of Debt Issuance Costs</div>, which requires debt issuance costs previously reported as a deferred charge within other noncurrent assets and prepaid expenses and other current assets to be presented as a direct reduction from the carrying amount of debt, consistent with debt discounts, applied retrospectively for all periods presented. As of December 31, 2015, this resulted in the reduction of noncurrent debt by $2.8 million, current debt by $1.4 million, other noncurrent assets by $2.8 million and prepaid expenses and other current assets by $1.4 million.</div></div> 0.0625 0.095 0.0525 0.085 0.0625 0.05 7.0682 3.74 2.25 1.90 7.0682 3.08 4.11 7.0682 3.08 3.08 7.0682 4.11 4.11 4.11 3.08 2.44 2.87 1.42 1.40 1.14 2.30 7.0682 2.20 7.0682 267.037 2165898 38415626 P30D P20D 20 20000000 57600000 57600000 57600000 15000000 105000000 38300000 15000000 23300000 15000000 30000000 10000000 20000000 21700000 10850000 10850000 30000000 10000000 20000000 69000000 10850000 21700000 73000000 42600000 30400000 110000000 51800000 34000000 52000000 16000000 22000000 30000000 18000000 2000000 5000000 69000000 10850000 6000000 8500000 25000000 0.03 0.065 0.015 0.095 0.07 0.05 0.11 0.065 0.095 0.015 0.015 0.055 0.055 0.135 0.135 0.015 0.135 0.1 767200 1.18 1 8800000 18300000 18300000 8800000 3700000 3700000 9700000 22.90 22900000 9700000 P1Y P5Y 36100000 100000 0 0 0 0 33000000 2600000 1900000 3000000 1110000 1111000 9123000 9682000 7105000 6509000 4469000 4469000 6500000 6300000 100000 100000 300000 400000 0.9 0.9 2900000 3100000 8600000 9900000 8561000 9931000 7298000 51439000 3471000 5009000 0.0394 600000 12400000 7700000 700000 -145000 -1796000 1957000 -3201000 1900000 7900000 586000 6711000 51439000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">11. Stock-Based Compensation</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company&#x2019;s stock option activity and related information for the nine months ended September&nbsp;30, 2016 was as follows:</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Number <br /> Outstanding</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Weighted-<br /> Average <br /> Exercise <br /> Price</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Weighted-<br /> Average <br /> Remaining <br /> Contractual <br /> Life (Years)</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Aggregate <br /> Intrinsic <br /> Value</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center">(in&nbsp;thousands)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 56%; font-size: 10pt; font-weight: bold">Outstanding - December 31, 2015</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 8%; font-size: 10pt; text-align: right">12,930,112</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">4.77</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 8%; font-size: 10pt; text-align: right">7.39</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">22</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Options granted</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,324,775</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">0.58</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Options exercised</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(134</td> <td style="font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">0.28</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Options cancelled</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(2,393,835</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">5.59</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 2.5pt">Outstanding - September 30, 2016</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">13,860,918</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">3.62</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7.27</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Vested and expected to vest after September 30, 2016</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">12,598,270</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">3.86</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7.08</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">Exercisable at September 30, 2016</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,788,182</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">5.84</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5.47</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The aggregate intrinsic value of options exercised under all option plans was $0.0 million for each of the three months ended September&nbsp;30, 2016 and 2015, and $0.0 million for each of the nine months ended September 30, 2016 and 2015, determined as of the date of option exercise.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company&#x2019;s restricted stock units (or &quot;RSUs&quot;) and restricted stock activity and related information for the nine months ended September&nbsp;30, 2016 was as follows:</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">RSUs</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Weighted-<br /> Average Grant-<br /> Date Fair Value</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Weighted Average <br /> Remaining <br /> Contractual Life <br /> (Years)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 64%; font-size: 10pt; font-weight: bold">Outstanding - December 31, 2015</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">5,554,844</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2.03</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">1.61</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">&nbsp;Awarded</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,374,389</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">0.60</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">&nbsp;Vested</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(1,467,569</td> <td style="font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">2.19</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;Forfeited</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(987,109</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">1.49</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 2.5pt">Outstanding - September 30, 2016</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">7,474,555</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">1.23</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1.52</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Expected to vest after September 30, 2016</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,898,952</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">2.72</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1.39</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 49 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The following table summarizes information about stock options outstanding as of September&nbsp;30, 2016:</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="11" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Options Outstanding</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Options&nbsp;Exercisable</div></td> </tr> <tr style="vertical-align: bottom"> <td colspan="3" style="text-align: center"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-weight: bold;">Exercise Price</div></div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Number&nbsp;of&nbsp;Options</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Weighted- <br />Average <br />Remaining <br />Contractual&nbsp;Life <br />(Years)</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Weighted-Average <br /> Exercise Price</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Number&nbsp;of&nbsp;Options</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Weighted-Average <br /> Exercise Price</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 13%; text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$0.28</div></div></td> <td style="width: 5%; font-size: 10pt; text-align: center">&#x2014;</td> <td style="width: 12%"><div style="display: inline; font-size: 10pt">$0.57</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">372,754</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">9.71</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">0.43</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3,254</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">0.28</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$0.59</div></div></td> <td style="font-size: 10pt; text-align: center">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$0.59</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">2,574,375</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">9.62</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">0.59</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$0.81</div></div></td> <td style="font-size: 10pt; text-align: center">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$1.73</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">2,063,938</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">8.94</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1.64</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">166,987</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1.61</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$1.75</div></td> <td style="font-size: 10pt; text-align: center"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$1.96</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,546,638</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">8.48</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1.91</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">536,904</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1.90</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$1.98</div></div></td> <td style="font-size: 10pt; text-align: center">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$2.81</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,393,357</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">6.43</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">2.61</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,079,929</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">2.66</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$2.85</div></div></td> <td style="font-size: 10pt; text-align: center">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$3.44</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,369,225</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">6.49</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.02</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,137,340</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.01</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$3.51</div></td> <td style="font-size: 10pt; text-align: center"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$3.51</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,577,760</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">7.33</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.51</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">970,489</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.51</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$3.55</div></td> <td style="font-size: 10pt; text-align: center"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$4.31</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,761,134</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.86</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.97</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,691,542</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.98</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$4.35</div></td> <td style="font-size: 10pt; text-align: center"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$26.84</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,141,737</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.94</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">17.59</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,141,737</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">17.59</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$30.17</div></div></td> <td style="font-size: 10pt; text-align: center; padding-bottom: 1.1pt">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$30.17</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">60,000</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">4.45</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">30.17</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">60,000</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">30.17</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$0.28</div></td> <td style="font-size: 10pt; text-align: center; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$30.17</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">13,860,918</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">7.27</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.62</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">6,788,182</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">5.84</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Stock-Based Compensation Expense</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Stock-based compensation expense related to options and restricted stock units granted to employees was allocated to research and development expense and sales, general and administrative expense as follows (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 52%; font-size: 10pt; text-align: left">Research and development</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">481</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">530</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">1,457</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">1,776</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Sales, general and administrative</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,327</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt; border-bottom: Black 1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,726</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">4,191</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt; border-bottom: Black 1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,188</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total stock-based compensation expense</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">1,808</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt; border-bottom: Black 2.25pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">2,256</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">5,648</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt; border-bottom: Black 2.25pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">6,964</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016, there was unrecognized compensation expense of $5.2 million and $6.0 million related to stock options and RSUs, respectively. The Company expects to recognize this expense over a weighted average period of 2.86 years and 2.72 years, respectively.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 50 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Stock-based compensation expense for RSUs is measured based on the closing fair market value of the Company's common stock on the date of grant. Stock-based compensation expense for stock options and employee stock purchase plan rights is estimated at the grant date and offering date, respectively, based on their fair-value using the Black-Scholes option pricing model. The fair value of employee stock options is being amortized on a straight-line basis over the requisite service period of the awards. The fair value of employee stock options was estimated using the following weighted-average assumptions:</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Expected dividend yield</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">%</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="width: 52%; font-size: 10pt; text-align: left">Risk-free interest rate</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">1.2</td> <td style="width: 1%; font-size: 10pt; text-align: left">%</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">2</td> <td style="width: 1%; font-size: 10pt; text-align: left">%</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">1.32</td> <td style="width: 1%; font-size: 10pt; text-align: left">%</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">2</td> <td style="width: 1%; font-size: 10pt; text-align: left">%</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Expected term (in years)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6.16</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6.03</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6.23</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6.00</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Expected volatility</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">76.7</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">74</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">73</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">74</td> <td style="font-size: 10pt; text-align: left">%</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Expected Dividend Yield</div>&#x2014;The Company has never paid dividends and does not expect to pay dividends.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Risk-Free Interest Rate</div>&#x2014;The risk-free interest rate was based on the market yield currently available on United States Treasury securities with maturities approximately equal to the option&#x2019;s expected term.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Expected Term</div>&#x2014;Expected term represents the period that the Company&#x2019;s stock-based awards are expected to be outstanding. The Company&#x2019;s assumptions about the expected term have been based on that of companies that have similar industry, life cycle, revenue, and market capitalization and the historical data on employee exercises.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Expected Volatility</div>&#x2014;The expected volatility is based on a combination of historical volatility for the Company's stock and the historical stock volatilities of several of the Company&#x2019;s publicly listed comparable companies over a period equal to the expected terms of the options, as the Company does not have a long trading history.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-style: italic;">Forfeiture Rate</div>&#x2014;The Company estimates its forfeiture rate based on an analysis of its actual forfeitures and will continue to evaluate the adequacy of the forfeiture rate based on actual forfeiture experience, analysis of employee turnover behavior, and other factors. The impact from a forfeiture rate adjustment will be recognized in full in the period of adjustment, and if the actual number of future forfeitures differs from that estimated by the Company, the Company may be required to record adjustments to stock-based compensation expense in future periods.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Each of the inputs discussed above is subjective and generally requires significant management and director judgment.</div></div> 61800000 19000000 26457000 37000000 42839000 -0.08 -0.55 -0.21 -1.76 -0.08 -0.55 -0.28 -1.76 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">17. Net Loss Attributable to Common Stockholders and Net Loss per Share</div></div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company computes net loss per share in accordance with ASC 260, &#x201c;Earnings per Share.&#x201d; Basic net loss per share of common stock is computed by dividing the Company&#x2019;s net loss attributable to Amyris, Inc. common stockholders by the weighted average number of shares of common stock outstanding during the period. Diluted net loss per share of common stock is computed by giving effect to all potentially dilutive securities, including stock options, restricted stock units, common stock warrants and convertible promissory notes using the treasury stock method or the as converted method, as applicable. For all periods presented below, other than the nine months ended September 30, 2016, basic net loss per share was the same as diluted net loss per share because the inclusion of all potentially dilutive securities outstanding was anti-dilutive. As such, the numerator and the denominator used in computing both basic and diluted net loss was the same for those periods.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The following table presents the calculation of basic and diluted net loss per share of common stock attributable to Amyris, Inc. common stockholders (in thousands, except share and per share amounts):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-style: italic">Numerator:</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="width: 52%; font-size: 10pt; text-align: left; padding-left: 10pt; text-indent: -10pt">Net loss attributable to Amyris, Inc. common stockholders</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">(19,704</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">(76,664</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">(48,579</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">(176,034</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Interest on convertible debt</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,093</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Accretion of debt discount</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,304</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt; padding-left: 10pt; text-indent: -10pt">Gain from change in fair value of derivative instruments</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(37,593</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt; text-indent: -10pt">Net loss attributable to Amyris, Inc. common stockholders after assumed conversion</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(19,704</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(76,664</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(75,775</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(176,034</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-style: italic">Denominator:</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt; text-indent: -10pt">Weighted average shares of common stock outstanding for basic EPS</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">249,190,339</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">140,374,297</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">226,772,159</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">100,103,007</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Basic loss per share</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.08</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.55</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.21</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(1.76</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 1.1pt; padding-left: 10pt; text-indent: -10pt">Weighted average shares of common stock outstanding</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">249,190,339</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">140,374,297</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">226,772,159</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">100,103,007</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Effect of dilutive securities:</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Convertible promissory notes</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">41,602,952</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Weighted common stock equivalents</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">41,602,952</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Diluted weighted-average common shares</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">249,190,339</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">140,374,297</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">268,375,111</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">100,103,007</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 2.5pt">Diluted loss per share</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.08</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.55</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.28</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(1.76</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> </tr> </table> </div> <!-- Field: Page; Sequence: 54 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The following outstanding shares of potentially dilutive securities were excluded from the computation of diluted net loss per share of common stock because including them would have been anti-dilutive:</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.25in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 52%; font-size: 10pt; text-align: left">Period-end stock options to purchase common stock</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">13,860,918</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">11,307,679</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">13,860,918</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">11,307,679</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Convertible promissory notes<div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">66,474,148</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">43,451,433</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">23,760,389</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">43,451,433</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Period-end common stock warrants</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">14,663,411</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,901,926</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">14,663,411</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,901,926</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Period-end restricted stock units</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">7,474,555</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,558,243</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">7,474,555</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,558,243</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 2.5pt; padding-left: 10pt">Total</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">102,473,032</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">61,219,281</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">59,759,273</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">61,219,281</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; margin: 0pt 6.5in 0pt 0">______________</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0"></td> <td style="width: 14pt"><div style="display: inline; font-size: 8pt"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="text-align: justify"><div style="display: inline; font-size: 8pt">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.</div></td> </tr> </table></div> -308000 -1377000 3827000 46430000 4268000 3122000 5200000 6000000 P2Y313D P2Y262D 0.25 0.5 0.5 0.5 0.25 0.25 0.5 0 0 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">7. Joint Ventures and Noncontrolling Interests</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Novvi LLC</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In September 2011, the Company and Cosan US, Inc. (or &#x201c;Cosan U.S.&#x201d;) formed Novvi LLC (or &#x201c;Novvi&#x201d;), a U.S. entity that is jointly owned by the Company and Cosan U.S. In March&nbsp;2013, the Company and Cosan U.S. entered into agreements to (i) expand their base oils joint venture to also include additives and lubricants and (ii) operate their joint venture exclusively through Novvi. Specifically, the parties entered into an Amended and Restated Operating Agreement for Novvi (or the &#x201c;Operating Agreement&#x201d;), which sets forth the governance procedures for Novvi and the parties' initial contribution. The Company also entered into an IP License Agreement with Novvi (as amended in March 2016, the &#x201c;IP License Agreement&#x201d;) under which the Company granted Novvi (i) an exclusive (subject to certain limited exceptions for the Company), worldwide, royalty-free license to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in automotive, commercial, and industrial lubricants markets, and (ii) a non-exclusive, royalty free license, subject to certain conditions, to manufacture Biofene solely for its own products. In addition, both the Company and Cosan U.S. granted Novvi certain rights of first refusal with respect to alternative base oil and additive technologies that may be acquired by the Company or Cosan U.S. during the term of the IP License Agreement. Under these agreements, through September 30, 2016 the Company and Cosan U.S. each owned 50% of Novvi and each party shared equally in any costs and any profits ultimately realized by the joint venture. Novvi is governed by a six member Board of Managers (or the &#x201c;Board of Managers&#x201d;). The Board of Managers appoints the officers of Novvi, who are responsible for carrying out the daily operating activities of Novvi as directed by the Board of Managers. The IP License Agreement has an initial term of 20 years from the date of the agreement, subject to standard early termination provisions such as uncured material breach or a party's insolvency. Under the terms of the Operating Agreement, Cosan U.S. was obligated to fund its initial 50% ownership share of Novvi in cash in the amount of $10.0 million and the Company was obligated to fund its initial 50% ownership share of Novvi through the granting of an IP License to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in the automotive, commercial and industrial lubricants markets, which Cosan U.S. and Amyris agreed was valued at $10.0 million. In March&nbsp;2013, the Company measured its initial contribution of intellectual property to Novvi at the Company's carrying value of the licenses granted under the IP License Agreement, which was zero.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 36 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In April 2014, the Company, via its forgiveness of existing receivables due from Novvi related to rent and other services performed by the Company, purchased additional membership units of Novvi for a purchase price of $0.2 million. Concurrently, Cosan U.S. purchased an equal amount of additional membership units of Novvi. Also in April 2014, the Company and Cosan U.S. each contributed $2.1 million in cash in exchange for receiving additional membership units in Novvi. Following such transactions, the Company and Cosan U.S. continued to each own 50% of Novvi's issued and outstanding membership units.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In September 2014, the Company and Cosan U.S. entered into a member senior loan agreement to grant Novvi a loan amounting to approximately $3.7 million. The loan is due on September 1, 2017 and bears interest at a rate of 0.36% per annum. Interest accrues daily and is due and payable in arrears on September 1, 2017. The Company and Cosan U.S. each agreed to provide 50% of the loan. The Company's share of approximately $1.8 million was disbursed in two installments. The first installment of $1.2 million was made in September 2014 and the second installment of $0.6 million was made in October 2014. In November 2014, the Company and Cosan U.S. entered into a second member senior loan agreement to grant Novvi a loan of approximately $1.9 million on the same terms as the loan issued in September 2014, except that the due date is November 10, 2017. The Company and Cosan U.S. each agreed to provide 50% of the loan. The Company disbursed its share of the loan (i.e., approximately $1.0 million) in November 2014. In May 2015, the Company and Cosan U.S. entered into a third member senior loan agreement to grant Novvi a loan of approximately $1.1 million on the same terms as the loan issued in September 2014, except that the due date is May 14, 2018. The Company and Cosan U.S. each agreed to provide 50% of the loan.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In the fourth quarter of 2015, the Company and Cosan U.S. entered into four additional member senior loan agreements to grant Novvi an aggregate loan of approximately $1.6 million on the same terms as the loan issued in September 2014, except that the respective due dates are August 19, 2018, October 15, 2018, November 12, 2018 and December 17, 2018. The Company and Cosan U.S. each agreed to provide 50% of each of these four loans. In July 2016, the Company contributed all outstanding amounts owing by Novvi to the Company under the seven member senior loan agreements in exchange for receiving additional membership units in Novvi.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In February 2016, the Company purchased additional membership units of Novvi for an aggregate purchase price of approximately $0.6 million in the form of forgiveness of existing receivables due from Novvi related to rent and other services performed by the Company, and Cosan U.S. purchased an equal number of additional membership units in Novvi for approximately $0.6 million in cash. Following such transactions, each member continued to own 50% of Novvi's issued and outstanding membership units.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On July&nbsp;19, 2016, American Refining Group, Inc. (or &#x201c;ARG&#x201d;) agreed to make a capital contribution of up to $10.0 million in cash to Novvi, subject to certain conditions, in exchange for a one third ownership stake in Novvi. In connection with such investment, the Company agreed to contribute all outstanding amounts owed by Novvi to the Company under the seven existing member senior loan agreements between the Company and Novvi, as well as certain existing receivables due from Novvi to the Company related to rent and other services performance by the Company, in exchange for receiving additional membership units in Novvi. Likewise, Cosan U.S. contributed an equal amount to Novvi as the Company in exchange for receiving an equal amount of additional membership interests in Novvi. Following the ARG investment, assuming it is made in full, and the capital contributions of the Company and Cosan U.S., each of Novvi&#x2019;s three members (i.e., ARG, the Company and Cosan U.S.) will own one third of Novvi&#x2019;s issued and outstanding membership units and will each be represented by two members of the Board of Managers. In order to reflect the ARG investment in Novvi and related transactions, the Amended and Restated Operating Agreement of Novvi was amended and restated on July 19, 2016. In addition, the IP License Agreement between Novvi and the Company was also amended on July 19, 2016. As of September 30, 2016, $4.0 million of ARG's capital contribution to Novvi had been funded.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 37 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">Additional funding requirements to finance the ongoing operations of Novvi are expected to happen through revolving credit or other loan facilities provided by unrelated parties (i.e., such as financial institutions); cash advances or other credit or loan facilities provided by Novvi&#x2019;s members or their affiliates; or additional capital contributions by the existing Novvi members or new investors.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company has identified Novvi as a VIE and determined that the power to direct activities, which most significantly impact the economic success of the joint venture (i.e., continuing research and development, marketing, sales, distribution and manufacturing of Novvi products), the Company and Cosan U.S. Accordingly, the Company is not the primary beneficiary and therefore accounts for its investment in Novvi under the equity method of accounting. The Company will continue to reassess its primary beneficiary analysis of Novvi if there are changes in events and circumstances impacting the power to direct activities that most significantly affect Novvi's economic success. Under the equity method, the Company's share of profits and losses and impairment charges on investments in affiliates are included in &#x201c;Loss from investments in affiliates&#x201d; in the condensed consolidated statements of operations. The carrying amount of the Company's equity investment in Novvi as of September 30, 2016 and December 31, 2015 was zero and the Company recognized zero and $0.7 million losses for the three months ended September 30, 2016 and 2015, respectively, and zero and $2.1 million for the nine months ended September 30, 2016 and 2015, respectively.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Total Amyris BioSolutions B.V.</div></div></div> <div style=" font-size: 10pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In November 2013, the Company and Total formed Total Amyris BioSolutions B.V. (or &#x201c;TAB&#x201d;), a joint venture to produce and commercialize farnesene- or farnesane-based jet and diesel fuels. Prior to the restructuring of TAB in March 2016 as described below, the common equity of TAB was owned equally by the Company and Total, and TAB&#x2019;s purpose was limited to executing the License Agreement dated December 2, 2013 between the Company, Total and TAB and maintaining such licenses under it, unless and until either (i) Total elected to go forward with either the full (diesel and jet fuel) TAB commercialization program or the jet fuel component of the TAB commercialization program (or a &#x201c;Go Decision&#x201d;), (ii) Total elected to not continue its participation in the R&amp;D Program and TAB (or a &#x201c;No-Go Decision&#x201d;), or (iii) Total exercised any of its rights to buy out the Company&#x2019;s interest in TAB.&nbsp;Following a Go Decision, the articles and shareholders&#x2019; agreement of TAB would be amended and restated to be consistent with the shareholders&#x2019; agreement contemplated by the Total Fuel Agreements (see Note 5, &quot;Debt&quot; and Note 8, &quot;Significant Agreements&quot;).</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In July 2015, the Company and Total entered into a Letter Agreement (or, as amended in February 2016, the &#x201c;TAB Letter Agreement&#x201d;) regarding the restructuring of the ownership and rights of TAB (or the &#x201c;Restructuring&#x201d;), pursuant to which the parties agreed to, among other things, enter into an Amended &amp; Restated Jet Fuel License Agreement between the Company and TAB (or the &#x201c;Jet Fuel Agreement&#x201d;), a License Agreement regarding Diesel Fuel in the European Union (or the &#x201c;EU&#x201d;) between the Company and Total (or the &#x201c;EU Diesel Fuel Agreement&#x201d;), and an Amended and Restated Shareholders&#x2019; Agreement among the Company, Total and TAB, and file a Deed of Amendment of Articles of Association of TAB, all in order to reflect certain changes to the ownership structure of TAB and license grants and related rights pertaining to TAB.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On February 12, 2016, the Company and Total entered into an amendment to the TAB Letter Agreement, pursuant to which the parties agreed that, upon the closing of the Restructuring, Total would cancel R&amp;D Notes in an aggregate principal amount of approximately $1.3 million, plus all paid-in-kind and accrued interest as of the closing of the Restructuring under all outstanding R&amp;D Notes (including all such interest that was outstanding as of July 29, 2015), and a note in the principal amount of Euro 50,000, plus accrued interest, issued by the Company to Total in connection with the existing TAB capitalization, in exchange for an additional 25% ownership interest of TAB (giving Total an aggregate ownership stake of 75% of TAB and giving the Company an aggregate ownership stake of 25% of TAB). In connection therewith, Total would surrender to the Company the remaining R&amp;D Notes and the Company would provide to Total a new unsecured senior convertible note, containing substantially similar terms and conditions, in the principal amount of $3.7 million (collectively, the &#x201c;TAB Share Purchase&#x201d;).</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 38 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On March 21, 2016, the Company, Total and TAB closed the Restructuring and the TAB Share Purchase. See Note 5, &#x201c;Debt&#x201d; for further details of the impact of these transaction on the Company&#x2019;s condensed consolidated financial statements.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">Under the Jet Fuel Agreement, (a) the Company granted exclusive (co-exclusive in Brazil), world-wide, royalty-free rights to TAB for the production and commercialization of farnesene- or farnesane-based jet fuel, (b) the Company granted TAB the option, until March 1, 2018, to purchase the Company&#x2019;s Brazil jet fuel business at a price based on the fair value of the commercial assets and on the Company&#x2019;s investment in other related assets, (c) the Company granted TAB the right to purchase farnesene or farnesane for its jet fuel business from the Company on a &#x201c;most-favored&#x201d; pricing basis and (d) all rights to farnesene- or farnesane-based diesel fuel previously granted to TAB by the Company reverted back to the Company. As a result of the Jet Fuel Agreement, the Company generally no longer has an independent right to make or sell, without the approval of TAB, farnesene- or farnesane-based jet fuels outside of Brazil.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">Upon all farnesene-or farnesane-based diesel fuel rights reverting back to the Company, the Company granted to Total, pursuant to the EU Diesel Fuel Agreement, (a) an exclusive, royalty-free license to offer for sale and sell farnesene- or farnesane-based diesel fuel in the EU, (b) the non-exclusive right to make farnesene or farnesane anywhere in the world, but Total must (i) use such farnesene or farnesane to produce only diesel fuel to offer for sale or sell in the EU and (ii) pay the Company a to-be-negotiated, commercially reasonable, &#x201c;most-favored&#x201d; basis royalty and (c) the right to purchase farnesene or farnesane for its EU diesel fuel business from the Company on a &#x201c;most-favored&#x201d; pricing basis. As a result of the EU Diesel Fuel Agreement, the Company generally no longer has an independent right to make or sell, without the approval of TAB, farnesene- or farnesane-based diesel fuels in the EU.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">As a result of, and in order to reflect, the changes to the ownership structure of TAB described above, on March 21, 2016, (a) the Company, Total and TAB entered into an Amended and Restated Shareholders&#x2019; Agreement and filed a Deed of Amendment of Articles of Association of TAB and (b) the Company and Total terminated the Amended and Restated Master Framework Agreement, dated December 2, 2013 and amended on April 1, 2015, between the Company and Total.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">As of September 30, 2016, the common equity of TAB was owned 25% by the Company and 75% by Total.&nbsp;TAB has a capitalization as of September 30, 2016 of &#x20ac;0.1 million (approximately US$0.1 million based on the exchange rate as of September&nbsp;30, 2016). The Company has identified TAB as a VIE and determined that the Company is not the primary beneficiary and therefore accounts for its investment in TAB under the equity method of accounting. Under the equity method, the Company's share of profits and losses are included in &#x201c;Loss from investment in affiliate&#x201d; in the consolidated statements of operations.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">SMA Ind&uacute;stria Qu&iacute;mica S.A.</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In April&nbsp;2010, the Company established SMA Ind&uacute;stria Qu&iacute;mica (or &quot;SMA&quot;), a joint venture with S&atilde;o Martinho S.A. (or &quot;SMSA&quot;), to build a production facility in Brazil. SMA is located at the SMSA mill in Prad&oacute;polis, S&atilde;o Paulo state. The joint venture agreements establishing SMA have a 20 year initial term.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">SMA was initially managed by a three member executive committee, of which the Company appointed two members, one of whom is the plant manager who is the most senior executive responsible for managing the construction and operation of the facility. SMA was initially governed by a four member board of directors, of which the Company and SMSA each appointed two members. The board of directors had certain protective rights which include final approval of the engineering designs and project work plan developed and recommended by the executive committee.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 39 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The joint venture agreements required the Company to fund the construction costs of the new facility and SMSA would reimburse the Company up to R$61.8 million (approximately US$19.0 million based on the exchange rate as of September&nbsp;30, 2016) of the construction costs after SMA commences production. After commercialization, the Company would market and distribute Amyris renewable products produced by SMA and SMSA would sell feedstock and provide certain other services to SMA. The cost of the feedstock to SMA would be a price that is based on the average return that SMSA could receive from the production of its current products, sugar and ethanol. The Company would be required to purchase the output of SMA for the first four years at a price that guarantees the return of SMSA&#x2019;s investment plus a fixed interest rate. After this four year period, the price would be set to guarantee a break-even price to SMA plus an agreed upon return.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Under the terms of the joint venture agreements, if the Company became controlled, directly or indirectly, by a competitor of SMSA, then SMSA would have the right to acquire the Company&#x2019;s interest in SMA. If SMSA became controlled, directly or indirectly, by a competitor of the Company, then the Company would have the right to sell its interest in SMA to SMSA. In either case, the purchase price would be determined in accordance with the joint venture agreements, and the Company would continue to have the obligation to acquire products produced by SMA for the remainder of the term of the supply agreement then in effect even though the Company would no longer be involved in SMA&#x2019;s management.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company initially had a 50% ownership interest in SMA. The Company has identified SMA as a VIE pursuant to the accounting guidance for consolidating VIEs because the amount of total equity investment at risk is not sufficient to permit SMA to finance its activities without additional subordinated financial support, as well as because the related commercialization agreement provides a substantive minimum price guarantee. Under the terms of the joint venture agreement, the Company directed the design and construction activities, as well as production and distribution. In addition, the Company had the obligation to fund the design and construction activities until commercialization was achieved. Subsequent to the construction phase, both parties equally would fund SMA for the term of the joint venture. Based on those factors, the Company was determined to have the power to direct the activities that most significantly impact SMA&#x2019;s economic performance and the obligation to absorb losses and the right to receive benefits. Accordingly, the financial results of SMA are included in the Company&#x2019;s consolidated financial statements and amounts pertaining to SMSA&#x2019;s interest in SMA are reported as noncontrolling interests in subsidiaries.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company completed a significant portion of the construction of the new facility in 2012. The Company suspended construction of the facility in 2013 in order to focus on completing and operating the Company's smaller production facility in Brotas, Brazil. In February 2014, the Company entered into an amendment to the joint venture agreement with SMSA which updated and documented certain preexisting business plan requirements related to the recommencement of construction at the joint venture operated plant and sets forth, among other things, (i) the extension of the deadline for the commencement of operations at the joint venture operated plant to no later than 18 months following the construction of the plant no later than March 31, 2017, and (ii) the extension of an option held by SMSA to build a second large-scale farnesene production facility to no later than December 31, 2018 with the commencement of operations at such second facility to occur no later than April 1, 2019. On July 1, 2015 SMSA filed a material fact document with CVM, the Brazilian securities regulator, that announced that certain contractual targets undertaken by the Company have not been achieved, which affects the feasibility of the project. Therefore, SMSA decided not to approve continuing construction of the plant for the joint venture with the Company and its Brazilian subsidiary Amyris Brasil. In July 2015, the Company announced that it was in discussions with SMSA regarding the continuation of the joint venture.&nbsp;In December 2015, the Company and SMSA entered into a Termination Agreement and a Share Purchase and Sale Agreement relating to the termination of the joint venture. Under the Termination Agreement, the parties agreed that the joint venture would be terminated effective upon the closing of a purchase by Amyris Brasil of SMSA&#x2019;s shares of SMA. Under the Share Purchase and Sale Agreement, Amyris Brasil agreed to purchase, for R$50,000 (approximately US$15,426 based on the exchange rate as of September&nbsp;30, 2016), 50,000 shares of SMA (representing all the outstanding shares of SMA held by SMSA), which purchase and sale was consummated on January 11, 2016. The Share Purchase and Sale Agreement also provided that the Company and Amyris Brasil would have 12 months following the closing of the share purchase to remove assets from SMSA&#x2019;s site, and enter into an extension of the lease for such 12 month period for monthly rental payments of R$9,853 (approximately US$3,040 based on the exchange rate as of September&nbsp;30, 2016). The Share Purchase and Sale Agreement also clarified that the Company and Amyris Brasil would not be required to demolish or remove the foundations of the plant at the SMSA site. On September 1, 2016, the parties entered into an addendum to the Share Purchase and Sale Agreement (and a corresponding amendment to the lease) which extended the deadline for the Company and Amyris Brasil to remove assets from SMSA&#x2019;s site until December 31, 2017.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <!-- Field: Page; Sequence: 40 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Glycotech</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In January 2011, the Company entered into a production service agreement (or the &quot;Glycotech Agreement&quot;) with Glycotech, Inc. (or &quot;Glycotech&quot;), under which Glycotech provides process development and production services for the manufacturing of various Company products at its leased facility in Leland, North Carolina. The Company products manufactured by Glycotech are owned and distributed by the Company. Pursuant to the terms of the Glycotech Agreement, the Company is required to pay the manufacturing and operating costs of the Glycotech facility, which is dedicated solely to the manufacture of Amyris products. The initial term of the Glycotech Agreement was for a two year period commencing on February&nbsp;1, 2011 and the Glycotech Agreement renews automatically for successive one-year terms, unless terminated by the Company. Concurrent with the Glycotech Agreement, the Company also entered into a Right of First Refusal Agreement with the lessor of the facility and site leased by Glycotech (or the &quot;ROFR Agreement&quot;). Per conditions of the ROFR Agreement, the lessor agreed not to sell the facility and site leased by Glycotech during the term of the Glycotech Agreement. In the event that the lessor is presented with an offer to sell or decides to sell an adjacent parcel, the Company has the right of first refusal to acquire it.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company has determined that the arrangement with Glycotech qualifies as a VIE. The Company determined that it is the primary beneficiary of this arrangement since it has the power through the management committee over which it has majority control to direct the activities that most significantly impact Glycotech's economic performance. In addition, the Company is required to fund 100% of Glycotech's actual operating costs for providing services each month while the facility is in operation under the Glycotech Agreement. Accordingly, the Company consolidates the financial results of Glycotech. The carrying amounts of Glycotech's assets and liabilities were not material to the Company's condensed consolidated financial statements.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The table below reflects the carrying amount of the assets and liabilities of the consolidated VIE for which the Company is the primary beneficiary at September 30, 2016 (two at December 31, 2015).&nbsp;As of September&nbsp;30, 2016 and December 31, 2015, the assets include $0.1 million and $5.2 million in property, plant and equipment, respectively, $0.4 million and $1.5 million in current assets, respectively, and zero and $0.3 million in other assets as of September 30, 2016 and December 31, 2015 include, respectively. As of September 30, 2016 and December 31, 2015, the liabilities include $0.2 million and $1.1 million, respectively, in accounts payable and accrued current liabilities, and $0.1 million and $0.1 million, respectively, in loan obligations by Glycotech to its shareholders that are non-recourse to the Company.&nbsp;The creditors of each consolidated VIE have recourse only to the assets of that VIE.</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold; text-align: justify">(In thousands)</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, <br /> 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt">Assets</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">493</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">6,993</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">257</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">1,221</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The change in noncontrolling interest for the nine months ended September&nbsp;30, 2016 and 2015, is summarized below (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; font-weight: bold">Balance at January 1</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">391</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">611</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Foreign currency translation adjustment</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(393</td> <td style="font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Income attributable to noncontrolling interest</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">78</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Acquisition of noncontrolling interest</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(277</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 2.5pt">Balance at September 30</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">114</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">296</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div></div> 1300000 50000 5000000 35000000 35000000 9200000 1300000 50000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2016</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Risk-free interest rate</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;0.20%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">0.84%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">0.93%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">1.07%</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Risk-adjusted yields</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">17.30%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">27.43%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">24.40%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">39.90%</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Stock-price volatility</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 5%; font-size: 10pt; text-align: right">&nbsp;</td> <td style="width: 4%; font-size: 10pt; text-align: center">45%</td> <td style="width: 5%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 5%; font-size: 10pt; text-align: right">&nbsp;</td> <td style="width: 4%; font-size: 10pt; text-align: center">45%</td> <td style="width: 5%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Probability of change in control</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: center">5%</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: center">5%</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">Stock price</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: center">$0.58</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: center">$2.01</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Credit spread</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">16.49%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">26.60%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">28.81%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">38.83%</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Estimated conversion dates</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2016</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">2019</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2015</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">2019</td> </tr> </table></div> 0.173 0.2743 0.244 0.399 0.45 0.45 0.002 0.0084 0.0093 0.0107 0.05 0.05 <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 84%; font-size: 10pt">Balance at January 1</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">96,291</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-left: 10pt">Additions of convertible notes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">13,000</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-left: 10pt">Conversion/extinguishment of convertible notes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(21,579</td> <td style="font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt; padding-left: 10pt">Change in fair value of convertible notes</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">22,173</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 2.5pt">Balance at September 30</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">109,885</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> 39869000 13000000 22173000 2734000 3800000 46400000 96291000 109885000 46430000 3827000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 84%; font-size: 10pt">Balance at January 1</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">46,430</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-left: 10pt">Derecognition on conversion/extinguishment</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(2,734</td> <td style="font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt; padding-left: 10pt">Gain from change in fair value of derivative liabilities</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(39,869</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 2.5pt">Balance at September 30</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">3,827</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">3. Fair Value of Financial Instruments</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The inputs to the valuation techniques used to measure fair value are classified into the following categories:</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 9pt; margin: 0pt 0 0pt 0.5in">Level 1: Quoted market prices in active markets for identical assets or liabilities.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 9pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 9pt; margin: 0pt 0 0pt 0.5in">Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 9pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 9pt; margin: 0pt 0 0pt 0.5in">Level 3: Unobservable inputs that are not corroborated by market data.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 13 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">There were no transfers between the levels, and as of September&nbsp;30, 2016, the Company&#x2019;s financial assets and financial liabilities at fair value were classified within the fair value hierarchy as follows (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level&nbsp;1</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level 2</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level&nbsp;3</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Balance as of <br /> September 30, <br /> 2016</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; text-align: left">Financial Assets</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="width: 52%; font-size: 10pt; text-align: left">Money market funds</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">59</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">59</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Certificates of deposit</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,713</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,713</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total financial assets</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">1,772</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">1,772</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; text-align: left">Financial Liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Loans payable <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">34,146</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">34,146</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Credit facilities <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">&nbsp;(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">19,310</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">19,310</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Convertible notes <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">109,885</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">109,885</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Compound embedded derivative liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,827</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,827</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Currency interest rate swap derivative liability</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,471</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,471</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total financial liabilities</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">56,927</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">113,712</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">170,639</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-size: 8pt"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1) </div> These liabilities are carried on the condensed consolidated balance sheet on a historical cost basis.</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company&#x2019;s assessment of the significance of a particular input to the fair value measurement in its entirety requires management to make judgments and consider factors specific to the asset or liability. The fair values of money market funds and certificates of deposit are based on fair values of identical assets. The fair values of the loans payable, convertible notes, credit facilities and currency interest rate swaps are based on the present value of expected future cash flows and assumptions about current interest rates and the creditworthiness of the Company. The method of determining the fair value of the compound embedded derivative liabilities is described subsequently in this note. Market risk associated with the fixed and variable rate long-term loans payable, credit facilities and convertible notes relates to the potential reduction in fair value and negative impact to future earnings, from an increase in interest rates. Market risk associated with the compound embedded derivative liabilities relates to the potential reduction in fair value and negative impact to future earnings from a decrease in interest rates.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The carrying amounts of certain financial instruments, such as cash equivalents, accounts receivable, accounts payable and accrued liabilities, approximate fair value due to their relatively short maturities and low market interest rates, if applicable.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of December&nbsp;31, 2015, the Company&#x2019;s financial assets and financial liabilities are presented below at fair value and were classified within the fair value hierarchy as follows (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level&nbsp;1</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level 2</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level&nbsp;3</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Balance as of <br /> December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; text-align: left">Financial Assets</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="width: 52%; font-size: 10pt; text-align: left">Money market funds</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2,078</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2,078</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Certificates of deposit</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,520</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,520</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total financial assets</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">3,598</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">3,598</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; text-align: left">Financial Liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Loans payable <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">9,541</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">9,541</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Credit facilities <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">&nbsp;(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">34,893</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">34,893</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Convertible notes <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">96,291</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">96,291</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Compound embedded derivative liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">46,430</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">46,430</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Currency interest rate swap derivative liability</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,009</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,009</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total financial liabilities</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">49,443</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">142,721</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">192,164</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 6.5in 0pt 9pt">_______</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0"><div style="display: inline; font-size: 8pt"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1) </div> These liabilities are carried on the consolidated balance sheet on a historical cost basis (noting that the Remaining Notes subject to the Maturity Treatment Agreement were revalued to fair value on July 29, 2015, see Note 5 &#x201c;Debt&#x201d; for details).</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 14 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The following table provides a reconciliation of the beginning and ending balances for the convertible notes disclosed at fair value using significant unobservable inputs (Level 3) (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 84%; font-size: 10pt">Balance at January 1</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">96,291</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-left: 10pt">Additions of convertible notes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">13,000</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-left: 10pt">Conversion/extinguishment of convertible notes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(21,579</td> <td style="font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt; padding-left: 10pt">Change in fair value of convertible notes</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">22,173</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 2.5pt">Balance at September 30</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">109,885</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Derivative Instruments</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The following table provides a reconciliation of the beginning and ending balances for the compound embedded derivative liabilities measured at fair value using significant unobservable inputs (Level 3) (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 84%; font-size: 10pt">Balance at January 1</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">46,430</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-left: 10pt">Derecognition on conversion/extinguishment</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(2,734</td> <td style="font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt; padding-left: 10pt">Gain from change in fair value of derivative liabilities</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(39,869</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 2.5pt">Balance at September 30</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">3,827</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; margin: 0pt 0 0pt 0.25in; text-indent: 0.5in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The compound embedded derivative liabilities represent the fair value of the equity conversion options and &quot;make-whole&quot; provisions, as well as the down round conversion price adjustment or conversion rate adjustment provisions of the R&amp;D Notes, the Tranche I Notes, the Tranche II Notes, the 2014 144A Notes and the 2015 144A Notes (see Note 5, &quot;Debt&quot;). There is no current observable market for these types of derivatives and, as such, the Company determined the fair value of the embedded derivatives using a Monte Carlo simulation valuation model for the R&amp;D Notes and the binomial lattice model for the Tranche I Notes, the Tranche II Notes, the 2014 144A Notes and the 2015 144A Notes (collectively, &quot;the Convertible Notes&quot;). A Monte Carlo simulation valuation model combines expected cash outflows with market-based assumptions regarding risk-adjusted yields, stock price volatility, probability of a change of control and the trading information of the Company's common stock into which the notes are or may be convertible. A binomial lattice model generates two probable outcomes - one up and another down - arising at each point in time, starting from the date of valuation until the maturity date. A lattice model was used to determine if the Convertible Notes would be converted, called or held at each decision point. Within the lattice model, the following assumptions are made: (i) the Convertible Notes will be converted early if the conversion value is greater than the holding value and (ii) the Convertible Notes will be called if the holding value is greater than both (a) redemption price and (b) the conversion value at the time. If the Convertible Notes are called, then the holder will maximize their value by finding the optimal decision between (1) redeeming at the redemption price and (2) converting the Convertible Notes. Using this lattice method, the Company valued the embedded derivatives using the &quot;with-and-without method&quot;, where the fair value of the Convertible Notes including the embedded derivative is defined as the &quot;with&quot;, and the fair value of the Convertible Notes excluding the embedded derivatives is defined as the &quot;without&quot;. This method estimates the fair value of the embedded derivatives by looking at the difference in the values between the Convertible Notes with the embedded derivatives and the fair value of the Convertible Notes without the embedded derivatives. The lattice model uses the stock price, conversion price, maturity date, risk-free interest rate, estimated stock volatility and estimated credit spread. The Company marks the compound embedded derivatives to market due to the conversion price not being indexed to the Company's own stock. As of September 30, 2016 and December&nbsp;31, 2015, included in &quot;Derivative Liabilities&quot; on the condensed consolidated balance sheet are the Company's compound embedded derivative liabilities of $3.8 million and $46.4 million, respectively.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 15 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The market-based assumptions and estimates used in valuing the compound embedded derivative liabilities include amounts in the following ranges/amounts:</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2016</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Risk-free interest rate</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;0.20%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">0.84%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">0.93%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">1.07%</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Risk-adjusted yields</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">17.30%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">27.43%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">24.40%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">39.90%</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Stock-price volatility</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 5%; font-size: 10pt; text-align: right">&nbsp;</td> <td style="width: 4%; font-size: 10pt; text-align: center">45%</td> <td style="width: 5%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 5%; font-size: 10pt; text-align: right">&nbsp;</td> <td style="width: 4%; font-size: 10pt; text-align: center">45%</td> <td style="width: 5%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Probability of change in control</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: center">5%</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: center">5%</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">Stock price</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: center">$0.58</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: center">$2.01</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Credit spread</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">16.49%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">26.60%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">28.81%</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">38.83%</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Estimated conversion dates</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2016</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">2019</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2015</td> <td style="font-size: 10pt; text-align: center"> - </td> <td style="font-size: 10pt; text-align: left">2019</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: center; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Changes in valuation assumptions can have a significant impact on the valuation of the embedded derivative liabilities. For example, all other things being equal, a decrease/increase in the Company&#x2019;s stock price, probability of change of control, credit spread, term to maturity/conversion or stock price volatility decreases/increases the valuation of the liabilities, whereas a decrease/increase in risk adjusted yields or risk-free interest rates increases/decreases the valuation of the liabilities. The conversion price of certain of the Convertible Notes also include conversion price adjustment features where, for example, issuances of common stock by the Company at prices lower than the conversion price result in a reset of the conversion price of such notes, which increases the value of the embedded derivative liabilities. See Note 5, &quot;Debt&quot; for further details of conversion price adjustment features.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In June 2012, the Company entered into a loan agreement with Banco Pine S.A. (or &quot;Banco Pine&quot;) under which Banco Pine provided the Company with a loan (or the &quot;Banco Pine Bridge Loan&quot;) (see Note 5, &quot;Debt&quot;). At the time of the Banco Pine Bridge Loan, the Company also entered into a currency interest rate swap arrangement with Banco Pine with respect to the repayment of R$22.0 million (approximately US$6.8 million based on the exchange rate as of September&nbsp;30, 2016) of the Banco Pine Bridge Loan. The swap arrangement exchanges the principal and interest payments under the Banco Pine Bridge Loan for alternative principal and interest payments that are subject to adjustment based on fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real. The swap has a fixed interest rate of 3.94%. Changes in the fair value of the swap are recognized in &#x201c;Gain (loss) from change in fair value of derivative instruments&quot; in the condensed consolidated statements of operations are as follows (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Income <br />Statement&nbsp;Classification</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended <br /> September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended <br /> September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">Type of Derivative Contract</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 24%; font-size: 10pt; text-align: left">Currency interest rate swap</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 28%; font-size: 10pt; text-align: left">Gain (loss) from change in fair value of derivative instruments</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">(145</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">(1,796</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">1,957</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">(3,201</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Derivative instruments measured at fair value as of September&nbsp;30, 2016 and December&nbsp;31, 2015, and their classification on the condensed consolidated balance sheets are as follows (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30,<br /> &nbsp;2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Fair market value of compound embedded derivative liabilities</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">3,827</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">46,430</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Fair value of&nbsp;&nbsp;swap obligations</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,471</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,009</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt">Total derivative liabilities</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">7,298</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">51,439</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div></div> P2Y 772000 772000 -1662000 -786000 -21690000 41826000 -10268000 136000 -121000 4200000 -19900000 -9400000 -217000 -5984000 -866000 -5984000 560000 560000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;">9. Goodwill and Intangible Assets</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The following table presents the components of the Company's intangible assets (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="11" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2016</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="11" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, 2015</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Useful Life <br /> in Years</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Gross <br /> Carrying <br /> Amount</td> <td style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Accumulated<br /> Amortization/<br /> Impairment</td> <td style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Net <br /> Carrying <br /> Value</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Gross <br /> Carrying <br /> Amount</td> <td style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Accumulated<br /> Amortization/<br /> Impairment</td> <td style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Net <br /> Carrying <br /> Value</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 35%; font-size: 10pt; text-align: left">In-process research and development</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: center">&nbsp;</td> <td style="width: 8%; font-size: 10pt; text-align: center">Indefinite</td> <td style="width: 1%; font-size: 10pt; text-align: center">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">8,560</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">(8,560</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">8,560</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">(8,560</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Acquired licenses and permits</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; text-align: center">2</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">772</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(772</td> <td style="font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">772</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(772</td> <td style="font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Goodwill</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; text-align: center">Indefinite</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 1.1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 1.1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 1.1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 1.1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">9,892</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 2.5pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(9,332</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; border-bottom: Black 2.5pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">9,892</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 2.5pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(9,332</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; border-bottom: Black 2.5pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The in-process research and development (IPR&amp;D) of $8.6 million was acquired through the acquisition of Draths in October 2011 and was treated as indefinite lived intangible assets pending completion or abandonment of the projects to which the IPR&amp;D related. The IPR&amp;D was fully impaired in 2015.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company has a single reportable segment (see Note 15, &#x201c;Reporting Segments&#x201d; for further details). Consequently, all of the Company's goodwill is attributable to that single reportable segment.</div></div> 560000 560000 1.3 8560000 8560000 -19556000 -75909000 -48177000 -173668000 -19704000 -76028000 -48579000 -174023000 0 -700000 2100000 -660000 -2089000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">14. Income Taxes</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company recorded a provision for income taxes of $0.1 million for each of the three months ended September 30, 2016 and 2015, and $0.4 million for each of the nine months ended September 30, 2016 and 2015. The provision for income taxes for the nine months ended September 30, 2016 and 2015 consisted of an accrual of Brazilian withholding tax on interest on inter-company loans. Other than the above mentioned provision for income tax, no additional provision for income taxes has been made, net of the valuation allowance, due to cumulative losses since the commencement of the Company's operations.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">On December 15, 2011, the IRS completed its audit of the Company for tax year 2008 which concluded that there were no adjustments resulting from the audit. While the statutes are closed for tax year 2008, the US federal tax carryforwards (net operating losses and tax credits) may be adjusted by the IRS in the year in which the carryforward is utilized.</div></div> 119000 402000 148000 355000 4306000 7302000 1883000 -5161000 -526000 10000 13552000 11430000 343000 2666000 -3868000 -3306000 -560000 -405000 1334000 3218000 -238000 41602952 8600000 8560000 8560000 772000 772000 560000 560000 7927000 16559000 25989000 71027000 39200000 5093000 4679000 5859000 8283000 1984000 16200000 3471000 3471000 5009000 5009000 3426000 5099000 7899000 10886000 2664000 2204000 1809000 3583000 68000 61000 207000 205000 2100000 1300000 1400000 4000000 3900000 9853 3040 1000000 256917000 264572000 99419000 106116000 131731000 75524000 56927000 113712000 170639000 49443000 142721000 192164000 0 0 25000000 4800000 1500000 7600000 1900000 2500000 800000 3400000 900000 0.03 15000000 1000000 22400000 6900000 19100000 3300000 6400000 2000000 0.001 19310000 19310000 34893000 34893000 25000000 31700000 28400000 34146000 34146000 9541000 9541000 175631000 3700000 5000000 37900000 11700000 43000000 11000000 17800000 3700000 28438000 31590000 1471000 1956000 777000 840000 30686000 34386000 68533000 61233000 40611000 42749000 22847000 12954000 13606000 151974000 48559000 36281000 63615000 72854000 391000 611000 114000 296000 -114000 -391000 277000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">1. The Company</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Amyris, Inc. (or &quot;the Company&quot;) was incorporated in California on July 17, 2003 and reincorporated in Delaware on June 10, 2010 for the purpose of leveraging breakthroughs in bioscience technology to develop and provide renewable compounds for a variety of markets. The Company is currently applying its industrial synthetic biology platform to engineer, manufacture and sell high performance, low cost products into a variety of consumer and industrial markets, including cosmetics, flavors &amp; fragrances (or &quot;F&amp;F&quot;), solvents and cleaners, polymers, lubricants, healthcare products and fuels, and it is seeking to apply its technology to the development of pharmaceutical products. The Company's first commercialization efforts have been focused on a renewable hydrocarbon molecule called farnesene (Biofene&reg;), which forms the basis for a wide range of products including emollients, flavors and fragrance oils and diesel fuel. While the Company's platform is able to use a wide variety of feedstocks, the Company has focused on Brazilian sugarcane because of its abundance, low cost and relative price stability. The Company has established two principal operating subsidiaries, Amyris Brasil Ltda. (formerly Amyris Brasil S.A., or &quot;Amyris Brasil&quot;) for production in Brazil, and Amyris Fuels, LLC (or &quot;Amyris Fuels&quot;).</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The Company's renewable products business strategy is to focus on direct commercialization of specialty products while moving established commodity products into collaboration or joint venture arrangements with leading industry partners. To commercialize its products, the Company must be successful in using its technology to manufacture products at commercial scale and on an economically viable basis (i.e., low per unit production costs) and developing sufficient sales volume for those products to support its operations. The Company's prospects are subject to risks, expenses and uncertainties frequently encountered by companies in this stage of development.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Liquidity</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The Company expects to fund its operations for the foreseeable future with cash and investments currently on hand, cash inflows from collaborations and grants, cash contributions from product sales, and proceeds from new debt and equity financings as well as strategic asset divestments. The Company's planned 2016 and 2017 working capital needs and its planned operating and capital expenditures are dependent on significant inflows of cash from new and existing collaboration partners and from cash generated from renewable product sales, and will also require additional funding from debt or equity financings as well as proceeds from strategic asset divestments.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company has incurred significant operating losses since its inception and believes that it will continue to incur losses and negative cash flow from operations into at least 2017. As of September&nbsp;30, 2016, the Company had negative working capital of $110.6 million, an accumulated deficit of $1,085.7 million, and cash, cash equivalents and short term investments of $2.3 million. The Company will need to raise cash from additional financings or strategic asset divestments as early as the fourth quarter of 2016 to support its liquidity needs. These factors raise substantial doubt about the Company&#x2019;s ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. If the Company is unable to continue as a going concern, it may be unable to meet its obligations under its existing debt facilities, which could result in an acceleration of its obligation to repay all amounts outstanding under those facilities, and it may be forced to liquidate its assets.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016, the Company's debt, net of discount and issuance costs of $36.1 million, totaled $175.6 million, of which $75.0 million is classified as current. In addition to upcoming debt maturities, the Company's debt service obligations over the next twelve months are significant, including $16.2 million of anticipated cash interest payments. The Company's debt agreements contain various covenants, including certain restrictions on the Company's business that could cause the Company to be at risk of defaults, such as the requirement to maintain unrestricted, unencumbered cash in defined U.S. bank accounts in an amount equal to at least 50% of the principal amount outstanding under its loan facility with Stegodon Corporation (or &#x201c;Stegodon&#x201d;), as assignee of Hercules Capital, Inc. As discussed below, in connection with the execution by the Company and Ginkgo Bioworks, Inc., an affiliate of Stegodon, of certain commercial agreements (see Note 8, &#x201c;Significant Agreements&#x201d; for further details), on June 29, 2016, the Company received a waiver of compliance with such covenant through October 31, 2016 and on October 6, 2016, the Company and Stegodon entered into an amendment to the loan facility pursuant to which, among other things, Stegodon waived such covenant until the maturity date of the facility.&nbsp;A failure to comply with the covenants and other provisions of the Company&#x2019;s debt instruments, including any failure to make a payment when required would generally result in events of default under such instruments, which could permit acceleration of such indebtedness. If such indebtedness is accelerated, it would generally also constitute an event of default under the Company&#x2019;s other outstanding indebtedness, permitting acceleration of such other outstanding indebtedness. Any required repayment of such indebtedness as a result of acceleration or otherwise would consume current cash on hand such that the Company would not have those funds available for use in its business or for payment of other outstanding indebtedness. Please refer to Note 5, &#x201c;Debt&#x201d;, Note 6, &#x201c;Commitments and Contingencies&#x201d; and Note 18, &#x201c;Subsequent Events&#x201d; for further details regarding the Company's debt service obligations and commitments. The Company also has significant outstanding debt and contractual obligations related to capital and operating leases, as well as purchase commitments.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 9 --> <!-- Field: /Page --> <div style=" font-size: 10pt; margin: 0pt 0; text-indent: 0.5in">In addition to the need for financing described above, the Company may take the following actions to support its liquidity needs through the remainder of 2016 and into 2017:</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Effect significant headcount reductions, particularly with respect to employees not connected to critical or contracted activities across all functions of the Company, including employees involved in general and administrative, research and development, and production activities.</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Shift focus to existing products and customers with significantly reduced investment in new product and commercial development efforts.</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Reduce production activity at the Company&#x2019;s Brotas manufacturing facility to levels only sufficient to satisfy volumes required for product revenues forecast from existing products and customers.</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Reduce expenditures for third party contractors, including consultants, professional advisors and other vendors.</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Reduce or delay uncommitted capital expenditures, including non-essential facility and lab equipment, and information technology projects.</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Closely monitor the Company&#x2019;s working capital position with customers and suppliers, as well as suspend operations at pilot plants and demonstration facilities.</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Implementing this plan could have a negative impact on the Company's ability to continue its business as currently contemplated, including, without limitation, delays or failures in its ability to:</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Achieve planned production levels;</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Develop and commercialize products within planned timelines or at planned scales; and</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0 0pt 0.5in">&nbsp;</div> <table cellpadding="0" cellspacing="0" style="font-size: 10pt; margin-top: 0pt; margin-bottom: 0pt; width: 700px;"> <tr style="vertical-align: top"> <td style="width: 0.25in"></td> <td style="width: 0.25in">&#x2022;</td> <td>Continue other core activities.</td> </tr> </table> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Furthermore, any inability to scale-back operations as necessary, and any unexpected liquidity needs, could create pressure to implement more severe measures. Such measures could have an adverse effect on the Company's ability to meet contractual requirements, including obligations to maintain manufacturing operations, and increase the severity of the consequences described above.</div></div> 34777000 25754000 -496000 -3304000 -45383000 -52217000 -19704000 -76664000 -48579000 -176034000 -78000 -24000 -78000 -19704000 -76664000 -48579000 -176034000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Recent Accounting Pronouncements</div></div></div><div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In October 2016, the Financial Accounting Standards Board (or &#x201c;FASB&#x201d;) issued <div style="display: inline; font-weight: bold;">ASU 2016-16,</div> <div style="display: inline; font-style: italic;">Intra-Entity Transfers of Assets Other Than Inventory</div> on simplifying the accounting for income&nbsp;taxes related to intra-entity asset transfers. The new guidance allows an entity to recognize the tax expense from the sale of an asset in the seller&#x2019;s tax jurisdiction when the transfers occurs, even though the pre-tax effects of that transaction are eliminated in consolidation. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017. Early adoption is permitted only in the first quarter of 2017. The Company is evaluating the impact&nbsp;of adopting this new accounting standard update on the financial statements and related disclosures.</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In August 2016, the FASB issued ASU 2016-15 <div style="display: inline; font-style: italic;">Classification of Certain Cash Receipts and Cash Payments</div> on the statement of cash flows. The new guidance clarifies classification of certain cash receipts and cash payments in the statement of cash flows. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption is permitted. The Company is evaluating the impact of adopting this new accounting standard update on the financial statements and related disclosures.</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In June&nbsp;2016, the Financial Accounting Standards Board (or &#x201c;FASB&#x201d;) issued ASU No. 2016-13, <div style="display: inline; font-style: italic;">Allowance for Loan and Lease Losses (Financial Instruments - Credit Losses Topic 326.)</div>. New impairment guidance for certain financial instruments (including trade receivables) will replace the current &#x201c;incurred loss&#x201d; model for estimating credit losses with a forward looking &#x201c;expected loss&#x201d; model. The ASU is effective for the&nbsp;Company for fiscal years beginning after December&nbsp;15, 2019, including interim periods within those fiscal years. Early application is permitted as of the fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The Company is evaluating the impact of this standard on its consolidated financial statements.</div><div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In March 2016, the FASB issued ASU No. 2016-09, <div style="display: inline; font-style: italic;">Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting</div>. This ASU identifies areas for simplification involving several aspects of accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, an option to recognize gross stock compensation expense with actual forfeitures recognized as they occur, as well as certain classifications on the statement of cash flows. This ASU will be effective for fiscal years beginning after December 15, 2016, and interim periods within those annual periods. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted.</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In March 2016, the FASB issued ASU No. 2016-06, <div style="display: inline; font-style: italic;">Contingent Put and Call Options in Debt Instruments</div>. The amendments in this ASU clarify the requirements for assessing whether contingent call (put) options that can accelerate the payment of principal on debt instruments are clearly and closely related to their debt hosts. An entity performing the assessment under the amendments in this ASU is required to assess the embedded call (put) options solely in accordance with the four-step decision sequence. The ASU is effective for financial statements issued for fiscal years beginning after December 15, 2016, and interim periods within those fiscal years. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its financial statements.</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In February 2016, the FASB issued Accounting Standards Update (or &#x201c;ASU&#x201d;) <div style="display: inline; color: #3C3C3D">2016-02-<div style="display: inline; font-style: italic;">Leases </div>with fundamental changes to how entities account for leases. </div>Lessees will need to recognize a right-of-use asset and a lease liability for virtually all of their leases (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. Additional disclosures for leases will also be required. The standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. Early adoption is permitted. The new standard must be adopted using a modified retrospective transition, and provides for certain practical expedients. The new standard may materially impact the Company&#x2019;s financial statements.</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In January 2016, the FASB issued ASU 2016-01 <div style="display: inline; font-style: italic;">Financial Instruments-Overall</div>, which address certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The amendments in this Update are effective for fiscal years beginning after December 15, 2017, including interim periods within those fiscal years. Earlier application is permitted under specific circumstances. The Company is currently assessing the potential impact of this standard on its consolidated financial statements.</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In July 2015, the FASB issued ASU 2015-11, <div style="display: inline; font-style: italic;">Simplifying the Measurement of Inventory</div>, which requires that inventory within the scope of the guidance be measured at the lower of cost and net realizable value. The new standard is being issued as part of the simplification initiative. Prior to the issuance of the standard, inventory was measured at the lower of cost or market (where market was defined as replacement cost, with a ceiling of net realizable value and floor of net realizable value less a normal profit margin). The new guidance will be effective for fiscal years beginning after December 15, 2016, including interim periods within those years. Prospective application is required and early adoption is permitted. The Company is currently assessing the impact of adopting this new accounting standard on its financial statements.</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In August 2014, the FASB issued new guidance related to the disclosure around going concern. The new standard provides guidance around management's responsibility to evaluate whether there is substantial doubt about an entity's ability to continue as a going concern and to provide related footnote disclosure if substantial doubt exists. The new standard is effective for annual periods ending after December 15, 2016 and for annual periods and interim periods thereafter. Early adoption is permitted. The adoption of this standard is not expected to have a material impact on the Company's financial statements.</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In May 2014, the FASB issued new guidance related to revenue recognition. In March, April and May 2016, the FASB issued additional amendments to the new revenue guidance relating to reporting revenue on a gross versus net basis, identifying performance obligations, licensing arrangements, collectability, noncash consideration, presentation of sales tax, and transition. This new standard will replace all current GAAP guidance on this topic and eliminate all industry-specific guidance. The new revenue recognition update guidance provides a unified model to determine how revenue is recognized. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. <div style="display: inline; color: #2F2F2F">The FASB has issued several updates to the standard which i) clarify the application of the principal versus agent guidance (ASU 2016-08); ii) clarify the guidance on inconsequential and perfunctory promises and licensing (ASU 2016-10) and iii)</div> narrow-scope improvements and practical expedients (ASU 2016-12). On July 9, 2015, the FASB voted to defer the effective date by one year to December 15, 2017 for interim and annual reporting periods beginning after that date and permitted early adoption of the standard, but not before the original effective date of December 15, 2016. Entities have the option of using either a full retrospective or a modified retrospective approach to adopt the new standard. Therefore, the new standard will be effective commencing with our quarter ending March 31, 2018. The Company is currently assessing the potential impact of this new standard on its consolidated financial statements and has not selected the transition method.</div></div></div></div></div></div></div></div></div> 1276000 613000 -1485000 -692000 47348000 41093000 15489000 18401000 256000 303000 63093000 59797000 -7528000 -44340000 13266000 -88278000 2 -12028000 -31569000 -61443000 -85390000 47535000 1762000 7008000 6777000 6890000 6888000 18210000 1410000 1227000 13657000 10357000 145000 393000 393000 7397000 7397000 -1884000 -10459000 -18562000 978000 1142000 4212000 7589000 -416000 -414000 1334000 -168000 -1912000 -1204000 1231000 1000000 750000 250000 202000 313000 3073000 1989000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">12. Employee Benefit Plan</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company established a 401(k) Plan to provide tax deferred salary deductions for all eligible employees. Participants may make voluntary contributions to the 401(k) Plan up to 90% of their eligible compensation, limited by certain Internal Revenue Service (or the &quot;IRS&quot;) restrictions. Effective January 2014, the Company implemented a discretionary employer match plan whereby the Company will match employee contributions up to the IRS limit or 90% of compensation, with a minimum one year of service required for vesting. The total matching amount for each of the three months ended September&nbsp;30, 2016 and 2015 was $0.1 million and $0.1 million, respectively, and $0.3 million and $0.4 million for the nine months ended September 30, 2016 and 2015, respectively.</div></div> 0.0001 0.0001 5000000 5000000 0 0 0 0 4286000 4583000 2800000 1400000 2800000 1400000 2000000 5000000 4000000 2000000 2000000 4000000 2000000 12000000 3000000 20000000 15000000 5000000 5000000 72000000 54400000 9900000 5000000 25000000 7600000 2000000 1700000 5000000 123000 453000 10960000 6000000 8500000 13275000 1607000 20000000 18000000 2000000 16000000 5000000 25000000 3296000 2023000 25000000 10850000 -19704000 -76688000 -48579000 -176112000 -48579000 2300000 2700000 85538000 72876000 38791000 38519000 9545000 9117000 4718000 3922000 2335000 2234000 195000 215000 6430000 5736000 147552000 132619000 63093000 59797000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, <br /> 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Machinery and equipment</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">85,538</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">72,876</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Leasehold improvements</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">38,791</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">38,519</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Computers and software</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">9,545</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">9,117</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Buildings</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,718</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,922</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Furniture and office equipment</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,335</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,234</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Vehicles</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">195</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">215</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Construction in progress</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">6,430</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,736</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">147,552</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">132,619</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: accumulated depreciation and amortization</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(84,459</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(72,822</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Property, plant and equipment, net</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">63,093</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">59,797</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> 1100000 1300000 10850000 900000 100000 100000 300000 300000 800000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">13. Related Party Transactions</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 14pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">Related Party Financings</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">See Note 5, &#x201c;Debt&#x201d; for a description of the June 2016 Private Placement transaction with Foris Ventures, LLC, a related party of the Company, the February 2016 Private Placement transaction with Foris Ventures, LLC, Naxyris S.A. and Biolding SA, each a related party of the Company, and the March 2016 R&amp;D Note transaction with Total. In addition, see Note 18, &#x201c;Subsequent Events&#x201d; for descriptions of additional related party financings subsequent to September 30, 2016.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016 and December&nbsp;31, 2015, convertible notes and loans with related parties were outstanding in aggregate amount of $63.5 million and $43.0 million, respectively, net of debt discount and issuance costs of $2.6 million and $1.9 million, respectively.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 51 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The fair value of the derivative liability related to the related party convertible notes as of September&nbsp;30, 2016 and December&nbsp;31, 2015 was $1.9 million and $7.9 million, respectively. The Company recognized a loss from change in fair value of the derivative instruments of $0.6 million and $12.4 million for the three months ended September 30, 2016 and September 2015, respectively, and a gain from change in fair value of the derivative instruments of $7.7 million for the nine months ended September 30, 2016 and a loss from change in fair value of the derivative instruments of $0.7 million for the nine months ended September 30, 2015, respectively (see Note 3, &quot;Fair Value of Financial Instruments&quot; for further details).</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">Related Party Revenues</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company recognized related party revenues from product sales to Total of zero and $2,000 for the three months ended September 30, 2016 and 2015, respectively, and zero and $2,000 for the nine months ended September 30, 2016 and 2015, respectively. Related party accounts receivable from Total as of September&nbsp;30, 2016 and December 31, 2015, were $0.7 million and $1.2 million, respectively.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company recognized related party revenues from product sales to Novvi of $1.4 million and zero for the three months ended September 30, 2016 and 2015, respectively, and $1.4 million and zero for the nine months ended September 30, 2016 and 2015, respectively. Related party accounts receivable from Novvi as of September&nbsp;30, 2016 and December 31, 2015, were $0.0 million and $0.5 million, respectively.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">Loans to Related Parties</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">See Note 7, &quot;Joint Ventures and Noncontrolling Interest&quot; for details of the Company's transactions with its affiliate, Novvi LLC.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">Joint Venture with Total</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In November 2013, the Company and Total formed TAB as discussed above under Note 7, &quot;Joint Ventures and Noncontrolling Interest.&quot;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 23pt; margin: 0pt 0"><div style="display: inline; font-style: italic;">Pilot Plant Agreements</div></div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In May 2014, the Company received the final consents necessary for a Pilot Plant Services Agreement (or the &#x201c;Pilot Plant Services Agreement&#x201d;) and a Sublease Agreement (or the &#x201c;Sublease Agreement&#x201d;), each dated as of April 4, 2014 (collectively the &#x201c;Pilot Plant Agreements&#x201d;), between the Company and Total. The Pilot Plant Agreements generally have a term of five years.&nbsp;Under the terms of the Pilot Plant Services Agreement, the Company agreed to provide certain fermentation and downstream separations scale-up services and training to Total in exchange for an aggregate annual fee payable by Total for all services in the amount of up to approximately $0.9 million per annum. In July 2015, Total and the Company entered into Amendment #1 to the Pilot Plant Services Agreement (or the &quot;Pilot Plant Agreement Amendment&quot;), whereby the Company agreed to waive a portion of these fees, up to approximately $2.0 million, over the term of the Pilot Plant Services Agreement in connection with the restructuring of TAB discussed above in Note 7, &quot;Joint Ventures and Non-controlling Interest.&quot; Under the Sublease Agreement, the Company receives an annual base rent payable by Total of approximately $0.1 million per annum.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016, the Company had received $1.7 million in cash under the Pilot Plant Agreements from Total. In connection with these arrangements, sublease payments and service fees of $0.1 million and $0.3 million for the three months ended September 30, 2016 and 2015, respectively, and $0.3 million and $0.8 million for the nine months ended September 30, 2016 and 2015, respectively, were offset against costs and operating expenses.</div></div> 977000 594000 9100000 7442000 11249000 23200000 6000000 1800000 12315000 10343000 37397000 33521000 279000 216000 1000000 1000000 958000 957000 4380000 3641000 -1085683000 -1037104000 0 0 8900000 1300000 5500000 100000 1300000 4700000 1300000 0 0 100000 1900000 400000 300000 1100000 1200000 1300000 0 4800000 0 1600000 15000000 0 0 2000 0 2000 1400000 1400000 0 26544000 8591000 44954000 24306000 1899000 459000 10527000 2138000 20461000 6177000 27869000 15550000 4126000 991000 6039000 2769000 46000 964000 467000 3850000 12000 52000 6820000 4228000 14883000 9663000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Foreign currency translation adjustment, net of tax</td> <td style="width: 2%; font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="width: 1%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(39,801</td> <td style="width: 1%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="width: 2%; font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="width: 1%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(47,198</td> <td style="width: 1%; border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt">Total accumulated other comprehensive loss</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(39,801</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(47,198</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 52%; font-size: 10pt; text-align: left">Period-end stock options to purchase common stock</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">13,860,918</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">11,307,679</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">13,860,918</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">11,307,679</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Convertible promissory notes<div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">66,474,148</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">43,451,433</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">23,760,389</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">43,451,433</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Period-end common stock warrants</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">14,663,411</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,901,926</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">14,663,411</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,901,926</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Period-end restricted stock units</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">7,474,555</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,558,243</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">7,474,555</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,558,243</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 2.5pt; padding-left: 10pt">Total</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">102,473,032</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">61,219,281</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">59,759,273</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">61,219,281</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold">Years ending December&nbsp;31:</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Related Party <br /> Convertible <br /> Debt</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Convertible <br /> Debt</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Loans <br /> Payable</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Related <br /> Party Loans <br /> payable</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Credit <br /> Facility</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Total</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 46%; font-size: 10pt; text-align: left">2016 (remaining three months)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">312</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">3,240</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">1,770</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">844</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">33,234</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">39,400</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">2017</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,837</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">23,562</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,870</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">26,257</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,551</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">59,077</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">2018</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">13,937</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">17,736</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,450</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">322</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">34,445</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">2019</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">26,080</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">79,937</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,342</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">78</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">108,437</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">2020</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,234</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,234</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Thereafter</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,314</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,314</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Total future minimum payments</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">45,166</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">124,475</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">14,980</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">27,101</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">35,185</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">246,907</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left; padding-bottom: 1.1pt">Less: amount representing interest<div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(4,555</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(55,942</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(2,026</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(4,254</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(4,499</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(71,276</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Present value of minimum debt payments</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">40,611</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">68,533</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">12,954</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">22,847</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">30,686</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">175,631</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: current portion present value of minimum debt payments</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(3,611</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(15,357</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(3,275</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(22,847</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(29,926</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(75,016</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Noncurrent portion of debt</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">37,000</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">53,176</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">9,679</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">760</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">100,615</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, <br /> 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Senior secured loan facility</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">28,438</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">31,590</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">BNDES credit facility</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,471</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,956</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">FINEP credit facility</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">777</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">840</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Total credit facilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">30,686</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">34,386</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Convertible notes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">68,533</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">61,233</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Related party convertible notes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">40,611</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">42,749</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Related party loan payable</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">22,847</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Loans payable</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">12,954</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">13,606</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Total debt</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">175,631</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">151,974</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: current portion</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(75,016</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(36,281</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Long-term debt</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">100,615</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">115,693</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Mezzanine equity<div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,000 </td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Income <br />Statement&nbsp;Classification</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended <br /> September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended <br /> September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">Type of Derivative Contract</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 24%; font-size: 10pt; text-align: left">Currency interest rate swap</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 28%; font-size: 10pt; text-align: left">Gain (loss) from change in fair value of derivative instruments</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">(145</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">(1,796</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">1,957</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">(3,201</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30,<br /> &nbsp;2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Fair market value of compound embedded derivative liabilities</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">3,827</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">46,430</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Fair value of&nbsp;&nbsp;swap obligations</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,471</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,009</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt">Total derivative liabilities</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">7,298</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">51,439</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-style: italic">Numerator:</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="width: 52%; font-size: 10pt; text-align: left; padding-left: 10pt; text-indent: -10pt">Net loss attributable to Amyris, Inc. common stockholders</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">(19,704</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">(76,664</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">(48,579</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">(176,034</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Interest on convertible debt</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,093</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Accretion of debt discount</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,304</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt; padding-left: 10pt; text-indent: -10pt">Gain from change in fair value of derivative instruments</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(37,593</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt; text-indent: -10pt">Net loss attributable to Amyris, Inc. common stockholders after assumed conversion</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(19,704</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(76,664</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(75,775</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(176,034</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-style: italic">Denominator:</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt; text-indent: -10pt">Weighted average shares of common stock outstanding for basic EPS</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">249,190,339</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">140,374,297</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">226,772,159</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">100,103,007</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Basic loss per share</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.08</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.55</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.21</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(1.76</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 1.1pt; padding-left: 10pt; text-indent: -10pt">Weighted average shares of common stock outstanding</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">249,190,339</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">140,374,297</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">226,772,159</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">100,103,007</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Effect of dilutive securities:</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Convertible promissory notes</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">41,602,952</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Weighted common stock equivalents</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">41,602,952</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt">Diluted weighted-average common shares</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">249,190,339</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">140,374,297</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">268,375,111</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">100,103,007</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 2.5pt">Diluted loss per share</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.08</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.55</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(0.28</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(1.76</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 52%; font-size: 10pt; text-align: left">Research and development</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">481</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">530</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">1,457</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">1,776</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Sales, general and administrative</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,327</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt; border-bottom: Black 1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,726</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">4,191</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt; border-bottom: Black 1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,188</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total stock-based compensation expense</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">1,808</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt; border-bottom: Black 2.25pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">2,256</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">5,648</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt; border-bottom: Black 2.25pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">6,964</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt">Brazil</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">47,348</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">41,093</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">United States</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">15,489</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">18,401</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Europe</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">256</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">303</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 2.5pt; padding-left: 10pt">Total</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">63,093</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">59,797</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level&nbsp;1</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level 2</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level&nbsp;3</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Balance as of <br /> September 30, <br /> 2016</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; text-align: left">Financial Assets</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="width: 52%; font-size: 10pt; text-align: left">Money market funds</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">59</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">59</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Certificates of deposit</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,713</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,713</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total financial assets</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">1,772</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">1,772</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; text-align: left">Financial Liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Loans payable <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">34,146</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">34,146</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Credit facilities <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">&nbsp;(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">19,310</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">19,310</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Convertible notes <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">109,885</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">109,885</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Compound embedded derivative liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,827</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,827</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Currency interest rate swap derivative liability</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,471</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,471</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total financial liabilities</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">56,927</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">113,712</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">170,639</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div><div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level&nbsp;1</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level 2</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Level&nbsp;3</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Balance as of <br /> December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; text-align: left">Financial Assets</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="width: 52%; font-size: 10pt; text-align: left">Money market funds</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2,078</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2,078</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Certificates of deposit</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,520</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,520</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total financial assets</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">3,598</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">3,598</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; text-align: left">Financial Liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Loans payable <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">9,541</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">9,541</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Credit facilities <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">&nbsp;(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">34,893</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">34,893</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; font-weight: normal; font-style: normal; text-align: left">Convertible notes <div style="display: inline; font-size: 10pt; font-weight: normal; font-style: normal"><div style="display: inline; bottom:.33em; font-size: 82%; position: relative; vertical-align: baseline;">(1)</div></div></td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">96,291</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">96,291</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Compound embedded derivative liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">46,430</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">46,430</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Currency interest rate swap derivative liability</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,009</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,009</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Total financial liabilities</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">49,443</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">142,721</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">192,164</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="11" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2016</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="11" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, 2015</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Useful Life <br /> in Years</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Gross <br /> Carrying <br /> Amount</td> <td style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Accumulated<br /> Amortization/<br /> Impairment</td> <td style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Net <br /> Carrying <br /> Value</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Gross <br /> Carrying <br /> Amount</td> <td style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Accumulated<br /> Amortization/<br /> Impairment</td> <td style="font-size: 10pt; font-weight: bold; border-bottom: Black 1.1pt solid">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Net <br /> Carrying <br /> Value</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 35%; font-size: 10pt; text-align: left">In-process research and development</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: center">&nbsp;</td> <td style="width: 8%; font-size: 10pt; text-align: center">Indefinite</td> <td style="width: 1%; font-size: 10pt; text-align: center">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">8,560</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">(8,560</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">8,560</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">(8,560</td> <td style="width: 1%; font-size: 10pt; text-align: left">)</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 6%; font-size: 10pt; text-align: right">&#x2014;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Acquired licenses and permits</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; text-align: center">2</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">772</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(772</td> <td style="font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">772</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(772</td> <td style="font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Goodwill</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; text-align: center">Indefinite</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 1.1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 1.1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 1.1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 1.1pt solid">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt; text-align: center">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">9,892</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 2.5pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(9,332</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; border-bottom: Black 2.5pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">9,892</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; border-bottom: Black 2.5pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">(9,332</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; border-bottom: Black 2.5pt double">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">560</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30,<br /> &nbsp;2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31,<br /> &nbsp;2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Raw materials</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">2,664</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">2,204</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Work-in-process</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,809</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,583</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Finished goods</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,426</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,099</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Inventories, net</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">7,899</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">10,886</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30,<br /> &nbsp;2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Recoverable taxes from Brazilian government entities</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">11,955</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">8,887</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Deposits on property and equipment, including taxes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">292</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">243</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Other</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,410</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,227</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt">Total other assets</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">13,657</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">10,357</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 52%; font-size: 10pt">Europe</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">1,899</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">459</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">10,527</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2,138</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">United States</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">20,461</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,177</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">27,869</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">15,550</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">Asia</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,126</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">991</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,039</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,769</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Brazil</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">46</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">964</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">467</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,850</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Other</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">12</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">52</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt">Total</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">26,544</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">8,591</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">44,954</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">24,307</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="11" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Options Outstanding</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Options&nbsp;Exercisable</div></td> </tr> <tr style="vertical-align: bottom"> <td colspan="3" style="text-align: center"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-weight: bold;">Exercise Price</div></div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Number&nbsp;of&nbsp;Options</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Weighted- <br />Average <br />Remaining <br />Contractual&nbsp;Life <br />(Years)</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Weighted-Average <br /> Exercise Price</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Number&nbsp;of&nbsp;Options</div></td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid"><div style="display: inline; font-size: 10pt">Weighted-Average <br /> Exercise Price</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 13%; text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$0.28</div></div></td> <td style="width: 5%; font-size: 10pt; text-align: center">&#x2014;</td> <td style="width: 12%"><div style="display: inline; font-size: 10pt">$0.57</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">372,754</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">9.71</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">0.43</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3,254</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 2%; font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="width: 10%; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">0.28</div></td> <td style="width: 1%; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$0.59</div></div></td> <td style="font-size: 10pt; text-align: center">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$0.59</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">2,574,375</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">9.62</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">0.59</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$0.81</div></div></td> <td style="font-size: 10pt; text-align: center">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$1.73</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">2,063,938</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">8.94</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1.64</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">166,987</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1.61</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$1.75</div></td> <td style="font-size: 10pt; text-align: center"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$1.96</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,546,638</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">8.48</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1.91</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">536,904</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1.90</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$1.98</div></div></td> <td style="font-size: 10pt; text-align: center">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$2.81</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,393,357</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">6.43</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">2.61</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,079,929</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">2.66</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$2.85</div></div></td> <td style="font-size: 10pt; text-align: center">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$3.44</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,369,225</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">6.49</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.02</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,137,340</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.01</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$3.51</div></td> <td style="font-size: 10pt; text-align: center"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$3.51</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,577,760</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">7.33</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.51</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">970,489</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.51</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$3.55</div></td> <td style="font-size: 10pt; text-align: center"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$4.31</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,761,134</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.86</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.97</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,691,542</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.98</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$4.35</div></td> <td style="font-size: 10pt; text-align: center"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$26.84</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,141,737</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.94</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">17.59</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">1,141,737</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">17.59</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="text-align: right"><div style="display: inline; font-size: 10pt"><div style="display: inline; font-size: 10pt">$30.17</div></div></td> <td style="font-size: 10pt; text-align: center; padding-bottom: 1.1pt">&#x2014;</td> <td><div style="display: inline; font-size: 10pt">$30.17</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">60,000</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">4.45</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">30.17</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">60,000</div></td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 1.1pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">30.17</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="text-align: right"><div style="display: inline; font-size: 10pt">$0.28</div></td> <td style="font-size: 10pt; text-align: center; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&#x2014;</div></td> <td><div style="display: inline; font-size: 10pt">$30.17</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">13,860,918</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">7.27</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">3.62</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">6,788,182</div></td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; padding-bottom: 2.5pt"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">$</div></td> <td style="font-size: 10pt; text-align: right"><div style="display: inline; font-size: 10pt">5.84</div></td> <td style="font-size: 10pt; text-align: left"><div style="display: inline; font-size: 10pt">&nbsp;</div></td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Number <br /> Outstanding</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Weighted-<br /> Average <br /> Exercise <br /> Price</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Weighted-<br /> Average <br /> Remaining <br /> Contractual <br /> Life (Years)</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Aggregate <br /> Intrinsic <br /> Value</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center">(in&nbsp;thousands)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 56%; font-size: 10pt; font-weight: bold">Outstanding - December 31, 2015</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 8%; font-size: 10pt; text-align: right">12,930,112</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">4.77</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 8%; font-size: 10pt; text-align: right">7.39</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 8%; font-size: 10pt; text-align: right">22</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Options granted</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,324,775</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">0.58</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Options exercised</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(134</td> <td style="font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">0.28</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Options cancelled</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(2,393,835</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">5.59</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 2.5pt">Outstanding - September 30, 2016</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">13,860,918</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">3.62</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7.27</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Vested and expected to vest after September 30, 2016</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">12,598,270</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">3.86</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">7.08</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">Exercisable at September 30, 2016</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,788,182</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">5.84</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5.47</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Expected dividend yield</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">%</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="width: 52%; font-size: 10pt; text-align: left">Risk-free interest rate</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">1.2</td> <td style="width: 1%; font-size: 10pt; text-align: left">%</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">2</td> <td style="width: 1%; font-size: 10pt; text-align: left">%</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">1.32</td> <td style="width: 1%; font-size: 10pt; text-align: left">%</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">2</td> <td style="width: 1%; font-size: 10pt; text-align: left">%</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Expected term (in years)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6.16</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6.03</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6.23</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6.00</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Expected volatility</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">76.7</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">74</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">73</td> <td style="font-size: 10pt; text-align: left">%</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">74</td> <td style="font-size: 10pt; text-align: left">%</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">RSUs</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Weighted-<br /> Average Grant-<br /> Date Fair Value</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Weighted Average <br /> Remaining <br /> Contractual Life <br /> (Years)</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 64%; font-size: 10pt; font-weight: bold">Outstanding - December 31, 2015</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">5,554,844</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2.03</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 9%; font-size: 10pt; text-align: right">1.61</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">&nbsp;Awarded</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,374,389</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">0.60</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">&nbsp;Vested</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">(1,467,569</td> <td style="font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">2.19</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;Forfeited</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(987,109</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">1.49</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 2.5pt">Outstanding - September 30, 2016</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">7,474,555</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">1.23</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1.52</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Expected to vest after September 30, 2016</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,898,952</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">2.72</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1.39</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><table cellpadding="0" cellspacing="0" style="border-collapse: collapse;; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt; font-weight: bold; text-align: justify">(In thousands)</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, <br /> 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt">Assets</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">493</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">6,993</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">257</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">$</td> <td style="font-size: 10pt; text-align: right">1,221</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; text-indent: -27pt; margin: 0pt 0 0pt 27pt"><div style="display: inline; font-weight: bold;">15. Reporting Segments</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The chief operating decision maker for the Company is the chief executive officer. The chief executive officer reviews financial information presented on a consolidated basis, accompanied by information about revenue by geographic region, for purposes of allocating resources and evaluating financial performance. The Company has one business activity comprised of research and development and sales of fuels and farnesene-derived products and there are no segment managers who are held accountable for operations, operating results or plans for levels or components below the consolidated unit level. Accordingly, the Company has determined that it has a single reportable segment and operating segment structure.