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...
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. | ||||
EXECUTION COPY | |
Dated December 2, 2013 | |
Total Energies Nouvelles Activités USA and and Stichting Total Amyris BioSolutions (as Escrow Agent) | |
relating to shares in Total Amyris BioSolutions B.V. | |
 | |
Linklaters LLP World Trade Centre Amsterdam Zuidplein 180 1077 XV Amsterdam | |
Telefoon (x00) 00 000 0000 | |
Telefax (x00) 00 000 0000 | |
Ref BJK/PS/L-201990 | |
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Table of Contents
Contents Page
1 Definitions and interpretation 5
2 Appointment of Escrow Agent 7
3 Nature of Agreement 7
4 The Escrow Shares 7
5 Dividends and other distributions 8
6 The exercise of voting rights and other rights attributable to the Escrow Shares 9
7 Release of the Escrow Shares 10
8 Shift of entitlement related rights attributable to Escrow Shares 13
9 Rights and duties of the Escrow Agent 13
10 Power of attorney 14
11 Resignation and substitution of the Escrow Agent 14
12 Costs of transfer 14
13 Duration and Termination 15
14 Representations and warranties 15
15 The Notary 15
16 General provisions 15
Signature Page 21
Annex 1 - Deed of Pledge 21
Annex 2 - Deed of Transfer and Pledge 23
Annex 3 – Notice of Election 24
Annex 4 – Notice of Payment of Preferred Shares Option Price 25
Annex 5 – Rescission Notice 27
Annex 6 – Notice of Completion of Foreclosure Sale 28
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Annex 7 – Notice of Right of First Offer 31
Annex 8 – Power of Attorney JVCO 33
Annex 9 – Format Deed of Transfer 34
Annex 10 –SHA 35
Annex 11 – JVCO Articles of Association 36
Annex 12 – Escrow Agent Articles of Association 37
Annex 13 – Format power of attorney Escrow Agent to Amyris for exercising Voting Rights 38
Annex 14 – Notarial Deeds of Conditional Transfer 39
Annex 15 – Signatures specimen 40
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This escrow agreement (this “Agreement”) is made December 2, 2013 by and among:
(1) | Total Energies Nouvelles Activités USA, a company incorporated under the laws of |
France (société par actions simplifiée), having its official seat (siège social) at 24 Cours
Michelet, 92800 Puteaux, France, registered with the French Commercial Register (Registre
du Commerce et des Sociétés, Greffe du Tribunal de Commerce de Nanterre) under
number 505 028 118 (“XXXX USA”);
(2) | Amyris, Inc., a corporation incorporated under the laws of Delaware, United States of |
America, having its registered office is at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX
94608, United States of America, registered with the Secretary of State of Delaware, United
States of America, under number 4768633 (“Amyris”); and
(3) | Stichting Total Amyris BioSolutions, a foundation incorporated under the laws of |
the Netherlands (stichting), having its official seat (statutaire zetel) in Amsterdam, the
Netherlands, and its office at Xxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, xxx
Netherlands, registered with the Dutch Trade Register of the Xxxxxxxx of Commerce under
number 59329483 (the “Escrow Agent”),
(XXXX USA, Xxxxxx and the Escrow Agent jointly the “Parties” and each a “Party”).
Whereas:
(A) | XXXX USA and Xxxxxx are the sole shareholders of Total Amyris BioSolutions B.V., a private company with limited liability incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid), having its official seat (statutaire zetel) in Amsterdam, the Netherlands, and its office at Xxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx, registered with the Dutch Trade Register of the Xxxxxxxx of Commerce under number 59337494 (“JVCO”). |
(B) | On the Closing Date (as defined hereinafter), XXXX USA and Xxxxxx entered into a Shareholders’ Agreement (the “SHA”) in respect of JVCO. |
(C) | The JVCO Articles of Association (as defined hereinafter) have been established pursuant to JVCO’s deed of incorporation executed on the Closing Date. |
(D) | The Escrow Agent Articles of Association (as defined hereinafter) have been established pursuant to the Escrow Agent’s deed of incorporation executed on November 28, 2013. |
(E) | On the Closing Date, Xxxxxx granted a security interest in favor of XXXX USA in all of its rights, title and interest in and to the Escrow Shares (as defined hereinafter), dividend rights, reversionary rights and other rights attached to the Escrow Shares, all as set forth in and by way of a pledge agreement executed as a notarial deed of pledge (the “Deed of Pledge”) by and between Xxxxxx and XXXX USA, and in the presence of and acknowledged by JVCO. A copy of the Deed of Pledge is attached hereto as Annex 1. |
(F) | XXXX USA, Xxxxxx and the Escrow Agent desire for the Escrow Shares to be legally transferred to the Escrow Agent and held in administration by the Escrow Agent in accordance with the terms and conditions set out in this Agreement. |
(G) | The Parties desire to establish the terms and conditions pursuant to which the Escrow Shares will be administered by the Escrow Agent, including their respective rights and obligations in relation to the Escrow Shares, all as set forth in this Agreement. |
IT IS AGREED AS FOLLOWS:
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1 | Definitions and interpretation |
1.1 | Definitions |
In this Agreement unless the context otherwise requires:
“Business Day” means any day other than (i) Saturday or Sunday, (ii) any day that is a legal holiday pursuant to the laws of the Netherlands, or (iii) any day that is a day on which banking institutions located in Amsterdam, the Netherlands, are authorized or required by law or governmental action to close.
“Class A Note” means the “Class A Secured Promissory Note”, dated as of the Closing Date, made by Xxxxxx in favor of XXXX USA in the original principal amount of fifty thousand euro (EUR 50,000).
“Class A Common Share” means the class A share issued by JVCO to Amyris numbered A1.
“Class B Common Share” means the class B share issued by JVCO to XXXX USA numbered B1.
“Closing Date” means December 2, 2013, the date that the SHA was fully executed and delivered by Xxxxxx and XXXX USA, and JVCO has been duly incorporated.
“Deed of Pledge” has the meaning as set out in Recital (E) above.
“Deed of Transfer and Pledge” has the meaning set out in Section 4.1.
“Escrow Agent Articles of Association” means the articles of association of the Escrow Agent, as amended from time to time.
“Escrow Shares” means the Class A Common Share and the Preferred Shares.
“JVCO” has the meaning as set out in Recital (A) above.
“JVCO Articles of Association” means the articles of association of JVCO, as amended from time to time.
“Notarial Deeds of Conditional Transfer” has the meaning set out in Section 7.6.
“Notary” means the civil law notary (notaris) [*] of Linklaters LLP, Amsterdam office, his deputy (waarnemer) or successor (opvolger) or such other Dutch civil law notary (notaris) as indicated by XXXX XXX.
“Notes” means those certain 1.5% “Senior Unsecured Convertible Notes” issued by Xxxxxx to XXXX USA pursuant to the Securities Purchase Agreement between July 30, 2012 and January 31, 2015, with an aggregate principal amount of up to US$105,000,000.
“Notice” means any of the notices the substantial form of which has been attached hereto as Annex.
“Notice of Completion of Foreclosure Sale” means the Notice of Completion of Foreclosure Sale duly executed by XXXX USA substantially in the form attached hereto as Annex 6 (Notice of Completion of Foreclosure Sale).
“Notice of Election” means the Notice of Election as defined in the JVCO Articles of Association, duly executed by XXXX USA substantially in the form attached hereto as Annex 3 (Notice of Election).
[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
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“Notice of Payment of Preferred Shares Option Price” means the Notice of Payment of Preferred Shares Option Price, duly executed by XXXX USA substantially in the form attached hereto as Annex 4 (Notice of Payment of Preferred Shares Option Price).
“Notice of Purchase” means any of the Notice of Payment of Preferred Shares Option Price, Notice of Completion of Foreclosure Sale, or Notice of Right of First Offer.
“Notice of Right of First Offer” means the Notice of Right of First Offer duly executed by XXXX USA substantially in the form attached hereto as Annex 7 (Notice of Right of First Offer).
“Preferred Shares” means the non-voting preferred shares issued by JVCO to Amyris numbered P1 and P2.
“Preferred Shares Option Price” means the purchase price for the Preferred Shares as established in accordance with the JVCO Articles of Association.
“Rescission Notice” means the Rescission Notice as defined in the JVCO Articles of Association, duly executed by XXXX USA substantially in the form attached hereto as Annex 5 (Rescission Notice).
