x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware | 55-0856151 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
5885 Hollis Street, Suite 100, Emeryville, California | 94608 | |
(Address of principal executive office) | (Zip Code) |
Title of each class | Name of each exchange on which registered | |
Common Stock, $0.0001 par value per share | The NASDAQ Stock Market LLC (NASDAQ Global Select Market) |
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨(Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
(b) | Exhibits. |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | File No. | ||||||||
3.01 | Restated Certificate of Incorporation | 10-Q | 001-34885 | November 10, 2010 | 3.01 | |||||||
3.02 | Restated Bylaws | 10-Q | 001-34885 | November 10, 2010 | 3.02 | |||||||
4.01 | Form of 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 registrant’s security holders listed therein | S-1 | 333-166135 | June 23, 2010 | 4.02 | |||||||
4.03 | Stock Purchase Warrant dated September 23, 2008 issued to ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 4.08 | |||||||
4.04 | Amendment No. 1, dated April 8, 2010, to Stock Purchase Warrant between ES East Associates, LLC and registrant | S-1 | 333-166135 | April 16, 2010 | 4.09 | |||||||
4.05 | Stock Purchase Warrant dated March 6, 2008 issued to Starfish, LLC | S-1 | 333-166135 | April 16, 2010 | 4.10 | |||||||
4.06 | Amendment No. 1, dated April 8, 2010, to Stock Purchase Warrant between Starfish, LLC and registrant | S-1 | 333-166135 | April 16, 2010 | 4.11 | |||||||
4.07 | Warrant to Purchase Stock dated December 23, 2011 issued to ATEL Ventures, Inc. | 10-K | 001-34885 | February 28, 2012 | 4.07 | |||||||
4.08 | Side Letter, dated June 21, 2010, between registrant and Total Gas & Power USA, SAS | S-1 | 333-166135 | April 16, 2010 | 4.19 |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
10.01 | Form of Indemnity Agreement between registrant and its directors and officers | S-1 | 333-166135 | June 23, 2010 | 10.01 | |||||||
10.02a | Uncommitted Facility Letter dated November 25, 2008 between BNP Paribas and Amyris Fuels, Inc. | S-1 | 333-166135 | August 31, 2010 | 10.02 | |||||||
10.03a | Amendment to Uncommitted Facility Letter dated October 7, 2009 among registrant, BNP Paribas and Amyris Fuels, LLC | S-1 | 333-166135 | August 31, 2010 | 10.03 | |||||||
10.04 | Amendment No. 2 to Uncommitted Facility Letter dated March 8, 2010 between registrant, BNP Paribas and Amyris Fuels, LLC | S-1 | 333-166135 | August 31, 2010 | 10.04 | |||||||
10.05 | Amendment No. 3 to Uncommitted Credit Facility Letter, dated February 7, 2011, between registrant, BNP Paribas and Amyris Fuels, LLC | 10-Q | 001-34885 | August 11, 2011 | 10.03 | |||||||
10.06 | Amendment No. 4 to Uncommitted Credit Facility Letter, dated May 24, 2011, between registrant, BNP Paribas and Amyris Fuels, LLC | 10-Q | 001-34885 | August 11, 2011 | 10.04 | |||||||
10.07 | Plain English Master Lease Agreement, dated March 14, 2008, between registrant and TriplePoint Capital LLC | S-1 | 333-166135 | April 16, 2010 | 10.04 | |||||||
10.08 | First Amendment, dated September 18, 2009, to Plain English Master Lease Agreement between registrant and TriplePoint Capital LLC | S-1 | 333-166135 | April 16, 2010 | 10.05 | |||||||
10.09 | Assistance Agreement, dated December 30, 2009, as modified by Assistance Agreement dated March 26, 2010, between registrant and the U.S. Department of Energy, together with schedules and supplements thereto | S-1 | 333-166135 | April 16, 2010 | 10.09 | |||||||
10.10 | Modification No. 2, dated April 19, 2010, to Assistance Agreement between registrant and the U.S. Department of Energy | S-1 | 333-166135 | May 25, 2010 | 10.13 | |||||||
10.11bc | Agreement for Credit Opening, dated November 16, 2011, between Amyris Brasil Ltda. and Banco Nacional de Desenvolvimento Econȏmico e Social - BNDES | 10-K | 001-34885 | February 28, 2012 | 10.11 | |||||||
10.12b | Corporate Guarantee, dated November 28, 2011, issued by registrant to Banco Nacional de Desenvolvimento Econȏmico e Social - BNDES | 10-K | 001-34885 | February 28, 2012 | 10.12 | |||||||
10.13c | Bank Credit Agreement, dated December 21, 2011, between Amyris Brasil Ltda. and Banco Pine S.A. | 10-K | 001-34885 | February 28, 2012 | 10.13 | |||||||
10.14 | Revolving Credit Facility letter agreement, dated December 23, 2010, between registrant and Bank of the West | X | ||||||||||
10.15a | Joint Venture Agreement dated April 14, 2010 among registrant, Amyris Brasil S.A. and Usina São Martinho S.A. | S-1 | 333-166135 | August 31, 2010 | 10.14 | |||||||
10.16a | Shareholders’ Agreement dated April 14, 2010 among registrant, Amyris Brasil S.A. and Usina São Martinho S.A. | S-1 | 333-166135 | May 25, 2010 | 10.17 | |||||||
10.17a | Technology License, Development, Research and Collaboration Agreement, dated June 21, 2010, between registrant and Total Gas & Power USA Biotech, Inc. | S-1 | 333-16135 | September 20, 2010 | 10.46 | |||||||
10.18 | Letter agreement, dated January 11, 2011, between registrant and Total Gas & Power USA Biotech, Inc. | 10-Q | 001-34885 | May 11, 2011 | 10.01 |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
10.19b | First Amendment to Technology License, Development, Research and Collaboration Agreement, dated November 23, 2011, between registrant and Total Gas & Power USA SAS | X | ||||||||||
10.20a | Joint Venture Implementation Agreement dated June 3, 2011 among Amyris, Inc., Amyris Brasil S.A., Cosan Combustíveis e Lubrificantes S.A. and Cosan S.A. Indústria e Comércio | 10-Q | 001-34885 | August 11, 2011 | 10.01 | |||||||
10.21a | Shareholders' Agreement, dated June 3, 2011, among Amyris Brasil S.A., Cosan Combustíveis e Lubrificantes S.A. and Novvi S.A. | 10-Q | 001-34885 | August 11, 2011 | 10.02 | |||||||
10.22 | Lease, dated August 22, 2007, between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.17 | |||||||
10.23 | First Amendment, dated March 10, 2008, to Lease between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.18 | |||||||
10.24 | Second Amendment, dated April 25, 2008, to Lease between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.19 | |||||||
10.25 | Third Amendment, dated July 31, 2008, to Lease between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.20 | |||||||
10.26 | Fourth Amendment, dated November 14, 2009, to Lease between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.21 | |||||||
