UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
Form 8-K
_____________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event Reported): August 17, 2018
Amyris, Inc.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-34885 | 55-0856151 |
| (State or Other Jurisdiction of Incorporation) | (Commission File Number) | (I.R.S. Employer Identification Number) |
| 5885 Hollis Street, Suite 100, Emeryville, CA 94608 |
| (Address of Principal Executive Offices) (Zip Code) |
(510) 450-0761
(Registrant's telephone number, including area code)
(Former name or former address, if changed since last report)
| Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: | ||
| [ ] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| [ ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| [ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| [ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company [ ]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
Item 3.02. Unregistered Sales of Equity Securities.
As previously reported, on August 17, 2018, Amyris, Inc. (the “Company”) entered into warrant exercise agreements (the “Warrant Exercise Agreements”) with each of Foris Ventures, LLC (“Foris”), an entity affiliated with director John Doerr and which beneficially owns greater than five percent of the Company’s outstanding common stock, par value $0.0001 per share (the “Common Stock”), and Vivo Capital Fund VIII, L.P. and Vivo Capital Surplus Fund VIII, L.P. (collectively, “Vivo”), entities affiliated with director Frank Kung and which collectively beneficially own greater than five percent of the Common Stock. The entry into the Warrant Exercise Agreements was previously reported in a Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission (the “SEC”) on August 20, 2018 (the “Prior 8-K”), which disclosure is incorporated herein by reference. On August 20, 2018, the Company issued to Vivo additional Vivo New Warrants (as defined in the Prior 8-K) to purchase an aggregate of 2,111,957 shares of Common Stock in connection with the exercise by Vivo for cash of the Remaining August 2017 Vivo Cash Warrants (as defined in the Prior 8-K).
Item 7.01. Regulation FD Disclosure.
On August 21, 2018, the Company issued a press release regarding the matters discussed herein, a copy of which is attached hereto as Exhibit 99.1. The information in this Item 7.01 and Exhibit 99.1 attached hereto is furnished pursuant to the rules and regulations of the SEC and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Item 8.01. Other Events.
On August 17, 2018, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with B. Riley FBR, Inc. (the “Underwriter”), Foris and Vivo (collectively, the “Selling Stockholders”) relating to the sale of 7,654,148 shares (the “Firm Shares”) of Common Stock by the Selling Stockholders, including shares issuable to the Selling Stockholders upon the exercise of certain common stock purchase warrants pursuant to the Warrant Exercise Agreements and the conversion of certain shares of Series D Convertible Preferred Stock of the Company (the “Secondary Offering”). The price to the public in the Secondary Offering is $6.25 per share, and the Underwriter agreed to purchase the Firm Shares from the Selling Stockholders pursuant to the Underwriting Agreement at a price of $6.22 per share. In addition, under the terms of the Underwriting Agreement, Vivo granted the Underwriter an option, exercisable for 30 days after August 17, 2018, to purchase up to an additional 1,148,122 shares of Common Stock (the “Optional Shares” and, together with the Firm Shares, the “Shares”) at a price of $6.22 per share. On August 20, 2018, the Underwriter notified Vivo that the Underwriter was exercising its option to purchase all of the Optional Shares. Pursuant to the Underwriting Agreement, the Company and the Selling Stockholders agreed with the Underwriter, subject to certain exceptions, not to dispose of or hedge any of their Common Stock or securities convertible