Exhibit 4.44
SECURITIES PURCHASE AGREEMENT
This SECURITIES
PURCHASE AGREEMENT (this “
Agreement
”) is made and entered into as of July 24, 2015, by and between Amyris, Inc.,
a Delaware corporation (the “
Company
”), and the individuals or entities listed on
Schedule I
hereto (each,
a “
Purchaser
,” and collectively, the “
Purchasers
”).
Preliminary Statement
A. The
Company and each Purchaser are executing and delivering this Agreement in reliance upon the exemption from registration afforded
by Section 4(a)(2) of the Securities Act of 1933, as amended (the “
Securities Act
”), and Rule 506 of Regulation
D (“
Regulation D
”) as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the Securities Act.
B. Each
Purchaser, severally and not jointly, wishes to purchase, and the Company wishes to issue and sell, upon the terms and conditions
stated in this Agreement, (i) that aggregate number of shares of the Common Stock set forth opposite such Purchaser’s name
on the Schedule of Purchasers on
Schedule I
(which aggregate amount for all Purchasers together as of the Closing (as defined
below) shall be 16,025,642 shares of Common Stock and shall collectively be referred to herein as the “
Shares
”)
and (ii) warrants, in substantially the form attached hereto as
Exhibit C
(collectively, the “
Warrants
”),
to acquire up to that number of additional shares of Common Stock as determined pursuant to Article 6 of this Agreement and set
forth on the Schedule of Purchasers on
Schedule I
(with the shares of any Common Stock issuable upon exercise of or otherwise
pursuant to the Warrants, collectively, the “
Warrant Shares
”).
C. The
Shares, the Warrants and the Warrant Shares issued pursuant to this Agreement are collectively referred to herein as the “
Securities
.”
Agreement
The parties, intending to be
legally bound, agree as follows:
ARTICLE 1
SALE OF SHARES
Each Purchaser
will purchase from the Company the number of Shares set forth next to such Purchaser’s name on
Schedule I
hereto at
a price of U.S. $1.56 per Share in cash. The total purchase price payable by each Purchaser for the Shares that such Purchaser
is hereby agreeing to purchase is set forth next to such Purchaser’s name on
Schedule I
hereto (the “
Total
Purchase Price
”). The sale and purchase of the Shares to each Purchaser shall constitute a separate sale and purchase
hereunder.
ARTICLE 2
CLOSING; DELIVERY
2.1.
Closing
.
The closing (“
Closing
”) of the transactions contemplated hereby shall be held at the offices of Fenwick &
West LLP, 801 California Street, Mountain View, California 94041 within one business day following the date on which the last of
the conditions set forth in
Articles 6 and 7
have been satisfied or waived in accordance with this Agreement but in no event
later than July 24, 2015 (such date, the “
Closing Date
”), or at such other time and place as the Company and
the Purchasers mutually agree upon.
2.2.
Delivery
.
At the Closing, the Company shall execute and deliver to the Purchasers this Agreement, the Amendment No. 6 to Amended and Restated
Investors’ Rights Agreement in the form attached hereto as
Exhibit A
(the “
Rights Agreement Amendment
”),
a Warrant to acquire up to that number of additional shares of Common Stock as determined pursuant to Article 6 of this Agreement
and set forth next to such Purchaser’s name on
Schedule I
hereto and the other documents referenced in
Article
6
. At the Closing, each Purchaser shall pay the Company the applicable Total Purchase Price in immediately available funds.
Promptly following the Closing, the Company shall deliver to each Purchaser a single stock certificate representing the number
of Shares purchased by such Purchaser, as set forth next to such Purchaser’s name on
Schedule I
hereto, such stock
certificate to be registered in the name of such Purchaser, or in such nominee’s or nominees’ name(s) as designated
by such Purchaser in writing in the form of the Purchaser Suitability Questionnaire of the Purchaser attached hereto as
Exhibit
B
(the “
Purchaser Suitability Questionnaire
”), against payment of the purchase price therefor by wire transfer
of immediately available funds to such account or accounts as the Company shall designate in writing to Purchaser at least two
days prior to the Closing Date.
2.3.
Sale
of Additional Shares
. At any time and from time to time after the Closing Date, the Company may sell, on the same terms and
conditions as those contained in this Agreement, without obtaining the signature, consent or permission of any of the Purchasers,
up to $35,000,000 worth of additional shares of the Company’s Common Stock (the “
Additional Shares
”),
to one or more purchasers (the “
Additional Purchasers
”) in additional closings (each, an “
Additional
Closing
”) at a price per share equal to the greater of (a) the last occurring consolidated closing bid price per share
on The NASDAQ Stock Market (“
The NASDAQ Stock Market
”) prior to such Additional Purchaser’s entry into
this Agreement and (b) book value per share (as defined under The NASDAQ Stock Market rules), plus $0.01, provided that (i) each
such subsequent sale is consummated prior to 90 days after the Closing Date, and (ii) each Additional Purchaser shall become a
party to the Transaction Agreements (as defined below), by executing and delivering a counterpart signature page to each of the
Transaction Agreements. In connection with the purchase of Additional Shares by an Additional Purchaser pursuant to this Section
2.3, such Additional Purchaser shall additionally receive at the applicable Additional Closing a Warrant to acquire up to that
number of additional shares of Common Stock as determined pursuant to Article 6 of this Agreement. Schedule I hereto shall be updated
to reflect the number of Additional Shares and Warrants purchased at each such Additional Closing and the parties purchasing such
Additional Shares and Warrants.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents, warrants
and covenants to each Purchaser, except as set forth in the disclosure letter supplied by the Company to the Purchasers dated as
of the date hereof (the
“
Disclosure Letter
”),
which exceptions shall be deemed to be part of the representations and warranties made hereunder as provided therein, as follows:
3.1.
Organization
and Standing
. The Company and each of its subsidiaries is duly incorporated, validly existing, and in good standing under the
laws of the jurisdiction of its organization. Each of the Company and its subsidiaries has all requisite power and authority to
own and operate its respective properties and assets and to carry on its respective business as presently conducted and as proposed
to be conducted. The Company and each of its subsidiaries is qualified to do business as a foreign entity in every jurisdiction
in which the failure to be so qualified would have, or would reasonably be expected to have, a material adverse effect, individually
or in the aggregate, upon the business, properties, tangible and intangible assets, liabilities, operations, prospects, financial
condition or results of operation of the Company and its subsidiaries or the ability of the Company or any of its subsidiaries
to perform their respective obligations under the Transaction Agreements (as defined below) (a “
Material Adverse Effect
”).
3.2.
Subsidiaries
.
As used in this Agreement, references to any “subsidiary” of a specified Person shall refer to an Affiliate controlled
by such Person directly, or indirectly through one or more intermediaries, as such terms are used in and construed under Rule 405
under the Securities Act (which, for the avoidance of doubt, shall include the Company’s controlled joint ventures, including
shared-controlled joint ventures). The Company’s subsidiaries, as of the date hereof, are listed on
Exhibit 21.01
to the Company’s Annual Report on Form 10-K for the year ended December 31, 2014 and, except as Previously Disclosed (as
defined in
Section 3.11
) are the only subsidiaries, direct or indirect, of the Company as of the date hereof. All the issued
and outstanding shares of each subsidiary’s capital stock have been duly authorized and validly issued, are fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject
to any preemptive rights or other rights to subscribe for or purchase securities, and, except as Previously Disclosed, are owned
by the Company or a Company subsidiary free and clear of all liens, encumbrances and equities and claims. As used herein, “
Person
”
shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof, and an “
Affiliate
”
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common
control with, such Person.
3.3.
Power
.
The Company has all requisite power to execute and deliver this Agreement, to sell and issue the Securities hereunder, and to carry
out and perform its obligations under the terms of this Agreement, the Warrants, the Voting Agreements (as defined herein), the
Rights Agreement Amendment and any ancillary agreements and instruments to be entered into by the Company hereunder (together,
the “
Transaction Agreements
”).
3.4.
Authorization
.
The execution, delivery, and performance of the Transaction Agreements by the Company has been duly authorized by all requisite
action on the part of the Company and its officers, directors and stockholders, and this Agreement constitutes, and the other Transaction
Agreements will constitute, legal, valid, and binding obligations of the Company enforceable in accordance with their terms, except
(a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting
enforcement of creditors’ rights generally, and (b) as limited by laws relating to the
availability of specific performance,
injunctive relief or other equitable remedies (together, the “
Enforceability Exceptions
”).
3.5.
Consents
and Approvals
. Except for any Current Report on Form 8-K or Notice of Exempt Offering of Securities on Form D to be filed by
the Company in connection with the transactions contemplated hereby, the Company is not required to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to consummate
the transactions contemplated by the Transaction Agreements. Assuming the accuracy of the representations of each Purchaser in
the Investor Suitability Questionnaire of such Purchaser, as applicable, no consent, approval, authorization or other order of,
or registration, qualification or filing with, any court, regulatory body, administrative agency, self-regulatory organization,
stock exchange or market (including The NASDAQ Stock Market), or other governmental body is required for the execution and delivery
of these Transaction Agreements, the valid issuance, sale and delivery of the Securities to be sold pursuant to this Agreement
other than such as have been made or obtained, or for any securities filings required to be made under federal or state securities
laws applicable to the offering of the Securities.
3.6.
Non-Contravention
.
The execution and delivery of the Transaction Agreements, the issuance, sale and delivery of the Securities to be sold by the Company
under this Agreement, the performance by the Company of its obligations under the Transaction Agreements and/or the consummation
of the transactions contemplated thereby will not (a) conflict with, result in the breach or violation of, or constitute (with
or without the giving of notice or the passage of time or both) a violation of, or default under, (i) any bond, debenture, note
or other evidence of indebtedness, or under any lease, license, franchise, permit, indenture, mortgage, deed of trust, loan agreement,
joint venture or other agreement or instrument to which the Company or any subsidiary is a party or by which it or its properties
may be bound or affected, (ii) the Company’s Restated Certificate of Incorporation, as amended and as in effect on the date
hereof (the “
Certificate of Incorporation
”), the Company’s Bylaws, as amended and as in effect on the
date hereof (the “
Bylaws
”), or the equivalent document with respect to any subsidiary, as amended and as in
effect on the date hereof, or (iii) any statute or law, judgment, decree, rule, regulation, ordinance or order of any court or
governmental or regulatory body (including The NASDAQ Stock Market), governmental agency, arbitration panel or authority applicable
to the Company, any of its subsidiaries or their respective properties, except in the case of clauses (i) and (iii) for such conflicts,
breaches, violations or defaults that would not be likely to have, individually or in the aggregate, a Material Adverse Effect,
or (b) result in the creation or imposition of any lien, encumbrance, claim, security interest or restriction whatsoever upon any
of the material properties or assets of the Company or any of its subsidiaries or an acceleration of indebtedness pursuant to any
obligation, agreement or condition contained in any material bond, debenture, note or any other evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other agreement or instrument to which the Company or any if its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company
is subject. For purposes of this
Section 3.6
, the term “material” shall apply to agreements, understandings,
instruments, contracts or proposed transactions to which the Company is a party or by which it is bound involving obligations (contingent
or otherwise) of, or payments to, the Company in excess of $100,000 in a consecutive 12-month period.
3.7.
Shares
.
The Shares are duly authorized and when issued pursuant to the terms of this Agreement will be validly issued, fully paid, and
nonassessable, and will be free of any liens or encumbrances with respect to the issuance thereof;
provided
,
however
,
that the Shares shall be subject to restrictions on transfer under state or federal securities laws as set forth in this Agreement,
or as otherwise may be required under state or federal securities laws as set forth in this Agreement at the time a transfer is
proposed. Except as set forth on
Section 3.7
of the Disclosure Letter, the issuance and delivery of the Shares is not subject
to preemptive, co-sale, right of first refusal or any other similar rights of the stockholders of the Company or any other Person,
or any liens or encumbrances or result in the triggering of any anti-dilution or other similar rights under any outstanding securities
of the Company.
3.8.
Authorization
of the Warrants
. The Warrants have been duly authorized by the Company and, when duly executed and delivered by the Company,
will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject
to the Enforceability Exceptions.
3.9.
Authorization
of the Warrant Shares
. The Warrant Shares issuable upon exercise of the Warrants have been duly authorized and reserved for
issuance upon exercise by all necessary corporate action and such shares, when issued upon such exercise in accordance of the terms
of the Warrants, will be validly issued and will be fully paid and non-assessable, and will be free of any liens or encumbrances
with respect to the issuance thereof;
provided
,
however
, that the Warrant Shares shall be subject to restrictions
on transfer under state or federal securities laws as set forth in this Agreement, or as otherwise may be required under state
or federal securities laws as set forth in this Agreement at the time a transfer is proposed. Except as set forth on
Section
3.7
of the Disclosure Letter, the issuance and delivery of the Warrant Shares is not subject to preemptive, co-sale, right
of first refusal or any other similar rights of the stockholders of the Company or any other Person, or any liens or encumbrances
or result in the triggering of any anti-dilution or other similar rights under any outstanding securities of the Company.
3.10.
No
Registration
. Assuming the accuracy of each of the representations and warranties of each Purchaser herein and in the Investor
Suitability Questionnaire, the issuance by the Company of the Securities is exempt from registration under the Securities Act.
3.11.
Reporting
Status
. The Company is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”), and, except as set forth in
Section 3.11
of the Disclosure Letter, has, in a timely manner, filed all documents
and reports that the Company was required to file pursuant to Section I.A.3.b of the General Instructions to Form S-3 promulgated
under the Securities Act in order for the Company to be eligible to use Form S-3 for the two years preceding the Closing Date or
such shorter time period as the Company has been subject to such reporting requirements (the foregoing materials, together with
any materials filed by the Company under the Exchange Act, whether or not required, collectively, the “
SEC Documents
”).
The SEC Documents complied as to form in all material respects with requirements of the Securities Act and Exchange Act and the
rules and regulations of the SEC promulgated thereunder (collectively, the “
SEC Rules
”), and none of the SEC
Documents and the information contained therein, as of their respective filing dates, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading. As used in this
Agreement, “
Previously Disclosed
” means information set forth in or incorporated by reference into the SEC Documents
filed with the SEC on or after March 31, 2015 but prior to the date hereof (except for risks and forward-looking information set
forth in the “Risk Factors” section of the applicable SEC Documents or in any forward-looking statement disclaimers
or similar statements that are similarly non-specific and are predictive or forward-looking in nature).
3.12.
Contracts
.
Each indenture, contract, lease, mortgage, deed of trust, note agreement, loan or other agreement or instrument of a character
that is required to be described or summarized in the SEC Documents or to be filed as an exhibit to the SEC Documents under the
SEC Rules (collectively, the “
Material Contracts
”) is so described, summarized or filed. The Material Contracts
to which the Company or its subsidiaries are a party have been duly and validly authorized, executed and delivered by the Company
and constitute the legal, valid and binding agreements of the Company or its subsidiaries, as applicable, enforceable by and against
the Company or its subsidiaries, as applicable, in accordance with their respective terms, subject to the Enforceability Exceptions.
3.13.
Capitalization
.
As of the date hereof, the authorized capital stock of the Company consists of (a) 300,000,000 shares of Common Stock, $0.0001
par value per share, 79,222,633 shares of which are issued and outstanding as of the date hereof, and (b) 5,000,000 shares of Preferred
Stock, $0.0001 par value per share, of which no shares are issued and outstanding as of the date hereof. All subscriptions, warrants,
options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the
Company issued and outstanding as of the date hereof, or material contracts, commitments, understandings, or arrangements by which
the Company or any of its subsidiaries is or may be obligated to issue shares of capital stock, or securities or rights convertible
or exchangeable for shares of capital stock, are as set forth in the SEC Documents. The issued and outstanding shares of the Company’s
capital stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with
all applicable federal and state securities laws, and were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. Except as Previously Disclosed, no holder of the Company’s capital stock
is entitled to preemptive or similar rights. There are no bonds, debentures, notes or other indebtedness having general voting
rights (or convertible into securities having such rights) of the Company issued and outstanding. Except as Previously Disclosed,
there are no agreements or arrangements under which the Company or any of its subsidiaries is obligated to register the sale of
any of their securities under the Securities Act. The Company has made available to the Purchasers, a true, correct and complete
copy of the Company’s Certificate of Incorporation and Bylaws.
3.14.
Legal
Proceedings
. Except as Previously Disclosed, there is no action, suit or proceeding before any court, governmental agency or
body, domestic or foreign, now pending or, to the knowledge of the Company, threatened against the Company or its subsidiaries
wherein an unfavorable decision, ruling or finding would reasonably be expected to, individually or in the aggregate, (i) materially
adversely affect the validity or enforceability of, or the authority or ability of the Company to perform its obligations under,
this Agreement or (ii) have a Material Adverse Effect. The Company is not a party to or subject to the provisions of any injunction,
judgment, decree or order of any court, regulatory body, administrative agency or other
governmental agency or body
that might have, individually or in the aggregate, a Material Adverse Effect.
3.15.
No
Violations
. Neither the Company nor any of its subsidiaries is in violation of its respective certificate of incorporation,
bylaws or other organizational documents, or to its knowledge, is in violation of any statute or law, judgment, decree, rule, regulation,
ordinance or order of any court or governmental or regulatory body (including The NASDAQ Stock Market), governmental agency, arbitration
panel or authority applicable to the Company or any of its subsidiaries, which violation, individually or in the aggregate, would
be reasonably likely to have a Material Adverse Effect. Neither the Company nor any of its subsidiaries is in default (and there
exists no condition which, with or without the passage of time or giving of notice or both, would constitute a default) in the
performance of any bond, debenture, note or any other evidence of indebtedness in any indenture, mortgage, deed of trust or any
other material agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or by which the properties of the Company are bound, which would be reasonably likely to have a Material
Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the SEC involving the Company or any current or former director or officer of the Company and the Company is not an “ineligible
issuer” pursuant to Rules 164, 405 and 433 under the Securities Act. The Company has not received any comment letter from
the SEC relating to any SEC Documents which has not been finally resolved. The SEC has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company under the Exchange Act or the Securities Act.
3.16.
Governmental
Permits; FDA Matters.
(a)
Permits
.
The Company and its subsidiaries possess all necessary franchises, licenses, certificates and other authorizations from any foreign,
federal, state or local government or governmental agency, department or body that are currently necessary for the operation of
their respective businesses as currently conducted, except where such failure to possess would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such permit which, if the subject of an unfavorable decision,
ruling or finding, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b)
EPA
and FDA Matters
. As to each of the manufacturing processes, intermediate products and research or commercial products of the
Company and each of its subsidiaries, including, without limitation, products or compounds currently under research and/or development
by the Company, subject to the jurisdiction of the United States Environmental Protection Agency (“
EPA
”) under
the Toxic Substances Control Act and regulations thereunder (“
TSCA
”) or the Food and Drug Administration (“
FDA
”)
under the Federal Food, Drug and Cosmetic Act and the regulations thereunder (“
FDCA
”) (each such product, a
“
Life Science Product
”), such Life Science Product is being researched, developed, manufactured, tested, distributed
and/or marketed in compliance in all material respects with all applicable requirements under the FDCA and TSCA and similar laws
and regulations applicable to such Life Science Product, including those relating to investigational use, premarket approval,
good manufacturing practices,
labeling, advertising, record keeping, filing of reports and security. The Company has not received any notice or other communication
from the FDA, EPA or any other federal, state or foreign governmental entity (i) contesting the premarket approval of, the uses
of or the labeling and promotion of any Life Science Product or (ii) otherwise alleging any violation by the Company of any law,
regulation or other legal provision applicable to a Life Science Product. Neither the Company, nor any officer, employee or agent
of the Company has made an untrue statement of a material fact or fraudulent statement to the FDA or other federal, state or foreign
governmental entity performing similar or equivalent functions or failed to disclose a material fact required to be disclosed to
the FDA or such other federal, state or foreign governmental entity.
3.17.
Listing
Compliance
. The Company is in compliance with the requirements of The NASDAQ Stock Market LLC for continued listing of the
Common Stock thereon and has no knowledge of any facts or circumstances that could reasonably lead to delisting of its Common Stock
from The NASDAQ Stock Market. The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or the listing of the Common Stock on The NASDAQ Stock Market, nor has the Company received
any notification that the SEC or The NASDAQ Stock Market is contemplating terminating such registration or listing. The transactions
contemplated by the Transaction Agreements will not contravene the rules and regulations of The NASDAQ Stock Market. The Company
will comply with all requirements of The NASDAQ Stock Market with respect to the issuance of the Securities, including the filing
of any listing notice with respect to the issuance of the Securities, other than obtaining stockholder approval for the exercise
of the Warrants as contemplated by Section 7.7.
3.18.
Intellectual
Property
.
(a) Except
as set forth in Section 3.18 of the Disclosure Letter, Company and/or its subsidiaries owns or possesses, free and clear of all
encumbrances, all legal rights to all intellectual property and industrial property rights and rights in confidential information,
including all (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisional,
reissues, re-examinations, substitutions and extensions thereof, (ii) trademarks, trademark rights, service marks, service mark
rights, corporate names, trade names, trade name rights, domain names, logos, slogans, trade dress, design rights, and other similar
designations of source or origin, together with the goodwill symbolized by and of the foregoing, (iii) trade secrets and all other
confidential information, ideas, know-how, inventions, proprietary processes, formulae, models, and other methodologies, (iv) copyrights,
(v) computer programs (whether in object code, subject code or other form), algorithms, databases, compilations and data, technology
supporting the foregoing, and all related documentation, (vi) licenses to any of the foregoing, and (vii) all applications and
registrations of the foregoing, and (viii) all other similar proprietary rights (collectively, “
Intellectual Property
”)
used or held for use in, or necessary for the conduct of their businesses as now conducted and as proposed to be conducted, and
neither the Company nor any of its subsidiaries (A) has received any communications alleging that either the Company or any of
its subsidiaries has violated, infringed or misappropriated or, by conducting their businesses as now conducted and as proposed
to be conducted, would violate, infringe or misappropriate any of the Intellectual Property of any other Person, (B) knows of any
claim that the Company or any of its subsidiaries
has violated, infringed or misappropriated,
or, by conducting their businesses as now conducted and as proposed to be conducted, would violate, infringe or misappropriate
any of the Intellectual Property of any other Person, and (C) knows of any material third-party infringement, misappropriation
or violation of any Company or any Company subsidiary’s Intellectual Property. The Company has taken and takes reasonable
security measures to protect the secrecy, confidentiality and value of its Intellectual Property, including requiring all Persons
with access thereto to enter into appropriate non-disclosure agreements. To the knowledge of the Company, there has not been any
disclosure of any material trade secret of the Company or a Company subsidiary (including any such information of any other Person
disclosed in confidence to the Company) to any other Person in a manner that has resulted or is likely to result in the loss of
trade secret in and to such information. Except as Previously Disclosed, and except as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, there are no outstanding options, licenses or agreements, claims,
encumbrances or shared ownership interests of any kind relating to the Company’s or its subsidiaries’ Intellectual
Property, nor is the Company or its subsidiaries bound by or a party to any options, licenses or agreements of any kind with respect
to the Intellectual Property of any other Person.
(b) To
the Company’s knowledge, none of the employees of the Company or its subsidiaries are obligated under any contract (including,
without limitation, licenses, covenants or commitments of any nature or contracts entered into with prior employers), or subject
to any judgment, decree or order of any court or administrative agency, that would interfere with the use of his or her best efforts
to promote the interests of the Company or its subsidiaries or would conflict with their businesses as now conducted and as proposed
to be conducted. Neither the execution nor delivery of the Transaction Agreements will conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under any contract, covenant or instrument under which the Company
or its subsidiaries or any of the employees of the Company or its subsidiaries is now obligated, and neither the Company nor its
subsidiaries will need to use any inventions that any of its employees, or Persons it currently intends to employ, have made prior
to their employment with the Company or its subsidiaries, except for inventions that have been assigned or licensed to the Company
or its subsidiaries as of the date hereof. Each current and former employee or contractor of the Company or its subsidiaries that
has developed any Intellectual Property owned or purported to be owned by the Company or its subsidiaries has executed and delivered
to the Company a valid and enforceable Invention Assignment and Confidentiality Agreement that (i) assigns to the Company or such
subsidiaries all right, title and interest in and to any Intellectual Property rights arising from or developed or delivered to
the Company or such subsidiaries in connection with such Person’s work for or on behalf of the Company or such subsidiaries,
and (ii) provides reasonable protection for the trade secrets, know-how and other confidential information (1) of the Company or
such subsidiaries and (2) of any third party that has disclosed same to the Company or such subsidiaries. To the knowledge of the
Company, no current or former employee, officer, consultant or contractor is in default or breach of any term of any employment,
consulting or contractor agreement, non-disclosure agreement, assignment agreement, or similar agreement. Except as Previously
Disclosed, to the knowledge of the Company, no present or former employee, officer, consultant or contractor of the Company has
any ownership, license or other right, title or interest, directly or indirectly, in whole or in part, in any Intellectual Property
that is owned or purported to be owned, in whole or part, by the Company or its subsidiaries.
3.19.
Financial
Statements
. The consolidated financial statements of the Company and its subsidiaries and the related notes thereto included
in the SEC Documents (the “
Financial Statements
”) comply in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and present fairly,
in all material respects, the financial position of the Company and its subsidiaries as of the dates indicated and the results
of its operations and cash flows for the periods therein specified subject, in the case of unaudited statements, to normal year-end
audit adjustments. Except as set forth in such Financial Statements (or the notes thereto), such Financial Statements (including
the related notes) have been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent
basis throughout the periods therein specified (“
GAAP
”). Except as set forth in the Financial Statements, neither
the Company nor its subsidiaries has any material liabilities other than liabilities and obligations that have arisen in the ordinary
course of business and which would not be required to be reflected in financial statements prepared in accordance with GAAP.
3.20.
Accountants
.
PricewaterhouseCoopers LLP, which has expressed its opinion with respect to the consolidated financial statements contained in
the Company’s Annual Report on Form 10-K for the year ended December 31, 2014, are registered independent public accountants
as required by the Exchange Act and the rules and regulations promulgated thereunder (and by the rules of the Public Company Accounting
Oversight Board).
3.21.
Internal
Accounting Controls
. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. The Company has disclosure controls and procedures (as defined in Rules 13a14 and 15d-14
under the Exchange Act) that are effective and designed to ensure that (i) information required to be disclosed in the reports
that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
by the SEC Rules, and (ii) such information is accumulated and communicated to the Company’s management, including its principal
executive officer and principal financial officer, to allow timely decisions regarding required disclosure. The Company is otherwise
in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended and the rules
and regulations promulgated thereunder.
3.22.
Off-Balance
Sheet Arrangements
. There is no transaction, arrangement or other relationship between the Company or its subsidiaries and
an unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in its Exchange Act filings
and is not so disclosed or that otherwise would be reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect. There are no such transactions, arrangements or other relationships with the Company that may create contingencies or liabilities
that are not otherwise disclosed by the Company in its Exchange Act filings.
3.23.
No
Material Adverse Change; Solvency
. (a) Except as set forth in the SEC Documents in each case, filed or made through and including
the date hereof, since March 31, 2015:
(i) there
has not been any event, occurrence or development that, individually or in the aggregate, has had or that could reasonably be expected
to result in a Material Adverse Effect,
(ii) the
Company has not incurred any liabilities (contingent or otherwise) other than (1) trade payables and accrued expenses incurred
in the ordinary course of business consistent with past practice and (2) liabilities not required to be reflected in the Company's
financial statements pursuant to GAAP or not required to be disclosed in filings made with the SEC,
(iii) the
Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its capital stock other than routine withholding in accordance with
the Company’s existing stock-based plan,
(iv) the
Company has not altered its method of accounting or the identity of its auditors, except as Previously Disclosed,
(v) the
Company has not issued any equity securities except pursuant to the Company’s existing stock based plans or as otherwise
Previously Disclosed; and
(vi) there
has not been any loss or damage (whether or not insured) to the physical property of the Company or any of its subsidiaries.
(b) The
Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing,
will not be Insolvent (as defined below). For purposes of this Section, “
Insolvent
” means, with respect to any
Person, (i) the present fair saleable value of such Person’s assets is less than the amount required to pay such Person’s
total indebtedness, (ii) such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured,
(iii) such Person intends to incur or believes that it will incur debts
that would be beyond its ability to pay as such debts mature or (iv) such Person has unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is currently proposed to be conducted. As of the Closing,
the Company’s existing cash and cash equivalents, cash from operations, cash from borrowing facilities and cash available
from capital market transactions will be sufficient to meet the Company’s planned working capital and capital expenditure
requirements for at least 6 months from the Closing Date.
(c) The
Company has not incurred any obligation or liability (contingent or otherwise) under this Agreement, or any of the documents or
instruments contemplated hereby, with actual intent to hinder, delay or defraud either present or future creditors of the Company
or any of its subsidiaries.
3.24.
No
Manipulation of Stock
. Neither the Company nor any of its subsidiaries, nor to the Company’s knowledge, any of their
respective officers, directors, employees, Affiliates or controlling Persons has taken and will not, in violation of applicable
law, take, any action designed to or that might reasonably be expected to, directly or indirectly, cause or result in stabilization
or manipulation of the price of the Common Stock.
3.25.
Insurance
. The
Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and its subsidiaries are engaged. The Company
and its subsidiaries will continue to maintain such insurance or substantially similar insurance, which covers the same risks at
the same levels as the existing insurance with insurers which guarantee the same financial responsibility as the current insurers,
and neither the Company nor any subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
without a significant increase in cost.
3.26.
Properties
. Except
as Previously Disclosed, the Company and its subsidiaries have good and marketable title to all the properties and assets (both
tangible and intangible) described as owned by them in the consolidated financial statements included in the SEC Documents, free
and clear of all liens, mortgages, pledges, or encumbrances of any kind except (i) those, if any, reflected in such consolidated
financial statements (including the notes thereto), or (ii) those that are not material in amount and do not adversely affect the
use made and proposed to be made of such property by the Company or its subsidiaries. The Company and each of its subsidiaries
hold their leased properties under valid and binding leases. The Company and each of its subsidiaries own or lease all such properties
as are necessary to its operations as now conducted.
3.27.
Tax
Matters
. The Company and its subsidiaries have filed all Tax Returns, and these Tax Returns are true, correct, and complete
in all material respects. The Company and each subsidiary (i) have paid all Taxes that are due from the Company or such subsidiary
for the periods covered by the Tax Returns or (ii) have duly and fully provided reserves adequate to pay all Taxes in accordance
with GAAP. No agreement as to indemnification for, contribution to, or payment of Taxes exists between the Company or any subsidiary,
on the one hand, and any other Person, on the other, including pursuant to any Tax sharing agreement, lease agreement, purchase
or sale agreement, partnership agreement or any other agreement not entered into in the ordinary course of business. Neither the
Company nor any of its subsidiaries has any liability for Taxes of any Person (other than the Company or any of its subsidiaries)
under Treasury Regulation Section 1.1502-6 (or any similar provision of any state, local or foreign law), or as a transferee or
successor, by contract or otherwise. Since the date of the Company's most recent Financial Statements, the Company has not incurred
any liability for Taxes other than in the ordinary course of business consistent with past practice. Neither the Company nor its
subsidiaries has been advised (a) that any of its Tax Returns have been or are being audited as of the date hereof, or (b) of any
deficiency in assessment or proposed judgment to its Taxes. Neither the Company nor any of its subsidiaries has knowledge of any
Tax liability to be imposed upon its properties or assets as of the date of this Agreement that is not adequately provided for.
The Company has not distributed stock of another corporation, or has had its stock distributed by another corporation, in a transaction
that was governed, or purported or intended to be governed, in whole or in part, by Section 355 of the Internal Revenue Code (i)
in the two years prior to the date of this Agreement
or (ii) in a distribution that
could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of
Section 355(e) of the Internal Revenue Code) in conjunction with the purchase of the Shares. “
Tax
” or “
Taxes
”
means any foreign, federal, state or local income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, property, windfall, profits, environmental, customs, capital stock, franchise, employees’ income withholding, foreign
or domestic withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, value
added, alternative or add-on minimum or other similar tax, governmental fee, governmental assessment or governmental charge, including
any interest, penalties or additions to Taxes or additional amounts with respect to the foregoing. “
Tax Returns
”
means all returns, reports, or statements required to be filed with respect to any Tax (including any elections, notifications,
declarations, schedules or attachments thereto, and any amendment thereof) including any information return, claim for refund,
amended return or declaration of estimated Tax.
3.28.
Investment
Company Status
. The Company is not, and immediately after receipt of payment for the Shares will not be, an “investment
company,” an “affiliated person” of, “promoter” for or “principal underwriter” for, or
an entity “controlled” by an “investment company,” within the meaning of the Investment Company Act of
1940, as amended, or the rules and regulations promulgated thereunder.
3.29.
Transactions
With Affiliates and Employees
. Except as Previously Disclosed, none of the officers or directors of the Company or its subsidiaries
and, to the knowledge of the Company, none of the employees of the Company or its subsidiaries is presently a party to any transaction
with the Company or any subsidiary (other than for services as employees, officers and directors required to be disclosed under
Item 404 of Regulation S-K under the Exchange Act).
3.30.
Foreign
Corrupt Practices
. Neither the Company nor its subsidiaries or Affiliates, any director or officer, nor to the knowledge of
the Company, any agent, employee or other Person acting on behalf of the Company or its subsidiaries has, in the course of its
actions for, or on behalf of, the Company or any of its subsidiaries (a) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expenses relating to political activity, (b) made or promised to make any direct or indirect
unlawful payment to any foreign or domestic government official or employee (including any officer or employee of a government
or government-owned or controlled entity or of a public international organization, or any Person acting in an official capacity
for or on behalf of any of the foregoing, or of any political party or part official or candidate for political office (each such
Person, a “
Government Official
”)) from corporate funds, (c) violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977, as amended or (d) made or promised to make any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic Government Official.
3.31.
Money
Laundering Laws
. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, and the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Title
III of Pub. L. 107-56 (signed into law on October 26, 2001)), applicable money laundering statutes and applicable rules and regulations
thereunder (collectively, the “
Money Laundering Laws
”), and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the
Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
3.32.
OFAC
.
Neither the Company, any director or officer, nor, to the Company’s knowledge, any agent, employee, subsidiary or Affiliate
of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“
OFAC
”); and the Company will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, for the purpose
of financing the activities of any Person currently subject to any U.S. sanctions administered by OFAC.
3.33.
Environmental
Laws
. The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“
Environmental Laws
”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a Material Adverse Effect on the Company and its subsidiaries,
taken as a whole. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
3.34.
Employee
Relations
. Except as set forth in Section 3.34 of the Disclosure Letter, neither the Company nor any of its subsidiaries is
a party to any collective bargaining agreement or employs any member of a union. Neither the Company nor any of its subsidiaries
is engaged in any unfair labor practice. There is (i) (x) no unfair labor practice complaint pending or, to the Company’s
knowledge, threatened against the Company or any of its subsidiaries before the National Labor Relations Board, and no grievance
or arbitration proceeding arising out of or under collective bargaining agreements is pending or threatened, (y) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries
and (z) no union representation dispute currently existing concerning the employees of the Company or any of its subsidiaries,
and (ii) to the Company’s knowledge, (x) no union organizing activities are currently taking place concerning the employees
of the Company or any of its subsidiaries and (y) there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees or any applicable wage or hour laws. No executive officer of the
Company (as defined in Rule 501(f) promulgated under the Securities Act) has notified the Company that such officer intends to
leave the Company or otherwise terminate such officer’s employment with the Company. No executive officer of the Company,
to the knowledge of the Company, is, or is now expected to be, in
violation of any material term
of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition agreement, or any
other agreement or any restrictive covenant, and the continued employment of each such executive officer does not subject the Company
or any of its subsidiaries to any liability with respect to any of the foregoing matters.
3.35.
ERISA
.
The Company and its subsidiaries are in compliance in all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (herein
called “
ERISA
”); no “reportable event” (as defined in ERISA) has occurred with respect to any “pension
plan” (as defined in ERISA) for which the Company or any of its subsidiaries would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “pension plan”; or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the “
Code
”); and each “Pension Plan” for which the Company
would have liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
3.36.
Obligations
of Management
. To the Company’s knowledge, each officer and key employee of the Company or its subsidiaries is currently
devoting substantially all of his or her business time to the conduct of the business of the Company or its subsidiaries, respectively.