“Securities Purchase Agreement” means the “Securities Purchase Agreement” dated as of July 30, 2012 and amended as of March 24, 2013, by and between Amyris and XXXX USA.
“SHA” has the meaning as set out in Recital (B) above.
“Voting Rights” has the meaning as set out in Section 6.1.
“Wholly Owned XXXX Affiliate” means a person of which 100% of the equity interests (other than any directors’ qualifying shares) of such person are directly or indirectly owned by the ultimate parent company of XXXX USA.
1.2 | Words |
1.2.1 | Words denoting the singular number include the plural and vice versa. |
1.2.2 | Words denoting any gender include all genders and words denoting persons include firms and corporations and vice versa. |
1.2.3 | The words “include”, “includes” and “including” shall be deemed to be followed by the words “without limitation” and references to “other” and “otherwise” shall not be construed with reference to its preceding words where a wider interpretation is possible. |
1.3 | References |
References to:
1.3.1 | a person include any company, partnership or unincorporated association (whether or not having separate legal personality); |
1.3.2 | a company includes any company, corporation or any body corporate, wherever incorporated; and |
1.3.3 | the “Netherlands” or “Dutch” refer to the European part of the Netherlands only. |
1.4 | Legal terms |
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Where in this Agreement a Dutch legal term is given in parenthesis after an English term and there is any inconsistency between the Dutch and the English term, the meaning of the Dutch legal term shall prevail.
1.5 | Recitals, Sections etc. |
References to this Agreement include its Annexes and references to Recitals, Sections, sub-Sections and Annexes are to Recitals, Sections and sub-Sections of, and Annexes to, this Agreement, unless explicitly provided otherwise in this Agreement.
1.6 | Headings |
Headings are for ease of reference only and shall be ignored in construing this Agreement.
2 | Appointment of Escrow Agent |
2.1 | XXXX USA and Xxxxxx hereby appoint the Escrow Agent to act as an escrow agent in accordance with the terms and conditions of this Agreement and the Escrow Agent hereby accepts such appointment. |
2.2 | XXXX USA and Xxxxxx xxxxxx acknowledge having received a copy of the Escrow Agent Articles of Association, a true, correct and complete copy of which is attached hereto as Annex 12 (Escrow Agent Articles of Association) and, to the extent required, accept all rights contained therein in their favor and undertake toward each other and the Escrow Agent to respect the terms and conditions of the Escrow Agent Articles of Association. |
3 | Nature of Agreement |
This Agreement constitutes with respect to the Escrow Agent an instruction agreement (overeenkomst van opdracht) as referred to in Section 7:400 of the Dutch Civil Code and the relevant provisions of the Dutch Civil Code shall apply, unless explicitly otherwise provided in this Agreement.
4 | The Escrow Shares |
4.1 | On the Closing Date the Escrow Shares shall be transferred by Xxxxxx to the Escrow Agent by way of administration (ten titel van beheer), the foregoing to be effected by execution of a notarial deed of transfer and pledge (the “Deed of Transfer and Pledge”) substantially in the form as attached hereto as Annex 2 (Deed of Transfer and Pledge) by Xxxxxx, the Escrow Agent and JVCO before the Notary. |
4.2 | The Escrow Shares shall remain subject to the security interest of XXXX USA pursuant to the Deed of Pledge. To the fullest extent possible under applicable law, by executing the Deed of Transfer and Pledge, the Escrow Agent assumes the obligations of Xxxxxx in respect of the Escrow Shares pursuant to the Deed of Pledge, provided, however, that such assumption shall not release Amyris from its obligations under the Deed of Pledge. Notwithstanding the foregoing, Xxxxxx shall retain all of its rights as a party to the SHA, none of which shall be assumed by the Escrow Agent as the legal owner of the Escrow Shares. |
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4.3 | The Escrow Agent agrees to administer and hold the Escrow Shares (subject to the security interest of XXXX USA and with due observance of XXXX USA’s purchase right of the Escrow Shares as set forth in the JVCO Articles of Association) in escrow for the benefit, risk and account of Amyris in accordance with the provisions of this Agreement, the JVCO Articles of Association and the SHA; the Escrow Agent hereby acknowledges having received copies of the SHA and the JVCO Articles of Association, true, correct and complete copies of which are attached hereto as Annex 10 (SHA) and Annex 11 (JVCO Articles of Association) and undertakes toward Amyris and XXXX USA to respect the terms and conditions of the SHA and the JVCO Articles of Association. |
4.4 | The Parties shall only hold and release the Escrow Shares in accordance with the provisions of this Agreement, the JVCO Articles of Association and the SHA. In the event of a conflict with respect to how the Escrow Shares are to be held and released by and between or among this Agreement, the JVCO Articles of Association and/or the SHA, this Agreement shall prevail over the JVCO Articles of Association and the SHA and the JVCO Articles of Association shall prevail over the SHA, in each case except as otherwise expressly provided in the Articles of Association or the SHA. |
4.5 | Other than as explicitly set out in this Agreement, or when ordered by a Dutch court in a judgment in last instance (uitspraak in xxxxxx van gewijsde) or provisionally enforceable (uitvoerbaar bij voorraad), the Escrow Agent shall be prohibited from selling, releasing or otherwise disposing, encumbering or transferring any of the Escrow Shares or the rights attributed thereto, nor shall the Escrow Agent allow the Escrow Shares to be taken, enjoined or reached by any foreign legal or equitable process, in bankruptcy or otherwise, without the prior written consent of both Amyris and XXXX USA. In addition, the Escrow Agent recognizes and agrees that the Escrow Agent is the legal owner of the Escrow Shares, and as a consequence thereof, the Escrow Agent shall not recognize demands for turnover or enjoinment by Xxxxxx, Xxxxxx’s creditors, or Xxxxxx’s trustee in bankruptcy, but rather shall carry out its duties hereunder. Notwithstanding the foregoing, Xxxxxx shall retain all of its rights as a party to the SHA in accordance with the terms thereof, none of which shall be assumed by the Escrow Agent as the legal owner of the Escrow Shares. |
5 | Dividends and other distributions |
5.1 | Except as provided otherwise in this Agreement, the Escrow Agent shall collect all dividends, distributions of reserves, repayments of capital, liquidation, dissolution or sale proceeds and all other distributions, (re)payments and proceeds under or in connection with the Escrow Shares it holds in administration. |
5.2 | Provided that the Escrow Agent has not received a Notice of Election, the Escrow Agent shall make the dividends and other distributions and proceeds collected pursuant to Section 5.1 in respect of the Class A Common Share payable to Amyris and provided that the Escrow Agent has not received a Notice of Purchase, the Escrow Agent shall make the dividends and other distributions and proceeds collected pursuant to Section 5.1 in respect of the Preferred Shares payable to Amyris, in each case as soon as possible upon receipt of such dividends and other distributions and proceeds by the Escrow Agent. |
5.3 | Provided that no Notice of Election has been received by the Escrow Agent, any and all shares, rights and other assets accruing, distributed, issued or offered at any time by way |
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of or resulting from redemption, repurchase, dividend, bonus, preference, pre-emption, conversion, capitalization of profits or reserves, substitution, exchange, warrant, claim or option right or otherwise and that are acquired by the Escrow Agent under or in connection with the Class A Common Share (including, for the avoidance of doubt, as a result of the conversion, merger or demerger of the JVCO) shall be acquired by the Escrow Agent for the benefit, risk and account of Amyris in accordance with this Escrow Agreement and provided that no Notice of Purchase has been received by the Escrow Agent, any and all shares, rights and other assets accruing, distributed, issued or offered at any time by way of or resulting from redemption, repurchase, dividend, bonus, preference, pre-emption, conversion, capitalization of profits or reserves, substitution, exchange, warrant, claim or option right or otherwise and that are acquired by the Escrow Agent under or in connection with the Preferred Shares (including, for the avoidance of doubt, as a result of the conversion, merger or demerger of the JVCO), shall be acquired by the Escrow Agent for the benefit, risk and account of Xxxxxx in accordance with this Escrow Agreement.