into or exchangeable for shares of Common Stock during the period from the date of the applicable prospectus supplement continuing through the date 60 days (in the case of the Company) and 180 days (in the case of the Selling Stockholders) after the date of the applicable prospectus supplement, except with the prior written consent of the Underwriter. The closing of the Secondary Offering occurred on August 21, 2018. The Company did not receive any proceeds from the Secondary Offering, but agreed to pay certain offering expenses, as well as a structuring and advisory fee to the Underwriter equal to 4.5% of the gross proceeds of the Secondary Offering. At the closing of the Secondary Offering and the concurrent settlement of the warrant exercises pursuant to the Warrant Exercise Agreements (including the exercise by Vivo of the Remaining August 2017 Vivo Cash Warrants), the Company received proceeds of approximately $43 million. After giving effect to the Secondary Offering and the transactions contemplated by the Warrant Exercise Agreements, including the issuance of the New Warrants (as defined in the Prior 8-K), each of the Selling Stockholders maintained or increased their ownership in the Company. The Secondary Offering was made pursuant to the effective registration statements on Form S-3 (File Nos. 333-219732 and 333-221351) initially filed by the Company with the SEC on August 4, 2017 and November 3, 2017, respectively, including the prospectuses contained therein, and prospectus supplements to such prospectuses, each dated August 17, 2018. The opinion of Fenwick & West LLP regarding the validity of the Shares is attached as Exhibit 5.01 hereto. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation or sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit Number
Description 5.01 Opinion of Fenwick & West LLP 23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01) 99.1 Press Release issued August 21, 2018
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Amyris, Inc. | ||
| Date: August 21, 2018 | By: | /s/ Kathleen Valiasek |
| Kathleen Valiasek | ||
| Chief Financial Officer | ||
EXHIBIT 5.01
August 21, 2018
Amyris, Inc.
5885 Hollis Street, Ste. 100
Emeryville, California 94608
Ladies and Gentlemen:
At your request, we have examined (i) the two Registration Statements on Form S-3 (File No. 333-219732 and File No. 333-221351) filed by Amyris, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) on August 4, 2017 and November 3, 2017, respectively, and declared effective on October 17, 2017 and December 1, 2017, respectively, under the Securities Act of 1933, as amended (the “Securities Act”) (such registration statements as so amended at the time of effectiveness, including the information deemed to be part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, and the documents incorporated by reference therein hereinafter, collectively, the “Registration Statements”), (ii) the two preliminary prospectus supplements dated August 16, 2018 and filed by the Company with the Commission pursuant to Rule 424(b) of the Securities Act (the “Preliminary Prospectus Supplements”) relating to the sale of up to 8,802,270 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), by the selling stockholders identified therein (collectively, the “Selling Stockholders”), and (iii) the final prospectus supplements dated August 17, 2018 filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act (the “Final Prospectus Supplements” and, together with the Preliminary Prospectus Supplements, the “Prospectus Supplements”). The Shares are being sold by the Selling Stockholders pursuant to that certain Underwriting Agreement (the “Underwriting Agreement”), dated August 17, 2018, by and between the Selling Stockholders, B. Riley FBR, Inc. (the “Underwriter”), and the Company, as described in the Registration Statements, the prospectuses contained within the Registration Statements (collectively, the “Prospectuses”) and the Final Prospectus Supplements.
