x | QUARTERLY 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.) |
Large accelerated filer | ¨ | Accelerated filer | x |
Non-accelerated filer | ¨ | Smaller reporting company | ¨ |
Class | Outstanding at April 26, 2013 |
Common Stock, $0.0001 par value per share | 75,760,456 shares |
Page | ||
PART I - FINANCIAL INFORMATION | ||
Item 1. | ||
Item 2. | ||
Item 3. | ||
Item 4. | ||
PART II - OTHER INFORMATION | ||
Item 1. | ||
Item 1A. | ||
Item 2. | ||
Item 3. | ||
Item 4. | ||
Item 5. | ||
Item 6. | ||
March 31, | December 31, | ||||||
2013 | 2012 | ||||||
Assets | |||||||
Current assets: | |||||||
Cash and cash equivalents | $ | 23,250 | $ | 30,592 | |||
Short-term investments | 1,605 | 97 | |||||
Accounts receivable, net of allowance of $481 and $481, respectively | 7,541 | 3,846 | |||||
Inventories, net | 6,527 | 6,034 | |||||
Prepaid expenses and other current assets | 9,078 | 8,925 | |||||
Total current assets | 48,001 | 49,494 | |||||
Property, plant and equipment, net | 162,253 | 163,121 | |||||
Restricted cash | 956 | 955 | |||||
Other assets | 20,778 | 20,112 | |||||
Goodwill and intangible assets | 9,120 | 9,152 | |||||
Total assets | $ | 241,108 | $ | 242,834 | |||
Liabilities and Equity | |||||||
Current liabilities: | |||||||
Accounts payable | $ | 14,161 | $ | 15,392 | |||
Deferred revenue | 10,433 | 1,333 | |||||
Accrued and other current liabilities | 21,428 | 24,410 | |||||
Capital lease obligation, current portion | 998 | 1,366 | |||||
Debt, current portion | 7,082 | 3,325 | |||||
Total current liabilities | 54,102 | 45,826 | |||||
Capital lease obligation, net of current portion | 988 | 1,244 | |||||
Long-term debt, net of current portion | 60,322 | 61,806 | |||||
Related party debt | 39,528 | 39,033 | |||||
Deferred rent, net of current portion | 8,129 | 8,508 | |||||
Deferred revenue, net of current portion | 5,000 | 4,255 | |||||
Other liabilities | 14,262 | 15,933 | |||||
Total liabilities | 182,331 | 176,605 | |||||
Commitments and contingencies (Note 5) | |||||||
Stockholders’ equity: | |||||||
Preferred stock - $0.0001 par value, 5,000,000 shares authorized, none issued and outstanding | — | — | |||||
Common stock - $0.0001 par value, 100,000,000 shares authorized as of March 31, 2013 and December 31, 2012; 75,410,031 and 68,709,660 shares issued and outstanding as of March 31, 2013 and December 31, 2012, respectively | 8 | 7 | |||||
Additional paid-in capital | 690,385 | 666,233 | |||||
Accumulated other comprehensive loss | (12,088 | ) | (12,807 | ) | |||
Accumulated deficit | (618,941 | ) | (586,327 | ) | |||
Total Amyris, Inc. stockholders’ equity | 59,364 | 67,106 | |||||
Noncontrolling interest | (587 | ) | (877 | ) | |||
Total stockholders' equity | 58,777 | 66,229 | |||||
Total liabilities and stockholders' equity | $ | 241,108 | $ | 242,834 |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
Revenues | |||||||
Product sales | $ | 2,983 | $ | 26,307 | |||
Grants and collaborations revenue | 4,886 | 3,162 | |||||
Total revenues | 7,869 | 29,469 | |||||
Cost and operating expenses | |||||||
Cost of products sold | 8,960 | 43,811 | |||||
Loss on purchase commitments and write off of production assets | — | 36,652 | |||||
Research and development | 15,754 | 21,344 | |||||
Sales, general and administrative | 14,827 | 21,715 | |||||
Total cost and operating expenses | 39,541 | 123,522 | |||||
Loss from operations | (31,672 | ) | (94,053 | ) | |||
Other income (expense): | |||||||
Interest income | 36 | 606 | |||||
Interest expense | (1,562 | ) | (1,054 | ) | |||
Other income (expense), net | 1,119 | (151 | ) | ||||
Total other expense | (407 | ) | (599 | ) | |||
Loss before income taxes | (32,079 | ) | (94,652 | ) | |||
Provision for income taxes | (236 | ) | (244 | ) | |||
Net loss | $ | (32,315 | ) | $ | (94,896 | ) | |
Net loss attributable to noncontrolling interest | (299 | ) | 348 | ||||
Net loss attributable to Amyris, Inc. common stockholders | $ | (32,614 | ) | $ | (94,548 | ) | |
Net loss per share attributable to common stockholders, basic and diluted | $ | (0.44 | ) | $ | (1.88 | ) | |
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock, basic and diluted | 73,306,860 | 50,214,192 |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
Comprehensive loss: | |||||||
Net loss | $ | (32,315 | ) | $ | (94,896 | ) | |
Foreign currency translation adjustment, net of tax | 710 | 1,471 | |||||
Total comprehensive loss | (31,605 | ) | (93,425 | ) | |||
Loss attributable to noncontrolling interest | (299 | ) | 348 | ||||
Foreign currency translation adjustment attributable to noncontrolling interest | 9 | (87 | ) | ||||
Comprehensive loss attributable to Amyris, Inc. | $ | (31,895 | ) | $ | (93,164 | ) |
Common Stock | |||||||||||||||||||||||||||
(In Thousands, Except Share and Per Share Amounts) | Shares | Amount | Additional Paid-in Capital | Accumulated Deficit | Accumulated Other Comprehensive Income (Loss) | Noncontrolling Interest | Total Equity (Deficit) | ||||||||||||||||||||
December 31, 2012 | 68,709,660 | $ | 7 | $ | 666,233 | $ | (586,327 | ) | $ | (12,807 | ) | $ | (877 | ) | $ | 66,229 | |||||||||||
Issuance of common stock upon exercise of stock options, net of restricted stock | 76,898 | — | 40 | — | — | — | 40 | ||||||||||||||||||||
Issuance of common stock in a private placement, net of issuance cost of $65 | 6,567,299 | 1 | 19,934 | 19,935 | |||||||||||||||||||||||
Shares issued from restricted stock unit settlement | 56,174 | — | (15 | ) | — | — | — | (15 | ) | ||||||||||||||||||
Stock-based compensation | — | — | 4,193 | — | — | — | 4,193 | ||||||||||||||||||||
Foreign currency translation adjustment, net of tax | — | — | — | — | 719 | (9 | ) | 710 | |||||||||||||||||||
Net loss | — | — | — | (32,614 | ) | — | 299 | (32,315 | ) | ||||||||||||||||||
March 31, 2013 | 75,410,031 | $ | 8 | $ | 690,385 | $ | (618,941 | ) | $ | (12,088 | ) | $ | (587 | ) | $ | 58,777 | |||||||||||
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
Operating activities | |||||||
Net loss | $ | (32,315 | ) | $ | (94,896 | ) | |
Adjustments to reconcile net loss to net cash used in operating activities: | |||||||
Depreciation and amortization | 4,390 | 3,687 | |||||
Loss on disposal of property, plant and equipment | 70 | 2 | |||||
Stock-based compensation | 4,193 | 6,521 | |||||
Amortization of debt discount | 495 | — | |||||
Loss on purchase commitments and write-off of production assets | — | 36,652 | |||||
Change in fair value of derivative instruments | (1,006 | ) | — | ||||
Other noncash expenses | — | 113 | |||||
Changes in assets and liabilities: | |||||||
Accounts receivable | (3,715 | ) | 2,227 | ||||
Inventories, net | (426 | ) | (65 | ) | |||
Prepaid expenses and other assets | (410 | ) | (691 | ) | |||
Accounts payable | (1,626 | ) | (2,417 | ) | |||
Accrued and other long-term liabilities and restructuring | (3,448 | ) | (12,957 | ) | |||
Deferred revenue | 9,845 | 262 | |||||
Deferred rent | (337 | ) | (294 | ) | |||
Net cash used in operating activities | (24,290 | ) | (61,856 | ) | |||
Investing activities | |||||||
Purchase of short-term investments | (1,507 | ) | (8,238 | ) | |||
Maturities of short-term investments | — | — | |||||
Sales of short-term investments | — | 16,449 | |||||
Change in restricted cash | (1 | ) | — | ||||
Purchase of property, plant and equipment, net of disposals | (2,118 | ) | (20,928 | ) | |||
Deposits on property, plant and equipment | — | (849 | ) | ||||
Net cash used in investing activities | (3,626 | ) | (13,566 | ) | |||
Financing activities | |||||||
Proceeds from issuance of common stock, net of repurchases | 25 | 93 | |||||
Proceeds from issuance of common stock in private placements, net of issuance costs | 19,935 | 58,606 | |||||
Principal payments on capital leases | (624 | ) | (1,091 | ) | |||
Proceeds from debt issued | 2,517 | 25,004 | |||||
Principal payments on debt | (992 | ) | (705 | ) | |||
Net cash provided by financing activities | 20,861 | 81,907 | |||||
Effect of exchange rate changes on cash and cash equivalents | (287 | ) | 1,229 | ||||
Net increase (decrease) in cash and cash equivalents | (7,342 | ) | 7,714 | ||||
Cash and cash equivalents at beginning of period | 30,592 | 95,703 | |||||
Cash and cash equivalents at end of period | $ | 23,250 | $ | 103,417 |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
Supplemental disclosures of cash flow information: | |||||||
Cash paid for interest | $ | 723 | $ | 755 | |||
Cash paid for income taxes, net of refunds | $ | — | $ | — | |||
Supplemental disclosures of noncash investing and financing activities: | |||||||
Acquisitions of property, plant and equipment under accounts payable, accrued liabilities and notes payable | $ | (51 | ) | $ | (321 | ) | |
Financing of insurance premium under notes payable | $ | 215 | $ | — | |||
Accrued offering cost of common stock in private placement | $ | 65 | $ | 220 | |||
Accrued deferred offering costs | $ | — | $ | 99 | |||
Transfer of long term deposits to property, plant and equipment | $ | — | $ | 11,723 |
• | Effect significant headcount reductions in the U.S. and in Brazil, particularly with respect to both general and administrative employees and other employees not connected to critical or contracted activities. |
• | Shift its focus to existing products and customers with significantly reduced investment in new product and commercial development efforts. |
• | Reduce its expenditures for third party contractors, including consultants, professional advisors and other vendors. |
• | Suspend operations at its pilot plants and demonstration facilities. |
• | Reduce or delay uncommitted capital expenditures, including non-essential lab equipment and information technology projects. |
• | Achieve planned production levels; |
• | Develop and commercialize products within planned timelines or at planned scales; and |
• | Continue other core activities. |
Level 1 | Level 2 | Level 3 | Balance as of March 31, 2013 | ||||||||||||
Financial Assets | |||||||||||||||
Money market funds | $ | 182 | $ | — | $ | — | $ | 182 | |||||||
Certificates of deposit | 1,565 | — | — | 1,565 | |||||||||||
Total financial assets | $ | 1,747 | $ | — | $ | — | $ | 1,747 | |||||||
Financial Liabilities | |||||||||||||||
Notes payable | $ | — | $ | 1,452 | $ | — | $ | 1,452 | |||||||
Loans payable | — | 23,069 | — | 23,069 | |||||||||||
Credit facilities | — | 10,906 | — | 10,906 | |||||||||||
Convertible notes | — | — | 62,401 | 62,401 | |||||||||||
Compound embedded derivative liability | — | — | 6,842 | 6,842 | |||||||||||
Currency interest rate swap derivative liability | — | 1,432 | — | 1,432 | |||||||||||
Total financial liabilities | $ | — | $ | 36,859 | $ | 69,243 | $ | 106,102 |
Compound Embedded Derivative Liability | |||
Balance at December 31, 2012 | $ | 7,894 | |
Total (gain) losses included in other income (expense), net | (1,052 | ) | |
Balance at March 31, 2013 | $ | 6,842 |
Level 1 | Level 2 | Level 3 | Balance as of December 31, 2012 | ||||||||||||
Financial Assets | |||||||||||||||
Money market funds | $ | 15,847 | $ | — | $ | — | $ | 15,847 | |||||||
Certificates of deposit | 757 | — | — | 757 | |||||||||||
Total financial assets | $ | 16,604 | $ | — | $ | — | $ | 16,604 | |||||||
Financial Liabilities | |||||||||||||||
Notes payable | $ | — | $ | 1,676 | $ | — | $ | 1,676 | |||||||
Loans payable | — | 20,707 | — | 20,707 | |||||||||||
Credit facilities | — | 11,503 | — | 11,503 | |||||||||||
Convertible notes | — | — | 62,522 | 62,522 | |||||||||||
Compound embedded derivative liability | — | — | 7,894 | 7,894 | |||||||||||
Currency interest rate swap derivative liability | — | 1,367 | — | 1,367 | |||||||||||
Total financial liabilities | $ | — | $ | 35,253 | $ | 70,416 | $ | 105,669 |
Asset/Liability as of | ||||||||||||||
March 31, 2013 | December 31, 2012 | |||||||||||||
Type of Derivative Contract | Quantity of Contracts | Fair Value | Quantity of Contracts | Fair Value | ||||||||||
Currency interest rate swap, included as net liability in other long term liability | 1 | $ | 1,432 | 1 | $ | 1,367 |
Income Statement Classification | Three Months Ended March 31, | ||||||||
Type of Derivative Contract | 2013 | 2012 | |||||||
Gain (Loss) Recognized | |||||||||
Regulated fixed price futures contracts | Cost of products sold | $ | — | $ | (720 | ) | |||
Currency interest rate swap | Other income (expense), net | $ | 65 | $ | — |
March 31, | December 31, | ||||||
2013 | 2012 | ||||||
Raw materials | $ | 1,435 | $ | 1,574 | |||
Work-in-process | 2,907 | 1,771 | |||||
Finished goods | 2,185 | 2,689 | |||||
Inventories, net | $ | 6,527 | $ | 6,034 |
March 31, | December 31, | ||||||||
Useful Life | 2013 | 2012 | |||||||
Leasehold improvements | Remaining lease term | $ | 39,330 | $ | 39,290 | ||||
Machinery and equipment | 7 - 15 Years | 107,436 | 105,162 | ||||||
Computers and software | 3 - 5 Years | 8,480 | 8,232 | ||||||
Furniture and office equipment | 5 years | 2,525 | 2,467 | ||||||
Buildings | 15 Years | 6,470 | 5,888 | ||||||
Vehicles | 5 years | 543 | 575 | ||||||
Construction in progress | 45,807 | 45,372 | |||||||
$ | 210,591 | 206,986 | |||||||
Less: accumulated depreciation and amortization | (48,338 | ) | (43,865 | ) | |||||
Property, plant and equipment, net | $ | 162,253 | $ | 163,121 |
March 31, | December 31, | ||||||
2013 | 2012 | ||||||
Professional services | $ | 1,580 | $ | 824 | |||
Accrued vacation | 2,668 | 2,673 | |||||
Payroll and related expenses | 3,680 | 5,809 | |||||
Tax-related liabilities | 929 | 851 | |||||
Deferred rent, current portion | 1,491 | 1,448 | |||||
Contractual obligations to contract manufacturers, current | 8,443 | 9,952 | |||||
Customer advances | 970 | 970 | |||||
Other | 1,667 | 1,883 | |||||
Total accrued and other current liabilities | $ | 21,428 | $ | 24,410 |
March 31, | December 31, | ||||||
2013 | 2012 | ||||||
Contractual obligations to contract manufacturers, non-current | 3,000 | 4,000 | |||||
Fair market value of swap obligations | 1,432 | 1,367 | |||||
Fair value of compound embedded derivative liability(1) | 6,842 | 7,894 | |||||
Other | 2,988 | 2,672 | |||||
Total other liabilities | $ | 14,262 | $ | 15,933 |
(1) | The compound embedded derivative liability represents the fair value of the equity conversion feature and a "make-whole" feature of the outstanding senior unsecured convertible promissory notes issued to Total. |
Years ending December 31: | Capital Leases | Operating Leases | Total Lease Obligations | ||||||||
2013 (Nine Months) | $ | 823 | $ | 5,229 | $ | 6,052 | |||||
2014 | 1,007 | 6,831 | 7,838 | ||||||||
2015 | 289 | 6,932 | 7,221 | ||||||||
2016 | — | 6,915 | 6,915 | ||||||||
2017 | — | 6,767 | 6,767 | ||||||||
Thereafter | — | 4,417 | 4,417 | ||||||||
Total future minimum lease payments | 2,119 | $ | 37,091 | 39,210 | |||||||
Less: amount representing interest | (133 | ) | |||||||||
Present value of minimum lease payments | 1,986 | ||||||||||
Less: current portion | (998 | ) | |||||||||
Long-term portion | $ | 988 |
March 31, | December 31, | ||||||
2013 | 2012 | ||||||
Credit facilities | $ | 11,994 | $ | 12,409 | |||
Notes payable | 1,452 | 1,572 | |||||
Convertible notes | 25,000 | 25,000 | |||||
Related party convertible notes | 39,528 | 39,033 | |||||
Loans payable | 28,958 | 26,150 | |||||