6 | The exercise of voting rights and other rights attributable to the Escrow Shares |
6.1 | The Escrow Agent, being the legal owner of the Escrow Shares, shall exercise the voting rights, and consensual rights of a shareholder of JVCO attributable to the Escrow Shares and all other rights and powers of a shareholder of JVCO, in each case under the JVCO Articles of Association or pursuant to the laws of the Netherlands (together the “Voting Rights”) in accordance with its objects, without prejudice to the provisions below in this Section 6. Notwithstanding the foregoing, any right of Amyris as a party to the SHA to consent in its capacity as a party to the SHA in accordance with the terms thereof shall be retained by Xxxxxx and shall not belong to the Escrow Agent as the legal owner of the Escrow Shares. |
6.2 | Provided that no Notice of Election has been received by the Escrow Agent, Xxxxxx shall have the exclusive right to direct the Escrow Agent how the Voting Rights in respect of the Class A Common Share are to be exercised while they are held in escrow, and provided that no Notice of Purchase has been received by the Escrow Agent, Xxxxxx shall have the exclusive right to direct the Escrow Agent how the Voting Rights in respect of the Preferred Shares are to be exercised while they are held in escrow, in each case in accordance with and subject to the terms of the JVCO Articles of Association and the SHA, and in each case Amyris shall do so by directing the Escrow Agent to exercise the Voting Rights in respect of the applicable Escrow Shares, and the Escrow Agent shall strictly and promptly comply with such instructions in all respects. |
6.3 | If a general meeting of JVCO is convened or if the Escrow Agent is requested or given the opportunity to exercise Voting Rights in relation to the Escrow Shares, the Escrow Agent shall, within three Business Days upon receipt by the Escrow Agent of the announcement of the general meeting, the relevant request or occurrence of the relevant opportunity (as the case may be), give written notice thereof to Amyris, which written notice shall, as applicable and to the extent received by the Escrow Agent, include a copy of the agenda for the general meeting, the request or a description of the matter in respect of Voting Rights may be exercised. |
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6.4 | Each announcement of a general meeting of JVCO addressed to the Escrow Agent as a shareholder of JVCO, or written notification of JVCO to the Escrow Agent to exercise Voting Rights, shall automatically and without any further action by Xxxxxx be deemed to constitute a written request by Xxxxxx to the Escrow Agent to, and upon each such automatically deemed written request the Escrow Agent shall, grant a written power of attorney to Amyris to exercise the Voting Rights on the Escrow Shares and, if applicable, to attend and address the general meeting of JVCO on behalf of the Escrow Agent substantially in the form as set out in Annex 13 (Format power of attorney of Escrow Agent to Xxxxxx for exercising Voting Rights). |
6.5 | A power of attorney as meant in Section 6.4 may only be granted for a specific general meeting or share class meeting of JVCO or for a specific request or opportunity to exercise Voting Rights (including through a written consent rather than a meeting) and shall lose its validity at the end of that meeting or after the relevant Voting Rights have been exercised or the opportunity to exercise such Voting Rights has ended. |
6.6 | Upon the receipt by the Escrow Agent of a Notice of Election, unless otherwise explicitly provided therein by XXXX USA, the rights of Amyris pursuant to this Section 6 with respect to the Class A Common Share shall automatically terminate and shall instead be held by XXXX USA, and the Escrow Agent shall comply with all instructions provided by XXXX USA relating to the exercise of Voting Rights in relation to the Class A Common Share. Upon the receipt by the Escrow Agent of a Notice of Purchase, unless otherwise explicitly provided therein by XXXX USA, the rights of Amyris pursuant to this Section 6 with respect to the Preferred Shares shall automatically terminate and shall instead be held by XXXX USA, and the Escrow Agent shall comply with all instructions provided by XXXX USA relating to the exercise of Voting Rights in relation to the Preferred Shares. |
6.7 | The Escrow Agent shall not be liable for the voting behavior of Xxxxxx or, following the receipt by the Escrow Agent of a Notice of Election (in the case of the Class A Common Share) or a Notice of Purchase (in the case of the Escrow Shares), XXXX USA, or the consequences thereof, nor for the casting of a vote in accordance with a voting instruction that has been issued or the consequences thereof. |
7 | Release of the Escrow Shares |
7.1 | Release of the Class A Common Share to XXXX USA Upon the Notice of Election |
Immediately upon the receipt by the Escrow Agent of the Notice of Election, the Escrow Agent shall transfer all right, title and interest in and to the Class A Common Share to XXXX USA. The Escrow Agent acknowledges that the payment of the purchase price for the Class A Common Share shall occur outside of the escrow by XXXX USA’s offset against the full amounts owing under the Class A Note, and the Escrow Agent shall assume without inquiry that such offset has occurred upon its receipt of the Notice of Election.
7.2 | Release of the Preferred Shares to XXXX USA Upon the Notice of Payment of Preferred Shares Option Price |
Immediately upon the receipt by the Escrow Agent of the Notice of Payment of Preferred Shares Option Price, the Escrow Agent shall transfer all right, title and interest in and to the Preferred Shares to XXXX USA. The Escrow Agent acknowledges that the payment of the
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Preferred Shares Option Price shall occur outside of the escrow by XXXX USA’s offset against the full amount of the obligations then outstanding under the Notes, after giving effect to acceleration, and the Escrow Agent shall assume without inquiry that such offset has occurred upon its receipt of the Notice of Payment of Preferred Shares Option Price. Notwithstanding the foregoing, to the extent the Notice of Payment of Preferred Shares Option Price provides that the Preferred Shares Option Price exceeds such obligations outstanding under the Notes, XXXX USA shall wire payment of such excess amount as identified in the Notice of Payment of Preferred Shares Option Price to the account specified in Section 16.9 below as a condition to the release of the Preferred Shares to XXXX USA, and the Escrow Agent shall then transfer the Preferred Shares to XXXX USA, and thereafter, shall release such funds to and for the benefit of Xxxxxx.
7.3 | Release of the Preferred Shares to Amyris Upon the Rescission Notice |
Immediately upon the receipt by the Escrow Agent of the Rescission Notice, the Escrow Agent shall transfer all right, title and interest in and to the Preferred Shares to Amyris.
7.4 | Release of the Escrow Shares Upon the Notice of Completion of Foreclosure Sale |
Immediately upon the receipt by the Escrow Agent of the Notice of Completion of Foreclosure Sale, the Escrow Agent shall transfer all right, title and interest in and to the Escrow Shares to the party identified in such notice as the purchaser of the Escrow Shares (which party may be, for the avoidance of doubt, XXXX USA). The Escrow Agent acknowledges that the terms and conditions for the foreclosure sale of the Escrow Shares shall be determined by the outcome of the foreclosure sale process, which outcome will be as specified by XXXX USA in the Notice of Completion of Foreclosure Sale. The Escrow Agent acknowledges that if XXXX USA is the purchaser at the foreclosure it will have paid the Preferred Shares Option Price outside of the escrow by its offset against the full amount of the obligations then outstanding under the Notes, after giving effect to acceleration, and the Escrow Agent shall assume without inquiry that such offset has occurred upon its receipt of the Notice of Completion of Foreclosure Sale. To the extent all right, title and interest in and to the Class A Common Share has not been transferred to XXXX USA prior to such foreclosure sale, the Escrow Agent acknowledges and agrees that if XXXX USA is the purchaser at the foreclosure sale, it will have paid the purchase price for such share by its offset against the full amount of the obligations then outstanding under the Class A Note, after giving effect to acceleration, and the Escrow Agent shall assume without inquiry that such offset has occurred upon its receipt of the Notice of Completion of Foreclosure Sale. The Escrow Agent shall assume without inquiry that the foreclosure sale process as described in the Notice of Completion of Foreclosure Sale has been duly completed and shall comply with the transfer of the Escrow Shares pursuant to the instructions in the Notice of Completion of Foreclosure Sale. Notwithstanding the foregoing, to the extent the Notice of Completion of Foreclosure Sale provides that XXXX USA is the purchaser of the Escrow Shares and further provides that the Preferred Shares Option Price exceeds the full obligations outstanding under the Notes and, if applicable, the Class A Note, XXXX USA shall wire payment of such excess amount as identified in the Notice of Completion of Foreclosure Sale to the account specified in Section 16.9 below as a condition to the release of the Preferred Shares to XXXX USA, and the Escrow Agent shall then transfer the Preferred Shares to XXXX USA, and thereafter, shall release such funds to and for the benefit of Amyris. To the extent the Notice of Completion of Foreclosure Sale provides that the purchaser of the Escrow Shares is anyone other than
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XXXX USA and that XXXX USA has confirmed that it received full payment from such purchaser on account of its collateral, the Escrow Agent shall transfer the Escrow Shares to that purchaser. To the extent the Notice of Completion of Foreclosure Sale provides that the purchaser of the Escrow Shares is anyone other than XXXX USA, and further provides that the purchase price exceeded the full amounts owing under the Notes and the Class A Note, and that XXXX USA has confirmed that it received full payment from such purchaser on account of its collateral, the Escrow Agent shall transfer the Escrow Shares to that purchaser after such purchaser has wired the payment of the portion of the purchase price that exceeds the full amounts owing under the Notes and the Class A Note as specified in such notice to the account specified in Section 16.9 below, with the Escrow Agent to then release such funds to and for the benefit of Xxxxxx.