The Company is not aware that any officer or key employee of the Company or its subsidiaries is planning to work less than full
time at the Company or its subsidiaries, respectively, in the future. To the Company’s knowledge, no officer or key employee
is currently working or plans to work for a competitive enterprise, whether or not such officer or key employee is or will be compensated
by such enterprise. To the Company’s knowledge, no officer or Person currently nominated to become an officer of the Company
or its subsidiaries is or has been subject to any judgment or order of, the subject of any pending civil or administrative action
by the SEC or any self-regulatory organization
.
3.37.
Integration;
Other Issuances of Securities
. Neither the Company nor its subsidiaries or any Affiliates, nor any Person acting on its or
their behalf, has issued any shares of Common Stock or shares of any series of preferred stock or other securities or instruments
convertible into, exchangeable for or otherwise entitling the holder thereof to acquire shares of Common Stock which would be integrated
with the sale or exchange of the Securities to the Purchasers for purposes of the Securities Act or of any applicable stockholder
approval provisions, including, without limitation, under the rules and regulations of The NASDAQ Stock Market, nor will the Company
or its subsidiaries or Affiliates take any action or steps that would require registration of any of the Securities under the Securities
Act or cause the offering of the Securities to be integrated with other offerings if any such integration would cause the issuance
of the Securities hereunder to fail to be exempt from registration under the Securities Act as provided in
Section 3.10
above or cause the transactions contemplated hereby to contravene the rules and regulations of The NASDAQ Stock Market. The Company
is eligible to register the Shares and the Warrant Shares for resale by the Purchasers using Form S-3 promulgated under the Securities
Act.
3.38.
No
General Solicitation
. Neither the Company nor its subsidiaries or any Affiliates, nor any Person acting on its or their behalf,
has offered or sold any of the Securities by any form of general solicitation or general advertising.
3.39.
No
Brokers’ Fees
. The Company has not incurred any liability for any finder’s or broker’s fee or agent’s
commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated
hereby.
3.40.
Registration
Rights
. Except as set forth in (i) the Amended and Restated Investors’ Rights Agreement dated June 21, 2010, by and among
the Company and the parties listed on Exhibits A through H thereof, as amended by Amendment No. 1 thereto dated February 23, 2012,
Amendment No. 2 thereto dated December 24, 2012, Amendment No. 3 thereto dated March 27, 2013, Amendment No. 4 thereto dated October
16, 2013, Amendment No. 5 thereto dated December 24, 2013 and the Rights Agreement Amendment (as amended, the “
Rights
Agreement
”); (ii) the Registration Rights Agreement, dated February 27, 2012, by and among the Company and the several
purchasers signatory thereto; (iii) the Registration Rights Agreement, dated July 30, 2012, by and between the Company and Total
Energies Nouvelles Activités USA (“
Total
”), (iv) the Amended and Restated Letter Agreement dated May
8, 2014, by and among the Company and note holders party thereto; (v) the Registration Rights Agreement, dated February 24, 2015,
by and between the Company and Nomis Bay Ltd.; and (vi) the registration rights letter attached hereto as
Exhibit D
(the
“
Registration Rights Letter
”), the Company has not granted or agreed to grant to any Person any rights (including
“piggy-back” registration rights) to have any securities of the Company registered with the SEC or any other governmental
authority that have not been satisfied or waived.
3.41.
Application
of Takeover Protections
. There is no control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the Company’s charter documents or the laws of its
state of incorporation that is or could become applicable to any of the Purchasers as a result of the Purchaser and the Company
fulfilling their obligations or exercising their rights under the Transaction Agreements, including, without limitation, as a result
of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
3.42.
No
Disqualification
. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act
(a “
Disqualification Event
”) is applicable to the Company or, to the Company’s knowledge, any Company
Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable. As used herein,
“
Company Covered Person
” means, with respect to the Company as an “issuer” for purposes of Rule
506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).
3.43.
Disclosure
.
The Company understands and confirms that the Purchasers will rely on the foregoing representations in effecting transactions in
the Securities. All disclosure furnished by or on behalf of the Company to the Purchasers in connection with this Agreement regarding
the Company, its business and the transactions contemplated hereby is true and correct in all material respects and does not contain
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading. The Company acknowledges and
agrees that the Purchasers have
not made and do not make any representations or warranties with respect to the transactions contemplated hereby other than those
set forth in
Article 4
hereto. Other than (a) the Voting Agreements (as defined herein), (b) letter agreements regarding
waivers of rights by any of the Purchasers and (c) the Registration Rights Letter, the Company has not entered into any letter
agreement with a Purchaser hereunder in connection with the transactions contemplated hereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
Each Purchaser,
as to itself only and not with respect to any other Purchaser, represents, warrants and covenants to the Company with respect to
this purchase as follows:
4.1.
Organization
.
The Purchaser is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization.
4.2.
Power
.
The Purchaser has all requisite power to execute and deliver this Agreement and to carry out and perform its obligations under
the terms of this Agreement.
4.3.
Authorization
.
The execution, delivery, and performance of this Agreement by the Purchaser has been duly authorized by all requisite action, and
this Agreement constitutes the legal, valid, and binding obligation of the Purchaser enforceable in accordance with its terms,
except as limited by the Enforceability Exceptions.
4.4.
Consents
and Approvals
. The Purchaser need not give any notice to, make any filing with, or obtain any authorization, consent, or approval
of any government or governmental agency in order to consummate the transactions contemplated by this Agreement.
4.5.
Non-Contravention
.
Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate
in any material respect any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which the Purchaser is subject. No approval, waiver, or consent
by the Purchaser under any instrument, contract, or agreement to which the Purchaser or any of its Affiliates is a party is necessary
to consummate the transactions contemplated hereby.
4.6.
Purchase
for Investment Only
. The Purchaser is purchasing the Securities for the Purchaser’s own account for investment purposes
only and not with a view to, or for resale in connection with, any “distribution” in violation of the Securities Act.
By executing this Agreement, the Purchaser further represents that it does not have any contract, undertaking, agreement, or arrangement
with any Person to sell, transfer, or grant participation to such Person or to any third Person, with respect to any of the Securities.
The Purchaser understands that the Securities have not been registered under the Securities Act or any applicable state securities
laws by reason of a specific exemption therefrom that depends upon, among other things, the bona fide nature of the investment
intent as expressed herein.
4.7.
Disclosure
of Information
. The Purchaser has had an opportunity to review the Company’s filings under the Securities Act and the
Exchange Act (including risks factors set
forth therein) and the Purchaser
represents that it has had an opportunity to ask questions and receive answers from the Company to evaluate the financial risk
inherent in making an investment in the Securities. The Purchaser has not been offered the opportunity to purchase the Securities
by means of any general solicitation or general advertising.
4.8.
Risk
of Investment
. The Purchaser realizes that the purchase of the Securities will be a highly speculative investment and the Purchaser
may suffer a complete loss of its investment. The Purchaser understands all of the risks related to the purchase of the Securities.
By virtue of the Purchaser’s experience in evaluating and investing in private placement transactions of securities in companies
similar to the Company, the Purchaser is capable of evaluating the merits and risks of the Purchaser’s investment in the
Company and has the capacity to protect the Purchaser’s own interests.
4.9.
Advisors
.
The Purchaser has reviewed with its own tax advisors the federal, state, and local tax consequences of this investment and the
transactions contemplated by this Agreement. The Purchaser acknowledges that it has had the opportunity to review the Transaction
Agreements and the transactions contemplated thereby with the Purchaser’s own legal counsel.
4.10.
Finder
.
The Purchaser is not obligated and will not be obligated to pay any broker commission, finders’ fee, success fee, or commission
in connection with the transactions contemplated by this Agreement.
4.11.
Restricted
Shares
. The Purchaser understands that the Securities must be held indefinitely unless subsequently registered under the Securities
Act or unless an exemption from registration is otherwise available. Moreover, the Purchaser understands that, except as set forth
in the Rights Agreement, the Company is under no obligation to register the Shares. The Purchaser is aware of Rule 144 promulgated
under the Securities Act (“
SEC Rule 144
”) that permits limited resales of securities purchased in a private
placement subject to the satisfaction of certain conditions.
4.12.
Legend
.
It is understood by the Purchaser that each certificate representing the Shares and the Warrant Shares and each Warrant shall be
endorsed with a legend substantially in the following form:
“NEITHER THE ISSUANCE
AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS
SOLD OR ELIGIBLE TO BE SOLD
PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
Subject to
Section 7.3, the Company need not register a transfer of Securities unless the conditions specified in the foregoing legend are
satisfied. Subject to Section 7.3, the Company may also instruct its transfer agent not to register the transfer of any of the
Securities unless the conditions specified in the foregoing legend are satisfied.
4.13.
Investor
Qualification
. The Purchaser is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities
Act. The Purchaser acknowledges that it has completed the Purchaser Suitability Questionnaire. The Purchaser has truthfully set
forth in the Purchaser Suitability Questionnaire the factual basis or reason for qualification as an “accredited investor”
as defined in Rule 501(a) of Regulation D under the Securities Act and such information remains true and correct as of the date
hereof. The Purchaser agrees to furnish any additional information that the Company deems reasonably necessary in order to verify
the answers set forth in the Purchaser Suitability Questionnaire.
4.14.
Disqualification
.
The Purchaser represents that neither such Purchaser, nor any person or entity with whom such Purchaser shares beneficial ownership
of the Company securities, is subject to any Disqualification Event (as defined in Rule 506(d)(1)(i) through (viii) under the Securities
Act), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed
reasonably in advance of the Closing in writing in reasonable detail to the Company.
ARTICLE 5
CONDITIONS TO COMPANY’S OBLIGATIONS
AT THE CLOSING OR ANY ADDITIONAL CLOSING.
The Company’s
obligation to complete the sale and issuance of the Shares and deliver the Shares to each Purchaser, individually, at the Closing
or at any Additional Closing shall be subject to the following conditions to the extent not waived by the Company:
(a)
Receipt of
Payment
. The Company shall have received payment by wire transfer of immediately available funds in the full amount of the
Total Purchase Price for the number of Shares being purchased by such Purchaser at the Closing or Additional Closing, as applicable,
as set forth next to such Purchaser’s name on
Schedule I
hereto.
(b)
Representations
and Warranties
. The representations and warranties made by such Purchaser in Section 4 hereof shall be true and correct in
all material respects as of, and as if made on, the date of this Agreement and as of the Closing or the Additional Closing, as
applicable.
(c)
Receipt of
Executed Documents
. Such Purchaser shall have duly executed and delivered to the Company the Rights Agreement Amendment, the
Registration Rights Letter, the Voting Agreement (other than Wolverine Flagship Fund Trading Limited) and the Purchaser
Suitability Questionnaire.
ARTICLE 6
CONDITIONS TO PURCHASERS’
OBLIGATIONS AT THE CLOSING AND ANY ADDITIONAL CLOSING
Each Purchaser’s
obligation to accept delivery of the Shares and to pay for the Shares shall be subject to the following conditions to the extent
not waived by such Purchaser:
(a)
Representations
and Warranties
. The representations and warranties made by the Company in Section 3 hereof shall be true and correct in all
respects as of, and as if made on, the date of this Agreement and as of the Closing, or, in the case of the sale of Additional
Shares, as of the Additional Closing and as qualified by any updated Disclosure Letter (an “
Updated Disclosure Letter
")
delivered by the Company to such Additional Purchase on the date of such Additional Closing.
(c)
Receipt
of Rights Agreement Amendment
. The Company shall have executed and delivered to each Purchaser the Rights Agreement Amendment
and the Registration Rights Letter, and the Rights Agreement Amendment shall have been duly executed by such other parties as may
be required for the Rights Agreement to be binding and effective with respect to the parties thereto.
(d)
Legal
Opinion
. The Purchasers shall have received an opinion of Fenwick & West LLP, counsel to the Company, substantially in
the form set forth in
Exhibit E
hereto, dated as of the Closing or the Additional Closing, as applicable.
(e)
Certificate
.
Each Purchaser shall have received a certificate signed by the Company’s Chief Executive Officer and Chief Financial Officer
to the effect that the representations and warranties of the Company in Section 3 hereof are true and correct in all respects as
of, and as if made on, the date of this Agreement and as of the Closing, or, in the case of any Additional Closing, as of such
Additional Closing and as qualified by any Updated Disclosure Letter delivered by the Company to such Purchaser on the date of
such Additional Closing, and that the Company has satisfied in all material respects all of the conditions set forth in this Agreement.
(f)
Good
Standing
. The Company is validly existing as a corporation in good standing under the laws of Delaware as evidenced by a certificate
of the Secretary of State of the State of Delaware, a copy of which was provided to the Purchasers.
(g)
Secretary’s
Certificate
. A certificate, executed by the Secretary of the Company and dated as of the Closing Date or the date of the Additional
Closing, as applicable, as to (A) the resolutions approving the issuance of the Shares as adopted by an Independent Committee of
the Board of Directors and/or the Company’s Board of Directors in a form reasonably acceptable to such Purchaser, (B) the
certificate of incorporation, and (C) the bylaws, each as in effect as of the Closing Date or the date of the Additional Closing,
as applicable.
(h)
Board
Approval
. The terms and conditions of the issuance of the Securities and the Transaction Agreements shall have been approved
by an Independent Committee of the
Board of Directors and/or a
majority of the disinterested directors of the Board of Directors, as applicable.
(i)
Approvals
.
The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale
of the Securities, including, without limitation, from The NASDAQ Stock Market, other than with respect to obtaining stockholder
approval of the exercise of the Warrants pursuant to
Section 7.6
.
(j)
Warrants
.
The Company shall have issued to each Purchaser or Additional Purchaser purchasing Shares at such Closing or Additional Closing,
as applicable, a Warrant in the form of
Exhibit C
attached hereto, which warrant will be exercisable for ten percent (10%)
of the Shares being purchased by such Purchaser or Additional Purchaser at such Closing or Additional Closing, as applicable, at
an exercise price per share of $0.01 per share; provided, however, that such Warrant shall only be exercisable if such Warrant
has been approved by a majority of the Company’s stockholders whose vote was counted at the Stockholders Meeting in accordance
with
Section 7.6
of this Agreement.
(k)
Exchange
.
Prior to or simultaneous with the Closing or Additional Closing, as applicable, the Company shall have consummated the transactions
contemplated by that certain Exchange Agreement dated as of the date of this Agreement (the “
Exchange Agreement
”)
by and among the Company, Total and Maxwell (Mauritius) PTE LTD.
(l)
Voting
Agreements
. The Purchasers (other than Wolverine Flagship Fund Trading Limited) and such other stockholders of the Company
holding in the aggregate a majority of the Company’s voting capital stock entitled to vote at the Stockholders Meeting (after
taking into account the Exchanges (as defined in the Exchange Agreement) and the transactions contemplated hereby) (the “
Voting
Stockholders
”) shall have each entered into a voting agreement with the Company in the form attached hereto as
Exhibit
F
(the “
Voting Agreement
”) pursuant to which the Purchasers and such stockholders shall agree to vote at
the Stockholders Meeting all shares of the Company’s capital stock held by such Purchasers or stockholders to approve the
issuance of the Warrants and the Warrant Shares issuable upon exercise of such Warrants and the agreements related thereto.
ARTICLE 7
OTHER AGREEMENTS OF THE PARTIES
7.1.
Securities
Laws Disclosure; Publicity
. Promptly after the Closing Date, the Company shall issue a press release (the “
Press Release
”)
reasonably acceptable to the Purchasers disclosing all material terms of the transactions contemplated hereby. On or before 5:30
p.m., New York City time, on the fourth trading day immediately following the execution of this Agreement, the Company will file
a Current Report on Form 8-K with the SEC describing the terms of the Transaction Agreements (the “
8-K Filing
”).
From and after the filing of the Press Release, the Company shall have disclosed all material, non-public information (if any)
provided to any of the Purchasers by the Company or any of its Subsidiaries or any of their respective officers, directors, employees
or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing
of the Press Release, the Company acknowledges and agrees that any and all confidentiality or similar
obligations under any agreement,
whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates,
employees or agents, on the one hand, and any of the Purchasers or any of their affiliates, on the other hand, shall terminate.
The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors,
employees and agents not to, provide any Purchaser (other than any Purchaser who has a designee, representative or affiliate who
serves on the Company’s board of directors) with any material, non-public information regarding the Company or any of its
Subsidiaries from and after the date hereof without the express prior written consent of such Purchaser (which may be granted or
withheld in such Purchaser’s sole discretion). To the extent that the Company delivers any material, non-public information
to a Purchaser without such Purchaser's consent, the Company hereby covenants and agrees that such Purchaser shall not have any
duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information. Subject
to the foregoing, neither the Company, its Subsidiaries nor any Purchaser shall issue any press releases or any other public statements
with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval
of any Purchaser, to make the Press Release and any press release or other public disclosure with respect to such transactions
(i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required by applicable law and
regulations (provided that in the case of clause (i) each Purchaser shall be consulted by the Company in connection with any such
press release or other public disclosure prior to its release). Without the prior written consent of the applicable Purchaser (which
may be granted or withheld in such Purchaser’s sole discretion), the Company shall not (and shall cause each of its Subsidiaries
and affiliates to not) disclose the name of such Purchaser in any filing (except as required by law or upon the reasonable advice
of counsel), announcement, release or otherwise. Notwithstanding anything contained in this Agreement to the contrary and without
implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that no Purchaser shall have
(unless expressly agreed to by a particular Purchaser after the date hereof in a written definitive and binding agreement executed
by the Company and such particular Purchaser (it being understood and agreed that no Purchaser may bind any other Purchaser with
respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public
information regarding the Company or any of its Subsidiaries.
7.2.
Form
D
. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and to provide
a copy thereof to the Investor (provided that the posting of the Form D on the SEC’s EDGAR system shall be deemed delivery
of the Form D for purposes of this Agreement).
7.3.
Removal
of Legends and Transfer Restrictions
. Removal of Legends. Certificates evidencing Securities shall not be required to contain
the legend set forth in Section 4.12 above or any other legend (i) while a registration statement covering the resale of such Securities
is effective under the Securities Act, (ii) following any sale of such Securities pursuant to Rule 144 (assuming the transferor
is not an affiliate of the Company), (iii) if such Securities are eligible to be sold, assigned or transferred under Rule 144 (provided
that a Purchaser provides the Company with reasonable assurances that such Securities are eligible for sale, assignment or transfer
under Rule 144 and Purchaser’s acknowledgment of the requirement to sell, assign or transfer the Securities in accordance
with Rule 144 or another exemption from the registration requirements of the Securities Act which shall not include an opinion
of Purchaser’s counsel), (iv) in
connection with a sale, assignment
or other transfer (other than under Rule 144), provided that such Purchaser provides the Company with an opinion of counsel to
such Purchaser, in a generally acceptable form, to the effect that such sale, assignment or transfer of the Securities may be made
without registration under the applicable requirements of the Securities Act or (v) if such legend is not required under applicable
requirements of the Securities Act (including, without limitation, controlling judicial interpretations and pronouncements issued
by the SEC). If a legend is not required pursuant to the foregoing, the Company shall no later than three (3) Trading Days (as
defined in the Warrants) following the delivery by a Purchaser to the Company or the transfer agent (with notice to the Company)
of a legended certificate representing such Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise
in form necessary to affect the reissuance and/or transfer, if applicable), together with any other deliveries from such Purchaser
as may be required above in this Section 7.4(a), as directed by such Purchaser, either: (A) provided that the Company’s transfer
agent is participating in the DTC Fast Automated Securities Transfer Program and such Securities are Shares or Warrant Shares,
credit the aggregate number of shares of Common Stock to which such Purchaser shall be entitled to such Purchaser’s or its
designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system or (B) if the Company’s transfer
agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver (via reputable overnight courier)
to such Purchaser, a certificate representing such Securities that is free from all restrictive and other legends, registered in
the name of such Purchaser or its designee (the date by which such credit is so required to be made to the balance account of such
Purchaser’s or such Purchaser’s designee with DTC or such certificate is required to be delivered to such Purchaser
pursuant to the foregoing is referred to herein as the “
Required Delivery Date
”, and the date such shares of
Common Stock are actually delivered without restrictive legend to such Purchaser or such Purchaser’s designee with DTC, as
applicable, the “
Share Delivery Date
”). The Company shall be responsible for any transfer agent fees or DTC
fees with respect to any issuance of Securities or the removal of any legends with respect to any Securities in accordance herewith.
The Company acknowledges that the remedy at law for a breach of its obligations under this
Section 7.3
may be inadequate
and agrees, in the event of a breach or threatened breach by the Company of the provisions of this
Section 7.3
with respect
to any Purchaser, the Purchaser shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining
any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or
other security being required.
7.4.
Subsequent
Equity Sales
. The Company shall not, and shall use its commercially reasonable efforts to ensure that no Affiliate of the Company
shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section
2
of the Securities Act) that will be integrated with the offer or sale of the Securities in a manner that would require the
registration under the Securities Act of the sale of the Securities to the Investors, or that will be integrated with the offer
or sale of the Securities for purposes of the rules and regulations of any trading market such that it would require stockholder
approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent
transaction.
7.5.
Listing
.
The Company shall promptly take any action required to maintain the listing of all of the Shares and the Warrant Shares, once they
have been issued, upon each national securities exchange and automated quotation system, if any, upon which shares of
Common Stock are then listed
(subject to official notice of issuance) and shall maintain, so long as any other shares of Common Stock shall be so listed, such
listing of all Shares from time to time issuable under the terms of the Transaction Agreements. The Company shall take all actions
within its control to comply with the reporting requirements of the Exchange Act and each applicable national securities exchange
and automated quotation system on which the Common Stock is listed. The Company shall make and keep public information available,
as those terms are understood and defined in SEC Rule 144, for so long as required in order to permit the resale of the Securities
pursuant to SEC Rule 144 and to file period reports with the SEC whether or not required to do so. The Company shall not take any
action which would be reasonably expected to result in the delisting or suspension of the Common Stock on The NASDAQ Stock Market.
7.6.
Stockholders
Meeting
. The Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the
Company (the “
Stockholder Meeting
”), which initially shall be promptly called and held not later than October
31, 2015 (the “
Stockholder Meeting Deadline
”), a proxy statement substantially in the form which has been previously
reviewed by the Purchasers and a counsel of their choice, at the expense of the Company, soliciting each such stockholder’s
affirmative vote at the Stockholder Meeting for approval of resolutions (the “
Stockholder Resolutions
”) providing
for the Company’s issuance of all of the Securities as described in the Agreement in accordance with applicable law and rules
and regulations of The NASDAQ Stock Market, including the issuance of the Warrant Shares upon exercise of the Warrants (such affirmative
approval being referred to herein as the “
Stockholder Approval
” and the date such approval is obtained, the
“
Stockholder Approval Date
”), and the Company shall use its best efforts to solicit its stockholders’
approval of the Stockholder Resolutions and to cause the Board to recommend to the stockholders that they approve the Stockholder
Resolutions. The Company shall be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If,
despite the Company’s best efforts, the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline,
the Company shall cause an additional Stockholder Meeting to approve the Stockholder Resolutions to be called and held at each
otherwise convened special or annual meeting of the stockholders of the Company, which special or annual meetings must be called
and held at least once in each six-month period after the Stockholder Meeting Deadline until such Stockholder Approval is obtained,
provided that if the Board does not recommend to the stockholders that they approve the Stockholder Resolutions at any such Stockholder
Meeting and the Stockholder Approval is not obtained, the Company shall cause an additional Stockholder Meeting to be held each
calendar quarter after the Stockholder Meeting Deadline until such Stockholder Approval is obtained.
7.7.
Proxy
Filing
. The Company shall prepare and file with the SEC, within ten (10) business days after the date of this Agreement, a
proxy statement in preliminary form relating to the Stockholders Meeting (as defined in
Section 7.6
) (such proxy statement,
including any amendment or supplement thereto, the “
Proxy Statement
”). The Company shall cause the Proxy Statement
to comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder.
The Company shall cause the definitive Proxy Statement to be mailed as promptly as possible after the date the staff of the SEC
advises that it has no further comments thereon or that the Company may commence mailing the Proxy Statement.
7.8.
Voting
Agreements
. Until the Stockholder Approval is obtained, the Company shall not take any action, including the issuance of shares
of Common Stock pursuant to any Offering, that would result in the Voting Stockholders and any additional stockholder with whom
the Company enters into a Voting Agreement to hold less than a majority of the Company’s outstanding voting stock entitled
to vote at the Stockholders Meeting (after taking into account the Exchanges (as defined in the Exchange Agreement) and any bona
fide equity financings consummated by the Company on or prior to the date of the Stockholders Meeting).
ARTICLE 8
MISCELLANEOUS
8.1.
Survival
.
The representations, warranties and covenants contained herein shall survive the execution and delivery of this Agreement and the
sale of the Securities.
8.2.
Indemnification
.
(a)
Indemnification
of Purchasers
. The Company agrees to indemnify and hold harmless each Purchaser and its Affiliates and their respective directors,
officers, trustees, members, managers, employees and agents, and their respective successors and assigns, from and against any
and all losses, claims, damages, liabilities and expenses (including without limitation reasonable attorney fees and disbursements
and other expenses reasonably incurred in connection with investigating, preparing or defending any action, claim or proceeding,
pending or threatened and the costs of enforcement thereof) (collectively, “
Losses
”) to which such Person may
become subject as a result of any breach of representation, warranty, covenant or agreement made by or to be performed on the part
of the Company under this Agreement, and will reimburse any such Person for all such Losses as they are incurred by such Person.
(b)
Conduct
of Indemnification Proceedings
. Any Person entitled to indemnification hereunder shall (i) give prompt notice to the Company
of any claim with respect to which it seeks indemnification and (ii) permit the Company to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party;
provided
that any Person entitled to indemnification hereunder
shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such Person unless (a) the Company has agreed to pay such fees or expenses, or (b) the Company
shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (c) in the reasonable
judgment of any such Person, based upon written advice of its counsel, a conflict of interest exists between such Person and the
Company with respect to such claims (in which case, if the Person notifies the Company in writing that such Person elects to employ
separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such claim on behalf
of such Person); and
provided
,
further
, that the failure of any indemnified party to give notice as provided herein
shall not relieve the Company of its obligations hereunder, except to the extent that such failure to give notice shall materially
adversely affect the Company in the defense of any such claim or litigation. It is understood that the Company shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties. The Company will not, except with the consent of the indemnified party, which consent shall
not be unreasonably withheld, conditioned or delayed,
consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation.
No indemnified party will, except with the consent of the Company, consent to entry of any judgment or enter into any settlement.
8.3.
Assignment;
Successors and Assigns
. This Agreement may not be assigned by either party without the prior written consent of the other party;
provided
, that this Agreement may be assigned by any Purchaser to the valid transferee of any security purchased hereunder
if such security remains a “restricted security” under the Securities Act. This Agreement and all provisions thereof
shall be binding upon, inure to the benefit of, and are enforceable by the parties hereto and their respective successors and permitted
assigns.
8.4.
Notices
.
All notices, requests, and other communications hereunder shall be in writing and will be deemed to have been duly given and received
(a) when personally delivered, (b) when sent by facsimile upon confirmation of receipt, (c) one business day after the day on which
the same has been delivered prepaid to a nationally recognized courier service, or (d) five business days after the deposit in
the United States mail, registered or certified, return receipt requested, postage prepaid, in each case addressed to, as to the
Company, Amyris, Inc., 5885 Hollis Street, Suite 100, Emeryville, CA 94608, Attn: General Counsel, facsimile number: (510) 740-7416,
with a copy to Fenwick & West LLP, 801 California Street, Mountain View, CA 94041, Attn: , Esq., facsimile number: (650) 938-5200,
and as to the Purchaser at the address and facsimile number set forth below the Purchaser’s signature on the signature pages
of this Agreement. Any party hereto from time to time may change its address, facsimile number, or other information for the purpose
of notices to that party by giving notice specifying such change to the other parties hereto. Each Purchaser and the Company may
each agree in writing to accept notices and other communications to it hereunder by electronic communications pursuant to procedures
reasonably approved by it; provided that approval of such procedures may be limited to particular notices or communications.
8.5.
Governing
Law
. This Agreement, and the provisions, rights, obligations, and conditions set forth herein, and the legal relations between
the parties hereto, including all disputes and claims, whether arising in contract, tort, or under statute, shall be governed by
and construed in accordance with the laws of the State of Delaware without giving effect to its conflict of law provisions.
8.6.
Dispute
Resolution
.
8.6.1
Escalation
.
Prior to commencing any arbitration in connection with any dispute, controversy or claim arising out of relating to this Agreement
or the breach, termination or validity thereof (“
Dispute
”), the parties shall first engage in the procedures
set forth in this Section 8.6.1. Such Dispute shall first be referred by written notice of the Dispute (the “
Dispute Notice
”)
from any party to its executive officers and to the executive officers of each party that the party sending the Dispute Notice
has the Dispute with (the “
Executive Officers
”) and the Executive Officers shall attempt to resolve such Dispute
within ten (10) days after a party sent the Dispute Notice to the Executive Officers by meeting (either in person or by video teleconference,
unless otherwise mutually agreed) at a mutually acceptable time, and thereafter as often as they reasonably deem necessary, to
exchange relevant information and to attempt to
resolve the Dispute. If the
Dispute has not been resolved within thirty (30) days after the Dispute Notice has been sent by a party to its Executive Officers
and to the Executive Officers of the other party or parties, then either the party that has sent the Dispute Notice, or the party
or parties that have received the Dispute Notice may, by written notice to the other party or parties, elect to submit the Dispute
to arbitration pursuant to Section 8.6.2. If a party’s Executive Officer intends to be accompanied at a meeting by an attorney,
the Executive Officers of the other party shall be given at least seventy-two (72) hours’ notice of such intention and may
also be accompanied by an attorney. All negotiations conducted pursuant to this Section 8.6.1, and all documents and information
exchanged by the parties in furtherance of such negotiations, (i) are the Confidential Information (as defined in Section 8.6.4)
of the parties, and (ii) shall be inadmissible in any arbitration conducted pursuant to this Section 8.6 or other proceeding with
respect to a Dispute.
8.6.2
Arbitration
.
(a) All
Disputes arising out of, relating to or in connection with this Agreement, which have not been resolved pursuant to Section 8.6.1,
shall be submitted to mandatory, final and binding arbitration before an arbitral tribunal pursuant to the Rules of Arbitration
of the International Court of Arbitration of the International Chamber of Commerce (the “
ICC Rules
”), in effect
at the time of filing of the request for arbitration, as modified hereby. The International Court of Arbitration of the International
Chamber of Commerce (the “
ICC Court
”) shall administer the arbitration.
(b) There
shall be three (3) arbitrators. If there are two parties to the arbitration, then one arbitrator shall be nominated by the initiating
claimant party in the request for arbitration, the second nominated by the respondent party within thirty (30) days of receipt
of the request for arbitration, and the third (who shall act as chairperson of the arbitral tribunal) nominated by the two (2)
party-appointed arbitrators within thirty (30) days of the selection of the second arbitrator. In the event that either party fails
to nominate an arbitrator, or if the two party-appointed arbitrators are unable or fail to agree upon the third arbitrator, within
the time periods specified herein, the ICC Court shall appoint the remaining arbitrator(s) required to comprise the arbitral tribunal.
If there are more than two parties to the arbitration, the claimant(s) shall jointly nominate one arbitrator and the respondent(s)
shall jointly nominate one arbitrator, within thirty (30) days of receipt by respondent(s) of a copy of the request for arbitration.
For avoidance of doubt, where there are two or more claimant(s), none of the claimants has to nominate an arbitrator in their request
for arbitration. The third arbitrator (who shall act as chairperson of the arbitral tribunal) shall be nominated by the two (2)
party-appointed arbitrators within thirty (30) days of the nomination of the second arbitrator. If either the claimant(s) or the
respondent(s) fail to timely nominate an arbitrator, or if the two party-appointed arbitrators are unable or fail to agree upon
the third arbitrator, within the time periods specified herein, then on the request of any party, the ICC Court shall appoint the
remaining arbitrator(s) required to comprise the arbitral tribunal. The claimant in the arbitration shall provide a copy of the
request for arbitration to the respondent at the time such request is submitted to the Secretariat of the International Chamber
of Commerce.
(c) Each
arbitrator chosen under this Section shall speak, read, and write English fluently and shall be either (i) a practicing lawyer
who has specialized in business
litigation with at least ten
(10) years of experience in a law firm, (ii) an arbitrator experienced with commercial disputes, or (iii) a retired judge.
(d) The
place of arbitration shall be the New York City, New York. The language of the arbitral proceedings and of all submissions and
written evidence and any award issued by the arbitral tribunal shall be English. Any party may, at its own expense, provide for
translation of any documents submitted in the arbitration or translation or interpretation of any testimony taken at any hearing
before the arbitral tribunal. For the avoidance of doubt, no party is under any obligation to provide for translation of any documents
submitted in the arbitration or translation or interpretation of any testimony taken at any hearing before the arbitral tribunal.
(e) The
award shall be in writing, state the reasons for the award and be final and binding. The arbitral tribunal shall, subject to its
discretion, endeavor to issue its award within four (4) months of the end of the hearing, or as soon as possible thereafter. It
is expressly understood and agreed by the parties that the rulings and award of the arbitral tribunal shall be binding on the parties,
their successors and permitted assigns. Judgment on the award rendered by the arbitral tribunal may be entered in any court having
competent jurisdiction.
(f) Each
party shall bear its own costs and expenses and attorneys’ fees, and the party that does not prevail in the arbitration proceeding,
as determined by the arbitral tribunal, shall pay the arbitrator’s fees and any administrative fees of arbitration. All proceedings
and decisions of the tribunal shall be deemed Confidential Information of each of the Parties, and shall be subject to Section
8.6.4.
8.6.3
Interim
Relief
.
(a) The
arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including
conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal may, to the extent permitted
by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such.
(b) In
addition to the remedies and relief available under Section 8.6.3(a) above and the ICC Rules, and subject to Section 8.6.2 above,
each party expressly retains the right at any time to apply to any court of competent jurisdiction for interim, injunctive, provisional
or conservatory relief, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible
with the agreement to arbitrate or a waiver of the right to arbitrate.
(c) For
purposes of Section 8.6.3(b), each party hereby irrevocably and unconditionally consents and agrees that any action for interim,
provisional and/or conservatory relief brought against it with respect to its obligations or liabilities under or arising out of
or in connection with this Agreement may be brought in the courts located in Paris, France or the state or federal courts located
in the Borough of Manhattan, New York City, New York, and each party hereby irrevocably accepts and unconditionally submits to
the non-exclusive jurisdiction of the aforesaid courts
in personam
, with respect to any such action for interim, provisional
or conservatory relief. In any such action, each of the parties irrevocably waives, to the fullest extent they may effectively
do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right
of objection to jurisdiction on
account of its place of incorporation
or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in the courts located in Paris,
France or the state or federal courts located in the Borough of Manhattan, New York City, New York.
(d) Each
party hereby irrevocably consents and agrees that the service of any and all legal process, summons, notices and documents which
may be served in any action arising under this Agreement may be made by sending a copy thereof by express courier to the party
to be served at the address set forth in the notice provision of this Agreement, with such service to be effective upon receipt.
Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by
law.
(e) Each
party hereto hereby irrevocably waives any and all right to trial by jury in any legal proceeding brought pursuant to this Section
8.6.
8.6.4
Confidentiality
.
The Company and each of the Purchasers agree to use, and to use its reasonable best efforts to ensure that its authorized representatives
use the same degree of care as such party uses to protect its own confidential information (but in no event less than reasonable
care) to keep confidential the information provided to it pursuant to this Agreement, and any other information furnished to it
which the disclosing party identifies as being confidential or proprietary (so long as such information is not in the public domain)
or, under the circumstances surrounding disclosure, such party knows or has reason to know should be treated as confidential (“
Confidential
Information
”), unless otherwise required by law (provided that a party shall, to the extent permitted by law, promptly
notify the other party of any required disclosure and take reasonable steps to minimize the extent of any such required disclosure);
provided, however, that Confidential Information shall not include information, that (i) was in the public domain prior to the
time it was furnished to such recipient, (ii) is at the time of the alleged breach (through no willful or improper action or inaction
by such recipient) generally available to the public, (iii) was rightfully disclosed to such recipient by a third party without
restriction or (iv) as of the time of the alleged breach, had been independently developed (as evidenced by written records) without
any use of Confidential Information.
8.7.
Severability
.
In the event that any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid,
or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected except to
the extent necessary to delete such illegal, invalid, or unenforceable provision unless that provision held invalid shall substantially
impair the benefits of the remaining portions of this Agreement.