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Revenues by geography are based on the location of the customer. The following tables set forth revenue and long-lived assets by geographic area (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Revenues</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"></div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Three Months Ended September 30,</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="7" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">Nine Months Ended September 30,</td> </tr> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 52%; font-size: 10pt">Europe</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">1,899</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">459</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">10,527</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 1%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 9%; font-size: 10pt; text-align: right">2,138</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">United States</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">20,461</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,177</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">27,869</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">15,550</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt">Asia</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,126</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">991</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">6,039</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,769</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Brazil</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">46</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">964</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">467</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,850</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Other</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">12</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">52</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">&#x2014;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt">Total</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">26,544</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">8,591</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">44,954</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">24,307</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0">&nbsp;<div style="display: inline; font-weight: bold;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Long-Lived Assets (Property, Plant and Equipment)</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt">Brazil</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">47,348</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">41,093</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">United States</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">15,489</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">18,401</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Europe</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">256</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">303</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; padding-bottom: 2.5pt; padding-left: 10pt">Total</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">63,093</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">59,797</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div></div> 11381000 14103000 35055000 42859000 5645000 6964000 987109 1.49 4374389 0.60 5554844 7474555 2.03 1.23 P1Y222D P1Y189D 1467569 2.19 0.767 0.74 0.73 0.74 0.012 0.02 0.0132 0.02 6788182 0.28 1.61 1.90 2.66 3.01 3.51 3.98 17.59 30.17 5.84 0 0 0 0 2393835 3324775 22000 12930112 13860918 4.77 3.62 12598270 3.86 0.28 5.59 0.58 0.28 0.59 0.81 1.75 1.98 2.85 3.51 3.55 4.35 30.17 0.28 3254 166987 536904 1079929 1137340 970489 1691542 1141737 60000 6788182 372754 2574375 2063938 1546638 1393357 1369225 1577760 1761134 1141737 60000 13860918 0.57 0.59 1.73 1.96 2.81 3.44 3.51 4.31 26.84 30.17 30.17 0.58 2.01 P6Y58D P6Y10D P6Y83D P6Y P5Y171D P7Y142D P7Y98D P7Y29D 0.43 0.59 1.64 1.91 2.61 3.02 3.51 3.97 17.59 30.17 3.62 P9Y259D P9Y226D P8Y343D P8Y175D P6Y156D P6Y178D P7Y120D P3Y313D P3Y343D P4Y164D P7Y98D 1.14 206130282 253364428 1713000 1520000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">2. Summary of Significant Accounting Policies</div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Basis of Presentation</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The accompanying interim condensed consolidated financial statements have been prepared in accordance with the accounting principles generally accepted in the United States of America (or &#x201c;GAAP&#x201d;) and with the instructions for Form 10-Q and Regulation S-X. Accordingly, they do not include all of the information and notes required for complete financial statements. These interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto contained in the Company&#x2019;s Form 10-K for the fiscal year ended December 31, 2015 as filed with the Securities and Exchange Commission (or the &#x201c;SEC&#x201d;) on March 30, 2016. The unaudited condensed consolidated financial statements include the accounts of the Company and its consolidated subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company uses the equity method to account for investments in companies, if its investments provide it with the ability to exercise significant influence over operating and financial policies of the investee. Consolidated net income or loss includes the Company&#x2019;s proportionate share of the net income or loss of these companies. Judgments made by the Company regarding the level of influence over each equity method investment include considering key factors such as the Company&#x2019;s ownership interest, representation on the board of directors, participation in policy-making decisions and material intercompany transactions.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Principles of Consolidation</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The condensed consolidated financial statements of the Company include the accounts of Amyris, Inc., its subsidiaries and two consolidated variable interest entities (or &#x201c;VIEs&#x201d;), with respect to which the Company is considered the primary beneficiary, after elimination of intercompany accounts and transactions. Disclosure regarding the Company&#x2019;s participation in the VIEs is included in Note&nbsp;7, &quot;Joint Ventures and Noncontrolling Interest.&quot;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Variable Interest Entities</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The Company has interests in joint venture entities that are VIEs. Determining whether to consolidate a VIE requires judgment in assessing (i)&nbsp;whether an entity is a VIE and (ii)&nbsp;if the Company is the entity&#x2019;s primary beneficiary and thus required to consolidate the entity. To determine if the Company is the primary beneficiary of a VIE, the Company evaluates whether it has (i)&nbsp;the power to direct the activities that most significantly impact the VIE&#x2019;s economic performance and (ii)&nbsp;the obligation to absorb losses or the right to receive benefits of the VIE that could potentially be significant to the VIE. The Company&#x2019;s evaluation includes identification of significant activities and an assessment of its ability to direct those activities based on governance provisions and arrangements to provide or receive product and process technology, product supply, operations services, equity funding and financing and other applicable agreements and circumstances. The Company&#x2019;s assessment of whether it is the primary beneficiary of its VIEs requires significant assumptions and judgment.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Use of Estimates</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In preparing the unaudited condensed consolidated financial statements, management must make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the unaudited condensed consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Unaudited Interim Financial Information</div></div></div> <div style=" font-size: 10pt; text-indent: 12pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The accompanying interim condensed consolidated financial statements and related disclosures are unaudited, have been prepared on the same basis as the annual consolidated financial statements, except for the impact of adoption of certain accounting standards as described below, and in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary for a fair statement of the results of operations for the periods presented. In the quarter ended March 31, 2016 the Company adopted Accounting Standards Update (&#x201c;ASU&#x201d;) No. 2015-01, <div style="display: inline; font-style: italic;">Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items, </div>ASU No. 2015-02, <div style="display: inline; font-style: italic;">Consolidation</div> (Topic 810), ASU No. 2015-03, <div style="display: inline; font-style: italic;">Interest - Imputation of Interest</div> (Subtopic 835-30): <div style="display: inline; font-style: italic;">Simplifying the Presentation of Debt Issuance Costs</div>, ASU 2015-05, <div style="display: inline; font-style: italic;">Intangibles - Goodwill and Other - Internal-Use Software</div> (Subtopic 350-40) and ASU No. 2015-15, <div style="display: inline; font-style: italic;">Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements</div>. Refer to Note 5. &quot;Debt&quot; for the impact of adoption of ASU No. 2015-03 on the Company's condensed consolidated financial statements. None of the other ASU&#x2019;s adopted had a material impact on the Company&#x2019;s condensed consolidated financial statements.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 11 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">The year-end condensed consolidated balance sheet data was derived from audited financial statements, but does not include all disclosures required by GAAP. The condensed consolidated results of operations for any interim period are not necessarily indicative of the results to be expected for the full year or for any other future year or interim period.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Recent Accounting Pronouncements</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In October 2016, the Financial Accounting Standards Board (or &#x201c;FASB&#x201d;) issued <div style="display: inline; font-weight: bold;">ASU 2016-16,</div> <div style="display: inline; font-style: italic;">Intra-Entity Transfers of Assets Other Than Inventory</div> on simplifying the accounting for income&nbsp;taxes related to intra-entity asset transfers. The new guidance allows an entity to recognize the tax expense from the sale of an asset in the seller&#x2019;s tax jurisdiction when the transfers occurs, even though the pre-tax effects of that transaction are eliminated in consolidation. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017. Early adoption is permitted only in the first quarter of 2017. The Company is evaluating the impact&nbsp;of adopting this new accounting standard update on the financial statements and related disclosures.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In August 2016, the FASB issued ASU 2016-15 <div style="display: inline; font-style: italic;">Classification of Certain Cash Receipts and Cash Payments</div> on the statement of cash flows. The new guidance clarifies classification of certain cash receipts and cash payments in the statement of cash flows. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption is permitted. The Company is evaluating the impact of adopting this new accounting standard update on the financial statements and related disclosures.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In June&nbsp;2016, the Financial Accounting Standards Board (or &#x201c;FASB&#x201d;) issued ASU No. 2016-13, <div style="display: inline; font-style: italic;">Allowance for Loan and Lease Losses (Financial Instruments - Credit Losses Topic 326.)</div>. New impairment guidance for certain financial instruments (including trade receivables) will replace the current &#x201c;incurred loss&#x201d; model for estimating credit losses with a forward looking &#x201c;expected loss&#x201d; model. The ASU is effective for the&nbsp;Company for fiscal years beginning after December&nbsp;15, 2019, including interim periods within those fiscal years. Early application is permitted as of the fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The Company is evaluating the impact of this standard on its consolidated financial statements.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In March 2016, the FASB issued ASU No. 2016-09, <div style="display: inline; font-style: italic;">Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting</div>. This ASU identifies areas for simplification involving several aspects of accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, an option to recognize gross stock compensation expense with actual forfeitures recognized as they occur, as well as certain classifications on the statement of cash flows. This ASU will be effective for fiscal years beginning after December 15, 2016, and interim periods within those annual periods. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In March 2016, the FASB issued ASU No. 2016-06, <div style="display: inline; font-style: italic;">Contingent Put and Call Options in Debt Instruments</div>. The amendments in this ASU clarify the requirements for assessing whether contingent call (put) options that can accelerate the payment of principal on debt instruments are clearly and closely related to their debt hosts. An entity performing the assessment under the amendments in this ASU is required to assess the embedded call (put) options solely in accordance with the four-step decision sequence. The ASU is effective for financial statements issued for fiscal years beginning after December 15, 2016, and interim periods within those fiscal years. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its financial statements.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In February 2016, the FASB issued Accounting Standards Update (or &#x201c;ASU&#x201d;) <div style="display: inline; color: #3C3C3D">2016-02-<div style="display: inline; font-style: italic;">Leases </div>with fundamental changes to how entities account for leases. </div>Lessees will need to recognize a right-of-use asset and a lease liability for virtually all of their leases (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. Additional disclosures for leases will also be required. The standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. Early adoption is permitted. The new standard must be adopted using a modified retrospective transition, and provides for certain practical expedients. The new standard may materially impact the Company&#x2019;s financial statements.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In January 2016, the FASB issued ASU 2016-01 <div style="display: inline; font-style: italic;">Financial Instruments-Overall</div>, which address certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The amendments in this Update are effective for fiscal years beginning after December 15, 2017, including interim periods within those fiscal years. Earlier application is permitted under specific circumstances. The Company is currently assessing the potential impact of this standard on its consolidated financial statements.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 12 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In July 2015, the FASB issued ASU 2015-11, <div style="display: inline; font-style: italic;">Simplifying the Measurement of Inventory</div>, which requires that inventory within the scope of the guidance be measured at the lower of cost and net realizable value. The new standard is being issued as part of the simplification initiative. Prior to the issuance of the standard, inventory was measured at the lower of cost or market (where market was defined as replacement cost, with a ceiling of net realizable value and floor of net realizable value less a normal profit margin). The new guidance will be effective for fiscal years beginning after December 15, 2016, including interim periods within those years. Prospective application is required and early adoption is permitted. The Company is currently assessing the impact of adopting this new accounting standard on its financial statements.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In August 2014, the FASB issued new guidance related to the disclosure around going concern. The new standard provides guidance around management's responsibility to evaluate whether there is substantial doubt about an entity's ability to continue as a going concern and to provide related footnote disclosure if substantial doubt exists. The new standard is effective for annual periods ending after December 15, 2016 and for annual periods and interim periods thereafter. Early adoption is permitted. The adoption of this standard is not expected to have a material impact on the Company's financial statements.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In May 2014, the FASB issued new guidance related to revenue recognition. In March, April and May 2016, the FASB issued additional amendments to the new revenue guidance relating to reporting revenue on a gross versus net basis, identifying performance obligations, licensing arrangements, collectability, noncash consideration, presentation of sales tax, and transition. This new standard will replace all current GAAP guidance on this topic and eliminate all industry-specific guidance. The new revenue recognition update guidance provides a unified model to determine how revenue is recognized. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. <div style="display: inline; color: #2F2F2F">The FASB has issued several updates to the standard which i) clarify the application of the principal versus agent guidance (ASU 2016-08); ii) clarify the guidance on inconsequential and perfunctory promises and licensing (ASU 2016-10) and iii)</div> narrow-scope improvements and practical expedients (ASU 2016-12). On July 9, 2015, the FASB voted to defer the effective date by one year to December 15, 2017 for interim and annual reporting periods beginning after that date and permitted early adoption of the standard, but not before the original effective date of December 15, 2016. Entities have the option of using either a full retrospective or a modified retrospective approach to adopt the new standard. Therefore, the new standard will be effective commencing with our quarter ending March 31, 2018. The Company is currently assessing the potential impact of this new standard on its consolidated financial statements and has not selected the transition method.</div></div> 10430815 226823 0 4385964 1255066 134 134 9471000 1000 9471000 123000 123000 202000 202000 -162384000 -158065000 -162498000 -158456000 21000 926216000 -1037104000 -47198000 -391000 25000 963075000 -1085683000 -39801000 -114000 5000000 <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;">10. Stockholders&#x2019; Deficit</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Unexercised Common Stock Warrants</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">As of September&nbsp;30, 2016 and 2015, the Company had 14,663,411 and 50,699,368, respectively, of unexercised common stock warrants with exercise prices ranging from $0.01 to $10.67 per warrant and a weighted average remaining maturity of 5.9 years.</div></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">18. Subsequent Events</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in"><div style="display: inline; font-style: italic;">Senior Secured Loan Facility Amendment</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On October 6, 2016, in connection with the entry into the Ginkgo Collaboration Agreement, the Company, certain of its subsidiaries and Stegodon, an affiliate of Ginkgo, entered into a fourth amendment of the Senior Secured Loan Facility. Pursuant to the fourth amendment, subject to the Company extending (or the &#x201c;Extension Condition&#x201d;) the maturity of the Fidelity Notes, the parties agreed to extend the maturity date of all outstanding loans under the Senior Secured Loan Facility to the business day immediately preceding the earliest maturity of the Fidelity Notes and the outstanding Tranche Notes held by non-affiliates, after giving effect to any extensions thereof at or prior to the satisfaction of the Extension Condition, but in no event later than April 12, 2019. In addition, the parties agreed that the Company would be required to pay only the interest accruing on all outstanding loans under the Senior Secured Loan Facility until the maturity date, provided that the Company would be required to apply certain monies received by the Company under the Ginkgo Collaboration Agreement towards repayment of the outstanding loans under the Senior Secured Loan Facility, up to a maximum amount of $1 million per month. Furthermore, pursuant to the fourth amendment, Stegodon agreed to waive the Minimum Cash Covenant under the Senior Secured Loan Facility until the maturity date. See Note 5, &#x201c;Debt&#x201d; for additional details regarding the Senior Secured Loan Facility and Note 8, &#x201c;Significant Agreements&#x201d; for additional information regarding the Ginkgo Collaboration Agreement.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in"><div style="display: inline; font-style: italic;">2016 Convertible Note Offering</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On October 13, 2016, the Company issued and sold the $2.0 Million Note under the May 2016 Purchase Agreement to the purchaser, for proceeds to the Company of $2.0 million. Upon the issuance of the $2 Million Note, all 2016 Convertible Notes provided for under the May 2016 Purchase Agreement had been issued and sold. See Note 5, &#x201c;Debt&#x201d; for additional information regarding the May 2016 Purchase Agreement and the 2016 Convertible Notes.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in"><div style="display: inline; font-style: italic;">October 2016 Private Placements</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On October 21 and October 27, 2016, the Company entered into separate Note Purchase Agreements (or the &#x201c;October 2016 Purchase Agreements&#x201d;) with Foris Ventures, LLC and Ginkgo Bioworks, Inc., respectively, for the sale of $6.0 million and $8.5 million, respectively, in aggregate principal amount of secured promissory notes (or the &#x201c;October 2016 Private Notes&#x201d;) in exchange for aggregate proceeds to the Company of $6.0 million and $8.5 million, respectively (or the &#x201c;October 2016 Private Placements&#x201d;). The October 2016 Private Notes were issued in private placements pursuant to the exemption from registration under Section 4(2) of the Securities Act of 1933, as amended and Regulation D promulgated under the Securities Act. The October 2016 Private Placements closed on October 21 and October 27, 2016, respectively.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <!-- Field: Page; Sequence: 55 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The October 2016 Private Notes are collateralized by a second priority lien on the assets securing the Company&#x2019;s obligations under the Senior Secured Loan Facility, and are subordinate to the Company&#x2019;s obligations under the Senior Secured Loan Facility pursuant to Subordination Agreements, dated as of the respective dates of the October 2016 Purchase Agreements, by and among the Company, the applicable purchaser and the administrative agent under the Company&#x2019;s Senior Secured Loan Facility. Interest will accrue on the October 2016 Private Notes from and including October 21 and 27, 2016, respectively, at a rate of 13.50% per annum and is payable in full on May 15, 2017, the maturity date of the October 2016 Private Notes, unless the October 2016 Private Notes are prepaid in accordance with their terms prior to such date. The October 2016 Purchase Agreements and the October 2016 Private Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the October 2016 Private Notes may be due and payable immediately, as set forth in the October 2016 Private Notes.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in"><div style="display: inline; font-style: italic;">Guanfu Credit Agreement</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On&nbsp;October 26, 2016, the Company and Guanfu Holding Co., Ltd. (or, together with its subsidiaries, &#x201c;Guanfu&#x201d;), an existing commercial partner of the Company, entered into a credit agreement (or the &#x201c;Guanfu Credit Agreement&#x201d;) to make available to the Company an unsecured credit facility with an aggregate principal amount of up to&nbsp;$25.0 million&nbsp;(or the &#x201c;Guanfu Credit Facility&#x201d;), which the Company may borrow from time to time in up to three closings (each such borrowing, a &#x201c;Guanfu Loan&#x201d;). Each Guanfu Loan will have a term of five years and will accrue interest at a rate of 10% per annum, payable quarterly. The Company may at its option repay the Guanfu Loans before their maturity date, in whole or in part, at a price equal to 100% of the amount being repaid plus accrued and unpaid interest on such amount to the date of repayment.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The Guanfu Credit Agreement contains customary representations, warranties and covenants of the parties, as well as customary provisions regarding, among other things, dispute resolution and governing law. Upon the occurrence of certain specified events of default under the Guanfu Credit Facility, the Company will grant to Guanfu an exclusive, royalty-free, global license to certain intellectual property useful in connection with Guanfu&#x2019;s existing commercial relationship with the Company. In addition, in the event the Company fails to pay interest or principal under any Guanfu Loan within ten days of when due, the Company will also be required, subject to applicable laws and regulations, to repay the outstanding principal amount under such Guanfu Loan, together with accrued and unpaid interest, in the form of shares of the Company&#x2019;s common stock at a per share price equal to 90% of the volume weighted average closing sale price of the Company&#x2019;s common stock for the 90 trading days ending on and including the trading day that is two trading days preceding such default.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The effectiveness of the Guanfu Credit Agreement is subject to the parties obtaining certain required approvals, and upon the effective date of the Guanfu Credit Agreement, the Company will grant to Guanfu the global exclusive purchase right with respect to the Company products subject to the parties&#x2019; pre-existing commercial relationship. The initial funding of the Guanfu Credit Facility is scheduled to occur on December 1, 2016, subject to Guanfu&#x2019;s right to extend such initial funding to a date no later than December 31, 2016.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in"><div style="display: inline; font-style: italic;">Nenter Cooperation Agreement</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-style: italic;">&nbsp;</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">On October 26, 2016, the Company entered into a Cooperation Agreement (or the &#x201c;Cooperation Agreement&#x201d;) with Nenter &amp; Co., Inc. (or &#x201c;Nenter&#x201d;), a subsidiary of Guanfu. Under the Cooperation Agreement, the parties will collaborate to create and develop certain compounds and, in the event the parties achieve certain specified development targets, the parties would establish and implement a worldwide manufacturing and commercialization plan (or the &#x201c;Commercialization Plan&#x201d;) relating thereto. The term of the Cooperation Agreement will be two years from the effectiveness of the Cooperation Agreement (or five years in the event the parties pursue the Commercialization Plan), which will occur upon the parties obtaining certain required approvals, subject to the rights of the parties to terminate the Cooperation Agreement upon a material breach by the other party or the failure to obtain certain governmental approvals or authorizations, as provided in the Cooperation Agreement. The Cooperation Agreement also contains customary representations, warranties and covenants of the parties, as well as customary terms and provisions regarding, among other things, indemnification, dispute resolution, confidentiality and governing law.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">In addition, pursuant to the terms of, and as consideration for, the Cooperation Agreement, promptly after the effectiveness of the Cooperation Agreement, the Company will issue to Nenter a warrant to purchase 10 million shares of the Company&#x2019;s common stock at an exercise price of $0.50 per share, exercisable on or before December 31, 2016. The warrant will be issued pursuant to the exemption from registration under Section 4(2) of the Securities Act and Regulation D promulgated under the Securities Act. Furthermore, pursuant to the terms of the warrant, upon the request of Nenter, the Company will use its best efforts to cause the shares of common stock issued upon exercise of the warrant to be registered under the Securities Act within 90 days of the exercise of the warrant.</div></div> <div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;">4. Balance Sheet Components</div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Inventories, net</div></div></div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Inventories, net are stated at the lower of cost or market and comprise of the following (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30,<br /> &nbsp;2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31,<br /> &nbsp;2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Raw materials</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">2,664</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">2,204</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Work-in-process</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,809</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,583</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Finished goods</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">3,426</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,099</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Inventories, net</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">7,899</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">10,886</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <div style=" font-size: 10pt; margin: 0pt 0 0pt 3pt">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Property, Plant and Equipment, net</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Property, plant and equipment, net is comprised of the following (in thousands):</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, <br /> 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Machinery and equipment</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">85,538</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">72,876</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Leasehold improvements</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">38,791</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">38,519</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Computers and software</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">9,545</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">9,117</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Buildings</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,718</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,922</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Furniture and office equipment</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,335</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,234</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">Vehicles</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">195</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">215</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Construction in progress</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">6,430</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">5,736</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">147,552</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">132,619</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left; padding-bottom: 1.1pt">Less: accumulated depreciation and amortization</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(84,459</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">(72,822</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">)</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 20pt">Property, plant and equipment, net</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">63,093</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">59,797</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0; text-indent: 0.5in">The Company's first, purpose-built, large-scale Biofene production plant in southeastern Brazil commenced operations in December 2012. This plant is located at Brotas in the state of S&atilde;o Paulo, Brazil and is adjacent to an existing sugar and ethanol mill, Tonon Bioenergia S.A. (or &#x201c;Tonon&#x201d;) (formerly Para&iacute;so Bioenergia) with which the Company has an agreement to purchase a certain number of tons of sugarcane per year, along with specified water and vapor volumes.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Property, plant and equipment, net includes $2.3 million and $2.7 million of machinery and equipment under capital leases as of September&nbsp;30, 2016 and December&nbsp;31, 2015, respectively. Accumulated amortization of assets under capital leases totaled $0.4 million and $0.5 million as of September&nbsp;30, 2016 and December&nbsp;31, 2015, respectively.</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Depreciation and amortization expense, including amortization of assets under capital leases was $2.9 million and $3.1 million for the three months ended September&nbsp;30, 2016 and 2015, respectively, and $8.6 million and $9.9 million for the nine months ended September 30, 2016 and 2015, respectively.</div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">&nbsp;</div></div></div> <!-- Field: Page; Sequence: 17 --> <!-- Field: /Page --> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Other Assets (non-current)</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Other assets are comprised of the following (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30,<br /> &nbsp;2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Recoverable taxes from Brazilian government entities</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">11,955</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">8,887</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Deposits on property and equipment, including taxes</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">292</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">243</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; padding-bottom: 1.1pt">Other</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,410</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 1.1pt">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: right">1,227</td> <td style="border-bottom: Black 1.1pt solid; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left; padding-bottom: 2.5pt; padding-left: 10pt">Total other assets</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">13,657</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; padding-bottom: 2.5pt">&nbsp;</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">$</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: right">10,357</td> <td style="border-bottom: Black 2.5pt double; font-size: 10pt; text-align: left">&nbsp;</td> </tr> </table> </div> <div style=" font-size: 10pt; text-align: justify; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Accrued and Other Current Liabilities</div></div></div> <div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div> <div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">Accrued and other current liabilities are comprised of the following (in thousands):</div> <div style=" font-size: 10pt; margin: 0pt 0">&nbsp;</div> <div> <table cellpadding="0" cellspacing="0" style="border-collapse: collapse; width: 700px;"> <tr style="vertical-align: bottom"> <td nowrap="nowrap" style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">September 30, <br /> 2016</td> <td style="font-size: 10pt; font-weight: bold; padding-bottom: 1.1pt">&nbsp;</td> <td nowrap="nowrap" colspan="3" style="font-size: 10pt; font-weight: bold; text-align: center; border-bottom: Black 1.1pt solid">December 31, <br /> 2015</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="width: 68%; font-size: 10pt; text-align: left">Withholding tax related to conversion of related party notes</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">4,964</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> <td style="width: 2%; font-size: 10pt">&nbsp;</td> <td style="width: 1%; font-size: 10pt; text-align: left">$</td> <td style="width: 12%; font-size: 10pt; text-align: right">4,723</td> <td style="width: 1%; font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Professional services</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">5,406</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,017</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">SMA relocation accrual</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,380</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,641</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Accrued interest</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">8,283</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,984</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Tax-related liabilities</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,325</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,505</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Accrued vacation</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,932</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">2,023</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Payroll and related expenses</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">4,268</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">3,122</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Deferred rent, current portion</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,110</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">1,111</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; text-align: left">Contractual obligations to contract manufacturers</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">680</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: White"> <td style="font-size: 10pt; text-align: left">Fair value swap short-term</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">586</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt">&nbsp;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> <td style="font-size: 10pt; text-align: right">&#x2014;</td> <td style="font-size: 10pt; text-align: left">&nbsp;</td> </tr> <tr style="vertical-align: bottom; background-color: rgb(204,238,255)"> <td style="font-size: 10pt; 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font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style="display: inline; font-family: times new roman; font-size: 10pt"><div style=" font-size: 10pt; text-align: justify; text-indent: 12pt; margin: 0pt 0"><div style="display: inline; font-weight: bold;"><div style="display: inline; font-style: italic;">Use of Estimates</div></div></div><div style=" font-size: 10pt; text-align: justify; text-indent: 24pt; margin: 0pt 0">&nbsp;</div><div style=" font-size: 10pt; text-align: justify; text-indent: 0.5in; margin: 0pt 0">In preparing the unaudited condensed consolidated financial statements, management must make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the unaudited condensed consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.</div></div></div></div></div></div></div></div></div> 493000 6993000 257000 1221000 41602952 249190339 140374297 268375111 100103007 249190339 140374297 226772159 100103007 Including debt discount of $33.0 million related to the embedded derivatives associated with the related party and non-related party debt which will be accreted to interest expense under the effective interest method over the term of the debt and debt issuance costs of $3.0 million. These liabilities are carried on the condensed consolidated balance sheet on a historical cost basis. These liabilities are carried on the consolidated balance sheet on a historical cost basis (noting that the Remaining Notes subject to the Maturity Treatment Agreement were revalued to fair value on July 29, 2015, see Note 5 "Debt" for details). See Note 8, "Significant Agreements" for details regarding the Bill & Melinda Gates Foundation Investment, classified as mezzanine equity. 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Michelin [Member] Represents Manfacuture Francaise des Pneumatiques. amrs_CollaborationAgreementPeriod Collaboration Agreement Period Represents term of collaboration agreement. Ginkgo Bioworks, Inc. [Member] Represents the name of a buyer in an equity transaction. Type of Arrangement and Non-arrangement Transactions [Axis] amrs_RoyaltyPercentage Royalty Percentage The percent of net revenue to be paid as royalties to the Company quarterly. Restricted cash Restricted Cash and Cash Equivalents, Noncurrent Kuraray [Member] Represents Kuraray collaboration. Proceeds from issuance of contingently redeemable equity The amount of cash proceeds from the issuance of contingently redeemable equity. us-gaap_ForeignCurrencyTransactionGainLossBeforeTax Loss on foreign currency exchange rates Deferred Revenue [Member] The carrying amount of consideration received or receivable as of the balance sheet date on potential earnings that were not recognized as revenue in conformity with GAAP, and which are expected to be recognized as such within one year or the normal operating cycle, if longer, including sales, license fees, and royalties, but excluding interest income. Comprehensive Income (Loss) Note [Text Block] Schedule of Accumulated Other Comprehensive Income (Loss) [Table Text Block] Other assets Total other assets SMA relocation accrual Amendment Flag Revenues us-gaap_AssetsCurrent Total current assets Other income (expense), net us-gaap_NonoperatingIncomeExpense Total other income (expense) Current Fiscal Year End Date Statement of Financial Position [Abstract] Document Fiscal Period Focus Document Fiscal Year Focus Interest income Document Period End Date us-gaap_ResearchAndDevelopmentArrangementContractToPerformForOthersCompensationEarned Research and Development Arrangement, Contract to Perform for Others, Compensation Earned Document Type us-gaap_OperatingIncomeLoss Loss from operations Statement of Cash Flows [Abstract] Statement of Stockholders' Equity [Abstract] Document Information [Line Items] Document Information [Table] Entity Filer Category Entity Current Reporting Status Entity Voluntary Filers Entity Well-known Seasoned Issuer Construction in Progress [Member] Furniture and Fixtures [Member] Inventories, net Inventories, net Entity Central Index Key Entity Registrant Name Building [Member] Entity [Domain] Legal Entity [Axis] Business Acquisition, Acquiree [Domain] Leasehold Improvements [Member] Business Acquisition [Axis] Property, Plant and Equipment, Type [Axis] Property, Plant and Equipment, Type [Domain] Entity Common Stock, Shares Outstanding (in shares) Trading Symbol Accounts receivable, net of allowance of $23 and $479, respectively Allowance for doubtful accounts us-gaap_CashCashEquivalentsAndShortTermInvestments Cash, Cash Equivalents, and Short-term Investments Short-term investments us-gaap_RestrictedCashAndCashEquivalentsAtCarryingValue Restricted cash Current assets: us-gaap_CashAndCashEquivalentsPeriodIncreaseDecrease Net decrease in cash and cash equivalents us-gaap_EffectOfExchangeRateOnCashAndCashEquivalents Effect of exchange rate changes on cash and cash equivalents Mezzanine equity Represents the amount of mezzanine equity which is a hybrid of debt and equity financing that gives the lender the rights to convert to an ownership or equity interest in the company in case of default, after venture capital companies and other senior lenders are paid. us-gaap_NetCashProvidedByUsedInFinancingActivitiesContinuingOperations Net cash provided by financing activities us-gaap_NetCashProvidedByUsedInOperatingActivitiesContinuingOperations Net cash used in operating activities us-gaap_NetCashProvidedByUsedInInvestingActivitiesContinuingOperations Net cash used in investing activities us-gaap_PaymentsRelatedToTaxWithholdingForShareBasedCompensation Employees' taxes paid upon vesting of restricted stock units Convertible notes Cost of products sold Proceeds from issuance of common stock in private placements, net of issuance costs Proceeds from Issuance of Private Placement Proceeds from exercise of common stock, net of repurchase Proceeds from Issuance of Common Stock us-gaap_CostsAndExpenses Total cost and operating expenses Investment, Name [Domain] Cost and operating expenses Investment, Name [Axis] amrs_CollaborativeAgreementNumberOfInstallments Collaborative Agreement Number Of Installments Represents the number of installments associated with the collaborative agreement. us-gaap_PaymentsOfDebtIssuanceCosts Payments of Debt Issuance Costs amrs_CollaborationArrangementPricePerShare Collaboration Arrangement Price Per Share Represents price per share for shares to be sold under the collaboration agreement. amrs_CollaborationArrangementSharesToBeSold Collaboration Arrangement Shares To Be Sold Represents number of shares to be sold under the collaboration agreement. amrs_MaximumDarpaFundingToBeReceivedIfAllMilestonesAreAchieved Maximum DARPA Funding to be Received if all Milestones are Achieved The maximum amount of funding that can be collectively received from DARPA by the company and its subcontractors if all of the program's milestones are achieved. Significant Accounting Policies [Text Block] Technology Investment Agreement with DARPA [Member] Represents the technology investment agreement with DARPA. Basis of Accounting, Policy [Policy Text Block] Income Tax Disclosure [Text Block] amrs_CollectiveObligationDue Collective Obligation Due The amount the company and its subcontracts are collectively obligated to contribute toward the program. Accounting Policies [Abstract] us-gaap_GuaranteeObligationsLiquidationProceedsPercentage Guarantor Obligations, Liquidation Proceeds, Percentage us-gaap_RepaymentsOfLongTermCapitalLeaseObligations Principal payments on capital leases us-gaap_RepaymentsOfLongTermDebt Repayments of Long-term Debt Principal payments on debt Credit Facility [Domain] Secured Debt [Member] Credit Facility [Axis] Proceeds from debt issued, net of discounts and issuance costs Proceeds from Issuance of Long-term Debt Guarantor Obligations, Nature [Domain] us-gaap_ProceedsFromConvertibleDebt Proceeds from Convertible Debt amrs_EquityMethodInvestmentNumberOfMembersOfBoardOfDirectors Equity Method Investment, Number of Members of Board of Directors Represents the number of members on the Board of Directors of the equity method investment. Guarantor Obligations, Nature [Axis] Cosan [Member] Represents information pertaining to Cosan Combustíveis e Lubrificantes S.A. and Cosan S.A. Industria e Comércio (such Cosan entities, collectively or individually, “Cosan”), or the Company's dealings with or relationship to Cosan. Proceeds from debt issued to related parties amrs_InitialTermOfJointVenture Initial Term of Joint Venture Represents the initial term of a joint venture agreement. us-gaap_ResearchAndDevelopmentAssetAcquiredOtherThanThroughBusinessCombinationFairValueAcquired Research and Development Asset Acquired Other than Through Business Combination, Fair Value Acquired Lease Arrangement, Type [Domain] us-gaap_GoodwillGross Goodwill, carrying amount Indefinite-lived Intangible Assets, Major Class Name [Domain] Lease Arrangement, Type [Axis] amrs_ObligationToFundAgreementCashPortion Obligation to Fund Agreement, Cash Portion Represent the cash portion of an obligation to fund an operating agreement. Indefinite-lived Intangible Assets [Axis] amrs_CarryingValueOfTheLicensesGrantedUnderTheIpLicenseAgreement Carrying Value of the Licenses Granted Under the IP License Agreement Represents the Company's carrying value of the licenses granted under the IP License Agreement. amrs_IpLicenseValue IP License, Value Represents the estimated value of the IP License to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in the automotive, commercial and industrial lubricants markets. Goodwill and Intangible Assets Disclosure [Text Block] Novvi S.A. [Member] Represents information about the investment Novvi S.A. amrs_JointVentureAdditionalMembershipUnitsPurchasedAggregatePurchasePrice Joint Venture, Additional Membership Units Purchased, Aggregate Purchase Price Represents the aggregate purchase price of additional membership units in the joint venture. amrs_LoanGrantedToJointVentureStatedAnnualInterestRate Loan Granted to Joint Venture, Stated Annual Interest Rate Represents the stated annual interest rate of a loan granted to a joint venture. amrs_LoanGrantedToJointVenture Loan Granted to Joint Venture Represents a loan granted to the joint venture, of which half was provided by the Company and is presumably due to the Company. amrs_LoanGrantedToJointVentureAmountDisbursedByCompany Loan Granted to Joint Venture, Amount Disbursed by Company Represents the amount of money that was disbursed to the joint venture by the Company. amrs_LoanToJointVenturePercentageProvidedByEachTheCompanyAndThePartner Loan to Joint Venture, Percentage Provided by Each the Company and the Partner Represents the percentage of the loan provided to the Joint Venture by each the Company and the partner/counterparty. amrs_LoanGrantedToJointVentureAmountOfFirstInstallmentPaidByCompany Loan Granted to Joint Venture, Amount of First Installment Paid by Company With regard to the Company's share of the loan payments made to a joint venture, this element represents the amount paid in the first installment. amrs_LoanGrantedToJointVentureNumberOfInstallmentsPaidByTheCompany Loan Granted to Joint Venture, Number of Installments Paid by the Company With regard to the Company's share of a loan paid to a joint venture, represents the number of installments in which payments were made. amrs_LoanGrantedToJointVentureAmountOfSecondInstallmentPaidByCompany Loan Granted to Joint Venture, Amount of Second Installment Paid by Company With regard to the Company's share of the loan payments made to a joint venture, this element represents the amount paid in the second installment. us-gaap_EquityMethodInvestmentOwnershipPercentage Equity Method Investment, Ownership Percentage JVCO Joint Venture [Member] Represents information about the JVCO joint venture. amrs_EquityMethodInvestmentOwnershipPercentageExchangedForCancellationOfDebt Equity Method Investment, Ownership Percentage Exchanged for Cancellation of Debt Represents percentage of ownership that is transferred to a counterparty in exchange of cancellation of debt. amrs_EquityMethodInvestmentOwnershipPercentageByCounterparty Equity Method Investment, Ownership Percentage by Counterparty The percentage of ownership of common stock or equity participation by an entity other than the reporting entity in the investee accounted for under the equity method of accounting. Weighted common stock equivalents (in shares) Antidilutive Securities Excluded from Computation of Earnings Per Share, Amount (in shares) amrs_EquityMethodInvestmentNumberOfMembersOfExecutiveCommittee Equity Method Investment, Number of Members of Executive Committee Represents the number of members of an equity method investment's executive committee. Diluted (in shares) us-gaap_SharePrice Stock price (in dollars per share) amrs_EquityMethodInvestmentNumberOfMembersOfBoardOfDirectorsAppointedByEachVenture Equity Method Investment, Number of Members of Board of Directors Appointed by Each Venture Represents the number of members of the joint venture's Board of Directors who are appointed by each venture. SMSA [Member] Represents information about San Martinho S.A. (or "SMSA"), which whom the Company has formed a joint venture. Contribution upon restructuring of Fuels JV Amount of capital contribution on disposal of interest in affiliate. us-gaap_RelatedPartyTransactionAmountsOfTransaction Related Party Transaction, Amounts of Transaction Related Party Transaction [Axis] amrs_EquityMethodInvestmentPeriodCompanyIsRequiredToPurchaseOutputOfJointVenture Equity Method Investment, Period Company is Required to Purchase Output of Joint Venture Represents the period of time over which the Company is required to purchase the output of the joint venture at a price that guarantees the return on the joint venture partner's investment plus a fixed interest rate. Cancellation of debt and accrued interest on disposal of interest in affiliate The amount of debt and accrued interest cancelled in affiliate. Finite-Lived Intangible Assets by Major Class [Axis] Related Party Transaction [Domain] Diluted (in dollars per share) amrs_AcquisitionOfNoncontrollingInterest Acquisition of noncontrolling interest Amount of increase (decrease) in additional paid in capital (APIC) resulting from acquisition of non-controlling interest. Finite-Lived Intangible Assets, Major Class Name [Domain] Glycotech Agreement [Member] Represents information about the production service agreement ("Glycotech Agreement") entered into by the Company with Glycotech, Inc., under which Glycotech provides process development and production services for the manufacturing of various Company products at its leased facility in Leland, North Carolina. amrs_OperationCommencementTimelineRequirementExtension Operation Commencement Timeline Requirement, Extension Represents the extension of a operation commencement timeline requirement for construction in progress. Related Party Loan Payable [Member] amrs_VariableInterestEntityFinancialOrOtherSupportPercentage Variable Interest Entity, Financial or Other Support, Percentage Represents the percentage of the VIE's actual operating costs that the Company is required to fund each month while the facility is in operation under a collaboration agreement. amrs_PeriodOfInitialTermOfCollaborationAgreement Period of Initial Term of Collaboration Agreement Represents the initial term of the collaboration agreement. amrs_VariableInterestEntityConsolidatedCarryingAmountOtherAssets Variable Interest Entity, Consolidated, Carrying Amount, Other Assets Represents the amount of "other assets" included in the total assets of the consolidated VIEs for which the Company is the primary beneficiary. Basic (in shares) amrs_VariableInterestEntityConsolidatedCarryingAmountPropertyAndEquipment Variable Interest Entity, Consolidated, Carrying Amount, Property and Equipment Represents the property, plant and equipment included in the assets of the consolidated VIEs for which the Company is the primary beneficiary. Related Party [Domain] amrs_VariableInterestEntityConsolidatedCarryingAmountAccountsPayableAndAccruedLiabilities Variable Interest Entity, Consolidated, Carrying Amount, Accounts Payable and Accrued Liabilities Represents the amount of accounts payable included in the total liabilities of the consolidated VIEs for which the Company is the primary beneficiary. amrs_VariableInterestEntityConsolidatedCarryingAmountCurrentAssets Variable Interest Entity, Consolidated, Carrying Amount, Current Assets Represents the amount of "current assets" included in the total assets of the consolidated VIEs for which the Company is the primary beneficiary. Related Party [Axis] amrs_VariableInterestEntityConsolidatedCarryingAmountLoanObligations Variable Interest Entity, Consolidated, Carrying Amount, Loan Obligations Represents the amount of loan obligations included in the total liabilities of the consolidated VIEs for which the Company is the primary beneficiary. Basic (in dollars per share) Related Party Transactions Disclosure [Text Block] Schedule of Revenue from External Customers Attributed to Foreign Countries by Geographic Area [Table Text Block] Schedule of Disclosure on Geographic Areas, Long-Lived Assets in Individual Foreign Countries by Country [Table Text Block] TJLP Adjustment Factor [Member] Represents the adjustment factor for the interest rate of Central Bank of Brazil (TJLP). us-gaap_DueFromJointVentures Due from Joint Ventures Related party accounts receivable, net of allowance of $478 and $490, respectively Accounts Receivable, Related Parties Threshold Met [Member] Scenario where the threshold is met. amrs_DebtInstrumentInterestOnLateBalancePercentagePerMonth Debt Instrument Interest On Late Balance Percentage Per Month Represents the interest rate levied on late balances every month. DARPA [Member] The Defense Advanced Research Projects Agency. amrs_DebtInstrumentNumberOfMonthlyInstallments Debt Instrument, Number of Monthly Installments Represents the number of monthly Installments. invest_DerivativeNotionalAmount Derivative, Notional Amount amrs_Debtinstruementinterestrateofthecentralbankofbrazilusedasathreshold DebtInstruementInterestRateOfTheCentralBankOfBrazilUsedAsAThreshold Represents the interest rate for the Central Bank of Brazil that is used as a threshold for when the interest rate formula is used. Financing activities us-gaap_IncreaseDecreaseInRestrictedCash Change in restricted cash amrs_Debtdefualtpenaltyandfineonobligationindefaultpercentage DebtDefualtPenaltyAndFineOnObligationInDefaultPercentage Represents the percentage of defaulted obligation that is issued as a penalty. Unsecured Debt [Member] Long-term Debt, Type [Axis] Long-term Debt, Type [Domain] Noncurrent portion of debt Long-term debt Amount after unamortized (discount) premium and debt issuance costs of long-term debt classified as noncurrent, including due to related parties and excluding amounts to be repaid within one year or the normal operating cycle, if longer. Includes, but not limited to, notes payable, bonds payable, debentures, mortgage loans and commercial paper. Excludes capital lease obligations. amrs_LongtermDebtCurrentMaturitiesIncludingDueToRelatedParties Long-term Debt, Current Maturities, Including Due to Related Parties Less: current portion Amount, after unamortized (discount) premium and debt issuance costs, of long-term debt, classified as current including due to related parties. Includes, but not limited to, notes payable, bonds payable, debentures, mortgage loans and commercial paper. Excludes capital lease obligations. Capital Lease Obligations [Member] Reduction in Current Debt [Member] Represents a reduction in current debt. Reduction in Noncurrent Debt [Member] Represents a reduction in noncurrent debt. Reduction in Prepaid Expenses and Other Current Assets [Member] Represents a reduction in prepaid expenses and other current assets. Reduction in Noncurrent Assets [Member] Represents a reduction in noncurrent assets. Schedule of Intangible Assets and Goodwill [Table Text Block] us-gaap_CapitalLeasesFutureMinimumPaymentsDue Total future minimum lease payments us-gaap_CapitalLeasesFutureMinimumPaymentsDueInFiveYears 2020 us-gaap_CapitalLeasesFutureMinimumPaymentsDueInThreeYears 2018 us-gaap_CapitalLeasesFutureMinimumPaymentsDueInTwoYears 2017 Schedule of Fair Value, Assets and Liabilities Measured on Recurring Basis [Table Text Block] us-gaap_CapitalLeasesFutureMinimumPaymentsDueCurrent 2016 (remaining three months) us-gaap_ExtinguishmentOfDebtAmount Extinguishment of Debt, Amount us-gaap_CapitalLeasesFutureMinimumPaymentsInterestIncludedInPayments Less: amount representing interest Interim Period, Costs Not Allocable [Domain] Nature of Expense [Axis] us-gaap_CapitalLeasesFutureMinimumPaymentsPresentValueOfNetMinimumPayments Present value of minimum lease payments us-gaap_DebtInstrumentRedemptionPricePercentage Debt Instrument, Redemption Price, Percentage us-gaap_IndefinitelivedIntangibleAssetsAcquired Indefinite-lived Intangible Assets Acquired us-gaap_DebtInstrumentTerm Debt Instrument, Term Class of Stock [Axis] The Second Tranche [Member] Represents the second trench. amrs_LineOfCreditFacilityBankGuaranteePercentage Line of Credit Facility Bank Guarantee Percentage Represents the bank guarantee percentage. Schedule of Earnings Per Share, Basic and Diluted [Table Text Block] amrs_LineOfCreditFacilityBorrowingsAboveWhichIsNewTranche Line of Credit Facility, Borrowings Above Which is New Tranche Represents the level of borrowing under the line of credit facility, which amount represents the beginning of the new tranche. Schedule of Derivative Liabilities at Fair Value [Table Text Block] us-gaap_DebtInstrumentConvertibleThresholdConsecutiveTradingDays Debt Instrument, Convertible, Threshold Consecutive Trading Days us-gaap_DebtInstrumentConvertibleThresholdTradingDays Debt Instrument, Convertible, Threshold Trading Days us-gaap_DebtInstrumentConvertibleConversionPrice1 Debt Instrument, Convertible, Conversion Price us-gaap_DebtInstrumentConvertibleConversionRatio1 Debt Instrument, Convertible, Conversion Ratio us-gaap_DebtInstrumentConvertibleNumberOfEquityInstruments Debt Instrument, Convertible, Number of Equity Instruments Maturities of short-term investments Not Designated as Hedging Instrument [Member] amrs_DebtInstrumentPrepaymentPenaltyPercentage Debt Instrument, Prepayment Penalty, Percentage Represents the percentage of the loan that must be paid as a penalty for early repayment of the loan. us-gaap_PaymentsToAcquireShortTermInvestments Purchase of short-term investments Hedging Designation [Axis] Hedging Designation [Domain] amrs_DebtInstrumentFacilityChargePercentage Debt Instrument, Facility Charge, Percentage Represents the facility charge for the debt instrument. Schedule of Debt [Table Text Block] us-gaap_PaymentsForAdvanceToAffiliate Loan to affiliate us-gaap_DebtInstrumentPeriodicPaymentTermsBalloonPaymentToBePaid Debt Instrument, Periodic Payment Terms, Balloon Payment to be Paid Schedule of Share-based Payment Award, Stock Options, Valuation Assumptions [Table Text Block] Schedule of Share-based Compensation, Stock Options and Stock Appreciation Rights Award Activity [Table Text Block] Schedule of Share-based Compensation, Restricted Stock and Restricted Stock Units Activity [Table Text Block] us-gaap_DebtInstrumentBasisSpreadOnVariableRate1 Debt Instrument, Basis Spread on Variable Rate us-gaap_DebtInstrumentInterestRateEffectivePercentage Debt Instrument, Interest Rate, Effective Percentage us-gaap_DebtInstrumentInterestRateStatedPercentage Debt Instrument, Interest Rate, Stated Percentage us-gaap_FairValueAssumptionsExpectedVolatilityRate Expected volatility us-gaap_DebtInstrumentRepurchasedFaceAmount Debt Instrument, Repurchased Face Amount us-gaap_DebtInstrumentFaceAmount Debt Instrument, Face Amount us-gaap_DebtInstrumentRepurchaseAmount Debt Instrument, Repurchase Amount us-gaap_CapitalizationLongtermDebtAndEquity Capitalization, Long-term Debt and Equity Supplemental disclosures of cash flow information: Total financial liabilities Debt Instrument [Axis] amrs_DebtInstrumentForbearanceFeeForgiven Debt Instrument, Forbearance Fee, Forgiven Represents the forgiveness for a forbearance fee. Debt Instrument, Name [Domain] Prime Rate [Member] amrs_DebtInstrumentEndOfTermFeePercentage Debt Instrument, End of Term Fee, Percentage Represents the end of term charge for the debt instrument. Variable Rate [Axis] amrs_DebtInstrumentRequiredEquityFinancingAmount Debt Instrument, Required Equity Financing, Amount Represents the required amount of equity financing for the debt instrument. Variable Rate [Domain] amrs_DebtInstrumentUnencumberedUnrestrictedCashRequiredPercentage Debt Instrument, Unencumbered, Unrestricted, Cash Required, Percentage Represents the percentage of the principal amount that must be kept in unencumbered, unrestricted cash. Schedule of Long-term Debt Instruments [Table Text Block] Liability Class [Axis] Hercules Credit Additional Amount [Member] Represents the additional amount the was borrowed from Hercules. Fair Value by Liability Class [Domain] amrs_LineOfCreditFacilityAmountToBeRaisedThroughEquityTriggeringWithdrawalOfTheCreditFacility Line of Credit Facility, Amount to be Raised Through Equity Triggering Withdrawal of the Credit Facility Represents the amount of money that is raised through equity that will trigger the withdrawal of the credit facility. amrs_DebtInstrumentFaceAmountContingentSecondClosing Debt Instrument, Face Amount, Contingent Second Closing Face (par) amount of debt instrument at the second closing on the first trading day following the completion of the first three installment periods and based upon the occurrence of any other event specified in the contractual terms. amrs_DebtInstrumentMonthlyInstallmentsPercentOfInstallmentAmount Debt Instrument, Monthly Installments, Percent of Installment Amount Represents the cash payment at a percentage of such installment amount, payable in monthly installments. Fidelity Convertible Notes [Member] Represents the fidelity convertible notes. amrs_DebtInstrumentAdditionalCommonStockPaymentMaximumPercentOfAggregateAmount Debt Instrument, Additional Common Stock Payment, Maximum Percent of Aggregate Amount In the event the Company pays all or any portion of a monthly installment amount in common stock, holders of the convertible notes have the right to require the Company to pay an additional amount not the exceed the maximum percentage of the cumulative sum of the aggregate amount. us-gaap_FairValueMeasurementWithUnobservableInputsReconciliationRecurringBasisLiabilityGainLossIncludedInEarnings Gain from change in fair value of derivative liabilities amrs_DebtInstrumentThresholdAmountOfDollarweightedVolumeOfCommonStock Debt Instrument, Threshold Amount of Dollar-weighted Volume of Common Stock Represents the threshold amount of dollar-weighted volume of common stock applicable to the monthly installment period. amrs_DebtInstrumentEventsOfFundamentalTransactionPercentageOfAmountCanBeRedeemedByHolders Debt Instrument, Events of Fundamental Transaction, Percentage of Amount can be Redeemed by Holders In the event of Fundamental Transaction, holders of may require the Company to all or any portion of their convertible notes in cash at a price equal to the greater of a percentage of amount being redeemed. amrs_DebtInstrumentEventsOfDefaultPercentageOfAmountCanBeRedeemedByHolders Debt Instrument, Events of Default, Percentage of Amount can be Redeemed by Holders In the events of default, holders of may require the Company to all or any portion of their convertible notes in cash at a price equal to the greater of a percentage of amount being redeemed. amrs_DebtInstrumentRedemptionPricePercentageUponTriggeringEvent Debt Instrument, Redemption Price, Percentage upon Triggering Event Percentage price of original principal amount of debt at which debt can be redeemed by the issuer upon the occurrence of a Triggering Event within 4 month of the issuance of convertible notes. Convertible promissory notes (in shares) Weighted-average shares of common stock outstanding used in computing net loss per share of common stock: amrs_DebtInstrumentConvertibleThresholdConsecutiveTradingDaysDeferredInstallments Debt Instrument, Convertible Threshold Consecutive Trading Days, Deferred Installments Threshold period of specified consecutive tradings days for deferred installments. amrs_DebtInstrumentConvertibleStockPriceTriggerForDeferredInstallments Debt Instrument, Convertible Stock Price Trigger for Deferred Installments Represents the convertible stock price trigger for deferred installments. us-gaap_LineOfCreditFacilityCommitmentFeePercentage Line of Credit Facility, Commitment Fee Percentage us-gaap_LineOfCreditFacilityMaximumBorrowingCapacity Line of Credit Facility, Maximum Borrowing Capacity us-gaap_LineOfCreditFacilityUnusedCapacityCommitmentFeePercentage Line of Credit Facility, Unused Capacity, Commitment Fee Percentage Interest on convertible debt Affiliated Entity [Member] Net loss attributable to Amyris, Inc. common stockholders Fair Value, Net Derivative Asset (Liability) Measured on Recurring Basis, Unobservable Input Reconciliation [Table Text Block] Change in fair value of convertible notes us-gaap_FairValueMeasurementWithUnobservableInputsReconciliationsRecurringBasisLiabilityValue Fair Value, Measurement with Unobservable Inputs Reconciliations, Recurring Basis, Liability Value Balance, convertible notes Balance at September 30 us-gaap_FairValueMeasurementWithUnobservableInputsReconciliationRecurringBasisLiabilitySettlements Derecognition on conversion/extinguishment us-gaap_NetIncomeLoss Net loss attributable to Amyris, Inc. common stockholders Additions of convertible notes Lender Name [Axis] Line of Credit Facility, Lender [Domain] Fair Value, Liabilities Measured on Recurring Basis, Unobservable Input Reconciliation [Table Text Block] Restricted Stock Units (RSUs) [Member] Convertible Debt Securities [Member] Employee Stock Option [Member] Antidilutive Securities, Name [Domain] Antidilutive Securities [Axis] Schedule of Antidilutive Securities Excluded from Computation of Earnings Per Share [Table Text Block] Debt Disclosure [Text Block] Loans payable Credit facilities us-gaap_DebtConversionConvertedInstrumentExpirationOrDueDateYear Estimated conversion dates us-gaap_DebtConversionConvertedInstrumentSharesIssued1 Debt Conversion, Converted Instrument, Shares Issued amrs_ConvertiblePromissoryNoteAcquisitionRightAmountRedeemablePercentage Convertible Promissory Note, Acquisition Right Amount Redeemable, Percentage Represents the percentage of the face value of the convertible promissory notes redeemable by the holder in the event of an acquisition. amrs_ConvertiblePromissoryNotesDebtPercentageOfTotalAssets Convertible Promissory Notes, Debt Percentage of Total Assets Represents the maximum percentage of the total debt as a percentage of the total assets. amrs_ConvertiblePromissoryNoteMaximumAllowableDebt Convertible Promissory Note, Maximum Allowable Debt Represents the maximum amount of allowable debt allowed under a convertible promissory note covenant. amrs_ConvertiblePromissoryNoteSecuredDebtAsAPercentageOfConsolidatedTotalAssets Convertible Promissory Note, Secured Debt as a Percentage of Consolidated Total Assets Represents the percentage of total assets for secured debt required in the convertible promissory notes. us-gaap_FairValueAssumptionsRiskFreeInterestRate Risk-free interest rate amrs_ConvertiblePromissoryNoteMaximumAmountOfSecuredDebt Convertible Promissory Note, Maximum Amount of Secured Debt Represents the maximum amount of secured debt allowed in the convertible promissory notes. us-gaap_FairValueAssumptionsExpectedDividendRate Risk-adjusted yields amrs_AdditionalConsiderationForCovenantWaivingConvertiblePromissoryNotes Additional Consideration for Covenant Waiving, Convertible Promissory Notes Represents the additional amount of convertible debt notes issued for consideration of convertible debt note covenant waiving. us-gaap_DebtConversionOriginalDebtAmount1 Debt Conversion, Original Debt, Amount us-gaap_FairValueAssumptionsWeightedAverageVolatilityRate Probability of change in control amrs_ConvertiblePromissoryNoteBridgeLoanAmountConvertiblePromissoryNoteCovenantsWaived Convertible Promissory Note, Bridge Loan Amount, Convertible Promissory Note Covenants Waived Represents the amount of the bridge loan that the holders waived the convertible promissory note covenants for. Equity and loans in affiliates Represents the equity and loans receivable from affiliate. Other income (expense): Rule 144A Convertible Note Offering [Member] Represents the Rule 144A Convertible Note Offering. Debt Conversion, Name [Domain] Related party renewable product sales Product sales revenue earned in related party transactions. Renewable product sales Represents the sales revenue from product sales. Debt Conversion Description [Axis] Grants and collaborations revenue Revenue earned through grants and collaborations. Loss on purchase commitments and impairment of property, plant and equipment Loss on purchase commitments and write off of production assets. Fair Value, Measurements, Recurring [Member] Measurement Frequency [Axis] Fair Value, Measurement Frequency [Domain] Fair Value Measurements, Recurring and Nonrecurring, Valuation Techniques [Table Text Block] Earnings Per Share [Text Block] Investing activities Net loss per share attributable to common stockholders: Property, Plant and Equipment [Table Text Block] us-gaap_IncreaseDecreaseInDeferredRevenue Deferred revenue amrs_GainLossOnPurchaseCommitmentsAndDispositionOfPropertyPlantAndEquipment Loss on purchase commitments and impairment of property, plant and equipment Represents the gain or loss on purchase commitments and the disposition of property, plant, and equipment. Acquisitions of property, plant and equipment under accounts payable, accrued liabilities and notes payable Financing of insurance premium under notes payable The amount financing of the insurance premium in a noncash (or part noncash) acquisition. Noncash is defined as information about all investing and financing activities of an enterprise during a period that affect recognized assets or liabilities but that do not result in cash receipts or cash payments in the period. "Part noncash" refers to that portion of the transaction not resulting in cash receipts or cash payments in the period. amrs_PaymentsToAcquirePropertyPlantAndEquipmentNetOfDisposals Purchases of property, plant and equipment, net of disposals The cash outflow associated with the acquisition of long-lived, physical assets that are used in the normal conduct of business to produce goods and services and not intended for resale; includes cash outflows to pay for construction of self-constructed assets, net of disposals. Financing of equipment us-gaap_PolicyTextBlockAbstract Accounting Policies Purchase of property, plant and equipment via deposit Noncash or part noncash transaction of purchase of property, plant and equipment via deposit. Interest capitalized to debt The element that represents capitalized interest, shown on the cash flow statement under "supplemental disclosures of non-cash investing and financing activities." Non-cash investment in joint venture Represents the non-cash investments in joint ventures for the period. us-gaap_IncreaseDecreaseInAccountsPayable Accounts payable amrs_VariableInterestEntityNumberOfEntities Variable Interest Entity, Number of Entities The number of variable interest entities. amrs_AdditionalConvertibleNoteOffering Additional Convertible Note Offering Represents the additional convertible note offering. amrs_PercentageOfOutstandingPrincipleToBeMaintainedInUnencumberedCash Percentage of Outstanding Principle to be Maintained in Unencumbered Cash Represents the percentage of the outstanding principal amount that must be maintained as unencumbered cash. amrs_ConvertibleNoteOffering Convertible Note Offering Represents the convertible note offering. amrs_AmountOfConvertibleDebtPurchasedByAffiliatedEntities Amount of Convertible Debt Purchased by Affiliated Entities Represents the amount of convertible debt purchased by affiliated entities. Unaudited Interim Financial Information Policy [Policy Text Block] Disclosure of accounting policy for unaudited interim financial information. amrs_ProceedsFromConvertibleDebtUsedToRepayPreviouslyIssuedConvertibleDebt Proceeds from Convertible Debt Used to Repay Previously Issued Convertible Debt Represents the amount of proceeds from the issuance of convertible debt that is used to repay previously issued convertible debt. Derivative Liability, Compound Embedded Derivatives [Member] Represents information relating to the derivative liability, compound embedded derivatives. Numerator [Member] Represents the Numerator in the ratio. Total and Temasek [Member] Represents related parties Total and Temasek. Banco Pine July 2012 Loan Agreement [Member] The name of the loan agreement with Banco Pine S.A. amrs_DebtInstrumentConvertibleThresholdDaysForConversionNotification Debt Instrument, Convertible, Threshold Days for Conversion Notification Represents the number of days threshold for notification of the debt conversion. Supplemental disclosures of non-cash investing and financing activities: Denominator [Member] Represents the denominator in the ratio. amrs_ConvertibleNoteSubstantialChangeDiscountRateUsedInCalculateValueOfRemainingInterestPayments Convertible Note Substantial Change, Discount Rate Used in Calculate Value of Remaining Interest Payments Represents the discount rate used in calculating the value of the remaining interest payments if the substantial change covenants are triggered. amrs_ConvertibleNoteSubstantialChangePercentageOfPrincipalRepurchasePrice Convertible Note Substantial Change, Percentage of Principal Repurchase Price Represents the percentage of the principal that will constitute the repurchase price of the convertible note if substantial change takes places as defined in the covenants. Total Purchase Agreement [Member] Represents the Total Purchase Agreement. Initial Closing [Member] Represents initial closing. us-gaap_ComprehensiveIncomeNetOfTax Comprehensive loss attributable to Amyris, Inc. amrs_NumberOfInstallments Number of Installments Represents the number of installments associated with agreement. Diesel Research and Development Funding [Member] Represents diesel research and development funding. New Funding [Member] Represents new funding. Second Closing [Member] Represents second closing. Preferred stock, shares outstanding (in shares) us-gaap_SharesOutstanding Balance (in shares) Balance (in shares) Common stock, shares outstanding (in shares) Two Installments in Second Closing [Member] Represents information pertaining to not just one, but two installments in the second closing under the purchase agreement. Two Installments In Third Closing [Member] Represents information pertaining to not just one, but two installments in the third closing under the purchase agreement. Third Closing [Member] Represents third closing. us-gaap_IncreaseDecreaseInOtherDeferredLiability Deferred rent Convertible Subordinated Debt [Member] Compound embedded derivative liabilities Fair value of equity conversion feature embedded derivative liability. us-gaap_OtherAssetsMiscellaneousNoncurrent Other Allocated share-based compensation expense Schedule of Other Assets, Noncurrent [Table Text Block] amrs_FairValueAssumptionCreditSpread Credit spread Measure of credit spread in percentage. us-gaap_IncreaseDecreaseInAccruedLiabilitiesAndOtherOperatingLiabilities Accrued and other liabilities Currency Interest Rate Swap [Member] Represents information relating to a currency interest rate swap. Gain (Loss) From Change in Fair Value of Derivative Instruments [Member] A line item on the income statement. Derivative Liabilities [Member] A line item on the balance sheet. us-gaap_IncreaseDecreaseInPrepaidDeferredExpenseAndOtherAssets Prepaid expenses and other assets Property, Plant and Equipment, Including Capital Leases [Member] Property plant and equipment including capital leases. Machinery and Equipment, Furniture and Office Equipment Under Capital Lease [Member] Represents property, plant and equipment classified as machinery and equipment, furniture and office equipment, under a capital lease. Prepaid expenses and other current assets Issuance of warrants with debt private placement and collaboration agreements Stock-based compensation us-gaap_LettersOfCreditOutstandingAmount Letters of Credit Outstanding, Amount Computer Equipment and Software [Member] Represents computer equipment and software. amrs_RecoverableTaxesOnPurchaseOfFixedAssets Recoverable taxes from Brazilian government entities The element that represents recoverable taxes on the purchase of fixed assets. amrs_DepositsOnPropertyAndEquipment Deposits on property and equipment, including taxes The element that represents deposits on property and equipment, including taxes. Schedule of Accrued and Other Current Liabilities [Table Text Block] Tabular disclosure of accrued and other current liabilities. July 2012 Agreements [Member] Represents July 2012 Agreements. amrs_DebtInstrumentDefaultRate Debt Instrument Default Rate Represents the default rate. BNDES Credit Facility [Member] Represents the Brazilian Development Bank (BNDES) credit facility. us-gaap_DeferredRevenueRevenueRecognized1 Deferred Revenue, Revenue Recognized FINEP Credit Facility [Member] Represents the FINEP Credit Facility. amrs_NumberOfTradingDaysNotesBecomeConvertible Number of Trading Days Notes Become Convertible Represents the number of trading days prior to maturity the notes become convertible into common stock. Credit Facility [Member] Represents information about credit facility borrowings. us-gaap_IncreaseDecreaseInAccountsReceivableRelatedParties Related party accounts receivable March 2013 Letter Agreement [Member] Represents information about the March 2013 Letter Agreement. amrs_DebtRestrictionsMaximumOutstandingDebt Debt Restrictions, Maximum Outstanding Debt Represents the maximum amount of total debt that can be outstanding at any time. Related Party Convertible Notes [Member] Represents information about related party convertible notes. amrs_DebtInstrumentClosingPricePlusIncrementalRate Debt Instrument Closing Price Plus Incremental Rate Represents the closing price plus incremental rate. 2016 (remaining three months) Represents the future minimum payments on debt that are due during the remainder of the current fiscal year. us-gaap_IncreaseDecreaseInAccountsReceivable Accounts receivable 2018 Represents the portion of the future minimum payments on debt that is due in three years. August 2013 Convertible Notes [Member] Represents August 2013 convertible notes. 2017 Represents the portion of the future minimum payments on debt that is due in two years. Issuance of common stock upon conversion of debt (in shares) Senior Secured Convertible Note [Member] Represents senior secured convertible note. March 2014 Letter Agreement [Member] Represents March 2014 letter agreement. Issuance of common stock upon conversion of debt 2020 Represents the portion of the future minimum payments on debt that is due in five years. 2019 Represents the portion of the future minimum payments on debt that is due in four years. Thereafter Represents the portion of the future minimum payments on debt that is due after five years. amrs_DebtFutureMinimumPaymentsInterestIncludedInPayments Less: amount representing interest(1) Represents the interest that is included in future payments on debt, which amount is subtracted from total future minimum payments in order to calculate the present value of minimum debt payments. Shares issued upon ESPP purchase (in shares) amrs_DebtFutureMinimumPaymentsDue Total future minimum payments Represents the total future minimum payments that will be due on debt. amrs_DebtFutureMinimumPaymentsPresentValueOfNetMinimumPaymentsCurrentMaturities Less: current portion present value of minimum debt payments Represents the current portion of the present value of the net minimum payments on debt. amrs_DebtFutureMinimumPaymentsPresentValueOfNetMinimumPayments Present value of minimum debt payments Represents the present value of future minimum debt payments, net of interest. Shares issued upon ESPP purchase Issuance of common stock upon exercise of stock options, net of restricted stock (in shares) Options exercised (in shares) amrs_PrivatePlacementConvertibleNotesPeriod Private Placement Convertible Notes, Period Represents the period over which the private placement convertible notes are to be sold and issued. amrs_CollateralProvidedByCompanyCertainEquipmentAndOtherTangibleAssetsAmount Collateral Provided by Company Certain Equipment and Other Tangible Assets, Amount Represents the collateral amount the company must have in tangible assets. Replacement Notes [Member] Represents information regarding the "Replacement Notes." Issuance of common stock upon exercise of stock options, net of restricted stock First Tranche [Member] Represents the first tranche. Shares issued from restricted stock settlement (in shares) amrs_DebtInstrumentNumberOfTranches Debt Instrument, Number of Tranches Represents the number of tranches associated with convertible promissory notes. amrs_CancellationOfConvertibleDebt Cancellation of Convertible Debt Represents the amount of convertible debt cancelled during the period. Second Tranche [Member] Represents the second tranche. us-gaap_StockIssuedDuringPeriodValueRestrictedStockAwardGross Shares issued from restricted stock settlement Temasek Bridge Loan [Member] Represents Temasek bridge loan. us-gaap_ShareBasedCompensationArrangementByShareBasedPaymentAwardOptionsForfeituresInPeriod Options cancelled (in shares) us-gaap_IncreaseDecreaseInInventories Inventories, net Options granted (in shares) amrs_FutureCancellationOfDebtAmount Future Cancellation of Debt, Amount Represents the amount of the future cancellation of debt. amrs_ConvertiblePromissoryNotesPeriodAfterWhichNotesWillBeDue Convertible Promissory Notes, Period After Which Notes Will Be Due Represents the period of time after which convertible promissory notes will be due and will be convertible into shares of common stock at the specified conversion price. us-gaap_StockIssuedDuringPeriodSharesNewIssues Stock Issued During Period, Shares, New Issues amrs_ConvertibleNoteDiscountNumberOfDaysForTrailingWeightedaverageClosingPrice Convertible Note Discount, Number of Days for Trailing Weighted-average Closing Price Represents the number of days for the trailing weighted-average closing price for the note conversion. amrs_ConvertibleNotesDiscountPercentageToDetermineConversionPrice Convertible Notes, Discount Percentage to Determine Conversion Price Represents the discount rate to a trailing 60-day weighted-average closing price of the common stock, which is used in determining the conversion price. us-gaap_LiabilitiesAndStockholdersEquity Total liabilities, mezzanine equity and stockholders' deficit amrs_ConvertibleNotesPeriodAfterWhichConvertibleAtTheOptionOfHolder Convertible Notes, Period After Which Convertible at the Option of Holder Represents the period of time after the specified date, after which period of time the notes are convertible at the option of the holder. amrs_PlantManufacturingProductionProductSalesPercentage Plant Manufacturing Production, Product Sales, Percentage Represents the percentage of gross margins from product sales that, if failed to achieve, will reduce the conversion price of the notes. Accumulated deficit Retained Earnings (Accumulated Deficit) amrs_DebtInstrumentConvertibleConversionPriceInterestAccruedRateApplicableToTheFirst180Days Debt Instrument, Convertible, Conversion Price, Interest Accrued, Rate Applicable to the First 180 Days Represents the graduated rate at which interest accrues during the first 180 days, should the Company fail to maintain NASDAQ listing status. Accumulated other comprehensive loss Total accumulated other comprehensive loss amrs_DebtInstrumentConvertibleConversionPriceInterestAccruedThereafter Debt Instrument, Convertible, Conversion Price, Interest Accrued Thereafter Represents the graduated rate at which interest accrues after the first 180 days, should the Company fail to maintain NASDAQ listing status. amrs_DebtInstrumentConvertibleConversionPriceInterestAccruedForDefaults Debt Instrument, Convertible, Conversion Price, Interest Accrued for Defaults Represents the graduated percentage rate at which interest accrues in the case of all defaults other than a failure to maintain NASDAQ listing status. amrs_ConvertibleNotesRecurringTermOfOptionToPrepayAfterInitialPaymentPeriod Convertible Notes, Recurring Term of Option to Prepay After Initial Payment Period Represents the recurring period (every so many months) when the Company has the option to prepay the convertible notes, at the date of payment of the coupon, after the initial payment period. amrs_ConvertibleNotesPeriodOverWhichInterestIsPayableInKind Convertible Notes, Period Over Which Interest is Payable in Kind Represents the period of time, immediately following the issuance of the notes, over which interest is payable in kind. amrs_ConvertibleNotesInitialPrepaymentTerm Convertible Notes, Initial Prepayment Term Represents the period of time from the issuance date and initial interest payment after which the notes may be prepaid. amrs_ConvertibleNotesPurchased Convertible Notes Purchased Represents the value of the Company's convertible notes that were purchased by an entity during the period. Senior Secured Loan Facility [Member] Represents the Senior Secured Loan Facility. amrs_ConvertibleNotesExchangedAndCancelled Convertible Notes Exchanged and Cancelled Represents the value of convertible notes that were exchanged and cancelled during the period. The 2016 Convertible Note [Member] Represents the 2016 Convertible Note. Wolverine [Member] Represents information pertaining to Wolverine Asset Management, LLC (or "Wolverine"). amrs_DebtInstrumentConvertibleConversionPriceInterestAccrued Debt Instrument, Convertible, Conversion Price, Interest Accrued Represents the rate of interest at which interest accrues, compounded annually, assuming no default. Equity Method Investments and Joint Ventures Disclosure [Text Block] amrs_DebtInstrumentConvertibleConversionPriceInterestPeriod Debt Instrument, Convertible, Conversion Price, Interest Period Represents the period over which interest shall be payable in kind and added to principal every year following the issue date and thereafter. Tranche I and Tranche II Notes [Member] Represents information about the Tranche I and Tranche II Notes. amrs_PercentageOfPrincipalAmountOfNotesRequiredToBeRepaidInChangeOfControl Percentage of Principal Amount of Notes, Required to Be Repaid in Change of Control Represents the percentage of the principal amount of the notes which determines the amount at which the purchasers have a right to require repayment in the event of a charge of control of the Company. Rule 144A Related Party Convertible Notes [Member] Represents information about the Rule 144A related party convertible notes. amrs_CertainFarneseneProductionAssetsPledgedAsCollateralForLoans Certain Farnesene Production Assets Pledged as Collateral for Loans Represents certain farnesene production assets pledged by the Company as collateral for loans. Foris Ventures, LLC [Member] Represents information regarding the Foris Ventures, LLC.(an entity affiliated with director John Doerr of Kleiner Perkins Caufield & Byers, a current stockholder.) Class of Warrant or Right [Domain] Banco Pine [Member] Represents information about Banco Pine S.A. (or "Banco Pine"). Class of Warrant or Right [Axis] amrs_DebtInstrumentPeriodOfInterestOnlyQuarterlypayments Debt Instrument, Period of Interest Only QuarterlyPayments Represents the period over which the Company is required to pay interest only on a quarterly basis. us-gaap_ClassOfWarrantOrRightExercisePriceOfWarrantsOrRights1 Class of Warrant or Right, Exercise Price of Warrants or Rights Nossa Caixa [Member] Represents information about Nossa Caixa Desenvolvimento (or "Nossa Caixa"). Foreign currency translation adjustment, net of tax Total Funding Warrant [Member] Represents funding warrant. amrs_AdditionalExportFinancingAgreement Additional Export Financing Agreement Represents the additional export financing agreement amount. us-gaap_ClassOfWarrantOrRightOutstanding Class of Warrant or Right, Outstanding Changes in assets and liabilities: Total R&D Warrant [Member] Represents R&D warrant issued to Total. BRAZIL us-gaap_OtherNoncashIncomeExpense Other non-cash expenses amrs_ClassOfWarrantOrRightNumeratorOne Class of Warrant or Right, Numerator One Represents a numerator part of the fraction used in a calculation with additional shares in excess of 2,000,000. us-gaap_ClassOfWarrantOrRightNumberOfSecuritiesCalledByWarrantsOrRights Class of Warrant or Right, Number of Securities Called by Warrants or Rights Temasek Warrant 1 [Member] Represents first warrant issued to Temasek. amrs_ClassOfWarrantOrRightNumeratorTwo Class of Warrant or Right, Numerator Two Represents numerator of a fraction used in calculation with the number of any additional shares for which certain other outstanding convertible promissory notes may become exercisable as a result of a reduction to the conversion price of such notes. Total financial assets amrs_ClassOfWarrantOrRightDenominatorOne Class of Warrant or Right, Denominator One Represents a denominator part of the fraction used to calculate additional shares in excess of 2,000,000. Temasek Warrant Three [Member] Represents warrant three issued to Temasek. amrs_ClassOfWarrantOrRightDenominatorTwo Class of Warrant or Right, Denominator Two Represents denominator of a fraction used in calculation with the number of any additional shares for which certain other outstanding convertible promissory notes may become exercisable as a result of a reduction to the conversion price of such notes. amrs_ClassOfWarrantOrRightCommonStockSharesUsedInCalculation Class of Warrant or Right, Common Stock Shares Used In Calculation Number of shares of common stock used to calculate number of securities into which the class of warrant or right may be converted. amrs_ClassOfWarrantOrRightThresholdNumberOfSecurities Class of Warrant or Right, Threshold Number of Securities Represents threshold number of shares the excess of which is included in additional shares into which the class of warrant or right may be converted. Statement of Comprehensive Income [Abstract] amrs_ConvertibleDebtLengthOfTimeFromDateOfIssuanceThreshold Convertible Debt, Length of Time from Date of Issuance, Threshold Represents the length of time that thresholds are valid for the convertible debt. Threshold 2 [Member] Represents the second threshold of a convertible debt conversion feature. Exchange Warrants [Member] Represents Temasek Warrants and Total Warrants combined. If Total R&D Warrant is Exercised in Full [Member] Represents a condition for warrant exercise. The 2013 Warrant [Member] Represents warrants issued to Temasek in October 2013. Money market funds June 2016 Private Placement [Member] Represents the June 2016 Private Placement purchase agreement. Total derivative liabilities Rule 144A Convertible Notes [Member] Represents Rule 144A Convertible Notes. amrs_NumberOfSeniorLoanAgreements Number of Senior Loan Agreements Represents the number of senior loan agreements entered during the period. us-gaap_ShareBasedCompensation Stock-based compensation Related Party and Non-Related Party Convertible Debt [Member] Represents related party and non-related party convertible debt. American Refining Group [Member] Represents the legal entity, American Refining Group. amrs_CollaborationAgreementAutomaticRenewalPeriod Collaboration Agreement, Automatic Renewal Period Represents the length of the automatic renewal of the collaboration agreement. us-gaap_AmortizationOfDebtDiscountPremium Amortization of debt discount and issuance costs Common stock - $0.0001 par value, 500,000,000 and 400,000,000 shares authorized as of September 30, 2016 and December 31, 2015, respectively; 253,364,428 and 206,130,282 shares issued and outstanding as of September 30, 2016 and December 31, 2015, respectively us-gaap_TableTextBlock Notes Tables amrs_SemiAnnualInstallmentsAmount Semi Annual Installments, Amount Represents the amount of the semi annual installments paid to the company in accordance with the agreement. Ginkgo Bioworks [Member] Represents the Ginkio Bioworks organization. Common stock, shares issued (in shares) Common stock, shares authorized (in shares) Depreciation and amortization Depreciation, Depletion and Amortization us-gaap_CommonStockSharesSubscriptions Common Stock, Value, Subscriptions Common stock, par value (in dollars per share) Collaborative Arrangement Disclosure [Text Block] Fair value of swap obligations Preferred stock - $0.0001 par value, 5,000,000 shares authorized, none issued and outstanding Preferred stock, shares issued (in shares) us-gaap_ContractualObligation Contractual Obligation Adjustments to reconcile net loss to net cash used in operating activities: Preferred stock, shares authorized (in shares) Preferred stock, par value (in dollars per share) Contractual obligations to contract manufacturers us-gaap_PurchaseObligation Purchase Obligation us-gaap_PurchaseObligationDueInSecondYear Purchase Obligation, Due in Second Year Cash paid for interest us-gaap_OperatingLeasesFutureMinimumPaymentsDue Total future minimum lease payments us-gaap_OperatingLeasesFutureMinimumPaymentsDueThereafter Thereafter us-gaap_OperatingLeasesFutureMinimumPaymentsDueInFourYears 2019 us-gaap_OperatingLeasesFutureMinimumPaymentsDueInFiveYears 2020 us-gaap_OperatingLeasesFutureMinimumPaymentsDueInTwoYears 2017 us-gaap_OperatingLeasesFutureMinimumPaymentsDueInThreeYears 2018 us-gaap_OperatingLeasesFutureMinimumPaymentsDueCurrent 2016 (remaining three months) us-gaap_DerivativeFixedInterestRate Derivative, Fixed Interest Rate us-gaap_ProceedsFromCollaborators Proceeds from Collaborators Interest Rate Swap [Member] Noncontrolling interest Balance, noncontrolling interest Balance, noncontrolling interest us-gaap_DerivativeGainLossOnDerivativeNet Derivative, Gain (Loss) on Derivative, Net Additional paid-in capital Private placement issuance costs Cost incurred directly with the issuance of common stock in non cash financing activities. us-gaap_ProceedsFromFeesReceived Proceeds from Fees Received Stockholders’ deficit: Operating activities Statement [Line Items] Fair market value of compound embedded derivative liabilities AOCI Attributable to Parent [Member] Contingently redeemable common stock us-gaap_Liabilities Total liabilities Commitments and contingencies (Note 6) Fair Value, Inputs, Level 2 [Member] Fair Value, Inputs, Level 3 [Member] Fair Value Hierarchy [Domain] Fair Value, Inputs, Level 1 [Member] Fair Value, Hierarchy [Axis] Amyris and Cosan U.S. [Member] Represents information pertaining to both Amyris and Cosan U.S. us-gaap_DerivativeLiabilities Derivative Liability amrs_NumberOfSeniorLoansExchangedToEquityInterest Number of Senior Loans Exchanged to Equity Interest Represents the number of senior loans that have been exchanged to equity interest according to the agreement between parties. Givaudan International, SA [Member] Represents Givaudan International, SA. us-gaap_InterestPayableCurrentAndNoncurrent Interest Payable amrs_ExportFundingAgreementTerm Export Funding Agreement Term Represents the term of the export financing agreement. amrs_ExportFinancingAgreement Export Financing Agreement Represents the amount of borrowings under an export financing agreement as of a certain date. UNITED STATES Noncontrolling Interest [Member] us-gaap_StockholdersEquity Total Amyris, Inc. stockholders’ deficit Retained Earnings [Member] Options Exercisable Number Options (in shares) Options Outstanding Weighted-Average Exercise Price (in dollars per share) Options Outstanding Weighted- Average Remaining Contractual Life Additional Paid-in Capital [Member] Options Outstanding Number (in shares) Exercise Price, Upper (in dollars per share) Common Stock [Member] Exercise Price, Lower (in dollars per share) Equity Components [Axis] Exercise Price Range [Axis] Equity Component [Domain] Share-based Compensation, Shares Authorized under Stock Option Plans, Exercise Price Range [Domain] Schedule of Share-based Compensation, Shares Authorized under Stock Option Plans, by Exercise Price Range [Table Text Block] us-gaap_ShareBasedCompensationArrangementByShareBasedPaymentAwardFairValueAssumptionsRiskFreeInterestRate Risk-free interest rate us-gaap_LongTermDebt Long-term Debt 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2015, weighted average remaining contractual life Balance Sheet Location [Axis] Exercisable at September 30, 2016 (in shares) us-gaap_ShareBasedCompensationArrangementByShareBasedPaymentAwardOptionsExercisesInPeriodTotalIntrinsicValue Share-based Compensation Arrangement by Share-based Payment Award, Options, Exercises in Period, Intrinsic Value Outstanding, aggregate intrinsic value Outstanding, aggregate intrinsic value Outstanding, weighted average remaining contractual life Selling, General and Administrative Expenses [Member] us-gaap_BridgeLoan Bridge Loan us-gaap_ShareBasedCompensationArrangementByShareBasedPaymentAwardOptionsOutstandingWeightedAverageExercisePrice Outstanding, weighted average exercise price (in dollars per share) Outstanding, weighted average exercise price (in dollars per share) Options cancelled, weighted average exercise price (in dollars per share) amrs_CollaborativeAgreementNoticeRequirementBeforeTerminatingCurrentTermDueToLackOfCommitment Collaborative Agreement, Notice Requirement before Terminating Current Term Due to Lack of Commitment Represents number of days required in which either party can provide written notice of termination prior to expiration of current term if either party has been repeatedly unable to perform or meet its commitments under the collaboration agreement. Options granted, weighted average exercise price (in dollars per share) amrs_CollaborativeAgreementNoticeRequirementBeforeTerminatingCurrentTermMinimum Collaborative Agreement, Notice Requirement before Terminating Current Term, Minimum Represents minimum number of days required in which either party can provide written notice of termination prior to expiration of current term. Options exercised, weighted average exercise price (in dollars per share) Income Statement Location [Domain] Research and Development Expense [Member] Income Statement Location [Axis] Maximum [Member] Minimum [Member] Range [Axis] Range [Domain] us-gaap_ShareBasedCompensationArrangementByShareBasedPaymentAwardOptionsOutstandingNumber Outstanding (in shares) Outstanding (in shares) Supplemental Balance Sheet Disclosures [Text Block] Financial Instruments Disclosure [Text Block] October 2016 Private Placement [Member] Represents the October 2016 Private Placement purchase agreement. Forth Amendment of Senior Secured Loan Facility [Member] Represents information regarding the forth amendment of Senior Secured Loan Facility between certain of company's subsidiaries and Stegodon. October 2016 Convertible Note [Member] Represents information regarding the October 2016 Convertible Note offering. amrs_DebtInstrumentMonthlyRepaymentOfOutstandingDebtAllowedMaximum Debt Instrument, Monthly Repayment of Outstanding Debt Allowed, Maximum Represents the maximum monthly repayment of outstanding debt that is allowed based on the covenant. Products and Services [Domain] Commitments Contingencies and Guarantees [Text Block] Products and Services [Axis] Europe [Member] us-gaap_EmployeeServiceShareBasedCompensationNonvestedAwardsTotalCompensationCostNotYetRecognized Employee Service Share-based Compensation, Nonvested Awards, Compensation Cost Not yet Recognized us-gaap_EmployeeServiceShareBasedCompensationNonvestedAwardsTotalCompensationCostNotYetRecognizedPeriodForRecognition1 Employee Service Share-based Compensation, Nonvested Awards, Compensation Cost Not yet Recognized, Period for Recognition Asia [Member] Award Type [Axis] Geographical [Axis] Equity Award [Domain] Geographical [Domain] Scenario, Forecast [Member] Scenario, Unspecified [Domain] Scenario [Axis] Schedule of Employee Service Share-based Compensation, Allocation of Recognized Period Costs [Table Text Block] Disclosure of Compensation Related Costs, Share-based Payments [Text Block] us-gaap_MinorityInterestDecreaseFromRedemptions Acquisition of noncontrolling interest Statement [Table] us-gaap_NetIncomeLossAttributableToNoncontrollingInterest Income attributable to noncontrolling interest Other liabilities Income Statement [Abstract] us-gaap_DueToRelatedPartiesNoncurrent Related party debt New Accounting Principles, Early Adoption [Domain] us-gaap_ComprehensiveIncomeNetOfTaxAttributableToNoncontrollingInterest Loss attributable to noncontrolling interest New Accounting Pronouncement, Early Adoption [Axis] Derivative liabilities Derivative Contract [Domain] Derivative Instrument [Axis] Deferred rent, net of current portion Convertible Debt [Member] Deferred revenue, net of current portion Letter of Credit [Member] Loans Payable [Member] us-gaap_ComprehensiveIncomeNetOfTaxIncludingPortionAttributableToNoncontrollingInterest Total comprehensive loss Net loss Net loss Capital lease obligation, net of current portion Long-term portion Long-term debt, net of current portion us-gaap_IncomeLossFromContinuingOperationsIncludingPortionAttributableToNoncontrollingInterest Net loss before loss from investments in affiliates us-gaap_IncomeTaxExpenseBenefit Income Tax Expense (Benefit) Provision for income taxes Loss from investments in affiliates Income (Loss) from Equity Method Investments Loss from investments in affiliates us-gaap_IncomeLossFromContinuingOperationsBeforeIncomeTaxesMinorityInterestAndIncomeLossFromEquityMethodInvestments Loss before income taxes and loss from investments in affiliates Gain (loss) from change in fair value of derivative instruments us-gaap_LiabilitiesCurrent Total current liabilities Currency interest rate swap Other us-gaap_DueToRelatedPartiesCurrent Related party debt SMA Industria Quimica S.A. [Member] Represents information about the Joint Venture SMA Industria Quimica (or "SMA") to build a production facility in Brazil. Chattel Mortgage [Member] Represents information pertaining to a chattel mortgage. Fair value swap short-term Nossa Caixa and Banco Pine Agreements [Member] Represents information about both the Nossa Caixa loan agreement and the Banco Pine loan agreement. Banco ABC Brasil S.A. (ABC) [Member] Represents the bank Banco ABC Brasil S.A. also known as (ABC). Deferred rent, current portion us-gaap_DeferredRevenueCurrent Deferred revenue us-gaap_UnrealizedGainLossOnDerivatives Change in fair value of derivative instruments ABC Brasil Agreement [Member] Represents information pertaining to the ABC Brasil export financing agreement. Currency interest rate swap derivative liability Debt, current portion Capital lease obligation, current portion Less: current portion Counterparty Name [Domain] amrs_CollaborationAgreementPerformanceOfTheCollaborationEvaluationPeriod Collaboration Agreement, Performance of the Collaboration, Evaluation Period Represents the period in which parties will evaluate the performance of the collaboration according to the agreement. Unsecured Senior Convertible Promissory Notes [Member] Represents information pertaining to unsecured senior convertible promissory notes. Counterparty Name [Axis] us-gaap_DefinedContributionPlanEmployerDiscretionaryContributionAmount Defined Contribution Plan, Employer Discretionary Contribution Amount JV Agreements [Member] Represents information about the "JV agreements." us-gaap_DefinedContributionPlanEmployerMatchingContributionPercent Defined Contribution Plan, Employer Matching Contribution, Percent of Employees' Gross Pay Schedule Of Future Minimum Payments For Lease Obligations [Table Text Block] Tabular disclosure of future minimum payments for lease obligations. us-gaap_DefinedContributionPlanMaximumAnnualContributionsPerEmployeePercent Defined Contribution Plan, Maximum Annual Contributions Per Employee, Percent amrs_CapitalLeasesAndOperatingLeasesFutureMinimumPaymentsDueNextTwelveMonths 2016 (remaining three months) Represents the future minimum payments due in the next twelve months under capital leases and operating leases. amrs_CapitalLeasesAndOperatingLeasesFutureMinimumPaymentsDueDueInTwoYears 2017 Represents the future minimum payments due in two years under capital leases and operating leases. amrs_CapitalLeasesAndOperatingLeasesFutureMinimumPaymentsDueDueInFourYears 2019 Represents the future minimum payments due in four years under capital leases and operating leases. amrs_CapitalLeasesAndOperatingLeasesFutureMinimumPaymentsDueDueInThreeYears 2018 Represents the future minimum payments due in three years under capital leases and operating leases. amrs_CapitalLeasesAndOperatingLeasesFutureMinimumPaymentsDueDueInFiveYears 2020 Represents the future minimum payments due in five years under capital leases and operating leases. amrs_CapitalLeasesAndOperatingLeasesFutureMinimumPaymentsDue Total future minimum lease payments Represents the total future minimum payments due under capital leases and operating leases. amrs_CapitalLeasesAndOperatingLeasesFutureMinimumPaymentsDueDueThereafter Thereafter Represents the future minimum payments due after five years under capital leases and operating leases. Tax-related liabilities Payroll and related expenses Accounts payable Accrued and other current liabilities Total accrued and other current liabilities Accrued interest us-gaap_LeaseAndRentalExpense Operating Leases, Rent Expense Subsequent Event [Member] Subsequent Event Type [Axis] Subsequent Event Type [Domain] Novvi LLC [Member] Investee by the name of Novvi LLC. Subsequent Events [Text Block] Accrued vacation Accretion of debt discount Professional services us-gaap_GainsLossesOnExtinguishmentOfDebt Gain (Loss) on Extinguishment of Debt Loss upon extinguishment of debt Current liabilities: us-gaap_Assets Total assets Noncontrolling Interest [Table Text Block] Schedule of noncontrolling interest. In Process Research and Development, Indefinite [Member] In process investigation of new knowledge useful in developing new product or service or new process or technique or improvement to existing product or process, and translation of knowledge into plan or design for new product or process or for improvement to existing product or process. Treated as indefinite intangible assets. Draths Corporation [Member] Represents Draths Corporation. Acquired Licenses and Permits [Member] Represents information about acquired licenses and permits. amrs_GoodwillAndIntangibleAssetsGross Represents gross intangible assets (both definite- and indefinite-lived) and goodwill. us-gaap_ImpairmentOfIntangibleAssetsIndefinitelivedExcludingGoodwill In-process research and development us-gaap_SharesIssuedPricePerShare Shares Issued, Price Per Share amrs_IntangibleAssetsImpairmentAndAccumulatedAmortization Accumulated amount of amortization and impairment of assets, excluding financial assets and goodwill, lacking physical substance. Stockholders' Equity Note Disclosure [Text Block] Liabilities Assets amrs_GoodwillAndIntangibleAssetsNet Represents the carrying value of intangible assets and goodwill, net of accumulated amortization. us-gaap_IntangibleAssetsNetExcludingGoodwill In-process research and development, net carrying value us-gaap_FiniteLivedIntangibleAssetsAccumulatedAmortization Acquired licenses and permits Consolidation, Variable Interest Entity, Policy [Policy Text Block] Temasek Warrant 2 [Member] Represents second warrant issued to Temasek. Temasek [Member] Represents Temasek. Variable Interest Entity, Primary Beneficiary [Member] Variable Interest Entities [Axis] Variable Interest Entity, Classification [Domain] Schedule of Variable Interest Entities [Table Text Block] Related party accounts receivable allowace A valuation allowance for trade and other receivables due to an Entity from related parties within one year (or the normal operating cycle, whichever is longer) that are expected to be uncollectible. us-gaap_Goodwill Goodwill, net carrying value us-gaap_AccumulatedDepreciationDepletionAndAmortizationPropertyPlantAndEquipment Accumulated Depreciation, Depletion and Amortization, Property, Plant, and Equipment Less: accumulated depreciation and amortization Gates Foundation Purchase Agreement [Member] A security purchase agreement with the Gates Foundation. Expected to vest after September 30, 2016 (in shares) Represents the number of equity instruments, other than options, that are expected to vest after the balance sheet date. Property, plant and equipment, net Property, plant and equipment, net Property, plant and equipment Property, Plant and Equipment, Gross amrs_RedemptionBasePrice Redemption Base Price The base price that the Company is required to redeem its stock if the Company defaults in its obligation to use the from the Gates Foundation Investment. us-gaap_GainLossOnDispositionOfAssets1 (Gain)/loss on disposal of property, plant and equipment Long-Lived Assets Expected to vest after September 30, 2015, weighted average grant-date fair value (in dollars per share) Represents the weighted average grant date fair value of equity options, other than options, expected to vest. amrs_CompoundAnnualReturn Compound Annual Return The rate of annual return added on the redemption base price when the Company redeems its stock. Expected to vest after September 30, 2015, weighted average remaining contractual life Weighted average remaining contractual term for fully vested and expected to vest equity instruments other than options outstanding, in 'PnYnMnDTnHnMnS' format, for example, 'P1Y5M13D' represents the reported fact of one year, five months, and thirteen days. amrs_WorkingCapital Working Capital Represents the difference between the company's current assets and current liabilities. Common Stock Subject to Repurchase [Member] Represents the period-end number of common stock subject to repurchase. Derivative Instruments, Gain (Loss) [Table Text Block] Sales, general and administrative Other Area [Member] Represents the other geographic area. Conversion/extinguishment of convertible notes Fair value of financial instrument classified as a liability measured using unobservable inputs that reflect the entity's own assumption about the assumptions market participants would use in pricing related to addition (derecognition) on convertible notes. us-gaap_DisclosureTextBlockAbstract Notes to Financial Statements Withholding tax related to conversion of related party notes The amount of accrued withholding tax related to the conversion of related party notes. Third Hercules Amendment [Member] Represents the third amendment of the Hercules Loan agreement entered into in November 2015. amrs_DebtInstrumentAdditionalAmountRequired Debt Instrument, Additional Amount Required Represents the additional amount the company is required to borrow. Portion of Debt Costs Owed in Connection with Expired Facility [Member] Represents the portion of debt issuance costs which is owed in connection with the expired 15 million facility under the Second Amendment of the Hercules Agreement. Raw materials amrs_DefinedContributionPlanMinimumServiceVestingPeriod Defined Contribution Plan, Minimum Service, Vesting Period Represents the minimum period of employee service before employees are eligible to participate in the defined contribution plan (such as a 401(k) plan). Work-in-process Portion of Debt Costs Related to the Third Hercules Amendment [Member] Represents the portion of debt issuance costs related to the Third Hercules Amendment. amrs_SegmentReportingNumberOfBusinessActivities Segment Reporting, Number Of Business Activities The number of business activities. Private Placement February 2016 [Member] Represents the private placement in 2016. Finished goods Gain from change in fair value of derivative instruments The amount of gain (loss) from change in fair value of derivative instruments. Use of Estimates, Policy [Policy Text Block] Convertible Promissory Notes [Member] Information related to convertible promissory notes. New Accounting Pronouncements, Policy [Policy Text Block] Net loss attributable to Amyris, Inc. common stockholders after assumed conversion The amount of net income (loss) attributable to Amyris, Inc. common stockholders after assumed conversion. Convertible Senior Notes, 9.5% [Member] Represents the 9.5% Convertible Senior Notes. us-gaap_PriorPeriodReclassificationAdjustment Prior Period Reclassification Adjustment Research and development Stock Options to Purchase Common Stock [Member] Information related to stock options to purchase common stock. amrs_DebtInstrumentConvertibleConversionRatePrincipleAmount Debt Instrument, Convertible, Conversion Rate, Principle Amount The amount of convertible debt principal per which a set number of shares are issuable upon debt conversion. Exercise Price Range 1 [Member] us-gaap_NumberOfOperatingSegments Number of Operating Segments amrs_DebtInstrumentConvertibleConversionRateShares Debt Instrument, Convertible, Conversion Rate, Shares The number of shares per a set principal amount that are issuable upon conversion of convertible debt. Convertible Senior Notes, 6.5% [Member] Convertible Senior Notes, 6.5% [Member] Exercise Price Range 3 [Member] Exercise Price Range 2 [Member] Convertible Senior Notes, 3% [Member] Represents the 3% Convertible Senior Notes. Exercise Price Range 5 [Member] Exercise Price Range 4 [Member] EX-101.PRE 16 amrs-20160930_pre.xml XBRL PRESENTATION FILE XML 17 R1.htm IDEA: XBRL DOCUMENT v3.5.0.2
Document And Entity Information - shares
9 Months Ended
Sep. 30, 2016
Oct. 31, 2016
Document Information [Line Items]    
Entity Registrant Name AMYRIS, INC.  
Entity Central Index Key 0001365916  
Trading Symbol amrs  
Current Fiscal Year End Date --12-31  
Entity Filer Category Accelerated Filer  
Entity Current Reporting Status Yes  
Entity Voluntary Filers No  
Entity Well-known Seasoned Issuer No  
Entity Common Stock, Shares Outstanding (in shares)   263,016,079
Document Type 10-Q  
Document Period End Date Sep. 30, 2016  
Document Fiscal Year Focus 2016  
Document Fiscal Period Focus Q3  
Amendment Flag false  
XML 18 R2.htm IDEA: XBRL DOCUMENT v3.5.0.2
Condensed Consolidated Balance Sheets (Unaudited) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Current assets:    
Cash and cash equivalents $ 582 $ 11,992
Restricted cash 279 216
Short-term investments 1,713 1,520
Accounts receivable, net of allowance of $23 and $479, respectively 5,707 4,004
Related party accounts receivable, net of allowance of $478 and $490, respectively 651 1,176
Inventories, net 7,899 10,886
Prepaid expenses and other current assets 4,286 4,583
Total current assets 21,117 34,377
Property, plant and equipment, net 63,093 59,797
Restricted cash 958 957
Equity and loans in affiliates 34 68
Other assets 13,657 10,357
Goodwill and intangible assets 560 560
Total assets 99,419 106,116
Current liabilities:    
Accounts payable 13,756 7,943
Deferred revenue 7,105 6,509
Accrued and other current liabilities 34,912 24,268
Capital lease obligation, current portion 942 523
Debt, current portion 48,559 36,281
Related party debt 26,457
Total current liabilities 131,731 75,524
Capital lease obligation, net of current portion 56 176
Long-term debt, net of current portion 63,615 72,854
Related party debt 37,000 42,839
Deferred rent, net of current portion 9,123 9,682
Deferred revenue, net of current portion 4,469 4,469
Derivative liabilities 6,711 51,439
Other liabilities 4,212 7,589
Total liabilities 256,917 264,572
Contingently redeemable common stock 5,000
Commitments and contingencies (Note 6)
Stockholders’ deficit:    
Preferred stock - $0.0001 par value, 5,000,000 shares authorized, none issued and outstanding
Common stock - $0.0001 par value, 500,000,000 and 400,000,000 shares authorized as of September 30, 2016 and December 31, 2015, respectively; 253,364,428 and 206,130,282 shares issued and outstanding as of September 30, 2016 and December 31, 2015, respectively 25 21
Additional paid-in capital 963,075 926,216
Accumulated other comprehensive loss (39,801) (47,198)
Accumulated deficit (1,085,683) (1,037,104)
Total Amyris, Inc. stockholders’ deficit (162,384) (158,065)
Noncontrolling interest (114) (391)
Total stockholders' deficit (162,498) (158,456)
Total liabilities, mezzanine equity and stockholders' deficit $ 99,419 $ 106,116
XML 19 R3.htm IDEA: XBRL DOCUMENT v3.5.0.2
Condensed Consolidated Balance Sheets (Unaudited) (Parentheticals) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Allowance for doubtful accounts $ 23 $ 479
Related party accounts receivable allowace $ 478 $ 490
Preferred stock, par value (in dollars per share) $ 0.0001 $ 0.0001
Preferred stock, shares authorized (in shares) 5,000,000 5,000,000
Preferred stock, shares issued (in shares) 0 0
Preferred stock, shares outstanding (in shares) 0 0
Common stock, par value (in dollars per share) $ 0.0001 $ 0.0001
Common stock, shares authorized (in shares) 500,000,000 400,000,000
Common stock, shares issued (in shares) 253,364,428 206,130,282
Common stock, shares outstanding (in shares) 253,364,428 206,130,282
XML 20 R4.htm IDEA: XBRL DOCUMENT v3.5.0.2
Condensed Consolidated Statements of Operations (Unaudited) - USD ($)
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Revenues        
Renewable product sales $ 5,430,000 $ 4,226,000 $ 13,493,000 $ 9,661,000
Related party renewable product sales 1,390,000 2,000 1,390,000 2,000
Total product sales 6,820,000 4,228,000 14,883,000 9,663,000
Grants and collaborations revenue 19,724,000 4,363,000 30,071,000 14,643,000
Total revenues 26,544,000 8,591,000 44,954,000 24,306,000
Cost and operating expenses        
Cost of products sold 14,876,000 8,455,000 33,945,000 26,057,000
Loss on purchase commitments and impairment of property, plant and equipment 7,259,000 7,259,000
Research and development 12,315,000 10,343,000 37,397,000 33,521,000
Sales, general and administrative 11,381,000 14,103,000 35,055,000 42,859,000
Total cost and operating expenses 38,572,000 40,160,000 106,397,000 109,696,000
Loss from operations (12,028,000) (31,569,000) (61,443,000) (85,390,000)
Other income (expense):        
Interest income 68,000 61,000 207,000 205,000
Interest expense (7,927,000) (16,559,000) (25,989,000) (71,027,000)
Gain (loss) from change in fair value of derivative instruments (786,000) (21,690,000) 41,826,000 (10,268,000)
Gain (Loss) on Extinguishment of Debt (217,000) (5,984,000) (866,000) (5,984,000)
Other income (expense), net 1,334,000 (168,000) (1,912,000) (1,204,000)
Total other income (expense) (7,528,000) (44,340,000) 13,266,000 (88,278,000)
Loss before income taxes and loss from investments in affiliates (19,556,000) (75,909,000) (48,177,000) (173,668,000)
Provision for income taxes (148,000) (119,000) (402,000) (355,000)
Net loss before loss from investments in affiliates (19,704,000) (76,028,000) (48,579,000) (174,023,000)
Loss from investments in affiliates   (660,000) (2,089,000)
Net loss (19,704,000) (76,688,000) (48,579,000) (176,112,000)
Income attributable to noncontrolling interest 24,000 78,000
Net loss attributable to Amyris, Inc. common stockholders $ (19,704,000) $ (76,664,000) $ (48,579,000) $ (176,034,000)
Net loss per share attributable to common stockholders:        
Basic (in dollars per share) $ (0.08) $ (0.55) $ (0.21) $ (1.76)
Diluted (in dollars per share) $ (0.08) $ (0.55) $ (0.28) $ (1.76)
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock:        
Basic (in shares) 249,190,339 140,374,297 226,772,159 100,103,007
Diluted (in shares) 249,190,339 140,374,297 268,375,111 100,103,007
XML 21 R5.htm IDEA: XBRL DOCUMENT v3.5.0.2
Condensed Consolidated Statements of Comprehensive Loss (Unaudited) - USD ($)
$ in Thousands
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Net loss $ (19,704) $ (76,688) $ (48,579) $ (176,112)
Foreign currency translation adjustment, net of tax (1,884) (10,459) 7,397 (18,562)
Total comprehensive loss (21,588) (87,147) (41,182) (194,674)
Loss attributable to noncontrolling interest   24   78
Foreign currency translation adjustment attributable to noncontrolling interest   (145)   (393)
Comprehensive loss attributable to Amyris, Inc. $ (21,588) $ (87,268) $ (41,182) $ (194,989)
XML 22 R6.htm IDEA: XBRL DOCUMENT v3.5.0.2
Condensed Consolidated Statements of Stockholders' Deficit and Mezzanine Equity (Unaudited) - 9 months ended Sep. 30, 2016 - USD ($)
$ in Thousands
Common Stock [Member]
Additional Paid-in Capital [Member]
Retained Earnings [Member]
AOCI Attributable to Parent [Member]
Noncontrolling Interest [Member]
Mezzanine Equity [Member]
Total
Balance (in shares) at Dec. 31, 2015 206,130,282            
Balance at Dec. 31, 2015 $ 21 $ 926,216 $ (1,037,104) $ (47,198) $ (391) $ (158,456)
Issuance of common stock upon exercise of stock options, net of restricted stock (in shares) 134           134
Issuance of common stock upon exercise of stock options, net of restricted stock        
Issuance of common stock upon conversion of debt (in shares) 10,430,815            
Issuance of common stock upon conversion of debt $ 1 9,471       9,471
Issuance of common stock for settlement of debt principal payments (in shares) 30,935,344            
Issuance of common stock for settlement of debt principal payments $ 3 13,506 13,506
Issuance of warrants with debt private placement and collaboration agreements 4,387 4,387
Shares issued from restricted stock settlement (in shares) 1,255,066            
Shares issued from restricted stock settlement   (202)       (202)
Stock-based compensation   5,645       5,645
Contribution upon restructuring of Fuels JV 4,252 4,252
Issuance of contingently redeemable common stock (in shares) 4,385,964            
Issuance of contingently redeemable common stock 5,000
Shares issued upon ESPP purchase (in shares) 226,823            
Shares issued upon ESPP purchase 123 123
Acquisition of noncontrolling interest (323) 277 (46)
Foreign currency translation adjustment       7,397 7,397
Net loss     (48,579)   (48,579)
Balance (in shares) at Sep. 30, 2016 253,364,428            
Balance at Sep. 30, 2016 $ 25 $ 963,075 $ (1,085,683) $ (39,801) $ (114) $ 5,000 $ (162,498)
XML 23 R7.htm IDEA: XBRL DOCUMENT v3.5.0.2
Condensed Consolidated Statements of Cash Flows (Unaudited) - USD ($)
9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Operating activities    
Net loss $ (48,579,000) $ (176,112,000)
Adjustments to reconcile net loss to net cash used in operating activities:    
Depreciation and amortization 8,561,000 9,931,000
(Gain)/loss on disposal of property, plant and equipment (136,000) 121,000
Stock-based compensation 5,645,000 6,964,000
Amortization of debt discount and issuance costs 9,190,000 54,633,000
Loss upon extinguishment of debt 866,000 5,984,000
Loss on purchase commitments and impairment of property, plant and equipment 7,259,000
Change in fair value of derivative instruments (41,826,000) 10,268,000
Loss on foreign currency exchange rates 1,662,000
Loss from investments in affiliates 2,089,000
Other non-cash expenses 416,000 414,000
Changes in assets and liabilities:    
Accounts receivable (1,883,000) 5,161,000
Related party accounts receivable 526,000 (10,000)
Inventories, net 3,868,000 3,306,000
Prepaid expenses and other assets (1,334,000) (3,218,000)
Accounts payable 4,306,000 7,302,000
Accrued and other liabilities 13,552,000 11,430,000
Deferred revenue 343,000 2,666,000
Deferred rent (560,000) (405,000)
Net cash used in operating activities (45,383,000) (52,217,000)
Investing activities    
Purchase of short-term investments (3,073,000) (1,989,000)
Maturities of short-term investments 3,296,000 2,023,000
Change in restricted cash 238,000
Loan to affiliate (1,231,000)
Purchases of property, plant and equipment, net of disposals (719,000) (2,345,000)
Net cash used in investing activities (496,000) (3,304,000)
Financing activities    
Proceeds from exercise of common stock, net of repurchase 123,000 453,000
Employees' taxes paid upon vesting of restricted stock units (202,000) (313,000)
Proceeds from issuance of common stock in private placements, net of issuance costs 25,000,000
Proceeds from issuance of contingently redeemable equity 5,000,000
Principal payments on capital leases (977,000) (594,000)
Proceeds from debt issued, net of discounts and issuance costs 13,275,000 1,607,000
Proceeds from debt issued to related parties 25,000,000 10,850,000
Principal payments on debt (7,442,000) (11,249,000)
Net cash provided by financing activities 34,777,000 25,754,000
Effect of exchange rate changes on cash and cash equivalents (308,000) (1,377,000)
Net decrease in cash and cash equivalents (11,410,000) (31,144,000)
Cash and cash equivalents at beginning of period 11,992,000 42,047,000
Cash and cash equivalents at end of period 582,000 10,903,000
Supplemental disclosures of cash flow information:    
Cash paid for interest 4,679,000 5,859,000
Supplemental disclosures of non-cash investing and financing activities:    
Acquisitions of property, plant and equipment under accounts payable, accrued liabilities and notes payable (1,485,000) (692,000)
Financing of equipment 1,276,000 613,000
Financing of insurance premium under notes payable (315,000) (236,000)
Interest capitalized to debt 2,052,000 6,354,000
Purchase of property, plant and equipment via deposit 24,000 (392,000)
Private placement issuance costs (374,000)
Issuance of common stock upon conversion of debt 9,471,000
Issuance of common stock for settlement of debt principal payments 13,506,000
Cancellation of debt and accrued interest on disposal of interest in affiliate 4,252,000
Non-cash investment in joint venture $ 600,000
XML 24 R8.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 1 - The Company
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Nature of Operations [Text Block]
1. The Company
 