As to matters of fact relevant to this opinion, we have relied upon our examination of the documents we deemed necessary, including, but not necessarily limited to, the following documents: (i) the Registration Statements and the Exhibits filed as a part thereof or incorporated therein by reference; (ii) the Prospectuses; (iii) the Final Prospectus Supplements, (iv) the Company’s Restated Certificate of Incorporation, filed with the Delaware Secretary of State on September 30, 2010, and certified by the Delaware Secretary of State on September 30, 2010, as amended by that certain Certificate of Amendment of the Restated Certificate of Incorporation filed with the Delaware Secretary of State on May 9, 2013 and certified by the Delaware Secretary of State on May 9, 2013, that certain Certificate of Amendment of the above-described Restated Certificate of Incorporation, dated May 12, 2014 and certified by the Delaware Secretary of State on May 12, 2014, that certain Certificate of Amendment of the above-described Restated Certificate of Incorporation, dated September 18, 2015 and certified by the Delaware Secretary of State on September 18, 2015, that certain Certificate of Amendment of the above-described Restated Certificate of Incorporation, dated May 18, 2016 and certified by the Delaware Secretary of State on May 18, 2016, and that certain Certificate of Amendment of the Restated Certificate of Incorporation, dated June 5, 2017 and certified by the Delaware Secretary of State on June 5, 2017, including the Company’s Certificate of Designation of Preferences, Rights and Limitations of Series A 17.38% Convertible Preferred Stock, the Series B Certificate of Designation, the Company’s Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock, all three filed with the Delaware Secretary of State on May 8, 2017, and the Company’s Certificate of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock, filed with the Delaware Secretary of State on August 3, 2017 (such Restated Certificate of Incorporation of the Company, as so amended, the “Restated Certificate”); (iv) the Company’s Restated Bylaws, certified by the Company’s Secretary on August 21, 2016 (the “Bylaws”); (v) corporate proceedings and actions of the Company’s Board of Directors and stockholders with respect to the approval or authorization of the Restated Certificate and the Bylaws, the Underwriting Agreement, and the Registration Statements; (vi) records of the outstanding capital stock and other outstanding securities of the Company that the Company has provided to us (including a certificate from the Company’s transfer agent of even date herewith verifying the number of the Company’s issued and outstanding shares of Common Stock as of August 20, 2018); (vii) a Certificate of Good Standing issued by the Delaware Secretary of State dated August 21, 2018, stating that the Company is duly incorporated under the laws of the State of Delaware and is in good standing under the laws of the State of Delaware (the “Good Standing Certificate”); and (viii) factual representations and warranties made to us by the Company, including those contained in an Opinion Certificate of the Company dated of even date herewith. We have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters.
In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us, the absence of any other extrinsic agreements or documents that might change or affect the interpretation or terms of any document we have reviewed and the due authorization, execution and delivery of all documents. We have also assumed that any certificates or instruments representing the Shares have been, or will be when issued, properly signed by authorized officers of the Company or their agents.
We render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than the existing laws of the State of California and the existing Delaware General Corporation Law (collectively, the “Applicable Laws”).
| 2 |
With respect to our opinion expressed in paragraph (1) below as to the valid existence and good standing of the Company under the laws of the State of Delaware, we have relied solely upon the Good Standing Certificate and representations made to us by the Company.
Opinions. Based upon and subject to the foregoing, we are of the following opinion:
(1) The Company is a corporation validly existing, in good standing, under the laws of the State of Delaware.
(2) The Shares that may be sold by the Selling Stockholders pursuant to the Registration Statements and as contemplated by the Underwriting Agreement are validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statements and further consent to all references to us, if any, in the Registration Statements, the Prospectuses constituting a part thereof and any amendments or supplements thereto, including the Final Prospectus Supplements.
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This opinion is intended solely for use in connection with the issuance and sale of shares subject to the Registration Statements and is not to be relied upon for any other purpose. In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters. This opinion is rendered on, and speaks only as of, the date of this letter first written above, is based solely on our understanding of facts in existence as of such date and does not address any potential changes in facts, circumstance or law that may occur after the date of this opinion letter. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Faisal Rashid
Faisal Rashid, a Partner
4
EXHIBIT 99.1
Amyris Announces Successful Closing of Secondary Offering
EMERYVILLE, Calif., Aug. 21, 2018 (GLOBE NEWSWIRE) -- Amyris, Inc. (Nasdaq:AMRS) (“Amyris” or the “Company”), a leader in the development and production of sustainable ingredients for the Health & Wellness, Clean Beauty and Flavors & Fragrances markets, today announced the closing of the previously announced underwritten secondary offering of approximately 7.65 million shares by certain of its existing stockholders (the “selling stockholders”) at the public offering price of $6.25 per share. In addition, the overallotment option granted to the underwriter for the sale of up to approximately 1.15 million additional shares of common stock at the public offering price, less underwriting discounts, was also fully exercised for a total of approximately 8.8 million shares. This offering generated approximately $46 million in gross cash proceeds to the Company from the exercise of warrants associated with the transaction.