8.8.
Headings
.
The headings in this Agreement are for convenience of reference only and shall not constitute a part of this Agreement, nor shall
they affect its meaning, construction, or effect.
8.9.
Entire
Agreement
. This Agreement embodies the entire understanding and agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to the subject matter hereof.
8.10.
Finder’s
Fee
. The Company agrees that it shall be responsible for the payment of any placement agent’s fees, financial advisory
fees, or brokers’ commissions (other than for
Persons engaged by Purchaser)
relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold each Purchaser harmless against,
any liability, loss or expense (including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection
with any claim for any such fees or commissions.
8.11.
Expenses
.
Each party will bear its own costs and expenses in connection with this Agreement.
8.12.
Further
Assurances
. The parties agree to execute and deliver all such further documents, agreements and instruments and take such other
and further action as may be necessary or appropriate to carry out the purposes and intent of this Agreement.
8.13.
Counterparts
.
This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed
by each party hereto and delivered to the other party. Facsimile signatures shall be deemed originals for all purposes hereunder.
8.14.
Independent
Nature of Purchasers’ Obligations and Rights
. The obligations of each Purchaser under this Agreement are several and
not joint with obligations of each other Purchaser, and no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser under this Agreement or any other Transaction Agreements. The decision of each Purchaser to
purchase Securities pursuant to this Agreement has been made by such Purchaser independently of any other Purchaser and independently
of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities,
results of operations, condition (financial or otherwise) or prospects of the Company or any of its subsidiaries which may have
been made or given by any other Purchaser or by any agent or employee of any other Purchaser, and no Purchaser or any of its agents
or employees shall have any liability to any other Purchaser (or any other Person) relating to or arising from any such information,
materials, statements or opinions. Nothing contained herein or in any ancillary document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by the Agreement. Each Purchaser acknowledges that no other Purchaser has or will be acting as
agent of such Purchaser in enforcing its rights under this Agreement or any other Transaction Agreements. Each Purchaser shall
be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Purchaser,
and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.
8.15.
Waiver
of Conflicts; Representation by Counsel
. Each Purchaser and the Company is aware that Fenwick & West LLP (“
F&W
”)
may have previously performed and may continue to perform certain legal services for certain of the Purchasers in matters unrelated
to F&W’s representation of the Company. In connection with its Purchaser representation, F&W may have obtained confidential
information of such Purchasers that could be material to F&W’s representation of the Company in connection with negotiation,
execution and performance of this Agreement. By signing this Agreement, each Purchaser and the Company hereby acknowledges
that the terms of this Agreement
were negotiated among the Purchasers and the Company and are fair and reasonable and waives any potential conflict of interest
arising out of such representation (including any future representation of such parties) or such possession of confidential information.
Each Purchaser and the Company further represents that it has had the opportunity to be, or has been, represented by separate independent
counsel in connection with the transactions contemplated by this Agreement, including, without limitation, the waivers contained
in this Section 8.15.
[Signature pages follows]
This Securities
Purchase Agreement is hereby confirmed and accepted by the Company as of July 24, 2015.
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AMYRIS, INC.
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By::
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/s/ John G. Melo
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Name:
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Title:
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[SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
This Securities
Purchase Agreement is hereby confirmed and accepted by the Company as of July 24, 2015.
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AMYRIS, INC.
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By::
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Name:
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Title:
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PURCHASERS:
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Total Energies Nouvelles Activities USA
(f.k.a. Total Gas & Power USA, SAS)
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By:
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/s/ Bernard Clement
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(signature)
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Name:
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BERNARD CLEMENT
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(printed name)
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Title:
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President
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Address
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Facsimile No.
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Email Address:
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[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]
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PURCHASERS:
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FORIS VENTURES LLC
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By:
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/s/ B. HAGER
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(signature)
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Name:
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Barbara Hager
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(printed name)
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Title:
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Managing Member
Manager
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Address
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Facsimile No.
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Email Address:
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[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]
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AMRS - SPA
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PURCHASERS:
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WOLVERINE FLAGSHIP FUND
TRADING LIMITED
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By:
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/s/ Andrew R. Sujdak
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(signature)
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Name:
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Andrew R. Sujdak
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(printed name)
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Title:
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Managing Member
Authorized Signatory
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WFFTL Address
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Facsimile No.
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Email Address:
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Purchase Amount
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$2,000,000.00
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[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]
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PURCHASERS:
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NOMIS BAY LTD.
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By:
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/s/ ILLEGIBLE
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(signature)
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Name:
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(printed name)
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Title:
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Managing Member
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Address
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Facsimile No.
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Email Address:
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[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]
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PURCHASERS:
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CONNECTIVE CAPITAL I MASTER
FUND, LTD
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By:
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/s/ Robert Romero
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(signature)
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Name:
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Robert Romero
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(printed name)
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Title:
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Director
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Address
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Facsimile No.
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Email Address:
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[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]
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PURCHASERS:
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CONNECTIVE CAPITAL
EMERGING ENERGY QP, LP
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By:
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/s/ Robert Romero
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(signature)
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Name:
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Robert Romero
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(printed name)
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Title:
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Managing Member
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Address
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Facsimile No.
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Email Address:
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[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]
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PURCHASERS:
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NAXYRIS S.A.
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By:
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/s/ Jacques Reckinger
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/s/ Christoph Piel
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(signature)
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Name:
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Jacques RECKINGER
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/Christoph Piel
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Director
|
Director
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(printed name)
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Title:
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Managing Member
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Address
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Facsimile No.
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Email Address:
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[SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
Schedule I
Schedule of Purchasers
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Purchaser
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Shares Purchased
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Warrant Shares
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Total Purchase Price
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Foris Ventures LLC
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9,615,384
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961,538
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$14,999,999.04
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Wolverine Flagship Fund Trading Limited
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1,282,051
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128,205
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$1,999,999.56
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Nomis Bay Ltd.
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641,025
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64,102
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$999,999.00
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Total Energies Nouvelles Activities USA
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1,282,051
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128,205
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$1,999,999.56
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Connective Capital I Master Fund, LTD
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641,025
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64,102
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$999,999.00
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Connective Capital Emerging Energy QP, LP
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320,512
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32,051
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$499,998.72
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Naxyris S.A.
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2,243,594
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224,359
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$3,500,006.64
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Total
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16,025,642
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1,602,562
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$25,000,001.52
|
Exhibit A
RIGHTS AGREEMENT AMENDMENT
Exhibit B
PURCHASER SUITABILITY QUESTIONNAIRE
FOR
AMYRIS, INC.
This Questionnaire is to be completed by each
ENTITY
(trust, corporation, partnership or other organization) purchasing securities of Amyris, Inc., a Delaware corporation (the "
Company
").
The purpose of this Questionnaire is to assure the Company that each proposed investor will meet certain suitability standards
in connection with investment in the Company and the purchase of shares of the Company’s Common Stock, $0.0001 par value
per share (the "
Shares
"), including those imposed by applicable state and federal securities laws and the
regulations under those laws.
If the answer to any question is "None"
or "Not Applicable," please so state. If more space is needed for any answer, additional sheets may be attached.
Your answers will be kept confidential at all times.
However, by signing this Questionnaire, you agree that the Company may present this Questionnaire to such parties as it deems appropriate
to establish the availability of exemptions from registration or qualification requirements under federal and state securities
laws.
1.
IDENTIFICATION
|
1.1
|
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Name(s) in which the Shares are to be registered:
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1.2
|
|
Tax Identification Number:
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1.3
|
|
Address of principal place of business:
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|
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1.4
|
|
Telephone number:_____________________
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1.5
|
|
Jurisdiction of formation or of incorporation (Name the State or Country):
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1.6
|
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Form of entity (e.g., corporation, general partnership, limited partnership, trust,
etc.):
|
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1.7
|
|
Nature of business (e.g.,
investment, banking, manufacturing, venture capital investment fund, etc.):
|
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|
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2.
ACCREDITATION
|
2.1
|
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Amount of the proposed investment: $
|
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2.2
|
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Is the entity's cash flow from all sources sufficient to satisfy its current needs,
including possible contingencies, such that the entity has no need for liquidity in this proposed investment?
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Yes_____ No_____
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2.3
|
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Was the entity specifically formed for the purpose of investing in the Company? Yes_____
No_____
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2.4
|
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Does the entity have the ability to bear the economic risk of the investment, i.e.,
can the entity afford to lose its entire investment?
|
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|
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Yes_____ No_____
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2.5
|
|
Is the entity an employee benefit plan governed by the Employee Retirement Income
Security Act of 1974 (a 401(k) Plan, Keogh Plan, pension plan, etc., maintained by an employer for its employees)?
|
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Yes_____ No_____
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IF YES
, please indicate which, if any, of the following categories
accurately describes the entity:
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_____
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the employee benefit plan
has total assets in excess of $5,000,000.
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_____
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the plan is a self-directed
plan with investment decisions made solely by persons listed in Section 2.6 below or who are individuals, and each such individual
has a net worth in excess $1,000,000 or had an individual income in excess of $200,000 in each of the two most recent years and
has a reasonable expectation of reaching the same income level in the current year.
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_____
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investment decisions are
made by a plan fiduciary which is either a bank, savings and loan association, insurance company or registered investment advisor.
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2.6
|
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Please indicate which, if any, of the following categories accurately describes the
entity: _____ A bank. _____ A savings and loan association. _____ A broker-dealer registered under Section 15 of the Securities
Exchange Act of 1934. _____ An insurance company.
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_____
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An investment company registered under the Investment Company Act of 1940 or a business
development company as defined in Section 2(a)(48) of that Act.
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_____
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A Small Business Investment Company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of 1958.
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_____
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A private business development company defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
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_____
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An organization described in Section 501(c)(3) of the Internal Revenue Code with total
assets in excess of $5,000,000 not formed for the purpose of investing in the Company.
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_____
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A corporation with total assets in excess of $5,000,000, not formed for the purpose
of investing in the Company.
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_____
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A partnership with total assets in excess of $5,000,000, not formed for the purpose
of investing in the Company.
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_____
|
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A Massachusetts or similar business trust with total assets in excess of $5,000,000,
not formed for the purpose of investing in the Company.
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_____
|
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Any other trust with total assets in excess of $5,000,000, not formed for the purpose
of investing in the Company.
|
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2.7
|
|
Please indicate if one of the following describes the equity owners of the entity:
|
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_____
|
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Each equity owner of the entity (i.e., all shareholders, all general and/or limited
partners or all beneficiaries, as applicable) is an individual whose net worth or joint net worth with his or her spouse exceeds
$1,000,000.
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_____
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Each equity owner of the entity is an individual who had a personal income in excess
of $200,000 in each of the two (2) most recent years or joint income with that person's spouse in excess of $300,000 in each of
those years and reasonably expects to reach the same income level in the current year.
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_____
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Each equity owner of the entity is an entity described in at least one category of
Question 2.6 above.
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_____
|
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Although not all equity owners are described in the same category above in this Question
2.7, each equity owner is described in at least one such category.
|
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2.8
|
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Please indicate which of the following also describes the equity owners of the entity:
|
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_____
|
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Each equity owner of the entity has, by reason of his, her or its business and financial
experience, the capacity to evaluate the merits and risks of the entity's proposed investment and to protect his, her or its own
interests in connection with the investment.
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_____
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Each of the equity owners of the entity is able to bear the economic risk of the entity's
investment, i.e., can afford loss of the entity's entire investment.
|
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_____
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The beneficial interest of each equity owner in the entity's proposed investment is
less than 10% of such equity owner's net worth, or joint net worth with his or her spouse.
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_____
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Although not all equity owners are described in the same category above in this Question
2.8, each equity owner is described in at least one such category.
|
3.
ADDITIONAL INFORMATION
|
3.1
|
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Has your entity previously invested in private placements of securities of newly-formed,
non-public companies or companies without a history of significant profits or earnings?
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Never _______ Rarely _______ On Several Occasions
_______
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|
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Does your entity, by reason of its business and financial knowledge and experience,
have the capacity to evaluate the merits and risks of the entity's proposed investment and to protect the entity's own interests
in connection with its investment in the Company?
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Yes _____ No _____
IF YES
,
please describe the business and financial knowledge and experience, indicating factual basis for your conclusion that the entity
has such capacity.
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3.3
|
|
Do the persons responsible for making the investment decision for the entity, by reason
of their business and financial knowledge and experience, have the capacity to evaluate the merits and risks of the entity's proposed
investment?
|
|
|
|
Yes _____ No _____
IF YES
,
please describe the business and financial knowledge and experience, indicating factual basis for your conclusion that those persons
have such capacity.
|
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3.4
|
|
If
you have used the services of a securities broker or dealer or a finder in submitting subscription documentation for the Shares,
please identify the broker, dealer or finder:
|
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3.5
|
|
Are
you relying on the business or financial experience of an accountant, attorney or other professional advisor in evaluating the
merits and risks of this investment in order to protect your own interest?
|
|
|
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Yes_____ No_____
|
|
|
|
IF YES
, please (a) have
your advisor complete the Company's form of Advisor's Questionnaire and submit it with this Questionnaire, and (b) identify the
advisor.
|
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|
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Name of professional advisor:
_______________________________________________
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4.
EXECUTION
The information
provided in this Questionnaire is true and complete as of the date provided below in all material respects and the undersigned
recognizes that the Company is relying on the truth and accuracy of such information. The undersigned agrees to notify the Company
promptly of any changes in the foregoing information that may occur prior to the closing of the sale of Shares of the Company.
Name of
Entity:
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|
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(Please Print or Type)
|
|
By:
|
|
|
|
|
(Signature)
|
|
|
Name:
|
|
|
|
(Please Print or Type)
|
|
|
Title:
|
|
|
|
(Please Print or Type)
|
|
|
|
Date:
|
|
|
|
Exhibit C
FORM OF WARRANT
Exhibit D
REGISTRATION RIGHTS LETTER
Exhibit E
OPINION OF COMPANY COUNSEL
July 29, 2015
To the Investors of Common Stock of
Amyris, Inc. Who are Listed as Investing
on the Date Hereof on the Signature Pages to the
Purchase Agreement
Ladies and Gentlemen:
We have
acted as counsel for Amyris, Inc., a Delaware corporation (the “
Company
”), in connection with the sale
on the date hereof by the Company to you of 16,025,642 shares (the “
Shares
”) of the Company's Common
Stock (“
Common Stock
”) and warrants to purchase shares of the Company’s Common Stock (the “
Warrant
Shares
” and together with the Shares, the “
Securities
”) pursuant to the Securities Purchase
Agreement, dated as of July 24, 2015 (the “
Purchase Agreement
”), among the Company and the parties whose
names appear on the signature pages thereto (the “
Investors
”), and the execution and delivery by the
Company of the (i) Amendment No. 6 to Amended and Restated Investors' Rights Agreement (the “
Rights Agreement Amendment
”),
dated as of July 29, 2015, (ii) the Registration Rights Letter entered into by the Company with certain stockholders listed on
Schedule I thereto (the “
Rights Letter
”) (iii) the Voting Agreement entered into by the Company with
each respective Voting Stockholder (the “
Voting Agreement
”) and (iv) the Warrants. This opinion is given
to you pursuant to Article 6(d) of the Purchase Agreement in connection with the Closing of the sale of the Securities. The Purchase
Agreement, the Rights Letter, the Voting Agreement and the Warrants are referred to herein together as the “
Transaction
Documents
”
.
Unless defined herein, capitalized terms used herein have the meaning given to them in the Purchase
Agreement.
We have
examined such matters of law as we reasonably considered necessary for the purpose of rendering this opinion. As to matters of
fact material to the opinions expressed herein, we have relied upon the representations and warranties as to factual matters contained
in, and made by the Company pursuant to, the Purchase Agreement and upon certificates and statements of government officials and
of officers of the Company, including but not limited to a certificate of the Company to us (the “
Opinion Certificate
”).
In addition, we have examined originals or copies of documents, corporate records and other writings that are listed in
Exhibit
A
attached hereto (the “
Reviewed Agreements
”) and have not conducted any other factual examination
except as listed on
Exhibit A
. In such examination, we have assumed that the signatures on documents and instruments examined
by us are authentic, that each is what it purports to be, and that all documents and instruments submitted to us as copies or facsimiles
conform with the originals, which facts we have not independently verified.
In making
our examination of documents (including the Transaction Documents) and rendering our opinions, we have further assumed that, except
for the Company with respect to the Transaction Documents, (a) each party to such documents had the entity power and entity authority
to enter
into and perform all of such
party's obligations thereunder, (b) each party to such documents has duly authorized, executed and delivered such documents, and
(c) each of such documents is enforceable against and binding upon the parties thereto. We have also assumed that (i) the representations
and warranties of the Investors set forth in the Transaction Documents are accurate and complete, (ii) there is no fact or circumstance
relating to you or your business that might prevent you from enforcing any of your rights provided for in the Transaction Documents,
and (iii) there are no extrinsic agreements or understandings among the parties to the Transaction Documents or among the parties
to the Reviewed Agreements expressly identified on
Exhibit A
hereto that would modify or interpret the terms of the Transaction
Documents or Reviewed Agreements or the respective rights or obligations of the parties thereto.
Notwithstanding
the examination described above, the expressions “
to our knowledge”
, “
known to us”,
“
our
actual knowledge
” or words of similar import when used in this opinion letter, refer to the current actual knowledge
of attorneys within the firm who have rendered legal services to the Company in connection with the Transaction Documents and means
that, while such attorneys have not been informed by the Company that a matter stated is factually incorrect, we have made no independent
factual investigation with respect to such matter. No inference as to our knowledge of any matters bearing on the accuracy of any
such statement should be drawn from the fact of our representation of the Company or the rendering of the opinions set forth below.
Where statements
in this opinion concerning the Company, or an effect on the Company, are qualified by the term "
material
" or "
materially
,
"
those statements involve judgments and opinions as to the materiality or lack of materiality of any matter to the Company's business,
assets, results of operations or financial condition that are entirely those of the Company and its officers.
We express
no opinion as to matters governed by any laws other than the laws of the State of California, the Delaware General Corporation
Law (the “
DGCL
”) and the federal law of the United States of America, including the rules and regulations
promulgated by governmental authorities thereunder, as such laws, rules and regulations exist on the date hereof (collectively,
“
Applicable Laws
”). We express no opinion as to whether the laws of any particular jurisdiction apply,
or to the extent that the laws of any jurisdiction other than those identified above are applicable to the Transaction Documents
or the transactions contemplated thereby.
In rendering
the opinion set forth in paragraph (1) (Qualification to Do Business) below as to the valid existence and good standing of the
Company under the laws of the State of Delaware and as to its qualification to do business as a foreign corporation in good standing
under the laws of the State of California, we have relied exclusively on certificates of public officials and the Opinion Certificate.
In rendering
the opinion set forth in paragraph (2) (Authority and Power to Do Business) below concerning the Company's corporate power and
corporate authority to conduct its business as it is presently conducted and as to the types of businesses the Company presently
conducts, we have relied exclusively upon representations made to us in the Opinion Certificate.
We note
that the parties to the Purchase Agreement have designated the laws of the State of Delaware as the laws governing the Purchase
Agreement. Notwithstanding the designation therein of the laws of the State of Delaware, our opinion in paragraph (4) (Enforceability)
below as to the validity, binding effect and enforceability of the Purchase Agreement is premised upon the results that would be
obtained if a California court were to apply the internal laws of the State of California to contracts made between California
residents present in California when the Purchase Agreement is entered into and, where applicable, the currently effective DGCL,
without regard to laws regarding choice of law or conflict of laws.
In rendering
the opinions set forth herein, although the aggregate number of shares of Common Stock issuable upon the exercise of all of the
Warrants as of the date hereof is not determinable, we have assumed that, (i) the Company has a sufficient number of authorized
and unissued shares of Common Stock currently available for the total number of shares of Common Stock exercisable as of the date
hereof, (ii) as of each and every time any of the Warrants are exercised and/or converted after the date hereof, the Company will
have a sufficient number of authorized and unissued shares of Common Stock available for issuance under the Restated Certificate
to permit full exercise and/or conversion of each of the Warrants in accordance with its terms without the breach or violation
of any other agreement, commitment or obligation of the Company and (iii) in the event that any of the Warrants are exercised and/or
converted after the date hereof and the Company does not have a sufficient number of authorized and unissued shares of Common Stock
available for issuance under the Restated Certificate, the Company will take all necessary corporate action to authorize a sufficient
number of shares of Common Stock for exercise of such Warrants.
In rendering
the opinion in paragraph (6) (No Violations) below relating to violations of Applicable Laws, and paragraph (7) (No Consents) below
relating to consents, approvals, authorizations and filings under, or pursuant to, Applicable Laws, such opinions are limited to
Applicable Laws that in our experience are typically applicable to transactions of the nature provided for in the Transaction Documents.
Moreover, we render no opinion in such paragraphs, or in paragraph (4) (Enforceability), regarding the Company's compliance with
applicable securities laws, including but not limited to laws regarding the registration or qualification of the offer and sale
of securities, or the registration by the Company under any such securities laws, and no such opinion should be inferred from the
language of those paragraphs. Any opinion rendered in connection with applicable securities laws is rendered solely and expressly
in paragraphs (8) (Securities Law Compliance) and (10) (Not an Investment Company) below.
In rendering
the opinion in paragraph (6) (No Violations) below regarding breach of, or default under, any Reviewed Agreements set forth in
Exhibit A
, we have not reviewed, and express no opinion on, (a) financial covenants or similar provisions requiring financial
calculations or determinations to ascertain whether there is any breach or default nor (b) provisions relating to the occurrence
of a "material adverse event" or words of similar import. We also do not express any opinion on parol evidence bearing
on interpretation or construction of such Reviewed Agreements, or on any oral modifications to such Reviewed Agreements made by
the parties thereto. Moreover, to the extent that any of the Reviewed Agreements are governed by the laws of any jurisdiction other
than the State of California our opinion relating to those agreements is based solely upon the plain meaning of their language
as though California law applied, without regard to interpretation or construction that might be indicated by the laws stated as
governing those agreements.
In rendering
the opinion expressed in paragraph (8) (Securities Law Compliance) below, we have assumed the accuracy of, and have relied upon,
the Company's representations to us that the Company has made no offer to sell the Shares or the Warrants by means of any general
solicitation or publication of any advertisement therefor, and we have assumed that the offer and sale of the Shares and the Warrants
is not integrated with any future securities offering of the Company.
This opinion
is qualified by, and we render no opinion with respect to, or as to the effect of, the following:
(a)
bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the relief of debtors or
the rights and remedies of creditors generally, including without limitation the effect of statutory or other law regarding fraudulent
transfers, preferential transfers and equitable subordination;
(b)
general principles of equity, including but not limited to judicial decisions holding that certain provisions are unenforceable
when their enforcement would violate the implied covenant of good faith and fair dealing, would be commercially unreasonable or
involve undue delay, whether or not such principles or decisions have been codified by statute, or that result from the exercise
of the court's discretion;
(c)
Section 1670.5 of the California Civil Code or any other California or United States federal law or provision of the DGCL or
equitable principle which provides that a court may refuse to enforce, or may limit the application of, a contract or any clause
thereof that the court finds to have been unconscionable at the time it was made, unconscionable in performance or contrary to
public policy;
(d)
any provision purporting to (i) exclude conflict of law principles under any law or (ii) select certain courts as the venue,
or establish a particular jurisdiction as the forum, for the adjudication of any controversy;
(e)
judicial decisions, that may permit the introduction of extrinsic evidence to modify the terms or the interpretation of any agreement;
(f)
the tax or accounting consequences of any transaction contemplated in connection with the sale of the Securities under applicable
tax laws and regulations and under applicable accounting rules, regulations, releases, statements, interpretations or technical
bulletins;
(g)
applicable antifraud statutes, rules or regulations of United States federal or applicable state laws concerning the issuance
or sale of securities, including, without limitation, (i) the accuracy and completeness of the information provided by the Company
to the Investors in connection with the offer and sale of the Securities, and (ii) the accuracy or fairness of the past, present
or future fair market value of any securities;
(h)
the effect any breach of the fiduciary duties of the members of the Company's Board of Directors, officers or principal stockholders
would have on the enforceability authorization and performance of any agreement;
(i)
whether or not any Transaction Document, and the transactions provided for therein, were fair and reasonable to the Company
at the time of their authorization by the Company's Board of Directors and stockholders within the meaning of Section 144 of the
DGCL;
(j) any provisions stating
that (i) rights or remedies are not exclusive, (ii) rights or remedies may be exercised without notice, (iii) every right or remedy
is cumulative and may be exercised in addition to or with any other right or remedy or (iv) the failure to exercise, or any delay
in exercising, rights or remedies available under an agreement will not operate as a waiver of any such right or remedy;
(k) provisions stating
that rights set forth in the agreement in which such provision appears may only be waived in writing if an implied agreement by
trade practice or course of conduct has given rise to a waiver or that limit the effect of waivers by trade practice or course
of conduct;
(l) any United States
federal or other antitrust laws, statutes, rules or regulations, including without limitation the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, or other laws relating to collusive or unfair trade practices or designed to promote competition in any jurisdiction;
(m) any provision purporting
to (i) waive rights to trial by jury, service of process or objections to the laying of venue or forum in connection with any litigation
arising out of or pertaining to the agreement in which such provision appears, (ii) change or waive the rules of evidence, make
determinations conclusive or fix the method or quantum of proof or (iii) waive the statute of limitations;
(n) any choice of law
clause, to the extent the provision to be governed by that law could be determined by the court (i) to be contrary to a public
or fundamental policy of a state or country whose law would apply in the absence of a choice of law clause, and (ii) to involve
an issue in which such state or country, or California State, has a materially greater interest in the determination of the particular
issue than does the state whose law is chosen;
(o) any United States
federal laws, statutes, rules or regulations, including without limitation the International Investment and Trade in Services Survey
Act (Title 22 of the United States Code, Chapter 46, §§3101-3108), or other state or foreign investment laws, statutes,
rules and regulations governing investments in the United States or in U.S. entities by persons that are not citizens of the United
States; and
(p) indemnification and
contribution provisions to the extent enforcement of such provisions is contrary to public policy, indemnify a party to a contract
against such party’s actions taken in bad faith or that constitute a breach of fiduciary duties, or indemnify a party against
liability for future conduct or the party’s own fraud or wrongful, reckless or negligent acts or omissions.
In accordance with Section 95
of the American Law Institute's Restatement (Third) of the Law Governing Lawyers (2000), this opinion letter is to be interpreted
in accordance with
customary practices of lawyers
rendering opinions to third parties in transactions of the type provided for in the Transaction Documents.
Based upon
and subject to the foregoing, and except as set forth in the Purchase Agreement, as of immediately prior to the Closing we are
of the following opinion.
(1) The
Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The
Company is qualified to do business as a foreign corporation in good standing under the laws of the State of California.
(2) The
Company has all corporate power and corporate authority required to execute, deliver and perform its obligations under the Transaction
Documents.
(3) All
corporate action has been taken on the part of the Company's Board of Directors and stockholders that (a) is necessary for the
execution and delivery of the Transaction Documents (other than the Voting Agreement as to which we render no opinion) by the Company,
(b) must be taken by the Company to authorize the sale and issuance of the Securities on the date hereof, and (c) must be taken
by the Company as of the date hereof to authorize performance by the Company of its obligations under the Transaction Documents.
(4) Each
of the Transaction Documents has been duly executed by the Company and has been delivered by the Company to the Investors. Each
of the Transaction Documents constitutes a valid and binding obligation of the Company, enforceable by you against the Company
in accordance with its terms.
(5) The
Shares to be issued to you under the Purchase Agreement, and the Warrant Shares are duly authorized, and when issued in compliance
with the provisions of the Purchase Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such
Shares and Warrant Shares will not be subject to any preemptive rights, rights of first refusal or rights of first offer set forth
in the Restated Certificate or Bylaws or any Reviewed Agreement set forth on
Exhibit A
(other than the Side Letter and the
2013 Securities Agreement, for which appropriate waivers have been obtained).
(6) The
execution, delivery and performance of the Transaction Documents by the Company do not, as of the Closing, result in (a) a violation
by the Company of the Restated Certificate or Bylaws, (b) a violation by the Company of any judgment or order of any court or governmental
authority, (c) a violation by the Company of Applicable Law or (d) a material breach of, or a default under, any Reviewed Agreements
set forth on
Exhibit A
.
(7) Other
than those that previously may have been obtained or made, no consent, approval or authorization of, or filing with, any governmental
authority pursuant to any Applicable Law is required to be made or obtained by the Company or any subsidiary of the Company in
connection with the Company's (a) valid execution and delivery of the Transaction Documents, (b) performance of its obligations
under the Purchase Agreement on the date hereof and (c) performance of its obligations under the other Transaction Documents as
of the date hereof.
(8) Based
in part upon the representations made by you in the Purchase Agreement, and subject to the filings of such securities law notices
as may be required to be filed
to the Closing, the offer, sale
and issuance of the Shares to be issued to you in conformity with the terms of the Purchase Agreement constitute transactions exempt
from the registration requirements of Section 5 of the Securities Act of 1933, as amended, and exempt from the qualification requirements
of Section 25110 of the California Corporate Securities Law of 1968, as amended.
(9) Based
in part upon the representations made by you in the Purchase Agreement, and subject to the filings of such securities law notices
as may be required to be filed subsequent to the Closing, the offer, sale and issuance of the Warrants and (assuming the Warrants
were exercised on the date hereof) the issuance to you of the Warrant Shares, constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act of 1933, as amended, and exempt from the qualification requirements of Section
25110 of the California Corporate Securities Law of 1968, as amended.
(10) The
Company is not and, after giving effect to the offering and sale of the Securities, will not be, required to register as an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended.
In addition
to the foregoing opinions, based upon the foregoing and other than as set forth in the Purchase Agreement, we supplementally confirm
the following to you as of immediately prior to the Closing.
Litigation
Confirmation
. To our knowledge, there is no action, suit, proceeding or investigation by or before any United States federal,
California State or Delaware State court or governmental authority that is pending or threatened in writing against the Company
and that questions the validity of the Transaction Documents or the right of the Company to enter into and perform its obligations
under the Transaction Documents. Please note that we have not conducted a docket search in any jurisdiction with respect to any
action, suit, proceeding or investigation that may be pending against the Company and we have not undertaken any search regarding
any of its affiliates, officers or directors, nor, other than to request the Opinion Certificate from the Company, have we undertaken
any further inquiry whatsoever in connection with the existence any such action, suit, proceeding or investigation.
[Remainder of Page Left Intentionally
Blank]
This opinion
is rendered as of the date first written above solely for your benefit in connection with the sale and issuance of the Securities
pursuant to the Purchase Agreement and may not be relied on by, nor may any copy be delivered to, any other person or entity without
our prior written consent. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters. This opinion is rendered on, and speaks only as of, the date of this letter
first written above, is based solely on our understanding of facts in existence as of such date and does not address any potential
changes in facts, circumstance or law that may occur after the date of this opinion letter. We assume no obligation to inform you
of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention that may alter,
affect or modify the opinions expressed herein.
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Very truly yours,
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FENWICK & WEST LLP
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By:
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Daniel Winnike, a Partner
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Exhibit A
Reviewed Agreements
1) The
Purchase Agreement, the Rights Agreement, and the Letter Agreement dated February 23, 2012, as amended (the “
Side Letter
”)
by and among the Company and Naxyris S.A., Sualk Capital Ltd, Maxwell (Mauritius) Pte Ltd and Biolding Investment SA.
2) A
copy of the Company's Restated Certificate of Incorporation, filed with the Delaware Secretary of State on September 30, 2010,
and certified by the Delaware Secretary of State on September 30, 2010, as amended by that certain Certificate of Amendment of
the Restated Certificate of Incorporation filed with the Delaware Secretary of State on May 9, 2013 and certified by the Delaware
Secretary of State on May 9, 2013 and that certain Certificate of Amendment of the above-described Restated Certificate of Incorporation,
dated May 12, 2014 and certified by the Delaware Secretary of State on May 12, 2014 (such Restated Certificate of Incorporation
of the Company, as so amended, the “
Restated Certificate
”) (the "
Restated Certificate
").
3) A
copy of the Company’s Amended and Restated Bylaws certified by the Company's Secretary on July 29, 2015 (the "
Bylaws
").
4) The
Certificate of Incorporation of the Company filed with the Secretary of State of the State of California upon the Company's incorporation,
the Certificate of Merger and Restated Certificate of Incorporation of the Company filed with the Secretary of State of the State
of Delaware upon the Company's re-incorporation in Delaware, the California and Delaware bylaws of the Company initially adopted
by the Company and minutes of meetings and actions by written consent of the Company's incorporator(s), shareholders and Board
of Directors that are contained in the Company's minute books.
5) Factual
representations and warranties made to us by the Company, including those contained in an Opinion Certificate addressed to us and
dated of even date herewith executed by the Company (the "
Opinion Certificate
").
6) A
Certificate of Good Standing regarding the Company issued by the Secretary of State of the Delaware, dated July 27, 2015, indicating
that the Company is qualified to do business, as a domestic corporation in that state (together with the letter referred to in
item (7) below and the certificate referred to in item (8) below, the "
Certificate of Good Standing
").
7) A
letter from the California Franchise Tax Board dated July 27, 2015to the effect that the Company is in good standing with respect
to its California franchise tax filings and has no known unpaid franchise tax liability.
8) A
Certificate of Good Standing from the Secretary of State of the State of California, indicating that the Company is in good standing
and is qualified to do business as a foreign corporation therein.
9) A
copy of the Series D Preferred Stock Purchase Agreement dated June 21, 2010.
10) A
copy of the Amended and Restated Investors' Rights Agreement dated June 21, 2010, as amended by Amendment No. 1 thereto dated February
23, 2012, Amendment No. 2
thereto dated as of December
24, 2012, Amendment No. 3 thereto dated as of March 27, 2013, Amendment No. 4 thereto dated as of October 16, 2013 and Amendment
No. 5 thereto dated December 24, 2013.
11) A
copy of the Stock Purchase Agreement dated February 22, 2012 by and between the Company and the Purchasers listed on the signature
pages thereto.
12) A
copy of the Securities Purchase Agreement dated February 24, 2012 by and between the Company and the Purchasers listed on the signature
pages thereto, the Senior Unsecured Convertible Notes issued thereunder and the Registration Rights Agreement by and between the
Company and Purchasers listed on the signature pages thereto, dated February 27, 2012.
13) Copies
of those Common Stock Purchase Agreements dated May 18, 2012 by and between the Company and certain Company stockholders.
14) Securities
Purchase Agreement dated July 30, 2012 by and between the Company and Total Energies Nouvelles Activités USA, the Senior
Unsecured Convertible Notes issued thereunder and the Registration Rights Agreement by and between the Company and Total Energies
Nouvelles Activités USA dated July 30, 2012.
15) A
copy of the Securities Purchase Agreement dated March 27, 2013 by and among the Company and purchasers listed on the signature
pages thereto.
16) A
copy of the Securities Purchase Agreement dated August 8, 2013, as amended by Amendment No. 1 to Securities Purchase Agreement
dated as of October 16, 2013 by and among the Company and purchasers listed on the signature pages thereto and by Amendment No.
2 to Securities Purchase Agreement dated December 23, 2013 by and among the Company and purchasers listed on the signature pages
thereto (as amended, the “
2013 Securities Agreement
”); and the Warrant to purchase shares of Common Stock
of the Company issued pursuant thereto.
17) A
copy of the Loan and Security Agreement dated as of March 29, 2014, by and among the Company and purchasers listed on the signature
pages thereto (the “
Loan and Security Agreement
”).
Exhibit F
VOTING AGREEMENT
Exhibit 4.46
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT
(this “
Agreement
”) is made and entered into as of July 26, 2015, by and between Amyris, Inc., a Delaware corporation
(the “
Company
”), and the individuals or entities listed on
Schedule I
hereto (each, an “
Investor
,”
and collectively, the “
Investors
”).
Background
A The Company has
from time to time issued to each of the Investors one or more series of notes (“
Outstanding Convertible Notes
”)
that are convertible into shares of the Company’s common stock, par value $0.0001 per share (“
Common Stock
”),
pursuant to one or more separate purchase agreements between the Company and the Investors;
B. To help facilitate
the Company’s plan to reduce its outstanding debt and recapitalize its capital structure so that the Company can raise additional
equity financing and to strengthen its balance sheet, the Company has requested that the Investors agree to cancel, convert or
exchange (“
Exchange
”) their respective specified Outstanding Convertible Notes for the Securities (as defined
below) pursuant to this Agreement, and that certain of the Investors further agree that with respect to their Outstanding Convertible
Notes not tendered for Exchange, that they forego their right to receive cash upon maturity and to instead convert their Outstanding
Convertible Notes, provided no event of default has by then occurred under the Outstanding Convertible Notes, all pursuant to the
terms and conditions of this Agreement and the other agreements contemplated hereby.