Amyris, Inc. (or "the Company") was incorporated in California on July 17, 2003 and reincorporated in Delaware on June 10, 2010 for the purpose of leveraging breakthroughs in bioscience technology to develop and provide renewable compounds for a variety of markets. The Company is currently applying its industrial synthetic biology platform to engineer, manufacture and sell high performance, low cost products into a variety of consumer and industrial markets, including cosmetics, flavors & fragrances (or "F&F"), solvents and cleaners, polymers, lubricants, healthcare products and fuels, and it is seeking to apply its technology to the development of pharmaceutical products. The Company's first commercialization efforts have been focused on a renewable hydrocarbon molecule called farnesene (Biofene®), which forms the basis for a wide range of products including emollients, flavors and fragrance oils and diesel fuel. While the Company's platform is able to use a wide variety of feedstocks, the Company has focused on Brazilian sugarcane because of its abundance, low cost and relative price stability. The Company has established two principal operating subsidiaries, Amyris Brasil Ltda. (formerly Amyris Brasil S.A., or "Amyris Brasil") for production in Brazil, and Amyris Fuels, LLC (or "Amyris Fuels").
 
The Company's renewable products business strategy is to focus on direct commercialization of specialty products while moving established commodity products into collaboration or joint venture arrangements with leading industry partners. To commercialize its products, the Company must be successful in using its technology to manufacture products at commercial scale and on an economically viable basis (i.e., low per unit production costs) and developing sufficient sales volume for those products to support its operations. The Company's prospects are subject to risks, expenses and uncertainties frequently encountered by companies in this stage of development.
 