Total debt | 106,932 | 104,164 | |||||
Less: current portion | (7,082 | ) | (3,325 | ) | |||
Long-term debt | $ | 99,850 | $ | 100,839 |
• | The Company would share with FINEP the costs associated with the FINEP Project. At a minimum, the Company would contribute from its own funds approximately R$14.5 million (approximately US$7.1 million based on the exchange rate as of December 31, 2012) of which R$11.1 million was to be contributed prior to the release of the second disbursement. As of December 31, 2012, all four disbursements were completed and for its part, the Company has fulfilled all of its cost sharing obligations; |
• | After the release of the first disbursement, prior to any subsequent drawdown from the FINEP Credit Facility, the Company was required to provide bank letters of guarantee of up to R$3.3 million in aggregate (approximately US$1.6 million based on the exchange rate as of December 31, 2012). On December 17, 2012 and prior to release of the second disbursement on December 26, 2012, the Company obtained the required bank letter of guarantees from Banco ABC Brasil, S.A. |
• | Amounts released from the FINEP Credit Facility must be completely used by the Company towards the FINEP Project within 30 months after the contract execution. |
• | As part of an initial closing under the purchase agreement (which initial closing was completed in two installments), (i) on July 30, 2012, the Company sold a 1.5% Senior Unsecured Convertible Note Due 2017 to Total in the face 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 note (in the same form) for $15.0 million in new funds from Total. |
• | The purchase agreement provides that additional notes may be sold in subsequent closings in July 2013 (for cash proceeds to the Company of $30.0 million) and July 2014 (for cash proceeds to the Company of $21.7 million, which would be settled in an initial installment of $10.85 million payable at such closing and a second installment of $10.85 million payable in January 2015). |
• | Reduce the conversion price for the senior unsecured convertible promissory notes to be issued in connection with such funding 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 letter agreement, plus $0.01, and (ii) $3.08 per share, provided that the conversion price will not be reduced by more than the maximum possible amount permitted under the NASDAQ rules 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. |
Years ending December 31: | Related Party Convertible Debt | Convertible Debt | Notes Payable | Loans Payable | Credit Facility | ||||||||||||||
2013 (Nine Months) | $ | — | $ | 573 | $ | 1,464 | $ | 1,803 | $ | 2,331 | |||||||||
2014 | — | 760 | — | 5,480 | 2,969 | ||||||||||||||
2015 | — | 765 | — | 4,476 | 2,815 | ||||||||||||||
2016 | — | 760 | — | 4,304 | 2,662 | ||||||||||||||
2017 | 51,627 | 25,125 | — | 4,126 | 2,507 | ||||||||||||||
Thereafter | — | — | — | 16,668 | 641 | ||||||||||||||
Total future minimum payments | 51,627 | 27,983 | 1,464 | 36,857 | 13,925 | ||||||||||||||
Less: amount representing interest | (12,099 | ) | (2,983 | ) | (12 | ) | (7,899 | ) | (1,931 | ) | |||||||||
Present value of minimum debt payments | 39,528 | 25,000 | 1,452 | 28,958 | 11,994 | ||||||||||||||
Less: current portion | — | — | (1,452 | ) | (3,136 | ) | (2,494 | ) | |||||||||||
Noncurrent portion of debt | $ | 39,528 | $ | 25,000 | $ | — | $ | 25,822 | $ | 9,500 |
March 31, | December 31, | ||||||
(In thousands) | 2013 | 2012 | |||||
Assets | $ | 30,103 | $ | 29,564 | |||
Liabilities | $ | 505 | $ | 355 |
2013 | 2012 | ||||||
Balance at January 1 | $ | (877 | ) | $ | (240 | ) | |
Foreign currency translation adjustment | (9 | ) | 87 | ||||
Gain (loss) attributable to noncontrolling interest | 299 | (348 | ) | ||||
Balance at March 31 | $ | (587 | ) | $ | (501 | ) |
March 31, 2013 | December 31, 2012 | ||||||||||||||||||||
Useful Life in Years | Gross Carrying Amount | Accumulated Amortization | Net Carrying Value | Gross Carrying Amount | Accumulated Amortization | 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 | (740 | ) | 32 | ||||||||||||
Goodwill | Indefinite | 560 | — | 560 | 560 | 560 | |||||||||||||||
$ | 9,892 | $ | (772 | ) | $ | 9,120 | $ | 9,892 | $ | (740 | ) | $ | 9,152 |
December 31, 2012 | March 31, 2013 | |||||||||||||||||||
Net Carrying Value | Additions | Adjustments | Amortization | Net Carrying Value | ||||||||||||||||
In-process research and development | $ | 8,560 | $ | — | $ | — | $ | — | $ | 8,560 | ||||||||||
Acquired licenses and permits | 32 | — | — | (32 | ) | — | ||||||||||||||
Goodwill | 560 | — | — | — | 560 | |||||||||||||||
$ | 9,152 | $ | — | $ | — | $ | (32 | ) | $ | 9,120 |
Number Outstanding | Weighted - Average Exercise Price | Weighted - Average Remaining Contractual Life (Years) | Aggregate Intrinsic Value | |||||||||||
(in thousands) | ||||||||||||||
Outstanding - December 31, 2012 | 8,946,592 | $ | 9.07 | 7.5 | $ | 954 | ||||||||
Options granted | 235,355 | $ | 2.92 | |||||||||||
Options exercised | (76,898 | ) | $ | 0.52 | ||||||||||
Options cancelled | (580,083 | ) | $ | 9.75 | ||||||||||
Outstanding - March 31, 2013 | 8,524,966 | $ | 8.93 | 6.88 | $ | 710 | ||||||||
Vested and expected to vest after March 31, 2013 | 7,998,920 | $ | 9.04 | 6.76 | $ | 662 | ||||||||
Exercisable at March 31, 2013 | 4,290,319 | $ | 10.08 | 5.24 | $ | 370 |
RSUs | Weighted Average Grant-Date Fair Value | Weighted Average Remaining Contractual Life (Years) | ||||||||
Outstanding - December 31, 2012 | 2,550,799 | $ | 7.92 | 1.3 | ||||||
Awarded | 130,000 | $ | 2.89 | — | ||||||
Vested | (61,000 | ) | $ | 30.30 | — | |||||
Forfeited | (126,666 | ) | $ | 4.70 | — | |||||
Outstanding - March 31, 2013 | 2,493,133 | $ | 4.34 | 1.22 | ||||||
Expected to vest after March 31, 2013 | 2,244,997 | $ | 4.34 | 0.97 |
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 | ||||||||||
$0.10—$2.76 | 1,007,735 | 7.92 | $ | 2.43 | 209,005 | $ | 1.31 | ||||||||
$2.89—$3.23 | 882,190 | 9.36 | $ | 3.04 | 18,402 | $ | 3.12 | ||||||||
$3.55—$3.83 | 57,655 | 9.34 | $ | 3.57 | 73 | $ | 3.83 | ||||||||
$3.86—$3.86 | 1,289,906 | 8.36 | $ | 3.86 | 369,454 | $ | 3.86 | ||||||||
$3.93—$3.93 | 1,187,954 | 3.42 | $ | 3.93 | 1,169,546 | $ | 3.93 | ||||||||
$4.06—$9.32 | 1,300,531 | 6.36 | $ | 6.34 | 854,701 | $ | 6.35 | ||||||||
$10.44—$14.28 | 286,773 | 6.06 | $ | 12.75 | 210,061 | $ | 13.41 | ||||||||
$16.00—$16.00 | 1,048,551 | 6.85 | $ | 16.00 | 572,391 | $ | 16.00 | ||||||||
$16.50—$20.41 | 858,276 | 6.20 | $ | 18.93 | 545,087 | $ | 18.97 | ||||||||
$24.20—$30.17 | 605,395 | 7.49 | $ | 26.82 | 341,599 | $ | 26.78 | ||||||||
$0.10—$30.17 | 8,524,966 | 6.88 | $ | 8.93 | 4,290,319 | $ | 10.08 |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
Research and development | $ | 1,247 | $ | 1,513 | |||
Sales, general and administrative | 2,946 | 5,008 | |||||
Total stock-based compensation expense | $ | 4,193 | $ | 6,521 |
For Three Months Ended March 31, | |||||
2013 | 2012 | ||||
Expected dividend yield | — | % | — | % | |
Risk-free interest rate | 1.2 | % | 1.3 | % | |
Expected term (in years) | 6.1 | 5.9 | |||
Expected volatility | 84 | % | 75 | % |
For Three Months Ended March 31, | |||||
2013 | 2012 | ||||
Expected dividend yield | — | % | — | % | |
Risk-free interest rate | 1.3 | % | 1.8 | % | |
Expected term (in years) | 6.7 | 7.3 | |||
Expected volatility | 84 | % | 75 | % |
• | Reduce the conversion price for the senior unsecured convertible promissory notes to be issued in connection with such funding 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 letter agreement, plus $0.01, and (ii) $3.08 per share, provided that the conversion price will not be reduced by more than the maximum possible amount permitted under the NASDAQ rules 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. |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
United States | $ | 5,564 | $ | 26,306 | |||
Brazil | 818 | 875 | |||||
Europe | 225 | 1,938 | |||||
Asia | 1,262 | 350 | |||||
Total | $ | 7,869 | $ | 29,469 |
March 31, | December 31, | ||||||
2013 | 2012 | ||||||
United States | $ | 67,832 | $ | 70,273 | |||
Brazil | 92,612 | 90,982 | |||||
Europe | 1,809 | 1,866 | |||||
Total | $ | 162,253 | $ | 163,121 |
March 31, 2013 | December 31, 2012 | ||||||
Foreign currency translation adjustment, net of tax | $ | (12,088 | ) | $ | (12,807 | ) | |
Total accumulated other comprehensive loss | $ | (12,088 | ) | $ | (12,807 | ) |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
Numerator: | |||||||
Net loss attributable to Amyris, Inc. common stockholders | $ | (32,614 | ) | $ | (94,548 | ) | |
Denominator: | |||||||
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock, basic and diluted | 73,306,860 | 50,214,192 | |||||
Net loss per share attributable to common stockholders, basic and diluted | $ | (0.44 | ) | $ | (1.88 | ) |
Three Months Ended March 31, | |||||
2013 | 2012 | ||||
Period-end stock options to purchase common stock | 8,524,966 | 7,928,567 | |||
Convertible promissory notes | 10,370,391 | 3,536,968 | |||
Period-end common stock subject to repurchase | 1 | 5,564 | |||
Period-end common stock warrants | 21,087 | 23,339 | |||
Period-end restricted stock units | 2,493,133 | 219,183 | |||
Total | 21,409,578 | 11,713,621 |
• | Reduce the conversion price for the senior unsecured convertible promissory notes to be issued in connection with such funding from $7.0682 per share to a price per share equal to the greater of (i) the consolidated closing bid price of our common stock on the date of the letter agreement, plus $0.01, and (ii) $3.08 per share; and |
• | Grant Total a senior security interest in our intellectual property, subject to certain exclusions and subject to release by Total when we and Total enter into final documentation regarding the establishment of the Fuels JV. |
Three Months Ended March 31, | Year-to Year Change | Percentage Change | |||||||||||||
2013 | 2012 | ||||||||||||||
(Dollars in thousands) | |||||||||||||||
Revenues | |||||||||||||||
Ethanol and ethanol-blended gasoline | $ | — | $ | 23,869 | $ | (23,869 | ) | (100 | )% | ||||||
Renewable products | 2,983 | 2,438 | 545 | 22 | % | ||||||||||
Collaborations revenue | 3,054 | 891 | 2,163 | 243 | % | ||||||||||
Grants | 1,832 | 2,271 | (439 | ) | (19 | )% | |||||||||
Total revenues | $ | 7,869 | $ | 29,469 | $ | (21,600 | ) | (73 | )% |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
(In Thousands, Except share and Per Share Amounts) | |||||||
Consolidated Statement of Operations Data: | |||||||
Revenues | |||||||
Product sales | $ | 2,983 | $ | 26,307 | |||
Grants and collaborations revenue | 4,886 | 3,162 | |||||
Total revenues | 7,869 | 29,469 | |||||
Cost and operating expenses | |||||||
Cost of products sold | 8,960 | 43,811 | |||||
Loss on purchase commitments and write off of production assets | — | 36,652 | |||||
Research and development(1) | 15,754 | 21,344 | |||||
Sales, general and administrative(1) | 14,827 | 21,715 | |||||
Total cost and operating expenses | 39,541 | 123,522 | |||||
Loss from operations | (31,672 | ) | (94,053 | ) | |||
Other income (expense): | |||||||
Interest income | 36 | 606 | |||||
Interest expense | (1,562 | ) | (1,054 | ) | |||
Other income (expense), net | 1,119 | (151 | ) | ||||
Total other (expense) | (407 | ) | (599 | ) | |||
Loss before income taxes | (32,079 | ) | (94,652 | ) | |||
Provision for income taxes | (236 | ) | (244 | ) | |||
Net loss | $ | (32,315 | ) | $ | (94,896 | ) | |
Net loss attributable to noncontrolling interest | (299 | ) | 348 | ||||
Net loss attributable to Amyris, Inc. common stockholders | $ | (32,614 | ) | $ | (94,548 | ) | |
Net loss per share attributable to common stockholders, basic and diluted | $ | (0.44 | ) | $ | (1.88 | ) | |
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock, basic and diluted | 73,306,860 | 50,214,192 |
Three Months Ended March 31, | Year-to Year Change | Percentage Change | |||||||||||||
2013 | 2012 | ||||||||||||||
(Dollars in thousands) | |||||||||||||||
Revenues | |||||||||||||||
Ethanol and ethanol-blended gasoline | $ | — | $ | 23,869 | $ | (23,869 | ) | (100 | )% | ||||||
Renewable products | 2,983 | 2,438 | 545 | 22 | % | ||||||||||
Product sales | 2,983 | 26,307 | (23,324 | ) | (89 | )% | |||||||||
Grants and collaborations revenue | 4,886 | 3,162 | 1,724 | 55 | % | ||||||||||
Total revenues | $ | 7,869 | $ | 29,469 | $ | (21,600 | ) | (73 | )% |
Three Months Ended March 31, | Year-to Year Change | Percentage Change | |||||||||||||
2013 | 2012 | ||||||||||||||
(Dollars in thousands) | |||||||||||||||
Cost of products sold | $ | 8,960 | $ | 43,811 | $ | (34,851 | ) | (80 | )% | ||||||
Loss on purchase commitments and write-off of production assets | — | 36,652 | (36,652 | ) | nm | ||||||||||
Research and development | 15,754 | 21,344 | (5,590 | ) | (26 | )% | |||||||||
Sales, general and administrative | 14,827 | 21,715 | (6,888 | ) | (32 | )% | |||||||||
Total cost and operating expenses | $ | 39,541 | $ | 123,522 | $ | (83,981 | ) | (68 | )% | ||||||
Three Months Ended March 31, | Year-to Year Change | Percentage Change | |||||||||||||
2013 | 2012 | ||||||||||||||
(Dollars in thousands) | |||||||||||||||
Other income (expense): | |||||||||||||||
Interest income | $ | 36 | $ | 606 | $ | (570 | ) | (94 | )% | ||||||
Interest expense | (1,562 | ) | (1,054 | ) | (508 | ) | 48 | % | |||||||
Other income (expense), net | 1,119 | (151 | ) | 1,270 | (841 | )% | |||||||||
Total other expense | $ | (407 | ) | $ | (599 | ) | $ | 192 | (32 | )% |
March 31, 2013 | December 31, 2012 | |||||||
(Dollars in thousands) | ||||||||
Working capital | $ | (6,101 | ) | $ | 3,668 | |||
Cash and cash equivalents and short-term investments | $ | 24,855 | $ | 30,689 | ||||
Debt and capital lease obligations | $ | 108,918 | $ | 106,774 | ||||
Accumulated deficit | $ | (618,941 | ) | $ | (586,327 | ) |
Three Months Ended March 31, | |||||||
2013 | 2012 | ||||||
(Dollars in thousands) | |||||||
Net cash used in operating activities | $ | (24,290 | ) | $ | (61,856 | ) | |
Net cash used in investing activities | (3,626 | ) | (13,566 | ) | |||
Net cash provided by financing activities | 20,861 | 81,907 |
• | Effect significant headcount reductions in the U.S. and in Brazil, particularly with respect to both general and administrative employees and other employees not connected to critical or contracted activities. |
• | Shift our focus to existing products and customers with significantly reduced investment in new product and commercial development efforts. |
• | Reduce our expenditures for third party contractors, including consultants, professional advisors and other vendors. |
• | Suspend operations at our pilot plants and demonstration facilities. |
• | Reduce or delay uncommitted capital expenditures, including non-essential lab equipment and information technology projects. |
• | Achieve planned production levels; |
• | Develop and commercialize products within planned timelines or at planned scales; and |
• | Continue other core activities. |
• | We are required to share with FINEP the costs associated with the FINEP Project. At a minimum, we are required to contribute approximately R$14.5 million (approximately US$7.1 million based on the exchange rate as of December 31, 2012) of which R$11.1 million was contributed prior to the release of the second disbursement. As of December 31, 2012, we have fulfilled all of our cost sharing obligations; |