C. The Company and
each Investor are executing and delivering this Agreement in reliance upon the exemption from registration afforded by Section
4(a)(2) of the Securities Act of 1933, as amended (the “
Securities Act
”), and Rule 506 of Regulation D (“
Regulation
D
”) as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities
Act.
D. Each Investor,
severally and not jointly, wishes to Exchange, and the Company wishes to issue and sell, upon the terms and conditions stated in
this Agreement, (i) that aggregate number of shares of the Common Stock set forth opposite such Investor’s name on the Schedule
of Investors on
Schedule I
(which aggregate amount for all Investors together shall be 61,295,415 shares of Common Stock
and shall collectively be referred to herein as the “
Shares
”) and (ii) warrants, in substantially the forms
attached hereto as
Exhibits D-1
and
D-2
and
Exhibits E-1
,
E-2
and
E-3
(collectively, the “
Warrants
”),
to acquire up to that number of additional shares of Common Stock as determined pursuant to Article 6 of this Agreement and set
forth on the Schedule of Investors on
Schedule I
(with the shares of any Common Stock issuable upon exercise of or otherwise
pursuant to the Warrants, collectively, the “
Warrant Shares
”).
E. The Shares, the
Warrants and the Warrant Shares issued pursuant to this Agreement are collectively referred to herein as the “
Securities
.”
Agreement
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this
Agreement, and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the Company and the Investors agree as follows:
ARTICLE 1
ISSUANCE OF SECURITIES
Each
Investor will purchase from the Company (i) the number of Shares set forth next to such Investor’s name on
Schedule I
at a price of U.S. $2.30 per Share (the “
Share Price
”) and
(ii) the Warrants in exchange, for the
aggregate principal amount of Outstanding Convertible Notes set forth next to such Investor’s name on
Schedule I
.
The total purchase price payable by each Investor for the Shares and the Warrants that such Investor is hereby agreeing to purchase
is set forth next to such Investor’s name on
Schedule I-A
and
I-B
hereto (as applicable, the “
Total
Purchase Price
”). The sale and purchase of the Shares and the Warrants to each Investor shall constitute a separate sale
and purchase hereunder and the Exchange of Outstanding Convertible Notes by each Investor shall constitute a separate Exchange
hereunder.
ARTICLE 2
CLOSING; DELIVERY
2.1
Initial
Closing
. The initial closing (“
Initial Closing
”) of the transactions contemplated hereby shall be held at
the offices of Fenwick & West LLP, 801 California Street, Mountain View, California 94041 within one business day following
the date on which the last of the conditions set forth in
Articles 6
and
7
(other than the conditions described in
Section 6(p)) have been satisfied or waived in accordance with this Agreement but in no event later than July 31, 2015 (such date,
the “
Initial Closing Date
”), or at such other time and place as the Company and the Investors mutually agree
upon.
2.2
Initial Delivery
.
At the Initial Closing, the Company shall execute and deliver to the Investors this Agreement, the Amendment No. 6 to Amended and
Restated Investors’ Rights Agreement in the form attached hereto as
Exhibit A
(the “
Rights Agreement Amendment
”),
the Warrants and the other documents referenced in
Article 6
. At the Initial Closing, each Investor shall pay the Company
the applicable Total Purchase Price by Exchange of the aggregate principal amount of the Outstanding Convertible Notes as set forth
next to such Investor’s name on
Schedule I-A
hereto. At the Initial Closing, the Company shall deliver to each Investor
(1) a single stock certificate representing the number of Shares purchased by such Investor at the Initial Closing, as set forth
next to such Investor’s name on
Schedule I-A
hereto, such stock certificate to be registered in the name of such Investor,
or in such nominee’s or nominees’ name(s) as designated by such Investor in writing in the form of the Investor Suitability
Questionnaire of the Investor attached hereto as
Exhibit B
(each the “
Investor Suitability Questionnaire
”),
and (2) to the extent required by
Article 6
, (a) a single Warrant certificate representing the Total Equity Funding Warrant
(as defined in
Article 6
) purchased by such Investor, (b) a single Warrant certificate representing the Total R&D Warrant
(as defined in
Article 6
) purchased by such Investor, (c) a single Warrant certificate representing the Temasek 2015 Warrant
(as defined in
Article 6
) purchased by such Investor, (d) a single Warrant certificate representing the Temasek Funding
Warrant (as defined in
Article 6
) purchased by such Investor and (e) a single Warrant certificate representing the Temasek
R&D Warrant (as defined in
Article 6
) purchased by such Investor, in each case as determined as set forth in
Article 6 of this Agreement, each such
Warrant certificate to be registered in the name of such Investor or such nominee’s or nominees’ name(s) as designated
by such Investor in writing in the form of the Investor Suitability Questionnaire, against payment of the purchase price therefor
by the Exchange of the aggregate principle amount of the Outstanding Convertible Notes by such applicable Investor. Each Investor
agrees that each such Outstanding Convertible Note or Notes held by such Investor and set forth next to such Investor’s name
on
Schedule I-A
is cancelled as of the Initial Closing and all principal and interest outstanding thereunder shall be Exchanged
as reflected on
Schedule I-A
as of the Initial Closing Date; provided that to the extent only a portion of the principal
and interest outstanding thereunder shall be Exchanged as reflected on
Schedule I-A
as of the Initial Closing Date, then
the Company shall issue a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding
under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated hereby.
2.3.
Second Closing
.
The second closing (the “
Second Closing
” and together with the Initial Closing, each a “
Closing
”)
of the transactions contemplated hereby shall be held at the offices of Fenwick & West LLP, 801 California Street, Mountain
View, California 94041 within one business day following the date on which the last of the conditions set forth in
Articles
6
and
7
(including the conditions described in Section 6(p)) have been satisfied or waived in accordance with this Agreement
(such date, the “
Second Closing Date
” and together with the Initial Closing Date, each a “
Closing Date
”),
or at such other time and place as the Company and the Investors mutually agree upon. At the Second Closing, each Investor shall
pay the Company the applicable Total Purchase Price by Exchange of the aggregate principle amount of the Outstanding Convertible
Notes as set forth next to such Investor’s name on
Schedule I-B
hereto. At the Second Closing, the Company shall deliver
to each Investor a single stock certificate representing the number of Shares purchased by such Investor at the Second Closing,
as set forth next to such Investor’s name on
Schedule I-B
hereto, such stock certificate to be registered in the name
of such Investor, or in such nominee’s or nominees’ name(s) as designated by such Investor in writing in the Investor
Suitability Questionnaire, against payment of the purchase price therefor by the Exchange of the aggregate principle amount of
the Outstanding Convertible Notes being Exchanged by such applicable Investor at the Second Closing. Each Investor agrees that
each such Outstanding Convertible Note or Notes held by such Investor and set forth next to such Investor’s name on
Schedule
I-B
is cancelled as of the Second Closing and all principal and interest outstanding thereunder shall be Exchanged as reflected
on
Schedule I-B
as of the Second Closing Date; provided that to the extent only a portion of the principal and interest
outstanding thereunder shall be converted or exchanged as reflected on
Schedule I-B
as of the Second Closing Date, then
the Company shall issue a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding
under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated hereby.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
The Company represents, warrants and covenants
to each Investor, except as set forth in the disclosure letter supplied by the Company to the Investors dated as of the date hereof
(the “
Disclosure Letter
”), which exceptions shall be deemed to be part of the representations and warranties
made hereunder as provided therein, as follows:
3.1
Organization
and Standing
. The Company and each of its subsidiaries is duly incorporated, validly existing, and in good standing under the
laws of the jurisdiction of its organization. Each of the Company and its subsidiaries has all requisite power and authority to
own and operate its respective properties and assets and to carry on its respective business as presently conducted and as proposed
to be conducted. The Company and each of its subsidiaries is qualified to do business as a foreign entity in every jurisdiction
in which the failure to be so qualified would have, or would reasonably be expected to have, a material adverse effect, individually
or in the aggregate, upon the business, properties, tangible and intangible assets, liabilities, operations, prospects, financial
condition or results of operation of the Company and its subsidiaries or the ability of the Company or any of its subsidiaries
to perform their respective obligations under the Transaction Agreements (as defined below) (a “
Material Adverse Effect
”).
3.2
Subsidiaries
.
As used in this Agreement, references to any “subsidiary” of a specified Person shall refer to an Affiliate controlled
by such Person directly, or indirectly through one or more intermediaries, as such terms are used in and construed under Rule 405
under the Securities Act (which, for the avoidance of doubt, shall include the Company’s controlled joint ventures, including
shared-controlled joint ventures). The Company’s subsidiaries, as of the date hereof, are listed on
Exhibit 21.01
to
the Company’s Annual Report on Form 10-K for the year ended December 31, 2014 and, except as Previously Disclosed (as defined
in
Section 3.11
) are the only subsidiaries, direct or indirect, of the Company as of the date hereof. All the issued and
outstanding shares of each subsidiary’s capital stock have been duly authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities, and, except as Previously Disclosed, are owned by the Company or
a Company subsidiary free and clear of all liens, encumbrances and equities and claims. As used herein, “
Person
”
shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof, and an “
Affiliate
”
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common
control with, such Person.
3.3
Power
.
The Company has all requisite power to execute and deliver this Agreement, to sell and issue the Securities hereunder, and to carry
out and perform its obligations under the terms of this Agreement, the Warrants, the Voting Agreements (as defined herein), the
Rights Agreement Amendment and any ancillary agreements and instruments to be entered into by the Company hereunder (together,
the “
Transaction Agreements
”).
3.4.
Authorization
.
The execution, delivery, and performance of the Transaction Agreements by the Company has been duly authorized by all requisite
action on the part of the
Company and its officers, directors and
stockholders, and this Agreement constitutes, and the other Transaction Agreements will constitute, legal, valid, and binding obligations
of the Company enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (b) as limited
by laws relating to the availability of specific performance, injunctive relief or other equitable remedies (together, the “
Enforceability
Exceptions
”).
3.5.
Consents
and Approvals
. Except for any Current Report on Form 8-K or Notice of Exempt Offering of Securities on Form D to be filed by
the Company in connection with the transactions contemplated hereby, the Company is not required to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to consummate
the transactions contemplated by the Transaction Agreements. Assuming the accuracy of the representations of each Investor in the
Investor Suitability Questionnaire of such Investor, as applicable, no consent, approval, authorization or other order of, or registration,
qualification or filing with, any court, regulatory body, administrative agency, self-regulatory organization, stock exchange or
market (including The NASDAQ Stock Market (“
The NASDAQ Stock Market
”)), or other governmental body is required
for the execution and delivery of these Transaction Agreements, the valid issuance, sale and delivery of the Securities to be sold
pursuant to this Agreement other than such as have been made or obtained, or for any securities filings required to be made under
federal or state securities laws applicable to the offering of the Securities.
3.6.
Non-Contravention
.
The execution and delivery of the Transaction Agreements, the issuance, sale and delivery of the Securities to be sold by the Company
under this Agreement, the performance by the Company of its obligations under the Transaction Agreements and/or the consummation
of the transactions contemplated thereby will not (a) conflict with, result in the breach or violation of, or constitute (with
or without the giving of notice or the passage of time or both) a violation of, or default under, (i) any bond, debenture, note
or other evidence of indebtedness, or under any lease, license, franchise, permit, indenture, mortgage, deed of trust, loan agreement,
joint venture or other agreement or instrument to which the Company or any subsidiary is a party or by which it or its properties
may be bound or affected, (ii) the Company’s Restated Certificate of Incorporation, as amended and as in effect on the date
hereof (the “
Certificate of Incorporation
”), the Company’s Bylaws, as amended and as in effect on the
date hereof (the “
Bylaws
”), or the equivalent document with respect to any subsidiary, as amended and as in
effect on the date hereof, or (iii) any statute or law, judgment, decree, rule, regulation, ordinance or order of any court or
governmental or regulatory body (including The NASDAQ Stock Market), governmental agency, arbitration panel or authority applicable
to the Company, any of its subsidiaries or their respective properties, except in the case of clauses (i) and (iii) for such conflicts,
breaches, violations or defaults that would not be likely to have, individually or in the aggregate, a Material Adverse Effect,
or (b) result in the creation or imposition of any lien, encumbrance, claim, security interest or restriction whatsoever upon any
of the material properties or assets of the Company or any of its subsidiaries or an acceleration of indebtedness pursuant to any
obligation, agreement or condition contained in any material bond, debenture, note or any other evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other agreement or instrument to which the Company or any if its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company
is subject. For purposes of this
Section 3.6
, the term “material” shall apply to agreements, understandings,
instruments, contracts or proposed transactions to which the Company is a party or by which it is bound involving obligations (contingent
or otherwise) of, or payments to, the Company in excess of $100,000 in a consecutive 12-month period.
3.7.
Shares
.
The Shares are duly authorized and when issued pursuant to the terms of this Agreement will be validly issued, fully paid, and
nonassessable, and will be free of any liens or encumbrances with respect to the issuance thereof;
provided
,
however
,
that the Shares shall be subject to restrictions on transfer under state or federal securities laws as set forth in this Agreement,
or as otherwise may be required under state or federal securities laws as set forth in this Agreement at the time a transfer is
proposed. Except as set forth on
Section 3.7
of the Disclosure Letter, the issuance and delivery of the Shares is not subject
to preemptive, co-sale, right of first refusal or any other similar rights of the stockholders of the Company or any other Person,
or any liens or encumbrances or result in the triggering of any anti-dilution or other similar rights under any outstanding securities
of the Company.
3.8.
Authorization
of the Warrants
. The Warrants have been duly authorized by the Company and, when duly executed and delivered by the Company,
will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject
to the Enforceability Exceptions.
3.9.
Authorization
of the Warrant Shares
. The Warrant Shares issuable upon exercise of the Warrants have been duly authorized and reserved for
issuance upon exercise by all necessary corporate action and such shares, when issued upon such exercise in accordance of the terms
of the Warrants, will be validly issued and will be fully paid and non-assessable, and will be free of any liens or encumbrances
with respect to the issuance thereof;
provided
,
however
, that the Warrant Shares shall be subject to restrictions
on transfer under state or federal securities laws as set forth in this Agreement, or as otherwise may be required under state
or federal securities laws as set forth in this Agreement at the time a transfer is proposed. Except as set forth on
Section
3.7
of the Disclosure Letter, the issuance and delivery of the Warrant Shares is not subject to preemptive, co-sale, right
of first refusal or any other similar rights of the stockholders of the Company or any other Person, or any liens or encumbrances
or result in the triggering of any anti-dilution or other similar rights under any outstanding securities of the Company.
3.10.
No Registration
.
Assuming the accuracy of each of the representations and warranties of each Investor herein and in the Investor Suitability Questionnaire,
the issuance by the Company of the Securities is exempt from registration under the Securities Act.
3.11.
Reporting
Status
. The Company is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”), and, except as set forth in
Section 3.11
of the Disclosure Letter, has, in a timely manner, filed all documents
and reports that the Company was required to file pursuant to Section I.A.3.b of the General Instructions to Form S-3 promulgated
under the Securities Act in order for the Company to be eligible to use Form S-3 for the two years preceding the Initial Closing
Date or such shorter time period as the Company has been subject to such reporting requirements (the foregoing materials, together
with
any materials filed by the Company under
the Exchange Act, whether or not required, collectively, the “
SEC Documents
”). The SEC Documents complied as
to form in all material respects with requirements of the Securities Act and Exchange Act and the rules and regulations of the
SEC promulgated thereunder (collectively, the “
SEC Rules
”), and none of the SEC Documents and the information
contained therein, as of their respective filing dates, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. As used in this Agreement, “
Previously Disclosed
” means information
set forth in or incorporated by reference into the SEC Documents filed with the SEC on or after March 31, 2015 but prior to the
date hereof (except for risks and forward-looking information set forth in the “Risk Factors” section of the applicable
SEC Documents or in any forward-looking statement disclaimers or similar statements that are similarly non-specific and are predictive
or forward-looking in nature).
3.12.
Contracts
.
Each indenture, contract, lease, mortgage, deed of trust, note agreement, loan or other agreement or instrument of a character
that is required to be described or summarized in the SEC Documents or to be filed as an exhibit to the SEC Documents under the
SEC Rules (collectively, the “
Material Contracts
”) is so described, summarized or filed. The Material Contracts
to which the Company or its subsidiaries are a party have been duly and validly authorized, executed and delivered by the Company
and constitute the legal, valid and binding agreements of the Company or its subsidiaries, as applicable, enforceable by and against
the Company or its subsidiaries, as applicable, in accordance with their respective terms, subject to the Enforceability Exceptions.
3.13.
Capitalization
.
As of the date hereof, the authorized capital stock of the Company consists of (a) 300,000,000 shares of Common Stock, $0.0001
par value per share, 80,191,143 shares of which are issued and outstanding as of July 22, 2015, and (b) 5,000,000 shares of Preferred
Stock, $0.0001 par value per share, of which no shares are issued and outstanding as of the date hereof. All subscriptions, warrants,
options, convertible securities, and other rights (contingent or other) to purchase or otherwise acquire equity securities of the
Company issued and outstanding as of the date hereof, or material contracts, commitments, understandings, or arrangements by which
the Company or any of its subsidiaries is or may be obligated to issue shares of capital stock, or securities or rights convertible
or exchangeable for shares of capital stock, are as set forth in the SEC Documents. The issued and outstanding shares of the Company’s
capital stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with
all applicable federal and state securities laws, and were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. Except as Previously Disclosed, no holder of the Company’s capital stock
is entitled to preemptive or similar rights. There are no bonds, debentures, notes or other indebtedness having general voting
rights (or convertible into securities having such rights) of the Company issued and outstanding. Except as Previously Disclosed,
there are no agreements or arrangements under which the Company or any of its subsidiaries is obligated to register the sale of
any of their securities under the Securities Act. The Company has made available to the Investors, a true, correct and complete
copy of the Company’s Certificate of Incorporation and Bylaws.
3.14.
Legal Proceedings
.
Except as Previously Disclosed, there is no action, suit or proceeding before any court, governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened against the Company or its subsidiaries wherein an unfavorable
decision, ruling or finding would reasonably be expected to, individually or in the aggregate, (i) materially adversely affect
the validity or enforceability of, or the authority or ability of the Company to perform its obligations under, this Agreement
or (ii) have a Material Adverse Effect. The Company is not a party to or subject to the provisions of any injunction, judgment,
decree or order of any court, regulatory body, administrative agency or other governmental agency or body that might have, individually
or in the aggregate, a Material Adverse Effect.
3.15.
No Violations
.
Neither the Company nor any of its subsidiaries is in violation of its respective certificate of incorporation, bylaws or other
organizational documents, or to its knowledge, is in violation of any statute or law, judgment, decree, rule, regulation, ordinance
or order of any court or governmental or regulatory body (including The NASDAQ Stock Market), governmental agency, arbitration
panel or authority applicable to the Company or any of its subsidiaries, which violation, individually or in the aggregate, would
be reasonably likely to have a Material Adverse Effect. Neither the Company nor any of its subsidiaries is in default (and there
exists no condition which, with or without the passage of time or giving of notice or both, would constitute a default) in the
performance of any bond, debenture, note or any other evidence of indebtedness in any indenture, mortgage, deed of trust or any
other material agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or by which the properties of the Company are bound, which would be reasonably likely to have a Material
Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the SEC involving the Company or any current or former director or officer of the Company and the Company is not an “ineligible
issuer” pursuant to Rules 164, 405 and 433 under the Securities Act. The Company has not received any comment letter from
the SEC relating to any SEC Documents which has not been finally resolved. The SEC has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company under the Exchange Act or the Securities Act.
3.16.
Governmental
Permits; FDA Matters.
(a)
Permits
. The Company and its subsidiaries possess all necessary franchises, licenses, certificates and other authorizations
from any foreign, federal, state or local government or governmental agency, department or body that are currently necessary for
the operation of their respective businesses as currently conducted, except where such failure to possess would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or modification of any such permit which, if the subject of an
unfavorable decision, ruling or finding, could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(b)
EPA and FDA Matters
. As to each of the manufacturing processes, intermediate products and research or commercial
products of the Company and each of its subsidiaries, including, without limitation, products or compounds currently under research
and/or development by the Company, subject
to the jurisdiction of the United States Environmental Protection Agency (“
EPA
”) under the Toxic Substances
Control Act and regulations thereunder (“
TSCA
”) or the Food and Drug Administration (“
FDA
”)
under the Federal Food, Drug and Cosmetic Act and the regulations thereunder (“
FDCA
”) (each such product, a
“
Life Science Product
”), such Life Science Product is being researched, developed, manufactured, tested, distributed
and/or marketed in compliance in all material respects with all applicable requirements under the FDCA and TSCA and similar laws
and regulations applicable to such Life Science Product, including those relating to investigational use, premarket approval, good
manufacturing practices, labeling, advertising, record keeping, filing of reports and security. The Company has not received any
notice or other communication from the FDA, EPA or any other federal, state or foreign governmental entity (i) contesting the premarket
approval of, the uses of or the labeling and promotion of any Life Science Product or (ii) otherwise alleging any violation by
the Company of any law, regulation or other legal provision applicable to a Life Science Product. Neither the Company, nor any
officer, employee or agent of the Company has made an untrue statement of a material fact or fraudulent statement to the FDA or
other federal, state or foreign governmental entity performing similar or equivalent functions or failed to disclose a material
fact required to be disclosed to the FDA or such other federal, state or foreign governmental entity.
3.17.
Listing
Compliance
. The Company is in compliance with the requirements of The NASDAQ Stock Market LLC for continued listing of the
Common Stock thereon and has no knowledge of any facts or circumstances that could reasonably lead to delisting of its Common Stock
from The NASDAQ Stock Market. The Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or the listing of the Common Stock on The NASDAQ Stock Market, nor has the Company received
any notification that the SEC or The NASDAQ Stock Market is contemplating terminating such registration or listing. The transactions
contemplated by the Transaction Agreements will not contravene the rules and regulations of The NASDAQ Stock Market. The Company
will comply with all requirements of The NASDAQ Stock Market with respect to the issuance of the Securities, including the filing
of any listing notice with respect to the issuance of the Securities, other than obtaining stockholder approval for the exercise
of the Warrants as contemplated by Section 7.7.
3.18
Intellectual
Property
.
(a)
Except as set forth in
Section 3.18
of the Disclosure Letter, Company and/or its subsidiaries owns or possesses,
free and clear of all encumbrances, all legal rights to all intellectual property and industrial property rights and rights in
confidential information, including all (i) patents, patent applications, invention disclosures, and all related continuations,
continuations-in-part, divisional, reissues, re-examinations, substitutions and extensions thereof, (ii) trademarks, trademark
rights, service marks, service mark rights, corporate names, trade names, trade name rights, domain names, logos, slogans, trade
dress, design rights, and other similar designations of source or origin, together with the goodwill symbolized by and of the foregoing,
(iii) trade secrets and all other confidential information, ideas, know-how, inventions, proprietary processes, formulae, models,
and other methodologies, (iv) copyrights, (v) computer programs (whether in object code, subject code or other form), algorithms,
databases, compilations and data, technology supporting the foregoing, and all related documentation,
(vi) licenses to any of the foregoing,
and (vii) all applications and registrations of the foregoing, and (viii) all other similar proprietary rights (collectively, “
Intellectual
Property
”) used or held for use in, or necessary for the conduct of their businesses as now conducted and as proposed
to be conducted, and neither the Company nor any of its subsidiaries (A) has received any communications alleging that either the
Company or any of its subsidiaries has violated, infringed or misappropriated or, by conducting their businesses as now conducted
and as proposed to be conducted, would violate, infringe or misappropriate any of the Intellectual Property of any other Person,
(B) knows of any basis for any claim that the Company or any of its subsidiaries has violated, infringed or misappropriated, or,
by conducting their businesses as now conducted and as proposed to be conducted, would violate, infringe or misappropriate any
of the Intellectual Property of any other Person, and (C) knows of any third-party infringement, misappropriation or violation
of any Company or any Company subsidiary’s Intellectual Property. The Company has taken and takes reasonable security measures
to protect the secrecy, confidentiality and value of its Intellectual Property, including requiring all Persons with access thereto
to enter into appropriate non-disclosure agreements. To the knowledge of the Company, there has not been any disclosure of any
material trade secret of the Company or a Company subsidiary (including any such information of any other Person disclosed in confidence
to the Company) to any other Person in a manner that has resulted or is likely to result in the loss of trade secret in and to
such information. Except as Previously Disclosed, and except as would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, there are no outstanding options, licenses or agreements, claims, encumbrances or shared
ownership interests of any kind relating to the Company’s or its subsidiaries’ Intellectual Property, nor is the Company
or its subsidiaries bound by or a party to any options, licenses or agreements of any kind with respect to the Intellectual Property
of any other Person.
(b)
To the Company’s knowledge, none of the employees of the Company or its subsidiaries are obligated under any contract
(including, without limitation, licenses, covenants or commitments of any nature or contracts entered into with prior employers),
or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of his or
her best efforts to promote the interests of the Company or its subsidiaries or would conflict with their businesses as now conducted
and as proposed to be conducted. Neither the execution nor delivery of the Transaction Agreements will conflict with or result
in a breach of the terms, conditions or provisions of, or constitute a default under any contract, covenant or instrument under
which the Company or its subsidiaries or any of the employees of the Company or its subsidiaries is now obligated, and neither
the Company nor its subsidiaries will need to use any inventions that any of its employees, or Persons it currently intends to
employ, have made prior to their employment with the Company or its subsidiaries, except for inventions that have been assigned
or licensed to the Company or its subsidiaries as of the date hereof. Each current and former employee or contractor of the Company
or its subsidiaries that has developed any Intellectual Property owned or purported to be owned by the Company or its subsidiaries
has executed and delivered to the Company a valid and enforceable Invention Assignment and Confidentiality Agreement that (i) assigns
to the Company or such subsidiaries all right, title and interest in and to any Intellectual Property rights arising from or developed
or delivered to the Company or such subsidiaries in connection with such Person’s work for or on behalf of the Company or
such subsidiaries, and (ii) provides reasonable protection for the trade secrets, know-how and other confidential information (1)
of the Company or such subsidiaries and (2) of any third party that has disclosed same to the Company
or such subsidiaries. To the knowledge
of the Company, no current or former employee, officer, consultant or contractor is in default or breach of any term of any employment,
consulting or contractor agreement, non-disclosure agreement, assignment agreement, or similar agreement. Except as Previously
Disclosed, to the knowledge of the Company, no present or former employee, officer, consultant or contractor of the Company has
any ownership, license or other right, title or interest, directly or indirectly, in whole or in part, in any Intellectual Property
that is owned or purported to be owned, in whole or part, by the Company or its subsidiaries.
3.19.
Financial
Statements
. The consolidated financial statements of the Company and its subsidiaries and the related notes thereto included
in the SEC Documents (the “
Financial Statements
”) comply in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and present fairly,
in all material respects, the financial position of the Company and its subsidiaries as of the dates indicated and the results
of its operations and cash flows for the periods therein specified subject, in the case of unaudited statements, to normal year-end
audit adjustments. Except as set forth in such Financial Statements (or the notes thereto), such Financial Statements (including
the related notes) have been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent
basis throughout the periods therein specified (“
GAAP
”). Except as set forth in the Financial Statements, neither
the Company nor its subsidiaries has any material liabilities other than liabilities and obligations that have arisen in the ordinary
course of business and which would not be required to be reflected in financial statements prepared in accordance with GAAP.
3.20.
Accountants
.
PricewaterhouseCoopers LLP, which has expressed its opinion with respect to the consolidated financial statements contained in
the Company’s Annual Report on Form 10-K for the year ended December 31, 2014, are registered independent public accountants
as required by the Exchange Act and the rules and regulations promulgated thereunder (and by the rules of the Public Company Accounting
Oversight Board).
3.21.
Internal
Accounting Controls
. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. The Company has disclosure controls and procedures (as defined in Rules 13a-14 and 15d-14
under the Exchange Act) that are effective and designed to ensure that (i) information required to be disclosed in the reports
that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
by the SEC Rules, and (ii) such information is accumulated and communicated to the Company’s management, including its principal
executive officer and principal financial officer, to allow timely decisions regarding required disclosure. The Company is otherwise
in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended and the rules
and regulations promulgated thereunder.
3.22.
Off-Balance
Sheet Arrangements
. There is no transaction, arrangement or other relationship between the Company or its subsidiaries and
an unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in its Exchange Act filings
and is not so disclosed or that otherwise would be reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect. There are no such transactions, arrangements or other relationships with the Company that may create contingencies or liabilities
that are not otherwise disclosed by the Company in its Exchange Act filings.
3.23.
No Material
Adverse Change; Solvency
. (a) Except as set forth in the SEC Documents in each case, filed or made through and including the
date hereof, since March 31, 2015:
(i) there has not been any event, occurrence or development that, individually or in the aggregate, has had or that could reasonably
be expected to result in a Material Adverse Effect,
(ii)
the Company has not incurred any liabilities (contingent or otherwise) other than (1) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and (2) liabilities not required to be reflected in the
Company's financial statements pursuant to GAAP or not required to be disclosed in filings made with the SEC,
(iii) the Company
has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made
any agreements to purchase or redeem any shares of its capital stock other than routine withholding in accordance with the Company’s
existing stock-based plan,
(iv) the Company has not altered its method
of accounting or the identity of its auditors, except as Previously Disclosed,
(v) the Company has not issued any equity
securities except pursuant to the Company’s existing stock based plans or as otherwise Previously Disclosed; and
(vi) there has not been any loss or damage
(whether or not insured) to the physical property of the Company or any of its subsidiaries.
(b) The
Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Initial Closing,
will not be Insolvent (as defined below). For purposes of this Section, “
Insolvent
” means, with respect to any
Person, (i) the present fair saleable value of such Person’s assets is less than the amount required to pay such Person’s
total indebtedness, (ii) such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured,
(iii) such Person intends to incur or believes that it will incur debts
that would be beyond its ability to pay as such debts mature or (iv) such Person has unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is currently proposed to be conducted. As of the Initial
Closing, the Company’s existing cash and cash equivalents, cash from operations, cash from borrowing facilities and cash
available from capital
market transactions will be sufficient to meet the Company’s
planned working capital and capital expenditure requirements for at least 6 months from the Initial Closing Date.
(c) The Company has
not incurred any obligation or liability (contingent or otherwise) under this Agreement, or any of the documents or instruments
contemplated hereby, with actual intent to hinder, delay or defraud either present or future creditors of the Company or any of
its subsidiaries.
3.24.
No Manipulation
of Stock
. Neither the Company nor any of its subsidiaries, nor to the Company’s knowledge, any of their respective officers,
directors, employees, Affiliates or controlling Persons has taken and will not, in violation of applicable law, take, any action
designed to or that might reasonably be expected to, directly or indirectly, cause or result in stabilization or manipulation of
the price of the Common Stock.
3.25.
Insurance
.
The Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which the Company and its subsidiaries are engaged. The Company
and its subsidiaries will continue to maintain such insurance or substantially similar insurance, which covers the same risks at
the same levels as the existing insurance with insurers which guarantee the same financial responsibility as the current insurers,
and neither the Company nor any subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
without a significant increase in cost.
3.26.
Properties
.
Except as Previously Disclosed, the Company and its subsidiaries have good and marketable title to all the properties and assets
(both tangible and intangible) described as owned by them in the consolidated financial statements included in the SEC Documents,
free and clear of all liens, mortgages, pledges, or encumbrances of any kind except (i) those, if any, reflected in such consolidated
financial statements (including the notes thereto), or (ii) those that are not material in amount and do not adversely affect the
use made and proposed to be made of such property by the Company or its subsidiaries. The Company and each of its subsidiaries
hold their leased properties under valid and binding leases. The Company and each of its subsidiaries own or lease all such properties
as are necessary to its operations as now conducted.
3.27.
Tax Matters
.
The Company and its subsidiaries have filed all Tax Returns, and these Tax Returns are true, correct, and complete in all material
respects. The Company and each subsidiary (i) have paid all Taxes that are due from the Company or such subsidiary for the periods
covered by the Tax Returns or (ii) have duly and fully provided reserves adequate to pay all Taxes in accordance with GAAP. No
agreement as to indemnification for, contribution to, or payment of Taxes exists between the Company or any subsidiary, on the
one hand, and any other Person, on the other, including pursuant to any Tax sharing agreement, lease agreement, purchase or sale
agreement, partnership agreement or any other agreement not entered into in the ordinary course of business. Neither the Company
nor any of its subsidiaries has any liability for Taxes of any Person (other than the Company or any of its subsidiaries) under
Treasury Regulation Section 1.1502-6 (or any similar provision of any state, local or foreign law), or as a transferee or successor,
by contract or otherwise. Since the date of the Company's most recent
Financial Statements, the Company has not
incurred any liability for Taxes other than in the ordinary course of business consistent with past practice. Neither the Company
nor its subsidiaries has been advised (a) that any of its Tax Returns have been or are being audited as of the date hereof, or
(b) of any deficiency in assessment or proposed judgment to its Taxes. Neither the Company nor any of its subsidiaries has knowledge
of any Tax liability to be imposed upon its properties or assets as of the date of this Agreement that is not adequately provided
for. The Company has not distributed stock of another corporation, or has had its stock distributed by another corporation, in
a transaction that was governed, or purported or intended to be governed, in whole or in part, by Section 355 of the Internal Revenue
Code (i) in the two years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of
a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Internal Revenue
Code) in conjunction with the purchase of the Shares. “
Tax
” or “
Taxes
” means any foreign,
federal, state or local income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, property,
windfall, profits, environmental, customs, capital stock, franchise, employees’ income withholding, foreign or domestic withholding,
social security, unemployment, disability, real property, personal property, sales, use, transfer, value added, alternative or
add-on minimum or other similar tax, governmental fee, governmental assessment or governmental charge, including any interest,
penalties or additions to Taxes or additional amounts with respect to the foregoing. “
Tax Returns
” means all
returns, reports, or statements required to be filed with respect to any Tax (including any elections, notifications, declarations,
schedules or attachments thereto, and any amendment thereof) including any information return, claim for refund, amended return
or declaration of estimated Tax.
3.28.
Investment
Company Status
. The Company is not, and immediately after receipt of payment for the Shares will not be, an “investment
company,” an “affiliated person” of, “promoter” for or “principal underwriter” for, or
an entity “controlled” by an “investment company,” within the meaning of the Investment Company Act of
1940, as amended, or the rules and regulations promulgated thereunder.
3.29.
Transactions
With Affiliates and Employees
. Except as Previously Disclosed, none of the officers or directors of the Company or its subsidiaries
and, to the knowledge of the Company, none of the employees of the Company or its subsidiaries is presently a party to any transaction
with the Company or any subsidiary (other than for services as employees, officers and directors required to be disclosed under
Item 404 of Regulation S-K under the Exchange Act).
3.30.
Foreign
Corrupt Practices
. Neither the Company nor its subsidiaries or Affiliates, any director or officer, nor to the knowledge of
the Company, any agent, employee or other Person acting on behalf of the Company or its subsidiaries has, in the course of its
actions
for, or on behalf of, the Company or any of its subsidiaries (a) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity, (b) made or
promised to make any direct or indirect unlawful payment to any foreign or domestic government official or employee (including
any officer or employee of a government or government-owned or controlled entity or of a public international organization, or
any Person acting in an official capacity for or on behalf of any of the foregoing, or of any political party or part official
or candidate for political office (each such Person, a “
Government Official
”)) from corporate funds, (c) violated
or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977,
as amended or (d) made or promised to make any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment
to any foreign or domestic Government Official.
3.31.
Money
Laundering Laws
. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions
Reporting
Act
of 1970, as amended, and the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)),
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “
Money Laundering
Laws
”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the Company’s
knowledge, threatened.
3.32.
OFAC
.
Neither the Company, any director or officer, nor, to the Company’s knowledge, any agent, employee, subsidiary or Affiliate
of the Company is currently
subject
to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“
OFAC
”); and the Company will not directly or indirectly use
the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner
or other Person, for the purpose of financing the activities of any Person currently subject to any U.S. sanctions administered
by OFAC.
3.33.
Environmental
Laws
. The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“
Environmental Laws
”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a Material Adverse Effect on the Company and its subsidiaries,
taken as a whole. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
3.34.