Liquidity
 
The Company expects to fund its operations for the foreseeable future with cash and investments currently on hand, cash inflows from collaborations and grants, cash contributions from product sales, and proceeds from new debt and equity financings as well as strategic asset divestments. The Company's planned 2016 and 2017 working capital needs and its planned operating and capital expenditures are dependent on significant inflows of cash from new and existing collaboration partners and from cash generated from renewable product sales, and will also require additional funding from debt or equity financings as well as proceeds from strategic asset divestments.
 
The Company has incurred significant operating losses since its inception and believes that it will continue to incur losses and negative cash flow from operations into at least 2017. As of September 30, 2016, the Company had negative working capital of $110.6 million, an accumulated deficit of $1,085.7 million, and cash, cash equivalents and short term investments of $2.3 million. The Company will need to raise cash from additional financings or strategic asset divestments as early as the fourth quarter of 2016 to support its liquidity needs. These factors raise substantial doubt about the Company’s ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. If the Company is unable to continue as a going concern, it may be unable to meet its obligations under its existing debt facilities, which could result in an acceleration of its obligation to repay all amounts outstanding under those facilities, and it may be forced to liquidate its assets.
 
As of September 30, 2016, the Company's debt, net of discount and issuance costs of $36.1 million, totaled $175.6 million, of which $75.0 million is classified as current. In addition to upcoming debt maturities, the Company's debt service obligations over the next twelve months are significant, including $16.2 million of anticipated cash interest payments. The Company's debt agreements contain various covenants, including certain restrictions on the Company's business that could cause the Company to be at risk of defaults, such as the requirement to maintain unrestricted, unencumbered cash in defined U.S. bank accounts in an amount equal to at least 50% of the principal amount outstanding under its loan facility with Stegodon Corporation (or “Stegodon”), as assignee of Hercules Capital, Inc. As discussed below, in connection with the execution by the Company and Ginkgo Bioworks, Inc., an affiliate of Stegodon, of certain commercial agreements (see Note 8, “Significant Agreements” for further details), on June 29, 2016, the Company received a waiver of compliance with such covenant through October 31, 2016 and on October 6, 2016, the Company and Stegodon entered into an amendment to the loan facility pursuant to which, among other things, Stegodon waived such covenant until the maturity date of the facility. A failure to comply with the covenants and other provisions of the Company’s debt instruments, including any failure to make a payment when required would generally result in events of default under such instruments, which could permit acceleration of such indebtedness. If such indebtedness is accelerated, it would generally also constitute an event of default under the Company’s other outstanding indebtedness, permitting acceleration of such other outstanding indebtedness. Any required repayment of such indebtedness as a result of acceleration or otherwise would consume current cash on hand such that the Company would not have those funds available for use in its business or for payment of other outstanding indebtedness. Please refer to Note 5, “Debt”, Note 6, “Commitments and Contingencies” and Note 18, “Subsequent Events” for further details regarding the Company's debt service obligations and commitments. The Company also has significant outstanding debt and contractual obligations related to capital and operating leases, as well as purchase commitments.
 
In addition to the need for financing described above, the Company may take the following actions to support its liquidity needs through the remainder of 2016 and into 2017:
 
Effect significant headcount reductions, particularly with respect to employees not connected to critical or contracted activities across all functions of the Company, including employees involved in general and administrative, research and development, and production activities.
 
Shift focus to existing products and customers with significantly reduced investment in new product and commercial development efforts.
 
Reduce production activity at the Company’s Brotas manufacturing facility to levels only sufficient to satisfy volumes required for product revenues forecast from existing products and customers.
 
Reduce expenditures for third party contractors, including consultants, professional advisors and other vendors.
 
Reduce or delay uncommitted capital expenditures, including non-essential facility and lab equipment, and information technology projects.
 
Closely monitor the Company’s working capital position with customers and suppliers, as well as suspend operations at pilot plants and demonstration facilities.
 
Implementing this plan could have a negative impact on the Company's ability to continue its business as currently contemplated, including, without limitation, delays or failures in its ability to:
 
Achieve planned production levels;
 
Develop and commercialize products within planned timelines or at planned scales; and
 
Continue other core activities.
 
Furthermore, any inability to scale-back operations as necessary, and any unexpected liquidity needs, could create pressure to implement more severe measures. Such measures could have an adverse effect on the Company's ability to meet contractual requirements, including obligations to maintain manufacturing operations, and increase the severity of the consequences described above.
XML 25 R9.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 2 - Summary of Significant Accounting Policies
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Significant Accounting Policies [Text Block]
2. Summary of Significant Accounting Policies
 
Basis of Presentation
 
The accompanying interim condensed consolidated financial statements have been prepared in accordance with the accounting principles generally accepted in the United States of America (or “GAAP”) and with the instructions for Form 10-Q and Regulation S-X. Accordingly, they do not include all of the information and notes required for complete financial statements. These interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto contained in the Company’s Form 10-K for the fiscal year ended December 31, 2015 as filed with the Securities and Exchange Commission (or the “SEC”) on March 30, 2016. The unaudited condensed consolidated financial statements include the accounts of the Company and its consolidated subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.
 
The Company uses the equity method to account for investments in companies, if its investments provide it with the ability to exercise significant influence over operating and financial policies of the investee. Consolidated net income or loss includes the Company’s proportionate share of the net income or loss of these companies. Judgments made by the Company regarding the level of influence over each equity method investment include considering key factors such as the Company’s ownership interest, representation on the board of directors, participation in policy-making decisions and material intercompany transactions.
 
Principles of Consolidation
 
The condensed consolidated financial statements of the Company include the accounts of Amyris, Inc., its subsidiaries and two consolidated variable interest entities (or “VIEs”), with respect to which the Company is considered the primary beneficiary, after elimination of intercompany accounts and transactions. Disclosure regarding the Company’s participation in the VIEs is included in Note 7, "Joint Ventures and Noncontrolling Interest."
 
Variable Interest Entities
 
The Company has interests in joint venture entities that are VIEs. Determining whether to consolidate a VIE requires judgment in assessing (i) whether an entity is a VIE and (ii) if the Company is the entity’s primary beneficiary and thus required to consolidate the entity. To determine if the Company is the primary beneficiary of a VIE, the Company evaluates whether it has (i) the power to direct the activities that most significantly impact the VIE’s economic performance and (ii) the obligation to absorb losses or the right to receive benefits of the VIE that could potentially be significant to the VIE. The Company’s evaluation includes identification of significant activities and an assessment of its ability to direct those activities based on governance provisions and arrangements to provide or receive product and process technology, product supply, operations services, equity funding and financing and other applicable agreements and circumstances. The Company’s assessment of whether it is the primary beneficiary of its VIEs requires significant assumptions and judgment.
 
Use of Estimates
 
In preparing the unaudited condensed consolidated financial statements, management must make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the unaudited condensed consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
 
Unaudited Interim Financial Information
 
The accompanying interim condensed consolidated financial statements and related disclosures are unaudited, have been prepared on the same basis as the annual consolidated financial statements, except for the impact of adoption of certain accounting standards as described below, and in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary for a fair statement of the results of operations for the periods presented. In the quarter ended March 31, 2016 the Company adopted Accounting Standards Update (“ASU”) No. 2015-01,
Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items,
ASU No. 2015-02,
Consolidation
(Topic 810), ASU No. 2015-03,
Interest - Imputation of Interest
(Subtopic 835-30):
Simplifying the Presentation of Debt Issuance Costs
, ASU 2015-05,
Intangibles - Goodwill and Other - Internal-Use Software
(Subtopic 350-40) and ASU No. 2015-15,
Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements
. Refer to Note 5. "Debt" for the impact of adoption of ASU No. 2015-03 on the Company's condensed consolidated financial statements. None of the other ASU’s adopted had a material impact on the Company’s condensed consolidated financial statements.
 
The year-end condensed consolidated balance sheet data was derived from audited financial statements, but does not include all disclosures required by GAAP. The condensed consolidated results of operations for any interim period are not necessarily indicative of the results to be expected for the full year or for any other future year or interim period.
 
Recent Accounting Pronouncements
 
In October 2016, the Financial Accounting Standards Board (or “FASB”) issued
ASU 2016-16,
Intra-Entity Transfers of Assets Other Than Inventory
on simplifying the accounting for income taxes related to intra-entity asset transfers. The new guidance allows an entity to recognize the tax expense from the sale of an asset in the seller’s tax jurisdiction when the transfers occurs, even though the pre-tax effects of that transaction are eliminated in consolidation. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017. Early adoption is permitted only in the first quarter of 2017. The Company is evaluating the impact of adopting this new accounting standard update on the financial statements and related disclosures.
 
In August 2016, the FASB issued ASU 2016-15
Classification of Certain Cash Receipts and Cash Payments
on the statement of cash flows. The new guidance clarifies classification of certain cash receipts and cash payments in the statement of cash flows. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption is permitted. The Company is evaluating the impact of adopting this new accounting standard update on the financial statements and related disclosures.
 
In June 2016, the Financial Accounting Standards Board (or “FASB”) issued ASU No. 2016-13,
Allowance for Loan and Lease Losses (Financial Instruments - Credit Losses Topic 326.)
. New impairment guidance for certain financial instruments (including trade receivables) will replace the current “incurred loss” model for estimating credit losses with a forward looking “expected loss” model. The ASU is effective for the Company for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years. Early application is permitted as of the fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The Company is evaluating the impact of this standard on its consolidated financial statements.
 
In March 2016, the FASB issued ASU No. 2016-09,
Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting
. This ASU identifies areas for simplification involving several aspects of accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, an option to recognize gross stock compensation expense with actual forfeitures recognized as they occur, as well as certain classifications on the statement of cash flows. This ASU will be effective for fiscal years beginning after December 15, 2016, and interim periods within those annual periods. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted.
 
In March 2016, the FASB issued ASU No. 2016-06,
Contingent Put and Call Options in Debt Instruments
. The amendments in this ASU clarify the requirements for assessing whether contingent call (put) options that can accelerate the payment of principal on debt instruments are clearly and closely related to their debt hosts. An entity performing the assessment under the amendments in this ASU is required to assess the embedded call (put) options solely in accordance with the four-step decision sequence. The ASU is effective for financial statements issued for fiscal years beginning after December 15, 2016, and interim periods within those fiscal years. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its financial statements.
 
In February 2016, the FASB issued Accounting Standards Update (or “ASU”)
2016-02-
Leases
with fundamental changes to how entities account for leases.
Lessees will need to recognize a right-of-use asset and a lease liability for virtually all of their leases (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. Additional disclosures for leases will also be required. The standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. Early adoption is permitted. The new standard must be adopted using a modified retrospective transition, and provides for certain practical expedients. The new standard may materially impact the Company’s financial statements.
 
In January 2016, the FASB issued ASU 2016-01
Financial Instruments-Overall
, which address certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The amendments in this Update are effective for fiscal years beginning after December 15, 2017, including interim periods within those fiscal years. Earlier application is permitted under specific circumstances. The Company is currently assessing the potential impact of this standard on its consolidated financial statements.
 
In July 2015, the FASB issued ASU 2015-11,
Simplifying the Measurement of Inventory
, which requires that inventory within the scope of the guidance be measured at the lower of cost and net realizable value. The new standard is being issued as part of the simplification initiative. Prior to the issuance of the standard, inventory was measured at the lower of cost or market (where market was defined as replacement cost, with a ceiling of net realizable value and floor of net realizable value less a normal profit margin). The new guidance will be effective for fiscal years beginning after December 15, 2016, including interim periods within those years. Prospective application is required and early adoption is permitted. The Company is currently assessing the impact of adopting this new accounting standard on its financial statements.
 
In August 2014, the FASB issued new guidance related to the disclosure around going concern. The new standard provides guidance around management's responsibility to evaluate whether there is substantial doubt about an entity's ability to continue as a going concern and to provide related footnote disclosure if substantial doubt exists. The new standard is effective for annual periods ending after December 15, 2016 and for annual periods and interim periods thereafter. Early adoption is permitted. The adoption of this standard is not expected to have a material impact on the Company's financial statements.
 
In May 2014, the FASB issued new guidance related to revenue recognition. In March, April and May 2016, the FASB issued additional amendments to the new revenue guidance relating to reporting revenue on a gross versus net basis, identifying performance obligations, licensing arrangements, collectability, noncash consideration, presentation of sales tax, and transition. This new standard will replace all current GAAP guidance on this topic and eliminate all industry-specific guidance. The new revenue recognition update guidance provides a unified model to determine how revenue is recognized. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services.
The FASB has issued several updates to the standard which i) clarify the application of the principal versus agent guidance (ASU 2016-08); ii) clarify the guidance on inconsequential and perfunctory promises and licensing (ASU 2016-10) and iii)
narrow-scope improvements and practical expedients (ASU 2016-12). On July 9, 2015, the FASB voted to defer the effective date by one year to December 15, 2017 for interim and annual reporting periods beginning after that date and permitted early adoption of the standard, but not before the original effective date of December 15, 2016. Entities have the option of using either a full retrospective or a modified retrospective approach to adopt the new standard. Therefore, the new standard will be effective commencing with our quarter ending March 31, 2018. The Company is currently assessing the potential impact of this new standard on its consolidated financial statements and has not selected the transition method.
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Note 3 - Fair Value of Financial Instruments
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Financial Instruments Disclosure [Text Block]
3. Fair Value of Financial Instruments
 
The inputs to the valuation techniques used to measure fair value are classified into the following categories:
 
Level 1: Quoted market prices in active markets for identical assets or liabilities.
 
Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data.
 
Level 3: Unobservable inputs that are not corroborated by market data.
 
There were no transfers between the levels, and as of September 30, 2016, the Company’s financial assets and financial liabilities at fair value were classified within the fair value hierarchy as follows (in thousands):
 
    Level 1   Level 2   Level 3   Balance as of
September 30,
2016
Financial Assets                                
Money market funds   $ 59     $     $     $ 59  
Certificates of deposit     1,713                   1,713  
Total financial assets   $ 1,772     $     $     $ 1,772  
Financial Liabilities                                
Loans payable
(1)
  $     $ 34,146     $     $ 34,146  
Credit facilities
 (1)
          19,310             19,310  
Convertible notes
(1)
                109,885       109,885  
Compound embedded derivative liabilities                 3,827       3,827  
Currency interest rate swap derivative liability           3,471             3,471  
Total financial liabilities   $     $ 56,927     $ 113,712     $ 170,639  
(1)
These liabilities are carried on the condensed consolidated balance sheet on a historical cost basis.
 
The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires management to make judgments and consider factors specific to the asset or liability. The fair values of money market funds and certificates of deposit are based on fair values of identical assets. The fair values of the loans payable, convertible notes, credit facilities and currency interest rate swaps are based on the present value of expected future cash flows and assumptions about current interest rates and the creditworthiness of the Company. The method of determining the fair value of the compound embedded derivative liabilities is described subsequently in this note. Market risk associated with the fixed and variable rate long-term loans payable, credit facilities and convertible notes relates to the potential reduction in fair value and negative impact to future earnings, from an increase in interest rates. Market risk associated with the compound embedded derivative liabilities relates to the potential reduction in fair value and negative impact to future earnings from a decrease in interest rates.
 
The carrying amounts of certain financial instruments, such as cash equivalents, accounts receivable, accounts payable and accrued liabilities, approximate fair value due to their relatively short maturities and low market interest rates, if applicable.
 
As of December 31, 2015, the Company’s financial assets and financial liabilities are presented below at fair value and were classified within the fair value hierarchy as follows (in thousands):
 
    Level 1   Level 2   Level 3   Balance as of
December 31,
2015
Financial Assets                                
Money market funds   $ 2,078     $     $     $ 2,078  
Certificates of deposit     1,520                   1,520  
Total financial assets   $ 3,598     $     $     $ 3,598  
Financial Liabilities                                
Loans payable
(1)
  $     $ 9,541     $     $ 9,541  
Credit facilities
 (1)
          34,893             34,893  
Convertible notes
(1)
                96,291       96,291  
Compound embedded derivative liabilities                 46,430       46,430  
Currency interest rate swap derivative liability           5,009             5,009  
Total financial liabilities   $     $ 49,443     $ 142,721     $ 192,164  
_______
(1)
These liabilities are carried on the consolidated balance sheet on a historical cost basis (noting that the Remaining Notes subject to the Maturity Treatment Agreement were revalued to fair value on July 29, 2015, see Note 5 “Debt” for details).
 
The following table provides a reconciliation of the beginning and ending balances for the convertible notes disclosed at fair value using significant unobservable inputs (Level 3) (in thousands):
 
    2016
Balance at January 1   $ 96,291  
Additions of convertible notes     13,000  
Conversion/extinguishment of convertible notes     (21,579 )
Change in fair value of convertible notes     22,173  
Balance at September 30   $ 109,885  
 
Derivative Instruments
 
The following table provides a reconciliation of the beginning and ending balances for the compound embedded derivative liabilities measured at fair value using significant unobservable inputs (Level 3) (in thousands):
 
    2016
Balance at January 1   $ 46,430  
Derecognition on conversion/extinguishment     (2,734 )
Gain from change in fair value of derivative liabilities     (39,869 )
Balance at September 30   $ 3,827  
 
The compound embedded derivative liabilities represent the fair value of the equity conversion options and "make-whole" provisions, as well as the down round conversion price adjustment or conversion rate adjustment provisions of the R&D Notes, the Tranche I Notes, the Tranche II Notes, the 2014 144A Notes and the 2015 144A Notes (see Note 5, "Debt"). There is no current observable market for these types of derivatives and, as such, the Company determined the fair value of the embedded derivatives using a Monte Carlo simulation valuation model for the R&D Notes and the binomial lattice model for the Tranche I Notes, the Tranche II Notes, the 2014 144A Notes and the 2015 144A Notes (collectively, "the Convertible Notes"). A Monte Carlo simulation valuation model combines expected cash outflows with market-based assumptions regarding risk-adjusted yields, stock price volatility, probability of a change of control and the trading information of the Company's common stock into which the notes are or may be convertible. A binomial lattice model generates two probable outcomes - one up and another down - arising at each point in time, starting from the date of valuation until the maturity date. A lattice model was used to determine if the Convertible Notes would be converted, called or held at each decision point. Within the lattice model, the following assumptions are made: (i) the Convertible Notes will be converted early if the conversion value is greater than the holding value and (ii) the Convertible Notes will be called if the holding value is greater than both (a) redemption price and (b) the conversion value at the time. If the Convertible Notes are called, then the holder will maximize their value by finding the optimal decision between (1) redeeming at the redemption price and (2) converting the Convertible Notes. Using this lattice method, the Company valued the embedded derivatives using the "with-and-without method", where the fair value of the Convertible Notes including the embedded derivative is defined as the "with", and the fair value of the Convertible Notes excluding the embedded derivatives is defined as the "without". This method estimates the fair value of the embedded derivatives by looking at the difference in the values between the Convertible Notes with the embedded derivatives and the fair value of the Convertible Notes without the embedded derivatives. The lattice model uses the stock price, conversion price, maturity date, risk-free interest rate, estimated stock volatility and estimated credit spread. The Company marks the compound embedded derivatives to market due to the conversion price not being indexed to the Company's own stock. As of September 30, 2016 and December 31, 2015, included in "Derivative Liabilities" on the condensed consolidated balance sheet are the Company's compound embedded derivative liabilities of $3.8 million and $46.4 million, respectively.
 
The market-based assumptions and estimates used in valuing the compound embedded derivative liabilities include amounts in the following ranges/amounts:
 
    September 30, 2016   September 30, 2015
Risk-free interest rate    0.20% - 0.84%   0.93% - 1.07%
Risk-adjusted yields   17.30% - 27.43%   24.40% - 39.90%
Stock-price volatility     45%       45%  
Probability of change in control     5%       5%  
Stock price     $0.58       $2.01  
Credit spread   16.49% - 26.60%   28.81% - 38.83%
Estimated conversion dates   2016 - 2019   2015 - 2019
 
Changes in valuation assumptions can have a significant impact on the valuation of the embedded derivative liabilities. For example, all other things being equal, a decrease/increase in the Company’s stock price, probability of change of control, credit spread, term to maturity/conversion or stock price volatility decreases/increases the valuation of the liabilities, whereas a decrease/increase in risk adjusted yields or risk-free interest rates increases/decreases the valuation of the liabilities. The conversion price of certain of the Convertible Notes also include conversion price adjustment features where, for example, issuances of common stock by the Company at prices lower than the conversion price result in a reset of the conversion price of such notes, which increases the value of the embedded derivative liabilities. See Note 5, "Debt" for further details of conversion price adjustment features.
 
In June 2012, the Company entered into a loan agreement with Banco Pine S.A. (or "Banco Pine") under which Banco Pine provided the Company with a loan (or the "Banco Pine Bridge Loan") (see Note 5, "Debt"). At the time of the Banco Pine Bridge Loan, the Company also entered into a currency interest rate swap arrangement with Banco Pine with respect to the repayment of R$22.0 million (approximately US$6.8 million based on the exchange rate as of September 30, 2016) of the Banco Pine Bridge Loan. The swap arrangement exchanges the principal and interest payments under the Banco Pine Bridge Loan for alternative principal and interest payments that are subject to adjustment based on fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real. The swap has a fixed interest rate of 3.94%. Changes in the fair value of the swap are recognized in “Gain (loss) from change in fair value of derivative instruments" in the condensed consolidated statements of operations are as follows (in thousands):
 
    Income
Statement Classification
  Three Months Ended
September 30,
  Nine Months Ended
September 30,
Type of Derivative Contract       2016   2015   2016   2015
Currency interest rate swap   Gain (loss) from change in fair value of derivative instruments   $ (145 )   $ (1,796 )   $ 1,957     $ (3,201 )
 
Derivative instruments measured at fair value as of September 30, 2016 and December 31, 2015, and their classification on the condensed consolidated balance sheets are as follows (in thousands):
 
    September 30,
 2016
  December 31,
2015
Fair market value of compound embedded derivative liabilities   $ 3,827     $ 46,430  
Fair value of  swap obligations     3,471       5,009  
Total derivative liabilities   $ 7,298     $ 51,439  
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Note 4 - Balance Sheet Components
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Supplemental Balance Sheet Disclosures [Text Block]
4. Balance Sheet Components
 
Inventories, net
 
Inventories, net are stated at the lower of cost or market and comprise of the following (in thousands):
 
    September 30,
 2016
  December 31,
 2015
Raw materials   $ 2,664     $ 2,204  
Work-in-process     1,809       3,583  
Finished goods     3,426       5,099  
Inventories, net   $ 7,899     $ 10,886  
 
 
Property, Plant and Equipment, net
 
Property, plant and equipment, net is comprised of the following (in thousands):
 
    September 30,
2016
  December 31,
2015
Machinery and equipment   $ 85,538     $ 72,876  
Leasehold improvements     38,791       38,519  
Computers and software     9,545       9,117  
Buildings     4,718       3,922  
Furniture and office equipment     2,335       2,234  
Vehicles     195       215  
Construction in progress     6,430       5,736  
      147,552       132,619  
Less: accumulated depreciation and amortization     (84,459 )     (72,822 )
Property, plant and equipment, net   $ 63,093     $ 59,797  
 
The Company's first, purpose-built, large-scale Biofene production plant in southeastern Brazil commenced operations in December 2012. This plant is located at Brotas in the state of São Paulo, Brazil and is adjacent to an existing sugar and ethanol mill, Tonon Bioenergia S.A. (or “Tonon”) (formerly Paraíso Bioenergia) with which the Company has an agreement to purchase a certain number of tons of sugarcane per year, along with specified water and vapor volumes.
 
Property, plant and equipment, net includes $2.3 million and $2.7 million of machinery and equipment under capital leases as of September 30, 2016 and December 31, 2015, respectively. Accumulated amortization of assets under capital leases totaled $0.4 million and $0.5 million as of September 30, 2016 and December 31, 2015, respectively.
 
Depreciation and amortization expense, including amortization of assets under capital leases was $2.9 million and $3.1 million for the three months ended September 30, 2016 and 2015, respectively, and $8.6 million and $9.9 million for the nine months ended September 30, 2016 and 2015, respectively.
 
Other Assets (non-current)
 
Other assets are comprised of the following (in thousands):
 
    September 30,
 2016
  December 31,
2015
Recoverable taxes from Brazilian government entities   $ 11,955     $ 8,887  
Deposits on property and equipment, including taxes     292       243  
Other     1,410       1,227  
Total other assets   $ 13,657     $ 10,357  
 
Accrued and Other Current Liabilities
 
Accrued and other current liabilities are comprised of the following (in thousands):
 
    September 30,
2016
  December 31,
2015
Withholding tax related to conversion of related party notes   $ 4,964     $ 4,723  
Professional services     5,406       4,017  
SMA relocation accrual     4,380       3,641  
Accrued interest     8,283       1,984  
Tax-related liabilities     2,325       2,505  
Accrued vacation     1,932       2,023  
Payroll and related expenses     4,268       3,122  
Deferred rent, current portion     1,110       1,111  
Contractual obligations to contract manufacturers     680        
Fair value swap short-term     586        
Other     978       1,142  
Total accrued and other current liabilities   $ 34,912     $ 24,268  
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Note 5 - Debt and Mezzanine Equity
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Debt Disclosure [Text Block]
5. Debt and Mezzanine Equity
 
Debt and mezzanine equity are comprised of the following (in thousands):
 
    September 30,
2016
  December 31,
2015
         
Senior secured loan facility   $ 28,438     $ 31,590  
BNDES credit facility     1,471       1,956  
FINEP credit facility     777       840  
Total credit facilities     30,686       34,386  
Convertible notes     68,533       61,233  
Related party convertible notes     40,611       42,749  
Related party loan payable     22,847        
Loans payable     12,954       13,606  
Total debt     175,631       151,974  
Less: current portion     (75,016 )     (36,281 )
Long-term debt   $ 100,615     $ 115,693  
Mezzanine equity
(1)
    5,000        
 
_____________
(1)
See Note 8, "Significant Agreements" for details regarding the Bill & Melinda Gates Foundation Investment, classified as mezzanine equity.
 
Senior Secured Loan Facility
 
In March 2014, the Company entered into a Loan and Security Agreement with Hercules Technology Growth Capital, Inc. (or “Hercules”) to make available to Amyris a loan facility in the aggregate principal amount of up to $25.0 million (or the "Senior Secured Loan Facility"), which loan facility was fully drawn at the closing. The initial loan of $25.0 million under the Senior Secured Loan Facility accrues interest at a rate per annum equal to the greater of either the prime rate reported in the Wall Street Journal plus 6.25% or 9.50%. The Company may repay the outstanding amounts under the Senior Secured Credit Facility before the maturity date (February 1, 2017) if it pays an additional fee of 1% of the outstanding loans. The Company was also required to pay a 1% facility charge at the closing of the Senior Secured Credit Facility, and is required to pay a 10% end of term charge with respect to the initial loan of $25.0 million. In connection with the execution of the Senior Secured Loan Facility, Amyris agreed to certain customary representations and warranties and covenants, as well as certain covenants that were subsequently amended (as described below).
 
In June 2014, the Company and Hercules entered into a first amendment of the Senior Secured Loan Facility. Pursuant to the first amendment, the parties agreed to adjust the term loan maturity date from May 31, 2015 to February 1, 2017 and remove (i) a requirement for the Company to pay a forbearance fee of $10.0 million in the event certain covenants were not satisfied, (ii) a covenant that the Company maintain positive cash flow commencing with the fiscal quarter beginning October 1, 2014, (iii) a covenant that, beginning with the fiscal quarter beginning July 1, 2014, the Company and its subsidiaries achieve certain projected cash product revenues and projected cash product gross profits, and (iv) an obligation for the Company to file a registration statement on Form S-3 with the SEC by no later than June 30, 2014 and complete an equity financing of more than $50.0 million by no later than September 30, 2014. The Company further agreed to include a new covenant requiring the Company to maintain unrestricted, unencumbered cash in defined U.S. bank accounts in an amount equal to at least 50% of the principal amount then outstanding under the Senior Secured Loan Facility (or the “Minimum Cash Covenant”) and borrow an additional $5.0 million. The additional $5.0 million borrowing was completed in June 2014, and accrues interest at a rate per annum equal to the greater of (i) the prime rate reported in the Wall Street Journal plus 5.25% and (ii) 8.5%.
 
In March 2015, the Company and Hercules entered into a second amendment of the Senior Secured Loan Facility. Pursuant to the second amendment, the parties agreed to, among other things, establish an additional credit facility in the principal amount of up to $15.0 million, which would be available to be drawn by the Company through the earlier of March 31, 2016 or such time as the Company raised an aggregate of at least $20.0 million through the sale of new equity securities. Under the terms of the second amendment, the Company agreed to pay Hercules a 3.0% facility availability fee on April 1, 2015. The Company had the ability to cancel the additional facility at any time prior to June 30, 2015 at its own option, and the additional facility would terminate upon the Company securing a new equity financing of at least $20.0 million. If the facility was not canceled, and any outstanding borrowings were not repaid, before June 30, 2015, an additional 5.0% facility fee would become payable on June 30, 2015. The Company did not cancel the facility prior to June 30, 2015, and the 5.0% facility fee became payable as of June 30, 2015. The Company did not pay the additional facility fee and thereafter received a waiver from Hercules with respect thereto. The additional facility was cancelled undrawn upon the completion of the Company’s private offering of common stock and warrants in July 2015.
 
In November 2015, the Company and Hercules entered into a third amendment of the Senior Secured Loan Facility. Pursuant to the third amendment, the Company borrowed $10,960,000 (or the “Third Amendment Borrowed Amount”) from Hercules on November 30, 2015. As of December 1, 2015, after the funding of the Third Amendment Borrowed Amount (and including repayment of $9.1 million of principal that had occurred prior to the third amendment), the aggregate principal amount outstanding under the Senior Secured Loan Facility was approximately $31.7 million. The Third Amendment Borrowed Amount accrues interest at a rate per annum equal to the greater of (i) 9.5% and (ii) the prime rate reported in the Wall Street Journal plus 6.25%, and, like the previous loans under the Senior Secured Loan Facility, has a maturity date of February 1, 2017. Upon the earlier of the maturity date, prepayment in full or such obligations otherwise becoming due and payable, in addition to repaying the outstanding Third Amendment Borrowed Amount (and all other amounts owed under the Senior Secured Loan Facility, as amended), the Company is also required to pay an end-of-term charge of $767,200. Pursuant to the third amendment, the Company also paid Hercules fees of $1.0 million, $750,000 of which was owed in connection with the expired $15.0 million facility under the second amendment and $250,000 of which was related to the Third Amendment Borrowed Amount. Under the third amendment, the parties agreed that the Company would, commencing on December 1, 2015, be required to pay only the interest accruing on all outstanding loans under the Senior Secured Loan Facility until February 29, 2016. Commencing on March 1, 2016, the Company would have been required to begin repaying principal of all loans under the Senior Secured Loan Facility, in addition to the applicable interest. However, pursuant to the third amendment, the Company could, by achieving certain cash inflow targets in 2016, extend the interest-only period to December 1, 2016. Upon the issuance by the Company of $20.0 million of unsecured promissory notes and warrants in a private placement in February 2016 for aggregate cash proceeds of $20.0 million, the Company satisfied the conditions for extending the interest-only period to May 31, 2016. On June 1, 2016, the Company commenced the repayment of outstanding principal under the Senior Secured Loan Facility. In June 2016, the Company was notified by Hercules that it had transferred and assigned its rights and obligations under the Senior Secured Loan Facility to Stegodon Corporation (or “Stegodon”). On June 29, 2016, in connection with the execution by the Company and Ginkgo Bioworks, Inc., an affiliate of Stegodon, of an initial strategic partnership agreement, the Company received a deferment from Stegodon of all scheduled principal repayments under the Senior Secured Loan Facility, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016. Refer to Note 8, “Significant Agreements” for additional details. On October 6, 2016, in connection with the execution by the Company and Ginkgo Bioworks, Inc. of a definitive collaboration agreement, the Company and Stegodon entered into a fourth amendment of the Senior Secured Loan Facility, pursuant to which the parties agreed to (i) subject to the Company extending the maturity of certain of its other outstanding indebtedness, extend the maturity date of the Senior Secured Loan Facility, (ii) make the Senior Secured Loan Facility interest-only until maturity, subject to the requirement that the Company apply certain monies received under the collaboration agreement between the Company and Ginkgo Bioworks, Inc. to repay the amounts outstanding under the Senior Secured Loan Facility, up to a maximum amount of $1 million per month and (iii) waive the Minimum Cash Covenant until the maturity date of the Senior Secured Loan Facility. Refer to Note 8, “Significant Agreements” and Note 18, “Subsequent Events” for additional details.
 
As of September 30, 2016, $28.4 million was outstanding under the Senior Secured Loan Facility, net of discount and issuance costs of $0.1 million. The Senior Secured Loan Facility is secured by liens on the Company's assets, including on certain Company intellectual property. The Senior Secured Loan Facility includes customary events of default, including failure to pay amounts due, breaches of covenants and warranties, material adverse effect events, certain cross defaults and judgments, and insolvency. If an event of default occurs, Stegodon may require immediate repayment of all amounts outstanding under the Senior Secured Loan Facility. The Company was in compliance with the covenants under the Senior Secured Loan Facility as of September 30, 2016.
 
BNDES Credit Facility
 
In December 2011, the Company entered into a credit facility with the Brazilian Development Bank (or “BNDES” and such credit facility, the “BNDES Credit Facility”) in the amount of R$22.4 million (approximately US$6.9 million based on the exchange rate as of September 30, 2016). This BNDES Credit Facility was extended as project financing for a production site in Brazil. The credit line was divided into an initial tranche of up to approximately R$19.1 million and an additional tranche of approximately R$3.3 million that would become available upon delivery of additional guarantees. The credit line was cancelled in 2013.
 
The principal of the loans under the BNDES Credit Facility is required to be repaid in 60 monthly installments, with the first installment paid in January 2013 and the last due in December 2017. Interest was due initially on a quarterly basis with the first installment due in March 2012. From and after January 2013, interest payments are due on a monthly basis together with principal payments. The loaned amounts carry interest of 7% per annum. Additionally, there is a credit reserve charge of 0.1% on the unused balance from each credit installment from the day immediately after it is made available through its date of use, when it is paid.
 
The BNDES Credit Facility is collateralized by a first priority security interest in certain of the Company's equipment and other tangible assets totaling R$24.9 million (approximately $7.7 million based on the exchange rate as of September 30, 2016). The Company is a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, the Company was required to provide a bank guarantee equal to 10% of the total approved amount (R$22.4 million in total debt) available under the BNDES Credit Facility. For advances of the second tranche (above R$19.1 million), the Company is required to provide additional bank guarantees equal to 90% of each such advance, plus additional Company guarantees equal to at least 130% of such advance. The BNDES Credit Facility contains customary events of default, including payment failures, failure to satisfy other obligations under this credit facility or related documents, defaults in respect of other indebtedness, bankruptcy, insolvency and inability to pay debts when due, material judgments, and changes in control of Amyris Brasil. If any event of default occurs, BNDES may terminate its commitments and declare immediately due all borrowings under the facility. As of September 30, 2016 and December 31, 2015, the Company had R$4.8 million (approximately US$1.5 million based on the exchange rate as of September 30, 2016) and R$7.6 million (approximately US$1.9 million based on the exchange rate as of December 31, 2015), respectively, in outstanding advances under the BNDES Credit Facility.
 
FINEP Credit Facility
 
In November 2010, the Company entered into a credit facility with Financiadora de Estudos e Projetos (or the “FINEP Credit Facility”). The FINEP Credit Facility was extended to partially fund expenses related to the Company’s research and development project on sugarcane-based biodiesel (or the “FINEP Project”) and provided for loans of up to an aggregate principal amount of R$6.4 million (approximately US$2.0 million based on the exchange rate as of September 30, 2016), which is secured by a chattel mortgage on certain equipment of Amyris Brasil as well as by bank letters of guarantee. All available credit under this facility is fully drawn.
 
Interest on loans drawn under the FINEP Credit Facility is fixed at 5% per annum. In case of default under or non-compliance with the terms of the agreement, the interest on loans will be dependent on the long-term interest rate as published by the Central Bank of Brazil (such rate, the “TJLP”). If the TJLP at the time of default is greater than 6%, then the interest will be 5% plus a TJLP adjustment factor, otherwise the interest will be 11% per annum. In addition, a fine of up to 10% shall apply to the amount of any obligation in default. Interest on late balances will be 1% per month, levied on the overdue amount. Payment of the outstanding loan balance is being made in 81 monthly installments, which commenced in July 2012 and extends through March 2019. Interest on loans drawn and other charges are paid on a monthly basis and commenced in March 2011. As of September 30, 2016 and December 31, 2015, the total outstanding loan balance under this credit facility was R$2.5 million (approximately US$0.8 million based on the exchange rate as of September 30, 2016) and R$3.4 million (approximately US$0.9 million based on exchange rate as of December 31, 2015), respectively.
 
Convertible Notes
 
Fidelity
 
In February 2012, the Company completed the sale of senior unsecured convertible promissory notes in an aggregate principal amount of $25.0 million pursuant to a securities purchase agreement, between the Company and certain investment funds affiliated with FMR LLC (or the "Fidelity Securities Purchase Agreement"). The offering consisted of the sale of 3% senior unsecured convertible promissory notes with a March 1, 2017 maturity date and an initial conversion price equal to $7.0682 per share of the Company's common stock, subject to proportional adjustment for adjustments to outstanding common stock and anti-dilution provisions in case of dividends and distributions (or the "Fidelity Notes"). In October 2015, the Company issued $57.6 million of convertible senior notes and used approximately $8.8 million of the proceeds therefrom to repurchase $9.7 million aggregate principal amount of outstanding Fidelity Notes. As of September 30, 2016, the Fidelity Notes were convertible into an aggregate of up to 2,165,898 shares of the Company's common stock. The holders of the Fidelity Notes have a right to require repayment of 101% of the principal amount of the Fidelity Notes in an acquisition of the Company, and the Fidelity Notes provide for payment of unpaid interest on conversion following such an acquisition if the note holders do not require such repayment. The Fidelity Securities Purchase Agreement and Fidelity Notes include covenants regarding payment of interest, maintaining the Company's listing status, limitations on debt, maintenance of corporate existence, and timely filing of SEC reports. The Fidelity Notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults and breaches of the covenants in the Fidelity Securities Purchase Agreement and Fidelity Notes, with default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, the Fidelity Notes include restrictions on the amount of debt the Company is permitted to incur. With exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the Fidelity Notes provide that the Company's total outstanding debt at any time cannot exceed the greater of $200.0 million or 50% of its consolidated total assets and its secured debt cannot exceed the greater of $125.0 million or 30% of its consolidated total assets. In connection with the Company’s closing of a short-term bridge loan for $35.0 million in October 2013, holders of the Fidelity Notes waived compliance with the debt limitations outlined above as to the $35.0 million bridge loan (or the “Temasek Bridge Note”) and the August 2013 Financing (defined below). In consideration for such waiver, the Company granted to holders of the Fidelity Notes or their affiliates the right to purchase up to an aggregate of $7.6 million worth of convertible promissory notes in the first tranche of the August 2013 Financing.
 
Pursuant to a Securities Purchase Agreement among the Company, Maxwell (Mauritius) Pte Ltd (or “Temasek”) and Total, dated as of August 8, 2013 (or, as amended, the “August 2013 SPA”), as amended in October 2013 to include certain entities affiliated with FMR LLC (or the “Fidelity Entities”), the Company sold and issued certain senior convertible notes (or the “Tranche I Notes”) pursuant to a financing (or the “August 2013 Financing”) exempt from registration under the Securities Act of 1933, as amended (or the “Securities Act”), in an aggregate principal amount of $7.6 million to the Fidelity Entities. See "Related Party Convertible Notes" in this Note 5, "Debt."
 