10.27 | Fifth Amendment, dated October 15, 2010, to Lease between registrant and ES East, LLC. | 10-K | 001-34885 | March 14, 2011 | 10.17 | |||||||
10.28 | Lease dated April 25, 2008 between registrant and EmeryStation Triangle, LLC | S-1 | 333-166135 | April 16, 2010 | 10.22 | |||||||
10.29 | Letter, dated April 25, 2008, amending Lease between registrant and EmeryStation Triangle, LLC | S-1 | 333-166135 | April 16, 2010 | 10.23 | |||||||
10.30 | Second Amendment, dated February 5, 2010, to Lease between registrant and EmeryStation Triangle, LLC | S-1 | 333-166135 | April 16, 2010 | 10.24 | |||||||
10.31 | Pilot Plant Expansion Right Letter dated December 22, 2008 between registrant and EmeryStation Triangle, LLC | S-1 | 333-166135 | April 16, 2010 | 10.25 | |||||||
10.32bc | Lease Agreement dated, August 10, 2011, between Amyris Brasil Ltda. and Techno Park Empreendimentos e Administraҫão Imobiliária Ltda. | 10-K | 001-34885 | February 28, 2012 | 10.32 |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
10.33d | Offer Letter dated September 27, 2006 between registrant and John Melo | S-1 | 333-16135 | April 16, 2010 | 10.27 | |||||||
10.34d | Amendment, dated December 18, 2008, between registrant and John Melo | S-1 | 333-16135 | April 16, 2010 | 10.28 | |||||||
10.35d | Offer Letter, dated January 17, 2008, between registrant and Jeryl Hilleman | S-1 | 333-16135 | April 16, 2010 | 10.31 | |||||||
10.36d | Amendment, dated December 18, 2008, between registrant and Jeryl Hilleman | S-1 | 333-16135 | April 16, 2010 | 10.32 | |||||||
10.37d | Letter Agreement dated August 2, 2011 between Amyris, Inc. and Jeryl Hilleman | 10-Q | 001-34885 | November 9, 2011 | 10.01 | |||||||
10.38d | Offer Letter, dated November 9, 2009, between registrant and Peter Boynton | 10-Q | 001-34885 | August 11, 2011 | 10.05 | |||||||
10.39d | Letter Confirming Amended and Restated Terms of Employment, dated April 18, 2011, between Amyris, Inc. and Mario Portela | 10-Q | 001-34885 | August 11, 2011 | 10.06 | |||||||
10.40d | Offer Letter, dated January 24, 2005, between registrant and Tamara Tompkins | S-1 | 333-16135 | April 16, 2010 | 10.35 | |||||||
10.41d | Amendment, dated January 15, 2009, between registrant and Tamara Tompkins | S-1 | 333-16135 | April 16, 2010 | 10.36 | |||||||
10.42d | 2005 Stock Option/Stock Issuance Plan | 10-Q | 001-34885 | November 9, 2011 | 10.02 | |||||||
10.43d | Form of Notice of Grant of Stock Option under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.38 | |||||||
10.44d | Form of Notice of Grant of Stock Option (non-Exempt) under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.39 | |||||||
10.45d | Form of Notice of Grant of Stock Option (non-US) under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.40 | |||||||
10.46d | Form of Stock Option Agreement under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.41 | |||||||
10.47d | Form of Stock Option Agreement (non-US) under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.42 | |||||||
10.48d | Form of Stock Purchase Agreement under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.43 |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
10.49d | Form of Stock Purchase Agreement (non-US) under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.44 | |||||||
10.50d | 2010 Equity Incentive Plan and forms of award agreements thereunder | S-1 | 333-16135 | June 23, 2010 | 10.46 | |||||||
10.51d | 2010 Employee Stock Purchase Plan and forms of award agreements thereunder | S-1 | 333-16135 | September 20, 2010 | 10.45 | |||||||
10.52de | Compensation arrangements between registrant and its non-employee directors | e | ||||||||||
10.53df | Compensation arrangements between registrant and its executive officers | f | ||||||||||
21.01 | List of subsidiaries | 10-K | 001-34885 | February 28, 2012 | 21.01 | |||||||
23.01 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm | 10-K | 001-34885 | February 28, 2012 | 23.01 | |||||||
24.01 | Power of Attorney | 10-K | 001-34885 | February 28, 2012 | 24.01 | |||||||
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 | 10-K | 001-34885 | February 28, 2012 | 31.01 | |||||||
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 | 10-K | 001-34885 | February 28, 2012 | 31.02 | |||||||
31.03 | 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 | ||||||||||
31.04 | 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 | ||||||||||
32.01g | 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 | 10-K | 001-34885 | February 28, 2012 | 32.01 | |||||||
32.02g | 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 | 10-K | 001-34885 | February 28, 2012 | 32.02 | |||||||
101h | The following materials from registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2011, 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. | 10-K | 001-34885 | February 28, 2012 | 101 |
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. | Translation to English from Portuguese in accordance with Rule 12b-12(d) of the regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). |
d. | Indicates management contract or compensatory plan or arrangement. |
e. | Description contained under the heading "Director Compensation" in registrant's definitive proxy materials filed with the Securities and Exchange Commission on April 8, 2011 and incorporated herein by reference. |
f. | Descriptions contained (i) under the heading "Executive Compensation" in registrant's definitive proxy materials filed with the Securities and Exchange Commission on April 8, 2011 and (ii) in registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on May 2, 2011, and incorporated herein by reference. |
g. | 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 of 1933, as amended or the Exchange Act. |
h. | Pursuant to applicable securities laws and regulations, the Company 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 the Company 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 these sections. |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | File No. | ||||||||
3.01 | Restated Certificate of Incorporation | 10-Q | 001-34885 | November 10, 2010 | 3.01 | |||||||
3.02 | Restated Bylaws | 10-Q | 001-34885 | November 10, 2010 | 3.02 | |||||||
4.01 | Form of 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 registrant’s security holders listed therein | S-1 | 333-166135 | June 23, 2010 | 4.02 | |||||||
4.03 | Stock Purchase Warrant dated September 23, 2008 issued to ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 4.08 | |||||||