• | After the release of the first disbursement, prior to any subsequent drawdown from the FINEP Credit Facility, we were required to provide bank letters of guarantee of up to R$3.3 million in aggregate (approximately US$1.6 million based on the exchange rate as of December 31, 2012) before receiving the second installment in December 2012. We obtained the bank letters of guarantee from Banco ABC Brasil, S.A.; |
• | Amounts released from the FINEP Credit Facility must be completely used by us towards the FINEP Project within 30 months after the contract execution. |
Total | 2013 (Nine Months) | 2014 | 2015 | 2016 | 2017 | Thereafter | ||||||||||||||||||||||
Principal payments on long-term debt | $ | 115,704 | $ | 3,901 | $ | 6,222 | $ | 5,622 | $ | 5,622 | $ | 78,922 | $ | 15,415 | ||||||||||||||
Interest payments on long-term debt, fixed rate(1) | 16,152 | 2,270 | 2,987 | 2,434 | 2,104 | 4,463 | 1,894 | |||||||||||||||||||||
Operating leases | 37,091 | 5,229 | 6,831 | 6,932 | 6,915 | 6,767 | 4,417 | |||||||||||||||||||||
Principal payments on capital leases | 1,986 | 742 | 956 | 288 | — | — | — | |||||||||||||||||||||
Interest payments on capital leases | 133 | 81 | 51 | 1 | — | — | — | |||||||||||||||||||||
Terminal storage costs | 251 | 141 | 76 | 34 | — | — | — | |||||||||||||||||||||
Purchase obligations(2) | 47,658 | 10,403 | 18,108 | 10,249 | 8,629 | 221 | 48 | |||||||||||||||||||||
Total | $ | 218,975 | $ | 22,767 | $ | 35,231 | $ | 25,560 | $ | 23,270 | $ | 90,373 | $ | 21,774 |
(1) | The fixed interest rates are more fully described in Note 6 of our consolidated financial statements. |
(2) | Purchase obligations include non-cancelable contractual obligations and construction commitments of $47.3 million, of which $11.2 million have been accrued as loss on purchase commitments. |
• | Effect significant headcount reductions in the U.S. and in Brazil, particularly with respect to both general and administrative employees and other employees not connected to critical or contracted activities. |
• | Shift our focus to existing products and customers with significantly reduced investment in new product and commercial development efforts. |
• | Reduce our expenditures for third party contractors, including consultants, professional advisors and other vendors. |
• | Suspend operations at our pilot plants and demonstration facilities. |
• | Reduce or delay uncommitted capital expenditures, including non-essential lab equipment and information technology projects. |
• | Achieve planned production levels; |
• | Develop and commercialize products within planned timelines or at planned scales; and |
• | Continue other core activities. |
• | product price; |
• | product performance and other measures of quality; |
• | infrastructure compatibility of products; |
• | sustainability; and |
• | dependability of supply. |
• | 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; |
• | changing interest rates; |
• | tax burden and policies; |
• | effects of changes in currency exchange rates; |
• | exchange controls and restrictions on remittances abroad; |
• | inflation; |
• | land reform movements; |
• | 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 U.S.; |
• | tariffs, trade protection measures and other regulatory requirements; |
• | successful compliance with U.S. and foreign laws that regulate the conduct of business abroad; |
• | 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. |
• | 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; |
• | 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; |
• | impairment of assets based on shifting business priorities and working capital limitations; |
• | disruptions in the production process at any manufacturing facility; |
• | losses associated with producing our products as we ramp to commercial production levels; |
• | failure to recover value added tax (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; |
• | fluctuations in foreign currency exchange rates; |
• | gains or losses associated with our hedging activities; |
• | 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 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 and other natural disasters; |
• | our ability to integrate businesses that we may acquire; |
• | 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. |
• | manage multiple research and development programs; |
• | operate multiple manufacturing facilities around the world; |
• | develop and improve our operational, financial and management controls; |
• | 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. |
• | 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 |
• | the patents of others will have an adverse effect on our business. |
• | 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. |
• | 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; |
• | 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 U.S., 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. |
• | our executive officers and directors and their affiliates (including Total) together held approximately 37.7% of our outstanding common stock; |
• | Total held approximately 18.0% of our outstanding common stock; and |
• | our next two largest holders of outstanding common stock after Total (Maxwell Mauritius Pte. Ltd. and Biolding Investment SA, each of whom has a designee on our Board of Directors) together held approximately 23.6% of our outstanding common stock. |
• | staggered board of directors; |
• | authorizing the board to issue, without stockholder approval, preferred stock with rights senior to those of our common stock; |
• | authorizing the board 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. |
AMYRIS, INC. | |||
Dated: | May 8, 2013 | By: | /S/ JOHN G. MELO |
John G. Melo President and Chief Executive Officer (Principal Executive Officer) | |||
Dated: | May 8, 2013 | By: | /S/ STEVEN R. MILLS |
STEVEN R. MILLS Chief Financial Officer (Principal Financial and Accounting Officer) |
Exhibit Index | Previously Filed | Filed Herewith | ||||||||||
Description | Form | File No. | Filing Date | Exhibit | ||||||||
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 | Securities Purchase Agreement, dated March 27, 2013, between registrant and Biolding SA | X | ||||||||||
4.02 | Amendment No. 3 to Amended and Restated Investors' Rights Agreement, dated March 27, 2013, among registrant and registrant's security holders named therein | X | ||||||||||
10.01 | Modification No. 9, dated January 9, 2013, to Assistance Agreement between registrant and the U.S. Department of Energy | X | ||||||||||
10.02a | Master Collaboration Agreement, dated March 13, 2013, between registrant and Firmenich SA | X | ||||||||||
10.03 | Letter agreement, dated March 24, 2013, between registrant and Total Gas & Power USA, SAS | X | ||||||||||
10.04 | Amended and Restated Operating Agreement, dated March 26, 2013, among registrant, Cosan US, Inc. and Novvi LLC. | X | ||||||||||
10.05 | Termination of the Joint Venture Implementation Agreement, dated March 26, 2013, among registrant, Amyris Brasil Ltda., Cosan Lubrificantes e Especialidades S.A. and Cosan S.A. Indústria E Comércio | X | ||||||||||
10.06 | IP License Agreement, dated as of March 26, 2013, between registrant and Novvi LLC | X | ||||||||||
10.07b | Offer letter, dated March 30, 2011, between registrant and Gary Loeb | X | ||||||||||
10.08b | Amendment to offer letter, dated May 31 2012, between registrant and Gary Loeb | X | ||||||||||
10.09b | Offer letter, dated July 29, 2010, between registrant and Mark Patel | X | ||||||||||
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 | ||||||||||
32.01c | 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 | ||||||||||
32.02c | 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 | ||||||||||
101d | The following materials from registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2013, formatted in XBRL (Extensible Business Reporting Language): (i) the Condensed Consolidated Statements of Operations; (ii) the Condensed Consolidated Balance Sheets; (iii) the Condensed Consolidated Statements of Comprehensive Loss; (iv) the Condensed Consolidated Statements of Stockholders' Equity; (v) the Condensed Consolidated Statements of Cash Flows; and (vi) Notes to Unaudited Condensed Consolidated Financial Statements | X | ||||||||||
a. | 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. |
b. | Indicates management contract or compensatory plan or arrangement. |
c. | 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. |
d. | 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 these sections. |
Purchaser | Shares Purchased | Total Purchase Price | |||
Biolding Investment SA | 1,533,742 | $ | 4,999,998.92 | ||
TOTAL | 1,533,742 | $ | 4,999,998.92 |
(a) | if to the Company, to: |
(b) | if to Investor, to: |
• | the genuineness and authenticity of all signatures on documents, the authenticity and completeness of all documents submitted to us as originals and that all documents submitted to us as copies or facsimiles are complete and accurate copies of, and fully conform to, the originals; |
• | the absence of any undisclosed termination, modification, waiver or amendment of, any document reviewed by us; |
• | that absence of any extrinsic agreements or understandings among the parties to the Transaction Documents, or among the parties to any Reviewed Contract, or among any parties or signatories to any other document reviewed by us, that could supplement, modify, alter or affect the interpretation, substance or meaning of the terms of the Transaction Documents or any of the Reviewed Contracts or any Reviewed Documents or the respective rights or obligations of the parties thereto; |
• | other than the Company with respect to the Transaction Documents: (i) each entity who executed, entered into or delivered any Transaction Document or any other document had all requisite corporate or other entity power and authority to do so, and has timely and validly taken all actions, and obtained all authorizations and approvals, necessary to validly authorize it to do so and to perform its obligations thereunder; and (ii) each party or signatory to any Transaction Document or any other document has duly executed and delivered such Transaction Document or other document and has fully performed all of such party's or signatory's obligations thereunder that are to be performed by such party or signatory at or before the Closing; |
• | each individual who executed, entered into, or delivered any Transaction Document or any other document on his or her own behalf (and not on behalf of the Company), was not at the relevant time a minor and had all legal competency and capacity necessary to lawfully and validly do so and to perform his or her obligations thereunder; |
• | each of the Transaction Documents is duly enforceable in accordance with its respective terms against, and constitutes the legal, valid and binding obligation of, each party or signatory to such Transaction Document (other than the Company); |
• | the representations and warranties of the Purchasers set forth in the Transaction Documents are accurate and complete and not misleading in any respect; |
• | there is no fact or circumstance relating to you or your business that might prevent you from enforcing any of your rights provided for in any of the Transaction Documents; and |
• | any wire transfers, drafts or checks or other consideration tendered by the Purchasers as payment for the Shares has been delivered to the Company in full as provided in the Purchase Agreement at the Closing and will be honored. |
ASSISTANCE AGREEMENT | |||||||||||||
1. Award No. DE-EE0002869 | 2. Modification No. 009 | 3. Effective Date 12/28/2009 | 4. CFDA No. 81.087 | ||||||||||
5. Awarded To AMYRIS, INC. Attn: NEIL RENNINGER 5885 HOLLIS STREET SUITE 100 EMERYVILLE CA 946082059 | 6. Sponsoring Office Energy Effcy & Renewable Energy | 7. Period of Performance 12/28/2009 through 06/30/2013 | |||||||||||
8. Type of Agreement _ Grant x Cooperative Agreement _ Other | 9. Authority 109-58, Energy Policy Act (2005) 111-5, Recovery Act (2009) | 10. Purchase Request or Funding Document No. 13EE000816 | |||||||||||
11. Remittance Address | 12. Total Amount | 13. Funds Obligated | |||||||||||
AMYRIS, INC. Attn: NEIL RENNINGER 5885 HOLLIS STREET SUITE 100 EMERYVILLE CA 946082059 | Govt. Share: $ 24,341,409.00 Cost Share: $ 10,591,590.00 Total: $ 34,932,999.00 | This action: $0.00 Total: $24,341,409.00 | |||||||||||
14. Principal Investigator Joel Cherry Phone: 510-450-0761 | 15. Program Manager Bryna E. Berendzen Phone: 720-356-1442 | 16. Administrator Golden Field Office U.S. Department of Energy Golden Field Office 1617 Cole Blvd. Golden CO 80401-3393 | |||||||||||
17. Submit Payment Requests To OR for Golden U.S. Department of Energy Oak Ridge Financial Service Center P.O. Box 4517 Oak Ridge TN 37831 | 18. Paying Office OR for Golden U.S. Department of Energy Oak Ridge Financial Service Center P.O. Box 4517 Oak Ridge TN 37831 | 19. Submit Reports To See Attachment #3 | |||||||||||
20. Accounting and Appropriation Data See Schedule | |||||||||||||
21. Research Title and/or Description of Project RECOVERY ACT: SCALE-UP & MOBILIZATION OF RENEWABLE DIESEL & CHEMICAL PRODUCTION FROM COMMON INTERMEDIATE USING US-BASED FERMENTABLE SUGAR FEEDSTOCKS | |||||||||||||
For the Recipient | For the United States of America | ||||||||||||
22. Signature of Person Authorized to Sign | 25. Signature of Grants/Agreements Officer Signature on File | ||||||||||||
23. Name and Title | 24. Date Signed | 26. Name of Officer Jon F. Olsen | 27. Date Signed 01/09/2013 |
CONTINUATION SHEET | REFERENCE NO. OF DOCUMENT BEING CONTINUED DE-EE0002869/009 | PAGE 2 OF 3 | |||
NAME OF OFFEROR OR CONTRACTOR AMYRIS, INC. | |||||
ITEM NO. (A) | SUPPLIES/SERVICES (B) | QUANTITY (C) | UNIT (D) | UNIT PRICE (E) | AMOUNT (F) |
DUNS Number: 185930182 The purpose of this modification is to approve a No-Cost Time Extension. Accordingly, the following changes are made: 1) Extend the Period of Performance end date, as noted in Block 7; 2) Revise the Special Terms and Conditions, as shown below: a. Extend the Project Period and Budget Period, as shown in Provision 4, "Award Project Period and Budget Periods;" b. Delete and replace Provision 15, "Intellectual Property Provisions and Contact Information;" c. Delete and replace Provision 18, "Notice Regarding the Purchase of American-Made Equipment and Products;" and 3) Update the Recipient Business Officer and Recipient Principal Investigator, as shown below and in Block 14. Restrictions still applicable to the award are specified in the following provisions: Rebudgeting and Recovery of Indirect Costs and Subcontract Approvals. All other terms and conditions remain unchanged. In Block 7 of the Assistance Agreement, the Period of Performance reflects the beginning of the Project Period through the end of the current Budget Period. For multiple Budget Periods, see Special Terms and Conditions, Provision 4, "Award Project Period and Budget Periods." The total amounts reflected in Blocks 12 and 13 of the Assistance Agreement do not include the Federally Funded Research and Development Center (FFRDC) funding amount of $658,591 which was funded directly. DOE Award Administrator: Brenda Dias E-mail: brenda.dias@go.doe.gov Phone: 720-356-1519 DOE Project Officer: Bryna Berendzen E-mail: bryna.berendzen@go.doe.gov Phone: 720-356-1442 Recipient Business Officer: David Gray Continued... E-mail: gray@amyris.com | |||||