7.5 | Release of the Escrow Shares Upon Exercise of the Notice of Right of First Offer |
Immediately upon the receipt by the Escrow Agent of the Notice of Right of First Offer, the Escrow Agent shall transfer all right, title and interest in and to the Escrow Shares to the party identified in such notice as the purchaser of the Escrow Shares (which party may be, for the avoidance of doubt, XXXX USA). To the extent the Notice of Right of First Offer provides that the purchaser is XXXX USA, the Escrow Agent acknowledges that the payment of the purchase price shall occur outside of the escrow by XXXX USA’s offset against the full amount of the obligations then outstanding under the Notes and the Class A Note, after giving effect to acceleration, and the Escrow Agent shall assume without inquiry that such offset has occurred upon its receipt of the Notice of Right of First Offer. Notwithstanding the foregoing, to the extent the Notice of Right of First Offer provides that the purchase price exceeds such obligations outstanding under the Notes and the Class A Note, XXXX USA shall wire payment of such excess amount as identified in the Notice of Right of First Offer to the account specified in Section 16.9 below as a condition to the release of the Escrow Shares to XXXX USA, and the Escrow Agent shall then transfer the Escrow Shares to XXXX USA, and thereafter, shall release such funds to and for the benefit of Amyris. If the Notice of Right of First Offer provides that the successful purchaser is anyone other than XXXX USA, the Escrow Agent shall transfer the Escrow Shares to that purchaser after such party has wired the payment of the purchase price specified in such notice to the account specified in Section 16.9 below, with the Escrow Agent to then release such funds to and for the benefit of Amyris.
7.6 | Conditional transfer Escrow Shares to XXXX USA |
As soon as possible after the transfer of the Escrow Shares to the Escrow Agent on the Closing Date, XXXX USA, the Escrow Agent and JVCO shall execute the notarial deeds of conditional transfer (the “Notarial Deeds of Conditional Transfer”) before the Notary, substantially in the form attached hereto as Annex 14 (Notarial Deeds of Conditional Transfer) to effect the legal transfer of the Class A Common Share to XXXX USA subject to the condition precedent (opschortende voorwaarde) of the delivery of the Notice of Election and the legal transfer of the Preferred Shares to XXXX USA subject to the condition precedent of the delivery of the Notice of Payment of Preferred Shares Option Price.
7.7 | Format deed of transfer Escrow Shares to XXXX USA |
Any transfer of Escrow Shares by the Escrow Agent to XXXX USA pursuant to this Section 7 not already effected by way of the execution of the Notarial Deeds of Conditional Transfer, shall be effected by way of the execution of a notarial deed of transfer between XXXX USA and the Escrow Agent (as the case may be, represented by XXXX USA on the
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basis of the power of attorney contained in Section 10) and, if requested by XXXX USA, JVCO (as the case may be, represented by XXXX USA on the basis of the power of attorney attached hereto as Annex 8 (Power of Attorney of JVCO)), substantially in the form attached hereto as Annex 9 (Format Deed of Transfer) before the Notary.
7.8 | Release of the Escrow Shares upon joint instruction |
The Parties agree that the Escrow Agent shall transfer all right, title and interest in and to all or any portion of the Escrow Shares to any designated person (which may include, for the avoidance of doubt, Xxxxxx or XXXX USA) upon XXXX USA and Xxxxxx jointly giving written notice thereof to the Escrow Agent, and the Escrow Agent shall comply with any further instruction(s) jointly provided therein.
8 | Shift of entitlement related rights attributable to Escrow Shares |
Immediately upon the receipt by the Escrow Agent of a Notice of Election (in the case of the Class A Common Share) or a Notice of Purchase (in the case of the Escrow Shares), the Escrow Agent shall cease to hold the applicable Escrow Shares for the benefit, risk and account of Amyris and shall instead hold the applicable Escrow Shares for the benefit, risk and account of XXXX USA (or as otherwise explicitly provided by XXXX USA in such notice), such that the rights of Xxxxxx in respect of the applicable Escrow Shares pursuant to Sections 5 and 6 shall then terminate, with such rights to instead be held by XXXX USA (or as otherwise explicitly provided in such notice). Except as otherwise described in Section 7.7, upon its receipt of the notices described in Section 7, the Escrow Agent shall immediately transfer the Escrow Shares in the form and manner as described in such Section and this Agreement shall terminate in accordance with Section 13 below.
9 | Rights and duties of the Escrow Agent |
9.1 | The Escrow Agent may, without further inquiry, exclusively rely on any instrument or signature that has been signed and presented on behalf of Xxxxxx or XXXX USA by any person who is identified as acting on behalf of Xxxxxx or XXXX USA in Annex 15 (Signatures specimen), or shall be legally entitled to represent that particular Party in connection with this Agreement as evidenced by a statement of a partner of the law firm(s) referred to with respect to the relevant Party in Section 16.8 stating that the relevant signatory is authorized to represent that particular Party. Annex 15 may with respect to the persons identified by Xxxxxx be amended by Xxxxxx by means of a notification by Xxxxxx to XXXX USA and the Escrow Agent. Annex 15 may with respect to the persons identified by XXXX be amended by XXXX by means of a notification by XXXX to Xxxxxx and the Escrow Agent. |
9.2 | Under no circumstance will the Escrow Agent be held liable for the manner in which the Escrow Agent performs the obligations contained in this Agreement or for any actions in connection therewith, except in respect of damage directly resulting from fraud, gross negligence (grove xxxxxx), willful misconduct (opzet) or seriously culpable conduct (ernstige verwijtbaarheid) on the part of the Escrow Agent or any of its directors, officers or employees. |
9.3 | To the fullest extent possible under the laws of the Netherlands, the Escrow Agent hereby undertakes towards XXXX USA and Amyris to only apply for its own bankruptcy or a |
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suspension of payments if the Escrow Agent has given both XXXX USA and Amyris one week upfront notice of its intention to do so, which notice shall specify the reason(s) for the bankruptcy or suspension of payments application, to allow either XXXX USA or Amyris, each acting in its sole discretion and without any obligation to do so, to provide funding or any other form of support to the Escrow Agent to prevent the Escrow Agent from being declared bankrupt or a suspension of payments to be ordered, which funding or support shall not unreasonably be rejected by the Escrow Agent.
10 | Power of attorney |
10.1 | The Escrow Agent hereby irrevocably appoints XXXX USA to be its attorney (with full power of substitution), on its behalf and in its name or otherwise, upon the delivery of a Notice of Election (with respect to the Class A Common Share) or Notice of Purchase (with respect to the Escrow Shares) to the Escrow Agent, to do anything that the Escrow Agent is obliged to do under this Agreement with respect to the applicable Escrow Shares, including, for the avoidance of doubt, to appear in front of the Notary to execute notarial deeds of transfer to effect the transfer of the applicable Escrow Shares to XXXX USA pursuant to Section 7 above. |
10.2 | In exercising its power of attorney XXXX USA may act as counterparty to the Escrow Agent or act pursuant to a power of attorney granted by one of the other parties involved in the relevant acts (Selbsteintritt). |
10.3 | In exercising its power of attorney, XXXX USA shall not have the benefit of contractual limitations of liability afforded to the Escrow Agent. |
10.4 | XXXX USA is under no obligation to exercise its rights referred to in this Section 10. |
11 | Resignation and substitution of the Escrow Agent |
11.1 | The Escrow Agent may resign from its duties under this Agreement at any time by giving a written notice of resignation to each of Xxxxxx and XXXX USA, provided, however, that such resignation shall not become effective until after XXXX USA has designated a new escrow agent, reasonably acceptable to Xxxxxx, in writing who: |
11.1.1 | has agreed to act as Xxxxxx Agent upon the resignation of the resigning Escrow Agent becoming effective; |
11.1.2 | has agreed to be bound by this Agreement; and |
11.1.3 | has been transferred and has accepted the Escrow Shares by way of administration. |
11.2 | XXXX USA and Xxxxxx may replace the Escrow Agent by jointly giving written notice thereof to the Escrow Agent. This replacement shall only become effective if the provisions of Sections 11.1.1 through 11.1.3 of this Agreement have been taken into account. |
12 | Costs of transfer |
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Any transfer or administration costs relating to a release or transfer of Escrow Shares pursuant to this Agreement shall be borne by XXXX USA. The Escrow Agent will make reasonable efforts to limit these costs as much as possible.