4.04 | Amendment No. 1, dated April 8, 2010, to Stock Purchase Warrant between ES East Associates, LLC and registrant | S-1 | 333-166135 | April 16, 2010 | 4.09 | |||||||
4.05 | Stock Purchase Warrant dated March 6, 2008 issued to Starfish, LLC | S-1 | 333-166135 | April 16, 2010 | 4.10 | |||||||
4.06 | Amendment No. 1, dated April 8, 2010, to Stock Purchase Warrant between Starfish, LLC and registrant | S-1 | 333-166135 | April 16, 2010 | 4.11 | |||||||
4.07 | Warrant to Purchase Stock dated December 23, 2011 issued to ATEL Ventures, Inc. | 10-K | 001-34885 | February 28, 2012 | 4.07 | |||||||
4.08 | Side Letter, dated June 21, 2010, between registrant and Total Gas & Power USA, SAS | S-1 | 333-166135 | April 16, 2010 | 4.19 |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
10.01 | Form of Indemnity Agreement between registrant and its directors and officers | S-1 | 333-166135 | June 23, 2010 | 10.01 | |||||||
10.02a | Uncommitted Facility Letter dated November 25, 2008 between BNP Paribas and Amyris Fuels, Inc. | S-1 | 333-166135 | August 31, 2010 | 10.02 | |||||||
10.03a | Amendment to Uncommitted Facility Letter dated October 7, 2009 among registrant, BNP Paribas and Amyris Fuels, LLC | S-1 | 333-166135 | August 31, 2010 | 10.03 | |||||||
10.04 | Amendment No. 2 to Uncommitted Facility Letter dated March 8, 2010 between registrant, BNP Paribas and Amyris Fuels, LLC | S-1 | 333-166135 | August 31, 2010 | 10.04 | |||||||
10.05 | Amendment No. 3 to Uncommitted Credit Facility Letter, dated February 7, 2011, between registrant, BNP Paribas and Amyris Fuels, LLC | 10-Q | 001-34885 | August 11, 2011 | 10.03 | |||||||
10.06 | Amendment No. 4 to Uncommitted Credit Facility Letter, dated May 24, 2011, between registrant, BNP Paribas and Amyris Fuels, LLC | 10-Q | 001-34885 | August 11, 2011 | 10.04 | |||||||
10.07 | Plain English Master Lease Agreement, dated March 14, 2008, between registrant and TriplePoint Capital LLC | S-1 | 333-166135 | April 16, 2010 | 10.04 | |||||||
10.08 | First Amendment, dated September 18, 2009, to Plain English Master Lease Agreement between registrant and TriplePoint Capital LLC | S-1 | 333-166135 | April 16, 2010 | 10.05 | |||||||
10.09 | Assistance Agreement, dated December 30, 2009, as modified by Assistance Agreement dated March 26, 2010, between registrant and the U.S. Department of Energy, together with schedules and supplements thereto | S-1 | 333-166135 | April 16, 2010 | 10.09 | |||||||
10.10 | Modification No. 2, dated April 19, 2010, to Assistance Agreement between registrant and the U.S. Department of Energy | S-1 | 333-166135 | May 25, 2010 | 10.13 | |||||||
10.11bc | Agreement for Credit Opening, dated November 16, 2011, between Amyris Brasil Ltda. and Banco Nacional de Desenvolvimento Econȏmico e Social - BNDES | 10-K | 001-34885 | February 28, 2012 | 10.11 | |||||||
10.12b | Corporate Guarantee, dated November 28, 2011, issued by registrant to Banco Nacional de Desenvolvimento Econȏmico e Social - BNDES | 10-K | 001-34885 | February 28, 2012 | 10.12 | |||||||
10.13c | Bank Credit Agreement, dated December 21, 2011, between Amyris Brasil Ltda. and Banco Pine S.A. | 10-K | 001-34885 | February 28, 2012 | 10.13 | |||||||
10.14 | Revolving Credit Facility letter agreement, dated December 23, 2010, between registrant and Bank of the West | X | ||||||||||
10.15a | Joint Venture Agreement dated April 14, 2010 among registrant, Amyris Brasil S.A. and Usina São Martinho S.A. | S-1 | 333-166135 | August 31, 2010 | 10.14 | |||||||
10.16a | Shareholders’ Agreement dated April 14, 2010 among registrant, Amyris Brasil S.A. and Usina São Martinho S.A. | S-1 | 333-166135 | May 25, 2010 | 10.17 | |||||||
10.17a | Technology License, Development, Research and Collaboration Agreement, dated June 21, 2010, between registrant and Total Gas & Power USA Biotech, Inc. | S-1 | 333-16135 | September 20, 2010 | 10.46 | |||||||
10.18 | Letter agreement, dated January 11, 2011, between registrant and Total Gas & Power USA Biotech, Inc. | 10-Q | 001-34885 | May 11, 2011 | 10.01 |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
10.19b | First Amendment to Technology License, Development, Research and Collaboration Agreement, dated November 23, 2011, between registrant and Total Gas & Power USA SAS | X | ||||||||||
10.20a | Joint Venture Implementation Agreement dated June 3, 2011 among Amyris, Inc., Amyris Brasil S.A., Cosan Combustíveis e Lubrificantes S.A. and Cosan S.A. Indústria e Comércio | 10-Q | 001-34885 | August 11, 2011 | 10.01 | |||||||
10.21a | Shareholders' Agreement, dated June 3, 2011, among Amyris Brasil S.A., Cosan Combustíveis e Lubrificantes S.A. and Novvi S.A. | 10-Q | 001-34885 | August 11, 2011 | 10.02 | |||||||
10.22 | Lease, dated August 22, 2007, between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.17 | |||||||
10.23 | First Amendment, dated March 10, 2008, to Lease between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.18 | |||||||
10.24 | Second Amendment, dated April 25, 2008, to Lease between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.19 | |||||||
10.25 | Third Amendment, dated July 31, 2008, to Lease between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.20 | |||||||
10.26 | Fourth Amendment, dated November 14, 2009, to Lease between registrant and ES East Associates, LLC | S-1 | 333-166135 | April 16, 2010 | 10.21 | |||||||
10.27 | Fifth Amendment, dated October 15, 2010, to Lease between registrant and ES East, LLC. | 10-K | 001-34885 | March 14, 2011 | 10.17 | |||||||
10.28 | Lease dated April 25, 2008 between registrant and EmeryStation Triangle, LLC | S-1 | 333-166135 | April 16, 2010 | 10.22 | |||||||
10.29 | Letter, dated April 25, 2008, amending Lease between registrant and EmeryStation Triangle, LLC | S-1 | 333-166135 | April 16, 2010 | 10.23 | |||||||
10.30 | Second Amendment, dated February 5, 2010, to Lease between registrant and EmeryStation Triangle, LLC | S-1 | 333-166135 | April 16, 2010 | 10.24 | |||||||
10.31 | Pilot Plant Expansion Right Letter dated December 22, 2008 between registrant and EmeryStation Triangle, LLC | S-1 | 333-166135 | April 16, 2010 | 10.25 | |||||||
10.32bc | Lease Agreement dated, August 10, 2011, between Amyris Brasil Ltda. and Techno Park Empreendimentos e Administraҫão Imobiliária Ltda. | 10-K | 001-34885 | February 28, 2012 | 10.32 |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
10.33d | Offer Letter dated September 27, 2006 between registrant and John Melo | S-1 | 333-16135 | April 16, 2010 | 10.27 | |||||||