JULY 2004 |
CONTINUATION SHEET | REFERENCE NO. OF DOCUMENT BEING CONTINUED DE-EE0002869/009 | PAGE 3 OF 3 | |||
NAME OF OFFEROR OR CONTRACTOR AMYRIS, INC. | |||||
ITEM NO. (A) | SUPPLIES/SERVICES (B) | QUANTITY (C) | UNIT (D) | UNIT PRICE (E) | AMOUNT (F) |
Phone: 510-450-0761 Recipient Principal Investigator: Joel Cherry E-mail: cherry@amyris.com Phone: 510-450-0761 “Electronic signature or signatures as used in this document means a method of signing an electronic message that-- (A) Identifies and authenticates a particular person as the source of the electronic message; (B) Indicates such person's approval of the information contained in the electronic message; and, (C) Submission via FedConnect constitutes electronically signed documents.” ASAP: NO: STD IMMEDIATE Extent Competed: COMPETED Davis-Bacon Act: YES | |||||
JULY 2004 |
1. | RESOLUTION OF CONFLICTING CONDITIONS 2 |
2. | AWARD AGREEMENT TERMS AND CONDITIONS 2 |
3. | ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS 2 |
4. | AWARD PROJECT PERIOD AND BUDGET PERIODS 2 |
5. | PAYMENT PROCEDURES 3 |
6. | COST SHARING 3 |
7. | REBUDGETING AND RECOVERY OF INDIRECT COSTS 4 |
8. | FINAL INCURRED COST AUDIT 5 |
9. | STATEMENT OF FEDERAL STEWARDSHIP 5 |
10. | STATEMENT OF SUBSTANTIAL INVOLVEMENT 5 |
11. | SITE VISITS 6 |
12. | REPORTING REQUIREMENTS 6 |
13. | PUBLICATIONS 7 |
14. | FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS 7 |
15. | INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION 7 |
16. | NATIONAL SECURITY: CLASSIFIABLE RESULTS ORIGINATING UNDER AN AWARD 8 |
17. | LOBBYING RESTRICTIONS 9 |
18. | NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT |
19. | PROPERTY 9 |
20. | DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS 10 |
21. | INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP 10 |
22. | INDEMNITY 10 |
23. | SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009) 11 |
24. | REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 |
25. | REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED |
26. | REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED |
27. | RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF |
28. | WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY |
29. | DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY |
30. | CONTINGENCY 34 |
31. | NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS 34 |
32. | SUBCONTRACT APPROVALS 35 |
a. | Special Terms and Conditions. |
b. | Attachments: |
c. | Applicable program regulations. |
d. | DOE Assistance Regulations, 10 CFR Part 600 at http://ecfr.gpoaccess.gov. |
e. | If the award is for research and the award is for a university or non-profit, the Research Terms & Conditions and the DOE Agency Specific Requirements at http://www.nsf.gov/bfa/dias/policy/rtc/index.jsp apply. |
f. | Application/proposal as approved by DOE. |
g. | National Policy Assurances to be incorporated as award terms in effect on date of award at http://energy.gov/management/downloads/national-policy-assurances-be-incorporated-award-terms |
Budget Period | Phase | Start Date | End Date |
1 | 1 | 12/28/2009 | 4/21/2010 |
2 | 4/22/2010 | 6/30/2013 |
a. | Method of Payment. Payment will be made by reimbursement through ACH. |
b. | Requesting Reimbursement. Requests for reimbursements must be made electronically through Department of Energy's Oak Ridge Financial Service Center (ORFSC) VIPERS. To access and use VIPERS, you must enroll at https://vipers.oro.doe.gov. Detailed instructions on how to enroll are provided on the web site. |
c. | Timing of submittals. Submittal of the SF 270 or SF 271 should coincide with your normal billing pattern, but not more frequently than every two weeks. Requests for reimbursement must be limited to the amount of disbursements made during the billing period for the Federal share of direct project costs and the proportionate share of any allowable indirect costs incurred during that billing period. |
d. | Adjusting payment requests for available cash. You must disburse any funds that are available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting additional cash payments from DOE. |
e. | Payments. The DOE approving official will approve the invoice as soon as practical, but not later than 30 days after your request is received, unless the billing is improper. Upon receipt of an invoice payment authorization from the DOE approving official, the ORFSC will disburse payment to you. You may check the status of payments at the VIPER web site. All payments are made by electronic funds transfer to the bank account identified on the ACH Vendor/Miscellaneous Payment Enrollment Form (SF 3881) that you filed. |
Budget Period 1 | Phase | DOE Cost Share, including FFRDC Costs | Recipient Cost Share $ / % | Total Estimated Costs | |
DOE $ / % | FFRDC $ / % | ||||
1 | $3,008,260/63.1% | — | $1,702,920/36.9% | $4,711,180 | |
2 | $21,333,149/69.1% | $658,591/2.1% | $8,888,670/28.8% | $30,880,410 | |
Total Project | $24,341,409/68.4% | $658,591/2.0% | $10,591,590/29.8% | $35,591,590 |
a. | If actual allowable indirect costs are less than those budgeted and funded under the award, you may use the difference to pay additional allowable direct costs during the project period. If at the completion of the award the Government's share of total allowable costs (i.e., direct and indirect), is less than the total costs reimbursed, you must refund the difference. |
b. | Recipients are expected to manage their indirect costs. DOE will not amend an award solely to provide additional funds for changes in indirect cost rates. DOE recognizes that the inability to obtain full reimbursement for indirect costs means the Recipient must absorb the underrecovery. Such underrecovery may be allocated as part of the organization's required cost sharing. |
a. | Government Insight |
a. | Requirements. The reporting requirements for this award are identified on the Federal Assistance Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these reporting requirements is considered a material noncompliance with the terms of the award. Noncompliance may result in withholding of future payments, suspension or termination of the current award, and withholding of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or other financial assistance awards, may also result in a debarment action to preclude future awards by Federal agencies. |
b. | Dissemination of scientific/technical reports. Scientific/technical reports submitted under this award will be disseminated on the Internet via the DOE Information Bridge (www.osti.gov/bridge), unless the report contains patentable material, protected data or SBIR/STTR data. Citations for journal articles produced under the award will appear on the DOE Energy Citations Database (www.osti.gov/energycitations). |
c. | Restrictions. Reports submitted to the DOE Information Bridge must not contain any Protected Personal Identifiable Information (PII), limited rights data (proprietary data), classified information, information subject to export control classification, or other information not subject to release. |
a. | You are encouraged to publish or otherwise make publicly available the results of the work conducted under the award. |
b. | An acknowledgment of DOE support and a disclaimer must appear in the publication of any material, whether copyrighted or not, based on or developed under this project, as follows: |
a. | The intellectual property provisions applicable to this award are provided as an attachment to this award or are referenced in the Assistance Agreement. A list of all intellectual property provisions may be found at: http://energy.gov/gc/standard-intellectual-property-ip-provisions-financial-assistance-awards |
16. | NATIONAL SECURITY: CLASSIFIABLE RESULTS ORIGINATING UNDER AN AWARD |
a. | This award is intended for unclassified, publicly releasable research. You will not be granted access to classified information. DOE does not expect that the results of the research project will involve classified information. Under certain circumstances, however, a classification review of information originated under the award may be required. The Department may review research work generated under this award at any time to determine if it requires classification. |
b. | Executive Order 12958 (60 Fed. Reg. 19,825 (1995)) states that basic scientific research information not clearly related to the national security shall not be classified. Nevertheless, some information concerning (among other things) scientific, technological, or economic matters relating to national security or cryptology may require classification. If you originate information during the course of this award that you believe requires classification, you must promptly: |
1. | Notify the DOE Project Officer and the DOE Award Administrator; |
2. | Submit the information by registered mail directly to the Director, Office of Classification and Information Control, SO-10.2; U.S. Department of Energy; P.O. Box A; Germantown, MD 20875-0963, for classification review. |
3. | Restrict access to the information to the maximum extent possible until you are informed that the information is not classified, but no longer than 30 days after receipt by the Director, Office of Classification and Information Control |
c. | If you originate information concerning the production or utilization of special nuclear material (i.e., plutonium, uranium enriched in the isotope 233 or 235, and any other material so determined under section 51 of the Atomic Energy Act) or nuclear energy, you must: |
1. | Notify the DOE Project Officer and the DOE Award Administrator; |
2. | Submit the information by registered mail directly to the Director, Office of Classification and Information Control, SO-10.2; U.S. Department of Energy; P. O. Box A; Germantown, MD 20875-0963 for classification review within 180 days of the date the Recipient first discovers or first has reason to believe that the information is useful in such production or utilization; and |
3. | Restrict access to the information to the maximum extent possible until you are informed that the information is not classified, but no longer than 90 days after receipt by the Director, Office of Classification and Information Control. |
d. | If DOE determines any of the information requires classification, you agree that the Government may terminate the award by mutual agreement in accordance with |
e. | If DOE does not respond within the specified time periods, you are under no further obligation to restrict access to the information. |
18. | NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS |
23. | SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009) |
24. | REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT |
25. | REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS - SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 |
Description | Unit of measure | Quantity | Cost (dollars)* |
Item 1: | |||
Foreign steel, iron, or manufactured good | _________ | _________ | _________ |
Domestic steel, iron, or manufactured good | _________ | _________ | _________ |
Item 2: | |||
Foreign steel, iron, or manufactured good | _________ | _________ | _________ |
Domestic steel, iron, or manufactured good | _________ | _________ | _________ |
26. | REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) - SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 |
Description | Unit of measure | Quantity | Cost (dollars)* |
Item 1: | |||
Foreign steel, iron, or manufactured good | _________ | _________ | _________ |
Domestic steel, iron, or manufactured good | _________ | _________ | _________ |
Item 2: | |||
Foreign steel, iron, or manufactured good | _________ | _________ | _________ |
Domestic steel, iron, or manufactured good | _________ | _________ | _________ |
27. | RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS |
29. | DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT |
CONSTRUCTION TYPE | WAGE DETERMINATION NUMBER | GENERAL DECISION NUMBER |
Building | CA29, CO7, CA25, KS8 | CA100029 03/19/2010 CA29 CO100007 03/12/2010 CO7 CA100025 03/12/2010 CA25 KS100008 03/19/2010 KS8 |
Highway | n/a | n/a |
Residential | n/a | n/a |
a. | At Risk Notice: The Recipient must obtain written approval by the Contracting Officer for reimbursement of costs associated with subcontractors/activities listed in paragraph b. below. No funds shall be expended on the subcontracts supporting the tasks identified in paragraph b. below unless DOE approval is provided. DOE does not guarantee or assume any obligation to reimburse costs incurred by the Recipient or subcontractor for these tasks, until approval is provided in writing by the Contracting Officer. |
b. | Contracting Officer approval as set out above is requested for the following: |
c. | Upon written approval by the Contracting Officer, the Recipient may then receive payment for the tasks identified in paragraph b. above for allowable costs incurred, or DOE will recognize costs incurred toward cost share requirements, if any, in accordance with the payment provisions contained in the Special Terms and Conditions of this agreement. |
(1) | Amyris has the deciding vote as to matters concerning strain production, scale up and manufacture (but not on choosing the manufacturer if the Steering Committee decides Amyris is not the nominated manufacturer and supplier), including as part of its responsibilities in preparing and implementing the Start-Up Plan, and regulatory responsibilities that have been allocated to it under the Regulatory Plan and day to day management of any Work Plan; and |
(2) | Firmenich has the deciding vote as to matters concerning the polishing, blending or other production activities conducted by Firmenich to ensure suitability of the Intermediate or Ingredient, as the case may be, for use in the F&F Market and commercialization (including sales, marketing and distribution strategy) including as part of its responsibilities in preparing and implementing the Start-Up Plan and regulatory approval process (to the extent regulatory responsibilities have been allocated to it under the Regulatory Plan). |
• | Two million U.S. dollars (US$2,000,000) within thirty (30) days of achieving the Target Cost or less per kilogram of the Initial Ingredient meeting the Ingredient Specifications when the Initial Ingredient is produced by Amyris (or on its behalf) at a commercial scale (i.e., in a 40,000 liter fermenter or larger, at Amyris' option) (the “Qualifying Run”); provided, that in determining whether or not the Target Cost is achieved in such Qualifying Run, the Parties will use the agreed assumed costs of raw materials and fermentation as set forth in the Target Cost Model, not the actual costs for such raw materials and fermentation incurred by Amyris in such Qualifying Run; |