13 | Duration and Termination |
13.1 | This Agreement (except for this Section 13 and Sections 1 (Definitions and interpretation) and 16 (General Provisions)), shall terminate and cease to have effect upon the moment the Escrow Agent has duly transferred the entirety of the Escrow Shares to another person, and issued payment, if any, to Amyris, in each case in accordance with the provisions of Section 7 above, provided, however, that this Agreement shall remain in effect for so long as the Preferred Shares remain in escrow, it being understood that the Class A Common Share will be released prior to the release of the Preferred Shares should such release occur pursuant to Sections 7.1 and 7.2 above. |
13.2 | If any transfer of Escrow Shares by the Escrow Agent to XXXX USA pursuant to Section 7 above is cancelled, avoided or otherwise set aside: |
13.2.1 | such Escrow Shares shall remain to have been owned by the Escrow Agent; |
13.2.2 | the termination of this Agreement will be deemed not to have taken place and the Agreement shall come back into existence in full force and effect; and |
13.2.3 | claims of XXXX USA pursuant to this Agreement deemed terminated or extinguished shall remain outstanding. |
14 | Representations and warranties |
Each Party hereby represents and warrants to each other Party that it has the power to enter into and perform, and has taken all necessary action to authorize its entry into and performance of, this Agreement.
15 | The Notary |
The Notary is a civil law notary holding office with Linklaters LLP, XXXX USA’s legal adviser. The Parties hereby acknowledge that they have been informed of the existence of the Ordinance Containing Rules of Professional Conduct and Ethics (Verordening beroeps- en gedragsregels) of the Royal Professional Organisation of Civil Law Notaries (Koninklijke Notariële Beroepsorganisatie) and explicitly agree and acknowledge (i) that Linklaters LLP may advise and act on behalf of XXXX USA with respect to this Agreement, and any agreements or any disputes related to or resulting from this Agreement, and (ii) that the Notary performs the acts referred to in Sections 4.1, 7.6 and 7.7.
16 | General provisions |
16.1 | Waiver |
16.1.1 | Unless explicitly stated otherwise in this Agreement, the Parties waive their rights, if any, to annul, (partly) rescind, (partly) dissolve (ontbinden) or cancel this Agreement, or to request annulment, (partial) rescission, (partial) dissolution (ontbinding) or cancellation of this Agreement on the basis of Section 6:228 or Section 6:265 of the Dutch Civil Code. |
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16.1.2 | No failure of any Party to exercise, and no delay by it in exercising, any right shall operate as a waiver of that right, nor shall any single or partial exercise of any right preclude any other or further exercise of that right or the exercise of any other right. The rights provided in this Agreement are cumulative and not exclusive of any other rights (whether provided by law or otherwise). Any express waiver of any breach of this Agreement shall not be deemed to be a waiver of any subsequent breach. |
16.2 | Assignment or transfer |
16.2.1 | This Agreement shall be binding on and inure to the benefit of the Parties and their successors and permitted assigns. Amyris may not assign or transfer all or any part of its rights or obligations under this Agreement without the prior written consent of XXXX USA, other than in accordance with the Deed of Pledge. XXXX USA may not assign or transfer all or any part of its rights or obligations under this Agreement without the prior written consent of Xxxxxx, provided, that XXXX USA may assign or transfer its rights and obligations under this Agreement to a Wholly Owned XXXX Affiliate in connection with a transfer of the Class B Common Share to such Wholly Owned XXXX Affiliate. |
16.2.2 | Following an assignment or transfer of the rights and obligations of XXXX USA under this Agreement to a Wholly Owned XXXX Affiliate in accordance with Section 16.2.1, any reference to XXXX USA in this Agreement shall be deemed to refer to the relevant Wholly Owned XXXX Affiliate to whom XXXX USA transferred or assigned such rights and obligations and the Escrow Agent Articles of Association shall be amended accordingly. In addition, as soon as possible following the assignment or transfer of the rights and obligations of XXXX USA under this Agreement to a Wholly Owned XXXX Affiliate in accordance with Section 16.2.1, XXXX USA shall provide a written declaration to the Notary that the conditions precedent contained in the Notarial Deeds of Conditional Transfer can no longer by fulfilled and the Wholly Owned XXXX Affiliate, the Escrow Agent and JVCO shall enter into new conditional deeds of transfer in respect of the Escrow Shares substantially in the form of the Notarial Deeds of Conditional Transfer. XXXX USA hereby unconditionally and irrevocably guarantees to the Escrow Agent and Amyris the due and punctual performance by the relevant Wholly Owned XXXX Affiliate of all obligations of the Wholly Owned XXXX Affiliate under this Agreement and agrees that if and whenever the Wholly Owned XXXX Affiliate defaults for any reason whatsoever in the performance of any of its obligations pursuant to this Agreement that XXXX USA shall forthwith upon demand unconditionally perform (or procure the performance of) such obligations in the manner described in this Agreement. |
16.3 | Further assurance |
Each Party to this Agreement shall (i) cooperate with the others and execute and deliver to each of the others instruments and documents and take (and, where applicable, shall procure that any of their associated companies shall take) such other actions as may be reasonably requested from time to time in order to carry out the intended purpose of this Agreement; and (ii) shall use all reasonable endeavors to procure that any necessary third party shall execute such documents and do such acts and things as may reasonably be required in order to carry out the intended purpose of this Agreement.
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16.4 | Invalidity and severance |
16.4.1 | If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties. |
16.4.2 | To the extent it is not possible to delete or modify the provision, in whole or in part, under Section 16.4.1, then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall, subject to any deletion or modification made under Section 16.4.1, not be affected. |
16.5 | Counterparts |
This Agreement may be entered into in any number of counterparts, each of which when executed and delivered shall be an original but all of which taken together shall constitute one and the same instrument.
16.6 | Costs |
Unless this Agreement provides otherwise, all costs that a Party has incurred or must incur in preparing, concluding or performing this Agreement are for its own account. The fees and costs of the Notary will be paid by XXXX USA.
16.7 | Public Announcements |
Sections 6.03 and 12.06 of the SHA shall apply mutatis mutandis to the Parties and shall be deemed to be incorporated into this Agreement.
16.8 | Notices |
Unless explicitly stated otherwise in this Agreement including the Annexes thereto, all notices, consents, waivers and other communications under this Agreement and the Escrow Agent Articles of Association, must be in writing in English and delivered by hand or sent by registered mail, express courier, fax, or e-mail to the appropriate addresses and numbers set out below (or to such addresses and numbers as a Party may notify to the other Parties from time to time, provided that a Notice to a Party can always be sent by e-mail). A notice shall be effective upon transmission and shall be deemed to have been received at the time of delivery (if delivered by hand, registered mail or express courier) or at the time of successful transmission (if delivered by fax or e-mail).