10.34d | Amendment, dated December 18, 2008, between registrant and John Melo | S-1 | 333-16135 | April 16, 2010 | 10.28 | |||||||
10.35d | Offer Letter, dated January 17, 2008, between registrant and Jeryl Hilleman | S-1 | 333-16135 | April 16, 2010 | 10.31 | |||||||
10.36d | Amendment, dated December 18, 2008, between registrant and Jeryl Hilleman | S-1 | 333-16135 | April 16, 2010 | 10.32 | |||||||
10.37d | Letter Agreement dated August 2, 2011 between Amyris, Inc. and Jeryl Hilleman | 10-Q | 001-34885 | November 9, 2011 | 10.01 | |||||||
10.38d | Offer Letter, dated November 9, 2009, between registrant and Peter Boynton | 10-Q | 001-34885 | August 11, 2011 | 10.05 | |||||||
10.39d | Letter Confirming Amended and Restated Terms of Employment, dated April 18, 2011, between Amyris, Inc. and Mario Portela | 10-Q | 001-34885 | August 11, 2011 | 10.06 | |||||||
10.40d | Offer Letter, dated January 24, 2005, between registrant and Tamara Tompkins | S-1 | 333-16135 | April 16, 2010 | 10.35 | |||||||
10.41d | Amendment, dated January 15, 2009, between registrant and Tamara Tompkins | S-1 | 333-16135 | April 16, 2010 | 10.36 | |||||||
10.42d | 2005 Stock Option/Stock Issuance Plan | 10-Q | 001-34885 | November 9, 2011 | 10.02 | |||||||
10.43d | Form of Notice of Grant of Stock Option under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.38 | |||||||
10.44d | Form of Notice of Grant of Stock Option (non-Exempt) under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.39 | |||||||
10.45d | Form of Notice of Grant of Stock Option (non-US) under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.40 | |||||||
10.46d | Form of Stock Option Agreement under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.41 | |||||||
10.47d | Form of Stock Option Agreement (non-US) under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.42 | |||||||
10.48d | Form of Stock Purchase Agreement under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.43 |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
10.49d | Form of Stock Purchase Agreement (non-US) under registrant’s 2005 Stock Option/Stock Issuance Plan | S-1 | 333-16135 | April 16, 2010 | 10.44 | |||||||
10.50d | 2010 Equity Incentive Plan and forms of award agreements thereunder | S-1 | 333-16135 | June 23, 2010 | 10.46 | |||||||
10.51d | 2010 Employee Stock Purchase Plan and forms of award agreements thereunder | S-1 | 333-16135 | September 20, 2010 | 10.45 | |||||||
10.52de | Compensation arrangements between registrant and its non-employee directors | e | ||||||||||
10.53df | Compensation arrangements between registrant and its executive officers | f | ||||||||||
21.01 | List of subsidiaries | 10-K | 001-34885 | February 28, 2012 | 21.01 | |||||||
23.01 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm | 10-K | 001-34885 | February 28, 2012 | 23.01 | |||||||
24.01 | Power of Attorney | 10-K | 001-34885 | February 28, 2012 | 24.01 | |||||||
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 | 10-K | 001-34885 | February 28, 2012 | 31.01 | |||||||
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 | 10-K | 001-34885 | February 28, 2012 | 31.02 | |||||||
31.03 | 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 | ||||||||||
31.04 | 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 | ||||||||||
32.01g | 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 | 10-K | 001-34885 | February 28, 2012 | 32.01 | |||||||
32.02g | 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 | 10-K | 001-34885 | February 28, 2012 | 32.02 | |||||||
101h | The following materials from registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2011, 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. | 10-K | 001-34885 | February 28, 2012 | 101 |
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. | Translation to English from Portuguese in accordance with Rule 12b-12(d) of the regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). |
d. | Indicates management contract or compensatory plan or arrangement. |
e. | Description contained under the heading "Director Compensation" in registrant's definitive proxy materials filed with the Securities and Exchange Commission on April 8, 2011 and incorporated herein by reference. |
f. | Descriptions contained (i) under the heading "Executive Compensation" in registrant's definitive proxy materials filed with the Securities and Exchange Commission on April 8, 2011 and (ii) in registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on May 2, 2011, and incorporated herein by reference. |
g. | 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 of 1933, as amended or the Exchange Act. |
h. | Pursuant to applicable securities laws and regulations, the Company 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 the Company 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 these sections. |
2. | Conditions Precedent to Loans and Letters of Credit. |
3. | Representations and Warranties. The Borrower represents and warrants that: |
(a) | Information. The Borrower shall deliver to the Lender: |
(b) | Other Covenants. The Borrower shall, and shall cause each of its Subsidiaries to: |
5. | Events of Default. The following are “Events of Default:” |
6. | Miscellaneous. |
Breakage Costs: | Any loss, cost or expense incurred by the Lender (including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by the Lender to maintain the relevant Eurodollar Rate Loan or from fees payable to terminate the deposits from which such funds were obtained) as a result of (i) any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or (ii) any failure by the Borrower (for a reason other than the failure of the Lender to make a Loan when all conditions to making such Loan have been met by the Borrower in accordance with the terms hereof) to prepay, borrow, continue or convert any Eurodollar Rate Loan on a date or in the amount notified by the Borrower. The certificate of the Lender as to its costs of funds, losses and expenses incurred shall be conclusive absent manifest error. |
Business Day: | Any day other than a Saturday, Sunday, or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the State California and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market. |
Code: | The Internal Revenue Code of 1986, as amended from time to time. |