• | One and one-half million U.S. dollars (US$1,500,000) within thirty (30) days of achieving a milestone for the next Ingredient, such milestone to be defined by the Technical Committee for that Ingredient; and |
• | One and one-half million U.S. dollars (US$1,500,000) within thirty (30) days of achieving a milestone for a third Ingredient, such milestone to be defined by the Technical Committee for that Ingredient. |
(a) | All licenses and rights granted by Firmenich to Amyris (i) pursuant to section 5.1.1 of this Agreement shall terminate upon the Termination Date of the R&D Program, (ii) pursuant to section 5.1.3(b) of this Agreement shall survive the R&D Term, and (iii) pursuant to |
(b) | All licenses and rights granted by Amyris to Firmenich (i) pursuant to section 5.1.1 of this Agreement shall terminate upon the Termination Date of the R&D Program and (ii) pursuant to section 5.1.2 of this Agreement shall survive such termination, provided however, that such licenses will become non-exclusive upon termination of the applicable Commercialization Program. |
(c) | All of Amyris' exclusivity obligations under this Agreement, including pursuant to Article 9, will terminate as of the Termination Date of the R&D Program, but without prejudice to any Commercialization Program, except if any such Commercialization Program has also been terminated. |
(a) | Amyris' exclusivity obligations under Article 9 of this Agreement shall survive until the fifth (5th) anniversary of the Termination Date. |
(b) | As of the Termination Date and thereafter, Amyris shall not, and shall cause its Affiliates not to, use any Strain, Background Intellectual Property or any Collaboration Intellectual Property (excluding any Strain Generation Technology) solely in connection with the development of any Intermediate or Ingredient for use and commercialization in the F&F Market except for the Exclusions. |
(c) | All licenses and rights granted by Firmenich to Amyris pursuant to sections 5.1.1, 5.1.3(a) and 5.1.3(b) of this Agreement shall terminate upon the Termination Date. |
(d) | The option granted by Firmenich to Amyris pursuant to section 5.1.3(c) of this Agreement shall terminate upon the Termination Date. |
(e) | All licenses and rights granted by Amyris to Firmenich pursuant to sections 5.1.2(a), (b), (c), (d) and (f) of this Agreement shall survive such termination. |
(f) | The option granted by Amyris to Firmenich pursuant to section 5.1.2(e) of this Agreement shall survive such termination. |
(g) | Amyris shall grant to Firmenich an exclusive, perpetual, sublicensable (through multiple tiers of sublicensees), worldwide, royalty-free license under its Background Intellectual Property, Amyris Collaboration Intellectual Property, and Amyris Non-Project Intellectual Property to improve the Strains using random mutagenesis and fermentation with respect to the supply and production of the Intermediate or Ingredient for commercialization and use in the F&F Market except for the Exclusions. If the reason for the termination for Cause is due to (i) an Event of Insolvency; (ii) Change in Control; (iii) Material Default attributable to Amyris' failure to deposit Escrowed Materials in accordance with section 3.4 and failure to remedy in a reasonable time after being provided with sufficient notice; or (iv) Material Default attributable to Amyris' repeated material failure to supply under the Supply Agreement (collectively “Significant Material Default”), then the grant of such license shall include a right to Firmenich to develop and improve the Strains, solely limited to the development and production of any Intermediate or Ingredient for commercialization and use in the F&F Market except for the Exclusions. |
(h) | As soon as practicable after the Termination Date, Amyris shall transfer to Firmenich (by way of permitting release of the Escrowed Materials or directly, if an update of such materials is required) (i) at least 20 high-producing Strains for each Intermediate or Ingredient under development or commercialization at the time of the termination, (ii) a technical report (including Strain development history) describing the work to date under all Work Plans then in effect prior to the Termination Date, (iii) any applicable internal Amyris reports with respect to the work to date under all Work Plans in effect prior to the Termination Date, (iv) copies of all supporting SOPs and all other material development-related documentation with respect to each Intermediate and Ingredient developed by |
(i) | Firmenich shall have the right to transfer a Strain to a Third Party that the Parties have agreed is an acceptable alternate supplier of the Ingredient pursuant to the Supply Agreement; provided, that, except in the case of termination due to a Significant Material Default, any agreement between Firmenich and such Third Party must be subject to certain agreed terms and conditions substantially similar to those set forth in the Supply Agreement with respect to a Second Source Option. Notwithstanding the foregoing, except in the case of a termination for Cause due to Significant Material Default of Amyris, in no event shall Firmenich or such Third Party modify, reverse engineer, engineer or analyze any Strain. |
(a) | All of Amyris' exclusivity obligations under this Agreement, including pursuant to Article 9, will terminate as of the Termination Date. |
(b) | Firmenich shall, within thirty (30) days after the Termination Date, pay Amyris the actual capital expenditures approved by the Steering Committee prior to the Termination Date and reasonably incurred by Amyris in connection with its activities under any Start-Up Plan and any non-cancellable capital expenditures approved by the Steering Committee to which Amyris has reasonably committed prior to the Termination Date in connection with such activities. |
(c) | All licenses and rights granted by Firmenich to Amyris pursuant to section 5.1.3(b) of this Agreement and the option granted by Firmenich to Amyris pursuant to section 5.1.3(c) of this Agreement shall survive such termination. |
(d) | All licenses and rights granted by Amyris to Firmenich pursuant to sections 5.1.2(a) - (f) of this Agreement shall terminate upon the Termination Date. |
(e) | Amyris' obligation to maintain the Escrowed Materials in escrow pursuant to section 3.4 shall terminate upon the Termination Date. |
(a) | All licenses and rights granted by Firmenich to Amyris pursuant to section 5.1.3(b) of this Agreement shall survive until the fifth (5th) anniversary of the Termination Date. |
(b) | All licenses and rights granted by Amyris to Firmenich pursuant to sections 5.1.2(a) - (f) of this Agreement shall survive until the fifth (5th) anniversary of the Termination Date. All of Amyris' exclusivity obligations under Article 9 of this Agreement shall survive until such date. |
(c) | The option granted by Firmenich to Amyris pursuant to section 5.1.3(c) of this Agreement shall survive such termination. |
(d) | After the Termination Date, prior to restarting the Collaboration with a Third Party, both Parties shall first discuss in good faith restarting the Collaboration together. |
(e) | In the event that after the Termination Date, Firmenich desires to engage, on its own or with a Third Party, in the development, production or commercialization of an Intermediate or Ingredient in the F&F Market except for the Exclusions, then prior to doing so, Firmenich shall so notify Amyris and the Parties shall negotiate in good faith commercially reasonable terms pursuant to which Firmenich may use, or authorize a Third Party to use on its behalf, the Strains, which terms shall include terms substantially similar to those set forth in section 20.4.3(i). |
(a) | An Event of Insolvency has occurred with respect to Amyris; |
(b) | A Change in Control of Amyris has occurred; |
(c) | Amyris has committed a Material Breach of this Agreement or the Supply Agreement; or |
(d) | Amyris is experiencing a Force Majeure Event that has lasted at least ninety (90) continuous days. |
20.6.2 | Amyris will promptly notify Firmenich in the event a Failure to Perform occurs under section 20.6.1 (a), (b) or (d) of which Firmenich is not aware. Firmenich will promptly notify Amyris in the event of a Failure to Perform occurring in any other circumstance. Following the occurrence of a Failure to Perform, Firmenich will, have the option to elect to exercise its rights under the license granted in section 5.1.2(b) (the “Manufacturing License”) and establish a second source for supply of that Intermediate or Ingredient, as the case may be, (an “Alternate Supplier”) to ensure its continued access to that Intermediate or Ingredient (“Second Source Option”). To exercise this option, Firmenich will send written notice of its election to Amyris and will immediately be permitted to exercise its rights under the Manufacturing License and to select an Alternate Supplier from the list of approved suppliers and approved locations set forth in Appendix D. |
20.6.3 | In addition, Firmenich will have the option, at any time during the period that begins on the second (2nd) anniversary of the date of the first sale of an Intermediate or Ingredient to Firmenich to establish an Alternate Supplier for supply of such Intermediate or Ingredient (“Discretionary Second Source Option”). To exercise this option, Firmenich will send written notice of its election to Amyris and, after a nine (9)-month period from the sending of such notice, Firmenich will be permitted to exercise its rights under the Manufacturing License and to select an Alternate Supplier from the list of approved suppliers and approved locations set forth in Appendix D. Upon Firmenich's exercise of its Discretionary Second Source Option for an Intermediate or Ingredient, Amyris will be released from all of its exclusivity obligations under this Agreement but only for such Intermediate or Ingredient and any exclusive rights or licenses granted to Firmenich under this Agreement will revert to non-exclusive to enable Amyris to make, have made, use, sell, offer for sale and/or import such Intermediate or Ingredient consistent with such lifting of exclusivity. |
20.6.4 | The Alternate Supplier's manufacture and supply of the Intermediate or Ingredient will be pursuant to a written agreement to be executed between the Alternate Supplier and Firmenich (“Alternate Supplier Agreement”), which agreement will include the provisions set forth in Appendix D. Firmenich will use its best efforts to ensure that the Alternate Supplier complies with such provisions. Firmenich will notify Amyris within two (2) business days in the event it becomes aware that the Alternate Supplier has breached any provisions of the Alternate Supplier Agreement set forth in Appendix D or in any other manner that might jeopardize Amyris' Background Intellectual Property, Amyris Collaboration Intellectual Property and Non-Project Intellectual Property licensed to Firmenich under the Manufacturing License (collectively, the “Manufacturing Intellectual Property”). Amyris will have the right to inspect and monitor the Alternate Supplier each quarter and, in the event Firmenich exercises its Discretionary Second Source Option, Firmenich will pay the actual costs of such visits, in an amount not to exceed US$50,000 per quarter. |
20.6.5 | Following selection of Alternate Suppliers to be identified in Appendix D upon exercise by Firmenich of either its Second Source Option or Discretionary Second Source Option, Amyris will conduct a one-time technology transfer to one mutually agreed Alternate Supplier as follows: (a) disclose and transfer to the Alternate Supplier all Manufacturing Intellectual Property that is necessary or used by Amyris to manufacture the Intermediate or Ingredient in accordance with the then-current manufacturing process used by Amyris to manufacture the Intermediate or Ingredient, |
A) | Delete the following Articles: |
B) | Amend the following Articles to reflect deletions set out in section A) above and otherwise for consistency with the principles set out in this Agreement and the Supply and Commercialization Agreement for the Initial Ingredient as follows: |
(1) | Fully-Burdened Ingredient Manufacturing Costs, or in the case of Firmenich's exercise of the Discretionary Second Source Option, the price paid by Firmenich or its Affiliate to a Third Party for purchase of the Ingredient (prior to Finishing); |
(2) | Crude Logistics Costs; |
(3) | Fully-Burdened Ingredient Finishing Costs; and |
(4) | Commercialization Costs. |
Year in Which Bonus Trigger Achieved | One-Time Commercialization Bonus Payment |
Years 1 - 4 | $2.5M |
Year 5 | $2.5M - $1.5M |
Years 6 onwards | $1.5M |
• | Collaboration has generated a Cumulative Profit of $37.5M, with that profit split 70% to Firmenich, 30% to Amyris |
• | Firmenich is making all Reasonable Efforts to commercialize Firmenich Products from the Collaboration pursuant to Article 2.5, including but not limited to such activities as conducting customer sampling, marketing and promotion, and providing customer service to support product sales |
• | Firmenich has provided a 5-year business plan to the Steering Committee, which will be updated on an annual basis and which demonstrates their intentions for the growth of Firmenich Product sales commensurate with the market conditions for that product or products |
• | Bonus will be paid as a one-time payment from Amyris to Firmenich within 60 days of Firmenich achieving the Bonus Trigger |
• | If Bonus Trigger is achieved within Year 5, payment will be scaled down to $1.5M on a monthly basis ie, if Bonus Trigger is achieved 4 months into Year 5, payment will be $2.5M - ($1M*4/12) |
1. | The Conversion Price (as defined in the Securities) for the Securities to be issued at the Second Closing pursuant to the Purchase Agreement shall be reduced to the greater of (1) the consolidated closing bid price of Amyris' common stock, par value $0.0001 per share, on the date the parties enter into this letter agreement plus $0.01 and (2) $3.08; provided that the Conversion Price shall not be reduced by more than the maximum possible amount permitted under the relevant listing rules of The NASDAQ Stock Market (the “NASDAQ Rules”) such that the New Conversion Price of the Securities would require Amyris to obtain stockholder approval with respect to such reduction of the Conversion Price; provided further that the “Make-Whole Interest Cap” for the relevant Securities shall be reset to an amount agreed to in writing by the parties; and |