16.8.1 | If to XXXX USA: |
Total Energies Nouvelles Activités USA
24 Cours Michelet
92800 Puteaux
France
Attn: [*], President
Fax. No.: +[*]
e-mail: [*]
with copies (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
650 Xxxx Xxxx Xxxx
[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
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Palo Alto, CA 94304
United States of America
Attn: [*]
[*]
Fax No.: +1 [*]
e-mail: [*]
[*]
and
Xxxxx Day
550 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
San Francisco, CA 94104-1500
United States of America
Attn: [*]
Fax No.: +1 [*]
e-mail: [*]
and
Linklaters LLP
World Trade Centre Amsterdam
Zuidplein 180
1077 XV Amsterdam
The Netherlands
Att: [*]
Fax No.: +[*]
e-mail: [*]
16.8.2 | If to Amyris: |
0000 Xxxxxx Xxxxxx, Xxxxx 000
Emeryville, CA 94608
United States of America
Attn: General Counsel
Fax No.: +1 [*]
e-mail: [*]
with copies (which shall not constitute notice) to:
Xxxxxxxx & Sterling LLP
Four Embarcadero Center, Suite 3800
San Francisco, CA 94111 – 5994
United States of America
Attn: [*]
Fax No.: +1 [*]
e-mail: [*]
16.8.3 | If to the Escrow Agent: |
Stichting Total Amyris BioSolutions
Xxxxxx Xxxxxxxxxxx 00
1082 MD Amsterdam
The Netherlands
Attn: {8}
Fax No.: +[*]
e-mail: [*]
[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
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16.8.4 | if to JVCO (with a copy (which shall not constitute notice) to each of XXXX USA and Amyris) to: |
Total Amyris BioSolutions B.V.
Xxxxxx Xxxxxxxxxxx 00
1082 MD Amsterdam
The Netherlands
Attn: [*]
Fax No.: +[*]
e-mail: [*]
16.9 | Bank accounts |
16.9.1 | The following bank account shall be held in the name of the Escrow Agent for the receipt and distribution of the payments described in Sections 5 and 7 above: |
[*]
16.9.2 | Any amounts to be paid by the Escrow Agent to Amyris or XXXX USA pursuant to this Agreement shall be made to a bank account notified by Xxxxxx or XXXX USA, as applicable, to the Escrow Agent. |
16.10 | Third party rights |
Except as expressly stated in this Agreement, the terms of this Agreement may be enforced only by a Party or a Party's permitted assigns or successors. In the event any third party stipulation (derdenbeding) contained in this Agreement is accepted by any third party, such third party will not become a party to this Agreement.
16.11 | Integration |
This Agreement and the Articles of Association constitutes the entire agreement of the Parties, and together with the Related Agreements (as defined in the Articles of Association) constitutes the entire agreement of XXXX USA and Amyris, in each case, with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof. No warranty, representation, inducement, promise, understanding or condition not set forth or referred to in this Agreement or any of the Related Agreements has been made or relied upon by any Party with respect to the subject matter of this Agreement.
16.12 | Amendment |
This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by each of the Parties hereto.
16.13 | Governing law and jurisdiction |
16.13.1 | This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of the Netherlands. |
16.13.2 | Any dispute arising out of or in connection with this Agreement and any non-contractual obligations arising out of this Agreement, including disputes concerning the existence and validity thereof, shall be subject to the exclusive jurisdiction in the first instance of the competent court in Amsterdam, the Netherlands, without prejudice to any right of appeal. Each of Amyris, XXXX USA and the Escrow Agent |
[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
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irrevocably submits to the jurisdiction of such courts and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
(Signature pages follow)
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Signature Page
Total Energies Nouvelles Activités USA:
/s/ | ||
By: XXXXX DEL XXX | ||
Its: Managing Director | ||
[Signature page Total Energies Nouvelles Activites USA - Escrow Agreement]
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Signature Page
/s/ | ||
By: Xxxx Xxxx | ||
Its: C.E.O. | ||
[Signature page Amyris, Inc. - Escrow Agreement]
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Signature Page
Stichting Total Amyris BioSolutions:
By: SGG Escrow Services B.V.
Its: sole board member
/s/ | /s/ | |
By: X.X. xxx Xxxx | By: D.C. Tessers | |
Its: jointly authorised managing director | Its: jointly authorised proxy holder | |
[Signature page Stichting Total Amyris BioSoultions - Escrow Agreement]
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Annex 1 - Deed of Pledge
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Annex 2 - Deed of Transfer and Pledge
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Annex 3 – Notice of Election
Attention: Stichting Total Amyris BioSolutions
Date:
Notice of Election
Reference is made to that certain Escrow Agreement dated December 2, 2013 (the “Escrow Agreement”), among Total Energies Nouvelles Activités USA (“XXXX USA”), Amyris, Inc. (“Amyris”), and Stichting Total Amyris BioSolutions (the “Escrow Agent”).
This letter serves as XXXX USA’s Notice of Election. Undefined capitalized terms shall have the meanings provided to those terms in the Escrow Agreement.
XXXX USA hereby notifies the Escrow Agent that XXXX USA has paid the full amount for the Class A Common Share by effecting a euro-for-euro offset against the full outstanding amount of the Class A Note. No further payment or consideration is due or owing with respect to the Class A Common Share.
Immediately upon its receipt of this Notice of Election, the Escrow Agent shall cause the transfer of the Class A Common Share to XXXX USA in a manner such that all right, title and interest therein shall be held by XXXX USA, and the Escrow Agent shall cease taking direction from Xxxxxx regarding the voting of the Class A Common Share, or otherwise, and all attributes with respect to such share shall immediately be held by XXXX USA.
Total Energies Nouvelles Activités USA
BY: _________________________
NAME: _________________________
ITS: Duly Authorized Representative
cc: Amyris, Inc., via e-mail (xxxxxxxxxxxxxx@xxxxxx.xxx)
Total Amyris BioSolutions B.V. via email (xxxxxxxxx@xxxxxxxx.xxx)
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Annex 4 – Notice of Payment of Preferred Shares Option Price
Attention: Stichting Total Amyris BioSolutions
Date:
Notice of Payment of Preferred Shares Option Price
Reference is made to that certain Escrow Agreement dated December 2, 2013 (the “Escrow Agreement”), among Total Energies Nouvelles Activités USA (“XXXX USA”), Amyris, Inc. (“Amyris”), and Stichting Total Amyris BioSolutions (the “Escrow Agent”).
This letter serves as XXXX USA’s Notice of Payment of Preferred Shares Option Price. Undefined capitalized terms shall have the meanings provided to those terms in the Escrow Agreement.
Alternative 1: This language is to be included if the Preferred Shares Option Price is less than or equal to the outstanding amounts owing on the Notes.
XXXX USA hereby notifies the Escrow Agent that the Preferred Shares Option Price is US$ ________1 and that XXXX USA has paid the full amount of the Preferred Shares Option Price by effecting a dollar-for-dollar offset against the full outstanding amount of the Notes. No further payment or consideration is due or owing with respect to the Preferred Shares Option Price.
Immediately upon its receipt of this Notice of Payment of Preferred Shares Option Price, the Escrow Agent shall cause the transfer of the Preferred Shares to XXXX USA in a manner such thatall right, title and interest therein shall be held by XXXX USA, including without limitation all attributes with respect to such shares, and the Escrow Agent shall thereafter close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
- or –
Alternative 2: This language is to be included if the Preferred Shares Option Price exceeds the outstanding amounts owing on the Notes.
XXXX USA hereby notifies the Escrow Agent that the Preferred Shares Option Price is US$ _________2 and that such price exceeded the full amounts outstanding under the Notes by US$________3. On even date hereof XXXX USA has wired such excess amount to the account identified in Section 16.9 of the Escrow Agreement, and has offset the balance owed on the Preferred Shares Option Price by effecting a dollar-for-dollar offset against the full outstanding amounts owing under the Notes. No further payment or consideration is due or owing with respect to the Preferred Shares Option Price.
Immediately upon Escrow Agent’s confirmation of its receipt of such wire, Escrow Agent shall cause the transfer of the Preferred Shares to XXXX USA in a manner such that all right, title and interest therein shall be held by XXXX USA, including without limitation all attributes with respect to such shares, and the Escrow Agent shall thereafter wire to Amyris the amount received, close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
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1Note to Escrow Agent: XXXX to insert without inquiry into the validity of such amount by Escrow Agent.
2Note to Escrow Agent: XXXX to insert without inquiry into the validity of such amount by Escrow Agent.
3Note to Escrow Agent: XXXX to insert without inquiry into the validity of such amount by Escrow Agent.
Total Energies Nouvelles Activités USA
BY: _________________________
NAME: _________________________
ITS: Duly Authorized Representative
cc: Amyris, Inc., via e-mail ([*])
Total Amyris BioSolutions B.V. via email ([*])
[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Annex 5 – Rescission Notice
Attention: Stichting Total Amyris BioSolutions
Date:
Rescission Notice
Reference is made to that certain Escrow Agreement dated December 2, 2013 (the “Escrow Agreement”), among Total Energies Nouvelles Activités USA (“XXXX USA”), Amyris, Inc. (“Amyris”), and Stichting Total Amyris BioSolutions (the “Escrow Agent”).