Collateral: | All now owned or hereafter acquired right, title and interest of Borrower in (a) Accounts, (b) Documents, (c) Chattel Paper, (d) Deposit Accounts, (e) Equipment, Inventory and other Goods, (f) General Intangibles, (g) Instruments and Promissory Notes, (h) Letter of Credit Rights, (i) Commercial Tort Claims, (j) cash and cash accounts, (k) Investment Property, (l) Fixtures, (m) Supporting Obligations and (n) Proceeds of the foregoing; provided, however, that the following items do not constitute Collateral: (i) any Intellectual Property; (ii) any Equipment which is subject to a purchase money Lien permitted under this Agreement in favor of any Person (other than Bank, if the documents relating to such Lien do not permit other Liens, (iii) rights under that certain Plain English Master Lease Agreement dated March 14, 2008, between the Borrower and TriplePoint Capital, LLC, and Equipment financed thereunder, (iv) the Master Lease Agreement with Applied Biosystems dated June 11, 2007 and Equipment financed thereunder, (v) the Master Lease Agreement with Thermo Electron Corporation dated June 4, 2007 and Equipment financed thereunder, (vi) the Siemens Equipment Lease dated February 13, 2008 and Equipment financed thereunder, (vii) more than 65% of the presently existing and hereafter issued and outstanding shares of capital stock of any “controlled foreign corporation” (as defined in the Code) which shares entitle the holder thereof to vote for directors or any other matter, (viii) any interest of Borrower as a lessee or sublessee under a real property lease or an Equipment lease if Borrower is prohibited by the terms of such lease from granting a security interest therein or under which an assignment or Lien would cause a default to occur(other than to the extent that any such term would be rendered ineffective by Sections 9406 through 9408 of the Uniform Commercial Code) and (ix) any General Intangible which is the subject of a written agreement which specifically prohibits assignment thereof but only to the extent of such prohibition, and only to the extent that the terms and provisions of a such written agreement, document or instrument creating or evidencing such property or any rights relating thereto expressly prohibit the granting of a security interest therein, making the granting of a security interest therein a breach or event of default or condition the granting of a security interest therein on the consent of a third party whose consent has not been obtained or would cause, or allow a third party to cause, forfeiture of such property upon the granting of a security interest therein or a breach under any written agreement relating thereto. As used in this definition, “Account Debtor,” “Account,” “Chattel Paper,” “Commercial Tort Claim,” “Commodity Account,” “Commodity Intermediary,” “Deposit Account,” “Documents,” “Entitlement Holder,” “Equipment,” “Fixtures,” “Financial Asset,” “General Intangibles,” “Goods,” “Inventory,” ”Investment Property,” “Instruments,” “Letter of Credit Rights,” “Proceeds,” “Promissory Note,” “Securities,” “Securities Account,” “Securities Intermediary,” “Securities Entitlement,” and “Supporting Obligations” shall have the meaning assigned to such terms by the Uniform Commercial Code. |
Current Asset: | Current assets as determined in accordance with generally accepted accounting principles. |
Current Liability: | Current liabilities as determined in accordance with generally accepted accounting principles. |
Current Ratio: | Borrower's total Current Assets divided by Borrower's total Current Liabilities. |
Debtor Relief Laws: | The Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect affecting the rights of creditors generally. |
Default: | Any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. |
Dollar or $: | The lawful currency of the United States of America. |
Environmental Laws: | Any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems. |
Environmental Liability: | Any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. |
ERISA: | The Employee Retirement Income Security Act of 1974 and any regulations issued pursuant thereto, as amended from time to time. |
Eurodollar Rate: | A fixed rate for an Interest Period determined by Lender's Treasury Desk as being the arithmetic mean of the Bloomberg British Bankers Association LIBOR page as of 11:00 a.m. (London time), on that date, or, if such day is not a Business Day, on the immediately preceding Business Day prior the first day of such Interest Period (adjusted for any and all assessments, surcharges and reserve requirements) |
Eurodollar Rate Loan: | A Loan bearing interest based on the Eurodollar Rate. |
Event of Default: | Has the meaning set forth in Paragraph 5. |
Federal Funds Rate: | For any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Lender on such day on such transactions as determined by the Lender. |
Hazardous Materials: | All explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law. |
Indemnitee: | Has the meaning set forth in Paragraph 6(j). |
Interest Period: | For each Eurodollar Rate Loan, (a) initially, the period commencing on the date the Eurodollar Rate Loan is disbursed or converted from a Prime Rate Loan and (b) thereafter, the period commencing on the last day of the preceding Interest Period, and, in each case, ending on the earlier of (x) the Maturity Date and (y) one, two, three or six months thereafter, as requested by the Borrower; provided that: (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; and (ii) any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period. |
Lien: | Any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing) securing any indebtedness of the Borrower or any Subsidiary or the property, real or personal, of the Borrower or such Subsidiary, whether now owned or hereafter acquired. |
Liquidity: | The following assets owned by the Borrower on an unconsolidated basis and not owned by any Subsidiary of the Borrower which (i) are not the subject of any Lien or other arrangement with any creditor to have his claim satisfied out of the asset (or proceeds thereof) prior to the general creditors of the Borrower, and (ii) may be converted to cash within five (5) days: (a) cash and cash equivalents held in the United States; (b) United States Treasury or governmental agency obligations which constitute full faith and credit of the United States of America; (c) Commercial paper rated P-1 or A1 by Moody's or by S&P, respectively; (d) medium and long-term securities rated investment grade by one of the rating agencies described in (c) above; (e) Eligible Stocks; and (f) mutual funds quoted in The Wall Street Journal which invest primarily in the assets described in (a) through (e) above, where “Eligible Stocks” means any common or preferred stock which (i) is not subject to statutory or contractual restrictions on sales, (ii) is traded on the New York Stock Exchange, American Stock Exchange or included in the National Market tier of NASDAQ and (iii) has, as of the close of trading on an applicable exchange (excluding after hours trading), a per share price of at least $15. |