2. | Amyris shall grant and hereby grants to Total, to the extent it has the right to do so under applicable law and third-party contracts (including term sheets and final agreements effecting the respective content of such term sheets with (1) Novvi SA executed with Cosan S.A. and (2) International Flavors and Fragrances Inc.) existing as of the date of this letter agreement without resulting in a violation, breach or default thereunder, a first-priority security interest in all of its intellectual property to secure all outstanding Securities and all Securities to be issued under the Purchase Agreement after the date hereof and prior to the Security Release Date (as defined below), and at Total's request, shall cooperate in good faith with Total to establish the seniority of such security interest to any other outstanding senior security interests in Amyris intellectual property and promptly cooperate with Total at its request and expense to perfect and document such security interest, provided that Total agrees that it shall promptly release all such first-priority security interests, rights to such interests, and cooperate with Amyris in good faith to release any such interests and rights at such time that Total and Amyris have entered into final documentation regarding the establishment of a JVCO (including, without limitation, the Amyris License Agreement) and such documentation has become effective (the “Security Release Date”), and provided further that Total and Amyris both agree to use good faith efforts to establish the JVCO and enter all ancillary documentation (including without limitation the Amyris License Agreement) by no later than May 30, 2013. |
• | Amyris shall also have the right prior to the Second Closing Date to request that the closing of the purchase and sale of up to $10 million in principal amount of Securities shall occur no later than May 15, 2013 if Amyris provides a certificate of its Chief Financial Officer to Total that Amyris' cash and cash equivalents and short-term investments (determined in accordance with GAAP) at the end of April 2013 is less than $10 million (the “First Installment Amount”). |
• | Amyris shall also have the right prior to the Second Closing Date to request that the closing of the purchase and sale of up to $10 million in principal amount of Securities shall occur no later than June 15, 2013 if Amyris provides a certificate of its Chief Financial Officer to Total that Amyris' cash and cash equivalents and short-term investments (determined in accordance with GAAP) at the end of May 2013 is less than $10 million (the “Second Installment Amount” and along with the First Installment Amount, the “Installment Amounts”). |
• | The Installment Amounts shall be deducted from the principal amount of Securities to be issued in the Second Closing to be closed no later than the Second Closing Date, as provided in the Purchase Agreement. |
• | Following satisfaction by Amyris of the requirements set forth above to request either of the Installment Amounts, Total will proceed to fund the First Installment Amount or Second Installment Amount, as applicable, in each case, subject to the satisfaction of the conditions set |
SECTION 1.01. | Certain Defined Terms 2 |
SECTION 2.01. | Formation 11 |
SECTION 2.02. | Name 12 |
SECTION 2.03. | Term 12 |
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 13 |
SECTION 2.08. | Powers of the Company 13 |
SECTION 2.09. | Maintenance of Separate Existence 13 |
SECTION 2.10. | Strategic Decisions 13 |
SECTION 2.11. | Related Party Transaction 13 |
SECTION 2.12. | Management Goals 14 |
SECTION 2.13. | Conduct of Company Business 14 |
SECTION 2.14. | No Personal Liability 14 |
SECTION 2.15. | Admission of New Members 14 |
SECTION 2.16. | Waiver of Fiduciary Duties; Corporate Opportunities 14 |
SECTION 3.01. | Organization and Authority 15 |
SECTION 3.02. | No Conflict 16 |
SECTION 3.03. | Governmental Consents and Approvals 16 |
SECTION 4.01. | Initial Capital Contributions 16 |
SECTION 4.02. | Membership Units 17 |
SECTION 4.03. | Additional Membership Units 17 |
SECTION 4.04. | Funding Requirements; Additional Funding 17 |
SECTION 4.05. | Status of Capital Contributions 19 |
SECTION 4.06. | Capital Accounts 19 |
SECTION 5.01. | Management of the Company 20 |
SECTION 5.02. | Board of Managers; Quorum Requirements 20 |
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 5.07. | Action by Written Consent 26 |
SECTION 5.08. | Telephonic Meetings 27 |
SECTION 5.09. | Company Minutes 27 |
SECTION 5.10. | Manager Compensation and Reimbursement 27 |
SECTION 5.11. | Audit Committee 27 |
SECTION 5.12. | Officers 27 |
SECTION 5.13. | Language 29 |
SECTION 5.14. | D&O Insurance 30 |
SECTION 5.15. | Subsidiaries 30 |
SECTION 5.16. | Deadlock 30 |
SECTION 6.01. | Change of Control Event 32 |
SECTION 6.02. | Change of Control Event Consequence. 32 |
SECTION 7.01. | Allocations 32 |
SECTION 7.02. | Special Allocations 33 |
SECTION 7.03. | Curative Allocations 35 |
SECTION 7.04. | Tax Allocations 35 |
SECTION 7.05. | Tax Matters 36 |
SECTION 8.01. | Distribution 36 |
SECTION 8.02. | Liquidation Distribution 37 |
SECTION 8.03. | Distribution Rules 37 |
SECTION 8.04. | Limitations on Distribution 37 |
SECTION 9.01. | Books and Records; Financial Statements 38 |
SECTION 9.02. | Reporting Requirements 39 |
SECTION 9.03. | Access; Due Diligence 40 |
SECTION 9.04. | Semi-Annual Updates to Members regarding Company BioFene Transformation Technology 40 |
SECTION 10.01. | Legends 40 |
SECTION 10.02. | Restrictions on Transfer; Required Transfers 41 |
SECTION 10.03. | Improper Transfer or Encumbrance 44 |
SECTION 10.04. | Transferees to Execute Agreement 44 |
SECTION 11.01. | Put/Call Option after Uncured Breach 45 |
SECTION 11.02. | No Dissolution 45 |
SECTION 11.03. | Events Causing Dissolution 45 |
SECTION 11.04. | Notice of Dissolution 46 |
SECTION 11.05. | Liquidation 46 |
SECTION 11.06. | Termination 47 |
SECTION 11.07. | Claims of the Members 48 |
SECTION 12.01. | Liability of Members 48 |
SECTION 12.02. | Indemnification of Covered Person 48 |
SECTION 12.03. | Indemnification by the Company 48 |
SECTION 12.04. | Advancement of Expenses 50 |
SECTION 13.01. | Exclusivity 50 |
SECTION 13.02. | Non‑Solicitation 51 |
SECTION 14.01. | Confidential Information 51 |
SECTION 14.02. | Notices 53 |
SECTION 14.03. | Public Announcements 54 |
SECTION 14.04. | Interpretation 54 |
SECTION 14.05. | Severability 54 |
SECTION 14.06. | Counterparts 54 |
SECTION 14.07. | Entire Agreement 54 |
SECTION 14.08. | Governing Law; Submission to Jurisdiction; Arbitration 54 |
SECTION 14.09. | Specific Performance 58 |
SECTION 14.10. | Expenses 58 |
SECTION 14.11. | Amendments and Waivers; Assignment 58 |
SECTION 14.12. | No Third Party Beneficiaries 58 |
SECTION 14.13. | Headings 59 |
SECTION 14.14. | Construction 59 |
SECTION 14.15. | Former Amyris Employees, Officers and/or Contractors 59 |
SECTION 14.16. | Further Assurances 59 |
SECTION 14.17. | BioFene Supply Agreement 59 |
Term | Section |
Act | Recitals |
Amyris | Preamble |
Amyris Managers | 5.02(a) |
Applicable Deadlock Issue | 5.16(d) |
Appraisers Arbitration Chamber | Exhibit B 14.08(b) |
Arbitration Rules | 14.08(b) |
Arbitration Tribunal Assumed Tax Liability | 14.08(c) 8.01(b)(i) |
Auditors | 9.01(a) |
Board of Managers | 5.01 |
Board of Managers Approval Matter | 5.05 |
Breach Call Option Breach Put Option Breach Put/Call Option Notice Capital Call | 11.01(i) 11.01(ii) 11.01 4.04(b) |
Chair | 5.02(a) |
Change of Control Event | 6.01 |
Company | Preamble |
Company Business | Recitals |
Confidential Information | 14.01(a) |
Corporate Opportunities Group | 2.16(a)(i) |
Cosan US | Preamble |
Cosan US License Agreement Cosan US Managers | Recitals 5.02(a) |
Term | Section |
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) |
Disclosing Party | 14.01(a) |
Effective Date Former Member | Preamble 10.03 |
Initial Capital Contribution | 4.01(a) |
IP License Agreement | Recitals |
Liquidating Trustee | 11.04 |
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 Officers | 10.02(c)(ii) 5.12(a) |
Original Operating Agreement | Recitals |
President | 5.12(a) |
Prospective Transferee Receiving Party Regulatory Allocations | 10.04 14.01(a) 7.03 |
Representatives | 14.01(a) |
Right of First Refusal Selling Member | 10.02(c) 10.02(c) |
Sole Appraiser Tag Along Right Tax Matters Partner Third Appraiser | Exhibit B 10.02(c) 7.05(c) Exhibit B |
1. | Defined Terms. All capitalized terms used in this Termination Agreement have the same meaning as in the Original JVI Agreement except as otherwise noted. |
2. | Termination of the Original JVI Agreement. Except as specifically set forth in Section 3 of this Termination Agreement, the Parties hereby mutually terminate the Original JVI Agreement pursuant to Section 9.3 of the Original JVI Agreement, a copy of which is attached hereto as Exhibit A, in its entirety, effective as of the Termination Effective Date. For clarity, despite terminating the Original JVI Agreement under such Section 9.3, the Parties agree that Section 9.3.1 will not apply or have any effect. |
3. | Surviving Provisions of the Original JVI Agreement. The following are the only provisions, rights, and obligations under the Original JVI Agreement that survive this mutual termination of the Original JVI Agreement: |
(i) | Article I - Definitions; |
(ii) | Section 8.5 - Expenses; |
(iii) | Section 8.6 - Disclosure; |
(iv) | Sections 8.7 to 8.7.5 - Confidentiality; |
(v) | Article XI - Governing Law and Dispute Resolution; |
(vi) | Section 12.3 - Notices; |
(vii) | Section 12.4 - Entire Agreement; |
(viii) | Section 12.6 - Severability; and |
(ix) | Section 12.7 - Assignment. |
4. | Ancillary Agreements. Although the Original JVI Agreement contemplated the execution of several Ancillary Agreements between the Parties, only the Shareholders' Agreement was ever executed by the Parties. That document will be automatically terminated as per its terms upon the consummation of the Stock Purchase Agreement on the date hereof between AB and CLE, and the Bylaws of Novvi S.A. will be separately modified by the Parties outside of this Termination Agreement. |
5. | Confidentiality. The Parties agree to treat this Termination Agreement and its contents as the Confidential Information of the other Party subject to the obligations and exceptions set forth in Sections 8.6 and 8.7 of the Original JVI Agreement. |
6. | Governing Law; Disputes. This Termination Agreement shall be governed in accordance with the laws of Brazil, without regard to its conflicts of law principles. Any Disputes arising out of or relating to the Original JVI Agreement or this Termination Agreement and /or any instrument executed and delivered related hereto, including but not limited to any issues relating to the existence, validity, effectiveness, interpretation of this Termination Agreement or the related instruments will be referred to and exclusively and finally settled by binding arbitration administrated by the Arbitration and Mediation Center of the Brazil-Canada Chamber of Commerce in accordance with its rules and with the terms and provisions of the arbitration agreement set forth in Article XI of the Original JVI Agreement. |
7. | Counterparts. This Termination 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 Termination Agreement may be executed by facsimile or other electronic signatures, and such signatures shall be deemed to bind each Party as if they were original signatures. |
8. | Headings. The section headings contained in this Termination Agreement are for convenience only, will not be deemed a part of this Termination Agreement, and will not affect the meaning or interpretation of this Termination Agreement. |
9. | Entire Agreement; Amendment. This Termination Agreement, along with the surviving Sections and Articles of the Original JVI Agreement (as set forth in Section 3 above and which are incorporated herein by reference), constitute the entire agreement between the Parties (and cancel and supersede any and all previous agreements between the Parties) with respect to the subject matter hereof, including the Original JVI Agreement, the Parties' proposed Base Oils IP License Agreement, and the Parties' proposed BioFene IP License Agreement, but excluding the Shareholders' Agreement. Any modification or amendment to this Termination Agreement must be in writing and signed by all Parties to be effective. |
(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. |
(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 |
(i) | Novvi LLC may use the relevant Production Strain only at a manufacturing location approved in advance by Amyris in writing. To the extent Novvi LLC, in the exercise of its “have made” rights, engages an Affiliate or Third Party to produce BioFene or an Alternative Technology molecule, whichever is applicable, such Affiliate or Third Party shall be subject to written restrictions necessary to protect the applicable Production Strains and other intellectual property licensed from Amyris to Novvi LLC; |
(ii) | The applicable license agreement with Novvi LLC will include other reasonable provisions, including without limitation, reporting, audit and inspection rights in order to protect the applicable Production Strains and other intellectual property licensed from Amyris by Novvi LLC; and |
(iii) | Novvi LLC shall not, and shall not allow any other person or entity to, reverse engineer any Production Strain, engineer any other strain from the Production Strain, use the Production Strain for any purpose other than the licensed purpose, or distribute, disclose or transfer the Production Strain or any related intellectual property to any other Affiliate or Third Party. |
(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, and Lubricants derived from BioFene 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 Section 4.1, a non-exclusive, worldwide, royalty-free, non-sublicensable, and |
(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; |
(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 |
(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. |
(i) | Novvi LLC shall only grant such Third Party manufacturing subcontractor a sublicense 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 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 the Third Party sublicensee 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 such prohibition 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 such prohibition in clause (i), 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 such 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. |
(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 such 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 such 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 such 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. |
3.3 | Exercise of the ROFO. |
(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. |
(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; |
(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 |
(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 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' 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 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”); |
(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”); |
(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. |
(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; |
(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); |
(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 |
(vi) | Amyris's license under Section 2.2 will continue unaffected, as will this License Agreement with regard to such license. |
(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. |
(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 Agreement with regard to such license. |
(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. |