Employee
Relations
. Except as set forth in
Section 3.34
of the Disclosure Letter, neither the Company nor any of its subsidiaries
is a party to any collective bargaining agreement or employs any member of a union. Neither the Company nor any of its subsidiaries
is engaged in any unfair labor practice. There is (i) (x) no unfair labor practice complaint pending or, to the Company’s
knowledge, threatened against the Company or any of its subsidiaries before the National Labor Relations Board, and no grievance
or arbitration proceeding arising out of or under collective bargaining agreements is pending or threatened, (y) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened against the
Company or any of its subsidiaries and
(z) no union representation dispute currently existing concerning the employees of the Company or any of its subsidiaries, and
(ii) to the Company’s knowledge, (x) no union organizing activities are currently taking place concerning the employees of
the Company or any of its subsidiaries and (y) there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees or any applicable wage or hour laws. No executive officer of the
Company (as defined in Rule 501(f) promulgated under the Securities Act) has notified the Company that such officer intends to
leave the Company or otherwise terminate such officer’s employment with the Company. No executive officer of the Company,
to the knowledge of the Company, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement, or any other agreement or any restrictive covenant,
and the continued employment of each such executive officer does not subject the Company or any of its subsidiaries to any liability
with respect to any of the foregoing matters.
3.35.
ERISA
.The
Company and its subsidiaries are in compliance in all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (herein
called “
ERISA
”); no “reportable event” (as defined in ERISA) has occurred with respect to any “pension
plan” (as defined in ERISA) for which the Company or any of its subsidiaries would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “pension plan”; or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the “
Code
”); and each “Pension Plan” for which the Company
would have liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
3.36.
Obligations
of Management
. To the Company’s knowledge, each officer and key employee of the Company or its subsidiaries is currently
devoting substantially all of his or her business time to the conduct of the business of the Company or its subsidiaries, respectively.
The Company is not aware that any officer or key employee of the Company or its subsidiaries is planning to work less than full
time at the Company or its subsidiaries, respectively, in the future. To the Company’s knowledge, no officer or key employee
is currently working or plans to work for a competitive enterprise, whether or not such officer or key employee is or will be compensated
by such enterprise. To the Company’s knowledge, no officer or Person currently nominated to become an officer of the Company
or its subsidiaries is or has been subject to any judgment or order of, the subject of any pending civil or administrative action
by the SEC or any self-regulatory organization
.
3.37.
Integration;
Other Issuances of Securities
. Neither the Company nor its subsidiaries or any Affiliates, nor any Person acting on its or
their behalf, has issued any shares of Common Stock or shares of any series of preferred stock or other securities or instruments
convertible into, exchangeable for or otherwise entitling the holder thereof to acquire shares of Common Stock which would be integrated
with the sale or exchange of the Securities to the Investors for purposes of the Securities Act or of any applicable stockholder
approval provisions, including, without limitation, under the rules and regulations of The NASDAQ Stock Market,
nor will the Company or its subsidiaries
or Affiliates take any action or steps that would require registration of any of the Securities under the Securities Act or cause
the offering of the Securities to be integrated with other offerings if any such integration would cause the issuance of the Securities
hereunder to fail to be exempt from registration under the Securities Act as provided in
Section 3.10
above or cause the
transactions contemplated hereby to contravene the rules and regulations of The NASDAQ Stock Market. The Company is eligible to
register the Shares and the Warrant Shares for resale by the Investors using Form S-3 promulgated under the Securities Act.
3.38.
No General
Solicitation
. Neither the Company nor its subsidiaries or any Affiliates, nor any Person acting on its or their behalf, has
offered or sold any of the Securities by any form of general solicitation or general advertising.
3.39.
No Brokers’
Fees
. The Company has not incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
3.40.
Registration
Rights
. Except as set forth in (i) the Amended and Restated Investors’ Rights Agreement dated June 21, 2010, by and among
the Company and the parties listed on Exhibits A through H thereof, as amended by Amendment No. 1 thereto dated February 23, 2012,
Amendment No. 2 thereto dated December 24, 2012, Amendment No. 3 thereto dated March 27, 2013, Amendment No. 4 thereto dated October
16, 2013 and Amendment No. 5 thereto dated December 24, 2013 (as amended, the “
Rights Agreement
”); (ii) the
Registration Rights Agreement, dated February 27, 2012, by and among the Company and the several purchasers signatory thereto;
(iii) the Registration Rights Agreement, dated July 30, 2012, by and between the Company and Total Energies Nouvelles Activités
USA (“
Total
”), (iv) the Amended and Restated Letter Agreement dated May 8, 2014, by and among the Company and
note holders party thereto; (v) the Registration Rights Agreement, dated February 24, 2015, by and between the Company and Nomis
Bay Ltd.; and (vi) the registration rights letter dated as of the date hereof by and among the Company and the investors party
to the Purchase Agreement (as defined in Article 6 hereof), the Company has not granted or agreed to grant to any Person any rights
(including “piggy-back” registration rights) to have any securities of the Company registered with the SEC or any other
governmental authority that have not been satisfied or waived.
3.41.
Application
of Takeover Protections
. There is no control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the Company’s charter documents or the laws of its
state of incorporation that is or could become applicable to any of the Investors as a result of the Investor and the Company fulfilling
their obligations or exercising their rights under the Transaction Agreements, including, without limitation, as a result of the
Company’s issuance of the Securities and the Investors’ ownership of the Securities.
3.42.
No Disqualification
.
No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “
Disqualification
Event
”) is applicable to the Company or, to the Company’s knowledge, any Company Covered Person, except for a Disqualification
Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable. As used herein, “
Company
Covered Person
” means, with
respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed
in the first paragraph of Rule 506(d)(1).
3.43.
Disclosure
.
The Company understands and confirms that the Investors will rely on the foregoing representations in effecting transactions in
the Securities. All disclosure furnished by or on behalf of the Company to the Investors in connection with this Agreement regarding
the Company, its business and the transactions contemplated hereby is true and correct in all material respects and does not contain
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading. The Company acknowledges and agrees that the Investors
have not made and do not make any representations or warranties with respect to the transactions contemplated hereby other than
those set forth in
Article 4
hereto. Other than (a) the Voting Agreements (as defined herein), (b) the Maturity Treatment
Agreement (as defined herein), and (c) letter agreements regarding waivers of rights by any of the Investors, the Company has not
entered into any letter agreement with an Investor hereunder in connection with the transactions contemplated hereby.
3.44.
Section
16 Matters
. The Company’s Board of Directors has adopted resolutions providing that the Board intends for the Exchange
and the issuance of the Securities to each Investor to be exempt from Section 16(b) of the Exchange Act.
3.45
Fair Market
Value
. The Company believes in good faith that the aggregate fair market value of the non-exempt assets of the Company and
all entities it controls is not more than $76.3 million, in accordance with 16 C.F.R. Part 802.4.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER
Each Investor, as to
itself only and not with respect to any other Investor, represents, warrants and covenants to the Company with respect to this
purchase as follows:
4.1
Organization
.
The Investor is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization.
4.2
Power
.
The Investor has all requisite power to execute and deliver this Agreement and to carry out and perform its obligations under the
terms of this Agreement.
4.3
Authorization
.
The execution, delivery, and performance of this Agreement by the Investor has been duly authorized by all requisite action, and
this Agreement constitutes the legal, valid, and binding obligation of the Investor enforceable in accordance with its terms, except
(a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting
enforcement of creditors’ rights generally, and (b) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
4.4
Consents
and Approvals
. The Investor need not give any notice to, make any filing with, or obtain any authorization, consent, or approval
of any government or governmental agency in order to consummate the transactions contemplated by this Agreement.
4.5.
Non-Contravention
.
Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate
in any material respect any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which the Investor is subject. No approval, waiver, or consent
by the Investor under any instrument, contract, or agreement to which the Investor or any of its Affiliates is a party is necessary
to consummate the transactions contemplated hereby.
4.6.
Purchase
for Investment Only
. The Investor is purchasing the Securities for the Investor’s own account for investment purposes
only and not with a view to, or for resale in connection with, any “distribution” in violation of the Securities Act.
By executing this Agreement, the Investor further represents that it does not have any contract, undertaking, agreement, or arrangement
with any Person to sell, transfer, or grant participation to such Person or to any third Person, with respect to any of the Securities.
The Investor understands that the Securities have not been registered under the Securities Act or any applicable state securities
laws by reason of a specific exemption therefrom that depends upon, among other things, the bona fide nature of the investment
intent as expressed herein.
4.7.
Disclosure
of Information
. The Investor has had an opportunity to review the Company’s filings under the Securities Act and the
Exchange Act (including risks factors set forth therein) and the Investor represents that it has had an opportunity to ask questions
and receive answers from the Company to evaluate the financial risk inherent in making an investment in the Securities. The Investor
has not been offered the opportunity to purchase the Securities by means of any general solicitation or general advertising.
4.8.
Risk of
Investment
. The Investor realizes that the purchase of the Securities will be a highly speculative investment and the Investor
may suffer a complete loss of its investment. The Investor understands all of the risks related to the purchase of the Securities.
By virtue of the Investor’s experience in evaluating and investing in private placement transactions of securities in companies
similar to the Company, the Investor is capable of evaluating the merits and risks of the Investor’s investment in the Company
and has the capacity to protect the Investor’s own interests.
4.9.
Advisors
.
The Investor has reviewed with its own tax advisors the federal, state, and local tax consequences of this investment and the transactions
contemplated by this Agreement. The Investor acknowledges that it has had the opportunity to review the Transaction Agreements
and the transactions contemplated thereby with the Investor’s own legal counsel.
4.10.
Finder
.
The Investor is not obligated and will not be obligated to pay any broker commission, finders’ fee, success fee, or commission
in connection with the transactions contemplated by this Agreement.
4.11.
Restricted
Securities
. The Investor understands that the Securities must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from registration is otherwise available. Moreover, the Investor understands that, except
as set forth in the Rights Agreement, the Company is under no obligation to register the Shares and the Warrant Shares. The Investor
is aware of Rule 144 promulgated under the Securities Act (“
SEC Rule
144
”) that permits limited
resales of securities purchased in a private placement subject to the satisfaction of certain conditions.
4.12.
Legend
.
It is understood by the Investor that each certificate representing the Securities shall be endorsed with a legend substantially
in the following form:
“THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED
BY THE HOLDER), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS
SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
Subject to
Section 7.3
, the Company
need not register a transfer of Securities unless the conditions specified in the foregoing legend are satisfied. Subject to
Section
7.3
, the Company may also instruct its transfer agent not to register the transfer of any of the Securities unless the conditions
specified in the foregoing legend are satisfied.
4.13.
Investor
Qualification
. The Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities
Act. The Investor acknowledges that it has completed the Investor Suitability Questionnaire. The Investor has truthfully set forth
in the Investor Suitability Questionnaire the factual basis or reason for qualification as an “accredited investor”
as defined in Rule 501(a) of Regulation D under the Securities Act and such information remains true and correct as of the date
hereof. The Investor agrees to furnish any additional information that the Company deems reasonably necessary in order to verify
the answers set forth in the Investor Suitability Questionnaire.
4.14.
Disqualification
.
The Investor represents that neither such Investor, nor any person or entity with whom such Investor shares beneficial ownership
of the Company securities, is subject to any Disqualification Event (as defined in Rule 506(d)(1)(i) through (viii) under the Securities
Act), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed
reasonably in advance of the Initial Closing in writing in reasonable detail to the Company.
ARTICLE 5
CONDITIONS TO COMPANY’S OBLIGATIONS
AT EACH CLOSING.
The Company’s
obligation to complete the sale and issuance of the Securities and deliver
the Securities to each Investor, individually,
at each Closing shall be subject to the following conditions to the extent not waived by the Company:
(a)
Receipt of
Payment
. The Company shall have received payment by the Exchange of the aggregate principal amount of the Outstanding Convertible
Notes as set forth next to such Investor’s name on
Schedule I-A
or
I-B
hereto, as applicable, in the full amount
of the applicable Total Purchase Price for the number of Securities being purchased by such Investor at the applicable Closing,
as set forth next to such Investor’s name on
Schedule I-A
or
I-B
hereto, as applicable.
(b)
Representations
and Warranties
. The representations and warranties made by such Investor in
Section 4
hereof shall be true and correct
in all material respects as of, and as if made on, the date of this Agreement and as of the applicable Closing.
(c)
Receipt of
Executed Documents
. Such Investor shall have duly executed and delivered to the Company the Rights Agreement Amendment, the
Voting Agreement and the Investor Suitability Questionnaire.
(d)
Maturity Treatment
Agreement
. Such Investor shall have duly executed and delivered to the Company an agreement substantially in the form set forth
in
Exhibit G
hereto (the “
Maturity Treatment Agreement
”), pursuant to which, and subject to the terms
thereof, the Investor agrees to convert before or at maturity all of the 6.50% Convertible Senior Notes due 2019 issued by the
Company on May 29, 2014 (the “
Rule 144A Notes
”) and/or the Tranche I Senior Convertible Notes (the “
Tranche
I Notes
”) and Tranche II Senior Convertible Notes (the “
Tranche II Notes
”, and together with the Tranche
I Notes, the “
Tranche Notes
”) sold and issued by the Company pursuant to that certain Securities Purchase Agreement,
among the Company and the Purchasers listed thereon, dated as of August 8, 2013 (as amended from time to time, the “
Tranche
Purchase Agreement
”), then held by such Investor (such Rule 144A Notes and Tranche Notes collectively, the “
Maturity
Conversion Notes
”) into shares of Common Stock in accordance with the terms of such Maturity Conversion Notes.
(e)
Request for
Cancellation of Note
. To the extent an Investor has not provided to the Company the applicable Outstanding Convertible Note
for cancellation at the applicable Closing, then any such Investor shall have provided to the Company a Request for Cancellation
of Note in a form reasonably acceptable to the Company.
ARTICLE 6
CONDITIONS TO INVESTORS’ OBLIGATIONS
AT EACH CLOSING
Each Investor’s
obligation to accept delivery of the Securities and to pay for the Securities shall be subject to the following conditions to the
extent not waived by such Investor:
(a)
Delivery
.
The Company shall have complied with its obligations set forth under
Section 2.2
with respect to the Initial Closing, and
Section 2.3 with respect to the Second Closing, to provide, with respect to each Investor, (1) a single stock certificate for each
Investor representing the number of Shares purchased by such Investor and (2) with respect to the Initial Closing, the Warrant
certificates for each Investor representing the Warrants purchased by such Investor.
(b)
Representations
and Warranties
. The representations and warranties made by the Company in
Section 3
hereof shall be true and correct
in all respects as of, and as if made on, the
date of this Agreement and as of the applicable Closing Date.
(c)
Receipt of
Rights Agreement Amendment
. The Company shall have executed and delivered to each Investor the Rights Agreement Amendment,
and the Rights Agreement shall have been duly executed by such other parties as may be required for the Rights Agreement to be
binding and effective with respect to the parties thereto.
(d)
Legal Opinion
.
The Investors shall have received an opinion of Fenwick & West LLP, counsel to the Company, dated as of the applicable Closing
Date, substantially in the form set forth in
Exhibit C
hereto.
(e)
Certificate
.
Each Investor shall have received a certificate signed by the Company’s Chief Executive Officer and Chief Financial Officer
dated as of the applicable Closing Date to the effect that (i) the representations and warranties of the Company in
Section
3
hereof are true and correct in all respects as of, and as if made on, the date of this Agreement and as of the applicable
Closing Date, and (ii) the Company has satisfied in all material respects all of the conditions set forth in this Agreement.
(f)
Good Standing
.
The Company is validly existing as a corporation in good standing under the laws of Delaware as evidenced by a certificate of the
Secretary of State of the State of Delaware, a copy of which has been provided to the Investors.
(g)
Secretary’s
Certificate
. A certificate, executed by the Secretary of the Company and dated as of the applicable Closing Date, as to (A)
the resolutions approving the issuance of the Shares as adopted by an Independent Committee of the Board of Directors and/or the
Company’s Board of Directors in a form reasonably acceptable to such Investor, (B) the certificate of incorporation, and
(C) the bylaws, each as in effect as of the applicable Closing Date.
(h)
Board Approval
.
The terms and conditions of the issuance of the Securities and the Transaction Agreements shall have been approved by an Independent
Committee of the Board of Directors and/or a majority of the disinterested directors of the Board of Directors, as applicable.
(i)
Approvals
.
The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale
of the Shares, including, without limitation, from The NASDAQ Stock Market, other than with respect to obtaining stockholder approval
of the exercise of the Warrants pursuant to
Section 7.7
; provided, however, that the requirements of this Section 6(i) shall
exclude any antitrust approvals which are separately contemplated by Section 6(p).
(j)
Warrants
.
(i)
Total
Warrants
.
(A) If the
lowest price per share of Common Stock (or the conversion
price or exercise price of any
security exercisable or convertible into Common Stock (“
Convertible Securities
”)) (the “
Offering
Price
”) in a bona fide equity financing pursuant to the Securities Purchase Agreement dated as of the date hereof by
and among the Company and the investors party thereto (the “
Purchase Agreement
”) or pursuant to any other securities
purchase agreement entered into in accordance with the Board’s approval of a bona fide equity financing for up to $60,000,000
on July 16, 2015 (each such financing, an “
Offering
” and collectively, the “
Offerings
”) (the
determination of any such Offering Price to include any warrant or other securities issued in connection with such Common Stock
or Convertible Security in such Offering) is less than the Share Price, the Company shall have issued to Total a warrant in the
form of
Exhibit D-1
attached hereto (the “
Total Equity Funding Warrant
”), which warrant will be exercisable
for the number of shares of Common Stock equal to the difference between the number of shares of Common Stock Total would have
received if it had exchanged $70,000,000 of Outstanding Convertible Notes at the lowest Offering Price of such Offerings and the
number of Shares Total receives pursuant to the Exchange at the Share Price; provided, however, that such Total Equity Funding
Warrant shall only be exercisable if such Total Equity Funding Warrant has been approved by a majority of the Company’s stockholders
whose vote was counted at the Stockholders Meeting in accordance with
Section 7.7
of this Agreement.
(B) The Company
shall have issued to Total a warrant in the form of
Exhibit D-2
attached hereto (the “
Total R&D Warrant
”
and, together with the Total Equity Funding Warrant, the “
Total Warrants
”), which warrant will be exercisable
for 2,000,000 shares of Common Stock at an exercise price of $0.01 per share; provided, however, that such Total R&D Warrant
shall only be exercisable if (1) the Company fails, as of March 1, 2017, to achieve a target production cash cost of less than
$2.00 per liter to manufacture distilled farnesene at hydrogenation grade, calculated with a cost of sugar at $0.19/lb and using
the methodology set forth in the cost model included as
Section 6(j)(i)
of the Disclosure Letter, and (2) the Total R&D
Warrant has been approved by a majority of the Company’s stockholders whose vote was counted at the Stockholders Meeting
in accordance with
Section 7.7
of this Agreement.
(ii)
Temasek Warrants
.
(A)
The Company shall have issued to Maxwell (Mauritius) Pte Ltd (“
Temasek
”) a warrant in the form of
Exhibit
E-1
attached hereto (the “
Temasek 2015 Warrant
”), which warrant will be exercisable for 14,677,861 shares
of Common Stock at an exercise price of $0.01 per share; provided, however, that the Temasek 2015 Warrant shall only be exercisable
if such warrant has been approved by a majority of the Company’s stockholders whose vote was counted at the Stockholders
Meeting in accordance with
Section 7.7
of this Agreement.
(B) The Company shall have issued
to Temasek a warrant in the form of
Exhibit E-2
attached hereto (the “
Temasek Funding Warrant
”), which
warrant will be exercisable at an exercise price of $0.01 per share for that number of shares of Common Stock determined based
on the following formula:
|
Number of Shares
|
=
|
0.306 * (A + B + C)
|
+
|
0.1333 * D
|
|
|
|
0.694
|
|
0.8667
|
For purposes
of the foregoing formula:
A = the number
of shares for which Total has exercised the Total Equity Funding Warrant.
B = the number
of additional shares for which the Tranche Notes may become exercisable as a result of a reduction to the conversion price of any
of such Tranche Notes subsequent to the date hereof pursuant to an amendment thereof or in accordance with the existing terms thereof
(including any reductions in the conversion prices of the Tranche Notes that result from the Exchange contemplated hereby or any
Offering).
C = that number
of additional shares in excess of 2,000,000, if any, for which the Total R&D Warrant becomes exercisable.
D = the number
of additional shares for which the Rule 144A Notes may become exercisable as a result of a reduction to the conversion price of
any of such Rule 144A Notes subsequent to the date hereof pursuant to an amendment thereof or in accordance with the existing terms
thereof;
provided, however,
that such number of shares shall be rounded down to the nearest whole number; provided, further that such Temasek Funding Warrant
shall only be exercisable if the Temasek Funding Warrant has been approved by a majority of the Company’s stockholders whose
vote was counted at the Stockholders Meeting in accordance with
Section 7.7
of this Agreement.
(C) The
Company shall have issued to Temasek a warrant in the form of
Exhibit E-3
attached hereto (the “
Temasek R&D
Warrant
” and, together with the Temasek 2015 Warrant and the Temasek Funding Warrant, the “
Temasek Warrants
”),
which warrant will be exercisable for up to 880,339 shares of Common Stock at an exercise price of $0.01 per share; provided, however,
that such Temasek R&D Warrant shall only be exercisable as to that number of shares of Common Stock equal to the product of
(1) 880,339 and (2) the quotient of (x) the number of shares for which Total has exercised the Total R&D Warrant divided by
(y) 2,000,000 shares of Common Stock; provided, further that such Temasek R&D Warrant shall only be exercisable if such warrant
has been approved by a majority of the Company’s stockholders whose vote was counted at the Stockholders Meeting in accordance
with
Section 7.7
of this Agreement.
(iii)
Section
6(j)(iii)
of the Disclosure Letter sets forth the number of shares for which the Warrants would be exercisable based on the
different Offering Prices set forth therein and subject to the assumptions set forth therein.
(k)
Voting Agreements
.
The Investors and such other stockholders of the Company holding in the aggregate a majority of the Company’s voting capital
stock entitled to vote at the Stockholders Meeting (after taking into account the Exchanges under this Agreement and any
bona fide equity financings consummated
by the Company on or prior to Closing) (the “
Voting Stockholders
”) shall have each entered into a voting agreement
with the Company in the form attached hereto as
Exhibit F
(the “
Voting Agreement
”) pursuant to which
the Investors and such stockholders shall agree to vote at the Stockholders Meeting all shares of the Company’s capital stock
held by such Investors or stockholders to approve the issuance of the Total Warrants and the Temasek Warrants and the Warrant Shares
issuable upon exercise of such Total Warrants and Temasek Warrants and the agreements related thereto. The Voting Stockholders
as of the date of this Agreement are set forth in
Section 6(k)
of the Disclosure Letter.
(l)
Minimum Temasek
Participation
. Total’s obligation to purchase the Shares and the Total Warrants in Exchange for the aggregate principal
amount of its Outstanding Convertible Notes set forth next to Total’s name on
Schedule I
to this Agreement is subject
to the condition that Temasek and/or its affiliates (i) Exchange at the Initial Closing and/or agree to Exchange at the Second
Closing at least in the aggregate $60,000,000 in original principal amount of their Outstanding Convertible Notes comprised of
“Tranche I Notes” and “Tranche II Notes” issued pursuant to that certain Securities Purchase Agreement
dated as of August 8, 2013, as amended, by and among the Company and the other parties thereto, plus approximately $11,017,582
of additional principal attributable to paid-in-kind interest, and (ii) enter into the Maturity Treatment Agreement with respect
to $10,000,000 aggregate principal amount of its Rule 144A Notes simultaneously upon the purchase by Total of the Shares and Warrants
on the Closing Date.
(m)
Total R&D
Notes
. Temasek’s obligation to purchase the Shares and the Temasek Warrants in Exchange for the aggregate principal amount
of its Outstanding Convertible Notes set forth next to Temasek’s name on
Schedule I
to this Agreement is subject to
the condition that (A) Total and the Company enter into that certain letter agreement dated as of the date hereof (the “
JVCO
Restructuring Agreement
”) between the Company and Total pursuant to which Total agrees to exchange (i) $5,000,000 in
principal amount of those certain 1.5% Senior Secured Convertible Notes issued by the Company to Total pursuant to that certain
Securities Purchase Agreement dated as of July 30, 2012 between the Company and Total (the “
R&D Notes
”),
plus any accrued and unpaid interest on all $75,000,000 in principal amount of R&D Notes currently outstanding and (ii) that
certain €50,000 Class A Note issued by the Company to Total on December 2, 2013 (the “
Class A Note
”) plus
any accrued and unpaid interest on such Class A Note, in each case as consideration for certain rights to be granted to Total in
connection with Total Amyris BioSolutions B.V., the joint venture between the Company and Total, (B) Total Exchanges $70,000,000
in principal amount of R&D Notes pursuant to this Agreement, and (C) enters into the Maturity Treatment Agreement with respect
to $9,705,000 aggregate principal amount of its Rule 144A Notes and approximately $17,432,374 aggregate principal amount of its
Tranche Notes simultaneously upon the purchase by Temasek of the Shares and Warrants on the Initial Closing Date.
(n)
Maturity Treatment
Agreement
. The Company shall have duly executed and delivered to the Investors the Maturity Treatment Agreement.
(o)
Financing
.
The Company shall have consummated an initial Offering pursuant to the Purchase Agreement and pursuant to which the Company shall
have raised in the aggregate at least $25,000,000 of gross proceeds (the “
Financing Milestone
”); provided that
the Total
Purchase Price set forth in this Agreement
shall not be considered for the purpose of determining the Company’s satisfaction of the Financing Milestone.
(p)
Antitrust
Approvals
. The Investors shall have obtained or deemed to have obtained under applicable laws any required approvals from antitrust,
competition or similar authorities with respect to the transactions contemplated hereby.
ARTICLE 7
OTHER AGREEMENTS OF THE PARTIES
7.1.
Securities
Laws Disclosure; Publicity
. Promptly after the Closing Date, the Company shall issue a press release (the “
Press Release
”)
reasonably acceptable to the Investors disclosing all material terms of the transactions contemplated hereby. On or before 5:30
p.m., New York City time, on the fourth trading day immediately following the execution of this Agreement, the Company will file
a Current Report on Form 8-K with the SEC describing the terms of the Transaction Agreements.
7.2.
Form D
.
The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and to provide a copy
thereof to the Investor (provided that the posting of the Form D on the SEC’s EDGAR system shall be deemed delivery of the
Form D for purposes of this Agreement).
7.3.
Removal
of Legend and Transfer Restrictions
. The Company hereby covenants with the Investors to, no later than three trading days following
the delivery by the Investor to the Company of a legended certificate representing Securities (endorsed or with stock powers attached,
signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer), in connection with the transfer
or sale of all or a portion of the Securities pursuant to (1) an effective registration statement that is effective at the time
of such sale or transfer, (2) a transaction exempt from the registration requirements of the Securities Act in which the Company
receives an opinion of counsel reasonably satisfactory to the Company that the Securities are freely transferable and that the
legend is no longer required on such stock certificate, or (3) an exemption from registration pursuant to SEC Rule 144, deliver
or cause the Company’s transfer agent to deliver to the transferee of the Securities or to the Investor, as applicable, a
new certificate representing such Securities that is free from all restrictive and other legends. The Company acknowledges that
the remedy at law for a breach of its obligations under this
Section 7.3
may be inadequate and agrees, in the event of a
breach or threatened breach by the Company of the provisions of this
Section 7.3
with respect to any Investor, the Investor
shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring
immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required.
7.4.
Subsequent
Equity Sales
. The Company shall not, and shall use its commercially reasonable efforts to ensure that no Affiliate of the Company
shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section
2
of the Securities Act) that will be integrated with the offer or sale of the Securities in a manner that
would require the registration under the
Securities Act of the sale of the Securities to the Investors, or that will be integrated with the offer or sale of the Securities
for purposes of the rules and regulations of any trading market such that it would require stockholder approval prior to the closing
of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
7.5.
Listing
.
The Company shall promptly take any action required to maintain the listing of all of the Shares and the Warrant Shares, once they
have been issued, upon each national securities exchange and automated quotation system, if any, upon which shares of Common Stock
are then listed (subject to official notice of issuance) and shall maintain, so long as any other shares of Common Stock shall
be so listed, such listing of all Shares from time to time issuable under the terms of the Transaction Agreements. The Company
shall take all actions within its control to comply with the reporting requirements of the Exchange Act and each applicable national
securities exchange and automated quotation system on which the Common Stock is listed. The Company shall make and keep public
information available, as those terms are understood and defined in SEC Rule 144, for so long as required in order to permit the
resale of the Securities pursuant to SEC Rule 144 and to file period reports with the SEC whether or not required to do so. The
Company shall not take any action which would be reasonably expected to result in the delisting or suspension of the Common Stock
on The NASDAQ Stock Market.
7.6.
Stockholders
Meeting
. The Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the
Company (the “
Stockholder Meeting
”), which initially shall be promptly called and held not later than October
31, 2015 (the “
Stockholder Meeting Deadline
”), a proxy statement substantially in the form which has been previously
reviewed by the Investors and a counsel of their choice, at the expense of the Company, soliciting each such stockholder’s
affirmative vote at the Stockholder Meeting for approval of resolutions (the “
Stockholder Resolutions
”) providing
for the Company’s issuance of all of the Securities as described in the Agreement in accordance with applicable law and rules
and regulations of The NASDAQ Stock Market, including the issuance of the Warrant Shares upon exercise of the Warrants (such affirmative
approval being referred to herein as the “
Stockholder Approval
” and the date such approval is obtained, the
“
Stockholder Approval Date
”), and the Company shall use its best efforts to solicit its stockholders’
approval of the Stockholder Resolutions and to cause the Board to recommend to the stockholders that they approve the Stockholder
Resolutions. The Company shall be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If,
despite the Company’s best efforts, the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline,
the Company shall cause an additional Stockholder Meeting to approve the Stockholder Resolutions to be called and held at each
otherwise convened special or annual meeting of the stockholders of the Company, which special or annual meetings must be called
and held at least once in each six-month period after the Stockholder Meeting Deadline until such Stockholder Approval is obtained,
provided that if the Board does not recommend to the stockholders that they approve the Stockholder Resolutions at any such Stockholder
Meeting and the Stockholder Approval is not obtained, the Company shall cause an additional Stockholder Meeting to be held each
calendar quarter after the Stockholder Meeting Deadline until such Stockholder Approval is obtained.
7.7.
JVCO Restructuring
Agreement
. The Company shall perform its obligations under the JVCO Restructuring Agreement.
7.8.
Existing
Temasek Warrant
. The Company hereby acknowledges that effective upon the Closing, that certain Warrant to Purchase Stock issued
by the Company to Temasek on October 16, 2013 (the “
Existing Temasek Warrant
”) shall become exercisable in full.
For the avoidance of doubt, upon the consummation of the Exchange contemplated hereby, the Company agrees and acknowledges that
the Exercise Condition (as defined in the Existing Temasek Warrant) shall be satisfied.
7.9.
Registration
.
The Company hereby agrees (i) that within ten (10) business days following the Closing it will either file a registration statement
on Form S-3 (the “
Registration Statement
”) with the SEC covering all of the Shares and Warrant Shares or amend
that certain existing registration statement on Form S-3 filed on May 21, 2015 with the SEC (the “
Post-Effective Amendment
”)
such that the Shares and Warrant Shares are covered thereby, and (ii) that it will use its commercially reasonable efforts to cause
the Registration Statement or the Post-Effective Amendment to be declared effective by the SEC as soon as practicable after the
filing thereof.
7.10.
Proxy
Filing
. The Company shall prepare and file with the SEC, within ten (10) business days after the date of this Agreement, a
proxy statement in preliminary form relating to the Stockholders Meeting (as defined in
Section 7.6
) (such proxy statement,
including any amendment or supplement thereto, the “
Proxy Statement
”). The Company shall cause the Proxy Statement
to comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder.
The Company shall cause the definitive Proxy Statement to be mailed as promptly as possible after the date the staff of the SEC
advises that it has no further comments thereon or that the Company may commence mailing the Proxy Statement.
7.11.
Voting
Agreements
. Until the Stockholder Approval is obtained, the Company shall not take any action, including the issuance of shares
of Common Stock pursuant to any Offering, that would result in the Voting Stockholders and any additional stockholder with whom
the Company enters into a Voting Agreement to hold less than a majority of the Company’s outstanding voting stock entitled
to vote at the Stockholders Meeting (after taking into account the Exchanges under this Agreement and any bona fide equity financings
consummated by the Company on or prior to the date of the Stockholders Meeting).
7.12.
Purchase
of Substantial Assets
. For so long as any Tranche Notes remain outstanding, the Company will not, and will not permit its subsidiaries
to, without the prior written consent of Temasek, purchase assets in one transaction or a series of related transactions in an
amount greater than $20,000,000.
7.13.
Limitation
on Debt and Liens
. Capitalized terms used in this Section 7.13 but not otherwise defined herein shall have the meaning given
to such terms in the Tranche I Notes and any waivers with respect to Section 6 of the Tranche Notes received by the Company on
or prior to the date hereof shall be deemed as effective waivers for purposes of this Section 7.13. For so long as any Tranche
Notes are outstanding, the Company will not, and will not permit its
Subsidiaries to, without the prior written
consent of each of the Investors, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly
or indirectly liable, contingently or otherwise, with respect to any Debt, and the Company will not issue any Disqualified Stock
and the Company will not permit its Subsidiaries to issue shares of preferred stock except for:
(a) Debt in an amount
outstanding at any time not to exceed the greater of (i) $200 million in aggregate principal amount or (ii) 50% of the Company’s
total consolidated assets (as set forth on its most recent balance sheet prepared in accordance with GAAP and filed with the Securities
and Exchange Commission after giving effect to any reductions or additions to assets in accordance with GAAP since the date of
such balance sheet) (and provided that Debt incurred pursuant to this clause (a) that is secured by a Lien on assets of the Company
shall not exceed the greater of (i) $125 million in aggregate principal amount or (ii) 30% of the Company’s total consolidated
assets (as set forth on its most recent balance sheet prepared in accordance with GAAP);
(b) Debt in existence
on the Issue Date or which as of the Issue Date the Company is obligated to issue thereafter, including Total Notes pursuant to
the Total Purchase Agreement;
(c) the incurrence
by the Company or any of its Subsidiaries of Debt represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction,
installation or improvement of property, plant or equipment used in the business of the Company or any of its Subsidiaries;
(d) Debt of the Company
that is (i) contractually subordinated in right of payment to the Notes, (ii) matures 91 days after the Notes and (iii) is less
than $50 million in aggregate principal amount at any one time outstanding;
(e) Debt of the Company
(A) in respect of performance, surety or appeal bonds or letters of credit in the ordinary course of business, or (B) under interest
rate, currency, commodity or similar hedges, swaps and other derivatives entered into with one or more financial institutions that
is designed to protect the Company against fluctuations in interest rates or currency exchange rates, commodity prices or other
market fluctuations and is not entered into for speculative purposes; and
(f) Debt which is
exchanged for or the proceeds of which are used to refinance or refund, or any extension or renewal of (each a “refinancing”),
(1) the Notes or (2) Debt incurred pursuant to clause (b) of this paragraph, and (3) Debt incurred pursuant to clause (c) of this
paragraph, in each case in an aggregate principal amount not to exceed the principal amount of the Debt so refinanced (together
with any accrued interest and any premium and other payment required to be made with respect to the Debt being refinanced or refunded,
and any fees, costs, expenses, underwriting discounts or commissions and other payments paid or payable with respect to the Debt
incurred pursuant to this clause (f)); provided, however, that (A) Debt, the proceeds of which are used to refinance the Notes,
or Debt which is pari passu with or subordinate in right of payment to the Notes, shall only be permitted if (x) in the case of
any
refinancing of the Notes or Debt which
is pari passu to the Notes, the refinancing Debt is Incurred by the Company and made pari passu to the Notes or subordinated to
the Notes, and (y) in the case of any refinancing of Debt which is subordinated to the Notes, the refinancing Debt is incurred
by the Company and is subordinated to the Notes in a manner that is at least as favorable to the Holders as that of the Debt refinanced;
(B) refinancing Debt with respect to Debt incurred pursuant to clause (c) of this paragraph shall not be secured by a Lien on any
assets other than the assets securing the Debt so refinanced, and any improvements or additions thereto, and (C) the refinancing
Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, does not have a final
maturity prior to the final maturity of the Debt being refinanced.