Loan Documents: | This Agreement, and the promissory note and fee letter, if any, delivered in connection with this Agreement. |
Material Adverse Effect: | (a) A material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or financial condition of the Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Borrower to perform its obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document. |
Maturity Date: | December 1, 2012, or such earlier date on which the Commitment may terminate in accordance with the terms hereof. |
Permitted Lien: | Any Lien on any asset (other than an asset included in the calculation of Liquidity) (a) securing the obligations of the Borrower hereunder; (b) for taxes, assessments and similar charges not yet due; (c) of materialmen, mechanics, warehousemen or carriers or other like Liens arising in the ordinary course of business and securing obligations which are not yet delinquent; (d) in the nature of a purchase money Lien on or in any property acquired or held by the Borrower or any of its Subsidiaries in the ordinary course of business to secure indebtedness outstanding on the date here or permitted to be incurred hereunder; (e) in the nature of an attachment and judgment Lien not otherwise constituting an Event of Default which is in existence less than thirty (30) days after the entry thereof or, with respect to which execution has been stayed, payment is covered in full by insurance or the Borrower in good faith is prosecuting an appeal or other proceedings for review and has set aside on its books such reserves as may be required by generally accepted accounting principles with respect to such attachment or judgment; and (f) incidental to the conduct of the business of the Borrower and its Subsidiaries which was not incurred in connection with borrowed money and which does not in the aggregate materially detract from the value of the property subject thereto or materially impair the use thereof in the operations of such business. |
Person: | Any natural Person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity. |
Plan: | Any employee benefit plan maintained or contributed to by the Borrower or by any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code) and insured by the Pension Benefit Guaranty Corporation under Title IV of ERISA. |
Prime Rate: | The Lender's prime rate is a rate set by the Lender based upon various factors including the Lender's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the prime rate announced by the Lender shall take effect at the opening of business on the day specified in the public announcement of such change. |
Prime Rate Loan: | A Loan bearing interest based on the Prime Rate. |
Subsidiary: | With respect to any Person, a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” refer to a Subsidiary or Subsidiaries of the Borrower. |
Irrevocable Letters of Credit Outstanding | ||||||
L/C # | Dollar Amount | Maturity | ||||
MB60513617 | 2,297,324.44 | 11/9/2011 | ||||
MB60513618 | 79,363.26 | 12/10/2011 | ||||
MB60513616 | 1,000,000.00 | 11/9/2011 | ||||
MB60513645 | 750,000.00 | 12/9/2011 |
1. | New Definitions. The Parties hereby agree to add the following defined terms to Section 1: |
2. | Designation of Renewable Diesel Product as a Product and a Large Market Product. The Parties hereby agree that (a) pursuant to Section 2.1 of the Agreement, on and after the Amendment Effective Date, the Renewable Diesel Product shall be considered a Product, notwithstanding the exclusion of Specific Products from the definition of Products, and (b) the Renewable Diesel Product is deemed a Large Market Product and the procedures set forth in Section 2.2(d) of the Agreement with regard to designating Products as Large Market Products are deemed satisfied with regard to the Renewable Diesel Product. |
3. | Renewable Diesel Development Project. The Parties hereby agree that (a) pursuant to Section 2.2 of the Agreement, as of the First Amendment Date, the Renewable Diesel Development Project is deemed to be approved by the Management Committee in accordance with the terms of the Agreement, (b) the Improvement Scope for the Renewable Diesel Development Project shall not be broader than the Renewable Diesel Development Project Scope, (c) any and all Inventions developed by or on behalf of either Party under the Improvement Scope IP for the Renewable Diesel Development Project, which Inventions relate to the production of farnesene from fermentation of a Farnesene Strain and purification of such farnesene from fermentation medium shall be deemed to be Main IP (and not Improvement Scope IP), and (d) notwithstanding Section 2.4 or any other provision of the Agreement, TOTAL may not exercise the TOTAL R&D Option with respect to a Farnesene Renewable Diesel Product. |
4. | Governance. The governance of the Renewable Diesel Development Project shall be as follows: |
(a) | Before the formation of the Holding JV Company: (i) the Biofene Support Subproject and Lignocellulosic Subproject will be governed as per the Agreement and (ii) the AMYRIS Biofene Subproject will be governed by AMYRIS, provided that, in case of (ii), the Management Committee and the Joint Steering Committee as defined in the Agreement are kept informed of the progress of these subprojects and provided further that such subprojects are conducted in accordance with the Renewable Diesel Development Project Plan. All other aspects of the Renewable Diesel Development Project shall be governed in accordance with the governance provisions set forth in the Agreement. |
(b) | After the formation of the Holding JV Company: All aspects of the Renewable Diesel Development Project shall be governed in accordance with the governance provisions set forth in the Agreement. |