(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). |
(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; |
(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. |
(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. |
• | You must provide satisfactory documentary proof of your identity and right to work in the United States of America on your first day of employment. |
• | You must agree in writing to the terms of the enclosed Proprietary Information and Inventions Agreement (“PIIA”) without modification. |
• | You must consent to, and Amyris must obtain satisfactory results from, reference and background checks. Until you have been informed in writing by the Company that such checks have been completed and the results satisfactory, you may wish to defer reliance on this offer. |
• | You must agree in writing to the terms of the enclosed Mutual Agreement to Binding Arbitration (“Arbitration Agreement”) without modification. |
1. | Termination of Employment. If you resign your employment with Amyris or if Amyris terminates your employment for Cause (as defined below) at any time, you will receive your base salary as well as any accrued but unused vacation (if applicable) earned through the effective resignation or termination date and no additional compensation. If Amyris terminates your employment for any reason other than Cause, it will give you written notice of termination, any base salary and accrued but unused vacation that is earned through the effective termination date and, conditioned on your (i) signing and not revoking a release of any and all claims, in a form prescribed by Amyris and by no later than sixty (60) days after your termination date, and (ii) returning to Amyris all of its property and confidential information that is in your possession, you will receive the following |
(A) | Continuation of your base salary for twelve (12) months beyond the effective termination date, payable in accordance with the regular payroll practices of Amyris, provided that these payments will be terminated as of the date you commence employment with another employer or engage or participate in any consulting or advisory arrangement or any other arrangement that involves any form of remuneration, including remuneration for services performed by you as an officer, director, employee, representative or agent of, or in any other capacity for, any other person or entity (each, an “Engagement”); and |
(B) | If you elect to continue your health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) following the termination of your employment, then Amyris shall pay your monthly premium under COBRA until the earlier of (x) twelve (12) months following the effective termination date, or (y) the date upon which you commence employment with an entity other than Amyris or any other Engagement. |
2. | Change of Control. If, during your employment with Amyris, there is a Change of Control event (as defined below), and Amyris terminates your employment without Cause or you are Constructively Terminated (as defined below) within six (6) months of that event, then you will be eligible to receive the benefits provided in Section 1 above, as well as immediate accelerated vesting of fifty percent (50%) of any of the unvested shares under your outstanding options as of the date of termination, conditioned on your complying with the requirements of Section 1 above. |
3. | Tax Compliance. For purposes of this Agreement, a termination of employment will be determined consistent with the rules relating to a “separation from service” as defined in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (“Section 409A”). Notwithstanding anything else provided herein, to the extent any payments provided under this Agreement in connection with your termination of employment constitute deferred compensation subject to Section 409A, and you are deemed at the time of such termination of employment to be a “specified employee” under Section 409A, then such payment shall not be made or commence until the earlier of (i) the expiration of the 6-month period measured from your separation from service from Amyris or (ii) the date of your death following such a separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you including, without limitation, the additional tax for which you would otherwise be liable under Section 409A(a)(1)(B) in the absence of such a deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been paid during the period between your termination of employment and the first payment date but for the application of this provision, and the balance of the installments (if any) will be payable in accordance with their original schedule. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder comply with Section 409A. To the extent any payment under this Agreement may be classified as a “short-term deferral” within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. Payments pursuant to this amendment are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. |
1. | Position |
2. | Salary |
3. | Bonus |
4. | Equity |
5. | Benefits |
6. | Termination of Employment |
1. | Depending on the size of the option grant and the value of the shares at termination, the severance payments may become subject to IRC Section 280G. |
7. | Change of Control |
8. | Amyris' Policies |
9. | “At-Will” Employment |
10. | Full-Time Service to Amyris |
11. | Conditions of Offer |
• | You must provide satisfactory documentary proof of your identity and right to work in the United States of America on your first day of employment. |
• | You must agree in writing to the terms of the enclosed Proprietary Information and Inventions Agreement (“PIIA”) without modification. |
• | You must consent to, and Amyris must obtain satisfactory results from, reference and background checks. Until you have been informed in writing by Amyris that such checks have been completed and the results satisfactory, you may wish to defer reliance on this offer. |
• | You must agree in writing to the terms of the enclosed Mutual Agreement to Binding Arbitration (“Arbitration Agreement”) without modification. |
12. | Tax Compliance |
13. | Entire Agreement |
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: May 8, 2013 | /s/ JOHN MELO | ||
John Melo | |||
President and Chief Executive Officer |
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: May 8, 2013 | /s/ STEVEN R. MILLS | ||
Steven R. Mills | |||
Chief Financial Officer |
Date: May 8, 2013 | /s/ JOHN MELO | ||
John Melo | |||
President and Chief Executive Officer | |||
(Principal Executive Officer) |
Date: May 8, 2013 | /s/ STEVEN R. MILLS | ||
Steven R. Mills | |||
Chief Financial Officer | |||
(Principal Financial Officer) |
Fair Value Measurements Fair Value Using Significant Unobservable Inputs (Level 3) (Details) (Derivative Liability - Compound Embedded Derivatives [Member], USD $)
In Thousands, unless otherwise specified |
3 Months Ended |
---|---|
Mar. 31, 2013
|
|
Derivative Liability - Compound Embedded Derivatives [Member]
|
|
Fair Value, Liabilities Measured on Recurring Basis, Unobservable Input Reconciliation, Calculation [Roll Forward] | |
Fair value, beginning of period | $ 7,894 |
Change in fair value recorded in other income (expense), net | (1,052) |
Fair value, end of period | $ 6,842 |
Debt Loans Payable (Details)
|
1 Months Ended | 1 Months Ended | 0 Months Ended | ||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Mar. 31, 2013
USD ($)
|
Dec. 31, 2012
USD ($)
|
Jul. 31, 2012
Banco Pine S.A Loan Agreement June 2012 [Member]
Bridge Loan [Member]
BRL
|
Dec. 31, 2012
Banco Pine S.A Loan Agreement June 2012 [Member]
Bridge Loan [Member]
USD ($)
|
Dec. 31, 2012
Banco Pine S.A Loan Agreement June 2012 [Member]
Bridge Loan [Member]
BRL
|
Jun. 30, 2012
Banco Pine S.A Loan Agreement June 2012 [Member]
Bridge Loan [Member]
|
Mar. 31, 2013
Pine and Nossa Caixa Loan Agreement [Member]
USD ($)
|
Dec. 31, 2012
Pine and Nossa Caixa Loan Agreement [Member]
USD ($)
|
Jul. 13, 2012
Pine and Nossa Caixa Loan Agreement [Member]
BRL
|
Jul. 13, 2012
Banco Pine July 2012 Loan Agreement [Member]
BRL
|
Jul. 13, 2012
Nossa Caixa Loan Agreement [Member]
BRL
|
Mar. 31, 2013
Loans Payable [Member]
USD ($)
|
Dec. 31, 2012
Loans Payable [Member]
USD ($)
|
Oct. 31, 2012
Loans Payable [Member]
USD ($)
Monthly_installment
|
Mar. 31, 2013
Loans Payable [Member]
Pine and Nossa Caixa Loan Agreement [Member]
USD ($)
|
Dec. 31, 2012
Loans Payable [Member]
Pine and Nossa Caixa Loan Agreement [Member]
USD ($)
|
Dec. 31, 2009
Loans Payable Lessor Emeryville Plant [Member]
USD ($)
|
Mar. 31, 2013
Loans Payable Lessor Emeryville Plant [Member]
USD ($)
|
Dec. 31, 2012
Loans Payable Lessor Emeryville Plant [Member]
USD ($)
|
Mar. 31, 2013
Interest Rate Swap [Member]
Banco Pine July 2012 Loan Agreement [Member]
USD ($)
|
Mar. 31, 2013
Interest Rate Swap [Member]
Banco Pine July 2012 Loan Agreement [Member]
BRL
|
Jun. 30, 2012
Interest Rate Swap [Member]
Banco Pine July 2012 Loan Agreement [Member]
|
Mar. 18, 2013
ABC Brasil Agreement [Member]
USD ($)
|
Mar. 18, 2013
ABC Brasil Agreement [Member]
BRL
|
Mar. 31, 2013
ABC Brasil Agreement [Member]
Loans Payable [Member]
USD ($)
|
|
Debt Instrument [Line Items] | |||||||||||||||||||||||||
Debt Instrument, Face Amount | $ 25,400,000 | 52,000,000 | $ 25,800,000 | 52,000,000 | 22,000,000 | 30,000,000 | $ 600,000 | $ 250,000 | |||||||||||||||||
Debt Instrument, Interest Rate, Stated Percentage | 5.50% | 5.50% | 3.24% | 10.00% | |||||||||||||||||||||
Days of Interruption of Manufacturing Activities at Plant | 30 days | ||||||||||||||||||||||||
Repayment Period | 96 months | ||||||||||||||||||||||||
Long-term Debt | 106,932,000 | 104,164,000 | 28,958,000 | 26,150,000 | 25,800,000 | 25,400,000 | 170,000 | 177,000 | 2,500,000 | ||||||||||||||||
Debt Instrument, Interest Rate, Monthly Stated Percentage | 0.4472% | ||||||||||||||||||||||||
Notional Amount of Interest Rate Derivatives | 10,900,000 | 22,000,000 | |||||||||||||||||||||||
Derivative, Fixed Interest Rate | 3.94% | ||||||||||||||||||||||||
Collateral Provided By Company, Certain Equipment and Other Tangible Assets, Amount | 33,800,000 | 68,000,000 | |||||||||||||||||||||||
Debt Instrument, Period of Interest Only Quarterly Payments | 2 years | ||||||||||||||||||||||||
Repayments of Debt | 52,000,000 | ||||||||||||||||||||||||
Number Of Equal Monthly Installments | 9 | ||||||||||||||||||||||||
Loans Payable to Bank | 200,000 | 400,000 | |||||||||||||||||||||||
Export Financing Agreement | $ 2,500,000 | 5,000,000 | |||||||||||||||||||||||
Export Funding Agreement, Term | 1 year | 1 year |
Subsequent Events (Details) (Subsequent Event [Member], USD $)
In Millions, unless otherwise specified |
0 Months Ended | |
---|---|---|
Apr. 23, 2013
IFF Agreement
|
Apr. 30, 2013
Loans and Notes Payable [Member]
Amendment of Lease Agreement - Emeryville [Member]
|
|
Subsequent Event [Line Items] | ||
Collaboration Agreement, Range of Funding, First Phase of Collaberation | $ 6.0 | |
Collaboration Agreement, First Phase of Collaboration, Amount Based on Achievement of Certain Milestones | 4.5 | |
Extinguishment of Debt, Amount | $ 1.6 |
Debt Letters of Credit (Details) (USD $)
|
Mar. 31, 2013
|
Dec. 31, 2012
|
Jun. 30, 2012
|
---|---|---|---|
Debt Disclosure [Abstract] | |||
Letters of Credit Outstanding, Amount | $ 1,000,000 | ||
Restricted cash | $ 956,000 | $ 955,000 |
Stock-Based Compensation Plans (Tables)
|
3 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Mar. 31, 2013
|
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Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Schedule of Share-based Compensation, Stock Options and Stock Appreciation Rights Award Activity [Table Text Block] | The Company’s stock option activity and related information for the three months ended March 31, 2013 was as follows:
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Schedule of Share-based Compensation, Restricted Stock and Restricted Stock Units Activity [Table Text Block] | The Company’s restricted stock units ("RSUs") and restricted stock activity and related information for the three months ended March 31, 2013 was as follows:
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Schedule of Share-based Compensation, Shares Authorized under Stock Option Plans, by Exercise Price Range [Table Text Block] | The following table summarizes information about stock options outstanding as of March 31, 2013:
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Schedule of Employee Service Share-based Compensation, Allocation of Recognized Period Costs [Table Text Block] | Stock-based compensation expense related to options and restricted stock units granted to employees and nonemployees was allocated to research and development expense and sales, general and administrative expense as follows (in thousands):
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Employee Share Based Compensation [Member]
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Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Schedule of Share-based Payment Award, Stock Options, Valuation Assumptions [Table Text Block] | Stock-based compensation cost 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 cost for stock options and employee stock purchase plan rights is estimated at the grant date and offering date, respectively, based on the 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:
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Non Employee Share Based Compensation [Member]
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Share-based Compensation Arrangement by Share-based Payment Award [Line Items] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Schedule of Share-based Payment Award, Stock Options, Valuation Assumptions [Table Text Block] | The fair value of nonemployee stock options was estimated using the following weighted-average assumptions:
|
Joint Ventures and Noncontrolling Interest Variable Interest Entity (Details) (USD $)
|
3 Months Ended | 1 Months Ended | 1 Months Ended | |||
---|---|---|---|---|---|---|
Mar. 31, 2013
Variable Interest Entity, Primary Beneficiary [Member]
consolidated_VIE
|
Mar. 31, 2012
Variable Interest Entity, Primary Beneficiary [Member]
|
Jan. 31, 2011
Glycotech Agreement [Member]
|
Jan. 31, 2011
Glycotech Agreement [Member]
Variable Interest Entity, Primary Beneficiary [Member]
|
Mar. 31, 2013
Glycotech Agreement [Member]
Variable Interest Entity, Primary Beneficiary [Member]
|
Jan. 31, 2011
Right of First Refusal Glycotech [Member]
Operating Leases - Facilities [Member]
|
|
Variable Interest Entity [Line Items] | ||||||
Period of Initial Term of Collaboration Agreement | 2 years | |||||
Additional Year Periods of Collaboration Agreement | 1 year | |||||
Commencement Period of Agreement | 2 years | |||||
Variable Interest Entity, Financial or other support | 100.00% | |||||
Variable Interest Entity Number of Entities (in VIEs) | 2 | |||||
Variable Interest Entity, Consolidated, Carrying Amount, Property and Equipment | $ 25,100,000 | |||||
Variable Interest Entity, Consolidated, Carrying Amount, Other Assets | 4,500,000 | |||||
Variable Interest Entity, Consolidated, Carrying Amount, Current Assets | 500,000 | |||||
