0001140361-18-043689.txt : 20181126 0001140361-18-043689.hdr.sgml : 20181126 20181126170850 ACCESSION NUMBER: 0001140361-18-043689 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20181126 DATE AS OF CHANGE: 20181126 GROUP MEMBERS: KONINKLIJKE DSM N.V. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMYRIS, INC. CENTRAL INDEX KEY: 0001365916 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL ORGANIC CHEMICALS [2860] IRS NUMBER: 550856151 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-85969 FILM NUMBER: 181201390 BUSINESS ADDRESS: STREET 1: 5885 HOLLIS STREET, SUITE 100 CITY: EMERYVILLE STATE: CA ZIP: 94608 BUSINESS PHONE: 510-450-0761 MAIL ADDRESS: STREET 1: 5885 HOLLIS STREET, SUITE 100 CITY: EMERYVILLE STATE: CA ZIP: 94608 FORMER COMPANY: FORMER CONFORMED NAME: AMYRIS BIOTECHNOLOGIES INC DATE OF NAME CHANGE: 20060613 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DSM International B.V. CENTRAL INDEX KEY: 0001706502 IRS NUMBER: 000000000 STATE OF INCORPORATION: P7 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: HET OVERLOON 1 CITY: HEERLEN STATE: P7 ZIP: 6411 TE BUSINESS PHONE: 31-455782870 MAIL ADDRESS: STREET 1: HET OVERLOON 1 CITY: HEERLEN STATE: P7 ZIP: 6411 TE SC 13D/A 1 formsc13da.htm SC 13D/A
United States
Securities and Exchange Commission
Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)
Information to be Included in Statements Filed Pursuant to § 240.13d-1(a) and
Amendments Thereto Filed Pursuant to § 240.13d-2(a)

Under the Securities Exchange Act of 1934
(Amendment No. 3)*

Amyris, Inc.
(Name of Issuer)

Common Stock
(Title of Class of Securities)

03236M200
(CUSIP Number)

Hugh C. Welsh
Koninklijke DSM N.V.
Het Overloon 1
6411 TE Heerlen
The Netherlands
 (Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

November 19, 2018
(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.


* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).



CUSIP No. 03236M200
13D
Page 1 of 7 Pages

1
NAMES OF REPORTING PERSONS
 
 
DSM International B.V.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
 
(b)
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
 
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
The Netherlands
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
0
 
 
 
 
8
SHARED VOTING POWER
 
 
20,943,585
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
0
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
20,943,585
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
20,943,585
 
 
 
 
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
24.9%
 
 
 
 
14
TYPE OF REPORTING PERSON
 
 
CO
 
 
 
 


CUSIP No. 03236M200
13D
Page 2 of 7 Pages

1
NAMES OF REPORTING PERSONS
 
 
Koninklijke DSM N.V.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
 
(b)
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
 
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
The Netherlands
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
0
 
 
 
 
8
SHARED VOTING POWER
 
 
20,943,585
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
0
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
20,943,585
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
20,943,585
 
 
 
 
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
24.9%
 
 
 
 
14
TYPE OF REPORTING PERSON
 
 
CO
 
 
 
 


CUSIP No. 03236M200
13D
Page 3 of 7 Pages

Explanatory Note

This Amendment No. 3 to Schedule 13D (this “Amendment No. 3”) amends and supplements the Statement on Schedule 13D filed with the United States Securities and Exchange Commission on July 17, 2017 (the “Statement”), relating to the common stock, par value $0.0001 per share (the “Common Stock”), of Amyris, Inc. (the “Issuer”). Capitalized terms used herein without definition shall have the meaning set forth in the Statement.

Item 3.
Source and Amount of Funds or Other Consideration.

Item 3 of the Statement is amended and supplemented by the following:

Pursuant to the SPA (as defined below), on November 20, 2018, the Issuer issued 1,643,991 shares of Common Stock to DSM International B.V. (“DSM International”) as consideration for certain agreements of  DSM Nutritional Products AG (“DSM Nutritional”) set forth in the Supply Agreement Amendment (as defined below).

In addition, on November 19, 2018, DSM International (i) exercised the anti-dilution warrants issued pursuant to the Securities Purchase Agreement dated as of May 8, 2017 (the “Tranche I Anti-Dilution Warrants”) in exchange for 964,837 shares of Common Stock at a price per share of $0.0015 and (ii) exercised the anti-dilution warrants issued pursuant to the Securities Purchase Agreement dated as of August 2, 2017 (the “Tranche II Anti-Dilution Warrants”) in exchange for 1,713,565 shares of Common Stock at a price per share of $0.0001. The exercise price for the Tranche I Anti-Dilution Warrants and the Tranche II Anti-Dilution Warrants was paid from the operating funds of DSM International.