“We are very pleased with the results of our well over-subscribed transaction,” said Amyris President and CEO John Melo. “We further improved our balance sheet by significantly reducing the number of long-term warrants and adding significant new cash. We expect to end the year with a very healthy cash balance as we transition to positive cash generation through the end of this year and going forward to next year. We are also very pleased with the level and quality of investor support and very excited to have new, high quality investors added as owners of Amyris.”
Continued Melo, “We are delivering on our growth plan. Biossance is having another record quarter and we are on track for an incredible second half across all of our ingredient supply activity. Consumers want natural, high performing products that are sustainable and don’t cost more - we are very excited to be leading the world by having the technology to make sustainability mainstream. We are making more products at commercial scale, delivering more revenue growth and believe we have the best gross margin of any company in our sector. We are pleased with our performance and are only starting to really deliver on the potential of our technology.”
Terms of the warrant agreements and details related to the closing of the secondary offering are more fully disclosed in the Forms 8-K filed on August 20, 2018 and today with the Securities and Exchange Commission, available free of charge at sec.gov.
B. Riley FBR, Inc. served as the sole underwriter for the offering. The offering was made pursuant to two effective registration statements on Form S-3 previously filed by the Company with the Securities and Exchange Commission (“SEC”). The offering was made only by means of the prospectuses and related prospectus supplements, copies of which may be obtained on the website of the SEC, www.sec.gov., or from B. Riley FBR, Inc., Attn: Syndicate Prospectus Department, 1300 North 17th Street, Suite 1400, Arlington, VA 22209; Phone: (703) 312-9580; Email: prospectuses@brileyfbr.com.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation or sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.
About B. Riley FBR, Inc.
B. Riley FBR, Inc. is a leading investment bank which provides corporate finance, research and sales and trading to corporate, institutional and high net worth individual clients. Investment banking services include initial, secondary and follow-on offerings, institutional private placements and merger and acquisitions advisory services, and corporate restructuring. The firm is nationally recognized for its highly ranked proprietary equity research. B. Riley FBR is a wholly-owned subsidiary of B. Riley Financial, Inc. (NASDAQ: RILY), a diversified provider of financial and business advisory services. To learn more about B. Riley FBR, visit www.brileyfbr.com.
About Amyris
Amyris is the integrated renewable products company that is enabling the world’s leading brands to achieve sustainable growth. Amyris applies its innovative bioscience solutions to convert plant sugars into hydrocarbon molecules and produce specialty ingredients and consumer products. The company is delivering its No Compromise™ products and services across a number of markets, including specialty and performance chemicals, flavors and fragrances, cosmetics ingredients, pharmaceuticals, and nutraceuticals. More information about the company is available at www.amyris.com.
Forward-Looking Statements
This release contains forward-looking statements, and any statements other than statements of historical fact could be deemed to be forward-looking statements. These forward-looking statements include, among other things, statements regarding future events (such as expected gross proceeds to the Company from the transaction, the Company’s anticipated cash balance and cash flow in 2018 and beyond, and the Company’s expected business and financial performance in the second half of 2018), that involve risks and uncertainties. These statements are based on management's current expectations and actual results and future events may differ materially due to risks and uncertainties, including risks related to Amyris's liquidity and ability to fund operating and capital expenses, potential delays or failures in development, production and commercialization of products, risks related to Amyris's reliance on third parties, and other risks detailed from time to time in filings Amyris makes with the Securities and Exchange Commission, including Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. Amyris disclaims any obligation to update information contained in these forward-looking statements, whether as a result of new information, future events, or otherwise.
Amyris, the Amyris logo, No Compromise, and Biossance are trademarks or registered trademarks of Amyris, Inc. in the U.S. and/or other countries. All other trademarks are the property of their respective owners.
Contact:
Peter DeNardo
Director, Investor Relations and Corporate Communications
Amyris, Inc.
+1 (510) 740-7481
investor@amyris.com