CONFIDENTIAL TREATMENT REQUESTED. CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND, WHERE APPLICABLE, HAVE BEEN MARKED WITH AN ASTERISK TO DENOTE WHERE OMISSIONS HAVE BEEN MADE. THE CONFIDENTIAL MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

 

This Amendment No. 1 to Securities Purchase Agreement (this “Amendment”) is made and entered into as of October 16, 2013, by and among Amyris, Inc., a Delaware corporation (the “Company”), and each of Total Energies Nouvelles Activités USA (f.k.a. Total Gas & Power USA, SAS) (“Total”) and Maxwell (Mauritius) Pte Ltd (“Temasek”).

 

 

WHEREAS, the Company and the Purchasers are parties to that certain Securities Purchase Agreement dated August 8, 2013 (the “Agreement”).  Capitalized terms used in this Amendment and not otherwise defined herein have the meanings ascribed to them in the Agreement.

 

WHEREAS, the Company and each of Total and Temasek desire to amend the Agreement.

 

WHEREAS, pursuant to Section 9.15 of the Agreement, the Agreement may be amended with the written consent of each of the parties thereto (the “Requisite Parties”).

 

WHEREAS, the undersigned parties constitute the Requisite Parties.

 

NOW, THEREFORE, the parties hereby agree as follows:

 

1.           AMENDMENT OF PRELIMINARY STATEMENT OF THE AGREEMENT.  The Preliminary Statement of the Agreement is hereby amended and restated in its entirety to read as follows:

 

“Subject to the terms and conditions hereof, the Purchasers desire to purchase, and the Company desires to offer and sell to the Purchasers, (a) $51,822,184.41 in principal amount of the Company’s Tranche I Senior Convertible Notes (the “Tranche I Notes”) and (b) $30,433,512.10 in principal amount of the Company’s Tranche II Senior Convertible Notes (the “Tranche II Notes,” and, together with the Tranche I Notes, the “Securities” and each, a “Security”).  The Tranche I Notes will be evidenced by convertible notes in the form attached hereto as Exhibit A and the Tranche II Notes will be evidenced by convertible notes in the form attached hereto as Exhibit B. The Securities will be convertible into shares (the “Underlying Securities”) of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), in accordance with the terms of the Securities.”

 

2.           AMENDMENT OF SCHEDULE I OF THE AGREEMENT.  Schedule I of the Agreement is hereby amended and restated in its entirety to read as set forth on Schedule I hereto.

 

3.           AMENDMENT OF SECTION 6.1(K) OF THE AGREEMENT.  Section 6.1(k) of the Agreement is hereby amended and restated in its entirety to read as follows:

 

“(k)           Security Interest.   Unless Total shall have previously released all security interests it holds with respect to the Company’s and its subsidiaries’ Intellectual Property, including, but not limited to, any such security interest created in favor of Total pursuant to the Intellectual Property Security Agreement dated as of April 26, 2013, by the Company in favor of Total, and any related security documents, Total, each of the other Purchasers (the “New Secured Parties”), and the Company shall have executed an agreement in accordance with the terms of the MOU whereby the New Secured Parties shall be given a security interest in collateral that shall be acceptable to the New Secured Parties but that will not include any intellectual property that has been or will be licensed exclusively to Total pursuant to the terms of the Master Framework Agreement, made and entered into as of July 30, 2012, between the Company and Total (the “Master Framework Agreement”) and any agreements or amendments entered into pursuant thereto or in connection therewith (the “New Secured Party Collateral”), and the Company shall have used commercially reasonable efforts to perfect such security interest in the New Secured Party Collateral in accordance with applicable law.”

 

4.           ADDITION OF PARTIES TO AGREEMENT. Effective upon the execution of this Amendment, each of the parties set forth on Schedule II hereto shall become a party to the Agreement as a “Purchaser”, and in connection therewith they shall execute a counterpart signature page to the Agreement in substantially the form attached hereto as Exhibit A.

 

5.           FULL FORCE AND EFFECT.  Except as expressly modified by this Amendment, the terms of the Agreement shall remain in full force and effect.

 

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

 

7.           INTEGRATION.  This Amendment and the Agreement and the documents referred to herein and therein and the exhibits and schedules thereto, constitute the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.

 

8.           COUNTERPARTS; FACSIMILE.  This Amendment may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  This Amendment may be executed and delivered by facsimile, or by email in portable document format (.pdf) and delivery of the signature page by such method will be deemed to have the same effect as if the original signature had been delivered to the other parties.

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

 

 

 

By: /s/ John Melo                                     

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

 

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

 

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.