For purposes of determining
compliance with this Section 7.13, in the event that an item of Debt meets the criteria of more than one of the types of Debt described
in the above clauses the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debt.
For so long as any Tranche
Notes remain outstanding, the Company will not create, incur, assume or suffer to exist any Lien of any kind on any asset now owned
or hereafter acquired, except for (a) the Liens described in Section 7.13(a) and 7.13(c) (including the refinancing of Liens described
in Section 7.13(c) pursuant to Section 7.13(f)), (b) Permitted Liens, and (c) any Liens in existence on the Issue Date (including
the refinancing thereof pursuant to Section 7.13(f)).
7.14.
Tranche
I Notes Waiver
. Total hereby waives any adjustment to the conversion price of the Tranche I Notes held by Total as a result
of the Exchanges contemplated hereby pursuant to Section 1(e) of the Tranche I Note held by Total. This waiver shall apply only
with respect to the Exchanges contemplated hereby and the conversion price of the Tranche I Note held by Total shall otherwise
remain subject to adjustment in accordance with the terms thereof.
7.15.
Cooperation
.
In relation to any notification from the German Federal Cartel Office (Bundeskartellamt) (the “
FCO
”) and subsequent
merger investigation process conducted by the FCO, the parties hereto agree that they shall cooperate with each other. Such cooperation
shall include, without limitation (subject to appropriate protection in respect of confidential information) the provision of information,
the communication of documents and the submission of arguments in good time. In particular, the parties shall:
(a) Promptly notify
and discuss with the other parties sufficiently in advance of any notification, submission, response to a request for information
or other communication which it proposes to make or submit to the FCO, and at the same time provide the other parties with copies
of drafts thereof and any supporting documentation or information reasonably requested by the other parties;
(b) Take due consideration
of any reasonable comments which the other parties may have in relation to any such draft notification, submission, response to
a request for further information or other communication prior to making the relevant notification, submission, response or other
communication;
(c)
Keep the other parties fully informed as to the progress of any notification made to the FCO;
(d)
Where reasonably requested by the other parties, permit the other parties or its advisers to attend all meetings with
the FCO and, where appropriate, to make oral submissions at such meetings; and
(e)
Keep the other parties informed of any written or oral contact which any party may have with the FCO (whether instigated
by the such party or the FCO in relation to the merger investigation process).
7.16.
Withholding
Tax
. Any and all payments by the Company (including the transfer of any and all Securities) pursuant to this Agreement shall
be made without deduction or withholding for any taxes, except as required by applicable law. The Company shall deduct and withhold
the US federal withholding tax imposed on the interest payable to or for the account of Temasek with respect to the Outstanding
Convertible Notes, and shall timely pay the full amount of tax to the relevant governmental authority in accordance with applicable
law and the amount of such payment (including the amount of any and all Securities to be delivered) by the Company shall be increased
as necessary so that after the payment of applicable US federal withholding tax has been made (including such deductions and withholdings
applicable to additional sums payable under this Section) Temasek receives the same amount (including the amount of any and all
Securities) it would have received had no such deduction or withholding been made. As soon as practicable after any payment of
taxes by the Company to a governmental authority pursuant to this Section, the Company shall deliver to the Investors the original
or a certified copy of a receipt issued by such governmental authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the Investors.
ARTICLE 8
MISCELLANEOUS
8.1.
Survival
.
The representations, warranties and covenants contained herein shall survive the execution and delivery of this Agreement and the
sale of the Securities.
8.2.
Indemnification
.
(a)
Indemnification
of Investors
. The Company agrees to indemnify and hold harmless each Investor and its Affiliates and their respective directors,
officers, trustees, members, managers, employees and agents, and their respective successors and assigns, from and against any
and all losses, claims, damages, taxes (including any interest, additions to tax or penalties applicable thereto), liabilities
and expenses (including without limitation reasonable professional and attorney fees and disbursements and other expenses reasonably
incurred in connection with investigating, preparing or defending any tax returns, action, claim or proceeding, pending or threatened
and the costs of enforcement thereof) (collectively, “
Losses
”) to which such Person may become subject as a
result of any breach of representation, warranty, covenant or agreement made by or to be performed on the part of the Company under
this
Agreement, and will reimburse any such
Person for all such Losses as they are incurred by such Person.
(b)
Conduct of
Indemnification Proceedings
. Any Person entitled to indemnification hereunder shall (i) give prompt notice to the Company of
any claim with respect to which it seeks indemnification and (ii) permit the Company to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party;
provided
that any Person entitled to indemnification hereunder shall have
the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel
shall be at the expense of such Person unless (a) the Company has agreed to pay such fees or expenses, or (b) the Company shall
have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (c) in the reasonable
judgment of any such Person, based upon written advice of its counsel, a conflict of interest exists between such Person and the
Company with respect to such claims (in which case, if the Person notifies the Company in writing that such Person elects to employ
separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such claim on behalf
of such Person); and
provided
,
further
, that the failure of any indemnified party to give notice as provided herein
shall not relieve the Company of its obligations hereunder, except to the extent that such failure to give notice shall materially
adversely affect the Company in the defense of any such claim or litigation. It is understood that the Company shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties. The Company will not, except with the consent of the indemnified party, which consent shall
not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. No indemnified party will, except with the consent of the Company, consent to
entry of any judgment or enter into any settlement.
8.3.
Assignment;
Successors and Assigns
. This Agreement may not be assigned by either party without the prior written consent of the other party;
provided
, that this Agreement may be assigned by any Investor to the valid transferee of any security purchased hereunder
if such security remains a “restricted security” under the Securities Act. This Agreement and all provisions thereof
shall be binding upon, inure to the benefit of, and are enforceable by the parties hereto and their respective successors and permitted
assigns.
8.4.
Notices
.
All notices, requests, and other communications hereunder shall be in writing and will be deemed to have been duly given and received
(a) when personally delivered, (b) when sent by facsimile upon confirmation of receipt, (c) one business day after the day on which
the same has been delivered prepaid to a nationally recognized courier service, or (d) five business days after the deposit in
the United States mail, registered or certified, return receipt requested, postage prepaid, in each case addressed to, as to the
Company, Amyris, Inc., 5885 Hollis Street, Suite 100, Emeryville, CA 94608, Attn: General Counsel, facsimile number: (510) 740-7416,
with a copy to Fenwick & West LLP, 801 California Street, Mountain View, CA 94041, Attn: , Esq., facsimile number: (650) 938-5200,
and as to the Investor at the address and facsimile number set forth below the Investor’s signature on the signature pages
of this Agreement. Any party hereto from time to time may change its address, facsimile number, or other information for the purpose
of notices to that party by giving notice specifying such
change to the other parties hereto. Each
Investor and the Company may each agree in writing to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures reasonably approved by it; provided that approval of such procedures may be limited to particular notices
or communications.
8.5.
Governing
Law
. This Agreement, and the provisions, rights, obligations, and conditions set forth herein, and the legal relations between
the parties hereto, including all disputes and claims, whether arising in contract, tort, or under statute, shall be governed by
and construed in accordance with the laws of the State of Delaware without giving effect to its conflict of law provisions.
8.6.
Dispute Resolution
.
8.6.1
Escalation
.
Prior
to commencing any arbitration in connection with any dispute, controversy or claim arising out of relating to this Agreement or
the breach, termination or validity thereof (“
Dispute
”), the parties shall first engage in the procedures set
forth in this
Section 8.6.1
. Such Dispute shall first be referred by written notice of the Dispute (the “
Dispute
Notice
”) from any party to its executive officers and to the executive officers of each party that the party sending
the Dispute Notice has the Dispute with (the “
Executive Officers
”) and the Executive Officers shall attempt
to resolve such Dispute within ten (10) days after a party sent the Dispute Notice to the Executive Officers by meeting (either
in person or by video teleconference, unless otherwise mutually agreed) at a mutually acceptable time, and thereafter as often
as they reasonably deem necessary, to exchange relevant information and to attempt to resolve the Dispute. If the Dispute has not
been resolved within thirty (30) days after the Dispute Notice has been sent by a party to its Executive Officers and to the Executive
Officers of the other party or parties, then either the party that has sent the Dispute Notice, or the party or parties that have
received the Dispute Notice may, by written notice to the other party or parties, elect to submit the Dispute to arbitration pursuant
to
Section 8.6.2
. If a party’s Executive Officer intends to be accompanied at a meeting by an attorney, the Executive
Officers of the other party shall be given at least seventy-two (72) hours’ notice of such intention and may also be accompanied
by an attorney. All negotiations conducted pursuant to this
Section 8.6.1
, and all documents and information exchanged by
the parties in furtherance of such negotiations, (i) are the Confidential Information
(as defined in
Section 8.6.4
)
of the parties, and (ii) shall be inadmissible in any arbitration conducted pursuant to this
Section 8.6
or other proceeding
with respect to a Dispute.
8.6.2
Arbitration
.
(a) All Disputes
arising out of, relating to or in connection with this Agreement, which have not been resolved pursuant to
Section 8.6.1
,
shall be submitted to mandatory, final and binding arbitration before an arbitral tribunal pursuant to the Rules of Arbitration
of the International Court of Arbitration of the International Chamber of Commerce (the “
ICC Rules
”), in effect
at the time of filing of the request for arbitration, as modified hereby. The International Court of Arbitration of the International
Chamber of Commerce (the “
ICC Court
”) shall administer the arbitration.
(b) There shall be
three (3) arbitrators. If there are two parties to the arbitration, then one arbitrator shall be nominated by the initiating claimant
party in the request for arbitration, the second nominated by the respondent party within thirty (30) days of receipt of the request
for arbitration, and the third (who shall act as chairperson of the arbitral tribunal) nominated by the two (2) party-appointed
arbitrators within thirty (30) days of the selection of the second arbitrator. In the event that either party fails to nominate
an arbitrator, or if the two party-appointed arbitrators are unable or fail to agree upon the third arbitrator, within the time
periods specified herein, the ICC Court shall appoint the remaining arbitrator(s) required to comprise the arbitral tribunal. If
there are more than two parties to the arbitration, the claimant(s) shall jointly nominate one arbitrator and the respondent(s)
shall jointly nominate one arbitrator, within thirty (30) days of receipt by respondent(s) of a copy of the request for arbitration.
For avoidance of doubt, where there are two or more claimant(s), none of the claimants has to nominate an arbitrator in their request
for arbitration. The third arbitrator (who shall act as chairperson of the arbitral tribunal) shall be nominated by the two (2)
party-appointed arbitrators within thirty (30) days of the nomination of the second arbitrator. If either the claimant(s) or the
respondent(s) fail to timely nominate an arbitrator, or if the two party-appointed arbitrators are unable or fail to agree upon
the third arbitrator, within the time periods specified herein, then on the request of any party, the ICC Court shall appoint the
remaining arbitrator(s) required to comprise the arbitral tribunal. The claimant in the arbitration shall provide a copy of the
request for arbitration to the respondent at the time such request is submitted to the Secretariat of the International Chamber
of Commerce.
(c) Each arbitrator
chosen under this Section shall speak, read, and write English fluently and shall be either (i) a practicing lawyer who has specialized
in business litigation with at least ten (10) years of experience in a law firm, (ii) an arbitrator experienced with commercial
disputes, or (iii) a retired judge.
(d) The place of
arbitration shall be Paris, France. The language of the arbitral proceedings and of all submissions and written evidence and any
award issued by the arbitral tribunal shall be English. Any party may, at its own expense, provide for translation of any documents
submitted in the arbitration or translation or interpretation of any testimony taken at any hearing before the arbitral tribunal.
For the avoidance of doubt, no party is under any obligation to provide for translation of any documents submitted in the arbitration
or translation or interpretation of any testimony taken at any hearing before the arbitral tribunal.
(e) The award shall
be in writing, state the reasons for the award and be final and binding. The arbitral tribunal shall, subject to its discretion,
endeavor to issue its award within four (4) months of the end of the hearing, or as soon as possible thereafter. It is expressly
understood and agreed by the parties that the rulings and award of the arbitral tribunal shall be binding on the parties, their
successors and permitted assigns. Judgment on the award rendered by the arbitral tribunal may be entered in any court having competent
jurisdiction.
(f) Each party shall
bear its own costs and expenses and attorneys’ fees, and the party that does not prevail in the arbitration proceeding, as
determined by the arbitral tribunal, shall pay the arbitrator’s fees and any administrative fees of arbitration. All proceedings
and decisions of the tribunal shall be deemed Confidential Information of each of the Parties, and shall be subject to
Section
8.6.4
.
8.6.3
Interim Relief
.
(a) The arbitral
tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including
conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal may, to the extent permitted
by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such.
(b) In addition to
the remedies and relief available under
Section 8.6.3(a)
above and the ICC Rules, and subject to
Section 8.6.2
above,
each party expressly retains the right at any time to apply to any court of competent jurisdiction for interim, injunctive, provisional
or conservatory relief, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible
with the agreement to arbitrate or a waiver of the right to arbitrate.
(c) For purposes
of
Section 8.6.3(b)
, each party hereby irrevocably and unconditionally consents and agrees that any action for interim,
provisional and/or conservatory relief brought against it with respect to its obligations or liabilities under or arising out of
or in connection with this Agreement may be brought in the courts located in Paris, France or the state or federal courts located
in the Borough of Manhattan, New York City, New York, and each party hereby irrevocably accepts and unconditionally submits to
the non-exclusive jurisdiction of the aforesaid courts
in personam
, with respect to any such action for interim, provisional
or conservatory relief. In any such action, each of the parties irrevocably waives, to the fullest extent they may effectively
do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right
of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing
of any such action or proceeding in the courts located in Paris, France or the state or federal courts located in the Borough of
Manhattan, New York City, New York.
(d) Each party hereby
irrevocably consents and agrees that the service of any and all legal process, summons, notices and documents which may be served
in any action arising under this Agreement may be made by sending a copy thereof by express courier to the party to be served at
the address set forth in the notice provision of this Agreement, with such service to be effective upon receipt. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
(e) Each party hereto
hereby irrevocably waives any and all right to trial by jury in any legal proceeding brought pursuant to this
Section 8.6
.
8.6.4
Confidentiality
.
The Company and each
of the Investors agree to use, and to use its reasonable best efforts to ensure that its authorized representatives use the same
degree of care as such party uses to protect its own confidential information (but in no event less than reasonable care) to keep
confidential the information provided to it pursuant to this Agreement, and any other information furnished to it which the disclosing
party identifies as being confidential or proprietary (so long as such information is not in the public domain) or, under the circumstances
surrounding disclosure, such party knows or has reason to know should be treated as confidential
(“
Confidential Information
”),
unless otherwise required by law (provided that a party shall, to the extent permitted by law, promptly notify the other party
of any required disclosure and take reasonable steps to minimize the extent of any such required disclosure); provided, however,
that Confidential Information shall not include information, that (i) was in the public domain prior to the time it was furnished
to such recipient, (ii) is at the time of the alleged breach (through no willful or improper action or inaction by such recipient)
generally available to the public, (iii) was rightfully disclosed to such recipient by a third party without restriction or (iv)
as of the time of the alleged breach, had been independently developed (as evidenced by written records) without any use of Confidential
Information.
8.7.
Severability
.
In the event that any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid,
or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected except to
the extent necessary to delete such illegal, invalid, or unenforceable provision unless that provision held invalid shall substantially
impair the benefits of the remaining portions of this Agreement.
8.8.
Headings
.
The headings in this Agreement are for convenience of reference only and shall not constitute a part of this Agreement, nor shall
they affect its meaning, construction, or effect.
8.9.
Entire
Agreement
. This Agreement embodies the entire understanding and agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to the subject matter hereof.
8.10.
Finder’s
Fee
. The Company agrees that it shall be responsible for the payment of any placement agent’s fees, financial advisory
fees, or brokers’ commissions (other than for Persons engaged by Investor) relating to or arising out of the transactions
contemplated hereby. The Company shall pay, and hold each Investor harmless against, any liability, loss or expense (including,
without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any claim for any such fees or
commissions.
8.11.
Expenses
.
Each party will bear its own costs and expenses in connection with this Agreement.
8.12.
Further
Assurances
. The parties agree to execute and deliver all such further documents, agreements and instruments and take such other
and further action as may be necessary or appropriate to carry out the purposes and intent of this Agreement.
8.13.
Counterparts
.
This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed
by each party hereto and delivered to the other party. Facsimile signatures shall be deemed originals for all purposes hereunder.
8.14.
Independent
Nature of Investors’ Obligations and Rights
. The obligations of each Investor under this Agreement are several and not
joint with obligations of each other Investor, and no Investor shall be responsible in any way for the performance of the obligations
of any
other Investor under this Agreement or
any other Transaction Agreements. The decision of each Investor to purchase Securities pursuant to this Agreement has been made
by such Investor independently of any other Investor and independently of any information, materials, statements or opinions as
to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise)
or prospects of the Company or any of its subsidiaries which may have been made or given by any other Investor or by any agent
or employee of any other Investor, and no Investor or any of its agents or employees shall have any liability to any other Investor
(or any other Person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein
or in any ancillary document, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors
as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in
any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Agreement. Each
Investor acknowledges that no other Investor has or will be acting as agent of such Investor in enforcing its rights under this
Agreement or any other Transaction Agreements. Each Investor shall be entitled to independently protect and enforce its rights,
including without limitation the rights arising out of this Investor, and it shall not be necessary for any other Investor to be
joined as an additional party in any proceeding for such purpose.
8.15.
Waiver
of Conflicts; Representation by Counsel
. Each Investor and the Company is aware that Fenwick & West LLP (“
F&W
”)
may have previously performed and may continue to perform certain legal services for certain of the Investors in matters unrelated
to F&W’s representation of the Company. In connection with its Investor representation, F&W may have obtained confidential
information of such Investors that could be material to F&W’s representation of the Company in connection with negotiation,
execution and performance of this Agreement. By signing this Agreement, each Investor and the Company hereby acknowledges that
the terms of this Agreement were negotiated among the Investors and the Company and are fair and reasonable and waives any potential
conflict of interest arising out of such representation (including any future representation of such parties) or such possession
of confidential information. Each Investor and the Company further represents that it has had the opportunity to be, or has been,
represented by separate independent counsel in connection with the transactions contemplated by this Agreement, including, without
limitation, the waivers contained in this
Section 8.15
.
[Signature pages follows]
This Exchange Agreement is hereby confirmed
and accepted by the Company as of July
26,
2015.
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AMYRIS, INC.
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By:
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/s/ John Melo
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Name:
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Title:
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[SIGNATURE PAGE TO AMYRIS, INC. EXCHANGE
AGREEMENT]
PURCHASERS
U.S. $____________
Total Purchase Price
(U.S. $___ per Share)
Number of Shares: ______
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Total Energies Nouvelles Activities USA
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(f.k.a. Total Gas & Power USA, SAS)
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By:
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/s/ Bernard Clement
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(signature)
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Name:
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BERNARD CLEMENT
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(printed name)
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Title
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PRESIDENT
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Address
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Facsimile No:
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E-mail Address
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[SIGNATURE PAGE TO AMYRIS, INC. EXCHANGE AGREEMENT]
PURCHASERS
U.S. $____________
Total Purchase Price
(U.S. $___ per Share)
Number of Shares: ______
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Maxwell (Mauritius) Pte Ltd
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By:
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/s/ Poy Weng Chuen
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(signature)
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Name:
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POY WENG CHUEN
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(printed name)
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Title
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DIRECTOR
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Address
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Fax:
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E-mail
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[SIGNATURE PAGE TO AMYRIS, INC. EXCHANGE
AGREEMENT]
Schedule
I
Schedule of Investors
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Investor
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Shares
Purchased
|
Total Equity
Funding
Warrants
Purchased
|
Warrant Shares
Issuable Upon
Exercise of Total
Equity Funding
Warrants
|
R&D
Warrants
Purchased
|
Warrant Shares
Issuable Upon
Exercise of
R&D Warrants
|
Temasek
2015
Warrant
Purchased
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Warrant Shares
Issuable Upon
Exercise of
Temasek 2015
Warrants
|
Temasek
Funding
Warrants
Purchased
|
Warrant Shares
Issuable Upon
Exercise of
Temasek
Funding
Warrants
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Aggregate
Principal Amount
of Outstanding
Convertible Notes
Exchanged for
Shares and
Warrants
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Total Purchase
Price
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Maxwell (Mauritius) Pte Ltd
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30,860,633
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-
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-
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880,339
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880,339
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14,677,861
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14,677,861
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To be determined in accordance with Section 6(j)(ii)(B)
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To be determined in accordance with Section 6(j)(ii)(B)
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$70,979,458.00
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$70,979,458.00
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Total Energies Nouvelles ActivitésUSA
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30,434,782
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To be determined in accordance with Section 6(j)(i)(A)
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To be determined in accordance with Section 6(j)(i)(A)
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2,000,000
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2,000,000
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-
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-
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-
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-
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$70,000,000.00
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$70,000,000.00
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TOTAL
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61,295,415
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2,880,339
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2,880,339
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14,677,861
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14,677,861
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$140,979,458.00
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$140,979,458.00
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Schedule I-A
Schedule
of Investors
|
Investor
|
Shares
Purchased
|
Aggregate
Amount of
Outstanding
Convertible Notes
Exchanged for
Shares and
Warrants
|
Total Purchase
Price
|
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Maxwell (Mauritius) Pte Ltd
|
28,800,596
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$66,241,371
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$66,241,371
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Total Energies Nouvelles ActivitésUSA
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24,254,811
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$55,786,065
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$55,786,065
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TOTAL
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53,055,407
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$122,027,435
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$122,027,435
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Schedule I-B
Schedule of Investors
|
Investor
|
Shares Purchased
|
Aggregate
Amount of
Outstanding
Convertible Notes
Exchanged for
Shares and
Warrants
|
Total Purchase
Price
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Maxwell (Mauritius) Pte Ltd
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2,060,037
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$4,738,087
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$4,738,087
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Total Energies Nouvelles ActivitésUSA
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6,179,971
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$14,213,935
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$14,213,935
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TOTAL
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8,240,008
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$18,952,03
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$18,952,03
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Exhibit A
RIGHTS AGREEMENT AMENDMENT
Exhibit B
PURCHASER SUITABILITY QUESTIONNAIRE
FOR
AMYRIS, INC.
This Questionnaire is to be completed by
each
ENTITY
(trust, corporation, partnership or other organization) purchasing securities of Amyris, Inc., a Delaware
corporation (the "
Company
"). The purpose of this Questionnaire is to assure the Company that each proposed
investor will meet certain suitability standards in connection with investment in the Company and the purchase of shares (“
Shares
”)
of the Company’s Common Stock, $0.0001 par value per share (the "
Common Stock
") and warrants to purchase
Shares of the Company’s Common Stock (the “Warrants,” together with the Shares the “
Offered Securities
”),
including those imposed by applicable state and federal securities laws and the regulations under those laws.
If the answer to any question is "None"
or "Not Applicable," please so state. If more space is needed for any answer, additional sheets may be attached.
Your answers will be kept confidential
at all times. However, by signing this Questionnaire, you agree that the Company may present this Questionnaire to such parties
as it deems appropriate to establish the availability of exemptions from registration or qualification requirements under federal
and state securities laws.
1.
IDENTIFICATION
|
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1.1
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Name(s) in which the Offered Securities are to be registered:
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1.2
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Tax Identification Number:
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1.3
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Address of principal place of business:
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1.4
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Telephone number:___________________________________________
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1.5
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Jurisdiction of formation or of incorporation (Name the State or Country):
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1.6
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Form of entity (e.g., corporation, general partnership, limited partnership, trust, etc.):
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1.7
|
Nature of business (e.g., investment, banking, manufacturing, venture capital investment fund,
etc.):
|
2.
ACCREDITATION
|
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2.1
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Amount of the proposed investment: $ ____________________________
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2.2
|
Is the entity's cash flow from all sources sufficient to satisfy its current needs, including possible contingencies, such
that the entity has no need for liquidity in this proposed investment?
|
Yes_____ No_____
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2.3
|
Was the entity specifically formed for the purpose of investing in the Company? Yes_____ No_____
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2.4
|
Does the entity have the ability to bear the economic risk of the investment, i.e., can the entity afford to lose its entire
investment?
|
Yes_____ No_____
|
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2.5
|
Is the entity an employee benefit plan governed by the Employee Retirement Income Security Act of 1974 (a 401(k) Plan, Keogh
Plan, pension plan, etc., maintained by an employer for its employees)?
|
Yes_____ No_____
IF YES
, please indicate which, if any, of the
following categories accurately describes the entity:
_____ the employee benefit plan
has total assets in excess of $5,000,000.
_____ the plan is a self-directed
plan with investment decisions made solely by persons listed in
Section 2.6
below or who are individuals, and each such
individual has a net worth in excess $1,000,000 or had an individual income in excess of $200,000 in each of the two most recent
years and has a reasonable expectation of reaching the same income level in the current year.
_____ investment decisions are
made by a plan fiduciary which is either a bank, savings and loan association, insurance company or registered investment advisor.
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2.6
|
Please indicate which, if any, of the following categories accurately describes the entity:
|
_____ A bank.
_____ A savings and loan association.
_____ A broker-dealer registered under Section 15
of the Securities Exchange Act of 1934.
_____ An insurance company.
_____ An investment company registered under the Investment
Company Act of 1940 or a
business development company as defined
in Section 2(a)(48) of that Act.
_____ A Small Business
Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment
Act of 1958.
_____
A private business development company defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
_____
An organization described in Section 501(c)(3) of the Internal Revenue Code with total assets in excess of $5,000,000 not formed
for the purpose of investing in the Company.
_____
A corporation with total assets in excess of $5,000,000, not formed for the purpose of investing in the Company.
_____
A partnership with total assets in excess of $5,000,000, not formed for the purpose of investing in the Company.
_____
A Massachusetts or similar business trust with total assets in excess of $5,000,000, not formed for the purpose of investing in
the Company.
_____
Any other trust with total assets in excess of $5,000,000, not formed for the purpose of investing in the Company.
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2.7
|
Please indicate if one of the following describes the equity owners of the entity:
|
_____
Each equity owner of the entity (i.e., all shareholders, all general and/or limited partners or all beneficiaries, as applicable)
is an individual whose net worth or joint net worth with his or her spouse exceeds $1,000,000.
_____
Each equity owner of the entity is an individual who had a personal income in excess of $200,000 in each of the two (2) most recent
years or joint income with that person's spouse in excess of $300,000 in each of those years and reasonably expects to reach the
same income level in the current year.
_____
Each equity owner of the entity is an entity described in at least one category of Question
2.6 above.
_____
Although not all equity owners are described in the same category above in this Question 2.7, each equity owner is described in
at least one such category.
|
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2.8
|
Please indicate which of the following also describes the equity owners of the entity:
|
_____
Each equity owner of the entity has, by reason of his, her or its business and financial experience, the capacity to evaluate the
merits and risks of the entity's proposed investment and to protect his, her or its own interests in connection with the investment.
_____
Each of the equity owners of the entity is able to bear the economic risk of the entity's investment, i.e., can afford loss of
the entity's entire investment.
_____
The beneficial interest of each equity owner in the entity's proposed investment is less than 10% of such equity owner's net worth,
or joint net worth with his or her spouse.
_____
Although not all equity owners are described in the same category above in this Question 2.8, each equity owner is described in
at least one such category.
3.
ADDITIONAL INFORMATION
|
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3.1
|
Has your entity previously invested in private placements of securities of newly-formed, non-public
companies or companies without a history of significant profits or earnings?
|
Never _______ Rarely _______ On
Several Occasions _______
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3.2
|
Does your entity, by reason of its business and financial knowledge and experience, have the capacity
to evaluate the merits and risks of the entity's proposed investment and to protect the entity's own interests in connection with
its investment in the Company?
|
Yes _____ No _____
IF YES
, please describe
the business and financial knowledge and experience, indicating factual basis for your conclusion that the entity has such capacity.
|
|
3.3
|
Do the persons responsible for making the investment decision for the entity, by reason of their
business and financial knowledge and experience, have the capacity to evaluate the merits and risks of the entity's proposed investment?
|
Yes _____ No _____
IF YES
, please describe
the business and financial knowledge and experience, indicating factual basis for your conclusion that those persons have such
capacity.
|
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3.4
|
If you have used the services of a securities broker or dealer or a finder in submitting subscription
documentation for the Shares, please identify the broker, dealer or finder:
|
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3.5
|
Are you relying on the business or financial experience of an accountant, attorney or other professional
advisor in evaluating the merits and risks of this investment in order to protect your own interest?
|
Yes_____ No_____
IF YES
, please (a) have
your advisor complete the Company's form of Advisor's Questionnaire and submit it with this Questionnaire, and (b) identify the
advisor.
Name of professional advisor: _____________________________________________________
4.
EXECUTION
The information provided
in this Questionnaire is true and complete as of the date provided below in all material respects and the undersigned recognizes
that the Company is relying on the truth and accuracy of such information. The undersigned agrees to notify the Company promptly
of any changes in the foregoing information that may occur prior to the closing of the sale of Shares of the Company.
Name of Entity:
(Please Print or Type)
By:________________________________________________________
(Signature)
Name:______________________________________________________
(Please Print or Type)
Title:_______________________________________________________
(Please Print or Type)
Date:_______________________________________________________
Exhibit C
OPINION OF COMPANY COUNSEL
July 29, 2015
To the Investors of Common Stock of
Amyris, Inc. Who are Listed as Investing
on the Date Hereof on the Signature Pages to the Exchange Agreement
Ladies and Gentlemen:
We have acted as counsel
for Amyris, Inc., a Delaware corporation (the “
Company
”), in connection with the sale on the date hereof
by the Company to you of 61,295,415 shares (the “
Shares
”) of the Company's Common Stock (“
Common
Stock
”) and warrants to purchase shares of the Company’s Common Stock (the “
Warrant Shares
”
and together with the Shares, the “
Securities
”) pursuant to the Exchange Agreement, dated as of July
26, 2015 (the “
Exchange Agreement
”), among the Company and the parties whose names appear on the signature
pages thereto (the “
Investors
”), and the execution and delivery by the Company of the (i) Amendment No.
6 to Amended and Restated Investors' Rights Agreement (the “
Rights Agreement Amendment
”), dated as of
July 29, 2015, (ii) the Voting Agreement entered into by the Company with each respective Voting Stockholder (the “
Voting
Agreements
”), (iii) the Total Warrants and (iv) the Temasek Warrants (the Temasek Warrants together with the Total
Warrants, the “
Warrants
”). This opinion is given to you pursuant to Article 6(e) of the Exchange Agreement
in connection with the Closing of the sale of the Securities. The Exchange Agreement, the Rights Agreement Amendment, the Voting
Agreement and the Warrants are referred to herein together as the “
Transaction Documents
”
.
Unless
defined herein, capitalized terms used herein have the meaning given to them in the Exchange Agreement.
We have examined such
matters of law as we reasonably considered necessary for the purpose of rendering this opinion. As to matters of fact material
to the opinions expressed herein, we have relied upon the representations and warranties as to factual matters contained in, and
made by the Company pursuant to, the Exchange Agreement and upon certificates and statements of government officials and of officers
of the Company, including but not limited to a certificate of the Company to us (the “
Opinion Certificate
”).
In addition, we have examined originals or copies of documents, corporate records and other writings that are listed in
Exhibit
A
attached hereto (the “
Reviewed Agreements
”) and have not conducted any other factual examination
except as listed on
Exhibit A
. In such examination, we have assumed that the signatures on documents and instruments examined
by us are authentic, that each is what it purports to be, and that all documents and instruments submitted to us as copies or facsimiles
conform with the originals, which facts we have not independently verified.
In making our examination
of documents (including the Transaction Documents) and rendering our opinions, we have further assumed that, except for the Company
with respect to the Transaction Documents, (a) each party to such documents had the entity power and entity
authority to enter into and perform all
of such party's obligations thereunder, (b) each party to such documents has duly authorized, executed and delivered such documents,
and (c) each of such documents is enforceable against and binding upon the parties thereto. We have also assumed that (i) the representations
and warranties of the Investors set forth in the Transaction Documents are accurate and complete, (ii) there is no fact or circumstance
relating to you or your business that might prevent you from enforcing any of your rights provided for in the Transaction Documents,
and (iii) there are no extrinsic agreements or understandings among the parties to the Transaction Documents or among the parties
to the Reviewed Agreements expressly identified on
Exhibit A
hereto that would modify or interpret the terms of the Transaction
Documents or Reviewed Agreements or the respective rights or obligations of the parties thereto.
Notwithstanding the
examination described above, the expressions “
to our knowledge”
, “
known to us”,
“
our
actual knowledge
” or words of similar import when used in this opinion letter, refer to the current actual knowledge
of attorneys within the firm who have rendered legal services to the Company in connection with the Transaction Documents and means
that, while such attorneys have not been informed by the Company that a matter stated is factually incorrect, we have made no independent
factual investigation with respect to such matter. No inference as to our knowledge of any matters bearing on the accuracy of any
such statement should be drawn from the fact of our representation of the Company or the rendering of the opinions set forth below.
Where statements in
this opinion concerning the Company, or an effect on the Company, are qualified by the term "
material
" or "
materially
,"
those statements involve judgments and opinions as to the materiality or lack of materiality of any matter to the Company's business,
assets, results of operations or financial condition that are entirely those of the Company and its officers.
We express no opinion
as to matters governed by any laws other than the laws of the State of California, the Delaware General Corporation Law (the “
DGCL
”)
and the federal law of the United States of America, including the rules and regulations promulgated by governmental authorities
thereunder, as such laws, rules and regulations exist on the date hereof (collectively, “
Applicable Laws
”).
We express no opinion as to whether the laws of any particular jurisdiction apply, or to the extent that the laws of any jurisdiction
other than those identified above are applicable to the Transaction Documents or the transactions contemplated thereby.
In rendering the opinion
set forth in paragraph (1) (Qualification to Do Business) below as to the valid existence and good standing of the Company under
the laws of the State of Delaware and as to its qualification to do business as a foreign corporation in good standing under the
laws of the State of California, we have relied exclusively on certificates of public officials and the Opinion Certificate.
In rendering the opinion
set forth in paragraph (2) (Authority and Power to Do Business) below concerning the Company's corporate power and corporate authority
to conduct its business as it is presently conducted and as to the types of businesses the Company presently conducts, we have
relied exclusively upon representations made to us in the Opinion Certificate.
We note that the parties
to the Exchange Agreement have designated the laws of the State of Delaware as the laws governing the Exchange Agreement. Notwithstanding
the designation therein of the laws of the State of Delaware, our opinion in paragraph (4) (Enforceability) below as to the validity,
binding effect and enforceability of the Exchange Agreement is premised upon the results that would be obtained if a California
court were to apply the internal laws of the State of California to contracts made between California residents present in California
when the Exchange Agreement is entered into and, where applicable, the currently effective DGCL, without regard to laws regarding
choice of law or conflict of laws.
In rendering the opinions
set forth herein, although the aggregate number of shares of Common Stock issuable upon the exercise of all of the Warrants as
of the date hereof is not determinable, we have assumed that, (i) the Company has a sufficient number of authorized and unissued
shares of Common Stock currently available for the total number of shares of Common Stock exercisable as of the date hereof, (ii)
as of each and every time any of the Warrants are exercised and/or converted after the date hereof, the Company will have a sufficient
number of authorized and unissued shares of Common Stock available for issuance under the Restated Certificate to permit full exercise
and/or conversion of each of the Warrants in accordance with its terms without the breach or violation of any other agreement,
commitment or obligation of the Company and (iii) in the event that any of the Warrants are exercised and/or converted after the
date hereof and the Company does not have a sufficient number of authorized and unissued shares of Common Stock available for issuance
under the Restated Certificate, the Company will take all necessary corporate action to authorize a sufficient number of shares
of Common Stock for exercise of such Warrants.
In rendering the opinion
in paragraph (6) (No Violations) below relating to violations of Applicable Laws, and paragraph (7) (No Consents) below relating
to consents, approvals, authorizations and filings under, or pursuant to, Applicable Laws, such opinions are limited to Applicable
Laws that in our experience are typically applicable to transactions of the nature provided for in the Transaction Documents. Moreover,
we render no opinion in such paragraphs, or in paragraph (4) (Enforceability), regarding the Company's compliance with applicable
securities laws, including but not limited to laws regarding the registration or qualification of the offer and sale of securities,
or the registration by the Company under any such securities laws, and no such opinion should be inferred from the language of
those paragraphs. Any opinion rendered in connection with applicable securities laws is rendered solely and expressly in paragraphs
(8) (Securities Law Compliance) and (10) (Not an Investment Company) below.