2014 Rule 144A Convertible Note Offering
 
In May 2014, the Company entered into a Purchase Agreement with Morgan Stanley & Co. LLC, as the initial purchaser (or the “Initial Purchaser”), relating to the sale of $75.0 million aggregate in principal amount of its 6.50% Convertible Senior Notes due 2019 (or the "2014 144A Notes") to the Initial Purchaser in a private placement, and for initial resale by the Initial Purchaser to certain qualified institutional buyers (or the "2014 144A Convertible Note Offering"). In addition, the Company granted the Initial Purchaser an option to purchase up to an additional $15.0 million aggregate principal amount of 2014 144A Notes, which option expired unexercised according to its terms. Under the terms of the purchase agreement for the 2014 144A Notes, the Company agreed to customary indemnification of the Initial Purchaser against certain liabilities. The Notes were issued pursuant to an Indenture, dated as of May 29, 2014 (or the “2014 Indenture”), between the Company and Wells Fargo Bank, National Association, as trustee. The net proceeds from the offering of the 2014 144A Notes were approximately $72.0 million after payment of the Initial Purchaser’s discounts and offering expenses. In addition, in connection with obtaining a waiver from Total of its preexisting contractual right to exchange certain senior secured convertible notes previously issued by the Company for new notes issued in the 2014 144A Convertible Note Offering, the Company used approximately $9.7 million of the net proceeds to repay previously issued notes (representing the amount of 2014 144A Notes purchased by Total from the Initial Purchaser). Certain of the Company's affiliated entities purchased $24.7 million in aggregate principal amount of 2014 144A Notes from the Initial Purchaser (described further below under "Related Party Convertible Notes"). In October 2015, as discussed below, the Company issued $57.6 million of convertible senior notes and used approximately $18.3 million of the net proceeds therefrom to repurchase $22.9 million aggregate principal amount of outstanding 2014 144A Notes. The 2014 144A Notes bear interest at a rate of 6.50% per year, payable semiannually in arrears on May 15 and November 15 of each year, beginning November 15, 2014. The 2014 144A Notes mature on May 15, 2019, unless earlier converted or repurchased. The 2014 144A Notes are convertible into shares of the Company's common stock at any time prior to the close of business day on May 15, 2019, at the initial conversion rate of 267.037 shares of Common Stock per $1,000 principal amount of 2014 144A Notes (subject to adjustment in certain circumstances). This represents an effective conversion price of approximately $3.74 per share of common stock. For any conversion on or after May 15, 2015, in the event that the last reported sale price of the Company’s common stock for 20 or more trading days (whether or not consecutive) in a period of 30 consecutive trading days ending within five trading days immediately prior to the date the Company receives a notice of conversion exceeds the then-applicable conversion price per share on each such trading day, the holders, in addition to the shares deliverable upon conversion, noteholders will be entitled to receive a cash payment equal to the present value of the remaining scheduled payments of interest that would have been made on the 2014 144A Notes being converted from the conversion date to the earlier of the date that is three years after the date the Company receives such notice of conversion and maturity (May 15, 2019), which will be computed using a discount rate of 0.75%. In the event of a fundamental change, as defined in the 2014 Indenture, holders of the 2014 144A Notes may require the Company to purchase all or a portion of the 2014 144A Notes at a price equal to 100% of the principal amount of the 2014 144A Notes, plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. In addition, holders of the 2014 144A Notes who convert their 2014 144A Notes in connection with a make-whole fundamental change will, under certain circumstances, be entitled to an increase in the conversion rate. Refer to the “Exchange” and “Maturity Treatment Agreement” sections of this Note 5, "Debt", for details of the impact of the Maturity Treatment and Exchange agreements on the 2014 144A Notes.
 
2015 Rule 144A Convertible Note Offering
 
In October 2015, the Company entered into a purchase agreement with certain qualified institutional buyers relating to the sale of $57.6 million aggregate principal amount of its 9.50% Convertible Senior Notes due 2019 (or the “2015 144A Notes”) to the purchasers in a private placement (or the “2015 144A Offering”). The Notes were issued pursuant to an Indenture, dated as of October 20, 2015 (or the “2015 Indenture”), between the Company and Wells Fargo Bank, National Association, as trustee. The net proceeds from the offering of the 2015 144A Notes were approximately $54.4 million after payment of the estimated offering expenses and placement agent fees. The Company used approximately $18.3 million of the net proceeds to repurchase $22.9 million aggregate principal amount of outstanding 2014 144A Notes and approximately $8.8 million to repurchase $9.7 million aggregate principal amount of outstanding Fidelity Notes, in each case held by purchasers of the 2015 144A Notes. The 2015 144A Notes bear interest at a rate of 9.50% per year, payable semiannually in arrears on April 15 and October 15 of each year, beginning April 15, 2016. Interest on the 2015 144A Notes is payable, at the Company’s option, entirely in cash or entirely in common stock. The Company elected to make the April 15, 2016 interest payment in shares of common stock and the October 15, 2016 interest payment in cash. The 2015 144A Notes will mature on April 15, 2019 unless earlier converted or repurchased.
 
The 2015 144A Notes are convertible into shares of the Company's common stock at any time prior to the close of business on April 15, 2019. The 2015 144A Notes had an initial conversion rate of 443.6557 shares of Common Stock per $1,000 principal amount of 2015 144A Notes (subject to adjustment in certain circumstances). This represented an initial effective conversion price of approximately $2.25 per share of common stock. Following the issuance by the Company of warrants to purchase common stock in a private placement transaction in February 2016 and the issuance by the Company of convertible notes in May and September 2016, as described below, the conversion rate of the 2015 144A Notes was 446.6719 shares of Common Stock per $1,000 principal amount of 2015 144A Notes as of September 30, 2016. Furthermore, following the issuance by the Company of additional convertible notes in October 2016, the conversion rate of the 2015 144A Notes is 446.8707 shares of Common Stock per $1,000 principal amount of 2015 144A Notes as of the date hereof. For any conversion on or after November 27, 2015, in addition to the shares deliverable upon conversion, noteholders will be entitled to receive a payment equal to the present value of the remaining scheduled payments of interest that would have been made on the 2015 144A Notes being converted from the conversion date to the earlier of the date that is three years after the date the Company receives such notice of conversion and maturity (April 15, 2019), which will be computed using a discount rate of 0.75%. The Company may make such payment (the “Early Conversion Payment”) either in cash or in common stock, at its election, provided that it may only make such payment in common stock if such common stock is not subject to restrictions on transfer under the Securities Act by persons other than the Company’s affiliates. If the Company elects to pay an Early Conversion Payment in common stock, then the stock will be valued at 92.5% of the simple average of the daily volume-weighted average price per share for the 10 trading days ending on and including the trading day immediately preceding the conversion date. Through September 30, 2016, the Company has elected to make each Early Conversion Payment in shares of common stock. In the event of a fundamental change, as defined in the 2015 Indenture, holders of the 2015 144A Notes may require the Company to purchase all or a portion of the 2015 144A Notes at a price equal to 100% of the principal amount of the 2015 144A Notes, plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. In addition, holders of the 2015 144A Notes who convert their 2015 144A Notes in connection with a make-whole fundamental change will, under certain circumstances, be entitled to an increase in the conversion rate. The issuance of shares of common stock upon conversion of the 2015 144A Notes,
upon the Company’s election to pay interest on the 2015 144A Notes in shares of common stock and upon the Company’s election to pay the Early Conversion Payment in shares of common stock in an aggregate amount in excess of
38,415,626 shares of the Company’s common stock was subject to stockholder approval, which was obtained on May 17, 2016. With exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the 2015 144A Notes provide that, as long as the aggregate outstanding principal amount of the 2015 144A Notes exceeds $25.0 million, the Company's outstanding unsecured debt at any time cannot exceed $200.0 million and its secured debt cannot exceed the greater of $65.0 million or 30% of its consolidated total assets.
 
2016 Convertible Note Offering
 
In May 2016, the Company entered into a securities purchase agreement (or the “May 2016 Purchase Agreement”) between the Company and a private investor relating to the sale of up to $15.0 million aggregate principal amount of convertible notes (or the “2016 Convertible Notes”) that are convertible into shares of the Company’s common stock at an initial conversion price of $1.90 per share. The conversion price will be subject to adjustment in the event of any stock split, reverse stock split, recapitalization, reorganization or similar transaction. The May 2016 Purchase Agreement includes customary representations, warranties and covenants by the Company. The May 2016 Purchase Agreement also provides the purchaser with a right of first refusal with respect to any variable rate transaction on the same terms and conditions as are offered to a third-party purchaser for as long as the purchaser holds any 2016 Convertible Notes or shares of the Company’s common stock underlying the 2016 Convertible Notes.
 
Pursuant to the May 2016 Purchase Agreement, the 2016 Convertible Notes were to be issued and sold in two separate closings. The initial closing occurred on May 10, 2016. At the initial closing, the Company issued and sold a 2016 Convertible Note in a principal amount of $10.0 million to the purchaser, resulting in net proceeds to the Company of approximately $9.9 million. The second closing was to occur on the first trading day following the completion of the first three installment periods under the 2016 Convertible Notes and the satisfaction or waiver of certain other closing conditions, including certain equity conditions, such as that no Triggering Event (as defined below) had occurred. At the second closing, the Company was to issue and sell a 2016 Convertible Note in a principal amount of $5.0 million to the purchaser, resulting in expected net proceeds to the Company of approximately $5.0 million. On September 2, 2016, in connection with the Company and the purchaser waiving certain conditions to the second closing under the May 2016 Purchase Agreement, the Company issued and sold an additional 2016 Convertible Note in the principal amount of $3.0 million to the purchaser, for proceeds to the Company of approximately $3.0 million, and granted the purchaser the option to purchase a further 2016 Convertible Note in the principal amount of $2.0 million (the “
$2 Million Note
”), representing the remaining 2016 Convertible Notes provided for in the May 2016 Purchase Agreement, on or before December 31, 2016. On October 13, 2016, the Company issued and sold the $2 Million Note to the purchaser for proceeds to the Company of $2.0 million. See Note 18, “Subsequent Events” for additional details regarding the issuance of the $2 Million Note.
 
The 2016 Convertible Notes are general unsecured obligations of the Company. Unless earlier converted or redeemed, the 2016 Convertible Notes will mature on the 18-month anniversary of their respective issuance, subject to the rights of the holders to extend the maturity date in certain circumstances.
 
The 2016 Convertible Notes will be payable in monthly installments, in either cash at 118% of such installment amount or, at the Company’s option, subject to the satisfaction of certain equity conditions, shares of common stock at a discount to the then-current market price, subject to a price floor. In addition, in the event that the Company elects to pay all or any portion of a monthly installment in common stock, the holders of the 2016 Convertible Notes shall have the right to require that the Company repay in common stock an additional amount of the 2016 Convertible Notes not to exceed 50% of the cumulative sum of the aggregate amounts by which the dollar-weighted trading volume of the Company’s common stock for all trading days during the applicable installment period exceeds $200,000. The Company elected to make the June, July, August and September 2016 installment payments on the 2016 Convertible Notes in shares of common stock.
 
The 2016 Convertible Notes contain customary terms and covenants, including certain events of default after which the holders may require the Company to redeem all or any portion of their 2016 Convertible Notes in cash at a price equal to the greater of (i) 118% of the amount being redeemed and (ii) the intrinsic value of the shares of common stock issuable upon an installment payment of the amount being redeemed in shares.
 
In the event of a Fundamental Transaction (as defined in the 2016 Convertible Notes), holders of the 2016 Convertible Notes may require the Company to redeem all or any portion of their 2016 Convertible Notes at a price equal to the greater of (i) 118% of the amount being redeemed and (ii) the intrinsic value of the shares of common stock issuable upon an installment payment of the amount being redeemed in shares.
 
The Company has the right to redeem the 2016 Convertible Notes for cash, in whole, at any time, or in part, from time to time, at a redemption price equal to 118% of the principal amount of the 2016 Convertible Notes being redeemed. In addition, if the volume-weighted average price of the Company’s common stock is (i) less than $1.00 for 30 consecutive trading days or (ii) less than $0.50 for five consecutive trading days (each, a “Triggering Event”) within four months of the issuance of any 2016 Convertible Notes, the Company will have the option to redeem such 2016 Convertible Notes in whole for cash at a redemption price equal to 112% of the principal amount of such 2016 Convertible Notes.
 
Related Party Convertible Notes
 
Total R&D Convertible Notes
 
In July 2012 and December 2013, the Company entered into a series of agreements (or the "Total Fuel Agreements") with Total Energies Nouvelles Activités USA (formerly known as Total Gas & Power USA, SAS, and referred to as “Total”) to establish a research and development program (or the "Program") and form a joint venture (or the "Fuels JV") with Total to produce and commercialize farnesene- or farnesane-based diesel and jet fuels, and established a convertible debt structure for the collaboration funding from Total.
 
The purchase agreement for the notes related to the funding from Total (or the “Total Purchase Agreement”) provided for the sale of an aggregate of $105.0 million in 1.5% Senior Unsecured Convertible Notes due March 2017 (the “Unsecured R&D Notes”) as follows:
 
As part of an initial closing under the purchase agreement (which was completed in two installments), (i) on July 30, 2012, the Company sold an Unsecured R&D Note with a principal amount of $38.3 million, including $15.0 million in new funds and $23.3 million in previously-provided diesel research and development funding by Total, and (ii) on September 14, 2012, the Company sold another Unsecured R&D Note for $15.0 million in new funds from Total. These Unsecured R&D Notes had an initial conversion price of $7.0682 per share.
At a second closing under the Total Purchase Agreement (also completed in two installments) the Company sold additional Unsecured R&D Notes for an aggregate of $30.0 million in new funds from Total ($10.0 million in June 2013 and $20.0 million in July 2013). These Unsecured R&D Notes had an initial conversion price of $3.08 per share, as described below.
At a third closing under the Total Purchase Agreement (also completed in two installments) the Company sold additional Unsecured R&D Notes for an aggregate of $21.7 million in new funds from Total ($10.85 million in July 2014 and $10.85 million in January 2015) (or the “Third Closing Notes”). These Unsecured R&D Notes had an initial conversion price of $4.11 per share, as described below.
 
In March 2013, the Company entered into a letter agreement with Total (or the March 2013 Letter Agreement) under which Total agreed to waive its right to cease its participation in the parties' fuels collaboration at the July 2013 decision point and committed to proceed with the July 2013 funding tranche of $30.0 million (subject to the Company's satisfaction of the relevant closing conditions for such funding in the Total Purchase Agreement). As consideration for this waiver and commitment, the Company agreed to:
 
reduce the conversion price for the $30.0 million in principal amount of Unsecured R&D Notes to be issued in connection with the second closing of the Unsecured R&D Notes (as described above) from $7.0682 per share to a price per share equal to the greater of (i) the consolidated closing bid price of the Company's common stock on the date of the March 2013 Letter Agreement, plus $0.01, and (ii) $3.08 per share, provided that the conversion price would not be reduced by more than the maximum possible amount permitted under the rules of The NASDAQ Stock Market (or “NASDAQ”) such that the new conversion price would require the Company to obtain stockholder consent; and
grant Total a senior security interest in the Company's intellectual property, subject to certain exclusions and subject to release by Total when the Company and Total enter into final documentation regarding the establishment of the Fuels JV.
 
In addition to the waiver by Total described above, Total also agreed that, at the Company's request and contingent upon the Company meeting its obligations described above, it would pay advance installments of the amounts otherwise payable at the second closing.
 
In June 2013, the Company sold and issued $10.0 million in principal amount of Unsecured R&D Notes to Total pursuant to the second closing of the Unsecured R&D Notes as discussed above. In accordance with the March 2013 Letter Agreement, this Unsecured R&D Note had an initial conversion price equal to $3.08 per share of the Company's common stock.
 
In July 2013, the Company sold and issued $20.0 million in principal amount of Unsecured R&D Notes to Total pursuant to the Total second closing of the Unsecured R&D Notes as discussed above. This purchase and sale completed Total's commitment to purchase $30.0 million of the Unsecured R&D Notes in the second closing by July 2013. In accordance with the March 2013 Letter Agreement, this Unsecured R&D Note has an initial conversion price equal to $3.08 per share of the Company's common stock.
 
In December 2013, in connection with the Company's entry into a Shareholders Agreement dated December 2, 2013 and License Agreement dated December 2, 2013 (or, collectively, the “JV Documents”) with Total and Total Amyris BioSolutions B.V. (or “TAB”) relating to the establishment of TAB (see Note 7, "Joint Ventures and Noncontrolling Interest"), the Company (i) exchanged the $69.0 million of the then-outstanding Unsecured R&D Notes issued pursuant to the Total Purchase Agreement for replacement 1.5% Senior Secured Convertible Notes due March 2017 (or the “Secured R&D Notes”, and together with the Unsecured R&D Notes, the “R&D Notes”), in principal amounts equal to the principal amount of each cancelled note and with substantially similar terms except that such replacement notes were secured, (ii) granted to Total a security interest in and lien on all Amyris’ rights, title and interest in and to Company’s shares in the capital of TAB and (iii) agreed that any securities to be purchased and sold at the third closing under the Total Purchase Agreement by Total would be Secured R&D Notes instead of Unsecured R&D Notes. As a consequence of executing the JV Documents and forming TAB, the security interest in all of the Company's intellectual property, granted by the Company in favor of Total, Temasek, and certain Fidelity Entities pursuant to the Restated Intellectual Property Security Agreement dated as of October 16, 2013, were automatically terminated effective as of December 2, 2013 upon Total’s and the Company’s joint written notice to Temasek and the Fidelity Entities.
 
In April 2014, the Company and Total entered into a letter agreement dated as of March 29, 2014 (or the “March 2014 Total Letter Agreement”) to amend the Amended and Restated Master Framework Agreement entered into as of December 2, 2013 (included as part of JV Documents) and the Total Purchase Agreement. Under the March 2014 Total Letter Agreement, the Company agreed to, (i) amend the conversion price of the Secured R&D Notes to be issued in the third closing under the Total Purchase Agreement from $7.0682 per share to $4.11 per share subject to stockholder approval at the Company's 2014 annual meeting (which was obtained in May 2014), (ii) extend the period during which Total may exchange for other Company securities Secured R&D Notes issued under the Total Fuel Agreements from June 30, 2014 to the later of December 31, 2014 and the date on which the Company shall have raised $75.0 million of equity and/or convertible debt financing (excluding any convertible promissory notes issued pursuant to the Total Purchase Agreement), (iii) eliminate the Company’s ability to qualify, in a disclosure letter to Total, certain of the representations and warranties that the Company must make at the closing of any third closing sale, and (iv) beginning on March 31, 2014, provide Total with monthly reporting on the Company’s cash, cash equivalents and short-term investments. In consideration of these agreements, Total agreed to waive its right not to consummate the closing of the issuance of the Third Closing Notes if it had decided not to proceed with the collaboration and had made a "No-Go" decision with respect thereto.
 
In July 2014, the Company sold and issued a Secured R&D Note to Total with a principal amount of $10.85 million with a March 1, 2017 maturity date pursuant to the Total Purchase Agreement. This purchase and sale constituted the initial installment of the $21.7 million third closing described above. In accordance with the March 2014 Total Letter Agreement, this Secured R&D Note had an initial conversion price equal to $4.11 per share of the Company's common stock.
 
In January 2015, the Company sold and issued a Secured R&D Note to Total with a principal amount of $10.85 million with a March 1, 2017 maturity date pursuant to the Total Purchase Agreement. This purchase and sale constituted the final installment of the $21.7 million third closing described above. In accordance with the March 2014 Total Letter Agreement, this Secured R&D Note had an initial conversion price equal to $4.11 per share of the Company's common stock.
 
In July 2015, Total exchanged all but $5.0 million of R&D Notes then held by Total, such cancelled notes having an aggregate principal amount of $70 million, in exchange for approximately 30.4 million shares of the Company’s common stock in connection with the Exchange. Refer to the “Exchange” section of this Note 5, "Debt", for additional details of the impact of the Exchange on the R&D Notes.
 
In March 2016, in connection with the restructuring of the Fuels JV (see Note 7, "Joint Ventures and Noncontrolling Interest"), the Company sold to Total one half of the Company’s ownership stake in the Fuels JV (giving Total an aggregate ownership stake of 75% of the Fuels JV and giving the Company an aggregate ownership stake of 25% of the Fuels JV) in exchange for Total cancelling (i) approximately $1.3 million of R&D Notes, plus all paid-in-kind and accrued interest under all outstanding R&D Notes ($2.8 million, including all such interest that was outstanding as of July 29, 2015) and (ii) a note in the principal amount of Euro 50,000, plus accrued interest, issued to Total in connection with the original capitalization of the Fuels JV. To satisfy its purchase obligation above, Total surrendered to the Company the remaining R&D Note of approximately $5.0 million in principal amount, and the Company executed and delivered to Total a new, Unsecured R&D Note in the principal amount of $3.7 million. The disposal of the 25% ownership stake in the Fuels JV resulted in a gain to the Company of $4.2 million, which was recognized as a capital contribution from Total within equity.
 
As of September 30, 2016 and December 31, 2015, $3.7 million and $5.0 million, respectively, of R&D Notes were outstanding, net of debt discount of $0.0 million and $0.0 million, respectively. The R&D Notes have a maturity date of March 1, 2017, an initial conversion price equal to $3.08 per share for the Unsecured R&D Notes, subject to certain adjustments as described below. The R&D Notes bear interest of 1.5% per annum (with a default rate of 2.5%), accruing from the date of issuance and payable at maturity or on conversion or a change of control where Total exercises the right to require the Company to repay the notes, as described below.
 
The R&D Notes become convertible into the Company's common stock (i) within 10 trading days prior to maturity, (ii) on a change of control of the Company, and (iii) on a default by the Company. The conversion price of the R&D Notes are subject to adjustment for proportional adjustments to outstanding common stock and under anti-dilution provisions in case of certain dividends and distributions. Total has a right to require repayment of 101% of the principal amount of the R&D Notes in the event of a change of control of the Company and the R&D Notes provide for payment of unpaid future interest through the maturity date on conversion following such a change of control if Total does not require such repayment. The Total Purchase Agreement and Unsecured R&D Notes include covenants regarding payment of interest, maintenance of the Company's listing status, limitations on debt, maintenance of corporate existence, and filing of SEC reports. The R&D Notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults, and breaches of the covenants in the Total Purchase Agreement and R&D Notes, with added default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, with exceptions for certain existing debt, refinancing of such debt and certain other exclusions and waivers, the R&D Notes provided that the Company's total outstanding debt at any time may not exceed the greater of $200.0 million or 50% of its consolidated total assets and its secured debt may not exceed the greater of $125.0 million or 30% of its consolidated total assets.
 
August 2013 Financing Convertible Notes and Temasek Bridge Note
 
In connection with the August 2013 Financing, the Company entered into the August 2013 Share Purchase Agreement with Total and Temasek to sell up to $73.0 million in convertible promissory notes in private placements, with such notes to be sold and issued over a period of up to 24 months from the date of signing. The August 2013 SPA provided for the August 2013 Financing to be divided into two tranches (the first tranche for $42.6 million and the second tranche for $30.4 million), each with differing closing conditions. Of the total possible purchase price in the financing, $25.0 million was paid in the form of cash by Temasek ($25.0 million in the second tranche), $35.0 million was paid by the exchange and cancellation of the Temasek Bridge Note, as described below, and $13.0 million was paid by the exchange and cancellation of outstanding R&D Notes held by Total in connection with its exercise of pro rata rights ($7.6 million in the first tranche and $5.4 million in the second tranche). The August 2013 SPA included requirements that the Company meet certain production milestones before the second tranche would become available, obtain stockholder approval prior to completing any closing of the transaction, and issue a warrant to Temasek to purchase 1,000,000 shares of the Company's common stock at an exercise price of $0.01 per share, exercisable only if Total converts R&D Notes previously issued to Total in the second closing under the Total Purchase Agreement. In September 2013, prior to the initial closing of the August 2013 Financing, the Company's stockholders approved the issuance in the private placement of up to $110.0 million aggregate principal amount of senior convertible promissory notes, the issuance of a warrant to purchase 1,000,000 shares of the Company's common stock and the issuance of the common stock issuable upon conversion or exercise of such notes and warrant, which approval included the transactions contemplated by the August 2013 Financing.
 
In October 2013, the Company sold and issued a senior secured promissory note to Temasek (or the “Temasek Bridge Note”) in exchange for a bridge loan of $35.0 million. The Temasek Bridge Note was due on February 2, 2014 and accrued interest at a rate of 5.5% quarterly from the October 4, 2013 date of issuance. The Temasek Bridge Note was cancelled on October 16, 2013 as payment for Temasek’s purchase of Tranche I Notes in the first tranche of the August 2013 Financing, as further described below.
 
In October 2013, the Company amended the August 2013 SPA to include the investment by the Fidelity Entities in the first tranche of the August 2013 Financing of $7.6 million, and to proportionally increase the amount of first tranche notes acquired by exchange and cancellation of outstanding R&D Notes held by Total in connection with its exercise of pro rata rights up to $9.2 million in the first tranche. Also in October 2013, the Company completed the closing of the first tranche of the August 2013 Financing, issuing a total of $51.8 million in Tranche I Notes for cash proceeds of $7.6 million and cancellation of outstanding convertible promissory notes of $44.2 million, of which $35.0 million resulted from cancellation of the Temasek Bridge Note and the remaining $9.2 million from the exchange and cancellation of an outstanding R&D Note held by Total. As a result of the exchange and cancellation of the $35.0 million Temasek Bridge Note and the $9.2 million R&D Note held by Total for the Tranche I Notes, the Company recorded a loss from extinguishment of debt of $19.9 million. The Tranche I Notes are due sixty months from the date of issuance and were initially convertible into the Company’s common stock at a conversion price equal to $2.44, which represents a 15% discount to a trailing 60-day weighted-average closing price of the common stock on The NASDAQ Stock Market (or “NASDAQ”) through August 7, 2013, subject to certain adjustments, as described below. The Tranche I Notes are convertible at the option of the holder: (i) at any time after 18 months from the date of the August 2013 SPA, (ii) on a change of control of the Company and (iii) upon the occurrence of an event of default. Each Tranche I Note accrues interest from the date of issuance until the earlier of the date that such Tranche I Note is converted into the Company’s common stock or is repaid in full. Interest accrues at a rate of 5% per six months, compounded semiannually (with graduated interest rates of 6.5% applicable to the first 180 days and 8% applicable thereafter as the sole remedy should the Company fail to maintain NASDAQ listing status or at 6.5% for all other defaults). Interest for the first 30 months is payable in kind and added to the principal every six months and thereafter, the Company may continue to pay interest in kind by adding to the principal every six months or may elect to pay interest in cash. Through September 30, 2016, the Company has elected to pay interest on the Tranche I Notes in kind. The Tranche I Notes may be prepaid by the Company on the 30-month anniversary of the issuance date, and thereafter every six months at the date of payment of the semi-annual coupon.
 
In January 2014, the Company sold and issued, for face value, approximately $34.0 million of convertible promissory notes in the second tranche of the August 2013 Financing (or the “Tranche II Notes”). At the closing, Temasek purchased $25.0 million of the Tranche II Notes and funds affiliated with Wolverine Asset Management, LLC purchased $3.0 million of the Tranche II Notes, each for cash. Total purchased approximately $6.0 million of the Tranche II Notes through cancellation of the same amount of principal of previously outstanding R&D Notes held by Total. As a result of the exchange and cancellation of the $6.0 million R&D Note held by Total for the Tranche II Notes, the Company recorded a loss from extinguishment of debt of $9.4 million. The Tranche II Notes will be due sixty months from the date of issuance and were initially convertible into shares of common stock at a conversion price equal to $2.87 per share, which represents a trailing 60-day weighted-average closing price of the common stock on NASDAQ through August 7, 2013, subject to certain adjustments, as described below. Specifically, the Tranche II Notes are convertible at the option of the holder (i) at any time 12 months after issuance, (ii) on a change of control of the Company, and (iii) upon the occurrence of an event of default. Each Tranche II Note will accrue interest from the date of issuance until the earlier of the date that such Tranche II Note is converted into common stock or repaid in full. Interest will accrue at a rate per annum equal to 10%, compounded annually (with graduated interest rates of 13% applicable to the first 180 days and 16% applicable thereafter as the sole remedy should the Company fail to maintain NASDAQ listing status or at 12% for all other defaults). Interest for the first 36 months shall be payable in kind and added to principal every year following the issue date and thereafter, the Company may continue to pay interest in kind by adding to principal on every year anniversary of the issue date or may elect to pay interest in cash. Through September 30, 2016, the Company has elected to pay interest on the Tranche II Notes in kind.
 
The conversion prices of the Tranche I Notes and Tranche II Notes are subject to adjustment (i) according to proportional adjustments to outstanding common stock of the Company in case of certain dividends and distributions, (ii) according to anti-dilution provisions, and (iii) with respect to notes held by any purchaser other than Total, in the event that Total exchanges existing convertible notes for new securities of the Company in connection with future financing transactions in excess of its pro rata amount. Notwithstanding the foregoing, holders of a majority of the principal amount of the notes outstanding at the time of conversion may waive any anti-dilution adjustments to the conversion price. The purchasers have a right to require repayment of 101% of the principal amount of the notes in the event of a change of control of the Company and the notes provide for payment of unpaid interest on conversion following such a change of control if the purchasers do not require such repayment. The August 2013 SPA, Tranche I Notes and Tranche II Notes include covenants regarding payment of interest, maintenance of the Company’s listing status, limitations on debt and on certain liens, maintenance of corporate existence, and filing of SEC reports. The Tranche Notes include standard events of default including failure to pay, bankruptcy and insolvency, cross-defaults, and breaches of the covenants in the August 2013 SPA, Tranche I Notes and Tranche II Notes, after which the Tranche Notes may be due and payable immediately, as well as associated with default interest rates as set forth above.
 
In July 2015, Temasek exchanged all of the Tranche I and Tranche II Notes then held by Temasek, such notes having an aggregate principal amount of approximately $71.0 million, in exchange for approximately 30.86 million shares of the Company’s common stock in connection with the Exchange. Refer to the “Exchange” section of this Note 5, "Debt", for additional details of the impact of the Exchange on the R&D Notes.
 
The conversion price of the Tranche I Notes and Tranche II Notes was reduced to $1.42 per share upon the completion of a private placement of common stock and warrants to purchase common stock in July 2015, as described below. Following the issuance by the Company of warrants to purchase common stock in a private placement transaction in February 2016, as described below, the conversion price of the Tranche I Notes and Tranche II Notes was further adjusted to $1.40 per share, and following the sale by the Company of shares of common stock to the Bill & Melinda Gates Foundation in May 2016, as described below, the conversion price of the Tranche I Notes and Tranche II Notes was further adjusted to $1.14 per share.
 
As of September 30, 2016 and December 31, 2015, the related party convertible notes outstanding under the Tranche I Notes and Tranche II Notes were $21.7 million and $23.3 million, respectively, net of debt discount of $0.0 million and $0.0 million, respectively. Refer to the “Exchange” and “Maturity Treatment Agreement” sections of this Note 5, "Debt", for details of the impact of the Maturity Treatment and Exchange agreements on the Tranche I and II Notes.
 
2014 144A Notes Sold to Related Parties
 
As of September 30, 2016 and December 31, 2015, the related party convertible notes outstanding under the 2014 Rule 144A Convertible Note Offering were $15.3 million and $14.6 million, respectively, net of discount and issuance costs of $2.4 million and $1.6 million, respectively.
 
As of September 30, 2016 and December 31, 2015, the total related party convertible notes outstanding were $40.6 million and $42.8 million, respectively, net of discount and issuance costs of $2.6 million and $1.9 million, respectively.
 
Loans Payable
 
In July 2012, the Company entered into a Note of Bank Credit and a Fiduciary Conveyance of Movable Goods Agreement (together, the "July 2012 Bank Agreements") with each of Nossa Caixa Desenvolvimento (or “Nossa Caixa”) and Banco Pine S.A. (or “Banco Pine”). Under the July 2012 Bank Agreements, the Company pledged certain farnesene production assets as collateral for the loans of R$52.0 million. The Company's total acquisition cost for such pledged assets was approximately R$68.0 million (approximately US$20.9 million based on the exchange rate as of September 30, 2016). The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements. Under the July 2012 Bank Agreements, the Company could borrow an aggregate of R$52.0 million (approximately US$16.0 million based on the exchange rate as of September 30, 2016) as financing for capital expenditures relating to the Company's manufacturing facility located in Brotas, Brazil. Specifically, Banco Pine, agreed to lend R$22.0 million and Nossa Caixa agreed to lend R$30.0 million. The funds for the loans are provided by BNDES, but are guaranteed by the lenders. The loans have a final maturity date of July 15, 2022 and bear a fixed interest rate of 5.5% per year. The loans are also subject to early maturity and delinquency charges upon occurrence of certain events including interruption of manufacturing activities at the Company's manufacturing facility in Brotas, Brazil for more than 30 days, except during the sugarcane off-season. For the first two years that the loans are outstanding, the Company is required to pay interest only on a quarterly basis. Since August 15, 2014, the Company has been required to pay equal monthly installments of both principal and interest for the remainder of the term of the loans. As of September 30, 2016 and December 31, 2015, a principal amount of R$37.9 million (approximately US$11.7 million based on the exchange rate as of September 30, 2016) and R$43.0 million (approximately US$11.0 million based on the exchange rate as of December 30, 2015), respectively, was outstanding under these loan agreements.
 
In March 2014, the Company entered into an export financing agreement with Banco ABC Brasil S.A. (or “ABC”) for approximately $2.2 million to fund exports through March 2015. This loan is collateralized by future exports from the Company's subsidiary in Brazil. In April, 2015, we entered into an additional export financing agreement with ABC for approximately $1.6 million to fund exports through March 2016. This loan is collateralized by future exports from the Company's subsidiary in Brazil. As of September 30, 2016, the aggregate principal amount outstanding under the ABC financing agreements was zero ($1.6 million at December 31, 2015). The Company was also a parent guarantor for the payment of the outstanding balance under these loan agreements. 
 
Exchange (debt conversion)
 
On July 29, 2015, the Company closed the "Exchange" pursuant to that certain Exchange Agreement, dated as of July 26, 2015 (or the “Exchange Agreement”), among the Company, Temasek and Total.
 
Under the Exchange Agreement, at the closing, Temasek exchanged $71.0 million in principal amount of outstanding Tranche I and Tranche II Notes (including paid-in-kind and accrued interest through July 29, 2015) and Total exchanged $70.0 million in principal amount of outstanding R&D Notes for shares of the Company’s common stock. The exchange price was $2.30 per share (the “Exchange Price”) and was paid by the exchange and cancellation of such outstanding convertible promissory notes, and Temasek and Total received 30,860,633 and 30,434,782 shares of the Company’s common stock, respectively, in the Exchange. As a result of the Exchange, accretion of debt discount was accelerated based on the Company’s estimate of the expected conversion date, resulting in an additional interest expense of $39.2 million for the year ended December 31, 2015.
 
Under the Exchange Agreement, Total also received at the closing the following warrants, each with a five-year term:
 
A warrant to purchase 18,924,191 shares of the Company’s Common Stock (or the “Total Funding Warrant”).
 
A warrant to purchase 2,000,000 shares of the Company’s common stock that will only be exercisable if the Company fails, as of March 1, 2017, to achieve a target cost per liter to manufacture farnesene (or the “Total R&D Warrant”). The Total Funding Warrant and the Total R&D Warrant are collectively referred to as the “Total Warrants.”
 
Additionally, under the Exchange Agreement, Temasek received the following warrants:
 
A warrant to purchase 14,677,861 shares of the Company’s common stock. (the “Temasek Exchange Warrant”).
 
A warrant exercisable for that number of shares of the Company’s common stock equal to (1) (A) the number of shares for which Total exercises the Total Funding Warrant plus (B) the number of additional shares for which the certain convertible notes remaining outstanding following the completion of the Exchange may become exercisable as a result of a reduction in the conversion price of such remaining notes as of a result of and/or subsequent to the date of the Exchange plus (C) that number of additional shares in excess of 2,000,000, if any, for which the Total R&D Warrant becomes exercisable multiplied by a fraction equal to 30.6% divided by 69.4% plus (2) (A) the number of any additional shares for which certain other outstanding convertible promissory notes may become exercisable as a result of a reduction to the conversion price of such notes multiplied by (B) a fraction equal to 13.3% divided by 86.7% (or the “Temasek Funding Warrant”).
 
A warrant exercisable for that number of shares of the Company’s common stock equal to 880,339 multiplied by a fraction equal to the number of shares for which Total exercises the Total R&D Warrant divided by 2,000,000. If Total is entitled to, and does, exercise the Total R&D Warrant in full, this warrant would be exercisable for 880,339 shares (or the “Temasek R&D Warrant”).
 
The Temasek Exchange Warrant, the Temasek Funding Warrant and the Temasek R&D Warrant each have ten-year terms and are referred to herein as the “Temasek Warrants” and, the Temasek Warrants and Total Warrants are hereinafter collectively referred to as the “Exchange Warrants”. All of the Exchange Warrants have an exercise price of $0.01 per share.
 
In addition to the grant of the Exchange Warrants, a warrant issued by the Company to Temasek in October 2013 in conjunction with a prior convertible debt financing (the “2013 Warrant”) became exercisable in full upon the completion of the Exchange. There were 1,000,000 shares underlying the 2013 Warrant, with an exercise price of $0.01 per share.
 
The exercisability of all of the Exchange Warrants was subject to stockholder approval, which was obtained on September 17, 2015.
 
In February and May 2016, as a result of the adjustments to the Tranche I and Tranche II Notes conversion prices discussed above under “Related Party Convertible Notes”, the Temasek Funding Warrant became exercisable for an additional 127,194 and 2,335,342 shares of common stock, respectively.
 
As of September 30, 2016, the Total Funding Warrant, the Temasek Exchange Warrant, and the 2013 Warrant had been fully exercised and Temasek had exercised the Temasek Funding Warrant with respect to 12,700,244 shares of common stock. Neither the Total R&D Warrant nor the Temasek R&D Warrant were exercisable as of September 30, 2016. Warrants to purchase 2,462,536 shares of common stock under the Temasek Funding Warrant were unexercised as of September 30, 2016.
 
Maturity Treatment Agreement
 
At the closing of the Exchange, the Company, Total and Temasek also entered into a Maturity Treatment Agreement, dated as of July 29, 2015, pursuant to which Total and Temasek agreed to convert any Tranche I Notes, Tranche II Notes or 2014 144A Notes held by them that were not cancelled in the Exchange (the “Remaining Notes”) into shares of the Company’s common stock in accordance with the terms of such Remaining Notes upon maturity, provided that certain events of default have not occurred with respect to the applicable Remaining Notes prior to such maturity. As of immediately following the closing of the Exchange, Temasek held $10.0 million in aggregate principal amount of Remaining Notes (consisting of 2014 144A Notes) and Total held approximately $25.0 million in aggregate principal amount of Remaining Notes (consisting of $9.7 million of 2014 144A Notes and $15.3 million of Tranche I and II Notes).
 
February 2016 Private Placement
 
On February 12, 2016, the Company entered into a Note and Warrant Purchase Agreement (the “February 2016 Purchase Agreement”) with the purchasers named therein for the sale of $18.0 million in aggregate principal amount of unsecured promissory notes (or the “February 2016 Notes”) to the purchasers, as well as warrants to purchase 2,571,428 shares of the Company’s common stock at an exercise price of $0.01 per share, representing aggregate proceeds to the Company of $18 million (the “Initial Sale”). On February 15, 2016, an additional purchaser joined the Purchase Agreement and purchased $2.0 million in aggregate principal amount of the February 2016 Notes, as well as warrants to purchase 285,714 shares of the Company’s common stock at an exercise price of $0.01 per share, representing aggregate proceeds to the Company of $2 million (or the “Subsequent Sale” and together with the Initial Sale, the “February 2016 Private Placement”). The February 2016 Notes and the warrants were issued in a private placement pursuant to the exemption from registration under Section 4(2) of the Securities Act and Regulation D promulgated under the Securities Act. The purchasers are existing stockholders of the Company and affiliated with certain members of the Company’s Board of Directors: Foris Ventures, LLC (an entity affiliated with director John Doerr of Kleiner Perkins Caufield & Byers, a current stockholder), which purchased $16.0 million aggregate principal amount of the Notes and warrants to purchase 2,285,714 shares of the Company’s common stock; Naxyris S.A. (an investment vehicle owned by Naxos Capital Partners SCA Sicar; director Carole Piwnica is Director of NAXOS UK, which is affiliated with Naxos Capital Partners SCA Sicar), which purchased $2.0 million aggregate principal amount of the Notes and warrants to purchase 285,714 shares of the Company’s common stock; and Biolding Investment SA, a fund affiliated with director HH Sheikh Abdullah bin Khalifa Al Thani, which purchased $2.0 million aggregate principal amount of the Notes and warrants to purchase 285,714 shares of the Company’s common stock. The Initial Sale closed on February 12, 2016, and the Subsequent Sale closed on February 15, 2016.
 
The February 2016 Notes are unsecured obligations of the Company and are subordinate to the Company’s obligations under the Senior Secured Loan Facility pursuant to a Subordination Agreement, dated as of February 12, 2016, by and among the Company, the purchasers and the administrative agent under the Senior Secured Loan Facility. Interest will accrue on the February 2016 Notes from and including, with respect to the Initial Sale, February 12, 2016, and with respect to the Subsequent Sale, February 15, 2016, at a rate of 13.50% per annum and is payable on May 15, 2017, the maturity date of the February 2016 Notes, unless the February 2016 Notes are prepaid in accordance with their terms prior to such date. The February 2016 Purchase Agreement and the February 2016 Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the February 2016 Notes may be due and payable immediately, as set forth in the February 2016 Notes.
 
The exercisability of the warrants issued in the February 2016 Private Placement, which each have a term of five years, was subject to stockholder approval, which was obtained on May 17, 2016. As of September 30, 2016, the carrying amount of the February 2016 Notes was $17.8 million.
 
June 2016 Private Placement
 
On June 24, 2016, the Company entered into a Note Purchase Agreement (or the “June 2016 Purchase Agreement”) with Foris Ventures, LLC for the sale of $5.0 million in aggregate principal amount of secured promissory notes (or the “June 2016 Notes”) to Foris Ventures, LLC in exchange for aggregate proceeds to the Company of $5.0 million (or the “June 2016 Private Placement”). The June 2016 Notes were issued in a private placement pursuant to the exemption from registration under Section 4(2) of the Securities Act of 1933, as amended and Regulation D promulgated under the Securities Act. The June 2016 Private Placement closed on June 24, 2016.
 
The June 2016 Notes are collateralized by a second priority lien on the assets securing the Company’s obligations under the Senior Secured Loan Facility, and are subordinate to the Company’s obligations under the Senior Secured Loan Facility pursuant to a Subordination Agreement, dated as of June 24, 2016, by and among the Company, Foris Ventures, LLC and the administrative agent under the Company’s Senior Secured Loan Facility. Interest will accrue on the June 2016 Notes from and including June 24, 2016 at a rate of 13.50% per annum and is payable in full on May 15, 2017, the maturity date of the June 2016 Notes, unless the June 2016 Notes are prepaid in accordance with their terms prior to such date. The June 2016 Purchase Agreement and the June 2016 Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the June 2016 Notes may be due and payable immediately, as set forth in the June 2016 Notes.
 
See Note 18, “Subsequent Events” for details regarding debt-related financing transactions completed subsequent to September 30, 2016.
 
Letters of Credit
 
In June 2012, the Company entered into a letter of credit agreement for $1.0 million under which it provided a letter of credit to the landlord of its headquarters in Emeryville, California, in order to cover the security deposit on the lease. This letter of credit is secured by a certificate of deposit. Accordingly, the Company has $1.0 million as restricted cash under this arrangement as of September 30, 2016 and December 31, 2015.
 
Future minimum payments under the debt agreements as of September 30, 2016 are as follows (in thousands):
 
Years ending December 31:   Related Party
Convertible
Debt
  Convertible
Debt
  Loans
Payable
  Related
Party Loans
payable
  Credit
Facility
  Total
2016 (remaining three months)   $ 312     $ 3,240     $ 1,770     $ 844     $ 33,234     $ 39,400  
2017     4,837       23,562       2,870       26,257       1,551       59,077  
2018     13,937       17,736       2,450             322       34,445  
2019     26,080       79,937       2,342             78       108,437  
2020                 2,234                   2,234  
Thereafter                 3,314                   3,314  
Total future minimum payments     45,166       124,475       14,980       27,101       35,185       246,907  
Less: amount representing interest
(1)
    (4,555 )     (55,942 )     (2,026 )     (4,254       (4,499 )     (71,276 )
Present value of minimum debt payments     40,611       68,533       12,954       22,847       30,686       175,631  
Less: current portion present value of minimum debt payments     (3,611 )     (15,357 )     (3,275 )     (22,847       (29,926 )     (75,016 )
Noncurrent portion of debt   $ 37,000     $ 53,176     $ 9,679     $     $ 760     $ 100,615  
______________
(1) Including debt discount of $33.0 million related to the embedded derivatives associated with the related party and non-related party debt which will be accreted to interest expense under the effective interest method over the term of the debt and debt issuance costs of $3.0 million.
 
In the quarter ended March 31, 2016, the Company adopted ASU 2015-03,
Interest - Imputation of Interest: Simplifying the Presentation of Debt Issuance Costs
, which requires debt issuance costs previously reported as a deferred charge within other noncurrent assets and prepaid expenses and other current assets to be presented as a direct reduction from the carrying amount of debt, consistent with debt discounts, applied retrospectively for all periods presented. As of December 31, 2015, this resulted in the reduction of noncurrent debt by $2.8 million, current debt by $1.4 million, other noncurrent assets by $2.8 million and prepaid expenses and other current assets by $1.4 million.
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Note 6 - Commitments and Contingencies
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Commitments Contingencies and Guarantees [Text Block]
6. Commitments and Contingencies
 
Lease Obligations
 
The Company leases certain facilities and finances certain equipment under operating and capital leases, respectively. Operating leases include leased facilities and capital leases include leased equipment (see Note 4, "Balance Sheet Components"). The Company recognizes rent expense on a straight-line basis over the non-cancellable lease term and records the difference between rent payments and the recognition of rent expense as a deferred rent liability. Where leases contain escalation clauses, rent abatements, and/or concessions, such as rent holidays and landlord or tenant incentives or allowances, the Company applies them as a straight-line rent expense over the lease term. The Company has non-cancellable operating lease agreements for office, research and development, and manufacturing space that expire at various dates, with the latest expiration in February 2031. Rent expense under operating leases was $1.3 million and $1.4 million for the three months ended September 30, 2016 and 2015, respectively, and was $4.0 million and $3.9 million for the nine months ended September 30, 2016 and 2015, respectively.
 
Future minimum payments under the Company's lease obligations as of September 30, 2016, are as follows (in thousands):
 
Years ending December 31:   Capital
Leases
  Operating
Leases
  Total Lease
Obligations
2016 (remaining three months)   $ 471     $ 1,762     $ 2,233  
2017     525       6,888       7,413  
2018     28       6,890       6,918  
2019           6,777       6,777  
2020           7,008       7,008  
Thereafter           18,210       18,210  
Total future minimum lease payments     1,024     $ 47,535     $ 48,559  
Less: amount representing interest     (26 )                
Present value of minimum lease payments     998                  
Less: current portion     (942 )                
Long-term portion   $ 56                  
 
Guarantor Arrangements
 
The Company has agreements whereby it indemnifies its officers and directors for certain events or occurrences while the officer or directors are serving in their official capacities. The indemnification period remains enforceable for the officer's or director’s lifetime. The maximum potential amount of future payments the Company could be required to make under these indemnification agreements is unlimited; however, the Company has a director and officer insurance policy that limits its exposure and enables the Company to recover a portion of any future payments. As a result of its insurance policy coverage, the Company believes the estimated fair value of these indemnification agreements is minimal. Accordingly, the Company had no liabilities recorded for these agreements as of September 30, 2016 and December 31, 2015.
 
The Company entered into the FINEP Credit Facility to finance a research and development project on sugarcane-based biodiesel (see Note 5, "Debt"). The FINEP Credit Facility is guaranteed by a chattel mortgage on certain equipment of the Company. The Company's total acquisition cost for the equipment under this guarantee is approximately R$6.0 million (approximately US$1.8 million based on the exchange rate as of September 30, 2016).
 
The Company entered into the BNDES Credit Facility to finance a production site in Brazil (see Note 5, "Debt").The BNDES Credit Facility is collateralized by a first priority security interest in certain of the Company's equipment and other tangible assets with a total acquisition cost of R$24.9 million (approximately US$7.7 million based on the exchange rate as of September 30, 2016). The Company is a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, the Company is required to provide certain bank guarantees under the BNDES Credit Facility.
 
The Company entered into loan agreements and security agreements whereby the Company pledged certain farnesene production assets as collateral (the fiduciary conveyance of movable goods) with each of Nossa Caixa and Banco Pine (see Note 5, "Debt"). The Company's total acquisition cost for the farnesene production assets pledged as collateral under these agreements is approximately R$68.0 million (approximately US$20.9 million based on the exchange rate as of September 30, 2016). The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements. 
 
The Company had an export financing agreement with Banco ABC Brasil S.A for approximately $2.2 million for a one year term to fund exports through March 2015. As of September 30, 2016, the loan was fully repaid. On April 8, 2015, the Company entered into another export financing agreement with the same bank for approximately $1.6 million for a one year term to fund exports through March 2016. The loan was fully repaid as of September 30, 2016. This loan is collateralized by future exports from Amyris Brasil. The Company is also a parent guarantor for the payment of the outstanding balance under these loan agreements. 
 
In October 2013, the Company entered into a letter agreement with Total relating to the Temasek Bridge Note and to the closing of the August 2013 Financing (or the "Amendment Agreement") (see Note 5, "Debt"). In the August 2013 Financing, the Company was required to provide the purchasers under the August 2013 SPA with a security interest in the Company’s intellectual property if Total still held such security interest as of the initial closing of the August 2013 Financing. Under the terms of a previous Intellectual Property Security Agreement by and between the Company and Total (or the "Security Agreement"), the Company had previously granted a security interest in favor of Total to secure the obligations of the Company under the R&D Notes issued and issuable to Total under the Total Purchase Agreement. The Security Agreement provided that such security interest would terminate if Total and the Company entered into certain agreements relating to the formation of the Fuels JV. In connection with Total’s agreement to (i) permit the Company to grant the security interest under the Temasek Bridge Note and the August 2013 Financing and (ii) waive a secured debt limitation contained in the outstanding R&D Notes issued pursuant to the Total Purchase Agreement and held by Total, the Company entered into the Amendment Agreement. Under the Amendment Agreement, the Company agreed to reduce, effective December 2, 2013, the conversion price for the R&D Notes issued in 2012 from $7.0682 per share to $2.20, the market price per share of the Company’s common stock as of the signing of the Amendment Agreement, as determined in accordance with applicable NASDAQ rules, unless the Company and Total entered into the JV Documents on or prior to December 2, 2013. The Company and Total entered into the JV agreements on December 2, 2013 and the Amendment Agreement and all security interests thereunder were automatically terminated and the conversion price of such R&D Notes remained at $7.0682 per share.
 
In December 2013, in connection with the execution of JV Documents entered into by and among Amyris, Total and TAB relating to the establishment of TAB (see Note 5, "Debt" and Note 7, "Joint Venture and Noncontrolling Interests"), the Company agreed to exchange the $69.0 million outstanding R&D Notes issued pursuant to the Total Purchase Agreement for replacement 1.5% Senior Secured Convertible Notes due March 2017, and grant a security interest to Total in and lien on all the Company’s rights, title and interest in and to the Company’s shares in the capital of TAB. Following execution of the JV Documents, all Unsecured R&D Notes that had been issued were exchanged for Secured R&D Notes. Further, the $10.85 million in principal amount of such notes issued in the initial tranche of the third closing under the Total Purchase Agreement in July 2014 and the $10.85 million in principal amount of such notes issued in the second tranche of the third closing were Secured R&D Notes instead of Unsecured R&D Notes. "See Note 5,"Debt" for details regarding the impact of the Exchange and Maturity Treatment Agreement on the R&D Notes. In March 2016, as a result of the restructuring of TAB discussed under Note 5, "Debt" and Note 7, "Joint Venture and Noncontrolling Interests," the remaining Secured R&D Notes were exchanged for an unsecured R&D Note in the principal amount of $3.7 million.
 
The Senior Secured Loan Facility and the June 2016 Notes (see Note 5, "Debt") are collateralized by first and second priority liens, respectively, on the Company's assets, including certain Company intellectual property.
 
Purchase Obligations
 
As of September 30, 2016 and December 31, 2015, the Company had $1.1 million and $1.3 million, respectively, in purchase obligations which included $0.6 million and $0.5 million, respectively, of non-cancellable contractual obligations and construction commitments.
 
Other Matters
 
Certain conditions may exist as of the date the financial statements are issued, which may result in a loss to the Company but will only be recorded when one or more future events occur or fail to occur. The Company's management assesses such contingent liabilities, and such assessment inherently involves an exercise of judgment. In assessing loss contingencies related to legal proceedings that are pending against and by the Company or unasserted claims that may result in such proceedings, the Company's management evaluates the perceived merits of any legal proceedings or unasserted claims as well as the perceived merits of the amount of relief sought or expected to be sought.
 
If the assessment of a contingency indicates that it is probable that a material loss has been incurred and the amount of the liability can be estimated, then the estimated liability would be accrued in the Company's financial statements. If the assessment indicates that a potential material loss contingency is not probable but is reasonably possible, or is probable but cannot be reasonably estimated, then the nature of the contingent liability, together with an estimate of the range of possible loss if determinable and material would be disclosed. Loss contingencies considered to be remote by management are generally not disclosed unless they involve guarantees, in which case the guarantee would be disclosed. The Company has levied indirect taxes on sugarcane-based biodiesel sales by Amyris Brasil to customers in Brasil based on advice from external legal counsel. In the absence of definitive rulings from the Brazilian tax authorities on the appropriate indirect tax rate to be applied to such product sales, the actual indirect rate to be applied to such sales could differ from the rate we levied.
 
The Company is subject to disputes and claims that arise or have arisen in the ordinary course of business and that have not resulted in legal proceedings or have not been fully adjudicated. Such matters that may arise in the ordinary course of business are subject to many uncertainties and outcomes are not predictable with reasonable assurance and therefore an estimate of all the reasonably possible losses cannot be determined at this time. Therefore, if one or more of these legal disputes or claims resulted in settlements or legal proceedings that were resolved against the Company for amounts in excess of management’s expectations, the Company’s consolidated financial statements for the relevant reporting period could be materially adversely affected.
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Note 7 - Joint Ventures and Noncontrolling Interests
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Equity Method Investments and Joint Ventures Disclosure [Text Block]
7. Joint Ventures and Noncontrolling Interests
 
Novvi LLC
 
In September 2011, the Company and Cosan US, Inc. (or “Cosan U.S.”) formed Novvi LLC (or “Novvi”), a U.S. entity that is jointly owned by the Company and Cosan U.S. In March 2013, the Company and Cosan U.S. entered into agreements to (i) expand their base oils joint venture to also include additives and lubricants and (ii) operate their joint venture exclusively through Novvi. Specifically, the parties entered into an Amended and Restated Operating Agreement for Novvi (or the “Operating Agreement”), which sets forth the governance procedures for Novvi and the parties' initial contribution. The Company also entered into an IP License Agreement with Novvi (as amended in March 2016, the “IP License Agreement”) under which the Company granted Novvi (i) an exclusive (subject to certain limited exceptions for the Company), worldwide, royalty-free license to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in automotive, commercial, and industrial lubricants markets, and (ii) a non-exclusive, royalty free license, subject to certain conditions, to manufacture Biofene solely for its own products. In addition, both the Company and Cosan U.S. granted Novvi certain rights of first refusal with respect to alternative base oil and additive technologies that may be acquired by the Company or Cosan U.S. during the term of the IP License Agreement. Under these agreements, through September 30, 2016 the Company and Cosan U.S. each owned 50% of Novvi and each party shared equally in any costs and any profits ultimately realized by the joint venture. Novvi is governed by a six member Board of Managers (or the “Board of Managers”). The Board of Managers appoints the officers of Novvi, who are responsible for carrying out the daily operating activities of Novvi as directed by the Board of Managers. The IP License Agreement has an initial term of 20 years from the date of the agreement, subject to standard early termination provisions such as uncured material breach or a party's insolvency. Under the terms of the Operating Agreement, Cosan U.S. was obligated to fund its initial 50% ownership share of Novvi in cash in the amount of $10.0 million and the Company was obligated to fund its initial 50% ownership share of Novvi through the granting of an IP License to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in the automotive, commercial and industrial lubricants markets, which Cosan U.S. and Amyris agreed was valued at $10.0 million. In March 2013, the Company measured its initial contribution of intellectual property to Novvi at the Company's carrying value of the licenses granted under the IP License Agreement, which was zero.
 
In April 2014, the Company, via its forgiveness of existing receivables due from Novvi related to rent and other services performed by the Company, purchased additional membership units of Novvi for a purchase price of $0.2 million. Concurrently, Cosan U.S. purchased an equal amount of additional membership units of Novvi. Also in April 2014, the Company and Cosan U.S. each contributed $2.1 million in cash in exchange for receiving additional membership units in Novvi. Following such transactions, the Company and Cosan U.S. continued to each own 50% of Novvi's issued and outstanding membership units.
 
In September 2014, the Company and Cosan U.S. entered into a member senior loan agreement to grant Novvi a loan amounting to approximately $3.7 million. The loan is due on September 1, 2017 and bears interest at a rate of 0.36% per annum. Interest accrues daily and is due and payable in arrears on September 1, 2017. The Company and Cosan U.S. each agreed to provide 50% of the loan. The Company's share of approximately $1.8 million was disbursed in two installments. The first installment of $1.2 million was made in September 2014 and the second installment of $0.6 million was made in October 2014. In November 2014, the Company and Cosan U.S. entered into a second member senior loan agreement to grant Novvi a loan of approximately $1.9 million on the same terms as the loan issued in September 2014, except that the due date is November 10, 2017. The Company and Cosan U.S. each agreed to provide 50% of the loan. The Company disbursed its share of the loan (i.e., approximately $1.0 million) in November 2014. In May 2015, the Company and Cosan U.S. entered into a third member senior loan agreement to grant Novvi a loan of approximately $1.1 million on the same terms as the loan issued in September 2014, except that the due date is May 14, 2018. The Company and Cosan U.S. each agreed to provide 50% of the loan.
 
In the fourth quarter of 2015, the Company and Cosan U.S. entered into four additional member senior loan agreements to grant Novvi an aggregate loan of approximately $1.6 million on the same terms as the loan issued in September 2014, except that the respective due dates are August 19, 2018, October 15, 2018, November 12, 2018 and December 17, 2018. The Company and Cosan U.S. each agreed to provide 50% of each of these four loans. In July 2016, the Company contributed all outstanding amounts owing by Novvi to the Company under the seven member senior loan agreements in exchange for receiving additional membership units in Novvi.
 
In February 2016, the Company purchased additional membership units of Novvi for an aggregate purchase price of approximately $0.6 million in the form of forgiveness of existing receivables due from Novvi related to rent and other services performed by the Company, and Cosan U.S. purchased an equal number of additional membership units in Novvi for approximately $0.6 million in cash. Following such transactions, each member continued to own 50% of Novvi's issued and outstanding membership units.
 