Item 4.
Purpose of Transaction.

Item 4 of the Statement is amended and supplemented by the following:

Securities Purchase Agreement

On November 19, 2018, DSM Nutritional, an affiliate of DSM International, entered into Amendment No. 1 to the Supply Agreement dated as of December 28, 2017 (the “Supply Agreement Amendment”) with the Issuer. Pursuant to Section 2 of the Supply Agreement Amendment, on November 19, 2018, the Issuer and DSM International entered into a Securities Purchase Agreement (the “SPA”) pursuant to which DSM International acquired 1,643,991 shares of Common Stock (the “Securities”) from the Issuer. Under the terms of the SPA, the Issuer has agreed to file a resale registration statement on Form S-3 and to use commercially reasonable efforts to (i) cause such registration statement to become effective within 181 days following the date of the SPA and (ii) keep such registration statement effective until DSM International does not own any Securites or the Securities are eligible for resale under Rule 144 without regard to volume limitations.


CUSIP No. 03236M200
13D
Page 4 of 7 Pages

IP Lien Letter Agreement

Also on November 19, 2018, DSM Nutritional and the Issuer entered into a Letter Agreement (the “IP Lien Letter Agreement”) pursuant to which the Issuer has agreed (i) to cause the removal of certain existing liens on intellectual property owned by the Issuer and licensed to DSM Nutritional and (ii) if such liens are not removed prior to December 15, 2018, to issue to DSM International shares of Common Stock with a value equal to $5,000,000.

Warrant Agreements

The Issuer and DSM International have also entered into two agreements, each dated as of November 19, 2018 (the “Warrant Agreements”), in order to clarify (i) the current exercise price of the Cash Warrants issued pursuant to the Securities Purchase Agreement dated as of May 8, 2017 (the “Tranche I Cash Warrants”), (ii) the current exercise price of the Cash Warrants issued pursuant to the Securities Purchase Agreement dated as of August 2, 2017 (the “Tranche II Cash Warrants”) and (iii) certain terms of the Tranche I Anti-Dilution Warrants and Tranche II Anti-Dilution Warrants. Pursuant to the terms of the Warrant Agreements, the parties agreed that the exercise price for each of the Tranche I Cash Warrants and Tranche II Cash Warrants was $4.40 per share. In addition, the parties agreed that the Base Share Price (as defined in the applicable Securities Purchase Agreement) in the lowest-priced dilutive issuance was $4.40 per share.

The foregoing descriptions of the SPA, IP Lien Letter Agreement and Warrant Agreements do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements filed as exhibits to this Statement and incorporated herein by reference.

Item 5.
Interest in Securities of the Issuer.

Item 5 of the Statement is amended and restated in its entirety as follows:

(a) – (b)

The following sets forth, as of the date of this Amendment No. 3, the aggregate number of shares of Common Stock and percentage of Common Stock beneficially owned by each of the Reporting Persons, as well as the number of shares of Common Stock as to which each Reporting Person has the sole power to vote or to direct the vote, shared power to vote or to direct the vote, sole power to dispose or to direct the disposition of, or shared power to dispose or to direct the disposition of, as of the date hereof, based on (i) based on 71,910,536 shares of Common Stock outstanding on November 9, 2018, (ii) accounting for the issuance of 1,643,991 shares of Common Stock pursuant to the SPA, (iii) giving effect to the exercise of the Tranche I Anti-Dilution Warrants and the Tranche II Anti-Dilution Warrants and (iv) assuming issuance of 7,936,232 shares of Common Stock issuable upon exercise of the Tranche I Cash Warrants and the Tranche II Cash Warrants.


CUSIP No. 03236M200
13D
Page 5 of 7 Pages

Reporting Person
 
Amount
beneficially
owned
   
Percent
of class
   
Sole
power to
vote or
to direct
the vote
   
Shared
power to
vote or to
direct the
vote
   
Sole
power to
dispose or
to direct
the
disposition
   
Shared
power to
dispose or
to direct
the
disposition
 
DSM International B.V.
   
20,943,585
     
24.9
%
   
0
     
20,943,585
     
0
     
20,943,585
 
Koninklijke DSM N.V.
   