5. | Use of Collaboration IP. In case (i) the Renewable Diesel Development Project is terminated and (ii) the Holding JV Company is not formed, the Parties hereby agree that the restrictions set forth in Section 2.2(d) of the Agreement regarding use of Collaboration IP in a project competing with the Renewable Diesel Development Project having farnesene as the Lead Compound and Farnesene Renewable Diesel Product as the Product shall not apply to AMYRIS with respect to any Collaboration IP developed under the Renewable Diesel Development Project. |
6. | Funding. Notwithstanding Sections 2.7(a) and (c) of the Agreement, the Parties hereby agree to fund the Renewable Diesel Development Project as follows: |
7. | Exclusivity. Notwithstanding the provisions of Section 2.8(a) of the Agreement, the one-year period described in the first sentence of Section 2.8(a) shall not apply where farnesene is the Lead Compound and Farnesene Renewable Diesel Product is the Product within the Renewable Diesel Development Project Scope. |
8. | Non-Formation of the Holding JV Company. The Parties agree that if the Definitive JV Agreements (as defined in the Cover Letter) have not been executed by March 31, 2012 or such later date as is mutually agreed in writing by the Parties (the “Holding JV Formation Deadline”), then: |
(a) | the Renewable Diesel Development Project shall terminate; |
(b) | The funding by TOTAL of the remaining R&D Activities in the Renewable Diesel Development Project shall immediately stop (other than for noncancellable amounts |
(c) | the Renewable Diesel Product shall cease to be a “Product” for the purposes of Article 3 of the Agreement. |
9. | AMYRIS Included IP. |
10. | Limitation of Rights to Use Farnesene Production IP from Licenses. The Parties hereby agree that, notwithstanding the terms of the Agreement, the licenses granted or to be granted to TOTAL in Sections: |
(i) | 6.2(c), 6.3(a), 6.3(d) and 6.3(e) of the Agreement with respect to Renewable Diesel Products will not include the right for TOTAL to use Farnesene Production IP for the production of farnesene from fermentation of a Farnesene Strain and subsequent purification of farnesene to hydrogenation grade, except in each case to the extent necessary for TOTAL to exercise the Exclusive Products Sole Risk Production Right of First Refusal described in Section 11 below for Renewable Diesel Product, and |
(ii) | 6.3(b) will exclude the right for TOTAL to use Farnesene Production IP for further optimization of a Commercial Farnesene Strain other than by means of random mutagenesis. |
11. | Exclusive Products Sole Risk Production Right of First Refusal. The Parties agree that the “Production Right of First Refusal” set forth in Section 3.2(d)(i) of the Agreement shall be replaced by the following for the purpose of Exclusive JV Products: |
• | The Repayment Base Amount plus interest in USD thereon at libor 1y + 10% of the Repayment Base Amount, if the Exclusive Sole-Risk Opt-In Right is exercised prior to the first anniversary of the notice of the Proposed Project to the Receiving Party. |
• | The Repayment Base Amount plus interest in USD thereon at libor 1y + 15% of the Repayment Base Amount, if the Exclusive Sole-Risk Opt-In Right is exercised after the first anniversary of the notice of the Proposed Project to the Receiving Party but prior to the second anniversary thereof. |
• | The Repayment Base Amount plus interest in USD thereon at libor 1y + 20% of the Repayment Base Amount, if the Exclusive Sole-Risk Opt-In Right is exercised after the second anniversary of the notice of the Proposed Project to the Receiving Party but prior to the third anniversary thereof. |
12. | TOTAL Option Upon the Renewable Diesel Project Completion Date |
13. | Freedom to Operate. |
(i) | Within 20 business days of the completion of the Renewable Diesel Analysis in accordance with the agreed search and evaluation plan detailing specific deliverables and assessments of identified patent applications and patents owned by Third Parties, each Party shall notify the other if it considers that there is a Significant Risk. For the purpose of this section, “Significant Risk” means any risk that Third Party IP may preclude and/or Significantly Delay the development of Renewable Diesel Products in accordance with the Renewable Diesel Development Project Plan or the commercialization of Renewable Diesel Products. If not such notification is provided, then the consequences described in clause (iii)(a) below shall apply. |
(ii) | Upon receipt of such a notice, the Parties shall discuss their concerns about the Significant Risk, including whether to suspend or terminate any or all of the R&D Activities for the Renewable Diesel Project. If the Parties disagree after discussing for a period of 15 business days upon receipt of such notice, then each Party shall have the right, at its election to: |
(A) | terminate the Renewable Diesel Development Project, if it believes in good faith that the Significant Risk will have a material adverse impact on the Renewable Diesel Project (i.e., if the Third Party IP appears necessary (i.e., design around would Significantly Delay or significantly increase the cost) for the development, production and/or commercialization of Renewable Diesel Products). Any notice of an intent to terminate on such basis must be provided no later than 10 days prior to the Holding JV Formation Deadline as agreed by the Parties; or |
(B) | suspend some or all of the R&D Activities (including the corresponding funding) because it believes in good faith that a Significant Risk may (i) prevent the use of the applicable IP for, or (ii) Significantly Delay the development, production and/or the commercialization of Renewable Diesel Products; any notice of suspension must be provided no later than 15 days before the Holding JV Formation Deadline as agreed by the Parties. The suspension period shall last until there is a decision by the Management Committee of any appropriate corrective actions. |
(iii) | At the completion of the process described above, the following shall apply: (a) if there is not a termination of the R&D Activities for the Renewable Diesel Project, TOTAL may not decline to enter into the Definitive JV Agreements on the basis of the results of the Renewable Diesel Product Analysis or (b) if there is a termination of the R&D Activities for the |
(iv) | Any Dispute regarding whether there is basis for termination as set forth in (A) or suspension as set forth in (B) shall be resolved in accordance with Section 12.2 of the Agreement. |