On July 19, 2016, American Refining Group, Inc. (or “ARG”) agreed to make a capital contribution of up to $10.0 million in cash to Novvi, subject to certain conditions, in exchange for a one third ownership stake in Novvi. In connection with such investment, the Company agreed to contribute all outstanding amounts owed by Novvi to the Company under the seven existing member senior loan agreements between the Company and Novvi, as well as certain existing receivables due from Novvi to the Company related to rent and other services performance by the Company, in exchange for receiving additional membership units in Novvi. Likewise, Cosan U.S. contributed an equal amount to Novvi as the Company in exchange for receiving an equal amount of additional membership interests in Novvi. Following the ARG investment, assuming it is made in full, and the capital contributions of the Company and Cosan U.S., each of Novvi’s three members (i.e., ARG, the Company and Cosan U.S.) will own one third of Novvi’s issued and outstanding membership units and will each be represented by two members of the Board of Managers. In order to reflect the ARG investment in Novvi and related transactions, the Amended and Restated Operating Agreement of Novvi was amended and restated on July 19, 2016. In addition, the IP License Agreement between Novvi and the Company was also amended on July 19, 2016. As of September 30, 2016, $4.0 million of ARG's capital contribution to Novvi had been funded.
 
Additional funding requirements to finance the ongoing operations of Novvi are expected to happen through revolving credit or other loan facilities provided by unrelated parties (i.e., such as financial institutions); cash advances or other credit or loan facilities provided by Novvi’s members or their affiliates; or additional capital contributions by the existing Novvi members or new investors.
 
The Company has identified Novvi as a VIE and determined that the power to direct activities, which most significantly impact the economic success of the joint venture (i.e., continuing research and development, marketing, sales, distribution and manufacturing of Novvi products), the Company and Cosan U.S. Accordingly, the Company is not the primary beneficiary and therefore accounts for its investment in Novvi under the equity method of accounting. The Company will continue to reassess its primary beneficiary analysis of Novvi if there are changes in events and circumstances impacting the power to direct activities that most significantly affect Novvi's economic success. Under the equity method, the Company's share of profits and losses and impairment charges on investments in affiliates are included in “Loss from investments in affiliates” in the condensed consolidated statements of operations. The carrying amount of the Company's equity investment in Novvi as of September 30, 2016 and December 31, 2015 was zero and the Company recognized zero and $0.7 million losses for the three months ended September 30, 2016 and 2015, respectively, and zero and $2.1 million for the nine months ended September 30, 2016 and 2015, respectively.
 
Total Amyris BioSolutions B.V.
 
In November 2013, the Company and Total formed Total Amyris BioSolutions B.V. (or “TAB”), a joint venture to produce and commercialize farnesene- or farnesane-based jet and diesel fuels. Prior to the restructuring of TAB in March 2016 as described below, the common equity of TAB was owned equally by the Company and Total, and TAB’s purpose was limited to executing the License Agreement dated December 2, 2013 between the Company, Total and TAB and maintaining such licenses under it, unless and until either (i) Total elected to go forward with either the full (diesel and jet fuel) TAB commercialization program or the jet fuel component of the TAB commercialization program (or a “Go Decision”), (ii) Total elected to not continue its participation in the R&D Program and TAB (or a “No-Go Decision”), or (iii) Total exercised any of its rights to buy out the Company’s interest in TAB. Following a Go Decision, the articles and shareholders’ agreement of TAB would be amended and restated to be consistent with the shareholders’ agreement contemplated by the Total Fuel Agreements (see Note 5, "Debt" and Note 8, "Significant Agreements").
 
In July 2015, the Company and Total entered into a Letter Agreement (or, as amended in February 2016, the “TAB Letter Agreement”) regarding the restructuring of the ownership and rights of TAB (or the “Restructuring”), pursuant to which the parties agreed to, among other things, enter into an Amended & Restated Jet Fuel License Agreement between the Company and TAB (or the “Jet Fuel Agreement”), a License Agreement regarding Diesel Fuel in the European Union (or the “EU”) between the Company and Total (or the “EU Diesel Fuel Agreement”), and an Amended and Restated Shareholders’ Agreement among the Company, Total and TAB, and file a Deed of Amendment of Articles of Association of TAB, all in order to reflect certain changes to the ownership structure of TAB and license grants and related rights pertaining to TAB.
 
On February 12, 2016, the Company and Total entered into an amendment to the TAB Letter Agreement, pursuant to which the parties agreed that, upon the closing of the Restructuring, Total would cancel R&D Notes in an aggregate principal amount of approximately $1.3 million, plus all paid-in-kind and accrued interest as of the closing of the Restructuring under all outstanding R&D Notes (including all such interest that was outstanding as of July 29, 2015), and a note in the principal amount of Euro 50,000, plus accrued interest, issued by the Company to Total in connection with the existing TAB capitalization, in exchange for an additional 25% ownership interest of TAB (giving Total an aggregate ownership stake of 75% of TAB and giving the Company an aggregate ownership stake of 25% of TAB). In connection therewith, Total would surrender to the Company the remaining R&D Notes and the Company would provide to Total a new unsecured senior convertible note, containing substantially similar terms and conditions, in the principal amount of $3.7 million (collectively, the “TAB Share Purchase”).
 
On March 21, 2016, the Company, Total and TAB closed the Restructuring and the TAB Share Purchase. See Note 5, “Debt” for further details of the impact of these transaction on the Company’s condensed consolidated financial statements.
 
Under the Jet Fuel Agreement, (a) the Company granted exclusive (co-exclusive in Brazil), world-wide, royalty-free rights to TAB for the production and commercialization of farnesene- or farnesane-based jet fuel, (b) the Company granted TAB the option, until March 1, 2018, to purchase the Company’s Brazil jet fuel business at a price based on the fair value of the commercial assets and on the Company’s investment in other related assets, (c) the Company granted TAB the right to purchase farnesene or farnesane for its jet fuel business from the Company on a “most-favored” pricing basis and (d) all rights to farnesene- or farnesane-based diesel fuel previously granted to TAB by the Company reverted back to the Company. As a result of the Jet Fuel Agreement, the Company generally no longer has an independent right to make or sell, without the approval of TAB, farnesene- or farnesane-based jet fuels outside of Brazil.
 
Upon all farnesene-or farnesane-based diesel fuel rights reverting back to the Company, the Company granted to Total, pursuant to the EU Diesel Fuel Agreement, (a) an exclusive, royalty-free license to offer for sale and sell farnesene- or farnesane-based diesel fuel in the EU, (b) the non-exclusive right to make farnesene or farnesane anywhere in the world, but Total must (i) use such farnesene or farnesane to produce only diesel fuel to offer for sale or sell in the EU and (ii) pay the Company a to-be-negotiated, commercially reasonable, “most-favored” basis royalty and (c) the right to purchase farnesene or farnesane for its EU diesel fuel business from the Company on a “most-favored” pricing basis. As a result of the EU Diesel Fuel Agreement, the Company generally no longer has an independent right to make or sell, without the approval of TAB, farnesene- or farnesane-based diesel fuels in the EU.
 
As a result of, and in order to reflect, the changes to the ownership structure of TAB described above, on March 21, 2016, (a) the Company, Total and TAB entered into an Amended and Restated Shareholders’ Agreement and filed a Deed of Amendment of Articles of Association of TAB and (b) the Company and Total terminated the Amended and Restated Master Framework Agreement, dated December 2, 2013 and amended on April 1, 2015, between the Company and Total.
 
As of September 30, 2016, the common equity of TAB was owned 25% by the Company and 75% by Total. TAB has a capitalization as of September 30, 2016 of €0.1 million (approximately US$0.1 million based on the exchange rate as of September 30, 2016). The Company has identified TAB as a VIE and determined that the Company is not the primary beneficiary and therefore accounts for its investment in TAB under the equity method of accounting. Under the equity method, the Company's share of profits and losses are included in “Loss from investment in affiliate” in the consolidated statements of operations.
 
SMA Indústria Química S.A.
 
In April 2010, the Company established SMA Indústria Química (or "SMA"), a joint venture with São Martinho S.A. (or "SMSA"), to build a production facility in Brazil. SMA is located at the SMSA mill in Pradópolis, São Paulo state. The joint venture agreements establishing SMA have a 20 year initial term.
 
SMA was initially managed by a three member executive committee, of which the Company appointed two members, one of whom is the plant manager who is the most senior executive responsible for managing the construction and operation of the facility. SMA was initially governed by a four member board of directors, of which the Company and SMSA each appointed two members. The board of directors had certain protective rights which include final approval of the engineering designs and project work plan developed and recommended by the executive committee.
 
The joint venture agreements required the Company to fund the construction costs of the new facility and SMSA would reimburse the Company up to R$61.8 million (approximately US$19.0 million based on the exchange rate as of September 30, 2016) of the construction costs after SMA commences production. After commercialization, the Company would market and distribute Amyris renewable products produced by SMA and SMSA would sell feedstock and provide certain other services to SMA. The cost of the feedstock to SMA would be a price that is based on the average return that SMSA could receive from the production of its current products, sugar and ethanol. The Company would be required to purchase the output of SMA for the first four years at a price that guarantees the return of SMSA’s investment plus a fixed interest rate. After this four year period, the price would be set to guarantee a break-even price to SMA plus an agreed upon return.
 
Under the terms of the joint venture agreements, if the Company became controlled, directly or indirectly, by a competitor of SMSA, then SMSA would have the right to acquire the Company’s interest in SMA. If SMSA became controlled, directly or indirectly, by a competitor of the Company, then the Company would have the right to sell its interest in SMA to SMSA. In either case, the purchase price would be determined in accordance with the joint venture agreements, and the Company would continue to have the obligation to acquire products produced by SMA for the remainder of the term of the supply agreement then in effect even though the Company would no longer be involved in SMA’s management.
 
The Company initially had a 50% ownership interest in SMA. The Company has identified SMA as a VIE pursuant to the accounting guidance for consolidating VIEs because the amount of total equity investment at risk is not sufficient to permit SMA to finance its activities without additional subordinated financial support, as well as because the related commercialization agreement provides a substantive minimum price guarantee. Under the terms of the joint venture agreement, the Company directed the design and construction activities, as well as production and distribution. In addition, the Company had the obligation to fund the design and construction activities until commercialization was achieved. Subsequent to the construction phase, both parties equally would fund SMA for the term of the joint venture. Based on those factors, the Company was determined to have the power to direct the activities that most significantly impact SMA’s economic performance and the obligation to absorb losses and the right to receive benefits. Accordingly, the financial results of SMA are included in the Company’s consolidated financial statements and amounts pertaining to SMSA’s interest in SMA are reported as noncontrolling interests in subsidiaries.
 
The Company completed a significant portion of the construction of the new facility in 2012. The Company suspended construction of the facility in 2013 in order to focus on completing and operating the Company's smaller production facility in Brotas, Brazil. In February 2014, the Company entered into an amendment to the joint venture agreement with SMSA which updated and documented certain preexisting business plan requirements related to the recommencement of construction at the joint venture operated plant and sets forth, among other things, (i) the extension of the deadline for the commencement of operations at the joint venture operated plant to no later than 18 months following the construction of the plant no later than March 31, 2017, and (ii) the extension of an option held by SMSA to build a second large-scale farnesene production facility to no later than December 31, 2018 with the commencement of operations at such second facility to occur no later than April 1, 2019. On July 1, 2015 SMSA filed a material fact document with CVM, the Brazilian securities regulator, that announced that certain contractual targets undertaken by the Company have not been achieved, which affects the feasibility of the project. Therefore, SMSA decided not to approve continuing construction of the plant for the joint venture with the Company and its Brazilian subsidiary Amyris Brasil. In July 2015, the Company announced that it was in discussions with SMSA regarding the continuation of the joint venture. In December 2015, the Company and SMSA entered into a Termination Agreement and a Share Purchase and Sale Agreement relating to the termination of the joint venture. Under the Termination Agreement, the parties agreed that the joint venture would be terminated effective upon the closing of a purchase by Amyris Brasil of SMSA’s shares of SMA. Under the Share Purchase and Sale Agreement, Amyris Brasil agreed to purchase, for R$50,000 (approximately US$15,426 based on the exchange rate as of September 30, 2016), 50,000 shares of SMA (representing all the outstanding shares of SMA held by SMSA), which purchase and sale was consummated on January 11, 2016. The Share Purchase and Sale Agreement also provided that the Company and Amyris Brasil would have 12 months following the closing of the share purchase to remove assets from SMSA’s site, and enter into an extension of the lease for such 12 month period for monthly rental payments of R$9,853 (approximately US$3,040 based on the exchange rate as of September 30, 2016). The Share Purchase and Sale Agreement also clarified that the Company and Amyris Brasil would not be required to demolish or remove the foundations of the plant at the SMSA site. On September 1, 2016, the parties entered into an addendum to the Share Purchase and Sale Agreement (and a corresponding amendment to the lease) which extended the deadline for the Company and Amyris Brasil to remove assets from SMSA’s site until December 31, 2017.
 
Glycotech
 
In January 2011, the Company entered into a production service agreement (or the "Glycotech Agreement") with Glycotech, Inc. (or "Glycotech"), under which Glycotech provides process development and production services for the manufacturing of various Company products at its leased facility in Leland, North Carolina. The Company products manufactured by Glycotech are owned and distributed by the Company. Pursuant to the terms of the Glycotech Agreement, the Company is required to pay the manufacturing and operating costs of the Glycotech facility, which is dedicated solely to the manufacture of Amyris products. The initial term of the Glycotech Agreement was for a two year period commencing on February 1, 2011 and the Glycotech Agreement renews automatically for successive one-year terms, unless terminated by the Company. Concurrent with the Glycotech Agreement, the Company also entered into a Right of First Refusal Agreement with the lessor of the facility and site leased by Glycotech (or the "ROFR Agreement"). Per conditions of the ROFR Agreement, the lessor agreed not to sell the facility and site leased by Glycotech during the term of the Glycotech Agreement. In the event that the lessor is presented with an offer to sell or decides to sell an adjacent parcel, the Company has the right of first refusal to acquire it.
 
The Company has determined that the arrangement with Glycotech qualifies as a VIE. The Company determined that it is the primary beneficiary of this arrangement since it has the power through the management committee over which it has majority control to direct the activities that most significantly impact Glycotech's economic performance. In addition, the Company is required to fund 100% of Glycotech's actual operating costs for providing services each month while the facility is in operation under the Glycotech Agreement. Accordingly, the Company consolidates the financial results of Glycotech. The carrying amounts of Glycotech's assets and liabilities were not material to the Company's condensed consolidated financial statements.
 
The table below reflects the carrying amount of the assets and liabilities of the consolidated VIE for which the Company is the primary beneficiary at September 30, 2016 (two at December 31, 2015). As of September 30, 2016 and December 31, 2015, the assets include $0.1 million and $5.2 million in property, plant and equipment, respectively, $0.4 million and $1.5 million in current assets, respectively, and zero and $0.3 million in other assets as of September 30, 2016 and December 31, 2015 include, respectively. As of September 30, 2016 and December 31, 2015, the liabilities include $0.2 million and $1.1 million, respectively, in accounts payable and accrued current liabilities, and $0.1 million and $0.1 million, respectively, in loan obligations by Glycotech to its shareholders that are non-recourse to the Company. The creditors of each consolidated VIE have recourse only to the assets of that VIE.
 
(In thousands)   September 30,
2016
  December 31,
2015
Assets   $ 493     $ 6,993  
Liabilities   $ 257     $ 1,221  
 
The change in noncontrolling interest for the nine months ended September 30, 2016 and 2015, is summarized below (in thousands):
 
    2016   2015
Balance at January 1   $ 391     $ 611  
Foreign currency translation adjustment           (393 )
Income attributable to noncontrolling interest           78  
Acquisition of noncontrolling interest     (277 )      
Balance at September 30   $ 114     $ 296  
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Note 8 - Significant Agreements
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Collaborative Arrangement Disclosure [Text Block]
8. Significant Agreements
 
Research and Development Activities
 
Total Collaboration Arrangement
 
In June 2010, the Company entered into a technology license, development, research and collaboration agreement (or the “Total Collaboration Agreement”) with Total Gas & Power USA Biotech, Inc., an affiliate of Total. This agreement provided for joint collaboration on the development of products through the use of the Company’s synthetic biology platform. In November 2011, the Company entered into a first amendment of the Total Collaboration Agreement with respect to development and commercialization of Biofene for fuels. This represented an expansion of the initial collaboration with Total, and established a global, exclusive collaboration for the development of Biofene for fuels and a framework for the creation of a joint venture to manufacture and commercialize Biofene for diesel. In addition, a limited number of other potential products were subject to development by the joint venture on a non-exclusive basis.
 
The first amendment provided for an exclusive strategic collaboration for the development of renewable diesel products and contemplated that the parties would establish a joint venture (or the “JV”) for the production and commercialization of such renewable diesel products on an exclusive, worldwide basis. In addition, the first amendment contemplated providing the JV with the right to produce and commercialize certain other chemical products on a non-exclusive basis. The first amendment further provided that definitive agreements to form the JV had to be in place by March 31, 2012 or such other date as agreed to by the parties or the renewable diesel program, including any further collaboration payments by Total related to the renewable diesel program, would terminate. In the second quarter of 2012, the parties extended the deadline to June 30, 2012, and, through June 30, 2012, the parties were engaged in discussions regarding the structure of future payments related to the program, until the first amendment was superseded by a second amendment in July 2012 (as further described below).
 
Pursuant to the first amendment, Total agreed to fund the following amounts: (i) the first $30.0 million in research and development costs related to the renewable diesel program incurred since August 1, 2011, which amount would be in addition to the $50.0 million in research and development funding contemplated by the Total Collaboration Agreement, and (ii) for any research and development costs incurred following the JV formation date that were not covered by the initial $30.0 million, an additional $10.0 million in 2012 and up to an additional $10.0 million in 2013, which amounts would be considered part of the $50.0 million contemplated by the Total Collaboration Agreement. In addition to these payments, Total further agreed to fund 50% of all remaining research and development costs for the renewable diesel program under the Amendment.
 
In July 2012, the Company entered into a second amendment of the Total Collaboration Agreement that expanded Total’s investment in the Biofene collaboration, incorporated the development of certain JV products for use in diesel and jet fuel into the scope of the collaboration, and changed the structure of the funding from Total for the collaboration by establishing a convertible debt structure for the collaboration funding (see Note 5, “Debt”). In connection with such second amendment Total and the Company also executed certain other related agreements. Under these agreements (collectively referred to as the “Total Fuel Agreements”), the parties would grant exclusive manufacturing and commercial licenses to the JV for the JV products (diesel and jet fuel from Biofene) when the JV was formed. The licenses to the JV were to be consistent with the principle that development, production and commercialization of the JV products in Brazil would remain with Amyris unless Total elected, after formation of the operational JV, to have such business contributed to the joint venture. Further, as part of the Total Fuel Agreements, Total's royalty option contingency related to diesel was removed and the jet fuel collaboration was combined with the expanded Biofene collaboration. As a result, $46.5 million of payments previously received from Total that had been recorded as an advance from Total were no longer contingently repayable. Of this amount, $23.3 million was treated as a repayment by the Company and included as part of the senior unsecured convertible promissory note issued to Total in July 2012 and the remaining $23.2 million was recorded as a contract to perform research and development services, which was offset by the reduction of the capitalized deferred charge asset of $14.4 million resulting in the Company recording revenue from a related party of $8.9 million in 2012. On March 21, 2016, the Company and Total consummated a restructuring of the JV pursuant to a letter agreement dated July 26, 2015, as amended on February 12, 2016, which restructuring included, among other things, the parties amending certain of the Total Fuel Agreements and the Company selling part of its ownership stake in the JV to Total in exchange for Total cancelling certain outstanding indebtedness issued to Total by the Company. In July 2016, the Company and Total agreed to extend the term of the Total Collaboration Agreement from July 31, 2016 to March 1, 2017 pursuant to the terms of the Total Collaboration Agreement. See Note 5, "Debt" and Note 7, "Joint Ventures and Noncontrolling Interest" for further details of the Company’s relationship with Total.
 
F&F Collaboration Agreement
 
In March 2013, the Company entered into a Master Collaboration Agreement (or, as amended in July 2015, the “F&F Collaboration Agreement”) with a collaboration partner to establish a collaboration arrangement for the development and commercialization of multiple renewable flavors and fragrances compounds. Under the F&F Collaboration Agreement, except for rights granted under pre-existing collaboration relationships, the Company granted the collaboration partner exclusive access to specified Company intellectual property for the development and commercialization of flavors and fragrances compounds in exchange for research and development funding and a profit sharing arrangement. The F&F Collaboration Agreement superseded and expanded the November 2010 Master Collaboration and Joint Development Agreement between the Company and the collaboration partner.
 
The F&F Collaboration Agreement provided for annual, up-front funding to the Company by the collaboration partner of $10.0 million for each of the first three years of the collaboration. Payments of $10.0 million were received by the Company in each of March 2013, 2014 and 2015. The F&F Collaboration Agreement contemplates additional funding by the collaboration partner of up to $5.0 million under four potential milestone payments, as well as additional funding by the collaboration partner on a discretionary basis. Through September 2016, the Company had achieved the third performance milestone under the F&F Collaboration Agreement and recognized collaboration revenues of $1.3 million under the F&F Collaboration Agreement for the three months ended September 30, 2016 and $5.5 million for the nine months ended September 30, 2016. The F&F Collaboration Agreement does not impose any specific research and development obligations on either party after year six, but provides that if the parties mutually agree to perform research and development activities after year six, the parties will fund such activities equally.
 
Under the F&F Collaboration Agreement, the parties agreed to jointly select target compounds, subject to final approval of compound specifications by the collaboration partner. During the development phase, the Company would be required to provide labor, intellectual property and technology infrastructure and the collaboration partner would be required to contribute downstream polishing expertise and market access. The F&F Collaboration Agreement provides that the Company will own research and development and strain engineering intellectual property, and the collaboration partner will own blending and, if applicable, chemical conversion intellectual property. Under certain circumstances, such as the Company’s insolvency, the collaboration partner would gain expanded access to the Company’s intellectual property. The F&F Collaboration Agreement contemplates that, following development of flavors and fragrances compounds, the Company will manufacture the initial target molecules for the compounds and the collaboration partner will perform any required downstream polishing and distribution, sales and marketing. The F&F Collaboration Agreement provides that the parties will mutually agree on a supply price for each compound developed under the agreement and, subject to certain exceptions, will share product margins from sales of each such compound on a 70/30 basis (70% for the collaboration partner) until the collaboration partner receives $15.0 million more than the Company in the aggregate from such sales, after which time the parties will share the product margins 50/50. The Company also agreed to pay a one-time success bonus to the collaboration partner of up to $2.5 million if certain commercialization targets are met.
 
In September 2014, the Company entered into a supply agreement with the collaboration partner for a compound developed under the F&F Collaboration Agreement. The Company recognized $0.1 million and $1.3 million of revenues from product sales under this agreement for the three months ended September 30, 2016 and 2015, respectively and $4.7 million and $1.3 million for the nine months ended September 30, 2016 and 2015.
 
Michelin and Braskem Collaboration Agreements
 
In June 2014, the Company entered into a collaboration agreement with Braskem S.A. (or “Braskem”) and Manufacture Francaise de Pnematiques Michelin (or “Michelin”) to collaborate to develop the technology to produce and possibly commercialize renewable isoprene. The term of the collaboration agreement commenced on June 30, 2014 and will continue, unless earlier terminated in accordance with the agreement, until the first to occur of (i) the date that is three years following the actual date on which a work plan is completed, which date is estimated to occur on or about December 30, 2020, or (ii) the date of the commencement of commissioning of a production plant for the production of renewable isoprene. The June 2014 collaboration agreement terminated and superseded the September 2011 collaboration agreement between the Company and Michelin and, as a result of the signing of the June 2014 collaboration agreement, the upfront payment by Michelin of $5.0 million under the September 2011 collaboration agreement was rolled forward into the new collaboration agreement as Michelin’s funding towards the research and development activities to be performed under the new collaboration agreement. Braskem contributed $4.0 million of funding to the research and development activities under the June 2014 collaboration agreement, of which $2.0 million was received in July 2014 and $2.0 million was received in January 2015.
 
For this collaboration agreement, the Company recognized collaboration revenues of zero and zero for the three months ended September 30, 2016 and 2015, respectively, and $0.1 million and $1.9 million for the nine months ended September 30, 2016 and 2015, respectively. As of September 30, 2016 and 2015, $6.5 million and $6.3 million, respectively, of deferred revenues were recorded in the condensed consolidated balance sheet related to these agreements.
 
Kuraray Collaboration Agreement and Securities Purchase Agreement
 
In March 2014, the Company entered into the Second Amended and Restated Collaboration Agreement with Kuraray Co., Ltd (or “Kuraray”) in order to extend the term of the original collaboration agreement between the Company and Kuraray dated July 21, 2011 for an additional two years and add additional fields and products to the scope of development. In consideration for the Company’s agreement to extend the term of the original collaboration agreement and add additional fields and products, Kuraray agreed to pay the Company $4.0 million in two equal installments of $2.0 million. The first installment was paid on April 30, 2014 and the second installment was due on April 30, 2015. In connection with entering into the Second Amended and Restated Collaboration Agreement, Kuraray signed a Securities Purchase Agreement in March 2014 to purchase 943,396 shares of the Company's common stock at a price per share of $4.24 per share, which shares were sold and issued in April 2014 for aggregate cash proceeds to the Company of $4.0 million. In March 2015, the Company and Kuraray entered into the First Amendment to the Second Amended and Restated Collaboration Agreement to extend the term of the original collaboration agreement until December 31, 2016 and to accelerate payment to the Company of the second installment of $2.0 million due from Kuraray under the Second Amended and Restated Collaboration Agreement to March 31, 2015.
 
The Company recognized collaboration revenues of $0.4 million and $0.3 million for the three months ended September 30, 2016 and 2015, and $1.1 million and $1.2 million for the nine months ended September 30, 2016 and 2015, respectively, under this agreement.
 
DARPA
 
In September 2015, the Company entered into a Technology Investment Agreement (or the “2015 TIA”) with The Defense Advanced Research Projects Agency (or “DARPA”), under which the Company, with the assistance of five specialized subcontractors, will work to create new research and development tools and technologies for strain engineering and scale-up activities. The program that is the subject of the 2015 TIA will be performed and funded on a milestone basis, where DARPA, upon the Company’s successful completion of each milestone event in the 2015 TIA, will pay the Company the amount set forth in the 2015 TIA corresponding to such milestone event. Under the 2015 TIA, the Company and its subcontractors could collectively receive DARPA funding of up to $35.0 million over the program’s four year term if all of the program’s milestones are achieved. In conjunction with DARPA’s funding, the Company and its subcontractors are obligated to collectively contribute approximately $15.5 million toward the program over its four year term (primarily by providing specified labor and/or purchasing certain equipment). The Company can elect to retain title to the patentable inventions it produces under the program, but DARPA receives certain data rights as well as a government purposes license to certain of such inventions. Either party may, upon written notice and subject to certain consultation obligations, terminate the 2015 TIA upon a reasonable determination that the program will not produce beneficial results commensurate with the expenditure of resources.
 
The Company recognized collaboration revenues of $1.3 million and zero under this agreement for the three months ended September 30, 2016 and 2015, respectively, and $4.8 million and zero for the nine months ended September 30, 2016 and 2015, respectively.
 
Givaudan Collaboration Agreement
 
In June 2016, the Company entered into a Collaboration Agreement with Givaudan International, SA (or “Givaudan”), a global flavors and fragrances company, to establish a collaboration for the development and commercialization of certain renewable compounds for use in the fields of active cosmetics and flavors. Under this collaboration agreement, the Company will use its labor, intellectual property and technology infrastructure to develop and commercialize certain compounds for Givaudan. In exchange, Givaudan will pay to the Company $12.0 million in semi-annual installments of $3.0 million each, beginning on June 30, 2016. The Company received the first installment of $3.0 million on June 30, 2016 and this amount was recognized in deferred revenue as of that date.
 
Pursuant to this collaboration agreement, the Company will grant to Givaudan an exclusive license to the intellectual property that the Company generates under the agreement. Such license will include the rights to make, use and sell compounds in the active cosmetics and flavors fields, and is subject to certain ‘claw back’ rights by the Company if a compound is not commercialized by Givaudan during the term of the agreement. The Company will also grant to Givaudan non-exclusive rights to certain portions of the Company’s existing intellectual property in order to facilitate activities under the agreement. Givaudan, on the other hand, will grant to the Company a non-exclusive license to the intellectual property that is generated under the agreement. Such non-exclusive license will include the rights to make, use and sell compounds in all fields except active cosmetics and flavors.
 
Subject to certain rights granted to a third party, Givaudan will have the exclusive right to commercialize the compounds in the active cosmetics and flavors markets during the term of the agreement. Further, the Company has agreed that it will not assist any third party in the development or commercialization of other compounds for sale or use in the active cosmetics or flavors markets during the term of the agreement. In addition, the agreement contemplates that the Company will be the primary supplier of commercial quantities of the compounds to Givaudan pursuant to supply agreements to be mutually negotiated by the parties.
 
The Company recognized collaboration revenues of $1.6 million under this agreement for the three months ended September 30, 2016.
 
Ginkgo Initial Strategic Partnership Agreement and Collaboration Agreement
 
In June 2016, the Company entered into an Initial Strategic Partnership Agreement (or the “Initial Ginkgo Agreement”) with Ginkgo Bioworks, Inc. (or “Ginkgo”), pursuant to which the Company licensed certain intellectual property to Ginkgo in exchange for a fee of $20.0 million, to be paid by Ginkgo to the Company in two installments, and a ten percent royalty. The first installment of $15.0 million was received on July 25, 2016. The second installment, in the amount of $5.0 million is to be received, based upon the satisfaction of certain conditions as set forth below, by March 31, 2017. The Company recognized $15 million of collaboration revenue under the Initial Ginkgo Agreement for the three months ended September 30, 2016. Furthermore, in connection with the Initial Ginkgo Agreement, on June 29, 2016, the Company received a deferment of all scheduled principal repayments under the Senior Secured Loan Facility, the lender and administrative agent under which is an affiliate of Ginkgo, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016.
 
In addition, addition, pursuant to the Initial Ginkgo Agreement, the Company and Ginkgo agreed to pursue the negotiation and execution of a detailed definitive partnership and license agreement setting forth the terms of a commercial partnership and collaboration arrangement between the parties (or the “Collaboration”) and, in connection with the entry into the Initial Ginkgo Agreement, on June 29, 2016, the Company received a deferment of all scheduled principal repayments under the Senior Secured Loan Facility, as well as a waiver of the Minimum Cash Covenant, through October 31, 2016. Furthermore, pursuant to the Initial Ginkgo Agreement, in connection with the execution of the definitive agreement for the Collaboration, (i) the Company would issue to Ginkgo an option to purchase five million shares of common stock of the Company at an exercise price of $0.50, exercisable for one year from the date of issuance and (ii) the parties would effect an amendment of the Company’s Senior Secured Loan Facility to (x) extend the maturity date of all outstanding loans under the Senior Secured Loan Facility, (y) waive any required amortization payments under the Senior Secured Loan Facility until maturity and (z) eliminate the Minimum Cash Covenant under the Senior Secured Loan Facility.
 
On August 6, 2016, the Company issued to Ginkgo a warrant to purchase five million shares of the Company’s common stock at an exercise price of $0.50 per share, exercisable for one year from the date of issuance. The warrant was issued prior to the execution of the definitive agreement for the Collaboration in connection with the transfer of certain information technology from Ginkgo to the Company.
 
On September 30, 2016, the Company and Ginkgo entered into a Collaboration Agreement (or the “Ginkgo Collaboration Agreement”) setting forth the terms of the Collaboration, under which the parties will collaborate to develop, manufacture and sell commercial products and will share in the value created thereby. The Ginkgo Collaboration Agreement provides that, subject to certain exceptions, all third party contracts for the development of chemical small molecule compounds whose manufacture is enabled by the use of microbial strains and fermentation technologies that are entered into by the Company or Ginkgo during the term of the Ginkgo Collaboration Agreement will be subject to the Collaboration and the approval of the other party (not to be unreasonably withheld). Responsibility for the engineering and small-scale process development of the newly developed products will be allocated between the parties on a project-by-project basis, and the Company will be principally responsible for the commercial scale-up and production of such products, with each party generally bearing their own respective costs and expenses relating to the Collaboration, including capital expenditures. Notwithstanding the foregoing, subject to the Company sourcing funding and breaking ground on a new production facility by March 30, 2017, Ginkgo will pay the Company a fee of $5 million on or before March 31, 2017.
 
Under the Ginkgo Collaboration Agreement, subject to certain exceptions, including excluded or refused products and cost savings initiatives, the profit on the sale of products subject to the Ginkgo Collaboration Agreement as well as cost-sharing, milestone and “value-creation” payments associated with the development and production of such products will be shared equally between the parties. The parties also agreed to provide each other with a license and other rights to certain intellectual property necessary to support the development and manufacture of the products under the Collaboration, and also to provide each other with access to certain other intellectual property useful in connection with the activities to be undertaken under the Ginkgo Collaboration Agreement, subject to certain carve-outs.
 
The initial term of the Ginkgo Collaboration Agreement is three years, and will automatically renew for successive one-year terms unless either party provides written notice of termination not less than 90 days prior to the expiration of the then-current term, subject to the right of the parties to terminate the Ginkgo Collaboration Agreement by mutual agreement, in the event of a material breach by the other party, or in the event the other party undergoes a change of control. In addition, the Ginkgo Collaboration Agreement provides that the parties will evaluate the performance of the Collaboration as of the 18-month anniversary of the Ginkgo Collaboration Agreement, and if either party has been repeatedly unable to perform or meet its commitments under the Ginkgo Collaboration Agreement, the other party will have the right to terminate the Ginkgo Collaboration Agreement on 30 days written notice.
 
The Ginkgo Collaboration Agreement contains customary representations and warranties of the parties, as well as customary terms and provisions regarding, among other things, indemnification, dispute resolution, governing law and confidentiality.
 
See Note 18, “Subsequent Events” for additional details regarding the amendment to the Company’s Senior Secured Loan Facility entered into in connection with the execution of the Ginkgo Collaboration Agreement.
 
Financing Agreements
 
Bill & Melinda Gates Foundation Investment
 
On April 8, 2016, the Company entered into a Securities Purchase Agreement with the Bill & Melinda Gates Foundation (the “Gates Foundation”), pursuant to which the Company agreed to sell and issue 4,385,964 shares of its common stock to the Gates Foundation in a private placement at a purchase price per share equal to $1.14, the average of the daily closing price per share of the Company’s common stock on the NASDAQ Stock Market for the twenty consecutive trading days ending on April 7, 2016, for aggregate proceeds to the Company of approximately $5,000,000 (the “Gates Foundation Investment”). The Securities Purchase Agreement includes customary representations, warranties and covenants of the parties.  The closing of the Gates Foundation Investment occurred on May 10, 2016.
 
In connection with the entry into the Securities Purchase Agreement, on April 8, 2016, the Company and the Gates Foundation entered into a Charitable Purposes Letter Agreement, pursuant to which the Company agreed to expend an aggregate amount not less than the amount of the Gates Foundation Investment to develop a yeast strain that produces artemisinic acid and/or amorphadiene at a low cost and to supply such artemisinic acid and amorphadiene to companies qualified to convert artemisinic acid and amorphadiene to artemisinin for inclusion in artemisinin combination therapies used to treat malaria commencing in 2017. If the Company defaults in its obligation to use the proceeds from the Gates Foundation Investment as set forth above or defaults under certain other commitments in the Charitable Purposes Letter Agreement, the Gates Foundation will have the right to request that the Company redeem, or facilitate the purchase by a third party of, the Gates Foundation Investment shares then held by the Gates Foundation at a price per share equal to the greater of (i) the closing price of the Company’s common stock on the trading day prior to the redemption or purchase, as applicable, or (ii) an amount equal to $1.14 plus a compounded annual return of 10%. The funding received is classified as mezzanine equity.
 
2016 Convertible Note Offering
 
See Note 5, “Debt” for details regarding the 2016 Convertible Note Offering.
 
February and June 2016 Private Placements
 
See Note 5, “Debt” for details regarding the February and June 2016 Private Placements.
 
At Market Issuance Sales Agreement
 
On March 8, 2016, the Company entered into an At Market Issuance Sales Agreement (the “ATM Sales Agreement”) with FBR Capital Markets & Co. and MLV & Co. LLC (the “Agents”) under which the Company may issue and sell shares of its common stock having an aggregate offering price of up to $50.0 million (the “ATM Shares”) from time to time through the Agents, acting as its sales agents, under the Company’s Registration Statement on Form S-3 (File No. 333-203216), effective April 15, 2015. Sales of the ATM Shares through the Agents, if any, will be made by any method that is deemed an “at the market offering” as defined in Rule 415 under the Securities Act, including by means of ordinary brokers’ transactions at market prices, in block transactions, or as otherwise agreed by the Company and the Agents. Each time that the Company wishes to issue and sell ATM Shares under the ATM Sales Agreement, the Company will notify one of the Agents of the number of ATM Shares to be issued, the dates on which such sales are anticipated to be made, any minimum price below which sales may not be made and other sales parameters as the Company deems appropriate. The Company will pay the designated Agent a commission rate of up to 3.0% of the gross proceeds from the sale of any ATM Shares sold through such Agent as agent under the ATM Sales Agreement. The ATM Sales Agreement contains customary terms, provisions, representations and warranties. The ATM Sales Agreement includes no commitment by other parties to purchase shares the Company offers for sale.
 
During the nine months ended September 30, 2016, the Company did not sell any shares of common stock under the ATM Sales Agreement. As of the date hereof, $50.0 million remained available for future sales under the ATM Sales Agreement.
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Note 9 - Goodwill and Intangible Assets
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Goodwill and Intangible Assets Disclosure [Text Block]
9. Goodwill and Intangible Assets
 
The following table presents the components of the Company's intangible assets (in thousands):
 
 
        September 30, 2016   December 31, 2015
    Useful Life
in Years
  Gross
Carrying
Amount
  Accumulated
Amortization/
Impairment
  Net
Carrying
Value
  Gross
Carrying
Amount
  Accumulated
Amortization/
Impairment
  Net
Carrying
Value
In-process research and development     Indefinite     $ 8,560     $ (8,560 )   $     $ 8,560     $ (8,560 )   $  
Acquired licenses and permits     2       772       (772 )           772       (772 )      
Goodwill     Indefinite       560             560       560             560  
            $ 9,892     $ (9,332 )   $ 560     $ 9,892     $ (9,332 )   $ 560  
 
The in-process research and development (IPR&D) of $8.6 million was acquired through the acquisition of Draths in October 2011 and was treated as indefinite lived intangible assets pending completion or abandonment of the projects to which the IPR&D related. The IPR&D was fully impaired in 2015.
 
The Company has a single reportable segment (see Note 15, “Reporting Segments” for further details). Consequently, all of the Company's goodwill is attributable to that single reportable segment.
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Note 10 - Stockholders' Deficit
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Stockholders' Equity Note Disclosure [Text Block]
10. Stockholders’ Deficit
 
Unexercised Common Stock Warrants
 
As of September 30, 2016 and 2015, the Company had 14,663,411 and 50,699,368, respectively, of unexercised common stock warrants with exercise prices ranging from $0.01 to $10.67 per warrant and a weighted average remaining maturity of 5.9 years.
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Note 11 - Stock-based Compensation
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Disclosure of Compensation Related Costs, Share-based Payments [Text Block]
11. Stock-Based Compensation
 
The Company’s stock option activity and related information for the nine months ended September 30, 2016 was as follows:
 
    Number
Outstanding
  Weighted-
Average
Exercise
Price
  Weighted-
Average
Remaining
Contractual
Life (Years)
  Aggregate
Intrinsic
Value
                (in thousands)
Outstanding - December 31, 2015     12,930,112     $ 4.77       7.39     $ 22  
Options granted     3,324,775     $ 0.58              
Options exercised     (134 )   $ 0.28              
Options cancelled     (2,393,835 )   $ 5.59              
Outstanding - September 30, 2016     13,860,918     $ 3.62       7.27     $  
Vested and expected to vest after September 30, 2016     12,598,270     $ 3.86       7.08     $  
Exercisable at September 30, 2016     6,788,182     $ 5.84       5.47     $  
 
The aggregate intrinsic value of options exercised under all option plans was $0.0 million for each of the three months ended September 30, 2016 and 2015, and $0.0 million for each of the nine months ended September 30, 2016 and 2015, determined as of the date of option exercise.
 
The Company’s restricted stock units (or "RSUs") and restricted stock activity and related information for the nine months ended September 30, 2016 was as follows:
 
 
    RSUs   Weighted-
Average Grant-
Date Fair Value
  Weighted Average
Remaining
Contractual Life
(Years)
Outstanding - December 31, 2015     5,554,844     $ 2.03       1.61  
 Awarded     4,374,389     $ 0.60        
 Vested     (1,467,569 )   $ 2.19        
 Forfeited     (987,109 )   $ 1.49        
Outstanding - September 30, 2016     7,474,555     $ 1.23       1.52  
Expected to vest after September 30, 2016     5,898,952     $ 2.72       1.39  
 
The following table summarizes information about stock options outstanding as of September 30, 2016:
 
 
 
 
 
Options Outstanding
 
Options Exercisable
Exercise Price
 
Number of Options
 
Weighted-
Average
Remaining
Contractual Life
(Years)
 
Weighted-Average
Exercise Price
 
Number of Options
 
Weighted-Average
Exercise Price
$0.28
$0.57
 
 
372,754
 
 
 
9.71
 
 
$
0.43
 
 
 
3,254
 
 
$
0.28
 
$0.59
$0.59
 
 
2,574,375
 
 
 
9.62
 
 
$
0.59
 
 
 
 
 
$
 
$0.81
$1.73
 
 
2,063,938
 
 
 
8.94
 
 
$
1.64
 
 
 
166,987
 
 
$
1.61
 
$1.75
$1.96
 
 
1,546,638
 
 
 
8.48
 
 
$
1.91
 
 
 
536,904
 
 
$
1.90
 
$1.98
$2.81
 
 
1,393,357
 
 
 
6.43
 
 
$
2.61
 
 
 
1,079,929
 
 
$
2.66
 
$2.85
$3.44
 
 
1,369,225
 
 
 
6.49
 
 
$
3.02
 
 
 
1,137,340
 
 
$
3.01
 
$3.51
$3.51
 
 
1,577,760
 
 
 
7.33
 
 
$
3.51
 
 
 
970,489
 
 
$
3.51
 
$3.55
$4.31
 
 
1,761,134
 
 
 
3.86
 
 
$
3.97
 
 
 
1,691,542
 
 
$
3.98
 
$4.35
$26.84
 
 
1,141,737
 
 
 
3.94
 
 
$
17.59
 
 
 
1,141,737
 
 
$
17.59
 
$30.17
$30.17
 
 
60,000
 
 
 
4.45
 
 
$
30.17
 
 
 
60,000
 
 
$
30.17
 
$0.28
$30.17
 
 
13,860,918
 
 
 
7.27
 
 
$
3.62
 
 
 
6,788,182
 
 
$
5.84
 
 
Stock-Based Compensation Expense
 
Stock-based compensation expense related to options and restricted stock units granted to employees was allocated to research and development expense and sales, general and administrative expense as follows (in thousands):
 
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Research and development   $ 481     $ 530     $ 1,457     $ 1,776  
Sales, general and administrative     1,327       1,726       4,191       5,188  
Total stock-based compensation expense   $ 1,808     $ 2,256     $ 5,648     $ 6,964  
 
As of September 30, 2016, there was unrecognized compensation expense of $5.2 million and $6.0 million related to stock options and RSUs, respectively. The Company expects to recognize this expense over a weighted average period of 2.86 years and 2.72 years, respectively.
 
Stock-based compensation expense for RSUs is measured based on the closing fair market value of the Company's common stock on the date of grant. Stock-based compensation expense for stock options and employee stock purchase plan rights is estimated at the grant date and offering date, respectively, based on their fair-value using the Black-Scholes option pricing model. The fair value of employee stock options is being amortized on a straight-line basis over the requisite service period of the awards. The fair value of employee stock options was estimated using the following weighted-average assumptions:
 
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Expected dividend yield     %     %     %     %
Risk-free interest rate     1.2 %     2 %     1.32 %     2 %
Expected term (in years)     6.16       6.03       6.23       6.00  
Expected volatility     76.7 %     74 %     73 %     74 %
 
Expected Dividend Yield
—The Company has never paid dividends and does not expect to pay dividends.
 
Risk-Free Interest Rate
—The risk-free interest rate was based on the market yield currently available on United States Treasury securities with maturities approximately equal to the option’s expected term.
 
Expected Term
—Expected term represents the period that the Company’s stock-based awards are expected to be outstanding. The Company’s assumptions about the expected term have been based on that of companies that have similar industry, life cycle, revenue, and market capitalization and the historical data on employee exercises.
 
Expected Volatility
—The expected volatility is based on a combination of historical volatility for the Company's stock and the historical stock volatilities of several of the Company’s publicly listed comparable companies over a period equal to the expected terms of the options, as the Company does not have a long trading history.
 
Forfeiture Rate
—The Company estimates its forfeiture rate based on an analysis of its actual forfeitures and will continue to evaluate the adequacy of the forfeiture rate based on actual forfeiture experience, analysis of employee turnover behavior, and other factors. The impact from a forfeiture rate adjustment will be recognized in full in the period of adjustment, and if the actual number of future forfeitures differs from that estimated by the Company, the Company may be required to record adjustments to stock-based compensation expense in future periods.
 
Each of the inputs discussed above is subjective and generally requires significant management and director judgment.
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Note 12 - Employee Benefit Plan
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Pension and Other Postretirement Benefits Disclosure [Text Block]
12. Employee Benefit Plan
 
The Company established a 401(k) Plan to provide tax deferred salary deductions for all eligible employees. Participants may make voluntary contributions to the 401(k) Plan up to 90% of their eligible compensation, limited by certain Internal Revenue Service (or the "IRS") restrictions. Effective January 2014, the Company implemented a discretionary employer match plan whereby the Company will match employee contributions up to the IRS limit or 90% of compensation, with a minimum one year of service required for vesting. The total matching amount for each of the three months ended September 30, 2016 and 2015 was $0.1 million and $0.1 million, respectively, and $0.3 million and $0.4 million for the nine months ended September 30, 2016 and 2015, respectively.
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Note 13 - Related Party Transactions
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Related Party Transactions Disclosure [Text Block]
13. Related Party Transactions
 
Related Party Financings
 
See Note 5, “Debt” for a description of the June 2016 Private Placement transaction with Foris Ventures, LLC, a related party of the Company, the February 2016 Private Placement transaction with Foris Ventures, LLC, Naxyris S.A. and Biolding SA, each a related party of the Company, and the March 2016 R&D Note transaction with Total. In addition, see Note 18, “Subsequent Events” for descriptions of additional related party financings subsequent to September 30, 2016.
 
As of September 30, 2016 and December 31, 2015, convertible notes and loans with related parties were outstanding in aggregate amount of $63.5 million and $43.0 million, respectively, net of debt discount and issuance costs of $2.6 million and $1.9 million, respectively.
 
The fair value of the derivative liability related to the related party convertible notes as of September 30, 2016 and December 31, 2015 was $1.9 million and $7.9 million, respectively. The Company recognized a loss from change in fair value of the derivative instruments of $0.6 million and $12.4 million for the three months ended September 30, 2016 and September 2015, respectively, and a gain from change in fair value of the derivative instruments of $7.7 million for the nine months ended September 30, 2016 and a loss from change in fair value of the derivative instruments of $0.7 million for the nine months ended September 30, 2015, respectively (see Note 3, "Fair Value of Financial Instruments" for further details).
 
Related Party Revenues
 
The Company recognized related party revenues from product sales to Total of zero and $2,000 for the three months ended September 30, 2016 and 2015, respectively, and zero and $2,000 for the nine months ended September 30, 2016 and 2015, respectively. Related party accounts receivable from Total as of September 30, 2016 and December 31, 2015, were $0.7 million and $1.2 million, respectively.
 
The Company recognized related party revenues from product sales to Novvi of $1.4 million and zero for the three months ended September 30, 2016 and 2015, respectively, and $1.4 million and zero for the nine months ended September 30, 2016 and 2015, respectively. Related party accounts receivable from Novvi as of September 30, 2016 and December 31, 2015, were $0.0 million and $0.5 million, respectively.
 
Loans to Related Parties
 
See Note 7, "Joint Ventures and Noncontrolling Interest" for details of the Company's transactions with its affiliate, Novvi LLC.
 
Joint Venture with Total
 
In November 2013, the Company and Total formed TAB as discussed above under Note 7, "Joint Ventures and Noncontrolling Interest."
 
Pilot Plant Agreements
 
In May 2014, the Company received the final consents necessary for a Pilot Plant Services Agreement (or the “Pilot Plant Services Agreement”) and a Sublease Agreement (or the “Sublease Agreement”), each dated as of April 4, 2014 (collectively the “Pilot Plant Agreements”), between the Company and Total. The Pilot Plant Agreements generally have a term of five years. Under the terms of the Pilot Plant Services Agreement, the Company agreed to provide certain fermentation and downstream separations scale-up services and training to Total in exchange for an aggregate annual fee payable by Total for all services in the amount of up to approximately $0.9 million per annum. In July 2015, Total and the Company entered into Amendment #1 to the Pilot Plant Services Agreement (or the "Pilot Plant Agreement Amendment"), whereby the Company agreed to waive a portion of these fees, up to approximately $2.0 million, over the term of the Pilot Plant Services Agreement in connection with the restructuring of TAB discussed above in Note 7, "Joint Ventures and Non-controlling Interest." Under the Sublease Agreement, the Company receives an annual base rent payable by Total of approximately $0.1 million per annum.
 
As of September 30, 2016, the Company had received $1.7 million in cash under the Pilot Plant Agreements from Total. In connection with these arrangements, sublease payments and service fees of $0.1 million and $0.3 million for the three months ended September 30, 2016 and 2015, respectively, and $0.3 million and $0.8 million for the nine months ended September 30, 2016 and 2015, respectively, were offset against costs and operating expenses.
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Note 14 - Income Taxes
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Income Tax Disclosure [Text Block]
14. Income Taxes
 
The Company recorded a provision for income taxes of $0.1 million for each of the three months ended September 30, 2016 and 2015, and $0.4 million for each of the nine months ended September 30, 2016 and 2015. The provision for income taxes for the nine months ended September 30, 2016 and 2015 consisted of an accrual of Brazilian withholding tax on interest on inter-company loans. Other than the above mentioned provision for income tax, no additional provision for income taxes has been made, net of the valuation allowance, due to cumulative losses since the commencement of the Company's operations.
 
On December 15, 2011, the IRS completed its audit of the Company for tax year 2008 which concluded that there were no adjustments resulting from the audit. While the statutes are closed for tax year 2008, the US federal tax carryforwards (net operating losses and tax credits) may be adjusted by the IRS in the year in which the carryforward is utilized.
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Note 15 - Reporting Segments
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Segment Reporting Disclosure [Text Block]
15. Reporting Segments
 
The chief operating decision maker for the Company is the chief executive officer. The chief executive officer reviews financial information presented on a consolidated basis, accompanied by information about revenue by geographic region, for purposes of allocating resources and evaluating financial performance. The Company has one business activity comprised of research and development and sales of fuels and farnesene-derived products and there are no segment managers who are held accountable for operations, operating results or plans for levels or components below the consolidated unit level. Accordingly, the Company has determined that it has a single reportable segment and operating segment structure.
 
Revenues by geography are based on the location of the customer. The following tables set forth revenue and long-lived assets by geographic area (in thousands):
 
Revenues
 
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Europe   $ 1,899     $ 459     $ 10,527     $ 2,138  
United States     20,461       6,177       27,869       15,550  
Asia     4,126       991       6,039       2,769  
Brazil     46       964       467       3,850  
Other     12             52        
Total   $ 26,544     $ 8,591     $ 44,954     $ 24,307  
 
 
Long-Lived Assets (Property, Plant and Equipment)
 
    September 30, 2016   December 31, 2015
Brazil   $ 47,348     $ 41,093  
United States     15,489       18,401  
Europe     256       303  
Total   $ 63,093     $ 59,797  
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Note 16 - Comprehensive Loss
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Comprehensive Income (Loss) Note [Text Block]
16. Comprehensive Loss
 
Comprehensive loss represents all changes in stockholders’ deficit except those resulting from investments or contributions by stockholders. The Company’s foreign currency translation adjustments represent the components of comprehensive loss excluded from the Company’s net loss and have been disclosed in the condensed consolidated statements of comprehensive loss for the periods presented.
 
The components of accumulated other comprehensive loss are as follows (in thousands):
 
    September 30, 2016   December 31, 2015
Foreign currency translation adjustment, net of tax   $ (39,801 )   $ (47,198 )
Total accumulated other comprehensive loss   $ (39,801 )   $ (47,198 )
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Note 17 - Net Loss Attributable to Common Stockholders and Net Loss Per Share
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Earnings Per Share [Text Block]
17. Net Loss Attributable to Common Stockholders and Net Loss per Share
 
The Company computes net loss per share in accordance with ASC 260, “Earnings per Share.” Basic net loss per share of common stock is computed by dividing the Company’s net loss attributable to Amyris, Inc. common stockholders by the weighted average number of shares of common stock outstanding during the period. Diluted net loss per share of common stock is computed by giving effect to all potentially dilutive securities, including stock options, restricted stock units, common stock warrants and convertible promissory notes using the treasury stock method or the as converted method, as applicable. For all periods presented below, other than the nine months ended September 30, 2016, basic net loss per share was the same as diluted net loss per share because the inclusion of all potentially dilutive securities outstanding was anti-dilutive. As such, the numerator and the denominator used in computing both basic and diluted net loss was the same for those periods.
 
The following table presents the calculation of basic and diluted net loss per share of common stock attributable to Amyris, Inc. common stockholders (in thousands, except share and per share amounts):
 
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Numerator:                                
Net loss attributable to Amyris, Inc. common stockholders   $ (19,704 )   $ (76,664 )   $ (48,579 )   $ (176,034 )
Interest on convertible debt                 5,093        
Accretion of debt discount                 5,304        
Gain from change in fair value of derivative instruments                 (37,593 )      
Net loss attributable to Amyris, Inc. common stockholders after assumed conversion   $ (19,704 )   $ (76,664 )   $ (75,775 )   $ (176,034 )
                                 
Denominator:                                
Weighted average shares of common stock outstanding for basic EPS     249,190,339       140,374,297       226,772,159       100,103,007  
Basic loss per share   $ (0.08 )   $ (0.55 )   $ (0.21 )   $ (1.76 )
                                 
Weighted average shares of common stock outstanding     249,190,339       140,374,297       226,772,159       100,103,007  
Effect of dilutive securities:                                
Convertible promissory notes                 41,602,952        
Weighted common stock equivalents                 41,602,952        
                                 
Diluted weighted-average common shares     249,190,339       140,374,297       268,375,111       100,103,007  
Diluted loss per share   $ (0.08 )   $ (0.55 )   $ (0.28 )   $ (1.76 )
 
The following outstanding shares of potentially dilutive securities were excluded from the computation of diluted net loss per share of common stock because including them would have been anti-dilutive:
 
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Period-end stock options to purchase common stock     13,860,918       11,307,679       13,860,918       11,307,679  
Convertible promissory notes
(1)
    66,474,148       43,451,433       23,760,389       43,451,433  
Period-end common stock warrants     14,663,411       2,901,926       14,663,411       2,901,926  
Period-end restricted stock units     7,474,555       3,558,243       7,474,555       3,558,243  
Total     102,473,032       61,219,281       59,759,273       61,219,281  
______________
(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.
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Note 18 - Subsequent Events
9 Months Ended
Sep. 30, 2016
Notes to Financial Statements  
Subsequent Events [Text Block]
18. Subsequent Events
 
Senior Secured Loan Facility Amendment
 
On October 6, 2016, in connection with the entry into the Ginkgo Collaboration Agreement, the Company, certain of its subsidiaries and Stegodon, an affiliate of Ginkgo, entered into a fourth amendment of the Senior Secured Loan Facility. Pursuant to the fourth amendment, subject to the Company extending (or the “Extension Condition”) the maturity of the Fidelity Notes, the parties agreed to extend the maturity date of all outstanding loans under the Senior Secured Loan Facility to the business day immediately preceding the earliest maturity of the Fidelity Notes and the outstanding Tranche Notes held by non-affiliates, after giving effect to any extensions thereof at or prior to the satisfaction of the Extension Condition, but in no event later than April 12, 2019. In addition, the parties agreed that the Company would be required to pay only the interest accruing on all outstanding loans under the Senior Secured Loan Facility until the maturity date, provided that the Company would be required to apply certain monies received by the Company under the Ginkgo Collaboration Agreement towards repayment of the outstanding loans under the Senior Secured Loan Facility, up to a maximum amount of $1 million per month. Furthermore, pursuant to the fourth amendment, Stegodon agreed to waive the Minimum Cash Covenant under the Senior Secured Loan Facility until the maturity date. See Note 5, “Debt” for additional details regarding the Senior Secured Loan Facility and Note 8, “Significant Agreements” for additional information regarding the Ginkgo Collaboration Agreement.
 
2016 Convertible Note Offering
 
On October 13, 2016, the Company issued and sold the $2.0 Million Note under the May 2016 Purchase Agreement to the purchaser, for proceeds to the Company of $2.0 million. Upon the issuance of the $2 Million Note, all 2016 Convertible Notes provided for under the May 2016 Purchase Agreement had been issued and sold. See Note 5, “Debt” for additional information regarding the May 2016 Purchase Agreement and the 2016 Convertible Notes.
 
October 2016 Private Placements
 
On October 21 and October 27, 2016, the Company entered into separate Note Purchase Agreements (or the “October 2016 Purchase Agreements”) with Foris Ventures, LLC and Ginkgo Bioworks, Inc., respectively, for the sale of $6.0 million and $8.5 million, respectively, in aggregate principal amount of secured promissory notes (or the “October 2016 Private Notes”) in exchange for aggregate proceeds to the Company of $6.0 million and $8.5 million, respectively (or the “October 2016 Private Placements”). The October 2016 Private Notes were issued in private placements pursuant to the exemption from registration under Section 4(2) of the Securities Act of 1933, as amended and Regulation D promulgated under the Securities Act. The October 2016 Private Placements closed on October 21 and October 27, 2016, respectively.
 
The October 2016 Private Notes are collateralized by a second priority lien on the assets securing the Company’s obligations under the Senior Secured Loan Facility, and are subordinate to the Company’s obligations under the Senior Secured Loan Facility pursuant to Subordination Agreements, dated as of the respective dates of the October 2016 Purchase Agreements, by and among the Company, the applicable purchaser and the administrative agent under the Company’s Senior Secured Loan Facility. Interest will accrue on the October 2016 Private Notes from and including October 21 and 27, 2016, respectively, at a rate of 13.50% per annum and is payable in full on May 15, 2017, the maturity date of the October 2016 Private Notes, unless the October 2016 Private Notes are prepaid in accordance with their terms prior to such date. The October 2016 Purchase Agreements and the October 2016 Private Notes contain customary terms, provisions, representations and warranties, including certain events of default after which the October 2016 Private Notes may be due and payable immediately, as set forth in the October 2016 Private Notes.
 
Guanfu Credit Agreement
 
On October 26, 2016, the Company and Guanfu Holding Co., Ltd. (or, together with its subsidiaries, “Guanfu”), an existing commercial partner of the Company, entered into a credit agreement (or the “Guanfu Credit Agreement”) to make available to the Company an unsecured credit facility with an aggregate principal amount of up to $25.0 million (or the “Guanfu Credit Facility”), which the Company may borrow from time to time in up to three closings (each such borrowing, a “Guanfu Loan”). Each Guanfu Loan will have a term of five years and will accrue interest at a rate of 10% per annum, payable quarterly. The Company may at its option repay the Guanfu Loans before their maturity date, in whole or in part, at a price equal to 100% of the amount being repaid plus accrued and unpaid interest on such amount to the date of repayment.
 
