AMRS Amyris Inc

Convertible Notes and Indenture

On November 15, 2021, Amyris, Inc. (the “Company”) completed its previously announced sale of $600.0 million aggregate principal amount of 1.50% convertible senior notes due 2026 (the “notes”), in a private placement in reliance on Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), to the Initial Purchasers (as defined below) for initial resale to persons reasonably believed to be qualified institutional buyers pursuant to an exemption from registration provided by Rule 144A promulgated under the Securities Act. The Initial Purchasers exercised their options to purchase an additional $90.0 million aggregate principal amount of notes in full, on November 11, 2021 for issuance on November 15, 2021.

The notes were issued pursuant to an Indenture, dated as of November 15, 2021 (the “Indenture”), between the Company and U.S. Bank National Association, as trustee (“U.S. Bank”). The notes are senior, unsecured obligations of the Company. The notes will bear interest at a rate of 1.50% per year, payable in cash semiannually in arrears on November 15 and May 15 of each year, beginning on May 15, 2022. The notes mature on November 15, 2026 unless earlier repurchased, redeemed or converted in accordance with their terms prior to such date.

The Company may not redeem the notes prior to November 20, 2024. The Company may redeem for cash all or part of the notes, at its option, on or after November 20, 2024, if certain conditions are met. No sinking fund is provided for the notes.

The Indenture includes customary terms and covenants including certain events of default after which the notes may be due and payable immediately. The following events are considered “events of default,” which may result in acceleration of the maturity of the notes:

The notes are convertible into cash, shares of common stock, or a combination thereof, at the Company’s election, at an initial conversion rate of 93.0579 shares of common stock per $1,000 principal amount of the notes, which is equivalent to an initial conversion price of approximately $10.75 per share of common stock, with a maximum conversion rate of 125.6281. The initial conversion rate and maximum conversion rate are subject to adjustment in accordance with the Indenture. Prior to 5:00 p.m., New York City time, on the business day immediately preceding June 15, 2026, such conversion is subject to the satisfaction of certain conditions set forth below.

Holders of the notes who convert their notes in connection with a make-whole fundamental change (as defined in the Indenture) or in connection with any optional redemption are, under certain circumstances, entitled to an increase in the conversion rate. Additionally, in the event of a fundamental change (as defined in the Indenture), holders of the notes may require the Company to repurchase all or a portion of their notes at a price equal to 100% of the principal amount of notes, plus accrued and unpaid interest, if any, to, but excluding, the repurchase date.

Holders of the notes may convert all or a portion of their notes at their option prior to 5:00 p.m., New York City time, on the business day immediately preceding June 15, 2026, in multiples of $1,000 principal amount, only under the following circumstances:

On or after June 15, 2026, a holder of the notes may convert all or any portion of its notes at any time prior to 5:00 p.m., New York City time, on the second scheduled trading day immediately preceding the maturity date regardless of the foregoing conditions.

The aggregate net proceeds from the offering of the notes were approximately $670.5 million, after deducting the initial purchasers’ discount and estimated offering expenses payable by the Company. The Company used approximately (i) $81.1 million of the net proceeds to pay the cost of the capped call transactions described below and (ii) $51.0 million of the net proceeds to repay some of its existing senior debt instruments. The Company intends to use the remaining net proceeds for general corporate purposes, which may include, among other things, repaying indebtedness and expanding its current business through acquisitions of, or investments in, other businesses, products or technologies.

A copy of the Indenture is attached hereto as Exhibit 4.1 and is incorporated herein by reference. The description of the notes contained in this Form 8-K is qualified in its entirety by reference to the Indenture.

Capped Call Transactions

On November 9, 2021, in connection with the pricing of the notes, and on November 11, 2021, in connection with the full exercise by the Initial Purchasers of their option to purchase additional notes pursuant to the Purchase Agreement, the Company entered into privately auctioned and negotiated capped call transactions (the “Capped Call Transactions”) with the Initial Purchasers or their respective affiliates and other financial institutions (the “Capped Call Counterparties”). The Capped Call Transactions initially cover, subject to anti-dilution adjustments substantially similar to those applicable to the notes, the number of shares of common stock underlying the notes. The cap price of the capped call transactions is $15.92 per share, which represents a premium of 100% over the closing price of Amyris common stock of $7.96 per share on the Nasdaq Global Select Market on November 9, 2021.

In connection with establishing their initial hedge of the Capped Call Transactions, the Capped Call Counterparties have advised the Company that they and/or their respective affiliates expect to purchase shares of common stock and/or enter into various derivative transactions with respect to common stock concurrently with, or shortly after, the pricing of the notes. This activity could contribute to the expected increase (or reduce the size of any decrease in) in the market price of common stock or the notes at that time.

In addition, the Capped Call Counterparties and/or their respective affiliates may modify their hedge positions by entering into or unwinding various derivatives with respect to common stock and/or purchasing or selling common stock in secondary market transactions following the pricing of the notes and prior to the maturity of the notes (and are likely to do so during any observation period related to a conversion of notes and may do so following any repurchase of notes by the Company on any fundamental change repurchase date or otherwise). This activity could also cause or avoid an increase or a decrease in the market price of common stock or the notes, which could affect noteholders’ ability to convert the notes and, to the extent the activity occurs during any observation period related to a conversion of the notes, it could affect the number of shares and value of the consideration that noteholders will receive upon conversion of such notes.

The Capped Call Transactions are separate transactions entered into by the Company with the Capped Call Counterparties, are not part of the terms of the notes, and will not change any holder’s rights under the notes. Holders of the notes will not have any rights with respect to the Capped Call Transactions.

The forms of the base capped call transaction confirmation (the “Base Capped Call Confirmation”) and the additional capped call transaction confirmation (the “Additional Capped Call Confirmation”) are attached hereto as Exhibit 99.1 and Exhibit 99.2, respectively, and are incorporated by reference. The descriptions of the Base Capped Call Confirmation and the Additional Capped Call Confirmation contained in this Form 8-K are qualified in their entirety by reference to Exhibit 99.1 and Exhibit 99.2, respectively.

Foris LSA Amendment

As previously reported, the Company and certain of the Company’s subsidiaries (the “Subsidiary Guarantors”) are party to an Amended and Restated Loan and Security Agreement, dated October 28, 2019 (as amended, the “LSA”), by and among the Company, certain of its subsidiaries and Foris, under which approximately $50.0 million is outstanding (the “Secured Indebtedness”). The provisions of the LSA and related matters were previously reported in a Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission (the “SEC”) on November 1, 2019, and all of such disclosure is incorporated herein by reference.

On November 9, 2021, the Company, the Subsidiary Guarantors and Foris entered into Amendment No 2 to the LSA (the “LSA Amendment”), pursuant to which, among other things, (i) the definition of Permitted Indebtedness was amended to permit the issuance of the notes; and (ii) the definitions of Permitted Investment and Permitted Transfer were amended to permit the Capped Call Transactions.

The LSA Amendment is attached hereto as Exhibit 10.1, and the description of the LSA amendment is qualified in its entirety by reference to Exhibit 10.1.

Agreement, the Company has agreed to indemnify the Initial Purchasers against certain liabilities under the Securities Act. The notes and the shares of the Company’s common stock, par value $0.0001 per share (“common stock”) issuable upon conversion of the notes, if any, have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.