This letter serves as XXXX USA’s Rescission Notice. Undefined capitalized terms shall have the meanings provided to those terms in the Escrow Agreement.
Immediately upon its receipt of this Rescission Notice, the Escrow Agent shall cause the transfer of the Preferred Shares to Amyris, and Escrow Agent shall cease taking direction from XXXX USA regarding such shares, and all attributes with respect to such Preferred Shares shall immediately be held by Xxxxxx, and the Escrow Agent shall close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
Total Energies Nouvelles Activités USA
BY: _________________________
NAME: _________________________
ITS: Duly Authorized Representative
cc: Amyris, Inc. via e-mail ([*])
Total Amyris BioSolutions B.V. via email ([*])
[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Annex 6 – Notice of Completion of Foreclosure Sale
Attention: Stichting Total Amyris BioSolutions
Date:
Notice of Completion of Foreclosure Sale
Reference is made to that certain Escrow Agreement dated December 2, 2013 (the “Escrow Agreement”), among Total Energies Nouvelles Activités USA (“XXXX USA”), Amyris, Inc. (“Amyris”), and Stichting Total Amyris BioSolutions (the “Escrow Agent”).
This letter serves as XXXX USA’s Notice of Completion of Foreclosure Sale. Undefined capitalized terms shall have the meanings provided to those terms in the Escrow Agreement.
Alternative 1: This language is to be included if the Preferred Shares Option Price is less than or equal to the outstanding amounts owing on the Notes and the Class A Note.
XXXX USA hereby notifies the Escrow Agent that XXXX USA has exercised its remedies as a secured creditor under the Deed of Pledge by foreclosing on the Class A Common Share and the Preferred Shares4, and was the purchaser of such shares at the foreclosure sale by paying the entirety of the foreclosure sale price for the Class A Common Share and the Preferred Shares by effecting a dollar-for-dollar or euro-for-euro, as appropriate, offset against the full outstanding amounts owing under the Notes and the Class A Note. No further payment or consideration is due or owing with respect to the Class A Common Share or the Preferred Shares.
Immediately upon its receipt of this Notice of Completion of Foreclosure of Sale, the Escrow Agent shall cause the transfer of the Class A Common Share and the Preferred Shares to XXXX USA in a manner such that all right, title and interest therein shall be held by XXXX USA, including without limitation all attributes with respect to such shares, and the Escrow Agent shall cease taking direction from Xxxxxx regarding the voting of the Class A Common Share, or otherwise, and the Escrow Agent shall thereafter close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
- or –
Alternative 2: This language is to be included if the Preferred Shares Option Price exceeds the outstanding amounts owing on the Notes and the Class A Note.
XXXX USA hereby notifies the Escrow Agent that XXXX USA has exercised its remedies as a secured creditor under the Deed of Pledge by foreclosing on the Class A Common Share and the Preferred Shares, and was the purchaser of such shares at the foreclosure sale by paying the entirety of the foreclosure sale price for the Class A Common Share and the Preferred Shares by effecting a dollar-for-dollar or euro-for-euro, as appropriate, offset against the full outstanding amounts owing under the Notes and the Class A Note, and by paying the balance of the purchase price in the amount of US$ _______ by wiring such amount to the account identified in Section
------------------------------------
4Note to Escrow Agent: The language throughout this Notice may be modified by XXXX to refer to only the Preferred
Shares to the extent XXXX takes delivery of ownership in and to the Class A Common Share outside of the foreclosure
such that the foreclosure sale is limited to the Preferred Shares only.
5Note to Escrow Agent: XXXX to insert without inquiry into the validity of such amount by Escrow Agent.
16.9 of the Escrow Agreement. No further payment or consideration is due or owing with respect to the Class A Common Share or the Preferred Shares.
Immediately upon Escrow Agent’s confirmation of its receipt of such wire, the Escrow Agent shall cause the transfer of the Class A Common Share and the Preferred Shares to XXXX USA in a manner such that all right, title and interest therein shall be held by XXXX USA, including without limitation all attributes with respect to such shares, and the Escrow Agent shall cease taking direction from Amyris regarding the voting of the Class A Common Share, or otherwise, and the Escrow Agent shall thereafter wire to Amyris the amount received, close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
- or –
Alternative 3: This language is to be included if a party other than XXXX USA or a Wholly Owned XXXX Affiliate is the purchaser at the foreclosure sale, and the purchase price is equal to or less than the Preferred Shares Option Price.
XXXX USA hereby notifies the Escrow Agent that XXXX USA has exercised its remedies as a secured creditor under the Deed of Pledge by foreclosing on the Class A Common Share and the Preferred Shares. [THIRD PARTY PURCHASER]6 was the purchaser of such shares at the foreclosure sale at an amount that was less than the Preferred Shares Option Price. XXXX XXX xxxxxx confirms that it has received full payment from [THIRD PARTY PURCHASER] on account of its collateral.
Immediately upon the Escrow Agent’s receipt of this Notice of Completion of Foreclosure Sale, the Escrow Agent shall cause the transfer of the Class A Common Share and the Preferred Shares to [THIRD PARTY PURCHASER], pursuant to instructions received by [THIRD PARTYPURCHASER] such that all right, title and interest therein shall be held by [THIRD PARTY PURCHASER], including without limitation all attributes with respect to such shares, and the Escrow Agent shall cease taking direction from Xxxxxx regarding the voting of the Class A Common Share, or otherwise, and the Escrow Agent shall thereafter close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
- or –
Alternative 4: This language is to be included if a party other than XXXX USA or a Wholly Owned XXXX Affiliate is the purchaser at the foreclosure sale, and the purchase price exceeds the amounts owing on the Notes and the Class A Note.
XXXX USA hereby notifies the Escrow Agent that XXXX USA has exercised its remedies as a secured creditor under the Deed of Pledge by foreclosing on the Class A Common Share and thePreferred Shares. [THIRD PARTY PURCHASER]7 was the purchaser of such shares at the foreclosure sale at an amount that exceeded the full outstanding amounts owing under the Notes and the Class A Note by US$___________ and/or EUR___________ respectively8. XXXX XXX xxxxxx confirms that it has received full payment from [THIRD PARTY PURCHASER] on account of its collateral.
6Note to Escrow Agent: XXXX to provide Escrow Agent with name of third party purchaser.
7Note to Escrow Agent: XXXX to provide Escrow Agent with name of third party purchaser.
8Note to Escrow Agent: XXXX to insert without inquiry into the validity of such amount by Escrow Agent.
[THIRD PARTY PURCHASER] has been instructed to wire US$___________ to the account identified in Section 16.9 of the Escrow Agreement. Immediately upon the Escrow Agent’s confirmation of its receipt of such wire, Escrow Agent shall cause the transfer of the Class A Common Share and the Preferred Shares to [THIRD PARTY PURCHASER] pursuant to instructions received by [THIRD PARTY PURCHASER] such that all right, title and interest therein shall be held by [THIRD PARTY PURCHASER], including without limitation all attributes with respect to such shares, and the Escrow Agent shall cease taking direction from Amyris regarding the voting of the Class A Common Share, or otherwise, and the Escrow Agent shall thereafter wire to Amyris the amount received, close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
Total Energies Nouvelles Activités USA
BY: _________________________
NAME: _________________________
ITS: Duly Authorized Representative
cc: Amyris, Inc., via e-mail ([*])
Total Amyris BioSolutions B.V. via email ([*])
[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Annex 7 – Notice of Right of First Offer
Attention: Stichting Total Amyris BioSolutions
Notice of Right of First Offer
Date:
Reference is made to that certain Escrow Agreement dated December 2, 2013 (the “Escrow Agreement”), among Total Energies Nouvelles Activités USA (“XXXX USA”), Amyris, Inc. (“Amyris”), and Stichting Total Amyris BioSolutions (the “Escrow Agent”).
This letter serves as XXXX USA’s Notice of Right of First Offer. Undefined capitalized terms shall have the meanings provided to those terms in the Escrow Agreement.
Alternative 1: This language is to be included if the Right of First Offer Price is less than or equal to the outstanding amounts owing on the Notes and the Class A Note.