The Guanfu Credit Agreement contains customary representations, warranties and covenants of the parties, as well as customary provisions regarding, among other things, dispute resolution and governing law. Upon the occurrence of certain specified events of default under the Guanfu Credit Facility, the Company will grant to Guanfu an exclusive, royalty-free, global license to certain intellectual property useful in connection with Guanfu’s existing commercial relationship with the Company. In addition, in the event the Company fails to pay interest or principal under any Guanfu Loan within ten days of when due, the Company will also be required, subject to applicable laws and regulations, to repay the outstanding principal amount under such Guanfu Loan, together with accrued and unpaid interest, in the form of shares of the Company’s common stock at a per share price equal to 90% of the volume weighted average closing sale price of the Company’s common stock for the 90 trading days ending on and including the trading day that is two trading days preceding such default.
 
The effectiveness of the Guanfu Credit Agreement is subject to the parties obtaining certain required approvals, and upon the effective date of the Guanfu Credit Agreement, the Company will grant to Guanfu the global exclusive purchase right with respect to the Company products subject to the parties’ pre-existing commercial relationship. The initial funding of the Guanfu Credit Facility is scheduled to occur on December 1, 2016, subject to Guanfu’s right to extend such initial funding to a date no later than December 31, 2016.
 
Nenter Cooperation Agreement
 
On October 26, 2016, the Company entered into a Cooperation Agreement (or the “Cooperation Agreement”) with Nenter & Co., Inc. (or “Nenter”), a subsidiary of Guanfu. Under the Cooperation Agreement, the parties will collaborate to create and develop certain compounds and, in the event the parties achieve certain specified development targets, the parties would establish and implement a worldwide manufacturing and commercialization plan (or the “Commercialization Plan”) relating thereto. The term of the Cooperation Agreement will be two years from the effectiveness of the Cooperation Agreement (or five years in the event the parties pursue the Commercialization Plan), which will occur upon the parties obtaining certain required approvals, subject to the rights of the parties to terminate the Cooperation Agreement upon a material breach by the other party or the failure to obtain certain governmental approvals or authorizations, as provided in the Cooperation Agreement. The Cooperation Agreement also contains customary representations, warranties and covenants of the parties, as well as customary terms and provisions regarding, among other things, indemnification, dispute resolution, confidentiality and governing law.
 
In addition, pursuant to the terms of, and as consideration for, the Cooperation Agreement, promptly after the effectiveness of the Cooperation Agreement, the Company will issue to Nenter a warrant to purchase 10 million shares of the Company’s common stock at an exercise price of $0.50 per share, exercisable on or before December 31, 2016. The warrant will be issued pursuant to the exemption from registration under Section 4(2) of the Securities Act and Regulation D promulgated under the Securities Act. Furthermore, pursuant to the terms of the warrant, upon the request of Nenter, the Company will use its best efforts to cause the shares of common stock issued upon exercise of the warrant to be registered under the Securities Act within 90 days of the exercise of the warrant.
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Significant Accounting Policies (Policies)
9 Months Ended
Sep. 30, 2016
Accounting Policies [Abstract]  
Basis of Accounting, Policy [Policy Text Block]
Basis of Presentation
 
The accompanying interim condensed consolidated financial statements have been prepared in accordance with the accounting principles generally accepted in the United States of America (or “GAAP”) and with the instructions for Form 10-Q and Regulation S-X. Accordingly, they do not include all of the information and notes required for complete financial statements. These interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto contained in the Company’s Form 10-K for the fiscal year ended December 31, 2015 as filed with the Securities and Exchange Commission (or the “SEC”) on March 30, 2016. The unaudited condensed consolidated financial statements include the accounts of the Company and its consolidated subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.
 
The Company uses the equity method to account for investments in companies, if its investments provide it with the ability to exercise significant influence over operating and financial policies of the investee. Consolidated net income or loss includes the Company’s proportionate share of the net income or loss of these companies. Judgments made by the Company regarding the level of influence over each equity method investment include considering key factors such as the Company’s ownership interest, representation on the board of directors, participation in policy-making decisions and material intercompany transactions.
Consolidation, Policy [Policy Text Block]
Principles of Consolidation
 
The condensed consolidated financial statements of the Company include the accounts of Amyris, Inc., its subsidiaries and two consolidated variable interest entities (or “VIEs”), with respect to which the Company is considered the primary beneficiary, after elimination of intercompany accounts and transactions. Disclosure regarding the Company’s participation in the VIEs is included in Note 7, "Joint Ventures and Noncontrolling Interest."
Consolidation, Variable Interest Entity, Policy [Policy Text Block]
Variable Interest Entities
 
The Company has interests in joint venture entities that are VIEs. Determining whether to consolidate a VIE requires judgment in assessing (i) whether an entity is a VIE and (ii) if the Company is the entity’s primary beneficiary and thus required to consolidate the entity. To determine if the Company is the primary beneficiary of a VIE, the Company evaluates whether it has (i) the power to direct the activities that most significantly impact the VIE’s economic performance and (ii) the obligation to absorb losses or the right to receive benefits of the VIE that could potentially be significant to the VIE. The Company’s evaluation includes identification of significant activities and an assessment of its ability to direct those activities based on governance provisions and arrangements to provide or receive product and process technology, product supply, operations services, equity funding and financing and other applicable agreements and circumstances. The Company’s assessment of whether it is the primary beneficiary of its VIEs requires significant assumptions and judgment.
Use of Estimates, Policy [Policy Text Block]
Use of Estimates
 
In preparing the unaudited condensed consolidated financial statements, management must make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the unaudited condensed consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Unaudited Interim Financial Information Policy [Policy Text Block]
Unaudited Interim Financial Information
 
The accompanying interim condensed consolidated financial statements and related disclosures are unaudited, have been prepared on the same basis as the annual consolidated financial statements, except for the impact of adoption of certain accounting standards as described below, and in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary for a fair statement of the results of operations for the periods presented. In the quarter ended March 31, 2016 the Company adopted Accounting Standards Update (“ASU”) No. 2015-01,
Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items,
ASU No. 2015-02,
Consolidation
(Topic 810), ASU No. 2015-03,
Interest - Imputation of Interest
(Subtopic 835-30):
Simplifying the Presentation of Debt Issuance Costs
, ASU 2015-05,
Intangibles - Goodwill and Other - Internal-Use Software
(Subtopic 350-40) and ASU No. 2015-15,
Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements
. Refer to Note 5. "Debt" for the impact of adoption of ASU No. 2015-03 on the Company's condensed consolidated financial statements. None of the other ASU’s adopted had a material impact on the Company’s condensed consolidated financial statements.
 
The year-end condensed consolidated balance sheet data was derived from audited financial statements, but does not include all disclosures required by GAAP. The condensed consolidated results of operations for any interim period are not necessarily indicative of the results to be expected for the full year or for any other future year or interim period.
New Accounting Pronouncements, Policy [Policy Text Block]
Recent Accounting Pronouncements
 
In October 2016, the Financial Accounting Standards Board (or “FASB”) issued
ASU 2016-16,
Intra-Entity Transfers of Assets Other Than Inventory
on simplifying the accounting for income taxes related to intra-entity asset transfers. The new guidance allows an entity to recognize the tax expense from the sale of an asset in the seller’s tax jurisdiction when the transfers occurs, even though the pre-tax effects of that transaction are eliminated in consolidation. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017. Early adoption is permitted only in the first quarter of 2017. The Company is evaluating the impact of adopting this new accounting standard update on the financial statements and related disclosures.
 
In August 2016, the FASB issued ASU 2016-15
Classification of Certain Cash Receipts and Cash Payments
on the statement of cash flows. The new guidance clarifies classification of certain cash receipts and cash payments in the statement of cash flows. This guidance will be effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption is permitted. The Company is evaluating the impact of adopting this new accounting standard update on the financial statements and related disclosures.
 
In June 2016, the Financial Accounting Standards Board (or “FASB”) issued ASU No. 2016-13,
Allowance for Loan and Lease Losses (Financial Instruments - Credit Losses Topic 326.)
. New impairment guidance for certain financial instruments (including trade receivables) will replace the current “incurred loss” model for estimating credit losses with a forward looking “expected loss” model. The ASU is effective for the Company for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years. Early application is permitted as of the fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The Company is evaluating the impact of this standard on its consolidated financial statements.
 
In March 2016, the FASB issued ASU No. 2016-09,
Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting
. This ASU identifies areas for simplification involving several aspects of accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, an option to recognize gross stock compensation expense with actual forfeitures recognized as they occur, as well as certain classifications on the statement of cash flows. This ASU will be effective for fiscal years beginning after December 15, 2016, and interim periods within those annual periods. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its consolidated financial statements. Early adoption is permitted.
 
In March 2016, the FASB issued ASU No. 2016-06,
Contingent Put and Call Options in Debt Instruments
. The amendments in this ASU clarify the requirements for assessing whether contingent call (put) options that can accelerate the payment of principal on debt instruments are clearly and closely related to their debt hosts. An entity performing the assessment under the amendments in this ASU is required to assess the embedded call (put) options solely in accordance with the four-step decision sequence. The ASU is effective for financial statements issued for fiscal years beginning after December 15, 2016, and interim periods within those fiscal years. Early adoption is permitted. The Company is currently assessing the potential impact of this ASU on its financial statements.
 
In February 2016, the FASB issued Accounting Standards Update (or “ASU”)
2016-02-
Leases
with fundamental changes to how entities account for leases.
Lessees will need to recognize a right-of-use asset and a lease liability for virtually all of their leases (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. Additional disclosures for leases will also be required. The standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. Early adoption is permitted. The new standard must be adopted using a modified retrospective transition, and provides for certain practical expedients. The new standard may materially impact the Company’s financial statements.
 
In January 2016, the FASB issued ASU 2016-01
Financial Instruments-Overall
, which address certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. The amendments in this Update are effective for fiscal years beginning after December 15, 2017, including interim periods within those fiscal years. Earlier application is permitted under specific circumstances. The Company is currently assessing the potential impact of this standard on its consolidated financial statements.
 
In July 2015, the FASB issued ASU 2015-11,
Simplifying the Measurement of Inventory
, which requires that inventory within the scope of the guidance be measured at the lower of cost and net realizable value. The new standard is being issued as part of the simplification initiative. Prior to the issuance of the standard, inventory was measured at the lower of cost or market (where market was defined as replacement cost, with a ceiling of net realizable value and floor of net realizable value less a normal profit margin). The new guidance will be effective for fiscal years beginning after December 15, 2016, including interim periods within those years. Prospective application is required and early adoption is permitted. The Company is currently assessing the impact of adopting this new accounting standard on its financial statements.
 
In August 2014, the FASB issued new guidance related to the disclosure around going concern. The new standard provides guidance around management's responsibility to evaluate whether there is substantial doubt about an entity's ability to continue as a going concern and to provide related footnote disclosure if substantial doubt exists. The new standard is effective for annual periods ending after December 15, 2016 and for annual periods and interim periods thereafter. Early adoption is permitted. The adoption of this standard is not expected to have a material impact on the Company's financial statements.
 
In May 2014, the FASB issued new guidance related to revenue recognition. In March, April and May 2016, the FASB issued additional amendments to the new revenue guidance relating to reporting revenue on a gross versus net basis, identifying performance obligations, licensing arrangements, collectability, noncash consideration, presentation of sales tax, and transition. This new standard will replace all current GAAP guidance on this topic and eliminate all industry-specific guidance. The new revenue recognition update guidance provides a unified model to determine how revenue is recognized. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services.
The FASB has issued several updates to the standard which i) clarify the application of the principal versus agent guidance (ASU 2016-08); ii) clarify the guidance on inconsequential and perfunctory promises and licensing (ASU 2016-10) and iii)
narrow-scope improvements and practical expedients (ASU 2016-12). On July 9, 2015, the FASB voted to defer the effective date by one year to December 15, 2017 for interim and annual reporting periods beginning after that date and permitted early adoption of the standard, but not before the original effective date of December 15, 2016. Entities have the option of using either a full retrospective or a modified retrospective approach to adopt the new standard. Therefore, the new standard will be effective commencing with our quarter ending March 31, 2018. The Company is currently assessing the potential impact of this new standard on its consolidated financial statements and has not selected the transition method.
XML 43 R27.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 3 - Fair Value of Financial Instruments (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Fair Value, Assets and Liabilities Measured on Recurring Basis [Table Text Block]
    Level 1   Level 2   Level 3   Balance as of
September 30,
2016
Financial Assets                                
Money market funds   $ 59     $     $     $ 59  
Certificates of deposit     1,713                   1,713  
Total financial assets   $ 1,772     $     $     $ 1,772  
Financial Liabilities                                
Loans payable
(1)
  $     $ 34,146     $     $ 34,146  
Credit facilities
 (1)
          19,310             19,310  
Convertible notes
(1)
                109,885       109,885  
Compound embedded derivative liabilities                 3,827       3,827  
Currency interest rate swap derivative liability           3,471             3,471  
Total financial liabilities   $     $ 56,927     $ 113,712     $ 170,639  
    Level 1   Level 2   Level 3   Balance as of
December 31,
2015
Financial Assets                                
Money market funds   $ 2,078     $     $     $ 2,078  
Certificates of deposit     1,520                   1,520  
Total financial assets   $ 3,598     $     $     $ 3,598  
Financial Liabilities                                
Loans payable
(1)
  $     $ 9,541     $     $ 9,541  
Credit facilities
 (1)
          34,893             34,893  
Convertible notes
(1)
                96,291       96,291  
Compound embedded derivative liabilities                 46,430       46,430  
Currency interest rate swap derivative liability           5,009             5,009  
Total financial liabilities   $     $ 49,443     $ 142,721     $ 192,164  
Fair Value, Liabilities Measured on Recurring Basis, Unobservable Input Reconciliation [Table Text Block]
    2016
Balance at January 1   $ 96,291  
Additions of convertible notes     13,000  
Conversion/extinguishment of convertible notes     (21,579 )
Change in fair value of convertible notes     22,173  
Balance at September 30   $ 109,885  
Fair Value, Net Derivative Asset (Liability) Measured on Recurring Basis, Unobservable Input Reconciliation [Table Text Block]
    2016
Balance at January 1   $ 46,430  
Derecognition on conversion/extinguishment     (2,734 )
Gain from change in fair value of derivative liabilities     (39,869 )
Balance at September 30   $ 3,827  
Fair Value Measurements, Recurring and Nonrecurring, Valuation Techniques [Table Text Block]
    September 30, 2016   September 30, 2015
Risk-free interest rate    0.20% - 0.84%   0.93% - 1.07%
Risk-adjusted yields   17.30% - 27.43%   24.40% - 39.90%
Stock-price volatility     45%       45%  
Probability of change in control     5%       5%  
Stock price     $0.58       $2.01  
Credit spread   16.49% - 26.60%   28.81% - 38.83%
Estimated conversion dates   2016 - 2019   2015 - 2019
Derivative Instruments, Gain (Loss) [Table Text Block]
    Income
Statement Classification
  Three Months Ended
September 30,
  Nine Months Ended
September 30,
Type of Derivative Contract       2016   2015   2016   2015
Currency interest rate swap   Gain (loss) from change in fair value of derivative instruments   $ (145 )   $ (1,796 )   $ 1,957     $ (3,201 )
Schedule of Derivative Liabilities at Fair Value [Table Text Block]
    September 30,
 2016
  December 31,
2015
Fair market value of compound embedded derivative liabilities   $ 3,827     $ 46,430  
Fair value of  swap obligations     3,471       5,009  
Total derivative liabilities   $ 7,298     $ 51,439  
XML 44 R28.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 4 - Balance Sheet Components (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Inventory, Current [Table Text Block]
    September 30,
 2016
  December 31,
 2015
Raw materials   $ 2,664     $ 2,204  
Work-in-process     1,809       3,583  
Finished goods     3,426       5,099  
Inventories, net   $ 7,899     $ 10,886  
Property, Plant and Equipment [Table Text Block]
    September 30,
2016
  December 31,
2015
Machinery and equipment   $ 85,538     $ 72,876  
Leasehold improvements     38,791       38,519  
Computers and software     9,545       9,117  
Buildings     4,718       3,922  
Furniture and office equipment     2,335       2,234  
Vehicles     195       215  
Construction in progress     6,430       5,736  
      147,552       132,619  
Less: accumulated depreciation and amortization     (84,459 )     (72,822 )
Property, plant and equipment, net   $ 63,093     $ 59,797  
Schedule of Other Assets, Noncurrent [Table Text Block]
    September 30,
 2016
  December 31,
2015
Recoverable taxes from Brazilian government entities   $ 11,955     $ 8,887  
Deposits on property and equipment, including taxes     292       243  
Other     1,410       1,227  
Total other assets   $ 13,657     $ 10,357  
Schedule of Accrued and Other Current Liabilities [Table Text Block]
    September 30,
2016
  December 31,
2015
Withholding tax related to conversion of related party notes   $ 4,964     $ 4,723  
Professional services     5,406       4,017  
SMA relocation accrual     4,380       3,641  
Accrued interest     8,283       1,984  
Tax-related liabilities     2,325       2,505  
Accrued vacation     1,932       2,023  
Payroll and related expenses     4,268       3,122  
Deferred rent, current portion     1,110       1,111  
Contractual obligations to contract manufacturers     680        
Fair value swap short-term     586        
Other     978       1,142  
Total accrued and other current liabilities   $ 34,912     $ 24,268  
XML 45 R29.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 5 - Debt and Mezzanine Equity (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Debt [Table Text Block]
    September 30,
2016
  December 31,
2015
         
Senior secured loan facility   $ 28,438     $ 31,590  
BNDES credit facility     1,471       1,956  
FINEP credit facility     777       840  
Total credit facilities     30,686       34,386  
Convertible notes     68,533       61,233  
Related party convertible notes     40,611       42,749  
Related party loan payable     22,847        
Loans payable     12,954       13,606  
Total debt     175,631       151,974  
Less: current portion     (75,016 )     (36,281 )
Long-term debt   $ 100,615     $ 115,693  
Mezzanine equity
(1)
    5,000        
Schedule of Long-term Debt Instruments [Table Text Block]
Years ending December 31:   Related Party
Convertible
Debt
  Convertible
Debt
  Loans
Payable
  Related
Party Loans
payable
  Credit
Facility
  Total
2016 (remaining three months)   $ 312     $ 3,240     $ 1,770     $ 844     $ 33,234     $ 39,400  
2017     4,837       23,562       2,870       26,257       1,551       59,077  
2018     13,937       17,736       2,450             322       34,445  
2019     26,080       79,937       2,342             78       108,437  
2020                 2,234                   2,234  
Thereafter                 3,314                   3,314  
Total future minimum payments     45,166       124,475       14,980       27,101       35,185       246,907  
Less: amount representing interest
(1)
    (4,555 )     (55,942 )     (2,026 )     (4,254       (4,499 )     (71,276 )
Present value of minimum debt payments     40,611       68,533       12,954       22,847       30,686       175,631  
Less: current portion present value of minimum debt payments     (3,611 )     (15,357 )     (3,275 )     (22,847       (29,926 )     (75,016 )
Noncurrent portion of debt   $ 37,000     $ 53,176     $ 9,679     $     $ 760     $ 100,615  
XML 46 R30.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 6 - Commitments and Contingencies (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule Of Future Minimum Payments For Lease Obligations [Table Text Block]
Years ending December 31:   Capital
Leases
  Operating
Leases
  Total Lease
Obligations
2016 (remaining three months)   $ 471     $ 1,762     $ 2,233  
2017     525       6,888       7,413  
2018     28       6,890       6,918  
2019           6,777       6,777  
2020           7,008       7,008  
Thereafter           18,210       18,210  
Total future minimum lease payments     1,024     $ 47,535     $ 48,559  
Less: amount representing interest     (26 )                
Present value of minimum lease payments     998                  
Less: current portion     (942 )                
Long-term portion   $ 56                  
XML 47 R31.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 7 - Joint Ventures and Noncontrolling Interests (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Variable Interest Entities [Table Text Block]
(In thousands)   September 30,
2016
  December 31,
2015
Assets   $ 493     $ 6,993  
Liabilities   $ 257     $ 1,221  
Noncontrolling Interest [Table Text Block]
    2016   2015
Balance at January 1   $ 391     $ 611  
Foreign currency translation adjustment           (393 )
Income attributable to noncontrolling interest           78  
Acquisition of noncontrolling interest     (277 )      
Balance at September 30   $ 114     $ 296  
XML 48 R32.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 9 - Goodwill and Intangible Assets (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Intangible Assets and Goodwill [Table Text Block]
        September 30, 2016   December 31, 2015
    Useful Life
in Years
  Gross
Carrying
Amount
  Accumulated
Amortization/
Impairment
  Net
Carrying
Value
  Gross
Carrying
Amount
  Accumulated
Amortization/
Impairment
  Net
Carrying
Value
In-process research and development     Indefinite     $ 8,560     $ (8,560 )   $     $ 8,560     $ (8,560 )   $  
Acquired licenses and permits     2       772       (772 )           772       (772 )      
Goodwill     Indefinite       560             560       560             560  
            $ 9,892     $ (9,332 )   $ 560     $ 9,892     $ (9,332 )   $ 560  
XML 49 R33.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 11 - Stock-based Compensation (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Share-based Compensation, Stock Options and Stock Appreciation Rights Award Activity [Table Text Block]
    Number
Outstanding
  Weighted-
Average
Exercise
Price
  Weighted-
Average
Remaining
Contractual
Life (Years)
  Aggregate
Intrinsic
Value
                (in thousands)
Outstanding - December 31, 2015     12,930,112     $ 4.77       7.39     $ 22  
Options granted     3,324,775     $ 0.58              
Options exercised     (134 )   $ 0.28              
Options cancelled     (2,393,835 )   $ 5.59              
Outstanding - September 30, 2016     13,860,918     $ 3.62       7.27     $  
Vested and expected to vest after September 30, 2016     12,598,270     $ 3.86       7.08     $  
Exercisable at September 30, 2016     6,788,182     $ 5.84       5.47     $  
Schedule of Share-based Compensation, Restricted Stock and Restricted Stock Units Activity [Table Text Block]
    RSUs   Weighted-
Average Grant-
Date Fair Value
  Weighted Average
Remaining
Contractual Life
(Years)
Outstanding - December 31, 2015     5,554,844     $ 2.03       1.61  
 Awarded     4,374,389     $ 0.60        
 Vested     (1,467,569 )   $ 2.19        
 Forfeited     (987,109 )   $ 1.49        
Outstanding - September 30, 2016     7,474,555     $ 1.23       1.52  
Expected to vest after September 30, 2016     5,898,952     $ 2.72       1.39  
Schedule of Share-based Compensation, Shares Authorized under Stock Option Plans, by Exercise Price Range [Table Text Block]
 
 
 
 
Options Outstanding
 
Options Exercisable
Exercise Price
 
Number of Options
 
Weighted-
Average
Remaining
Contractual Life
(Years)
 
Weighted-Average
Exercise Price
 
Number of Options
 
Weighted-Average
Exercise Price
$0.28
$0.57
 
 
372,754
 
 
 
9.71
 
 
$
0.43
 
 
 
3,254
 
 
$
0.28
 
$0.59
$0.59
 
 
2,574,375
 
 
 
9.62
 
 
$
0.59
 
 
 
 
 
$
 
$0.81
$1.73
 
 
2,063,938
 
 
 
8.94
 
 
$
1.64
 
 
 
166,987
 
 
$
1.61
 
$1.75
$1.96
 
 
1,546,638
 
 
 
8.48
 
 
$
1.91
 
 
 
536,904
 
 
$
1.90
 
$1.98
$2.81
 
 
1,393,357
 
 
 
6.43
 
 
$
2.61
 
 
 
1,079,929
 
 
$
2.66
 
$2.85
$3.44
 
 
1,369,225
 
 
 
6.49
 
 
$
3.02
 
 
 
1,137,340
 
 
$
3.01
 
$3.51
$3.51
 
 
1,577,760
 
 
 
7.33
 
 
$
3.51
 
 
 
970,489
 
 
$
3.51
 
$3.55
$4.31
 
 
1,761,134
 
 
 
3.86
 
 
$
3.97
 
 
 
1,691,542
 
 
$
3.98
 
$4.35
$26.84
 
 
1,141,737
 
 
 
3.94
 
 
$
17.59
 
 
 
1,141,737
 
 
$
17.59
 
$30.17
$30.17
 
 
60,000
 
 
 
4.45
 
 
$
30.17
 
 
 
60,000
 
 
$
30.17
 
$0.28
$30.17
 
 
13,860,918
 
 
 
7.27
 
 
$
3.62
 
 
 
6,788,182
 
 
$
5.84
 
Schedule of Employee Service Share-based Compensation, Allocation of Recognized Period Costs [Table Text Block]
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Research and development   $ 481     $ 530     $ 1,457     $ 1,776  
Sales, general and administrative     1,327       1,726       4,191       5,188  
Total stock-based compensation expense   $ 1,808     $ 2,256     $ 5,648     $ 6,964  
Schedule of Share-based Payment Award, Stock Options, Valuation Assumptions [Table Text Block]
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Expected dividend yield     %     %     %     %
Risk-free interest rate     1.2 %     2 %     1.32 %     2 %
Expected term (in years)     6.16       6.03       6.23       6.00  
Expected volatility     76.7 %     74 %     73 %     74 %
XML 50 R34.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 15 - Reporting Segments (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Revenue from External Customers Attributed to Foreign Countries by Geographic Area [Table Text Block]
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Europe   $ 1,899     $ 459     $ 10,527     $ 2,138  
United States     20,461       6,177       27,869       15,550  
Asia     4,126       991       6,039       2,769  
Brazil     46       964       467       3,850  
Other     12             52        
Total   $ 26,544     $ 8,591     $ 44,954     $ 24,307  
Schedule of Disclosure on Geographic Areas, Long-Lived Assets in Individual Foreign Countries by Country [Table Text Block]
    September 30, 2016   December 31, 2015
Brazil   $ 47,348     $ 41,093  
United States     15,489       18,401  
Europe     256       303  
Total   $ 63,093     $ 59,797  
XML 51 R35.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 16 - Comprehensive Loss (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Accumulated Other Comprehensive Income (Loss) [Table Text Block]
    September 30, 2016   December 31, 2015
Foreign currency translation adjustment, net of tax   $ (39,801 )   $ (47,198 )
Total accumulated other comprehensive loss   $ (39,801 )   $ (47,198 )
XML 52 R36.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 17 - Net Loss Attributable to Common Stockholders and Net Loss Per Share (Tables)
9 Months Ended
Sep. 30, 2016
Notes Tables  
Schedule of Earnings Per Share, Basic and Diluted [Table Text Block]
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Numerator:                                
Net loss attributable to Amyris, Inc. common stockholders   $ (19,704 )   $ (76,664 )   $ (48,579 )   $ (176,034 )
Interest on convertible debt                 5,093        
Accretion of debt discount                 5,304        
Gain from change in fair value of derivative instruments                 (37,593 )      
Net loss attributable to Amyris, Inc. common stockholders after assumed conversion   $ (19,704 )   $ (76,664 )   $ (75,775 )   $ (176,034 )
                                 
Denominator:                                
Weighted average shares of common stock outstanding for basic EPS     249,190,339       140,374,297       226,772,159       100,103,007  
Basic loss per share   $ (0.08 )   $ (0.55 )   $ (0.21 )   $ (1.76 )
                                 
Weighted average shares of common stock outstanding     249,190,339       140,374,297       226,772,159       100,103,007  
Effect of dilutive securities:                                
Convertible promissory notes                 41,602,952        
Weighted common stock equivalents                 41,602,952        
                                 
