Item 3.02. Unregistered Sales of Equity Securities
As previously reported, on August 11, 2021 Amyris, Inc. (the "Company") entered
into (i) a Share Purchase Agreement (the "MGE Purchase Agreement") with MG
Empower Ltd. ("MG Empower") and the securityholders of MG Empower (the "MGE
Selling Stockholders"); (ii) an Agreement and Plan of Merger and Reorganization
(the "Olika Merger Agreement") with OLIKA Inc. ("Olika"), and the other parties
thereto (the selling stockholders of Olika receiving consideration pursuant to
the Olika Merger Agreement, the "Olika Selling Stockholders"); and (iii) a Note
Purchase Agreement (the "Olika Note Purchase Agreement") with Olika and the
selling stockholders party thereto (the "Olika Noteholders"). Furthermore, on
August 31, 2021, the Company entered into (i) a Share Purchase Agreement (the
"BL Purchase Agreement") with Beauty Labs International Limited ("Beauty Labs")
and the shareholders and warrant holders of Beauty Labs as set forth therein
(the "BL Stockholders") and (ii) Option Cancellation Agreements (the "BL Option
Cancellation Agreements" and, together with the MGE Purchase Agreement, the
Olika Merger Agreement, the Olika Note Purchase Agreement and the BL Purchase
Agreement, collectively the "Purchase Agreements") with Beauty Labs and the
option holders of Beauty Labs as set forth therein (the "BL Option Holders" and,
together with the BL Stockholders, collectively the "BL Selling Stockholders").
Closing Consideration
Subject to the terms and conditions of the respective Purchase Agreements,
(i) on August 11, 2021, the Company issued (a) 503,081 shares of the Company's
common stock, par value $0.0001 per share ("Common Stock") to the MGE Selling
Stockholders as consideration for the acquisition of the outstanding shares of
MG Empower, and (b) 982,898 shares of Common Stock to the Olika Selling
Stockholders and the Olika Noteholders as consideration for the acquisition of
Olika and the purchase of outstanding notes from the Olika Noteholders,
respectively; and (ii) on September 1, 2021, the Company issued 2,094,500 shares
of Common Stock (the "BL Securities") to the BL Selling Stockholders as
consideration for the acquisition of the outstanding shares of Beauty Labs and
the cancellation of outstanding Beauty Labs warrants and stock options,
respectively.
Potential Future Consideration
The actual number of shares that will be issued under the Purchase Agreements
pursuant to certain purchase price adjustment, deferred payment and earnout
provisions, as applicable, will depend on (i) the amount of any such purchase
price adjustment, (ii) the extent of fulfillment of the applicable earnout
targets, (iii) the share issuance price at the time of any such payment, and
(iv) whether there are any offsetting indemnification claims or other applicable
offsets. In certain cases, the Company in its discretion may elect to pay any
such purchase price adjustment, deferred payment and/or earnout payments either
in cash or Common Stock, including in the event that any issuance of Common
Stock in respect of any such payments would require the Company to obtain
shareholder approval pursuant to Nasdaq Listing Rule 5635(d).
The shares issued or to be issued pursuant to the respective Purchase Agreements
were issued in private placements pursuant to the exemption from registration
under Section 4(a)(2) of the Securities Act of 1933, as amended (the "Securities
Act"), and Rule 506(b) of Regulation D promulgated under the Securities Act
("Regulation D"), without general solicitation, made only to and with
"accredited investors" as defined in Regulation D, or under Regulation S
promulgated under the Securities Act ("Regulation S"), made only to and with
recipients of such shares that are not "U.S. Persons" as defined in
Regulation S.
Item 8.01. Other Events.
The information contained in Item 3.02 of this Current Report on Form 8-K in
relation to Beauty Labs, the BL Purchase Agreement, the BL Option Cancellation
Agreements, the BL Selling Stockholders and the BL Securities is incorporated
herein by reference.
Pursuant to the terms and conditions of the BL Purchase Agreement, the Company
agreed to file a prospectus supplement, which supplements the Prospectus filed
with the SEC on April 7, 2021 together with a Registration Statement on Form
S-3ASR (File No. 333-255105), to register the resale of the BL Securities (the
"Offering"), under which each of the BL Selling Stockholders may sell its
respective BL Securities. The Company will not receive any proceeds from the
Offering.
A copy of the opinion of Fenwick & West LLP, relating to the validity of certain
of the shares in connection with the Offering, is filed with this Current Report
on Form 8-K as Exhibit 5.1.
Item 9.01. Financial Statements and Exhibits.
Exhibit
No. Description
5.1 Opinion of Fenwick & West LLP
23.1 Consent of Fenwick & West LLP (contained in Exhibit 5.1)
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
Forward Looking Statements.
This Current Report on Form 8-K contains forward-looking statements within the
meaning of the U.S. Private Securities Litigation Reform Act of 1995 and other
federal securities laws. Any statements contained herein that do not describe
historical facts, are forward-looking statements that involve risks and
uncertainties that could cause actual results to differ materially from those
discussed in such forward-looking statements. Such risks and uncertainties
include, among others, the extent of fulfillment of any of the earnout targets
under any of the Purchase Agreements, the number of shares potentially issuable
under the Purchase Agreements, the risks identified in the Company's filings
with the SEC, including its Annual Report on Form 10-K for the fiscal year ended
December 31, 2020, filed with the SEC on March 5, 2021, the prospectus
supplement related to the BL Selling Stockholders, and subsequent filings with
the SEC. Any of these risks and uncertainties could materially and adversely
affect the Company's results of operations, which would, in turn, have a
significant and adverse impact on the Company's stock price. The Company
cautions you not to place undue reliance on any forward-looking statements,
which speak only as of the date they are made. The Company undertakes no
obligation to update publicly any forward-looking statements to reflect new
information, events or circumstances after the date they were made or to reflect
the occurrence of unanticipated events.
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