XXXX USA hereby notifies the Escrow Agent that XXXX USA has exercised its right of first offer by paying the entirety of the purchase price for the Class A Common Share and the Preferred Shares9. No further payment or consideration is due or owing with respect to the Class A Common Share or the Preferred Shares.
Immediately upon its receipt of this Notice of Right of First Offer, the Escrow Agent shall cause the transfer of the Class A Common Share and the Preferred Shares to XXXX USA in a manner such that all right, title and interest therein shall be held by XXXX USA in accordance with the Escrow Agreement, including without limitation all attributes with respect to such shares, and the Escrow Agent shall cease taking direction from Amyris regarding the voting of the Class A Common Share, or otherwise, and Escrow Agent shall thereafter wire to Amyris the amount received, close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
- or –
Alternative 2: This language is to be included if the Right of First Offer price under exceeds the outstanding amounts owing on the Notes and the Class A Note.
XXXX USA hereby notifies the Escrow Agent that XXXX USA has exercised its right of first offer by effecting a dollar-for-dollar or euro-for-euro, as appropriate, offset against the full outstanding amounts owing under the Notes and the Class A Note, and by paying the balance of the purchase price in the amount of US$________10 by wiring such amount to the account identified in Section 16.9 of the Escrow Agreement. No further payment or consideration is due or owing with respect to the Class A Common Share or the Preferred Shares.
Immediately upon Escrow Agent’s confirmation of its receipt of such wire, the Escrow Agent shall cause the transfer of the Class A Common Share and the Preferred Shares to XXXX USA in a
9Note to Escrow Agent: The language throughout this Notice may be modified by XXXX to refer to only the Preferred
Shares to the extent XXXX takes delivery of ownership in and to the Class A Common Share outside of the foreclosure
such that the foreclosure sale is limited to the Preferred Shares only.
10Note to Escrow Agent: XXXX to insert without inquiry into the validity of such amount by Escrow Agent.
manner such that all right, title and interest therein shall be held by XXXX USA, including without limitation all attributes with respect to such shares, and the Escrow Agent shall cease taking direction from Xxxxxx regarding the voting of the Class A Common Share, or otherwise, and the Escrow Agent shall thereafter close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
Alternative 3: This language is to be included if a party other than XXXX USA or a Wholly Owned XXXX Affiliate is the purchaser.
XXXX USA hereby notifies the Escrow Agent that [THIRD PARTY PURCHASER]11 was the purchaser of the Class A Common Share and the Preferred Shares. [THIRD PARTY PURCHASER] has been instructed to wire US$___________ to the account identified in Section 16.9 of the Escrow Agreement. Immediately upon the Escrow Agent’s confirmation of its receipt of such wire, Escrow Agent shall cause the transfer of the Class A Common Share and the Preferred Shares to [THIRD PARTY PURCHASER] pursuant to instructions received by [THIRD PARTY PURCHASER] such that all right, title and interest therein shall be held by [THIRD PARTY PURCHASER], including without limitation all attributes with respect to such shares, and the Escrow Agent shall cease taking direction from Amyris regarding the voting of the Class A Common Share, or otherwise, and the Escrow Agent shall thereafter wire to Amyris the amount received, close the escrow and terminate the Escrow Agreement pursuant to the terms of the Escrow Agreement.
Total Energies Nouvelles Activités USA
BY: _________________________
NAME: _________________________
ITS: Duly Authorized Representative
cc: Amyris, Inc., via e-mail ([*])
Total Amyris BioSolutions B.V. via email ([*])
[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
11Note to Escrow Agent: XXXX to provide Escrow Agent with name of third party purchaser.
Annex 8 – Power of Attorney JVCO
EXECUTION COPY
Annex 8 – Power of Attorney
Total Amyris BioSolutions B.V., a private company with limited liability incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid), having its official seat (statutaire zetel) in Amsterdam, the Netherlands, and its office at Xxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx, registered with the Dutch Trade Register of the Xxxxxxxx of Commerce under number 59337494 (the “Grantor”),
whereas:
it is contemplated that on or about the date hereof (or such later date as may actually be the case), Amyris, Inc, XXXX USA (as defined hereinafter) and Stichting Total Amyris BioSolutions (the “Escrow Agent”) will enter into an escrow agreement (the “Escrow Agreement”) in relation to shares in the capital of the Grantor;
hereby grants full power of attorney to:
Total Energies Nouvelles Activités USA, a company incorporated under the laws of France (Société par actions simplifiée à associé unique), having its official seat (siège social) at 00 Xxxxx Xxxxxxxx, 00000 Xxxxxxx, Xxxxxx, registered with the French Commercial Register (Registre du Commerce et des Sociétés, Greffe du Tribunal de Commerce de Nanterre) under number 505 028 118 (“XXXX USA”),
to, on behalf of the Grantor:
(i) | sign and execute any notarial deeds of transfer of shares (the Deeds”) to effect the transfer of the Share A (as defined in the Grantor’s articles of association) and/or the Preferred Shares (as defined in the Grantor’s articles of association) from the Escrow Agent to XXXX USA in accordance with Section 7 of the Escrow Agreement, substantially in the form of such deed attached to the Escrow Agreement as Annex 9; |
(ii) | acknowledge the transfer of the Share A and/or the Preferred Shares to XXXX USA effected by any of the Deeds; and |
(iii) | do all such things XXXX USA may deem necessary in respect thereof; |
and hereby declares:
(a) | that this power of attorney, as far as it concerns the transfer of the Share A to XXXX USA, becomes effective upon the occurrence of a Fundamental Amyris Change (as defined in the Grantor’s articles of association); |
(b) | that this power of attorney, as far as it concerns the transfer of the Preferred Shares to XXXX USA, becomes effective upon the delivery by XXXX USA of a Notice of Purchase (as defined in the Escrow Agreement) to the Escrow Agent; |
(c) | that this power of attorney has also been granted for the benefit of other persons who are a party to any of the Deeds; |
(d) | that this power of attorney shall be governed by the laws of the European part of the Netherlands and can only be revoked in writing; and |
__________________________
A17129856
(e) | that this appointment also applies to situations where XXXX USA also acts as the Grantor’s counterparty or as representative of the Grantor’s counterparty (Selbsteintritt). |
Signed on ________________________ 2013.
(Signature page follows)
__________________________
A17129856
Signature Page
Total Amyris BioSolutions B.V.:
/s/ |
By: Xxxx Xxxx |
Its: jointly authorised managing director A |
By: |
Its: jointly authorised managing director B |
[Signature page Total Amyris BioSoultions B.V. - Annex 8 to Escrow Agreement - PoA to XXXX]
Signature Page
Total Amyris BioSolutions B.V.:
By: |
Its: jointly authorised managing director A |
/s/ |
By:XXXXX DEL XXX |
Its: jointly authorised managing director B |
[Signature page Total Amyris BioSoultions B.V. - Annex 8 to Escrow Agreement - PoA to XXXX]
Annex 9 – Format Deed of Transfer
Annex 10 –SHA
Annex 11 – JVCO Articles of Association
Annex 12 – Escrow Agent Articles of Association
Annex 13 – Format power of attorney Escrow Agent to Amyris for exercising Voting Rights
Annex 13 - Format of Power of Attorney
Annex 14 – Notarial Deeds of Conditional Transfer
Annex 15 – Signatures specimen
Duly Authorized Representatives on behalf of Xxxxxx:
Name |
Xxxx Xxxx |
Xxxxx XxXxxxxx |
Xxxxx Xxxxxx |
Xxxx Xxxxxxx |
Xxxx Xxxx |
Duly Authorized Representatives on behalf of XXXX USA:
Name |
Xxxxxxx Xxxxxxx |
Xxxx-Xxxx Xxxxx Del Xxx |
Xxxxxxx Xxxxxxxxx |
Xxxxxxxx Xxxxxxxx |
Xxxxxxx Xxxxxxx |
(Signatures pages follow)
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxx Xxxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxxx XxXxxxxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxxx Xxxxxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxx Xxxxxxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxx Xxxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxxxxx Xxxxxxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxx-Xxxx Xxxxx Del Xxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxxxxx Xxxxxxxxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxxxxxx Xxxxxxxx | /s/ |
Annex 15 – Signatures specimen (continued)
Name | Signature |
Xxxxxxx Xxxxxxx | /s/ |