Diluted weighted-average common shares     249,190,339       140,374,297       268,375,111       100,103,007  
Diluted loss per share   $ (0.08 )   $ (0.55 )   $ (0.28 )   $ (1.76 )
Schedule of Antidilutive Securities Excluded from Computation of Earnings Per Share [Table Text Block]
    Three Months Ended September 30,   Nine Months Ended September 30,
    2016   2015   2016   2015
Period-end stock options to purchase common stock     13,860,918       11,307,679       13,860,918       11,307,679  
Convertible promissory notes
(1)
    66,474,148       43,451,433       23,760,389       43,451,433  
Period-end common stock warrants     14,663,411       2,901,926       14,663,411       2,901,926  
Period-end restricted stock units     7,474,555       3,558,243       7,474,555       3,558,243  
Total     102,473,032       61,219,281       59,759,273       61,219,281  
XML 53 R37.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 1 - The Company (Details Textual)
$ in Thousands
9 Months Ended
Sep. 30, 2016
USD ($)
Dec. 31, 2015
USD ($)
Number of Operating Segments 2  
Working Capital $ (110,600)  
Retained Earnings (Accumulated Deficit) (1,085,683) $ (1,037,104)
Cash, Cash Equivalents, and Short-term Investments 2,300  
Debt Instrument, Unamortized Discount 36,100  
Long-term Debt 175,631 151,974
Long-term Debt, Current Maturities, Including Due to Related Parties 75,016 $ 36,281
Interest Payable $ 16,200  
Percentage of Outstanding Principle to be Maintained in Unencumbered Cash 50.00%  
XML 54 R38.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 2 - Summary of Significant Accounting Policies (Details Textual)
9 Months Ended
Sep. 30, 2016
Variable Interest Entity, Number of Entities 2
XML 55 R39.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 3 - Fair Value of Financial Instruments (Details Textual)
$ in Thousands, BRL in Millions
Sep. 30, 2016
USD ($)
Sep. 30, 2016
BRL
Dec. 31, 2015
USD ($)
Derivative Liabilities [Member] | Fair Value, Inputs, Level 3 [Member] | Derivative Liability, Compound Embedded Derivatives [Member]      
Fair Value, Measurement with Unobservable Inputs Reconciliations, Recurring Basis, Liability Value $ 3,800   $ 46,400
Fair Value, Inputs, Level 3 [Member] | Derivative Liability, Compound Embedded Derivatives [Member]      
Fair Value, Measurement with Unobservable Inputs Reconciliations, Recurring Basis, Liability Value 3,827   $ 46,430
Banco Pine July 2012 Loan Agreement [Member] | Interest Rate Swap [Member]      
Derivative, Notional Amount $ 6,800 BRL 22  
Derivative, Fixed Interest Rate 3.94% 3.94%  
XML 56 R40.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 3 - Fair Value of Financial Instruments - Fair Value, Assets, and Liabilities Measured on Recurring Basis (Details) - Fair Value, Measurements, Recurring [Member] - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Fair Value, Inputs, Level 1 [Member]    
Money market funds $ 59 $ 2,078
Certificates of deposit 1,713 1,520
Total financial assets 1,772 3,598
Loans payable [1] [2]
Credit facilities [1] [2]
Convertible notes [1] [2]
Compound embedded derivative liabilities
Currency interest rate swap derivative liability
Total financial liabilities
Fair Value, Inputs, Level 2 [Member]    
Money market funds
Certificates of deposit
Total financial assets
Loans payable 34,146 [1] 9,541 [2]
Credit facilities 19,310 [1] 34,893 [2]
Convertible notes [1] [2]
Compound embedded derivative liabilities
Currency interest rate swap derivative liability 3,471 5,009
Total financial liabilities 56,927 49,443
Fair Value, Inputs, Level 3 [Member]    
Money market funds
Certificates of deposit
Total financial assets
Loans payable [1] [2]
Credit facilities [1] [2]
Convertible notes 109,885 [1] 96,291 [2]
Compound embedded derivative liabilities 3,827 46,430
Currency interest rate swap derivative liability
Total financial liabilities 113,712 142,721
Money market funds 59 2,078
Certificates of deposit 1,713 1,520
Total financial assets 1,772 3,598
Loans payable 34,146 [1] 9,541 [2]
Credit facilities 19,310 [1] 34,893 [2]
Convertible notes 109,885 [1] 96,291 [2]
Compound embedded derivative liabilities 3,827 46,430
Currency interest rate swap derivative liability 3,471 5,009
Total financial liabilities $ 170,639 $ 192,164
[1] These liabilities are carried on the condensed consolidated balance sheet on a historical cost basis.
[2] These liabilities are carried on the consolidated balance sheet on a historical cost basis (noting that the Remaining Notes subject to the Maturity Treatment Agreement were revalued to fair value on July 29, 2015, see Note 5 "Debt" for details).
XML 57 R41.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 3 - Fair Value of Financial Instruments - Fair Value, Liabilities Measured on Recurring Basis, Unobservable Input Reconciliation (Details) - Fair Value, Inputs, Level 3 [Member] - Convertible Debt [Member]
$ in Thousands
9 Months Ended
Sep. 30, 2016
USD ($)
Balance, convertible notes $ 96,291
Additions of convertible notes 13,000
Conversion/extinguishment of convertible notes (21,579)
Change in fair value of convertible notes 22,173
Balance at September 30 $ 109,885
XML 58 R42.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 3 - Fair Value of Financial Instruments - Reconciliation for Compound Embedded Derivative Liability (Details) - Fair Value, Inputs, Level 3 [Member] - Derivative Liability, Compound Embedded Derivatives [Member]
$ in Thousands
9 Months Ended
Sep. 30, 2016
USD ($)
Balance, convertible notes $ 46,430
Derecognition on conversion/extinguishment (2,734)
Gain from change in fair value of derivative liabilities (39,869)
Balance at September 30 $ 3,827
XML 59 R43.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 3 - Fair Value of Financial Instruments - Market-based Assumption and Estimates for Compound Embedded Derivative Liabilities Valuation (Details) - $ / shares
9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Minimum [Member]    
Risk-free interest rate 0.20% 0.93%
Risk-adjusted yields 17.30% 24.40%
Credit spread 16.49% 28.81%
Estimated conversion dates 2016 2015
Maximum [Member]    
Risk-free interest rate 0.84% 1.07%
Risk-adjusted yields 27.43% 39.90%
Credit spread 26.60% 38.83%
Estimated conversion dates 2019 2019
Expected volatility 45.00% 45.00%
Probability of change in control 5.00% 5.00%
Stock price (in dollars per share) $ 0.58 $ 2.01
XML 60 R44.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 3 - Fair Value of Financial Instruments - Derivative Instruments Classification (Details) - USD ($)
$ in Thousands
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Currency Interest Rate Swap [Member] | Not Designated as Hedging Instrument [Member] | Gain (Loss) From Change in Fair Value of Derivative Instruments [Member]        
Currency interest rate swap $ (145) $ (1,796) $ 1,957 $ (3,201)
XML 61 R45.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 3 - Fair Value of Financial Instruments - Derivative Liabilities (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Fair market value of compound embedded derivative liabilities $ 3,827 $ 46,430
Fair value of swap obligations 3,471 5,009
Total derivative liabilities $ 7,298 $ 51,439
XML 62 R46.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 4 - Balance Sheet Components (Details Textual) - USD ($)
$ in Thousands
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Dec. 31, 2015
Capital Lease Obligations [Member] | Machinery and Equipment, Furniture and Office Equipment Under Capital Lease [Member]          
Property, Plant and Equipment, Gross $ 2,300   $ 2,300   $ 2,700
Capital Lease Obligations [Member]          
Accumulated Depreciation, Depletion and Amortization, Property, Plant, and Equipment 400   400   500
Property, Plant and Equipment, Including Capital Leases [Member]          
Depreciation, Depletion and Amortization 2,900 $ 3,100 8,600 $ 9,900  
Property, Plant and Equipment, Gross 147,552   147,552   132,619
Accumulated Depreciation, Depletion and Amortization, Property, Plant, and Equipment $ 84,459   84,459   $ 72,822
Depreciation, Depletion and Amortization     $ 8,561 $ 9,931  
XML 63 R47.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 4 - Balance Sheet Components - Inventory, Current (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Raw materials $ 2,664 $ 2,204
Work-in-process 1,809 3,583
Finished goods 3,426 5,099
Inventories, net $ 7,899 $ 10,886
XML 64 R48.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 4 - Balance Sheet Components - Property, Plant and Equipment (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Machinery and Equipment [Member]    
Property, plant and equipment $ 85,538 $ 72,876
Leasehold Improvements [Member]    
Property, plant and equipment 38,791 38,519
Computer Equipment and Software [Member]    
Property, plant and equipment 9,545 9,117
Building [Member]    
Property, plant and equipment 4,718 3,922
Furniture and Fixtures [Member]    
Property, plant and equipment 2,335 2,234
Vehicles [Member]    
Property, plant and equipment 195 215
Construction in Progress [Member]    
Property, plant and equipment 6,430 5,736
Property, plant and equipment 147,552 132,619
Less: accumulated depreciation and amortization (84,459) (72,822)
Property, plant and equipment, net $ 63,093 $ 59,797
XML 65 R49.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 4 - Balance Sheet Components - Other Assets, Noncurrent (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Recoverable taxes from Brazilian government entities $ 11,955 $ 8,887
Deposits on property and equipment, including taxes 292 243
Other 1,410 1,227
Total other assets $ 13,657 $ 10,357
XML 66 R50.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 4 - Balance Sheet Components - Accrued and Other Current Liabilities (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Withholding tax related to conversion of related party notes $ 4,964 $ 4,723
Professional services 5,406 4,017
SMA relocation accrual 4,380 3,641
Accrued interest 8,283 1,984
Tax-related liabilities 2,325 2,505
Accrued vacation 1,932 2,023
Payroll and related expenses 4,268 3,122
Deferred rent, current portion 1,110 1,111
Contractual obligations to contract manufacturers 680
Fair value swap short-term 586
Other 978 1,142
Total accrued and other current liabilities $ 34,912 $ 24,268
XML 67 R51.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 5 - Debt and Mezzanine Equity (Details Textual)
$ / shares in Units, BRL in Millions
1 Months Ended 3 Months Ended 5 Months Ended 6 Months Ended 9 Months Ended 12 Months Ended
Jun. 24, 2016
USD ($)
May 10, 2016
USD ($)
Feb. 15, 2016
USD ($)
$ / shares
shares
Feb. 12, 2016
USD ($)
$ / shares
shares
Feb. 12, 2016
EUR (€)
Dec. 02, 2015
USD ($)
Nov. 30, 2015
USD ($)
Oct. 20, 2015
USD ($)
Oct. 14, 2015
USD ($)
$ / shares
shares
Jul. 29, 2015
USD ($)
$ / shares
shares
Apr. 02, 2015
Mar. 31, 2016
USD ($)
Mar. 31, 2016
EUR (€)
Feb. 29, 2016
USD ($)
$ / shares
shares
Nov. 30, 2015
USD ($)
Jul. 31, 2015
USD ($)
$ / shares
shares
Jun. 30, 2014
USD ($)
May 31, 2014
USD ($)
$ / shares
Mar. 31, 2014
USD ($)
Jan. 31, 2014
USD ($)
$ / shares
Oct. 31, 2013
USD ($)
$ / shares
Aug. 31, 2013
USD ($)
$ / shares
shares
Jul. 31, 2012
USD ($)
Dec. 31, 2011
BRL
Nov. 30, 2010
Sep. 30, 2016
USD ($)
$ / shares
shares
Sep. 30, 2015
USD ($)
shares
Sep. 30, 2016
USD ($)
$ / shares
shares
Dec. 31, 2016
USD ($)
Sep. 30, 2016
USD ($)
$ / shares
shares
Sep. 30, 2016
BRL
Sep. 30, 2015
USD ($)
shares
Dec. 31, 2015
USD ($)
Sep. 30, 2016
BRL
shares
Sep. 02, 2016
USD ($)
May 30, 2016
USD ($)
$ / shares
shares
Feb. 16, 2016
$ / shares
Dec. 31, 2015
BRL
Oct. 31, 2015
USD ($)
Jun. 30, 2015
Apr. 30, 2015
USD ($)
Mar. 31, 2015
USD ($)
Jan. 31, 2015
USD ($)
$ / shares
Jul. 31, 2014
USD ($)
$ / shares
Apr. 30, 2014
USD ($)
$ / shares
Dec. 31, 2013
USD ($)
Oct. 04, 2013
Sep. 30, 2013
USD ($)
shares
Jul. 31, 2013
USD ($)
$ / shares
Jun. 30, 2013
USD ($)
$ / shares
Mar. 31, 2013
$ / shares
Sep. 14, 2012
USD ($)
$ / shares
Jul. 31, 2012
BRL
Jul. 30, 2012
USD ($)
Jun. 30, 2012
USD ($)
Feb. 28, 2012
USD ($)
$ / shares
The 2016 Convertible Note [Member] | Convertible Subordinated Debt [Member] | Minimum [Member]                                                                                                                
Debt Instrument, Convertible Stock Price Trigger for Deferred Installments | $ / shares                                                   $ 0.50   $ 0.50   $ 0.50                                                    
Debt Instrument, Convertible Threshold Consecutive Trading Days, Deferred Installments                                                           5 days 5 days                                                  
The 2016 Convertible Note [Member] | Convertible Subordinated Debt [Member] | Maximum [Member]                                                                                                                
Debt Instrument, Convertible Stock Price Trigger for Deferred Installments | $ / shares                                                   $ 1   $ 1   $ 1                                                    
Debt Instrument, Convertible Threshold Consecutive Trading Days, Deferred Installments                                                           30 days 30 days                                                  
The 2016 Convertible Note [Member] | Convertible Subordinated Debt [Member] | Scenario, Forecast [Member]                                                                                                                
Proceeds from Convertible Debt                                                         $ 5,000,000                                                      
Debt Instrument, Face Amount, Contingent Second Closing                                                         $ 5,000,000                                                      
The 2016 Convertible Note [Member] | Convertible Subordinated Debt [Member] | Threshold 2 [Member]                                                                                                                
Debt Instrument, Redemption Price, Percentage upon Triggering Event                                                           112.00% 112.00%                                                  
The 2016 Convertible Note [Member] | Convertible Subordinated Debt [Member]                                                                                                                
Debt Instrument, Monthly Installments, Percent of Installment Amount                                                           118.00% 118.00%                                                  
Debt Instrument, Events of Default, Percentage of Amount can be Redeemed by Holders                                                           118.00% 118.00%                                                  
Debt Instrument, Events of Fundamental Transaction, Percentage of Amount can be Redeemed by Holders                                                           118.00% 118.00%                                                  
Debt Instrument, Face Amount                                                                       $ 15,000,000                                        
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                       $ 1.90                                        
Proceeds from Convertible Debt   $ 9,900,000                                                                                                            
Convertible Debt   $ 10,000,000                                                                 $ 2                                          
Debt Instrument, Additional Common Stock Payment, Maximum Percent of Aggregate Amount                                                   50.00%   50.00%   50.00%       50.00%                                            
Debt Instrument, Threshold Amount of Dollar-weighted Volume of Common Stock                                                   $ 200,000   $ 200,000   $ 200,000                                                    
Debt Instrument, Redemption Price, Percentage                                                           118.00% 118.00%                                                  
Convertible Debt, Length of Time from Date of Issuance, Threshold                                                           120 days 120 days                                                  
Hercules Credit Additional Amount [Member] | Hercules Technology Growth Capital, Inc. (Hercules) [Member] | Minimum [Member] | Prime Rate [Member]                                                                                                                
Debt Instrument, Basis Spread on Variable Rate                                 5.25%                                                                              
Hercules Credit Additional Amount [Member] | Hercules Technology Growth Capital, Inc. (Hercules) [Member] | Maximum [Member] | Prime Rate [Member]                                                                                                                
Debt Instrument, Basis Spread on Variable Rate                                 8.50%                                                                              
Hercules Credit Additional Amount [Member] | Hercules Technology Growth Capital, Inc. (Hercules) [Member]                                                                                                                
Debt Instrument, Additional Amount Required                                 $ 5,000,000                                                                              
Third Hercules Amendment [Member] | Hercules Technology Growth Capital, Inc. (Hercules) [Member] | Prime Rate [Member]                                                                                                                
Debt Instrument, Basis Spread on Variable Rate                             6.25%                                                                                  
Third Hercules Amendment [Member] | Hercules Technology Growth Capital, Inc. (Hercules) [Member] | Portion of Debt Costs Owed in Connection with Expired Facility [Member]                                                                                                                
Payments of Debt Issuance Costs             $ 750,000                                                                                                  
Third Hercules Amendment [Member] | Hercules Technology Growth Capital, Inc. (Hercules) [Member] | Portion of Debt Costs Related to the Third Hercules Amendment [Member]                                                                                                                
Payments of Debt Issuance Costs             $ 250,000                                                                                                  
Third Hercules Amendment [Member] | Hercules Technology Growth Capital, Inc. (Hercules) [Member]                                                                                                                
Loans Payable           $ 31,700,000                                                                                                    
Proceeds from Issuance of Long-term Debt                             $ 10,960,000                                                                                  
Repayments of Long-term Debt           $ 9,100,000                                                                                                    
Debt Instrument, Interest Rate, Stated Percentage             9.50%               9.50%                                                                                  
Debt Instrument, Periodic Payment Terms, Balloon Payment to be Paid             $ 767,200               $ 767,200                                                                                  
Payments of Debt Issuance Costs             $ 1,000,000                                                                                                  
Senior Secured Loan Facility [Member]                                                                                                                
Loans Payable                                                   28,400,000   28,400,000   $ 28,400,000                                                    
Debt Instrument, Unamortized Discount                                                   100,000   $ 100,000   $ 100,000                                                    
Fidelity Convertible Notes [Member] | Convertible Subordinated Debt [Member]                                                                                                                
Convertible Notes Payable                                                                                                               $ 25,000,000
Debt Instrument, Interest Rate, Effective Percentage                                                                                                               3.00%
Fidelity Convertible Notes [Member]                                                                                                                
Debt Instrument, Face Amount                                                                             $ 57,600,000                                  
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                                               $ 7.0682
Debt Instrument, Repurchase Amount                                                                             8,800,000                                  
Debt Instrument, Repurchased Face Amount                                                                             $ 9,700,000                                  
Debt Instrument, Convertible, Number of Equity Instruments                                                           2,165,898 2,165,898                                                  
Convertible Promissory Note, Acquisition Right Amount Redeemable, Percentage                                                                                                               101.00%
Convertible Promissory Note, Maximum Allowable Debt                                                                                                               $ 200,000,000
Convertible Promissory Notes, Debt Percentage of Total Assets                                                                                                               50.00%
Convertible Promissory Note, Maximum Amount of Secured Debt                                                                                                               $ 125,000,000
Convertible Promissory Note, Secured Debt as a Percentage of Consolidated Total Assets                                                                                                               30.00%
Convertible Promissory Note, Bridge Loan Amount, Convertible Promissory Note Covenants Waived                                         $ 35,000,000                                                                      
Additional Consideration for Covenant Waiving, Convertible Promissory Notes                                         7,600,000                                                                      
Rule 144A Convertible Note Offering [Member] | Convertible Debt Securities [Member]                                                                                                                
Debt Instrument, Interest Rate, Effective Percentage                                   6.50%                                                                            
Rule 144A Convertible Note Offering [Member] | Numerator [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Ratio                                   267.037                                                                            
Rule 144A Convertible Note Offering [Member] | Denominator [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Rate, Principle Amount | $ / shares                                   $ 1,000                                                                            
Rule 144A Convertible Note Offering [Member] | Affiliated Entity [Member]                                                                                                                
Debt Instrument, Interest Rate, Stated Percentage                                   6.50%                                                                            
Debt Instrument, Face Amount                                   $ 57,600,000                                                                            
Debt Instrument, Repurchase Amount                                   18,300,000                                                                            
Debt Instrument, Repurchased Face Amount                                   22.90                                                                            
Amount of Convertible Debt Purchased by Affiliated Entities                                   $ 24,700,000                                                                            
Rule 144A Convertible Note Offering [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                   $ 3.74                                                                            
Convertible Note Offering                                   $ 75,000,000                                                                            
Additional Convertible Note Offering                                   15,000,000                                                                            
Proceeds from Convertible Debt                                   72,000,000                                                                            
Proceeds from Convertible Debt Used to Repay Previously Issued Convertible Debt                                   $ 9,700,000                                                                            
Debt Instrument, Convertible, Threshold Trading Days                                   20                                                                            
Debt Instrument, Convertible, Threshold Consecutive Trading Days                                   30 days                                                                            
Debt Instrument, Convertible, Threshold Days for Conversion Notification                                   5 days                                                                            
Convertible Note Substantial Change, Discount Rate Used in Calculate Value of Remaining Interest Payments                                   0.75%                                                                            
Convertible Note Substantial Change, Percentage of Principal Repurchase Price                                   100.00%                                                                            
Convertible Senior Notes, 9.5% [Member]                                                                                                                
Debt Instrument, Interest Rate, Stated Percentage                 9.50%                                                                                              
Debt Instrument, Face Amount                 $ 57,600,000                                                                                              
Debt Instrument, Convertible, Conversion Price | $ / shares                 $ 2.25                                                                                              
Debt Instrument, Repurchase Amount       $ 3,700,000               $ 3,700,000                                                                                        
Debt Instrument, Convertible, Number of Equity Instruments                 38,415,626                                                                                              
Convertible Promissory Note, Maximum Allowable Debt                 $ 200,000,000                                                                                              
Convertible Promissory Note, Maximum Amount of Secured Debt                 $ 65,000,000                                                                                              
Convertible Promissory Note, Secured Debt as a Percentage of Consolidated Total Assets                 30.00%                                                                                              
Proceeds from Convertible Debt               $ 54,400,000                                                                                                
Debt Instrument, Convertible, Conversion Rate, Principle Amount | $ / shares                 $ 1,000         $ 1,000                           $ 1,000                                                        
Convertible Note Substantial Change, Discount Rate Used in Calculate Value of Remaining Interest Payments                 0.75%                                                                                              
Convertible Note Substantial Change, Percentage of Principal Repurchase Price                 100.00%                                                                                              
Debt Instrument, Convertible, Conversion Rate, Shares | shares                 443.6557         446.6719                           446.8707                                                        
Debt Instrument, Convertible Percentage of Average Price Per Share the Stock will be Valued upon Early Conversion                 92.50%                                                                                              
Number of Trading Days Notes Become Convertible                 10 days                                                                                              
Debt Restrictions, Maximum Outstanding Debt                 $ 25,000,000                                                                                              
Long-term Debt                                                   $ 17,800,000   $ 17,800,000   $ 17,800,000                                                    
Class of Warrant or Right, Term       5 years 5 years                                                                                                      
Convertible Senior Notes, 6.5% [Member]                                                                                                                
Debt Instrument, Repurchase Amount               18,300,000                                                                                                
Debt Instrument, Repurchased Face Amount               22,900,000                                                                                                
Convertible Senior Notes, 3% [Member]                                                                                                                
Debt Instrument, Repurchase Amount               8,800,000                                                                                                
Debt Instrument, Repurchased Face Amount               $ 9,700,000                                                                                                
Total Purchase Agreement [Member] | Total [Member]                                                                                                                
Debt Instrument, Face Amount                                             $ 105,000,000                                                                  
Unsecured Senior Convertible Promissory Notes [Member] | Total [Member]                                                                                                                
Extinguishment of Debt, Amount       $ 1,300,000                                                                                                        
Unsecured Senior Convertible Promissory Notes [Member] | Initial Closing [Member] | Total [Member] | New Funding [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                                           $ 15,000,000    
Unsecured Senior Convertible Promissory Notes [Member] | Initial Closing [Member] | Total [Member] | Diesel Research and Development Funding [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                                           23,300,000    
Unsecured Senior Convertible Promissory Notes [Member] | Initial Closing [Member] | Total [Member]                                                                                                                
Debt Instrument, Interest Rate, Stated Percentage                                             1.50%                                                           1.50%      
Debt Instrument, Face Amount                                                                                                       $ 15,000,000   $ 38,300,000    
Number of Installments                                             2                                                                  
Unsecured Senior Convertible Promissory Notes [Member] | Initial Closing [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                                       $ 7.0682        
Unsecured Senior Convertible Promissory Notes [Member] | Second Closing [Member] | Total [Member] | Related Party Convertible Notes [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                                 $ 20,000,000 $ 10,000,000            
Unsecured Senior Convertible Promissory Notes [Member] | Second Closing [Member] | Total [Member]                                                                                                                
Number of Installments                                             2                                                                  
Unsecured Senior Convertible Promissory Notes [Member] | Second Closing [Member] | Related Party Convertible Notes [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                                 $ 3.08              
Unsecured Senior Convertible Promissory Notes [Member] | Two Installments in Second Closing [Member] | Total [Member] | Related Party Convertible Notes [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                                 $ 30,000,000              
Unsecured Senior Convertible Promissory Notes [Member] | Third Closing [Member] | Total [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                     $ 10,850,000 $ 10,850,000                        
Number of Installments                                             2                                                                  
Unsecured Senior Convertible Promissory Notes [Member] | Third Closing [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                     $ 4.11                          
Unsecured Senior Convertible Promissory Notes [Member] | Two Installments In Third Closing [Member] | Total [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                     $ 21,700,000 $ 21,700,000                        
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                       $ 4.11                        
Unsecured Senior Convertible Promissory Notes [Member] | Total [Member] | Related Party Convertible Notes [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                                 30,000,000 $ 10,000,000            
Unsecured Senior Convertible Promissory Notes [Member] | Total [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                           $ 69,000,000                    
March 2013 Letter Agreement [Member] | Minimum [Member] | Total [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                                     $ 3.08          
March 2013 Letter Agreement [Member] | Total [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                                   $ 3.08 7.0682          
Debt Instrument Closing Price Plus Incremental Rate | $ / shares                                                                                                     $ 0.01          
Senior Secured Convertible Note [Member] | Total [Member]                                                                                                                
Debt Instrument, Interest Rate, Stated Percentage                                                                                           1.50%                    
July 2012 Agreements [Member] | Total [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                       $ 10,850,000                        
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                         $ 7.0682                      
March 2014 Letter Agreement [Member] | Two Installments In Third Closing [Member] | Total [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                     $ 4.11                          
March 2014 Letter Agreement [Member] | Total [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                                                                         $ 4.11                      
Convertible Debt                                                                                         $ 75,000,000                      
Unsecured Promissory Notes, 2016 [Member] | Total [Member]                                                                                                                
Extinguishment of Debt, Amount                       1,300,000                                                                                        
March 2016 R&D Note [Member]                                                                                                                
Extinguishment of Debt, Amount                       5,000,000                                                                                        
Replacement Notes [Member]                                                                                                                
Debt Instrument, Unamortized Discount                       0                                         $ 0                                              
Debt Instrument, Interest Rate, Effective Percentage                                                   1.50%   1.50%   1.50%       1.50%                                            
Debt Instrument, Convertible, Conversion Price | $ / shares                                                   $ 3.08   $ 3.08   $ 3.08                                                    
Convertible Promissory Note, Maximum Allowable Debt                                                   $ 200,000,000   $ 200,000,000   $ 200,000,000                                                    
Convertible Promissory Notes, Debt Percentage of Total Assets                                                   50.00%   50.00%   50.00%       50.00%                                            
Convertible Promissory Note, Maximum Amount of Secured Debt                                                   $ 125,000,000   $ 125,000,000   $ 125,000,000                                                    
Convertible Promissory Note, Secured Debt as a Percentage of Consolidated Total Assets                                                   30.00%   30.00%   30.00%       30.00%                                            
Long-term Debt                       $ 3,700,000                           $ 3,700,000   $ 3,700,000   $ 3,700,000     5,000,000                                              
Debt Instrument Default Rate                                                   2.50%   2.50%   2.50%       2.50%                                            
Percentage of Principal Amount of Notes, Required to Be Repaid in Change of Control                                                           101.00% 101.00%                                                  
August 2013 Convertible Notes [Member] | Private Placement [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                               $ 110,000,000                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares                                                                                               1,000,000                
August 2013 Convertible Notes [Member] | Total [Member] | First Tranche [Member]                                                                                                                
Cancellation of Convertible Debt                                           $ 7,600,000                                                                    
August 2013 Convertible Notes [Member] | Total [Member] | Second Tranche [Member]                                                                                                                
Cancellation of Convertible Debt                                           $ 5,400,000                                                                    
August 2013 Convertible Notes [Member] | Total [Member] | Common Stock [Member]                                                                                                                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares                                           1,000,000                                                                    
Class of Warrant or Right, Exercise Price of Warrants or Rights | $ / shares                                           $ 0.01                                                                    
August 2013 Convertible Notes [Member] | Total [Member]                                                                                                                
Cancellation of Convertible Debt                                           $ 13,000,000                                                                    
August 2013 Convertible Notes [Member] | Total and Temasek [Member] | First Tranche [Member]                                                                                                                
Debt Instrument, Face Amount                                           42,600,000                                                                    
August 2013 Convertible Notes [Member] | Total and Temasek [Member] | Second Tranche [Member]                                                                                                                
Debt Instrument, Face Amount                                           30,400,000                                                                    
August 2013 Convertible Notes [Member] | Total and Temasek [Member]                                                                                                                
Debt Instrument, Face Amount                                           $ 73,000,000                                                                    
Private Placement Convertible Notes, Period                                           2 years                                                                    
Debt Instrument, Number of Tranches                                           2                                                                    
August 2013 Convertible Notes [Member] | Temasek [Member] | Second Tranche [Member]                                                                                                                
Proceeds from Convertible Debt                                           $ 25,000,000                                                                    
August 2013 Convertible Notes [Member] | Temasek [Member]                                                                                                                
Extinguishment of Debt, Amount                                           $ 35,000,000                                                                    
Bridge Loan                                         35,000,000                                                                      
Temasek Bridge Loan [Member] | Temasek [Member]                                                                                                                
Debt Instrument, Interest Rate, Stated Percentage                                                                                             5.50%                  
First Tranche [Member] | Related Party Convertible Notes [Member] | Total [Member]                                                                                                                
Debt Instrument, Face Amount                                         51,800,000                                                                      
Extinguishment of Debt, Amount                                         9,200,000                                                                      
First Tranche [Member] | Related Party Convertible Notes [Member] | Temasek [Member]                                                                                                                
Extinguishment of Debt, Amount                                         $ 35,000,000                                                                      
First Tranche [Member] | Related Party Convertible Notes [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                         $ 2.44                                                                      
Proceeds from Convertible Debt                                         $ 7,600,000                                                                      
Gain (Loss) on Extinguishment of Debt                                         (19,900,000)                                                                      
Cancellation of Convertible Debt                                         $ 44,200,000                                                                      
Convertible Promissory Notes, Period After Which Notes Will Be Due                                         5 years                                                                      
Convertible Notes, Discount Percentage to Determine Conversion Price                                         15.00%                                                                      
Convertible Note Discount, Number of Days for Trailing Weighted-average Closing Price                                         60 days                                                                      
Convertible Notes, Period After Which Convertible at the Option of Holder                                         1 year 180 days                                                                      
Plant Manufacturing Production, Product Sales, Percentage                                         5.00%                                                                      
Debt Instrument, Convertible, Conversion Price, Interest Accrued, Rate Applicable to the First 180 Days                                         6.50%                                                                      
Debt Instrument, Convertible, Conversion Price, Interest Accrued Thereafter                                         8.00%                                                                      
Debt Instrument, Convertible, Conversion Price, Interest Accrued for Defaults                                         6.50%                                                                      
Convertible Notes, Period Over Which Interest is Payable in Kind                                         2 years 180 days                                                                      
Convertible Notes, Recurring Term of Option to Prepay After Initial Payment Period                                         180 days                                                                      
Convertible Notes, Initial Prepayment Term                                         2 years 180 days                                                                      
Second Tranche [Member] | Related Party Convertible Notes [Member]                                                                                                                
Future Cancellation of Debt, Amount                                         $ 9,200,000                                                                      
The Second Tranche [Member] | Related Party Convertible Notes [Member] | Temasek [Member]                                                                                                                
Convertible Notes Purchased                                       $ 25,000,000                                                                        
The Second Tranche [Member] | Related Party Convertible Notes [Member] | Wolverine [Member]                                                                                                                
Convertible Notes Purchased                                       3,000,000                                                                        
The Second Tranche [Member] | Related Party Convertible Notes [Member] | Total [Member]                                                                                                                
Convertible Notes Purchased                                       6,000,000                                                                        
The Second Tranche [Member] | Related Party Convertible Notes [Member]                                                                                                                
Debt Instrument, Face Amount                                       $ 34,000,000                                                                        
Tranche I and Tranche II Notes [Member] | Related Party Convertible Notes [Member]                                                                                                                
Debt Instrument, Unamortized Discount                                                   $ 0   $ 0   $ 0     0                                              
Debt Instrument, Convertible, Conversion Price | $ / shares                               $ 1.42                                       $ 1.14 $ 1.40                                      
Convertible Debt                                                   21,700,000   21,700,000   21,700,000     23,300,000                                              
Debt Conversion, Original Debt, Amount                               $ 71,000,000                                                                                
Debt Conversion, Converted Instrument, Shares Issued | shares                               30,860,000                                                                                
Percentage of Principal Amount of Notes, Required to Be Repaid in Change of Control                                       101.00%                                                                        
Tranche I and Tranche II Notes [Member] | Total [Member]                                                                                                                
Convertible Notes Payable                   $ 15,300,000                                                                                            
ABC Brasil Agreement [Member] | Banco ABC Brasil S.A. (ABC) [Member]                                                                                                                
Additional Export Financing Agreement                                     $ 2,200,000             0   0   0     1,600,000               $ 1,600,000                              
Rule 144A Convertible Notes [Member] | Temasek [Member]                                                                                                                
Convertible Notes Payable                   10,000,000                                                                                            
Rule 144A Convertible Notes [Member] | Total [Member]                                                                                                                
Convertible Notes Payable                   $ 9,700,000                                                                                            
June 2016 Private Placement [Member]                                                                                                                
Debt Instrument, Interest Rate, Stated Percentage 13.50%                                                                                                              
Debt Instrument, Face Amount $ 5,000,000                                                                                                              
Proceeds from Issuance of Private Placement $ 5,000,000                                                                                                              
Related Party and Non-Related Party Convertible Debt [Member]                                                                                                                
Debt Instrument, Unamortized Discount                                                   33,000,000   33,000,000   33,000,000                                                    
Debt Issuance Costs, Net                                                   3,000,000   3,000,000   3,000,000                                                    
Related Party Convertible Notes [Member] | The Second Tranche [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                                       $ 2.87                                                                        
Convertible Promissory Notes, Period After Which Notes Will Be Due                                       5 years                                                                        
Convertible Note Discount, Number of Days for Trailing Weighted-average Closing Price                                       60 days                                                                        
Debt Instrument, Convertible, Conversion Price, Interest Accrued, Rate Applicable to the First 180 Days                                       13.00%                                                                        
Debt Instrument, Convertible, Conversion Price, Interest Accrued Thereafter                                       16.00%                                                                        
Debt Instrument, Convertible, Conversion Price, Interest Accrued for Defaults                                       12.00%                                                                        
Convertible Notes, Recurring Term of Option to Prepay After Initial Payment Period                                       180 days                                                                        
Convertible Notes Exchanged and Cancelled                                       $ 6,000,000                                                                        
Debt Instrument, Term                                       1 year                                                                        
Debt Instrument, Convertible, Conversion Price, Interest Accrued                                       10.00%                                                                        
Debt Instrument, Convertible, Conversion Price, Interest Period                                       3 years                                                                        
Related Party Convertible Notes [Member]                                                                                                                
Convertible Debt                                                   40,600,000   40,600,000   40,600,000     42,800,000                                              
Gain (Loss) on Extinguishment of Debt                                       $ (9,400,000)                                                                        
Long-term Debt                                                   40,611,000   40,611,000   40,611,000     42,749,000                                              
Debt Instrument, Debt Discount, Related Party                                                   2,600,000   2,600,000   2,600,000     1,900,000                                              
Rule 144A Related Party Convertible Notes [Member]                                                                                                                
Convertible Debt                                                   15,300,000   15,300,000   15,300,000     14,600,000                                              
Debt Instrument, Debt Discount, Related Party                                                   2,400,000   2,400,000   2,400,000     1,600,000                                              
Loans Payable [Member] | Nossa Caixa and Banco Pine Agreements [Member]                                                                                                                
Long-term Debt                                                   11,700,000   11,700,000   11,700,000     11,000,000 BRL 37.9       BRL 43.0                                    
Loans Payable [Member]                                                                                                                
Long-term Debt                                                   12,954,000   12,954,000   12,954,000     13,606,000                                              
Unsecured Promissory Notes, 2016 [Member] | Private Placement February 2016 [Member]                                                                                                                
Debt Instrument, Face Amount     $ 2,000,000 $ 18,000,000                                                                                                        
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares     285,714 2,571,428                                                                                                        
Class of Warrant or Right, Exercise Price of Warrants or Rights | $ / shares     $ 0.01 $ 0.01                                                                                                        
Hercules Technology Growth Capital, Inc. (Hercules) [Member] | Minimum [Member] | Prime Rate [Member]                                                                                                                
Debt Instrument, Basis Spread on Variable Rate                                     6.25%                                                                          
Hercules Technology Growth Capital, Inc. (Hercules) [Member] | Maximum [Member] | Prime Rate [Member]                                                                                                                
Debt Instrument, Basis Spread on Variable Rate                                     9.50%                                                                          
Hercules Technology Growth Capital, Inc. (Hercules) [Member]                                                                                                                
Loans Payable                                     $ 25,000,000                                                                          
Debt Instrument, Prepayment Penalty, Percentage                                     1.00%                                                                          
Debt Instrument, Facility Charge, Percentage                                     1.00%                                         5.00%                                
Debt Instrument, End of Term Fee, Percentage                                     10.00%                                                                          
Long-term Line of Credit                                     $ 25,000,000                                                                          
Debt Instrument, Forbearance Fee, Forgiven                                 10,000,000                                                                              
Debt Instrument, Required Equity Financing, Amount                                 $ 50,000,000                                                                              
Debt Instrument, Unencumbered, Unrestricted, Cash Required, Percentage                                 50.00%                                                                              
Line of Credit Facility, Maximum Borrowing Capacity                                                                                   $ 15,000,000                            
Line of Credit Facility, Amount to be Raised Through Equity Triggering Withdrawal of the Credit Facility                                                                                   $ 20,000,000                            
Line of Credit Facility, Commitment Fee Percentage                     3.00%                                                                                          
Nossa Caixa and Banco Pine Agreements [Member]                                                                                                                
Debt Instrument, Interest Rate, Stated Percentage                                             5.50%                                                           5.50%      
Debt Instrument, Face Amount                                                   $ 16,000,000   $ 16,000,000   16,000,000       BRL 52.0                                            
Collateral Provided by Company Certain Equipment and Other Tangible Assets, Amount                                                           $ 20,900,000 BRL 68.0                                                  
Certain Farnesene Production Assets Pledged as Collateral for Loans | BRL                                                                                                         BRL 52.0      
Debt Instrument, Period of Interest Only QuarterlyPayments                                             2 years                                                                  
Banco Pine [Member]                                                                                                                
Debt Instrument, Face Amount | BRL                                                                                                         22.0      
Nossa Caixa [Member]                                                                                                                
Debt Instrument, Face Amount | BRL                                                                                                         BRL 30.0      
Temasek [Member] | If Total R&D Warrant is Exercised in Full [Member] | Temasek Warrant Three [Member]                                                                                                                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares                   880,339                                                                                            
Temasek [Member] | Temasek Warrant 1 [Member]                                                                                                                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares                   14,677,861                                                                                            
Temasek [Member] | Temasek Warrant 2 [Member]                                                                                                                
Class of Warrant or Right, Numerator One                   30.60%                                                                                            
Class of Warrant or Right, Denominator One                   69.40%                                                                                            
Class of Warrant or Right, Numerator Two                   13.30%                                                                                            
Class of Warrant or Right, Denominator Two                   86.70%                                                                                            
Temasek [Member] | Temasek Warrant Three [Member]                                                                                                                
Class of Warrant or Right, Term                   10 years                                                                                            
Class of Warrant or Right, Common Stock Shares Used In Calculation | shares                   880,339                                                                                            
Class of Warrant or Right, Threshold Number of Securities | shares                   2,000,000                                                                                            
Temasek [Member] | The 2013 Warrant [Member]                                                                                                                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares                   1,000,000       127,194                       12,700,244   12,700,244   12,700,244       12,700,244   2,335,342                                        
Class of Warrant or Right, Exercise Price of Warrants or Rights | $ / shares                   $ 0.01                                                                                            
Class of Warrant or Right, Outstanding | shares                                                   2,462,536   2,462,536   2,462,536       2,462,536                                            
Temasek [Member]                                                                                                                
Debt Conversion, Original Debt, Amount                   $ 71,000,000                                                                                            
Debt Conversion, Converted Instrument, Shares Issued | shares                   30,860,633                                                                                            
Total [Member] | Total Funding Warrant [Member]                                                                                                                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares                   18,924,191                                                                                            
Class of Warrant or Right, Term                   5 years                                                                                            
Total [Member] | Total R&D Warrant [Member]                                                                                                                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares                   2,000,000                                                                                            
Total [Member] | Temasek Warrant 2 [Member]                                                                                                                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares                   2,000,000                                                                                            
Total [Member]                                                                                                                
Convertible Notes Payable                   $ 25,000,000                                                                                            
Debt Conversion, Original Debt, Amount                   $ 70,000,000                                                                                            
Debt Conversion, Converted Instrument, Shares Issued | shares                   30,434,782                                                                                            
Extinguishment of Debt, Amount | €         € 50,000                                                                                                      
Total and Temasek [Member]                                                                                                                
Debt Instrument, Convertible, Conversion Price | $ / shares                   $ 2.30                                                                                            
Interest Expense, Debt                                                                 39,200,000                                              
Minimum [Member]                                                                                                                
Class of Warrant or Right, Exercise Price of Warrants or Rights | $ / shares                                                   $ 0.01   $ 0.01   $ 0.01                                                    
Maximum [Member]                                                                                                                
Class of Warrant or Right, Exercise Price of Warrants or Rights | $ / shares                                                   $ 10.67   $ 10.67   $ 10.67                                                    
TJLP Adjustment Factor [Member] | FINEP Credit Facility [Member] | Threshold Met [Member]                                                                                                                
Debt Instrument, Basis Spread on Variable Rate                                                 5.00%                                                              
TJLP Adjustment Factor [Member]                                                                                                                
DebtInstruementInterestRateOfTheCentralBankOfBrazilUsedAsAThreshold                                                 6.00%                                                              
Private Placement February 2016 [Member] | Foris Ventures, LLC [Member]                                                                                                                
Proceeds from Issuance of Private Placement     $ 16,000,000                                                                                                          
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares     2,285,714                                                                                                          
Private Placement February 2016 [Member]                                                                                                                
Line of Credit Facility, Maximum Borrowing Capacity                           $ 1,000,000                                                                                    
Debt Instrument, Interest Rate, Stated Percentage     13.50%                                                                                                          
Debt Instrument, Face Amount                           20,000,000                                                                                    
Proceeds from Issuance of Private Placement     $ 2,000,000 $ 18,000,000                   $ 20,000,000                                                                                    
Unsecured Senior Convertible Promissory Notes [Member] | Total [Member] | Related Party Convertible Notes [Member]                                                                                                                
Debt Instrument, Face Amount                                                                                                 $ 20,000,000              
BNDES Credit Facility [Member] | First Tranche [Member]                                                                                                                
Line of Credit Facility, Maximum Borrowing Capacity | BRL                                               BRL 19.1                                                                
BNDES Credit Facility [Member] | The Second Tranche [Member]                                                                                                                
Line of Credit Facility, Maximum Borrowing Capacity | BRL                                               BRL 3.3                                                                
Line of Credit Facility Bank Guarantee Percentage                                               90.00%                                                                
Line of Credit Facility, Borrowings Above Which is New Tranche | BRL                                               BRL 19.1                                                                
BNDES Credit Facility [Member]                                                                                                                
Long-term Line of Credit                                                   $ 1,500,000   $ 1,500,000   $ 1,500,000     1,900,000 BRL 4.8       7.6                                    
Line of Credit Facility, Maximum Borrowing Capacity                                               BRL 22.4   6,900,000   6,900,000   6,900,000                                                    
Debt Instrument, Interest Rate, Stated Percentage                                               7.00%                                                                
Debt Instrument, Number of Monthly Installments                                               60                                                                
Line of Credit Facility, Unused Capacity, Commitment Fee Percentage                                               0.10%                                                                
Collateral Provided by Company Certain Equipment and Other Tangible Assets, Amount                                               BRL 24.9           7,700,000                                                    
Line of Credit Facility Bank Guarantee Percentage                                               10.00%                                                                
Guarantor Obligations, Liquidation Proceeds, Percentage                                               130.00%                                                                
FINEP Credit Facility [Member] | Threshold Met [Member]                                                                                                                
Debt Instrument, Interest Rate, Stated Percentage                                                 11.00%                                                              
FINEP Credit Facility [Member]                                                                                                                
Long-term Line of Credit                                                   800,000   800,000   800,000     900,000 2.5       BRL 3.4                                    
Line of Credit Facility, Maximum Borrowing Capacity                                                   $ 2,000,000   $ 2,000,000   $ 2,000,000       BRL 6.4                                            
Debt Instrument, Interest Rate, Stated Percentage                                                 5.00%                                                              
Debt Instrument, Number of Monthly Installments                                                 81                                                              
DebtDefualtPenaltyAndFineOnObligationInDefaultPercentage                                                 10.00%                                                              
Debt Instrument Interest On Late Balance Percentage Per Month                                                 1.00%                                                              
Total [Member]                                                                                                                
Extinguishment of Debt, Amount | €                         € 50,000                                                                                      
Letter of Credit [Member]                                                                                                                
Restricted Cash and Cash Equivalents, Noncurrent                                                                 1,000,000                                           $ 1,000,000  
Total [Member] | JVCO Joint Venture [Member]                                                                                                                
Equity Method Investment, Ownership Percentage by Counterparty       75.00%               75.00%                                                                                        
Total [Member]                                                                                                                
Convertible Debt                               $ 5,000,000                                                                                
Debt Conversion, Original Debt, Amount                               $ 70,000,000                                                                                
Debt Conversion, Converted Instrument, Shares Issued | shares                               30,400,000                                                                                
JVCO Joint Venture [Member]                                                                                                                
Equity Method Investment, Ownership Percentage       25.00%               25.00%                           25.00%   25.00%   25.00%       25.00%                                            
Exchange Warrants [Member]                                                                                                                
Class of Warrant or Right, Exercise Price of Warrants or Rights | $ / shares                   $ 0.01                                                                                            
Reduction in Noncurrent Debt [Member]                                                                                                                
Prior Period Reclassification Adjustment                                                                 2,800,000                                              
Reduction in Current Debt [Member]                                                                                                                
Prior Period Reclassification Adjustment                                                                 1,400,000                                              
Reduction in Noncurrent Assets [Member]                                                                                                                
Prior Period Reclassification Adjustment                                                                 2,800,000                                              
Reduction in Prepaid Expenses and Other Current Assets [Member]                                                                                                                
Prior Period Reclassification Adjustment                                                                 1,400,000                                              
Proceeds from Issuance of Long-term Debt                                                           $ 13,275,000   $ 1,607,000                                                
Repayments of Long-term Debt                                                           7,442,000   11,249,000                                                
Proceeds from Issuance of Private Placement                                                             25,000,000                                                
Debt Instrument, Unamortized Discount                                                   $ 36,100,000   $ 36,100,000   36,100,000                                                    
Gain (Loss) on Extinguishment of Debt                       $ 4,200,000                           (217,000) $ (5,984,000)     (866,000)   $ (5,984,000)                                                
Long-term Debt                                                   $ 175,631,000   $ 175,631,000   $ 175,631,000     151,974,000                                              
Class of Warrant or Right, Term                                                           5 years 328 days 5 years 328 days                                                  
Class of Warrant or Right, Outstanding | shares                                                   14,663,411 50,699,368 14,663,411   14,663,411   50,699,368   14,663,411                                            
Letters of Credit Outstanding, Amount                                                                                                             $ 1,000,000  
Restricted Cash and Cash Equivalents, Noncurrent                                                   $ 958,000   $ 958,000   $ 958,000     $ 957,000                                              
XML 68 R52.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 5 - Debt and Mezzanine Equity - Debt Components (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Senior Secured Loan Facility [Member]    
Long-term Debt $ 28,438 $ 31,590
BNDES Credit Facility [Member]    
Long-term Debt 1,471 1,956
FINEP Credit Facility [Member]    
Long-term Debt 777 840
Credit Facility [Member]    
Long-term Debt 30,686 34,386
Long-term debt 760  
Convertible Debt [Member]    
Long-term Debt 68,533 61,233
Long-term debt 53,176  
Related Party Convertible Notes [Member]    
Long-term Debt 40,611 42,749
Long-term debt 37,000  
Related Party Loan Payable [Member]    
Long-term Debt 22,847
Long-term debt  
Loans Payable [Member]    
Long-term Debt 12,954 13,606
Long-term debt 9,679  
Long-term Debt 175,631 151,974
Less: current portion (75,016) (36,281)
Long-term debt 100,615 115,693
Mezzanine equity [1] $ 5,000
[1] See Note 8, "Significant Agreements" for details regarding the Bill & Melinda Gates Foundation Investment, classified as mezzanine equity.
XML 69 R53.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 5 - Debt and Mezzanine Equity - Long-term Debt Instruments (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Related Party Convertible Notes [Member]    
2016 (remaining three months) $ 312  
2017 4,837  
2018 13,937  
2019 26,080  
2020  
Thereafter  
Total future minimum payments 45,166  
Less: amount representing interest(1) [1] (4,555)  
Present value of minimum debt payments 40,611  
Less: current portion present value of minimum debt payments (3,611)  
Noncurrent portion of debt 37,000  
Convertible Debt [Member]    
2016 (remaining three months) 3,240  
2017 23,562  
2018 17,736  
2019 79,937  
2020  
Thereafter  
Total future minimum payments 124,475  
Less: amount representing interest(1) [1] (55,942)  
Present value of minimum debt payments 68,533  
Less: current portion present value of minimum debt payments (15,357)  
Noncurrent portion of debt 53,176  
Loans Payable [Member]    
2016 (remaining three months) 1,770  
2017 2,870  
2018 2,450  
2019 2,342  
2020 2,234  
Thereafter 3,314  
Total future minimum payments 14,980  
Less: amount representing interest(1) [1] (2,026)  
Present value of minimum debt payments 12,954  
Less: current portion present value of minimum debt payments (3,275)  
Noncurrent portion of debt 9,679  
Related Party Loan Payable [Member]    
2016 (remaining three months) 844  
2017 26,257  
2018  
2019  
2020  
Thereafter  
Total future minimum payments 27,101  
Less: amount representing interest(1) [1] (4,254)  
Present value of minimum debt payments 22,847  
Less: current portion present value of minimum debt payments (22,847)  
Noncurrent portion of debt  
Credit Facility [Member]    
2016 (remaining three months) 33,234  
2017 1,551  
2018 322  
2019 78  
2020  
Thereafter  
Total future minimum payments 35,185  
Less: amount representing interest(1) [1] (4,499)  
Present value of minimum debt payments 30,686  
Less: current portion present value of minimum debt payments (29,926)  
Noncurrent portion of debt 760  
2016 (remaining three months) 39,400  
2017 59,077  
2018 34,445  
2019 108,437  
2020 2,234  
Thereafter 3,314  
Total future minimum payments 246,907  
Less: amount representing interest(1) [1] (71,276)  
Present value of minimum debt payments 175,631  
Less: current portion present value of minimum debt payments (75,016)  
Noncurrent portion of debt $ 100,615 $ 115,693
[1] Including debt discount of $33.0 million related to the embedded derivatives associated with the related party and non-related party debt which will be accreted to interest expense under the effective interest method over the term of the debt and debt issuance costs of $3.0 million.
XML 70 R54.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 6 - Commitments and Contingencies (Details Textual)
$ / shares in Units, BRL in Millions
1 Months Ended 3 Months Ended 9 Months Ended 12 Months Ended
Apr. 08, 2015
USD ($)
Dec. 31, 2011
BRL
Sep. 30, 2016
USD ($)
$ / shares
Sep. 30, 2015
USD ($)
Sep. 30, 2016
USD ($)
$ / shares
Sep. 30, 2016
BRL
Sep. 30, 2015
USD ($)
Mar. 31, 2015
USD ($)
Mar. 31, 2016
USD ($)
Dec. 31, 2015
USD ($)
Dec. 31, 2013
USD ($)
Dec. 02, 2013
$ / shares
Dec. 01, 2013
$ / shares
Nov. 30, 2010
FINEP Credit Facility [Member] | Chattel Mortgage [Member]                            
Research and Development Asset Acquired Other than Through Business Combination, Fair Value Acquired         $ 1,800,000 BRL 6.0                
FINEP Credit Facility [Member]                            
Debt Instrument, Interest Rate, Stated Percentage                           5.00%
BNDES Credit Facility [Member] | BNDES [Member]                            
Collateral Provided by Company Certain Equipment and Other Tangible Assets, Amount         7,700,000 24.9                
BNDES Credit Facility [Member]                            
Collateral Provided by Company Certain Equipment and Other Tangible Assets, Amount   BRL 24.9     7,700,000                  
Debt Instrument, Interest Rate, Stated Percentage   7.00%                        
Banco ABC Brasil S.A. (ABC) [Member] | ABC Brasil Agreement [Member]                            
Export Financing Agreement $ 1,600,000             $ 2,200,000            
Export Funding Agreement Term 1 year             1 year            
Nossa Caixa and Banco Pine Agreements [Member]                            
Collateral Provided by Company Certain Equipment and Other Tangible Assets, Amount         $ 20,900,000 BRL 68.0                
Related Party Convertible Notes [Member] | Unsecured Debt [Member]                            
Debt Instrument, Face Amount                     $ 69,000,000      
Debt Instrument, Interest Rate, Stated Percentage                     1.50%      
Related Party Convertible Notes [Member] | Secured Debt [Member]                            
Debt Instrument, Face Amount                     $ 10,850,000      
Purchase Obligation, Due in Second Year                     $ 10,850,000      
Replacement Notes [Member]                            
Debt Instrument, Convertible, Conversion Price | $ / shares     $ 3.08   $ 3.08                  
Long-term Debt     $ 3,700,000   $ 3,700,000       $ 3,700,000 $ 5,000,000        
JV Agreements [Member] | Unsecured Senior Convertible Promissory Notes [Member]                            
Debt Instrument, Convertible, Conversion Price | $ / shares                         $ 7.0682  
Unsecured Senior Convertible Promissory Notes [Member]                            
Debt Instrument, Convertible, Conversion Price | $ / shares                       $ 2.20 $ 7.0682  
Liabilities for Guarantees on Long-Duration Contracts, Guaranteed Benefit Liability, Net     0   0         0        
Operating Leases, Rent Expense     1,300,000 $ 1,400,000 4,000,000   $ 3,900,000              
Long-term Debt     175,631,000   175,631,000         151,974,000        
Purchase Obligation     1,100,000   1,100,000         1,300,000        
Contractual Obligation     $ 600,000   $ 600,000         $ 500,000        
XML 71 R55.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 6 - Commitments and Contingencies - Future Minimum Payments for Lease Obligations (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
2016 (remaining three months) $ 471  
2016 (remaining three months) 1,762  
2016 (remaining three months) 2,233  
2017 525  
2017 6,888  
2017 7,413  
2018 28  
2018 6,890  
2018 6,918  
2019 6,777  
2019 6,777  
2020  
2020 7,008  
2020 7,008  
Thereafter 18,210  
Thereafter 18,210  
Total future minimum lease payments 1,024  
Total future minimum lease payments 47,535  
Total future minimum lease payments 48,559  
Less: amount representing interest (26)  
Present value of minimum lease payments 998  
Less: current portion (942) $ (523)
Long-term portion $ 56 $ 176
XML 72 R56.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 7 - Joint Ventures and Noncontrolling Interests (Details Textual)
1 Months Ended 3 Months Ended 9 Months Ended 12 Months Ended
Feb. 12, 2016
USD ($)
Feb. 12, 2016
EUR (€)
Dec. 31, 2015
USD ($)
Sep. 30, 2015
USD ($)
Jul. 31, 2016
USD ($)
Feb. 29, 2016
USD ($)
Dec. 31, 2015
BRL
Nov. 30, 2014
USD ($)
Oct. 31, 2014
USD ($)
Sep. 30, 2014
USD ($)
Apr. 30, 2014
USD ($)
Feb. 28, 2014
Jan. 31, 2011
Apr. 30, 2010
Sep. 30, 2016
USD ($)
Dec. 31, 2015
USD ($)
Sep. 30, 2015
USD ($)
Mar. 31, 2013
USD ($)
Sep. 30, 2016
USD ($)
Sep. 30, 2015
USD ($)
Dec. 31, 2015
USD ($)
Sep. 30, 2016
EUR (€)
Sep. 30, 2016
BRL
Mar. 31, 2016
USD ($)
May 31, 2015
USD ($)
Cosan [Member] | Novvi LLC [Member]                                                  
Equity Method Investment, Ownership Percentage                                   50.00%              
Obligation to Fund Agreement, Cash Portion                                   $ 10,000,000              
Joint Venture, Additional Membership Units Purchased, Aggregate Purchase Price           $ 600,000                                      
Loan to Joint Venture, Percentage Provided by Each the Company and the Partner     50.00%                         50.00%         50.00%       50.00%
Amyris and Cosan U.S. [Member] | Novvi LLC [Member]                                                  
Number of Senior Loan Agreements                               4                  
American Refining Group [Member] | Novvi LLC [Member]                                                  
Obligation to Fund Agreement, Cash Portion         $ 10,000,000                   $ 4,000,000       $ 4,000,000            
Novvi LLC [Member]                                                  
Equity Method Investment, Ownership Percentage           50.00%                       50.00%              
Equity Method Investment, Number of Members of Board of Directors                             6       6     6 6    
Initial Term of Joint Venture                                   20 years              
IP License, Value                                   $ 10,000,000              
Carrying Value of the Licenses Granted Under the IP License Agreement                                   $ 0              
Equity Method Investments     $ 0                       $ 0 $ 0     $ 0   $ 0        
Joint Venture, Additional Membership Units Purchased, Aggregate Purchase Price           $ 600,000                                      
Investments in and Advance to Affiliates, Subsidiaries, Associates, and Joint Ventures                     $ 2,100,000                            
Income (Loss) from Equity Method Investments       $ (700,000)                             $ 0 $ 2,100,000          
Loan Granted to Joint Venture     $ 1,600,000         $ 1,900,000   $ 3,700,000           1,600,000         1,600,000       $ 1,100,000
Loan Granted to Joint Venture, Stated Annual Interest Rate                   0.36%                              
Loan to Joint Venture, Percentage Provided by Each the Company and the Partner               50.00%   50.00%                              
Loan Granted to Joint Venture, Amount Disbursed by Company               $ 1,000,000   $ 1,800,000                              
Loan Granted to Joint Venture, Number of Installments Paid by the Company                   2                              
Loan Granted to Joint Venture, Amount of First Installment Paid by Company                   $ 1,200,000                              
Loan Granted to Joint Venture, Amount of Second Installment Paid by Company                 $ 600,000                                
Number of Senior Loans Exchanged to Equity Interest         7                                        
Novvi S.A. [Member]                                                  
Joint Venture, Additional Membership Units Purchased, Aggregate Purchase Price                     $ 200,000                            
JVCO Joint Venture [Member] | Total [Member]                                                  
Equity Method Investment, Ownership Percentage Exchanged for Cancellation of Debt 25.00%                                                
Equity Method Investment, Ownership Percentage by Counterparty 75.00%                                             75.00%  
JVCO Joint Venture [Member]                                                  
Equity Method Investment, Ownership Percentage 25.00%                           25.00%       25.00%     25.00% 25.00% 25.00%  
Capitalization, Long-term Debt and Equity                             $ 100,000       $ 100,000     € 100,000      
SMA Industria Quimica S.A. [Member] | SMSA [Member]                                                  
Due from Joint Ventures                             $ 19,000,000       $ 19,000,000       BRL 61,800,000    
SMA Industria Quimica S.A. [Member]                                                  
Equity Method Investment, Ownership Percentage                       50.00%                          
Equity Method Investment, Number of Members of Board of Directors                             4       4     4 4    
Initial Term of Joint Venture                                     20 years            
Equity Method Investment, Number of Members of Executive Committee                             3       3     3 3    
Equity Method Investment, Number of Members of Board of Directors Appointed by Each Venture                             2       2     2 2    
Equity Method Investment, Period Company is Required to Purchase Output of Joint Venture                           4 years                      
Operation Commencement Timeline Requirement, Extension                       1 year 180 days                          
Share Purchase and Sale Agreement Purchase Price of Shares             BRL 50,000                       $ 15,426            
Operating Leases, Rent Expense             BRL 9,853                       3,040            
Unsecured Senior Convertible Promissory Notes [Member] | Total [Member]                                                  
Extinguishment of Debt, Amount $ 1,300,000                                                
Convertible Senior Notes, 9.5% [Member]                                                  
Debt Instrument, Repurchase Amount $ 3,700,000                                             $ 3,700,000  
Total [Member]                                                  
Extinguishment of Debt, Amount | €   € 50,000                                              
Glycotech Agreement [Member]                                                  
Period of Initial Term of Collaboration Agreement                         2 years                        
Variable Interest Entity, Financial or Other Support, Percentage                         100.00%                        
Variable Interest Entity, Number of Entities     2                                            
Variable Interest Entity, Consolidated, Carrying Amount, Property and Equipment     $ 5,200,000                       $ 100,000 5,200,000     100,000   5,200,000        
Variable Interest Entity, Consolidated, Carrying Amount, Current Assets     1,500,000                       400,000 1,500,000     400,000   1,500,000        
Variable Interest Entity, Consolidated, Carrying Amount, Other Assets     300,000                       0 300,000     0   300,000        
Variable Interest Entity, Consolidated, Carrying Amount, Accounts Payable and Accrued Liabilities     $ 1,100,000                       200,000 $ 1,100,000     200,000   1,100,000        
Variable Interest Entity, Consolidated, Carrying Amount, Loan Obligations                                     100,000   $ 100,000        
Income (Loss) from Equity Method Investments                                 $ (660,000)   (2,089,000)          
Operating Leases, Rent Expense                             $ 1,300,000   $ 1,400,000   $ 4,000,000 $ 3,900,000          
Variable Interest Entity, Number of Entities                                     2            
XML 73 R57.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 7 - Joint Ventures and Noncontrolling Interests - Variable Interest Entities (Details) - Variable Interest Entity, Primary Beneficiary [Member] - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Assets $ 493 $ 6,993
Liabilities $ 257 $ 1,221
XML 74 R58.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 7 - Joint Ventures and Noncontrolling Interests - Noncontrolling Interest (Details) - USD ($)
$ in Thousands
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Noncontrolling Interest [Member]        
Balance, noncontrolling interest     $ 391 $ 611
Foreign currency translation adjustment     (393)
Income attributable to noncontrolling interest     78
Acquisition of noncontrolling interest     (277)
Balance, noncontrolling interest $ 114 $ 296 114 296
Balance, noncontrolling interest     (391)  
Foreign currency translation adjustment 1,884 10,459 (7,397) 18,562
Income attributable to noncontrolling interest $ 24 $ 78
Balance, noncontrolling interest $ (114)   $ (114)  
XML 75 R59.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 8 - Significant Agreements (Details Textual)
1 Months Ended 3 Months Ended 6 Months Ended 7 Months Ended 8 Months Ended 9 Months Ended 17 Months Ended
Sep. 30, 2016
USD ($)
Aug. 06, 2016
$ / shares
shares
Jun. 30, 2016
USD ($)
Apr. 08, 2016
USD ($)
$ / shares
shares
Mar. 08, 2016
USD ($)
Jun. 30, 2015
USD ($)
Jun. 30, 2016
USD ($)
Sep. 30, 2015
USD ($)
Mar. 31, 2015
USD ($)
Jan. 31, 2015
USD ($)
Jul. 31, 2014
USD ($)
Jun. 30, 2014
USD ($)
Apr. 30, 2014
USD ($)
Mar. 31, 2014
USD ($)
$ / shares
shares
Mar. 31, 2013
USD ($)
Jul. 30, 2012
USD ($)
Sep. 30, 2016
USD ($)
Jun. 30, 2016
USD ($)
Mar. 31, 2016
USD ($)
Sep. 30, 2015
USD ($)
Mar. 31, 2017
USD ($)
Jan. 31, 2015
USD ($)
Mar. 31, 2017
USD ($)
Mar. 31, 2017
USD ($)
Sep. 30, 2016
USD ($)
shares
Sep. 30, 2015
USD ($)
Dec. 31, 2017
USD ($)
Dec. 31, 2013
USD ($)
Dec. 31, 2012
USD ($)
Nov. 30, 2011
Aug. 02, 2011
USD ($)
Collaboration Partner [Member] | Flavors and Fragrances Compounds [Member] | Master Collaboration Agreement [Member]                                                              
Revenue from Related Parties                                 $ 100,000     $ 1,300,000         $ 4,700,000 $ 1,300,000          
Sales Margin Collaborator Percentage Split                             70.00%                                
Sales Margin Collaborator Percentage Split Following Return Requirements                             50.00%                                
Sales Margin Company Percentage Split                             30.00%                                
Return Required for Collaboration Partner Before Adjusting Split on Sales Margin                             $ 15,000,000                                
Sales Margin Company Percentage Split Following Return Requirements                             50.00%                                
Success Bonus                             $ 2,500,000                                
Collaboration Partner [Member] | Flavors and Fragrances Compounds [Member]                                                              
Collaboration Agreement Annual Funding Year Two                           $ 10,000,000                                  
Collaboration Agreement Annual Funding Year One                             $ 10,000,000                                
Collaboration Agreement Annual Funding Year Three                 $ 10,000,000                                            
Collaboration Partner [Member] | Collaborative Arrangement [Member]                                                              
Revenue from Related Parties                                 1,300,000               5,500,000            
Collaboration Partner [Member]                                                              
Additional Grants and Collaboration Funding                                     $ 5,000,000                        
Kuraray [Member]                                                              
Proceeds from Collaborators           $ 2,000,000             $ 2,000,000 $ 4,000,000                                  
Revenue from Related Parties                                 400,000     300,000         1,100,000 1,200,000          
Collaboration Agreement Period                           2 years                                  
Collaborative Agreement Number Of Installments                           2                                  
Collaboration Arrangement Shares To Be Sold | shares                           943,396                                  
Collaboration Arrangement Price Per Share | $ / shares                           $ 4.24                                  
Givaudan International, SA [Member] | Collaborative Arrangement [Member]                                                              
Revenue from Related Parties                                   $ 0                          
Givaudan International, SA [Member] | Scenario, Forecast [Member]                                                              
Proceeds from Collaborators                                                     $ 12,000,000        
Givaudan International, SA [Member] | Deferred Revenue [Member]                                                              
Proceeds from Collaborators     $ 3,000,000                                                        
Givaudan International, SA [Member]                                                              
Revenue from Related Parties                                 1,600,000                            
Semi Annual Installments, Amount             $ 3,000,000                                                
Ginkgo Bioworks [Member] | Collaborative Arrangement [Member]                                                              
Revenue from Related Parties                                 0                            
Ginkgo Bioworks [Member] | Scenario, Forecast [Member]                                                              
Proceeds from Collaborators                                         $ 5,000,000   $ 5,000,000 $ 15,000,000              
Collaborative Agreement Number Of Installments                                               2              
Ginkgo Bioworks [Member]                                                              
Proceeds from Collaborators             $ 20,000,000                                                
Revenue from Related Parties                                 15,000,000                            
Collaboration Agreement, Performance of the Collaboration, Evaluation Period 1 year 180 days                                                            
Collaboration Agreement Period 3 years                                                            
Royalty Percentage     10.00%       10.00%                     10.00%                          
Class of Warrant or Right, Number of Securities Called by Warrants or Rights | shares   5,000,000,000,000                                                          
Class of Warrant or Right, Exercise Price of Warrants or Rights | $ / shares   $ 0.50                                                          
Class of Warrant or Right, Term   1 year                                                          
Collaboration Agreement, Automatic Renewal Period 1 year                                                            
Collaborative Agreement, Notice Requirement before Terminating Current Term, Minimum 90 days                                                            
Collaborative Agreement, Notice Requirement before Terminating Current Term Due to Lack of Commitment 30 days                                                            
Michelin [Member]                                                              
Proceeds from Collaborators                       $ 5,000,000                                      
Braskem [Member]                                                              
Proceeds from Collaborators                   $ 2,000,000 $ 2,000,000                     $ 4,000,000                  
Revenue from Related Parties                                 0     0         100,000 1,900,000          
Deferred Revenue, Revenue Recognized                                                 6,500,000 6,300,000          
DARPA [Member]                                                              
Revenue from Related Parties                                       0         $ 4,800,000 0          
Research and Development Collaboration with Total [Member] | Total [Member]                                                              
Revenue from Related Parties                               $ 8,900,000                              
Research and Development Collaboration with Total [Member]                                                              
Additional Amount to the Initial Amount Research and Development Collaborative Agreement Contribution Amount                                                             $ 30,000,000
Initial Amount Research and Development Collaborative Agreement Contributed by Collaborator                                                             $ 50,000,000
Research and Development Collaboration Agreement Amount to be Considered as Part of Initial Amount Pledged                                                       $ 10,000,000 $ 10,000,000    
Remaining Percentage of Research and Development Collaboration Funding                                                           50.00%  
Advanced Payments Recognized and no Longer Contigently Repayable                               46,500,000                              
Amount from Advanced Payment Rolled into Unsecured Convertible Promissory Note                               23,300,000                              
Research and Development Arrangement, Contract to Perform for Others, Compensation Earned                               23,200,000                              
Reduction in Capitalized Deferred Charge Asset                               $ 14,400,000                              
Technology Investment Agreement with DARPA [Member]                                                              
Revenue from Related Parties                                 1,300,000                            
Collaboration Agreement Period               4 years                                              
Maximum DARPA Funding to be Received if all Milestones are Achieved               $ 35,000,000                       35,000,000           35,000,000          
Collective Obligation Due               $ 15,500,000                       15,500,000           15,500,000          
At the Market Offering [Member]                                                              
Stock Issued During Period, Shares, New Issues | shares                                                 0            
Common Stock, Value, Subscriptions $ 50,000,000       $ 50,000,000                       50,000,000               $ 50,000,000            
Commission Rate         3.00%                                                    
Gates Foundation Purchase Agreement [Member]                                                              
Stock Issued During Period, Shares, New Issues | shares       4,385,964                                                      
Shares Issued, Price Per Share | $ / shares       $ 1.14                                                      
Debt Instrument, Convertible, Threshold Consecutive Trading Days       20 days                                                      
Proceeds from Issuance of Common Stock       $ 5,000,000                                                      
Redemption Base Price | $ / shares       $ 1.14                                                      
Compound Annual Return       10.00%                                                      
Total [Member]                                                              
Revenue from Related Parties                                 $ 0     $ 2,000         $ 0 2,000          
Class of Warrant or Right, Term                                                 5 years 328 days            
Proceeds from Issuance of Common Stock                                                 $ 123,000 $ 453,000          
XML 76 R60.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 9 - Goodwill and Intangible Assets (Details Textual)
$ in Millions
1 Months Ended
Oct. 31, 2011
USD ($)
Draths Corporation [Member] | In Process Research and Development, Indefinite [Member]  
Indefinite-lived Intangible Assets Acquired $ 8.6
XML 77 R61.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 9 - Goodwill and Intangible Assets - Intangible Assets and Goodwill (Details) - USD ($)
$ in Thousands
9 Months Ended 12 Months Ended
Sep. 30, 2016
Dec. 31, 2015
In Process Research and Development, Indefinite [Member]    
In-process research and development, carrying amount $ 8,560 $ 8,560
In-process research and development (8,560) (8,560)
In-process research and development, net carrying value
Acquired Licenses and Permits [Member]    
In-process research and development, carrying amount $ 772 772
Acquired licenses and permits, useful life 2 years  
Acquired licenses and permits $ (772) (772)
Goodwill, carrying amount 560 560
Goodwill, net carrying value 560 560
9,892 9,892
(9,332) (9,332)
560 560
$ (9,332) $ (9,332)
XML 78 R62.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 10 - Stockholders' Deficit (Details Textual) - $ / shares
9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Minimum [Member]    
Class of Warrant or Right, Exercise Price of Warrants or Rights $ 0.01  
Maximum [Member]    
Class of Warrant or Right, Exercise Price of Warrants or Rights $ 10.67  
Class of Warrant or Right, Outstanding 14,663,411 50,699,368
Class of Warrant or Right, Term 5 years 328 days  
XML 79 R63.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 11 - Stock-based Compensation (Details Textual) - USD ($)
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Employee Stock Option [Member]        
Employee Service Share-based Compensation, Nonvested Awards, Compensation Cost Not yet Recognized $ 5,200,000   $ 5,200,000  
Employee Service Share-based Compensation, Nonvested Awards, Compensation Cost Not yet Recognized, Period for Recognition     2 years 313 days  
Restricted Stock Units (RSUs) [Member]        
Employee Service Share-based Compensation, Nonvested Awards, Compensation Cost Not yet Recognized 6,000,000   $ 6,000,000  
Employee Service Share-based Compensation, Nonvested Awards, Compensation Cost Not yet Recognized, Period for Recognition     2 years 262 days  
Share-based Compensation Arrangement by Share-based Payment Award, Options, Exercises in Period, Intrinsic Value $ 0 $ 0 $ 0 $ 0
XML 80 R64.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 11 - Stock-based Compensation - Share-based Compensation, Stock Options and Stock Appreciation Rights Award Activity (Details) - USD ($)
$ / shares in Units, $ in Thousands
9 Months Ended 12 Months Ended
Sep. 30, 2016
Dec. 31, 2015
Sep. 30, 2016
Outstanding (in shares) 12,930,112    
Outstanding, weighted average exercise price (in dollars per share) $ 4.77    
Outstanding, weighted average remaining contractual life 7 years 98 days 7 years 142 days  
Outstanding, aggregate intrinsic value $ 22    
Options granted (in shares) 3,324,775    
Options granted, weighted average exercise price (in dollars per share) $ 0.58    
Options exercised (in shares) (134)    
Options exercised, weighted average exercise price (in dollars per share) $ 0.28    
Options cancelled (in shares) (2,393,835)    
Options cancelled, weighted average exercise price (in dollars per share) $ 5.59    
Outstanding (in shares) 13,860,918 12,930,112  
Outstanding, weighted average exercise price (in dollars per share) $ 3.62 $ 4.77  
Outstanding, aggregate intrinsic value $ 22 $ 22
Vested and expected to vest after September 30, 2016 (in shares)     12,598,270
Vested and expected to vest after September 30, 2015, weighted average exercise price (in dollars per share)     $ 3.86
Vested and expected to vest after September 30, 2015, weighted average remaining contractual life 7 years 29 days    
Vested and expected to vest after September 30, 2015, aggregate intrinsic value    
Exercisable at September 30, 2016 (in shares)     6,788,182
Options Exercisable Weighted-Average Exercise Price (in dollars per share)     $ 5.84
Exercisable at September 30, 2015, weighted average remaining contractual life 5 years 171 days    
Exercisable at September 30, 2015, aggregate intrinsic value    
XML 81 R65.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 11 - Stock-based Compensation - Temporal Display of Share-based Compensation, Restricted Stock and Restricted Stock Units Activity (Details) - Restricted Stock Units (RSUs) [Member] - $ / shares
9 Months Ended 12 Months Ended
Sep. 30, 2016
Dec. 31, 2015
Outstanding, RSUs (in shares) 5,554,844  
Outstanding, weighted average grant-date fair value (in dollars per share) $ 2.03  
Outstanding, weighted average remaining contractual life 1 year 189 days 1 year 222 days
Awarded (in shares) 4,374,389  
Awarded, weighted average grant-date fair value (in dollars per share) $ 0.60  
Vested (in shares) (1,467,569)  
Vested, weighted average grant-date fair value (in dollars per share) $ 2.19  
Forfeited (in shares) (987,109)  
Forfeited, weighted average grant-date fair value (in dollars per share) $ 1.49  
Outstanding, RSUs (in shares) 7,474,555 5,554,844
Outstanding, weighted average grant-date fair value (in dollars per share) $ 1.23 $ 2.03
Expected to vest after September 30, 2016 (in shares) 5,898,952  
Expected to vest after September 30, 2015, weighted average grant-date fair value (in dollars per share) $ 2.72  
Expected to vest after September 30, 2015, weighted average remaining contractual life 1 year 142 days  
XML 82 R66.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 11 - Share-based Compensation, Shares Authorized under Stock Option Plans, by Exercise Price Range (Details)
9 Months Ended
Sep. 30, 2016
$ / shares
shares
Exercise Price Range 1 [Member]  
Exercise Price, Lower (in dollars per share) $ 0.28
Exercise Price, Upper (in dollars per share) $ 0.57
Options Outstanding Number (in shares) | shares 372,754
Options Outstanding Weighted- Average Remaining Contractual Life 9 years 259 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 0.43
Options Exercisable Number Options (in shares) | shares 3,254
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 0.28
Exercise Price Range 2 [Member]  
Exercise Price, Lower (in dollars per share) 0.59
Exercise Price, Upper (in dollars per share) $ 0.59
Options Outstanding Number (in shares) | shares 2,574,375
Options Outstanding Weighted- Average Remaining Contractual Life 9 years 226 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 0.59
Options Exercisable Number Options (in shares) | shares
Options Exercisable Weighted-Average Exercise Price (in dollars per share)
Exercise Price Range 3 [Member]  
Exercise Price, Lower (in dollars per share) 0.81
Exercise Price, Upper (in dollars per share) $ 1.73
Options Outstanding Number (in shares) | shares 2,063,938
Options Outstanding Weighted- Average Remaining Contractual Life 8 years 343 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 1.64
Options Exercisable Number Options (in shares) | shares 166,987
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 1.61
Exercise Price Range 4 [Member]  
Exercise Price, Lower (in dollars per share) 1.75
Exercise Price, Upper (in dollars per share) $ 1.96
Options Outstanding Number (in shares) | shares 1,546,638
Options Outstanding Weighted- Average Remaining Contractual Life 8 years 175 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 1.91
Options Exercisable Number Options (in shares) | shares 536,904
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 1.90
Exercise Price Range 5 [Member]  
Exercise Price, Lower (in dollars per share) 1.98
Exercise Price, Upper (in dollars per share) $ 2.81
Options Outstanding Number (in shares) | shares 1,393,357
Options Outstanding Weighted- Average Remaining Contractual Life 6 years 156 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 2.61
Options Exercisable Number Options (in shares) | shares 1,079,929
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 2.66
Exercise Price Range 6 [Member]  
Exercise Price, Lower (in dollars per share) 2.85
Exercise Price, Upper (in dollars per share) $ 3.44
Options Outstanding Number (in shares) | shares 1,369,225
Options Outstanding Weighted- Average Remaining Contractual Life 6 years 178 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 3.02
Options Exercisable Number Options (in shares) | shares 1,137,340
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 3.01
Exercise Price Range 7 [Member]  
Exercise Price, Lower (in dollars per share) 3.51
Exercise Price, Upper (in dollars per share) $ 3.51
Options Outstanding Number (in shares) | shares 1,577,760
Options Outstanding Weighted- Average Remaining Contractual Life 7 years 120 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 3.51
Options Exercisable Number Options (in shares) | shares 970,489
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 3.51
Exercise Price Range 8 [Member]  
Exercise Price, Lower (in dollars per share) 3.55
Exercise Price, Upper (in dollars per share) $ 4.31
Options Outstanding Number (in shares) | shares 1,761,134
Options Outstanding Weighted- Average Remaining Contractual Life 3 years 313 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 3.97
Options Exercisable Number Options (in shares) | shares 1,691,542
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 3.98
Exercise Price Range 9 [Member]  
Exercise Price, Lower (in dollars per share) 4.35
Exercise Price, Upper (in dollars per share) $ 26.84
Options Outstanding Number (in shares) | shares 1,141,737
Options Outstanding Weighted- Average Remaining Contractual Life 3 years 343 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 17.59
Options Exercisable Number Options (in shares) | shares 1,141,737
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 17.59
Exercise Price Range 10 [Member]  
Exercise Price, Lower (in dollars per share) 30.17
Exercise Price, Upper (in dollars per share) $ 30.17
Options Outstanding Number (in shares) | shares 60,000
Options Outstanding Weighted- Average Remaining Contractual Life 4 years 164 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 30.17
Options Exercisable Number Options (in shares) | shares 60,000
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 30.17
Exercise Price, Lower (in dollars per share) 0.28
Exercise Price, Upper (in dollars per share) $ 30.17
Options Outstanding Number (in shares) | shares 13,860,918
Options Outstanding Weighted- Average Remaining Contractual Life 7 years 98 days
Options Outstanding Weighted-Average Exercise Price (in dollars per share) $ 3.62
Options Exercisable Number Options (in shares) | shares 6,788,182
Options Exercisable Weighted-Average Exercise Price (in dollars per share) $ 5.84
XML 83 R67.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 11 - Stock-based Compensation - Employee Service Share-based Compensation, Allocation of Recognized Period Costs (Details) - USD ($)
$ in Thousands
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Research and Development Expense [Member]        
Allocated share-based compensation expense $ 481 $ 530 $ 1,457 $ 1,776
Selling, General and Administrative Expenses [Member]        
Allocated share-based compensation expense 1,327 1,726 4,191 5,188
Allocated share-based compensation expense $ 1,808 $ 2,256 $ 5,648 $ 6,964
XML 84 R68.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 11 - Stock-based Compensation - Share-based Payment Award, Stock Options, Valuation Assumptions (Details) - Employee Stock Option [Member]
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Risk-free interest rate 1.20% 2.00% 1.32% 2.00%
Expected term (in years) 6 years 58 days 6 years 10 days 6 years 83 days 6 years
Expected volatility 76.70% 74.00% 73.00% 74.00%
XML 85 R69.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 12 - Employee Benefit Plan (Details Textual) - USD ($)
$ in Millions
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Defined Contribution Plan, Maximum Annual Contributions Per Employee, Percent     90.00%  
Defined Contribution Plan, Employer Matching Contribution, Percent of Employees' Gross Pay     90.00%  
Defined Contribution Plan, Minimum Service, Vesting Period     1 year  
Defined Contribution Plan, Employer Discretionary Contribution Amount $ 0.1 $ 0.1 $ 0.3 $ 0.4
XML 86 R70.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 13 - Related Party Transactions (Details Textual) - USD ($)
1 Months Ended 3 Months Ended 9 Months Ended
Jul. 26, 2015
Jul. 31, 2015
May 31, 2014
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Dec. 31, 2015
Related Party Convertible Notes [Member]                
Convertible Debt       $ 64,800,000   $ 64,800,000   $ 43,000,000
Debt Instrument, Unamortized Discount       2,600,000   2,600,000   1,900,000
Derivative Liability       1,900,000   1,900,000   7,900,000
Derivative, Gain (Loss) on Derivative, Net       600,000 $ 12,400,000 7,700,000 $ 700,000  
Novvi LLC [Member]                
Revenue from Related Parties       1,400,000 0 1,400,000 0  
Accounts Receivable, Related Parties       0   0   500,000
Total [Member] | Pilot Plant Agreements [Member] | Scale-up Services and Training [Member]                
Related Party Transaction, Amounts of Transaction     $ 900,000          
Total [Member] | Pilot Plant Agreements [Member] | Sublease Agreement [Member]                
Proceeds from Fees Received           1,700,000    
Total [Member] | Pilot Plant Agreements [Member] | Sublease Payments and Service Fees [Member]                
Related Party Transaction, Amounts of Transaction       100,000 300,000 300,000 800,000  
Total [Member] | Pilot Plant Agreements [Member]                
Related Party Agreement Term     5 years          
Related Party Transaction, Amounts of Transaction   $ 100,000            
Related Party Transaction, Fees Waived $ 2,000,000              
Total [Member]                
Convertible Debt   $ 5,000,000            
Revenue from Related Parties       0 $ 2,000 0 $ 2,000  
Accounts Receivable, Related Parties       700,000   700,000   1,200,000
Debt Instrument, Unamortized Discount       36,100,000   36,100,000    
Accounts Receivable, Related Parties       $ 651,000   $ 651,000   $ 1,176,000
XML 87 R71.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 14 - Income Taxes (Details Textual) - USD ($)
$ in Thousands
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Income Tax Expense (Benefit) $ 148 $ 119 $ 402 $ 355
XML 88 R72.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 15 - Reporting Segments (Details Textual)
Sep. 30, 2016
Segment Reporting, Number Of Business Activities 1
XML 89 R73.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 15 - Reporting Segments - Revenues by Geography (Details) - USD ($)
$ in Thousands
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Europe [Member]        
Revenues $ 1,899 $ 459 $ 10,527 $ 2,138
UNITED STATES        
Revenues 20,461 6,177 27,869 15,550
Asia [Member]        
Revenues 4,126 991 6,039 2,769
BRAZIL        
Revenues 46 964 467 3,850
Other Area [Member]        
Revenues 12 52
Revenues $ 26,544 $ 8,591 $ 44,954 $ 24,306
XML 90 R74.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 15 - Reporting Segments - Long-Lived Assets by Geography (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
BRAZIL    
Long-Lived Assets $ 47,348 $ 41,093
UNITED STATES    
Long-Lived Assets 15,489 18,401
Europe [Member]    
Long-Lived Assets 256 303
Long-Lived Assets $ 63,093 $ 59,797
XML 91 R75.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 16 - Comprehensive Loss - Accumulated Other Comprehensive Income (Details) - USD ($)
$ in Thousands
Sep. 30, 2016
Dec. 31, 2015
Foreign currency translation adjustment, net of tax $ (39,801) $ (47,198)
Total accumulated other comprehensive loss $ (39,801) $ (47,198)
XML 92 R76.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 17 - Net Loss Attributable to Common Stockholders and Net Loss per Share - Calculation of Basic and Diluted Net Loss Per Share of Common Stock (Details) - USD ($)
$ / shares in Units, $ in Thousands
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Net loss attributable to Amyris, Inc. common stockholders $ (19,704) $ (76,664) $ (48,579) $ (176,034)
Interest on convertible debt 5,093
Accretion of debt discount 5,304
Gain from change in fair value of derivative instruments (37,593)
Net loss attributable to Amyris, Inc. common stockholders after assumed conversion $ (19,704) $ (76,664) $ (75,775) $ (176,034)
Basic (in shares) 249,190,339 140,374,297 226,772,159 100,103,007
Basic (in dollars per share) $ (0.08) $ (0.55) $ (0.21) $ (1.76)
Convertible promissory notes (in shares) 41,602,952
Weighted common stock equivalents (in shares) 41,602,952
Diluted (in shares) 249,190,339 140,374,297 268,375,111 100,103,007
Diluted (in dollars per share) $ (0.08) $ (0.55) $ (0.28) $ (1.76)
XML 93 R77.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 17 - Net Loss Attributable to Common Stockholders and Net Loss per Share - Antidilutive Securities Excluded from Computation of Earnings Per Share (Details) - shares
3 Months Ended 9 Months Ended
Sep. 30, 2016
Sep. 30, 2015
Sep. 30, 2016
Sep. 30, 2015
Stock Options to Purchase Common Stock [Member]        
Antidilutive Securities Excluded from Computation of Earnings Per Share, Amount (in shares) 13,860,918 11,307,679 13,860,918 11,307,679
Convertible Promissory Notes [Member]        
Antidilutive Securities Excluded from Computation of Earnings Per Share, Amount (in shares) [1] 66,474,148 43,451,433 23,760,389 43,451,433
Common Stock Subject to Repurchase [Member]        
Antidilutive Securities Excluded from Computation of Earnings Per Share, Amount (in shares) 14,663,411 2,901,926 14,663,411 2,901,926
Restricted Stock Units (RSUs) [Member]        
Antidilutive Securities Excluded from Computation of Earnings Per Share, Amount (in shares) 7,474,555 3,558,243 7,474,555 3,558,243
Antidilutive Securities Excluded from Computation of Earnings Per Share, Amount (in shares) 102,473,032 61,219,281 59,759,273 61,219,281
[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.
XML 94 R78.htm IDEA: XBRL DOCUMENT v3.5.0.2
Note 18 - Subsequent Events (Details Textual) - USD ($)
$ / shares in Units, $ in Thousands
9 Months Ended
Oct. 27, 2016
Oct. 26, 2016
Oct. 21, 2016
Oct. 13, 2016
Oct. 06, 2016
Sep. 30, 2016
Sep. 30, 2015
Aug. 06, 2016
Subsequent Event [Member] | Ginkgo Bioworks [Member] | Forth Amendment of Senior Secured Loan Facility [Member] | Collaborative Arrangement [Member]                
Debt Instrument, Monthly Repayment of Outstanding Debt Allowed, Maximum         $ 1,000      
Subsequent Event [Member] | Foris Ventures, LLC [Member] | October 2016 Private Placement [Member] | Convertible Subordinated Debt [Member]                
Debt Instrument, Face Amount     $ 6,000          
Proceeds from Issuance of Long-term Debt     $ 6,000          
Debt Instrument, Interest Rate, Stated Percentage     13.50%          
Subsequent Event [Member] | Ginkgo Bioworks, Inc. [Member] | October 2016 Private Placement [Member] | Convertible Subordinated Debt [Member]                
Debt Instrument, Face Amount $ 8,500              
Proceeds from Issuance of Long-term Debt $ 8,500              
Subsequent Event [Member] | Guanfu Holding Co., Ltd [Member] | Guanfu Credit Agreement [Member] | Unsecured Debt [Member]                
Debt Instrument, Face Amount   $ 25,000            
Debt Instrument, Interest Rate, Stated Percentage   10.00%            
Debt Instrument, Term   5 years            
Debt Instrument, Redemption Price, Percentage   100.00%            
Common Stock, Volume Weighted Average Closing Sale Price, Percentage   90.00%            
Common Stock, Volume Weighted Average Closing Sale Price, Number of Trading Days   90 days            
Trading Days, Number of Days Proceeding Default   2 days            
Subsequent Event [Member] | Nenter & Co., Inc. [Member] | Cooperation Agreement [Member]                
Contractual Agreement, Term, Number of Years from the Effective Date   2 years            
Class of Warrant or Right, Number of Securities Called by Warrants or Rights   10,000,000            
Class of Warrant or Right, Exercise Price of Warrants or Rights   $ 0.50            
Subsequent Event [Member] | Nenter & Co., Inc. [Member] | Cooperation Agreement Commercialization Plan [Member]                
Contractual Agreement, Term, Number of Years from the Effective Date   5 years            
Subsequent Event [Member] | October 2016 Convertible Note [Member]                
Convertible Debt       $ 2,000        
Proceeds from Convertible Debt       $ 2,000        
Ginkgo Bioworks [Member]                
Class of Warrant or Right, Number of Securities Called by Warrants or Rights               5,000,000,000,000
Class of Warrant or Right, Exercise Price of Warrants or Rights               $ 0.50
Proceeds from Issuance of Long-term Debt           $ 13,275 $ 1,607  
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