14. | Exception to AMYRIS Representations, Warranties and Covenants in Section 8.2(q). The Parties hereby agree that by exception to Section 8.2(q) of the Agreement, Farnesene Strains may be disclosed to any Third Party during the Term by AMYRIS, provided that such disclosure is (a) under conditions of confidentiality and restrictive use to protect their proprietary nature and commercial value and (b) solely in furtherance of AMYRIS' business for products other than Exclusive JV Products. |
15. | Construction. The principles set forth in Section 13.12 of the Agreement shall apply to this First Amendment. References to Sections are references to sections of the Agreement except as otherwise expressly provided. |
16. | Amendment Effective Date; Incorporation of Terms; Continuing Effect. This First Amendment shall be deemed effective for all purposes as of the Amendment Effective Date. The amendment to the Agreement set forth in this First Amendment shall be deemed to be incorporated in, and made a part of, the Agreement, and the Agreement and this First Amendment shall be read, taken and construed as one and the same agreement. Except as otherwise expressly amended by this First Amendment, the Agreement shall remain in full force and effect in accordance with its terms and conditions. |
17. | Entire Agreement. This First Amendment contains the entire agreement between TOTAL and AMYRIS with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral and written, with respect to such matters, including the Term Sheet, effective as of July 26, 2011, between AMYRIS and TOTAL Gas & Power USA SAS. In the event of any inconsistency between this First Amendment and the Cover Letter or JV Principles, this First Amendment shall control. |
AMYRIS, Inc. | TOTAL Gas & Power USA SAS | |||||||
By: | /s/ John G. Melo | By: | /s/ A. Chaperon | |||||
Name: | John G. Melo | Name: | A. Chaperon | |||||
Title: | President and CEO | Title: | President |
I. | Amyris Patents and Patent Applications |
Amyris Ref. No. | Serial No & Filing Date | Title | Status |
[*] | US 11/754,235 Filed 05/25/2007 | Production or Isoprenoids | Issued as US 7,659,097 on 02/09/2010 Published as US 20080274523 on 11/06/2008 |
[*] | [*] | [*] | |
[*] | PCT/US2007/069807 Filed 05/25/2007 | Production of Isoprenoids | Published as WO 2007/140339 on 12/06/2007 Entered National Phase in Australia, Brazil, Canada, China, Columbia, El Salvador, Europe, Guatemala, Honduras, India, Indonesia, Japan, South Korea, Malaysia, Mexico, Mozambique, Nigeria, Singapore, South Africa, Trinidad & Tobago, Vietnam |
[*] | [*] | [*] | |
[*] | PCT/US2007/012467 Filed:05/25/2007 | Apparatus for Making a Bio-Organic Compound | Published as WO 2007/139924 on 12/06/2007 Entered National Phase in Australia, Brazil, Canada, China, Columbia, El Salvador, Europe, Guatemala, Honduras, India, Indonesia, Japan, South Korea, Malaysia, Mexico, Mozambique, Nigeria, Singapore, South Africa (issued as 2008/09957 on 08/10/2010), Trinidad & Tobago, Vietnam |
Amyris Ref. No. | Serial No & Filing Date | Title | Status |
[*] | US 11/869,673 Filed 10/09/2007 | Fuel Compositions Comprising Farnesane and Farnesane Derivatives and Method of Making and Using the Same | Issued as U.S. Patent No. 7,399,323 on 07/15/2008 Published as US 20080098645 on 05/01/2008 |
[*] | US 11/973,901 Filed 10/09/2007 | Fuel Compositions Comprising Farnesane and Farnesane Derivatives and Method of Making and Using the Same | Issued as U.S. Patent No. 7,846,222 on 12/07/2010 Published as US 20080083158 on 04/10/2008 |
[*] | PCT/US2007/021890 Filed 10/10/2007 | Fuel Compositions Comprising Farnesane and Farnesane Derivatives and Method of Making and Using the Same | Published as WO 2008/045555 on 04/17/2008 Entered National Phase in Australia, Brazil, Canada, China, Columbia, El Salvador, Europe, Guatemala, Honduras, Hong Kong, India, Indonesia, Japan, South Korea, Malaysia, Mexico, Mozambique, Nigeria, Singapore, South Africa (issued as 2009/02205 on 09/29/2010), Trinidad & Tobago, Vietnam |
[*] | US 12/595,600 Filed 04/14/2008 | DXP Production of Isoprenoids | Filed in US from PCT. Published as WO 2008/128159 on 10/23/2008 Published as US 20100178679 on 07/15/2010 DXP pathway |
[*] | US 12/234,589 Filed 09/19/2008 | Production of Isoprenoids | Published as US 20090137014 on 05/28/2009 |
Amyris Ref. No. | Serial No & Filing Date | Title | Status |
[*] | US2008/010886 Filed 09/19/2008 | Production of Isoprenoids | Published as WO 2009/042070 on 04/02/2009 Entered National Phase in Australia, Brazil, Canada, China, Europe, Japan, India, Mexico, and South Africa |
[*] | US 12/753,413 Filed 04/02/2010 | Stabilization & Hydrogenation Methods for Microbial-Derived Olefins | Published as US 20100267971 on 10/21/2010 |
[*] | PCT/US2010/029774 Filed 04/02/2010 | Stabilization & Hydrogenation Methods for Microbial-Derived Olefins | Published as WO 2010/115097 on 10/07/2010 |
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II. | Patents and Patent Applications Licensed from University of California |
Amyris Ref. No. | Serial No & Filing Date | Title | Status |
[*] | PCT/US05/026190 Filed: 07/21/05 | Genetically Modified Host Cells and Use of Same for Producing Isoprenoid Compounds | Published as WO 2006/014837 on 02/09/06 Entered National Phase in Australia, Brazil, Canada, China, Europe, Japan, Mexico, United States, Vietnam, & South Africa (issued as 2007/00753 on 5/28/2008) |
[*] | PCT/US2007/020790 Filed 09/25/07 | Production of Isoprenoids and Precursors Thereof | Published as WO 2008/039499 on 04/03/2008 Entered National Phase in Brazil, Europe, India, & United States |
III. | Patents and Patent Applications Licensed from [*] |
Amyris Ref. No. | Serial No & Filing Date | Title | Status |
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Amyris Ref. No. | Serial No & Filing Date | Title | Status |
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JV Product | For use in the following Fields | Territory | |
N.1 | [*] | [*] | World wide |
N.2 | [*] | [*] | World wide |
N.3 | [*] | [*] | World wide |
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N.5 | [*] | [*] | World wide |
N.6 | [*] | [*] | World wide |
N.71 | [*] | [*] | World wide |
1. | I have reviewed this Amendment No. 1 on Form 10-K/A 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; |
Date: May 2, 2012 | /s/ JOHN MELO | ||
John Melo | |||
President and Chief Executive Officer |
1. | I have reviewed this Amendment No. 1 on Form 10-K/A 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; |
Date: May 2, 2012 | /S/ STEVEN R. MILLS | ||
Steven R. Mills | |||
Chief Financial Officer |