20,943,585
     
24.9
%
   
0
     
20,943,585
     
0
     
20,943,585
 

The securities reported herein are held of record by DSM International and include (i) 13,007,353 shares of Common Stock, (ii) 3,968,116 shares of Common Stock issuable upon exercise of the Tranche I Cash Warrants and (iii) 3,968,116 shares of Common Stock issuable upon exercise of the Tranche II Cash Warrants.

DSM International is a wholly owned subsidiary of Koninklijke DSM N.V., which is a publicly traded company with securities listed on the Amsterdam Stock Exchange. Accordingly, Koninklijke DSM N.V. may be deemed to share beneficial ownership of the securities held of record by DSM International.

(c)
Except as described in Item 4, during the past 60 days none of the Reporting Persons has effected any transactions in the Common Stock.

(d)
None.

(e)
Not applicable.

Item 6.
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Statement is amended and supplemented by the following:

Item 4 above summarizes certain provisions of the SPA, IP Lien Letter Agreement, and Warrant Agreements and is incorporated herein by reference. Copies of these agreements are attached as exhibits to this Statement, and are incorporated herein by reference.

Except as set forth herein, none of the Reporting Persons has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to any contracts, arrangements, understandings or relationships concerning the transfer or voting of such securities, finder’s fees joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies.


CUSIP No. 03236M200
13D
Page 6 of 7 Pages

Item 7.
Materials to be Filed as Exhibits

Item 7 of the Statement is amended and supplemented by the following:

Exhibit
Number
 
Description
4
 
Securities Purchase Agreement, dated November 19, 2018, by and between Amyris, Inc. and DSM International B.V. (incorporated by reference to Exhibit 10.1 to the Issuer’s Current Report on Form 8-K filed on November 26, 2018).
     
5
 
Letter Agreement, dated November 19, 2018, by and between Amyris, Inc. and DSM Nutritional Products Ltd. (incorporated by reference to Exhibit 10.2 to the Issuer’s Current Report on Form 8-K filed on November 26, 2018).
     
 
Agreement, dated November 19, 2018, by and between Amyris, Inc. and DSM International B.V.
     
 
Agreement, dated November 19, 2018, by and between Amyris, Inc. and DSM International B.V.


CUSIP No. 03236M200
13D
Page 7 of 7 Pages

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: November 26, 2018

 
DSM International B.V.
 
 
By:
/s/ Hugh Welsh
 
 
Name:
Hugh Welsh
 
Title:
President, DSM North America

 
KONINKLIJKE DSM N.V.
 
 
By:
/s/ Hugh Welsh
 
 
Name:
Hugh Welsh
 
Title:
President, DSM North America



EX-99.6 2 ex99_6.htm EXHIBIT 6
Exhibit 6

AGREEMENT

This agreement (this “Agreement”) is dated as of the date of the last signature below (the “Effective Date”), by and between Amyris, Inc., a Delaware corporation (the “Company”) and the “Holder” identified on the signature pages hereto.

WHEREAS, the Company and the Holder are parties to that certain Securities Purchase Agreement, dated as of May 8, 2017 (as amended, the “SPA”), by and among the Company and the investors parties thereto.

WHEREAS, in connection with the closing of the transactions contemplated by the SPA (the “Closing”), on May 11, 2017, the Company issued to the Holder warrants to purchase shares of common stock, par value $0.0001 (the “Common Stock”) of the Company (collectively, the “Warrants”; capitalized terms used but not defined herein shall have the meanings given to such terms in the SPA or Warrants, as applicable), which Warrants contain provisions protecting the Holder from dilution in connection with certain issuances by the Company of equity or equity-linked securities during the three-year period following the Closing at a per share price less than, with respect to the Cash Warrants, the then-current exercise price, and with respect to the Anti-Dilution Warrants, the Base Share Price in the lowest-priced Dilutive Issuance as of such issuance (collectively, the “Anti-Dilution Provisions”).

WHEREAS, on August 3, 2017, the Company consummated the sale and issuance of shares of Common Stock, shares of its Series D Convertible Preferred Stock, and warrants to purchase Common Stock to affiliates of Vivo Capital LLC (the “Vivo Transaction”), which sale and issuance triggered the application of the Anti-Dilution Provisions.