In rendering the opinion
in paragraph (6) (No Violations) below regarding breach of, or default under, any Reviewed Agreements set forth in
Exhibit A
,
we have not reviewed, and express no opinion on, (a) financial covenants or similar provisions requiring financial calculations
or determinations to ascertain whether there is any breach or default nor (b) provisions relating to the occurrence of a "material
adverse event" or words of similar import. We also do not express any opinion on parol evidence bearing on interpretation
or construction of such Reviewed Agreements, or on any oral modifications to such Reviewed Agreements made by the parties thereto.
Moreover, to the extent that any of the Reviewed Agreements are governed by the laws of any jurisdiction other than the State of
California our opinion relating to those agreements is based solely upon the plain meaning of their language as though California
law applied, without regard to interpretation or construction that might be indicated by the laws stated as governing those agreements.
In rendering the opinion
expressed in paragraph (8) (Securities Law Compliance) below, we have assumed the accuracy of, and have relied upon, the Company's
representations to us that the Company has made no offer to sell the Shares or the Warrants by means of any general solicitation
or publication of any advertisement therefor, and we have assumed that the offer and sale of the Shares and the Warrants is not
integrated with any future securities offering of the Company.
This opinion is qualified
by, and we render no opinion with respect to, or as to the effect of, the following:
(a) bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or affecting the relief of debtors or the rights and
remedies of creditors generally, including without limitation the effect of statutory or other law regarding fraudulent transfers,
preferential transfers and equitable subordination;
(b) general
principles of equity, including but not limited to judicial decisions holding that certain provisions are unenforceable when their
enforcement would violate the implied covenant of good faith and fair dealing, would be commercially unreasonable or involve undue
delay, whether or not such principles or decisions have been codified by statute, or that result from the exercise of the court's
discretion;
(c) Section
1670.5 of the California Civil Code or any other California or United States federal law or provision of the DGCL or equitable
principle which provides that a court may refuse to enforce, or may limit the application of, a contract or any clause thereof
that the court finds to have been unconscionable at the time it was made, unconscionable in performance or contrary to public policy;
(d) any
provision purporting to (i) exclude conflict of law principles under any law or (ii) select certain courts as the venue, or establish
a particular jurisdiction as the forum, for the adjudication of any controversy;
(e) judicial
decisions, that may permit the introduction of extrinsic evidence to modify the terms or the interpretation of any agreement;
(f) the
tax or accounting consequences of any transaction contemplated in connection with the sale of the Securities under applicable tax
laws and regulations and under applicable accounting rules, regulations, releases, statements, interpretations or technical bulletins;
(g) applicable
antifraud statutes, rules or regulations of United States federal or applicable state laws concerning the issuance or sale of securities,
including, without limitation, (i) the accuracy and completeness of the information provided by the Company to the Investors in
connection with the offer and sale of the Securities, and (ii) the accuracy or fairness of the past, present or future fair
market value of any securities;
(h) the
effect any breach of the fiduciary duties of the members of the Company's Board of Directors, officers or principal stockholders
would have on the enforceability authorization and performance of any agreement;
(i) whether
or not any Transaction Document, and the transactions provided for therein, were fair and reasonable to the Company at the time
of their authorization by the Company's Board of Directors and stockholders within the meaning of Section 144 of the DGCL;
(j) any
provisions stating that (i) rights or remedies are not exclusive, (ii) rights or remedies may be exercised without notice, (iii)
every right or remedy is cumulative and may be exercised in addition to or with any other right or remedy or (iv) the failure to
exercise, or any delay in exercising, rights or remedies available under an agreement will not operate as a waiver of any such
right or remedy;
(k) provisions
stating that rights set forth in the agreement in which such provision appears may only be waived in writing if an implied agreement
by trade practice or course of conduct has given rise to a waiver or that limit the effect of waivers by trade practice or course
of conduct;
(l) any
United States federal or other antitrust laws, statutes, rules or regulations, including without limitation the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, or other laws relating to collusive or unfair trade practices or designed to promote competition
in any jurisdiction;
(m) any
provision purporting to (i) waive rights to trial by jury, service of process or objections to the laying of venue or forum in
connection with any litigation arising out of or pertaining to the agreement in which such provision appears, (ii) change or waive
the rules of evidence, make determinations conclusive or fix the method or quantum of proof or (iii) waive the statute of limitations;
(n) any
choice of law clause, to the extent the provision to be governed by that law could be determined by the court (i) to be contrary
to a public or fundamental policy of a state or country whose law would apply in the absence of a choice of law clause, and (ii)
to involve an issue in which such state or country, or California State, has a materially greater interest in the determination
of the particular issue than does the state whose law is chosen;
(o) any
United States federal laws, statutes, rules or regulations, including without limitation the International Investment and Trade
in Services Survey Act (Title 22 of the United States Code, Chapter 46, §§3101-3108), or other state or foreign investment
laws, statutes, rules and regulations governing investments in the United States or in U.S. entities by persons that are not citizens
of the United States; and
(p) indemnification
and contribution provisions to the extent enforcement of such provisions is contrary to public policy, indemnify a party to a contract
against such party’s actions taken in bad faith or that constitute a breach of fiduciary duties, or indemnify a party against
liability for future conduct or the party’s own fraud or wrongful, reckless or negligent acts or omissions.
In accordance
with Section 95 of the American Law Institute's Restatement (Third) of the Law Governing Lawyers (2000), this opinion letter is
to be interpreted in accordance with
customary practices of lawyers rendering
opinions to third parties in transactions of the type provided for in the Transaction Documents.
Based upon and subject
to the foregoing, and except as set forth in the Exchange Agreement, as of immediately prior to the Closing we are of the following
opinion.
(1) The Company
is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company
is qualified to do business as a foreign corporation in good standing under the laws of the State of California.
(2) The Company
has all corporate power and corporate authority required to execute, deliver and perform its obligations under the Transaction
Documents.
(3) All corporate
action has been taken on the part of the Company's Board of Directors and stockholders that (a) is necessary for the execution
and delivery of the Transaction Documents (other than the Voting Agreement as to which we render no opinion) by the Company, (b)
must be taken by the Company to authorize the sale and issuance of the Securities on the date hereof, and (c) must be taken by
the Company as of the date hereof to authorize performance by the Company of its obligations under the Transaction Documents.
(4) Each of the
Transaction Documents has been duly executed by the Company and has been delivered by the Company to the Investors. Each of the
Transaction Documents constitutes a valid and binding obligation of the Company, enforceable by you against the Company in accordance
with its terms.
(5) The Shares
to be issued to you under the Exchange Agreement, and the Warrant Shares are duly authorized, and when issued in compliance with
the provisions of the Exchange Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares
and Warrant Shares will not be subject to any preemptive rights, rights of first refusal or rights of first offer set forth in
the Restated Certificate or Bylaws or any Reviewed Agreement set forth on
Exhibit A
(other than the Side Letter and the
2013 Securities Agreement, for which appropriate waivers have been obtained).
(6) The execution,
delivery and performance of the Transaction Documents by the Company do not, as of the Closing, result in (a) a violation by the
Company of the Restated Certificate or Bylaws, (b) a violation by the Company of any judgment or order of any court or governmental
authority, (c) a violation by the Company of Applicable Law or (d) a material breach of, or a default under, any Reviewed Agreements
set forth on
Exhibit A
.
(7) Other than
those that previously may have been obtained or made, no consent, approval or authorization of, or filing with, any governmental
authority pursuant to any Applicable Law is required to be made or obtained by the Company or any subsidiary of the Company in
connection with the Company's (a) valid execution and delivery of the Transaction Documents, (b) performance of its obligations
under the Exchange Agreement on the date hereof and (c) performance of its obligations under the other Transaction Documents as
of the date hereof.
(8) Based in part
upon the representations made by you in the Exchange Agreement, and subject to the filings of such securities law notices as may
be required to be filed subsequent
to the Closing, the offer, sale and issuance
of the Shares to be issued to you in conformity with the terms of the Exchange Agreement constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act of 1933, as amended, and exempt from the qualification requirements
of Section 25110 of the California Corporate Securities Law of 1968, as amended.
(9) Based in part
upon the representations made by you in the Exchange Agreement, and subject to the filings of such securities law notices as may
be required to be filed subsequent to the Closing, the offer, sale and issuance of the Warrants and (assuming the Warrants were
exercised on the date hereof) the issuance to you of the Warrant Shares, constitute transactions exempt from the registration requirements
of Section 5 of the Securities Act of 1933, as amended, and exempt from the qualification requirements of Section 25110 of the
California Corporate Securities Law of 1968, as amended.
(10) The Company
is not and, after giving effect to the offering and sale of the Securities, will not be, required to register as an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended.
In addition to the
foregoing opinions, based upon the foregoing and other than as set forth in the Exchange Agreement, we supplementally confirm the
following to you as of immediately prior to the Closing.
Litigation Confirmation
.
To our knowledge, there is no action, suit, proceeding or investigation by or before any United States federal, California State
or Delaware State court or governmental authority that is pending or threatened in writing against the Company and that questions
the validity of the Transaction Documents or the right of the Company to enter into and perform its obligations under the Transaction
Documents. Please note that we have not conducted a docket search in any jurisdiction with respect to any action, suit, proceeding
or investigation that may be pending against the Company and we have not undertaken any search regarding any of its affiliates,
officers or directors, nor, other than to request the Opinion Certificate from the Company, have we undertaken any further inquiry
whatsoever in connection with the existence any such action, suit, proceeding or investigation.
[Remainder of Page Left Intentionally
Blank]
This opinion is rendered
as of the date first written above solely for your benefit in connection with the sale and issuance of the Securities pursuant
to the Exchange Agreement and may not be relied on by, nor may any copy be delivered to, any other person or entity without our
prior written consent. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication
or otherwise, as to any other matters. This opinion is rendered on, and speaks only as of, the date of this letter first written
above, is based solely on our understanding of facts in existence as of such date and does not address any potential changes in
facts, circumstance or law that may occur after the date of this opinion letter. We assume no obligation to inform you of any fact,
circumstance, event or change in the law or the facts that may hereafter be brought to our attention that may alter, affect or
modify the opinions expressed herein.
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Very truly yours,
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FENWICK & WEST LLP
|
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By:
|
Daniel Winnike, a Partner
|
Exhibit A
Reviewed Agreements
1) The Exchange
Agreement, the Rights Agreement, the Voting Agreements and the Letter Agreement dated February 23, 2012, as amended (the “
Side
Letter
”) by and among the Company and Naxyris S.A., Sualk Capital Ltd, Maxwell (Mauritius) Pte Ltd and Biolding Investment
SA.
2) A copy of the
Company's Restated Certificate of Incorporation, filed with the Delaware Secretary of State on September 30, 2010, and certified
by the Delaware Secretary of State on September 30, 2010, as amended by that certain Certificate of Amendment of the Restated Certificate
of Incorporation filed with the Delaware Secretary of State on May 9, 2013 and certified by the Delaware Secretary of State on
May 9, 2013 and that certain Certificate of Amendment of the above-described Restated Certificate of Incorporation, dated May 12,
2014 and certified by the Delaware Secretary of State on May 12, 2014 (such Restated Certificate of Incorporation of the Company,
as so amended, the “
Restated Certificate
”) (the "
Restated Certificate
").
3) A copy of the
Company’s Amended and Restated Bylaws certified by the Company's Secretary on July 29, 2015 (the "
Bylaws
").
4) The Certificate
of Incorporation of the Company filed with the Secretary of State of the State of California upon the Company's incorporation,
the Certificate of Merger and Restated Certificate of Incorporation of the Company filed with the Secretary of State of the State
of Delaware upon the Company's re-incorporation in Delaware, the California and Delaware bylaws of the Company initially adopted
by the Company and minutes of meetings and actions by written consent of the Company's incorporator(s), shareholders and Board
of Directors that are contained in the Company's minute books.
5) Factual representations
and warranties made to us by the Company, including those contained in an Opinion Certificate addressed to us and dated of even
date herewith executed by the Company (the "
Opinion Certificate
").
6) A Certificate
of Good Standing regarding the Company issued by the Secretary of State of the Delaware, dated July 27, 2015, indicating that the
Company is qualified to do business, as a domestic corporation in that state (together with the letter referred to in item (7)
below and the certificate referred to in item (8) below, the "
Certificate of Good Standing
").
7) A letter from
the California Franchise Tax Board dated July 27, 2015to the effect that the Company is in good standing with respect to its California
franchise tax filings and has no known unpaid franchise tax liability.
8) A Certificate
of Good Standing from the Secretary of State of the State of California, indicating that the Company is in good standing and is
qualified to do business as a foreign corporation therein.
9) A copy of the
Series D Preferred Stock Purchase Agreement dated June 21, 2010.
10) A copy of the
Amended and Restated Investors' Rights Agreement dated June 21, 2010, as amended by Amendment No. 1 thereto dated February 23,
2012, Amendment No. 2 thereto dated as of December 24, 2012, Amendment No. 3 thereto dated as of March 27, 2013, Amendment No.
4 thereto dated as of October 16, 2013 and Amendment No. 5 thereto dated December 24, 2013.
11) A copy of the
Stock Purchase Agreement dated February 22, 2012 by and between the Company and the Purchasers listed on the signature pages thereto.
12) A copy of the
Securities Purchase Agreement dated February 24, 2012 by and between the Company and the Purchasers listed on the signature pages
thereto, the Senior Unsecured Convertible Notes issued thereunder and the Registration Rights Agreement by and between the Company
and Purchasers listed on the signature pages thereto, dated February 27, 2012.
13) Copies of those
Common Stock Purchase Agreements dated May 18, 2012 by and between the Company and certain Company stockholders.
14) Securities
Purchase Agreement dated July 30, 2012 by and between the Company and Total Energies Nouvelles Activités USA, the Senior
Unsecured Convertible Notes issued thereunder and the Registration Rights Agreement by and between the Company and Total Energies
Nouvelles Activités USA dated July 30, 2012.
15) A copy of the
Securities Purchase Agreement dated March 27, 2013 by and among the Company and purchasers listed on the signature pages thereto.
16) A copy of the
Securities Purchase Agreement dated August 8, 2013, as amended by Amendment No. 1 to Securities Purchase Agreement dated as of
October 16, 2013 by and among the Company and purchasers listed on the signature pages thereto and by Amendment No. 2 to Securities
Purchase Agreement dated December 23, 2013 by and among the Company and purchasers listed on the signature pages thereto (as amended,
the “
2013 Securities Agreement
”); and the Warrant to purchase shares of Common Stock of the Company issued
pursuant thereto.
17) A copy of the
Loan and Security Agreement dated as of March 29, 2014, by and among the Company and purchasers listed on the signature pages thereto
(the “
Loan and Security Agreement
”).
Exhibit D-1
TOTAL EQUITY FUNDING WARRANT
Exhibit D-2
TOTAL R&D WARRANT
Exhibit E-1
TEMASEK 2015 WARRANT
Exhibit E-2
TEMASEK FUNDING WARRANT
Exhibit E-3
TEMASEK R&D WARRANT
Exhibit F
VOTING AGREEMENT
Exhibit G
MATURITY TREATMENT AGREEMENT
Exhibit 10.01
Execution Version
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.
Total Energies Nouvelles Activités
USA
24 Cours Michelet
92800 Puteaux
France
July 26, 2015
Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, CA 94608
Attention: Mr. John Melo, President & CEO
RE: Restructuring of Total Amyris BioSolutions B.V.
Reference is made to
that certain Amended and Restated Master Framework Agreement, dated as of December 2, 2013 and amended on April 1, 2015 (the “Framework
Agreement”), by and between Amyris, Inc., a Delaware corporation (“Amyris”), and Total Energies Nouvelles Activités
USA (formerly known as Total Gas & Power USA, SAS), a
société par actions simplifiée
organized
under the laws of the Republic of France (“TENA”), that Shareholders’ Agreement dated as of December 2, 2013
(the “Original Shareholders’ Agreement”) among Amyris, TENA and Total Amyris BioSolutions B.V. (“TAB”),
that certain License Agreement dated as of December 2, 2013 (the “Original License Agreement”) by and between Amyris
and TAB, the Deed of Incorporation of TAB, dated as of November 29, 2013 (the “TAB Articles”), and that certain Exchange
Agreement, dated as of even date hereof (the “Exchange Agreement”), by and between Amyris and TENA and certain other
investors. Capitalized terms used herein and not defined shall have the meanings given to such terms in the Framework Agreement
or the Original Shareholders’ Agreement.
On or before September
18, 2015, Amyris and TENA shall, shall cause TAB to, and shall use their best efforts to cause the relevant third parties to, take
the following steps at one contemporaneous closing (the “Closing”) to be held at the offices of Linklaters in Amsterdam
in order to restructure the shareholding and governance of TAB and grant certain intellectual property licenses to TAB and TENA:
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1.
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Termination of the Escrow Agreement, dated December 2, 2013, and transfer of the Share A and the
Preferred Shares currently held by Stichting Total Amyris BioSolutions (the “Escrow Agent”) to Amyris by:
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O
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TENA, Amyris, TAB and the Escrow Agent entering into a customary short-form termination agreement
in relation to the Escrow Agreement, the form of such termination agreement to be negotiated in good faith between TENA, Amyris
and TAB in the period prior to Closing, which termination agreement shall terminate all rights, obligations and arrangements (including
the agency of the Escrow Agent) under the Escrow Agreement, effective as per the effectuation of Closing;
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O
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TENA and the Escrow Agent providing written notice to TAB and Bart Jan Kuck, in his capacity as
civil law notary (the “Notary”), confirming that (i) the “Condition Precedent” (as defined in the deed
of Transfer of Share A subject to Condition Precedent, dated December 2, 2013) and (ii) the “Conditions Precedent”
(as defined in the deed of
|
Transfer of Preferred Shares subject
to Conditions Precedent, dated December 2, 2013) can no longer be fulfilled;
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O
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the execution by Amyris the Escrow Agent and TENA of a short-form shareholders resolution of TAB
approving the transfer of the Share A and the Preferred Shares to Amyris and waiving any and all pre-emptive rights in connection
with such transfer, the form of such shareholders resolution to be negotiated in good faith between TENA, Amyris and TAB in the
period prior to Closing; and
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O
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Amyris, TAB and the Escrow Agent each executing in front of the Notary a customary notarial deed
of transfer of shares pursuant to which the Escrow Agent shall transfer the legal title to the Share A and the Preferred Shares,
free of any encumbrances (except for the pledge described in clause 6 below), to Amyris, the form of such notarial deed of transfer
of shares to be negotiated in good faith between TENA, Amyris and TAB in the period prior to Closing;
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O
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Amyris, TAB and the Escrow Agent each providing customary powers of attorney to each candidate
civil law notary or notarial assistant of Linklaters to execute the deed of transfer on behalf of the respective parties at Closing;
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O
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Amyris, TENA, Escrow Agent, and SGG Escrow Services B.V. terminating their Management Agreement,
dated December 2, 2013; and
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O
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Amyris and TENA dissolving (
ontbinden
) the Escrow Agent.
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2.
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Amendment of the TAB Articles to convert the Share A, the Share B and the Preferred Shares with
a nominal value of EUR 1 each into ordinary shares of TAB with a nominal value of EUR 0,01 each (i.e. as a result of such conversion
Amyris will have 300 ordinary shares of TAB and TENA 100 ordinary shares of TAB) and to align the TAB Articles with the amended
and restated Original Shareholders Agreement referred to in clause 3 below, in the form of the Notarial Deed of Amendment of the
Articles of Association of TAB attached hereto as Annex A, by:
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O
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the adoption by Amyris and TENA of a short-form shareholders resolution of TAB approving the amendment
of the Articles of Association (including a conversion of the shares in TAB) and granting a power of attorney to each candidate
civil law notary or notarial assistant of Linklaters to execute the Notarial Deed of Amendment of the Articles of Association at
Closing, the form of such shareholders resolution to be negotiated in good faith between TENA, Amyris and TAB in the period prior
to Closing; and
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O
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the execution in front of the Notary of the Notarial Deed of Amendment of the Articles of Association;
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3.
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Amendment and restatement of the Original Shareholders Agreement by Amyris, TENA and TAB entering
into the amended and restated agreement in the agreed form attached hereto as Annex B;
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4.
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Amendment and restatement of the Original License Agreement by Amyris and TAB entering into the
amended and restated jet fuel license agreement in the agreed form attached hereto as Annex C;
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5.
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Grant to TENA of an exclusive commercialization license for diesel fuel in the EU by Amyris and
TENA executing the license agreement regarding diesel fuel in the EU, in the agreed form attached hereto as Annex D;
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6.
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Termination of the existing Deed of Pledge dated December 2, 2013, by the execution by Amyris and
TENA of a customary deed of release, the form of such deed of release to be negotiated in good faith between Amyris and TENA in
the period prior to Closing;
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7.
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Amyris to sell to TENA, and TENA to acquire from Amyris, 200 ordinary shares in TAB in exchange
for (i) USD 5 million in principal amount of 1.5% convertible notes due 2017 (the “R&D Notes”), (ii) the accrued
and unpaid interest on all USD 75 million in principal amount of R&D Notes outstanding prior to Closing, (iii) the EUR 50,000
in principal amount of the Class A Note, and (iv) the accrued and unpaid interest on the Class A Note by:
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O
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Amyris, TENA and TAB executing a customary notarial deed of sale and transfer in front of the Notary
pursuant to which 200 ordinary shares in TAB are sold and transferred by and from Amyris to TENA with the consideration being as
set forth in this clause 7, the form of such notarial deed of sale and transfer of shares to be negotiated between TENA and Amyris
acting in good faith prior to Closing; and
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O
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Amyris, TENA and TAB each providing customary powers of attorney to each candidate civil law notary
or notarial assistant of Linklaters to execute the deed of sale and transfer on behalf of the respective parties at Closing, the
form of such powers of attorney to be negotiated between TENA and Amyris acting in good faith prior to Closing;
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8.
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Amyris and TENA to grant customary New York law reciprocal share pledges over their shares in TAB
to secure the performance of their obligations under the amended and restated Original Shareholders Agreement by:
|
o
Amyris, TENA and TAB executing a pledge agreement in the form of a notarial deed in front of the Notary pursuant to which
the reciprocal share pledges/charged are granted, the form of such pledge agreement to be based on the existing Deed of Pledge
and to be negotiated in good faith between TENA and Amyris in the period prior to Closing; and
o
Amyris, TENA and TAB each providing customary powers of attorney to each candidate civil law notary or notarial assistant
of Linklaters to execute the pledge agreement on behalf of the respective parties at Closing, the form of such powers of attorney
to be negotiated between TENA and Amyris acting in good faith prior to Closing.
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9.
|
Amyris and TENA terminating the Framework Agreement pursuant to a customary short-form termination
agreement in relation to the Framework Agreement, the form of such termination agreement to be negotiated in good faith between
TENA and Amyris in the period prior to Closing;
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10.
|
Amyris and TENA modifying their agreements in relation to Novvi LLC by:
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O
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Amendment to the IP license agreement dated March 26, 2013 between Amyris and Novvi LLC by Amyris
and Novvi LLC entering into the amendment no.1 in the form attached hereto as Annex E; to be followed by
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o
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Amyris and TENA amending or terminating their side letter regarding diesel and jet fuel dated December
2, 2013 pursuant to a customary short-form amendment or, as the case may be, termination agreement in relation to this side letter,
the form of such amendment or agreement to be consistent with Annex E and negotiated in good faith between TENA and Amyris and
TAB in the period prior to Closing; and
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o
|
Amyris, TAB and Novvi LLC terminating their amended and restated letter agreement containing clarifications
to the IP license agreement, dated November 30, 2013 pursuant to a customary short-form termination agreement, the form of such
termination
|
agreement to be consistent with
Annex E and negotiated in good faith between Novvi LLC, Amyris and TAB in the period prior to Closing; and
Each of Amyris and
TENA shall, shall cause TAB to, and shall use its best efforts to cause any relevant third parties (including the Escrow Agent)
to execute and deliver such instruments, documents and other papers, give such written assurances, give such written consents and
do, or cause to be done, all things otherwise necessary, proper or advisable under applicable law, and otherwise cooperate with
each other, in each case as may be required or reasonably requested by any other Party in order to cause, evidence, reflect, consummate
and make effective any and all of the matters contemplated by this letter agreement.
This letter agreement,
and the provisions, rights, obligations, and conditions set forth herein, and the legal relations between the parties hereto, including
all disputes and claims, whether arising in contract, tort, or under statute, shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to its conflict of law provisions. No amendment, modification, termination
or cancellation of this letter agreement shall be effective unless it is in writing signed by Amyris and TENA. In the event that
any provision of this letter agreement or the application of any provision hereof is declared to be illegal, invalid, or otherwise
unenforceable by a court of competent jurisdiction, the remainder of this letter agreement shall not be affected except to the
extent necessary to delete such illegal, invalid, or unenforceable provision unless that provision held invalid shall substantially
impair the benefits of the remaining portions of this letter agreement. This letter agreement may be executed in counterparts,
each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument, and shall
become effective when signed by each party hereto and delivered to the other party.
* * * *
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Very truly yours,
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TOTAL ENERGIES NOUVELLES ACTIVITES USA
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By:
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/s/ Bernard Clement
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Name: Bernard Clement
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Title President
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Agreed to and accepted as of
the date first written above:
AMYRIS, INC.
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By:
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Name: John Melo
Title: President & CEO
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[
Signature Page to JVCO Restructuring
Letter Agreement
]
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Very truly yours,
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TOTAL ENERGIES NOUVELLES ACTIVITES USA
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By:
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Name: Bernard Clement
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Title President
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Agreed to and accepted as of
the date first written above:
AMYRIS, INC.
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By:
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/s/ John Melo
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Name: John Melo
Title: President & CEO
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[
Signature Page to JVCO Restructuring
Letter Agreement
]
ANNEX A
Dated
•
2015
Total Amyris BioSolutions B.V.
DEED OF AMENDMENT OF ARTICLES OF ASSOCIATION
Linklaters
Linklaters LLP
World Trade Centre Amsterdam
Zuidplein 180
1077 XV Amsterdam
Telephone (+31) 20 799 6200
Facsimile (+31) 20 799 6340
Ref BJK/CC/
NOTE ABOUT TRANSLATION:
This document is an English
translation of a document prepared in Dutch. In preparing this document, an attempt has been made to translate as literally as
possible without jeopardising the overall continuity of the text. Inevitably, however, differences may occur in translation and
if they do, the Dutch text will govern by law. The definitions in article 1.1 of this document are listed in the English alphabetical
order which may differ from the Dutch alphabetical order.
In this translation, Dutch legal
concepts are expressed in English terms and not in their original Dutch terms. The concepts concerned may not be identical to concepts
described by the English terms as such terms may be understood under the laws of other jurisdictions.
DEED OF AMENDMENT OF ARTICLES OF ASSOCIATION
(Total Amyris BioSolutions B.V.)
This • day of • two thousand
fifteen, there appeared before me, , civil law notary in Amsterdam, the Netherlands:
•.
The person appearing declared the
following:
The
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 Hoogoorddreef 15, 1101 BA Amsterdam, the Netherlands, registered with the Dutch
Trade Register of the Chamber of Commerce under number 59337494 (the “
Company
”), resolved on the
l
day of
l
two
thousand fifteen to amend and completely readopt the articles of association of the Company, as well as to authorise the person
appearing to have this deed executed. The adoption of such resolutions is evidenced by a [copy of a] written shareholders’
resolution attached to this deed (Annex).
The articles of association of
the Company were established at the incorporation of the Company, by a deed, executed on the twenty-ninth day of November two thousand
thirteen before , civil law notary in Amsterdam, the Netherlands. The articles of association of the Company have not been amended
since. In implementing the aforementioned resolution, the articles of association of the Company are hereby amended and completely
readopted as follows.
LinklatersLLP
Articles
of association:
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1
|
Definitions and interpretation
|
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1.1
|
In these articles of association, the following terms shall have the following meanings:
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“Amyris, Inc.
” means Amyris, Inc., a corporation incorporated under the laws
of Delaware, United States of America, having its registered office at 5885 Hollis Street, Suite 100, Emeryville, CA 94608, United
States of America, registered with the Secretary of State of Delaware, United States of America, under number 4768633.
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“
Amyris License Agreement
” means the “Amended and Restated Jet Fuel License
Agreement” (including schedules and exhibits), entered into between Amyris, Inc. and the Company as on or about the [_______day
of _________ two thousand fifteen], as amended from time to time.
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“
Business Days
” means any day other than (i) Saturday or Sunday, (ii) any day
that is a legal holiday pursuant to the laws of the State of New York, United States of America, the Republic of France, or the
European part of the Netherlands or (iii) any day that is a day on which banking institutions located in New York, New York, United
States of America, Paris, the Republic of France or Amsterdam, the Netherlands, are authorized or required by law or other governmental
action to close.
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“
Cause
” means (i) the conviction of a Person by a court of competent jurisdiction
of, or a plea by a Person of guilty or no contest to, a felony or any crime of theft, forgery, fraud, misappropriation or embezzlement,
or (ii) the commission of theft, forgery, fraud, wilful misconduct, gross negligence, misappropriation or embezzlement against
a Party or an Affiliate (as defined in the JVA) thereof.
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“
Company
” means the company the internal organisation of which is governed by
these articles of association.
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“
Distributable Equity
” means the part of the Company’s equity which exceeds
the aggregate of the reserves that must be maintained pursuant to the laws of the Netherlands.
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“
Fiscal Year
” has the meaning attributed thereto in article 18.1.
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“General Meeting
” means the body of the Company consisting of the Person or
Persons to whom, as a Shareholder or otherwise, voting rights attached to the Shares accrue, or (as the case may be) a meeting
of such Persons (or their representatives) and other Persons with Meeting Rights.
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“in writing”
means transmitted by letter, telecopier or e-mail, or any other
electronic or written means of communication, provided the relevant message is legible and reproducible. “
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“JVA”
means the “Amended and Restated Shareholders’ Agreement”
(including schedules and exhibits) regarding the Company, entered into as on or about the [____ day of ____________two thousand
fifteen] by and among TENA USA, Amyris, Inc. and the Company, as amended from time to time.
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“Management Board”
means the management board of the Company.
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|
“Managing Director” means a member of the Management Board.
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“Meeting Rights”
” means the right to attend the General Meeting and to
speak therein, as referred to in Section 2:227, subsection 1, of the Dutch Civil Code
|
LinklatersLLP
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“Officer
” has the meaning attributed thereto in article 14.2.
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“
Party”
means a party to the JVA.
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“Person
” means any individual, corporation (including any non-profit corporation),
limited liability company, joint stock company, general partnership, limited partnership, limited liability partnership, joint
venture, estate, trust, firm, governmental entity or other enterprise, association, organization or entity.
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|
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“
Person with Meeting Rights
” means a Person to whom the Meeting Rights are granted.
|
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|
“
Share
” means a share in the capital of the Company.
|
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|
“
Shareholder
” means a holder of one or more Shares.
|
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|
“
TENA USA
” means Total Energies Nouvelles Activités USA, a company incorporated
under the laws of France (s
ociété 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.
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1.2
|
The Management Board and the General Meeting shall each constitute a distinct body of the Company.
|
|
|
1.3
|
The headings contained in these articles of association and in any annex are for reference purposes
only and shall not affect in any way the meaning or interpretation of these articles of association. All annexes attached to these
articles of association are hereby incorporated in and made a part of these articles of association as if set forth in full herein.
|
|
|
1.4
|
The definitions of the terms in these articles of association shall apply equally to the singular
and the plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed
to be followed by the phrase “without limitation.” The word “shall” shall be construed to have the same
meaning and effect as the word “will.” Unless the context requires otherwise (i) any definition of or reference to
any contract, instrument or other document shall be construed as referring to such contract, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or otherwise set forth in such document); (ii) any reference herein to any Person shall be construed to include
the Person’s successors and permitted assigns; (iii) the words “herein,” “hereof,” “hereunder”
and words of similar import shall be construed to refer to these articles of association in their entirety and not to any particular
provision thereof; (iv) “day” shall mean calendar day, unless “Business Day” is expressly used; and (v)
all references to articles shall be construed to refer to articles of these articles of association. The terms “euro”
and “EUR” shall mean euro, the currency used by the Institutions of the European Union. The word “or” is
used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are
not exclusive.
|
LinklatersLLP
|
|
2.1
|
The Company’s name is:
|
|
|
|
Total Amyris BioSolutions B.V.
|
|
|
2.2
|
The Company has its official seat in Amsterdam, the Netherlands.
|
|
|
3.1
|
The objects of the Company are to develop, produce and commercialize jet fuels under the Amyris
License Agreement, as well as to participate in, to manage and to finance other enterprises and companies and to do all that is
connected therewith or may be conducive thereto, all to be interpreted in the broadest sense.
|
|
|
3.2
|
The Company purports to operate as a joint venture between Amyris, Inc. and TENA USA and, in pursuing
its business, the Company shall act in accordance with the joint venture purposes as agreed or revised by Amyris, Inc. and TENA
USA in writing from time to time, and the Company, the Managing Directors and the Shareholders will respect and give effect to
the JVA.
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|
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4.1
|
The share capital of the Company is divided into Shares with a nominal value of one euro cent (EUR
0,01) each, numbered from 1 onward.
|
|
|
4.2
|
All Shares shall be registered. No share certificates shall be issued.
|
|
|
5.1
|
The Management Board shall keep a register of the names and addresses of the Shareholders as well
as the names and addresses of the Persons with Meeting Rights.
|
|
|
5.2
|
Section 2:194 of the Dutch Civil Code applies to the register.
|
|
|
6.1
|
Shares may be issued pursuant to a resolution of the General Meeting. The General Meeting may transfer
this authority to another body of the Company and may also revoke such transfer.
|
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6.2
|
A resolution to issue Shares shall stipulate the issue price and the other conditions of issue.
|
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6.3
|
The issuance of a Share shall furthermore require a notarial deed, to be executed for that purpose
before a civil law notary registered in the Netherlands, to which deed those involved in the issuance shall be parties.
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|
|
The Company may not acquire Shares or depositary receipts thereof.
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|
8.1
|
The transfer of a Share shall require a notarial deed, to be executed for that purpose before a
civil law notary registered in the Netherlands, to which deed the transferor, the transferee and to the extent relevant the Company
shall be parties.
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8.2
|
Unless the Company itself is party to the legal act, the rights attached to the Share can only
be exercised after the Company has acknowledged said legal act or said deed has been served upon it, in accordance with the relevant
provisions of the laws of the Netherlands.
|
|
|
9
|
Share transfer restrictions
|
Section
A. Restrictions on transfers
LinklatersLLP
|
|
9.1
|
A transfer of one or more Shares shall require the prior approval of the General Meeting.
|
|
|
9.2
|
The Shareholders undertake
vis-à-vis
each other and
vis-à-vis
the Company,
for as long as the JVA is in place, to comply with the contractual transfer restrictions as provided for in the JVA and to not
seek approval from the General Meeting as referred to in article 9.1 before having complied with the provisions of the JVA.
|
Section
B. Civil law notary
|
|
|
The Management Board shall provide the civil law notary with such confirmations as are reasonably
required for the civil law notary to assess whether the relevant requirements for a transfer of Shares as laid down in this article
9 have been met, and the relevant civil law notary may rely on the confirmations given by the Management Board without any further
inquiry.
|
|
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10
|
Pledging of Shares and usufruct on Shares
|
|
|
|
The provisions of article 8 shall apply by analogy to the pledging of Shares and to the creation
or transfer of a usufruct on Shares. In addition, the provisions of article 9 shall apply by analogy to the pledging of Shares.