Variable Interest Entity, Consolidated, Carrying Amount, Accounts Payable And Accrued Liabilities | 200,000 | |||||
Variable Interest Entity, Consolidated, Carrying Amount, Loan Obligations | 300,000 | |||||
Assets | 30,103,000 | 29,564,000 | ||||
Liabilities | $ 505,000 | $ 355,000 |
Subsequent Events
|
3 Months Ended |
---|---|
Mar. 31, 2013
|
|
Subsequent Events [Abstract] | |
Subsequent Events | Subsequent Events IFF Agreement On April 23, 2013, the Company entered into a joint development and license agreement with International Flavors & Fragrances Inc. ("IFF"). Under the terms of the multi-year agreement, IFF and the Company will jointly develop certain fragrance ingredients. IFF will have exclusive rights to these fragrance ingredients for applications in the flavors and fragrances field, and the Company will have exclusive rights in other fields. IFF and the Company will share in the economic value derived from these ingredients. The joint development and license agreement provides for up to $6.0 million funding by IFF to the Company during the first phase of the collaboration, of which $4.5 million is based on achievement of certain milestones. Amendment of Lease Agreement - Emeryville On April 30, 2013, the Company entered into an amendment of its operating lease for its headquarters in Emeryville, California (the "Amendment"). The operating lease amendment provided for an extension of the lease term to May 2023, a modification of the base rent and elimination of the Company's loans and notes payable to the lessor of approximately $1.6 million. |
Balance Sheet Components Inventory (Details) (USD $)
In Thousands, unless otherwise specified |
Mar. 31, 2013
|
Dec. 31, 2012
|
---|---|---|
Balance Sheet Components [Abstract] | ||
Raw materials | $ 1,435 | $ 1,574 |
Work-in-process | 2,907 | 1,771 |
Finished goods | 2,185 | 2,689 |
Inventories, net | $ 6,527 | $ 6,034 |
The Company (Details) (USD $)
|
3 Months Ended | 12 Months Ended | |
---|---|---|---|
Mar. 31, 2013
|
Mar. 31, 2012
|
Dec. 31, 2012
|
|
Loss Related to Adverse Purchase Commitments | $ 30,400,000 | ||
Facility Modification Costs Written Off | 10,000,000 | ||
Production Assets Written Off | 5,500,000 | ||
Expected Capital Expenditures During Next Fiscal Year | 10,000,000 | ||
Retained Earnings (Accumulated Deficit) | (618,941,000) | (586,327,000) | |
Cash, Cash Equivalents, and Short-term Investments | 24,900,000 | ||
Long-term Debt | 106,932,000 | 104,164,000 | |
Debt, current portion | 7,082,000 | 3,325,000 | |
Minimum [Member]
|
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Contingency Cash Plan Savings Estimate During Next Fiscal Year | 40,000,000 | ||
Maximum [Member]
|
|||
Contingency Cash Plan Savings Estimate During Next Fiscal Year | $ 45,000,000 |
Segment Information (Details) (USD $)
In Thousands, unless otherwise specified |
3 Months Ended | ||
---|---|---|---|
Mar. 31, 2013
businessactivities
segmentmanagers
|
Mar. 31, 2012
|
Dec. 31, 2012
|
|
Revenues from External Customers and Long-Lived Assets [Line Items] | |||
Segment Reporting, Number of Business Activities | 1 | ||
Segment Reporting, Number of Segment Managers Held Accountable | 0 | ||
Revenues | $ 7,869 | $ 29,469 | |
Long-Lived Assets | 162,253 | 163,121 | |
United States [Member]
|
|||
Revenues from External Customers and Long-Lived Assets [Line Items] | |||
Revenues | 5,564 | 26,306 | |
Long-Lived Assets | 67,832 | 70,273 | |
Brazil [Member]
|
|||
Revenues from External Customers and Long-Lived Assets [Line Items] | |||
Revenues | 818 | 875 | |
Long-Lived Assets | 92,612 | 90,982 | |
Europe [Member]
|
|||
Revenues from External Customers and Long-Lived Assets [Line Items] | |||
Revenues | 225 | 1,938 | |
Long-Lived Assets | 1,809 | 1,866 | |
Asia [Member]
|
|||
Revenues from External Customers and Long-Lived Assets [Line Items] | |||
Revenues | $ 1,262 | $ 350 |
Stockholders' Equity (Details) (USD $)
|
3 Months Ended | 0 Months Ended | 0 Months Ended | 1 Months Ended | 0 Months Ended | |||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Mar. 31, 2013
|
Mar. 31, 2012
|
Dec. 31, 2012
|
Mar. 27, 2013
Private Placement [Member]
|
Jan. 11, 2013
Private Placement [Member]
|
Dec. 24, 2012
Private Placement [Member]
|
Feb. 29, 2012
Private Placement [Member]
|
Dec. 24, 2012
Private Placement [Member]
Common Stock [Member]
|
Feb. 29, 2012
Private Placement [Member]
Common Stock [Member]
|
Dec. 24, 2012
Convertible Notes Payable [Member]
Private Placement [Member]
|
Dec. 24, 2012
Commitment Fulfilled [Member]
Private Placement [Member]
|
Dec. 24, 2012
Unsecured Senior Convertible Promissory Notes [Member]
Private Placement [Member]
|
Jan. 23, 2013
Equity Incentive Plan, 2010 [Member]
|
Jan. 23, 2013
Employee Stock Purchase Plan, 2010 [Member]
|
|
Class of Stock [Line Items] | ||||||||||||||
Stock Issued During Period, Shares, New Issues | 1,533,742 | 5,033,557 | 14,177,849 | 10,160,325 | ||||||||||
Stock Issued During Period, Price Per Share, New Issues | $ 3.26 | $ 2.98 | $ 5.78 | |||||||||||
Stock Issued During Period, Value, New Issues | $ 19,935,000 | $ 58,700,000 | ||||||||||||
Commitment to purchase company common stock | 15,000,000 | 10,000,000 | ||||||||||||
Proceeds from Issuance of Private Placement | 19,935,000 | 58,606,000 | 5,000,000 | 37,200,000 | ||||||||||
Extinguishment of Debt, Amount | 5,000,000 | |||||||||||||
Extinguishment of Debt, Common Stock, Shares | 1,677,852 | |||||||||||||
Proceeds from Issuance of Private Placement, First Payment Received | 22,200,000 | |||||||||||||
Proceeds from Private Placement Remaining Balance Settled | $ 15,000,000 | |||||||||||||
Share-based Compensation Arrangement by Share-based Payment Award, Number of Additional Shares Authorized | 3,435,483 | 687,096 | ||||||||||||
Share-based Compensation Arrangement by Share-based Payment Award, Number of Additional Shares Authorized, Percentage Increase of Common Stock, Shares, Outstanding | 5.00% | 1.00% | ||||||||||||
Common Stock, Shares, Outstanding | 75,410,031 | 68,709,660 |
Commitments and Contingencies Guarantor Arrangements/Purchase Obligations and Other Matters (Details)
|
3 Months Ended | 1 Months Ended | 3 Months Ended | 0 Months Ended | 0 Months Ended | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Mar. 31, 2013
USD ($)
|
Nov. 30, 2010
FINEP Credit Facility [Member]
Chattel Mortgage [Member]
BRL
disbursements
|
Mar. 31, 2013
FINEP Credit Facility [Member]
Chattel Mortgage [Member]
USD ($)
|
Nov. 15, 2011
Performance Guarantee [Member]
|
Dec. 31, 2012
Performance Guarantee [Member]
Payment Guarantee [Member]
USD ($)
|
Nov. 15, 2011
Performance Guarantee [Member]
Payment Guarantee [Member]
BRL
|
Mar. 31, 2013
BNDES Credit Facility [Member]
BNDES [Member]
USD ($)
|
Dec. 31, 2011
BNDES Credit Facility [Member]
BNDES [Member]
BRL
|
Jul. 13, 2012
Banco Pine July 2012 Loan Agreement [Member]
BRL
|
Jul. 13, 2012
Nossa Caixa Loan Agreement [Member]
BRL
|
Mar. 31, 2013
Pine and Nossa Caixa Loan Agreement [Member]
USD ($)
|
Dec. 31, 2012
Pine and Nossa Caixa Loan Agreement [Member]
USD ($)
|
Jul. 13, 2012
Pine and Nossa Caixa Loan Agreement [Member]
BRL
|
Mar. 18, 2013
ABC Brasil Agreement [Member]
USD ($)
|
Mar. 18, 2013
ABC Brasil Agreement [Member]
BRL
|
Dec. 31, 2012
Research and Development Arrangement [Member]
Chattel Mortgage [Member]
USD ($)
|
|
Loss Contingencies [Line Items] | ||||||||||||||||
Purchase Obligation | $ 47,700,000 | |||||||||||||||
Contractual Obligation | 47,300,000 | |||||||||||||||
Loss on Purchase Commitments | 11,200,000 | |||||||||||||||
Guaranty Liabilities | 3,300,000 | 1,600,000 | ||||||||||||||
Line of Credit Facility, Maximum Borrowing Capacity | 6,400,000 | 3,200,000 | ||||||||||||||
Research and Development Asset Acquired Other than Through Business Combination, Fair Value Acquired | 6,000,000 | 3,000,000 | ||||||||||||||
Disbursements Received After Compliance with Certain Terms and Conditions (in disbursements) | 4 | |||||||||||||||
Collateral Provided By Company, Certain Equipment and Other Tangible Assets, Amount | 12,400,000 | 24,900,000 | 33,800,000 | 68,000,000 | ||||||||||||
Export Financing Agreement | 2,500,000 | 5,000,000 | ||||||||||||||
Export Funding Agreement, Term | 1 year | 1 year | ||||||||||||||
Debt Instrument, Face Amount | 22,000,000 | 30,000,000 | 25,800,000 | 52,000,000 | ||||||||||||
Period Required For Restricted Cash | 3 months | |||||||||||||||
Restricted Cash and Cash Equivalents | $ 100,000 | 200,000 |
The Company
|
3 Months Ended | ||||||||||||||||||||||||||||||||
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Mar. 31, 2013
|
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The Company [Abstract] | |||||||||||||||||||||||||||||||||
The Company | The Company Amyris, Inc. (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 synthetic biology to develop and provide renewable compounds for a variety of markets. The Company is currently building and applying its industrial synthetic biology platform to provide alternatives to select petroleum-sourced products used in specialty chemical and transportation fuel markets worldwide. 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 varying from specialty chemical applications to transportation fuels, such as diesel. While the Company's platform is able to use a wide variety of feedstocks, the Company is focused initially on Brazilian sugarcane. In addition, the Company has entered into various contract manufacturing agreements to support commercial production. The Company has established two principal operating subsidiaries, Amyris Brasil Ltda. (formerly Amyris Brasil S.A., “Amyris Brasil”) for production in Brazil, and Amyris Fuels, LLC ("Amyris Fuels"). Nearly all of the Company's revenues to date have come from the sale of ethanol and reformulated ethanol-blended gasoline with substantially all of the remaining revenues coming from collaborations, government grants and sales of renewable products. In the third quarter of 2012, the Company transitioned out of the ethanol and reformulated ethanol-blended gasoline business. The Company does not expect to be able to replace much of the revenue lost in the near term as a result of this transition, particularly in 2013, while it continues its efforts to establish a renewable products business. Beginning in March 2012, the Company initiated a plan to shift a portion of its production capacity from contract manufacturing facilities to a Company-owned plant that was then under construction. As a result, the Company evaluated its contract manufacturing agreements and recorded a loss of $30.4 million related to adverse purchase commitments, $10.0 million related to the write-off of facility modification costs and $5.5 million related to Company-owned equipment at contract manufacturing facilities in the year ended December 31, 2012. The Company regularly monitors its plan related to production capacity, sales requirements and related cost structure. Changes to this plan may result in additional losses and impairment charges. The Company's renewable products business strategy is to focus on direct commercialization of higher-value, lower-volume markets while moving lower-margin, higher-volume commodity products into joint venture arrangements with established industry partners. To commercialize its products, the Company must be successful in using its technology to manufacture its products at commercial scale and on an economically viable basis (i.e., low per unit production costs). The Company is building its experience producing renewable products at commercial scale. The Company's prospects are subject to risks, expenses and uncertainties frequently encountered by companies in this stage of development. The Company expects to fund its operations for the foreseeable future with cash and investments currently on hand, with cash inflows from collaboration and grant funding, cash contributions from product sales, and with new debt and equity financing. The Company's planned 2013 working capital needs and its planned operating and capital expenditures for 2013 are dependent on significant inflows of cash from existing collaboration partners, as well as additional funding from new collaborations, equity or debt offerings, credit facilities or loans, or combinations of these sources. The Company will continue to need to fund its research and development and related activities and to provide working capital to fund production, storage, distribution and other aspects of its business. The Company's operating plan contemplates capital expenditures of approximately $10.0 million in 2013 and the Company expects to continue to incur costs in connection with its existing contract manufacturing arrangements. (See Note 6 - “Debt” and Note 10 - “Stockholders' Equity”). Liquidity The Company has incurred significant losses in each year since its inception and believes that it will continue to incur losses and negative cash flow from operations into at least 2014. As of March 31, 2013, the Company had an accumulated deficit of $618.9 million and had cash, cash equivalents and short term investments of $24.9 million. The Company has significant outstanding debt and contractual obligations related to purchase commitments, as well as capital and operating leases. As of March 31, 2013, the Company's debt totaled $106.9 million, of which $7.1 million matures within the next twelve months. In addition, the Company's debt agreements contain various covenants, including restrictions on business that could cause the Company to be at risk of defaults. Please refer to Note 5 “Commitments and Contingencies” and Note 6 “Debt” for further details regarding the Company's obligations and commitments. In March 2013, the Company signed a collaboration agreement with Firmenich that included a funding component, and obtained a commitment letter from an existing stockholder with respect to additional convertible note funding (see Note 8 - “Significant Agreements” and Note 6 - "Debt"), and the Company expects to use amounts received under these arrangements to fund its operations. Furthermore, the Company is expecting additional funding in 2013 from collaborations, equity or debt offerings, or combinations of these sources. The Company is currently in discussions with potential investors and intends to secure a portion of this additional funding in the second quarter of 2013. However, as of the date of this filing, the Company has not yet secured this additional funding. There can be no assurance that financing will be available on commercially acceptable terms or at all. If the Company is unable to raise additional financing, or if other expected sources of funding are delayed or not received, the Company would take the following actions as early as the second quarter of 2013 to support its liquidity needs through the remainder of 2013 and into 2014:
If fully implemented, these actions are designed to save the Company an estimated $40 million to $45 million over the next twelve months. Implementing this plan could have a material negative impact on the Company's ability to continue its business as currently contemplated, including, without limitation, delays or failures in its ability to:
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 a material 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. |