WHEREAS, the parties desire to enter into this Agreement to (i) clarify the current Exercise Price of the Cash Warrants and, with respect to the Anti-Dilution Warrants, the Base Share Price in the lowest-priced Dilutive Issuance as of the Effective Date, taking into account the Vivo Transaction and (ii) clarify the process for applying the Anti-Dilution Provisions to potential future issuances by the Company of Common Stock and/or one or more forms of Common Stock Equivalents (other than Exempt Issuances) in a Dilutive Issuance.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Holder agree as follows:

1.         Current Exercise Price and Warrant Share Amount.  The parties agree that, notwithstanding anything in the Warrants to the contrary, as of the Effective Date (a) the Exercise Price of all of the Warrant Shares underlying the Cash Warrants held by the Holder is $4.40 per share and (b) for the purpose of calculating the Warrant Share Amount under the Anti-Dilution Warrants held by the Holder, the Base Share Price in the lowest-priced Dilutive Issuance is $4.40 per share. For the avoidance of doubt, the foregoing shall not affect the application of the Anti-Dilution Provisions to any issuance occurring after the Effective Date, which application shall be made in accordance with the terms of the Warrants, as clarified by Section 2 below.

2.          Future Application of Anti-Dilution Provisions.  For the purposes of clarification only and not in any way an amendment of the terms of the Warrants, the parties agree that, in calculating the Base Share Price under Section 3(b) of the Cash Warrants and Section 1(c) of the Anti-Dilution Warrants, for any Dilutive Issuance in which the Company issues Common Stock and/or one or more forms of Common Stock Equivalents in a single transaction at various prices (including, without limitation, in the form of units consisting of shares of Common Stock and warrants or other options to purchase Common Stock), the Base Share Price shall be the lowest effective sale price, conversion price or exercise price per share, as applicable, of any security in such issuance, considering each security separately. By way of illustration and example, if the Company were to sell shares of Common Stock together with warrants to purchase shares of Common Stock as a unit (consisting of one share of Common Stock and a warrant to purchase one share of Common Stock) at a unit price of $4.00, with an exercise price of the warrants of $5.00 per share, the Base Share Price for such Dilutive Issuance would be $4.00 per share.


3.          Full Force and Effect.  Except as expressly clarified by this Agreement, the terms of the Warrants shall remain in full force and effect.

4.         Entire Agreement.  This Agreement and the Warrants 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.

5.        Most Favored Nation.  The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof that none of the terms granted to any Person with respect to any agreement, clarification document, consent, release, amendment, settlement or waiver relating to the terms, conditions and transactions contemplated hereby (each, an “Amendment Document”), is or will be more favorable to such Person than those of the Holder and this Agreement (other than as to legal expenses). The provisions of this Section 5 shall apply similarly and equally to each Amendment Document.

6.         Execution. This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile, or by email in portable document format (.pdf), and delivery of any signature page by such method will be deemed to have the same effect as if the original signature had been delivered to the other party.

7.          Amendments; Waivers.  No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed by each of the Company and the Holder.

8.         Governing Law.  This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. The parties agree that the state and federal courts located within the State of New York shall have exclusive jurisdiction over any dispute arising out of this Agreement or the Warrants and waive all challenges to the jurisdiction of such courts.

9.          Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns.

[Signature Page Follows]

2

IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth below.

AMYRIS, INC.

By: /s/ John Melo
 

Name:
John Melo
 

Title: President and CEO
 

Date:
November 19
, 2018


IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth below.

HOLDER:
 
DSM INTERNATIONAL B.V.

By: /s/ Philip Eykerman
 

Name:
Philip Eykerman
 

Title: Executive Vice President M&A
 

Date:
November 19
, 2018

By: /s/ Michael Wahl
 

Name:
Michael Wahl
 

Title: Vice President M&A  

Date:
November 19
, 2018



EX-99.7 3 ex99_7.htm EXHIBIT 7
Exhibit 7

AGREEMENT

This agreement (this “Agreement”) is dated as of the date of the last signature below (the “Effective Date”), by and between Amyris, Inc., a Delaware corporation (the “Company”) and DSM International B.V. (the “Holder”).

WHEREAS, the Company and the Holder are parties to that certain Securities Purchase Agreement, dated August 2, 2017 (the “SPA”), by and between the Company and the Holder.

WHEREAS, in connection with the closing of the transactions contemplated by the SPA (the “Closing”), on August 7, 2017, the Company issued to the Holder warrants to purchase shares of common stock, par value $0.0001 (the “Common Stock”) of the Company (collectively, the “Warrants”; capitalized terms used but not defined herein shall have the meanings given to such terms in the SPA or Warrants, as applicable), which Warrants contain provisions protecting the Holder from dilution in connection with certain issuances by the Company of equity or equity-linked securities during the three-year period following the Closing at a per share price less than, with respect to the Cash Warrant, the then-current exercise price, and with respect to the Anti-Dilution Warrant, the Base Share Price in the lowest-priced Dilutive Issuance as of such issuance (collectively, the “Anti-Dilution Provisions”).

WHEREAS, on August 17, 2018, the Company amended certain warrants to purchase Common Stock originally issued to affiliates of Vivo Capital LLC (collectively, “Vivo”) on August 3, 2017 pursuant to the Securities Purchase Agreement, dated August 2, 2017 (the “Vivo SPA”), by and between the Company and Vivo by, among other things, reducing the exercise price of such warrants from $6.39 per share to $4.40 per share (the “Vivo Amendments”).

WHEREAS, the parties desire to enter into this Agreement to (i) clarify the current Exercise Price of the Cash Warrant and, with respect to the Anti-Dilution Warrant, the Base Share Price in the lowest-priced Dilutive Issuance as of the Effective Date, taking into account the Vivo Amendments and (ii) provide for a waiver by the Holder of certain claims against the Company under the SPA and the Warrants, including as a result of the Vivo Amendments.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Holder agree as follows:

1.         Current Exercise Price and Warrant Share Amount.  The parties agree that, notwithstanding anything in the Warrants to the contrary, as of the Effective Date (a) the Exercise Price of all of the Warrant Shares underlying the Cash Warrant held by the Holder is $4.40 per share and (b) for the purpose of calculating the Warrant Share Amount under the Anti-Dilution Warrant held by the Holder, the Base Share Price in the lowest-priced Dilutive Issuance is $4.40 per share. For the avoidance of doubt, the foregoing shall not affect the application of the Anti-Dilution Provisions to any issuance occurring after the Effective Date, which application shall be made in accordance with the terms of the Warrants, as clarified by Section 2 below.

2.        Waiver and Release.  As consideration for the Company to enter into this Agreement, to the fullest extent permitted by law, the Holder hereby waives, and releases the Company from any claim relating to or arising from, any breach of any representation, warranty, agreement or covenant made by the Company in the SPA as a result of (i) the Company reporting and using an effective per share price for the securities issued pursuant to the Vivo SPA of $4.40 per share for purposes of any anti-dilution or other similar rights under any securities of the Company and (ii) the Vivo Amendments, including the representations, warranties, agreements and covenants of the Company set forth in Sections 3.1(l), 3.1(m) and 4.13 of the SPA (the “Released Claims”). The Holder further agrees, promises, and covenants that it will not, nor will any person, organization or any other entity acting on its behalf, file, charge, claim, sue, participate in, join or cause or permit to be filed, charged or claimed, any administrative complaint, action for damages, or other relief (including injunctive, declaratory, monetary or other) against the Company with respect to the Released Claims. The parties agree that this Agreement may be pleaded as a full and complete defense to any and all Released Claims. Each party acknowledges and consents that this Agreement may be used as the basis for an injunction to halt any action, suit or other proceeding based upon the Released Claims.  The Holder further represents and warrants that: (i) it owns the Released Claims; (ii) it has not sold, assigned, conveyed or otherwise transferred any rights in or related to any Released Claim; (iii) no other person or entity has any interest in the Released Claims; and (iv) it has the sole right to release such claims.


3.          Full Force and Effect.  Except as expressly clarified or waived by this Agreement, the terms of the SPA and the Warrants shall remain in full force and effect.

4.          Entire Agreement.  This Agreement, the SPA and the Warrants 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.

5.         Execution. This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile, or by email in portable document format (.pdf), and delivery of any signature page by such method will be deemed to have the same effect as if the original signature had been delivered to the other party.

6.          Amendments; Waivers.  No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed by each of the Company and the Holder.

7.         Governing Law.  This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. The parties agree that the state and federal courts located within the State of New York shall have exclusive jurisdiction over any dispute arising out of this Agreement or the Warrants and waive all challenges to the jurisdiction of such courts.

8.          Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns.

[Signature Page Follows]

2

IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth below.

AMYRIS, INC.

By: /s/ John Melo  

Name:
John Melo
 

Title: President and CEO  

Date:
November 19
, 2018


IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth below.

DSM INTERNATIONAL B.V.

By: /s/ Philip Eykerman  

Name:
Philip Eykerman
 

Title: Executive Vice President M&A  

Date:
November 19
, 2018

By: /s/ Michael Wahl  

Name:
Michael Wahl
 

Title: Vice President M&A  

Date:
November 19
, 2018