The Meeting Rights cannot be granted to a pledgee without voting rights.
|
|
|
10.2
|
Upon the creation or transfer of a usufruct on a Share, or afterwards, the voting rights attached
to such Share may not be assigned to the usufructuary.
|
|
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11
|
Depositary receipts for Shares
|
|
|
|
The Meeting Rights shall not be attached to depositary receipts for Shares.
|
|
|
12.1
|
The Management Board shall consist of six (6) Managing Directors.
|
|
|
12.2
|
Both individuals and legal entities can be Managing Directors provided that the relevant individual
or legal entity has not resigned or been removed as Managing Director for Cause previously.
|
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|
12.3
|
Managing Directors are appointed by the General Meeting.
|
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12.4
|
A Managing Director may be suspended or removed by the General Meeting at any time (whether or
not for Cause).
|
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|
12.5
|
Any suspension may be extended one or more times, but may not last longer than three (3) months
in the aggregate. If, at the end of that period, no decision has been taken on termination of the suspension or on removal, the
suspension shall end.
|
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12.6
|
The authority to establish remuneration and other conditions of employment for Managing Directors
is vested in the General Meeting.
|
|
|
13
|
Duties, working methods and decision-making process of the
|
|
|
|
Management Board; conflict of interest
|
|
|
13.1
|
The Management Board shall be entrusted with the management of the Company.
|
|
|
13.2
|
When performing its duties, the Management Board can be assisted – without prejudice to its
responsibilities – by one or more committees. The Management Board shall determine the composition of a committee and shall
determine the duties, authorities and procedures of such committee. The Management Board shall designate the members of a committee,
may deprive
|
LinklatersLLP
|
|
|
persons from their tasks or replace persons within each committee and is authorised to abolish
a committee. A committee may establish rules regarding its working methods and decision-making process. The Management Board may
require such rules to be subject to its approval.
|
|
|
13.3
|
Management Board resolutions may at all times be adopted in writing, provided the proposal concerned
is submitted to all Managing Directors then in office in respect of whom no conflict of interest within the meaning of article
13.6 exists and none of them objects to this manner of adopting resolutions, evidenced by written statements from all relevant
Managing Directors then in office.
|
|
|
13.4
|
Managing Directors may attend regular and special meetings of the Management Board either in person
or by conference telephone or similar communications equipment by means of which all individuals participating in the meeting can
hear and be heard.
|
|
|
13.5
|
To the extent that these articles of association or the JVA do not provide otherwise, in a meeting
of the Management Board, each Managing Director may cast one vote. If there is a tie in voting, the proposal shall be deemed to
have been rejected.
|
|
|
13.6
|
A Managing Director shall not take part in the discussions and decision making by the Management
Board if he has a direct or indirect personal interest therein that conflicts with the interests of the Company or the business
connected with it. In case all Managing Directors have a conflict as referred to in the preceding sentence, the Management Board
shall still be authorised to adopt the relevant resolution.
|
|
|
13.7
|
When determining how many votes are cast by Managing Directors or how many Managing Directors are
present or represented, account shall nonetheless be taken of Managing Directors that are not allowed to take part in the discussions
and decision-making by the Management Board pursuant to the laws of the Netherlands, these articles of association or the JVA.
|
|
|
14.1
|
The Company shall be represented by: (a) the Management Board; or (b) three (3) Managing Directors
acting jointly.
|
|
|
14.2
|
The Management Board may from time to time appoint and remove officers of the Company (the “
Officers
”),
in which case the duties, powers and responsibilities of each such Officer shall be as determined by the Management Board.
|
|
|
15
|
Indemnification of Managing Directors and Officers
|
|
|
|
Unless prohibited under the laws of the Netherlands, the following shall be reimbursed to current
and former Managing Directors and Officers:
|
|
|
|
(a) reasonable costs of conducting a defense against claims based on acts or failures to act in
the exercise of their duties or any other duties currently or previously performed by them at the request of the Company;
|
|
|
|
(b) any damages or fines payable by them as a result of an act or failure to act as referred to
under (a);
|
LinklatersLLP
|
|
|
(c) reasonable costs of appearing in other legal proceedings in which they are involved as current
or former Managing Directors or Officers, with the exception of proceedings primarily aimed at pursuing a claim on their own behalf.
There shall be no entitlement to reimbursement as referred to above if and to the extent that a Dutch court has established in
a final and conclusive decision that (i) the act or failure to act of the applicable current or former Managing Director or Officer
may be characterized as willful (
opzettelijk
), intentionally reckless (
bewust roekeloos
) or seriously culpable (
ernstig
verwijtbaar
) conduct, unless this would, in view of the circumstances of the case, be unacceptable according to standards of
reasonableness and fairness, or (ii) the applicable current or former Managing Director or Officer was not acting honestly and
in good faith (
vervulde zijn taak niet behoorlijk
) with a view to the interest of the Company. The Company may take out
liability insurance for the benefit of the persons concerned.
|
|
|
16
|
Approval of Management Board resolutions
|
|
|
16.1
|
The General Meeting may require Management Board resolutions to be subject to its approval. The
Management Board shall be notified in writing of such resolutions, which shall be clearly specified.
|
|
|
16.2
|
The absence of approval by the General Meeting of a resolution as referred to in this article 16
shall not affect the authority of the Management Board or the Managing Directors to represent the Company.
|
|
|
17
|
Vacancy or inability to act
|
|
|
17.1
|
If a Managing Director is unable to perform his tasks and duties, then the General Meeting may
designate another person to be temporarily charged with the tasks and duties of the relevant Managing Director and that person
shall thus have corresponding rights and obligations.
|
|
|
17.2
|
If a Managing Director is absent or prevented from performing his duties, the remaining Managing
Director(s) and the person(s) designated for that purpose by the General Meeting pursuant to article 17.1 shall be temporarily
entrusted with the management of the Company.
|
|
|
18
|
Financial and fiscal year and annual accounts
|
|
|
18.1
|
The Company’s financial and fiscal year shall be the calendar year (the “
Fiscal
Year
”).
|
|
|
18.2
|
Annually, not later than thirty (30) days after the end of the Fiscal Year, save where this period
is extended by the General Meeting by not more than six (6) months by reason of special circumstances, the Management Board shall
prepare annual accounts and shall deposit the same for inspection by the Shareholders and the other Persons with Meeting Rights
at the Company’s office.
|
|
|
18.3
|
Within the same period, the Management Board shall also deposit the annual report for inspection
by the Shareholders and the other Persons with Meeting Rights, unless Section 2:396, subsection 7, or Section 2:403 of the Dutch
Civil Code applies to the Company.
|
|
|
18.4
|
The annual accounts shall consist of a balance sheet, a profit and loss account and explanatory
notes.
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LinklatersLLP
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18.5
|
The annual accounts shall be signed by the Managing Directors. If the signature of one or more
of them is missing, this shall be stated and reasons for this omission shall be given.
|
|
|
18.6
|
The Company may, and if the laws of the Netherlands so require shall, appoint an accountant to
audit the annual accounts. Such appointment shall be made by the General Meeting.
|
|
|
19
|
Adoption of the annual accounts and release from liability
|
|
|
19.1
|
The General Meeting shall adopt the annual accounts.
|
|
|
19.2
|
At the General Meeting at which it is resolved to adopt the annual accounts, a proposal concerning
release of the Managing Directors from liability for the management pursued, insofar as the exercise of their duties is reflected
in the annual accounts or otherwise disclosed to the General Meeting prior to the adoption of the annual accounts, shall be brought
up for discussion separately.
|
|
|
20
|
Profits and distributions
|
|
|
20.1
|
The Management Board is authorised to allocate the profits as determined by the adoption of the
annual accounts and to declare distributions.
|
|
|
20.2
|
Distributions may only be made to the extent that any cash held by the Company is not necessary
for its operations.
|
|
|
20.3
|
Any distributions will be made in equal parts per Share.
|
|
|
20.4
|
Distributions on Shares may be made only up to an amount that does not exceed the amount of the
Distributable Equity.
|
|
|
20.5
|
A claim of a Shareholder for payment of a distribution on Shares shall be barred after five (5)
years have elapsed.
|
|
|
21.1
|
During each Fiscal Year at least one General Meeting shall be held or at least one resolution shall
be adopted in accordance with article 27.1.
|
|
|
21.2
|
Other General Meetings shall be held as often as the Management Board or a Shareholder deems necessary.
|
|
|
22
|
Notice, agenda and venue of meetings
|
|
|
22.1
|
Notice of General Meetings shall be given by the Management Board or, if relevant, a Shareholder.
|
|
|
22.2
|
Notice of the meeting shall be given no later than on the tenth Business Day prior to the day of
the meeting.
|
|
|
22.3
|
The notice convening the meeting shall specify the business to be discussed. Other business not
specified in such notice may be announced at a later date, with due observance of the notice period referred to in article 22.2.
|
|
|
22.4
|
The notice convening the meeting shall be sent to the addresses of the Shareholders and the other
Persons with Meeting Rights shown in the register referred to in article 5. With the consent of a Shareholder or another Person
with Meeting Rights, notice of the meeting may also be given by a legible and reproducible message sent through electronic means
of communication to the address provided for the purposes hereof by the Shareholder or the other Person with Meeting Rights to
the Company.
|
|
|
22.5
|
General Meetings are held in the municipality in which, according to these articles of association,
the Company has its official seat or at Schiphol airport (municipality of Haarlemmermeer, the Netherlands). General Meetings may
|
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|
|
|
also be held elsewhere, provided that all Persons with Meeting Rights have consented to the place
of the meeting and the Managing Directors have been given the opportunity to give advice prior to the decision-making.
|
|
|
23
|
Admittance, Meeting Rights and voting rights
|
|
|
23.1
|
The Meeting Rights accrue to each Shareholder and each other Person with Meeting Rights. Each Shareholder
and each pledgee to whom the voting rights accrue shall be entitled to exercise the voting rights in the General Meeting. Shareholders
and other Persons with Meeting Rights may be represented in a meeting by a proxy authorised in writing.
|
|
|
23.2
|
At a meeting, each Person present with voting rights, or its proxy authorised in writing, must
sign the attendance list. The chairman of the meeting may decide that the attendance list must also be signed by other persons
present at the meeting.
|
|
|
23.3
|
The Managing Directors shall have the right to cast an advisory vote in the General Meetings.
|
|
|
23.4
|
The chairman of the meeting shall decide on the admittance of persons to the meeting other than
Shareholders or Persons with Meeting Rights.
|
|
|
24
|
Chairman and secretary of the meeting
|
|
|
24.1
|
The chairman of a General Meeting shall be appointed by the Persons with voting rights present
or represented at the meeting, by a simple majority of the votes cast.
|
|
|
24.2
|
The chairman of the meeting shall appoint a secretary for the meeting.
|
|
|
25
|
Minutes; recording of Shareholders’ resolutions
|
|
|
25.1
|
The secretary of a General Meeting shall keep minutes of the proceedings at the meeting. The minutes
shall be adopted by the chairman and the secretary of the meeting and as evidence thereof shall be signed by them.
|
|
|
25.2
|
The Management Board shall keep record of all resolutions adopted by the General Meeting. If the
Management Board is not represented at a meeting, the chairman of the meeting shall ensure that the Management Board is provided
with a transcript of the resolutions adopted, as soon as possible after the meeting. The records shall be deposited at the Company’s
office for inspection by the Shareholders and the other Persons with Meeting Rights. On application, each of them shall be provided
with a copy of or an extract from the records, at not more than cost price.
|
26 Adoption
of resolutions in a meeting
|
|
26.1
|
Each Share confers the right to cast one vote in the General Meeting.
|
|
|
26.2
|
To the extent that the laws of the Netherlands or these articles of association do not provide
otherwise, all resolutions of the General Meeting shall be adopted by a simple majority of the votes cast, in a meeting at which
a majority of the issued Shares is represented.
|
|
|
26.3
|
If there is a tie in voting, the proposal shall be deemed to have been rejected.
|
|
|
26.4
|
If the formalities for convening and holding of General Meetings, as prescribed by the laws of
the Netherlands or these articles of association, have not been complied with, valid resolutions of the General Meeting may only
be adopted in a meeting, if all Persons with Meeting Rights have consented to the
|
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|
|
|
decision-making taking place and the Managing Directors have been given the opportunity to give
advice prior to the decision-making.
|
|
|
27
|
Adoption of resolutions without holding a meeting
|
|
|
27.1
|
Shareholders may adopt resolutions of the General Meeting other than in a meeting, provided that
all Persons with Meeting Rights have consented to this manner to adopt a resolution. In case of adoption of resolutions other than
in a meeting, the votes shall be cast in writing. The requirement that votes must be cast in writing shall have been met if the
resolutions have been put in writing specifying the way in which each Shareholder has cast his vote. The Managing Directors shall
be given the opportunity to give advice prior to the decision-making.
|
|
|
27.2
|
Each Shareholder must ensure that the Management Board is informed of the resolutions thus adopted
as soon as possible in writing. The Management Board shall keep record of the resolutions adopted and it shall add such records
to those referred to in article 25.2.
|
|
|
28
|
Amendment of the articles of association
|
|
|
28.1
|
The General Meeting may resolve to amend these articles of association.
|
|
|
28.2
|
A resolution to amend these articles of association as a result of which the voting or distribution
rights will be amended can only be adopted by unanimous vote in a meeting where the entire issued capital of the Company is represented.
|
|
|
28.3
|
A resolution to amend these articles of association as a result of which a place outside the Netherlands
will be designated as place where General Meetings will be held, can only be adopted by unanimous vote in a meeting where the entire
issued capital of the Company is represented and provided that all Persons with Meeting Rights have consented to the amendment
of the articles of association.
|
|
|
28.4
|
When a proposal to amend these articles of association is to be made to the General Meeting, the
notice convening the General Meeting must state so and a copy of the proposal, including the verbatim text thereof, shall be deposited
and kept available at the Company’s office for inspection by the Shareholders and the other Persons with Meeting Rights,
until the conclusion of the meeting.
|
|
|
29
|
Bankruptcy and suspension of payments
|
|
|
29.1
|
The Management Board may not file for bankruptcy of the Company without instruction of the General
Meeting to do so.
|
|
|
29.2
|
The Management Board shall obtain prior approval of the General Meeting for a resolution with respect
to a request for a suspension of payments.
|
|
|
30
|
Dissolution and liquidation
|
|
|
30.1
|
The Company may be dissolved pursuant to a resolution to that effect by the General Meeting. When
a proposal to dissolve the Company is to be made to the General Meeting, this must be stated in the notice convening the General
Meeting.
|
|
|
30.2
|
If the Company is dissolved pursuant to a resolution of the General Meeting, the Managing Directors
shall become liquidators of the dissolved Company’s assets, unless the General Meeting resolves to appoint one or more other
|
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|
30.3
|
During liquidation, the provisions of these articles of association shall remain in force to the
extent possible.
|
|
|
30.4
|
The balance remaining after payment of the debts of the dissolved Company shall be transferred
to the Shareholders in proportion to the aggregate number of Shares held by each.
|
|
|
30.5
|
After the end of the liquidation the books, records and other data carriers of the dissolved Company
shall remain in the custody of the person designated for that purpose by the General Meeting, and in the absence thereof the person
designated for that purpose by the liquidators, for a period as prescribed by the laws of the Netherlands.
|
|
|
30.6
|
In addition, the liquidation shall be subject to the relevant provisions of Book 2, Title 1, of
the Dutch Civil Code.
|
|
|
31
|
Governing law and disputes
|
|
|
31.1
|
These articles of association are governed by the laws of the European part of the Netherlands.
|
|
|
31.2
|
Any and all disputes with respect to these articles of association between bodies of the Company,
members and/or former members of a body of the Company and/or the Company itself (each in their said capacity) shall in first instance
be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
|
Finally,
the person appearing has declared:
Conversion
of shares
Upon the foregoing amendment of
the articles of association taking effect, the shares in the capital of the Company in issue immediately prior thereto shall be
converted as follows:
|
|
(a)
|
one (1) share A, with a nominal value of one euro (EUR 1), numbered A1, into one hundred (100)
shares, with a nominal value of one euro cent (EUR 0.01) each, numbered 1 through 100;
|
|
|
(b)
|
one (1) share B, with a nominal value of one euro (EUR 1), numbered B1, into one hundred (100)
shares, with a nominal value of one euro cent (EUR 0.01) each, numbered 101 through 200;
|
|
|
(c)
|
one (1) preference share, with a nominal value of one euro (EUR 1), numbered P1, into one hundred
(100) shares, with a nominal value of one euro cent (EUR 0.01) each, numbered 201 through 300; and
|
|
|
(d)
|
one (1) preference share, with a nominal value of one euro (EUR 1), numbered P2, into one hundred
(100) shares, with a nominal value of one euro cent (EUR 0.01) each, numbered 301 through 400.
|
Issued capital
Upon the foregoing amendment of
the articles of association taking effect and immediately following the foregoing conversion of shares, the issued capital of the
Company shall amount to four euro (EUR 4), divided into four hundred (400) shares, with a nominal value of one euro cent (EUR 0.01)
each, numbered 1 through 400.
Close
The person appearing is known to
me, civil law notary.
LinklatersLLP
This deed was executed in Amsterdam,
the Netherlands, on the date first above written. Before reading out, a concise summary and an explanation of the contents of this
deed were given to the person appearing. The person appearing then declared that [he] / [she] had taken note of and agreed to the
contents of this deed and did not want the complete deed to be read to [him] / [her]. Thereupon, after limited reading, this deed
was signed by the person appearing and by me, civil law notary.
LinklatersLLP
ANNEX B
[Final Form]
AMENDED AND RESTATED SHAREHOLDERS’
AGREEMENT
by and among
TOTAL ENERGIES NOUVELLES ACTIVITES USA,
AMYRIS, INC.
and
TOTAL AMYRIS BIOSOLUTIONS B.V.
Dated as of [●], 2015
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
|
Section 1.01.
|
|
Certain Defined Terms
|
|
2
|
|
Section 1.02.
|
|
Definitions
|
|
8
|
|
Section 1.03.
|
|
Interpretation and Rules of Construction
|
|
10
|
|
|
|
|
|
|
|
ARTICLE II
|
|
ORGANIZATION AND RELATED MATTERS
|
|
|
|
|
|
|
|
Section 2.01.
|
|
Purpose
|
|
11
|
|
Section 2.02.
|
|
Licenses
|
|
11
|
|
|
|
|
|
|
|
ARTICLE III
|
|
CORPORATE GOVERNANCE
|
|
|
|
|
|
|
|
Section 3.01.
|
|
Power of the Management Board
|
|
11
|
|
Section 3.02.
|
|
Managing Directors
|
|
11
|
|
Section 3.03.
|
|
Removal
|
|
14
|
|
Section 3.04.
|
|
Vacancies
|
|
14
|
|
Section 3.05.
|
|
Covenant to Vote
|
|
14
|
|
Section 3.06.
|
|
Lead Directors
|
|
15
|
|
Section 3.07.
|
|
Auditors
|
|
15
|
|
Section 3.08.
|
|
Management Board Committees
|
|
15
|
|
Section 3.09.
|
|
Action by the Management Board
|
|
16
|
|
Section 3.10.
|
|
Action by the Shareholders
|
|
18
|
|
Section 3.11.
|
|
Approval of Five Year Plan; Approval of Budget
|
|
21
|
|
Section 3.12.
|
|
CEO and CFO
|
|
Erreur ! Signet non défini.
|
|
Section 3.13.
|
|
Subsidiaries
|
|
23
|
|
Section 3.14.
|
|
Fiscal Year
|
|
23
|
|
|
|
|
|
|
|
ARTICLE IV
|
|
JVCO FUNDING
|
|
|
|
|
|
|
|
Section 4.01.
|
|
Funding Principles
|
|
23
|
|
Section 4.02.
|
|
Carry by TENA USA
|
|
23
|
|
Section 4.03.
|
|
Additional Capital Contributions by the Shareholders
|
|
25
|
|
Section 4.04.
|
|
Shareholder Loans
|
|
27
|
|
Section 4.05.
|
|
Funding Defaults
|
|
28
|
|
Section 4.06.
|
|
Participation Rights on Third Party Financing
|
|
29
|
|
|
|
|
|
|
|
ARTICLE V
|
|
DISTRIBUTIONS
|
|
Section 5.01.
|
|
General
|
|
30
|
|
Section 5.02.
|
|
Distributions
|
|
30
|
|
Section 5.03.
|
|
Tax Distributions
|
|
31
|
|
|
|
|
|
|
|
ARTICLE VI
|
|
RESTRICTIONS ON TRANSFER AND SHARE PLEDGES
|
|
|
|
|
|
|
|
Section 6.01.
|
|
General
|
|
31
|
|
Section 6.02.
|
|
New Shareholders
|
|
31
|
|
Section 6.03.
|
|
Recognition of Transfer
|
|
31
|
|
Section 6.04.
|
|
Lock-up Period
|
|
31
|
|
Section 6.05.
|
|
Rights of First Refusal
|
|
31
|
|
Section 6.06.
|
|
Tag-Along Rights
|
|
34
|
|
Section 6.07.
|
|
Permitted Transferees
|
|
37
|
|
Section 6.08.
|
|
Registration Rights
|
|
37
|
|
|
|
|
|
|
|
ARTICLE VII
|
|
ADDITIONAL AGREEMENTS
|
|
|
|
|
|
|
|
Section 7.01.
|
|
Information to be Provided to Shareholders
|
|
37
|
|
Section 7.02.
|
|
Access to Information
|
|
38
|
|
Section 7.03.
|
|
Confidential Information
|
|
39
|
|
Section 7.04.
|
|
Compliance with Laws
|
|
40
|
|
Section 7.05.
|
|
Other Covenants
|
|
42
|
|
Section 7.06.
|
|
Services Agreements
|
|
44
|
|
Section 7.07.
|
|
Secondment
|
|
44
|
|
Section 7.08.
|
|
Liabilities
|
|
44
|
|
Section 7.09.
|
|
Transactions Between JVCO and the Shareholders or their Affiliates
|
|
44
|
|
|
|
|
|
|
|
ARTICLE VIII
|
|
RIGHT TO ACQUIRE BRAZIL BUSINESS
|
|
|
|
|
|
|
|
Section 8.01.
|
|
Exercise of Right
|
|
45
|
|
Section 8.02.
|
|
Execution of Acquisition Transaction
|
|
45
|
|
Section 8.03.
|
|
Dispute over Acquisition Price
|
|
46
|
|
|
|
|
|
|
|
ARTICLE IX
|
|
CHANGE OF CONTROL
|
|
|
|
|
|
|
|
Section 9.01.
|
|
Change of Control Optio
|
|
48
|
|
Section 9.02.
|
|
Certain Consequences of an Amyris Change of Control
|
|
49
|
|
Section 9.03.
|
|
Exemption from Transfer Restrictions
|
|
49
|
|
|
|
|
|
|
|
ARTICLE X
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
|
|
|
|
|
Section 10.01.
|
|
Representations and Warranties of the Shareholders
|
|
49
|
|
Section 10.02.
|
|
Indemnification
|
|
51
|
|
|
|
|
|
|
|
ARTICLE XI
|
|
TERM OF AGREEMENT
|
|
|
|
|
|
|
|
Section 11.01.
|
|
Term of Agreement
|
|
51
|
|
|
|
|
|
|
|
ARTICLE XII
|
|
TAX MATTERS
|
|
|
|
|
|
|
|
Section 12.01.
|
|
[reserved]
|
|
51
|
|
|
|
|
|
|
|
ARTICLE XIII
|
|
GENERAL PROVISIONS
|
|
|
|
|
|
|
|
Section 13.01.
|
|
Conflict
|
|
51
|
|
Section 13.02.
|
|
Further Action
|
|
52
|
|
Section 13.03.
|
|
Indemnities
|
|
52
|
|
Section 13.04.
|
|
Expenses
|
|
53
|
|
Section 13.05.
|
|
Notices
|
|
54
|
|
Section 13.06.
|
|
Public Announcements
|
|
54
|
|
Section 13.07.
|
|
Severability
|
|
55
|
|
Section 13.08.
|
|
Entire Agreement
|
|
55
|
|
Section 13.09.
|
|
Assignment
|
|
55
|
|
Section 13.10.
|
|
Third Party Beneficiaries
|
|
55
|
|
Section 13.11.
|
|
Amendment and Waiver
|
|
55
|
|
Section 13.12.
|
|
Governing Law
|
|
56
|
|
Section 13.13.
|
|
Dispute Resolution
|
|
56
|
|
Section 13.14.
|
|
Counterparts
|
|
58
|
|
Section 13.15.
|
|
Specific Performance
|
|
58
|
|
Section 13.16.
|
|
Relationship
|
|
58
|
|
Section 13.17.
|
|
Cumulative Rights
|
|
58
|
Schedules
Schedule 3.02(a) Managing Directors
AMENDED AND RESTATED SHAREHOLDERS’
AGREEMENT
This AMENDED AND RESTATED
SHAREHOLDERS’ AGREEMENT (this “Agreement”), dated as of [●], 2015, is by and among Total Energies Nouvelles
Activités USA (formerly known as Total Gas & Power USA, SAS),
a société par actions simplifiée
organized under the laws of the Republic of France (“TENA USA”), Amyris, Inc., a Delaware corporation (“Amyris”),
and Total Amyris BioSolutions B.V., a private company with limited liability incorporated under the laws of the Netherlands (
besloten
vennootschap met beperkte aansprakelijkheid
) (“JVCO,” and each of TENA USA, Amyris and JVCO, a “Party”
and, collectively, the “Parties”) and amends and restates the Shareholders’ Agreement among TENA USA, Amyris
and JVCO dated as of December 2, 2013 (the “Original Shareholders’ Agreement”).
W I T N E S S E T H:
WHEREAS, TENA USA is
engaged in industrial, commercial and research and development projects in the energy industry, and Amyris is an integrated renewable
products company focused on providing sustainable alternatives to a broad range of petroleum-sourced products used in specialty
chemical and transportation fuel markets worldwide;
WHEREAS on November
29, 2013, JVCO was incorporated by way of the execution of a notarial deed of incorporation which deed of incorporation also included
the articles of association of JVCO (the “Original Articles of Association”);
WHEREAS, on or about
December 2, 2013, the Parties entered into the Original Shareholders’ Agreement and Amyris granted an intellectual property
license to JVCO (the “Original Amyris License Agreement”);
WHEREAS, at the incorporation
of JVCO, Amyris was issued the Share A (as defined in the Original Articles of Association) and TENA USA was issued the Share B
(as defined in the Original Articles of Association);
WHEREAS, by notarial
deed of issuance, and in consideration of the license rights granted by Amyris to JVCO under the Original Amyris License Agreement,
at the incorporation of JVCO, Amyris was issued the Preferred Shares (as defined in the Original Articles of Association);
WHEREAS, TENA USA,
Amyris and JVCO now wish to further define their relationship by executing this Agreement, by amending and restating both the Original
Articles of Association and the Original Amyris License Agreement, by converting the Share A, Share B and the Preferred Shares
into a total of 400 Shares and by TENA USA purchasing additional Shares from Amyris so that Amyris will hold 100 Shares and TENA
USA will hold 300 Shares; and
WHEREAS, (i) the Articles
of Association set forth various rights and obligations of the Parties in connection with the formation and operation of JVCO and
(ii) this Agreement sets
forth separate and distinct rights and
obligations of the Parties in connection with the operation of JVCO.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements and covenants hereinafter set forth, the receipt and sufficiency of which
is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01.
Certain Defined Terms
. For purposes of this Agreement:
(a)
“
Accounting Standards
” means each of U.S. GAAP and Dutch GAAP.
(b)
“
Affiliate
” means, with respect to any specified Person, any other Person (i) that owns or controls,
directly or indirectly through one or more intermediaries, 50% or more of the voting rights of such specified Person; (ii) of which
50% or more of the voting rights are owned or controlled, directly or indirectly through one or more intermediaries, by such specified
Person; or (iii) of which 50% or more of the voting rights are owned or controlled, directly or indirectly through one or more
intermediaries, by any Person contemplated by clause (i);
provided
,
however
, that for purposes of this Agreement
(x) no Amyris Associated Entity or any of its Affiliates shall be considered an Affiliate of Amyris, (y) JVCO shall not be considered
an Affiliate of either Shareholder, and (z) neither Amyris nor any of its Affiliates shall be considered an Affiliate of TENA USA
or any of its Affiliates, even if in each case a Shareholder acquires ownership or control, directly or indirectly through one
or more intermediaries, of more than 50% of the voting rights of any such specified Person.
(c)
“
Amyris Associated Entity
” means each of (i) Novvi LLC, a Delaware limited liability company, and its
subsidiaries, (ii) SMA Indústria Química S.A., a sociedade anônima organized and existing under the laws of
Brazil, and its subsidiaries, and (iii) any other Person created after the date hereof by Amyris or any of its Affiliates, on the
one hand, and any Third Party, on the other, of which 50% of the voting rights are owned or controlled, directly or indirectly
through one or more intermediaries, by Amyris, and with respect to which TENA USA has consented to being designated an Amyris Associated
Entity (such consent not to be unreasonably withheld, conditioned or delayed).
(d)
“
Amyris Change of Control
” means the occurrence of any of the following at any time after the date hereof:
(i) the consolidation of Amyris with, or the merger of Amyris with or into, another “person” (as such term is used
in Rule 13d-3 and Rule 13d-5 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), or the sale,
lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the
assets of Amyris and its subsidiaries taken as a whole, or the consolidation of another “person” with, or the merger
of another “person” into, Amyris, other than in each case pursuant to a transaction in which the “persons”
that
“beneficially owned”
(as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, the Voting Shares of Amyris
immediately prior to the transaction “beneficially own”, directly or indirectly, Voting Shares representing at least
a majority of the total voting power of all outstanding classes of voting stock of the surviving or transferee person; (ii) the
adoption by Amyris of a plan relating to the liquidation or dissolution of Amyris, (iii) the consummation of any transaction (including
any merger or consolidation) the result of which is that any “person” becomes the “beneficial owner” directly
or indirectly, of more than 50% of the Voting Shares of Amyris (measured by voting power rather than number of shares); or (iv)
the first day on which a majority of the members of the Amyris board of directors does not consist of Continuing Directors. As
used in this definition, “Voting Shares” of any Person means capital shares or capital stock of such Person which ordinarily
has voting power for the election of directors (or persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of any contingency. As used in this definition, “Continuing
Director” means, as of any date of determination, any member of the Amyris Board of Directors who (i) was a member of the
Amyris board of directors on July 31, 2012 or (ii) was nominated for election or elected to the Amyris board of directors with
the approval of a majority of the Continuing Directors who were members of the Amyris board of directors at the time of such nomination
or election and who voted with respect to such nomination or election; provided that a majority of the members of the Amyris board
of directors voting with respect thereto shall at the time have been Continuing Directors. Notwithstanding the foregoing, an Amyris
Change of Control shall not be deemed to have occurred in connection with (A) any acquisition of Amyris by TENA USA (or any of
its Affiliates) or (B) any change in the board of directors of Amyris such that it is no longer composed of a majority of Continuing
Directors if any designee of TENA USA (or any of its Affiliates) to the board of directors of Amyris approves the nomination or
election of any member of the board of directors of Amyris that is not a Continuing Director or if TENA USA (or any of its Affiliates)
votes any Voting Shares in favor of the election of any member of the board of directors of Amyris that is not a Continuing Director.
(e)
“
Articles of Association
” means the amended and restated articles of association of JVCO, adopted on
or about the date of this Agreement, as amended from time to time after the date hereof.
(f)
“
Bona Fide Offer
” means any
bona fide
offer by a Third Party in writing to purchase any of the
Shares held by a Shareholder setting forth a specific purchase price (which shall consist of cash or marketable securities or a
combination thereof) and a closing date of no more than 30 days (which 30-day period may be extended solely to receive any consent
of any governmental authority that may be required pursuant to the requirements of any Competition Law in connection with such
Bona Fide Offer) after the expiration of the 30-Business Day period set forth in Section 6.05(a)(ii), and shall include an offer
to purchase or otherwise acquire Tag-Along Shares pursuant to Section 6.06.
(g)
“
Brazil Jet Business
” means the production and commercialization by Amyris and its Affiliates of Farnesane
Jet Products within Brazil for
commercialization
solely in Brazil, including the production of Farnesane Jet Products outside of Brazil for commercialization within Brazil, but
excluding the production of Farnesane Jet Products within Brazil for commercialization outside of Brazil. However, for purposes
of this definition, the commercialization of Farnesane Jet Products for use in vehicles that begin an international travel segment
within Brazil and conclude such international travel segment outside of Brazil shall constitute commercialization of such products
within Brazil.
(h)
“
Brazil Jet Business Assets
” means (i) the Brazil Jet Commercialization Assets; and (ii) if Amyris and
JVCO conclude, after a good faith evaluation promptly following JVCO’s exercise of its acquisition right in Article VIII
below, that it is reasonably feasible to separate such development and production assets from the rest of the operations and assets
of Amyris and its Affiliates, the development and production assets of Amyris and its Affiliates exclusively related to the Brazil
Jet Business. For clarity, Amyris’s Brotas manufacturing facility is not a Brazil Jet Business Asset.
(i)
“
Brazil Jet Commercialization Assets
” means the commercialization assets of Amyris and its Affiliates
exclusively related to the Brazil Jet Business (
e.g.
, Farnesane Jet Products sales contracts with airlines).
(j)
“
Brazil Jet Commercialization Assets Fair Market Value
” means the amount, determined as of the date JVCO
exercises its right to acquire the Brazil Jet Business in Article VIII below, equal to the fair market value that a willing buyer
would pay a willing seller in an arms’ length transaction to acquire the Brazil Jet Commercialization Assets, assuming that
the Brazil Jet Commercialization Assets were being sold in a manner designed to maximize the value of bids, when neither the buyer
nor the seller was acting under compulsion and when both have reasonable knowledge of the relevant facts, which amount shall be
mutually agreed between Amyris and JVCO.
(k)
“
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 State of New York, United States of America, the Republic of France, or the European part of the Netherlands;
or (iii) any day that is a day on which banking institutions located in New York, New York, United States of America, Paris, the
Republic of France or Amsterdam, the Netherlands, are authorized or required by law or other governmental action to close.
(l)
“
Cause
” means the conviction of a Person by a court of competent jurisdiction of, or a plea by a Person
of guilty or no contest to, a felony or any crime of theft, forgery, fraud, misappropriation or embezzlement, or the commission
of theft, forgery, fraud, willful misconduct, gross negligence, misappropriation or embezzlement against a Party or an Affiliate
thereof.
(m)
“
Claim
” means with respect to any Person, any and all suits, sanctions, legal proceedings, claims, assessments,
judgments, damages, penalties, fines, liabilities, demands, reasonable out-of-pocket expenses of whatever kind (including reasonable
attorney’s fees and expenses) and losses incurred or sustained by or against
such Person,
but excluding any lost profits or other special, incidental, indirect, punitive or consequential damages suffered by such Person.
(n)
“
Code
” means the U.S. Internal Revenue Code of 1986, as amended through the date hereof.
(o)
“
Collaboration Agreement
” means the Technology License, Development, Research and Collaboration Agreement
entered into by Amyris and Total Gas & Power USA Biotech, Inc. as of June 21, 2010, as amended by the Second Amendment, and
as such agreement may be further amended from time to time after the date hereof.
(p)
“
Competition Law
” means any applicable laws that are designed or intended to regulate mergers or other
business combinations or that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of
monopolization or restraint of trade.
(q)
“
Consolidated Equity
” means the consolidated owners’ equity of JVCO (as reflected on the most recent
consolidated balance sheets of JVCO), which is equal to shareholders’ equity plus shareholders’ debt, but excluding
any Carry.
(r)
“
control
” (including the terms “
controlled by
” and “
under common control
with
”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly
(whether or not as trustee, personal representative or executor), of the power to direct or cause the direction of the affairs
or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor,
by contract, credit arrangement or otherwise, including the ownership, directly or indirectly, of securities or ownership interests
having the power to elect or remove a majority of the board of directors or similar body governing the affairs of such Person.
(s)
“
Dutch GAAP
” means Dutch generally accepted accounting principles and practices as in effect from time
to time and applied consistently by JVCO throughout the periods involved and consistent with past practice (to the extent applicable).
(t)
“
Executive Officers
” means (a) in the case of Amyris, the Chief Executive Officer of Amyris, and (b)
in the case of TENA USA, the President of TENA USA, or such other senior executive officer of TENA USA or any of its Affiliates
having operational responsibility for the renewable energy and alternative fuels businesses of TENA USA and its Affiliates.
(u)
“
Farnesane Jet Products
” means a Jet Product that is farnesane, wherein the isoprenoid is farnesene.
(v)
“
Financial Statements
” means true and complete copies of the consolidated audited balance sheet of JVCO
as of the last day of JVCO’s Fiscal Year and the related statements of income, retained earnings, shareholders’ equity
and cash flows
of JVCO for
the Fiscal Year then ended, together with all related notes and schedules thereto, prepared in accordance with the Accounting Standards,
accompanied by the reports thereon of the Auditors.
(w)
“
Free Cash Flow
” for any period means cash flow from operations of JVCO for such period, including interest,
dividends and other distributions received by JVCO, net of capital expenditures (i.e., purchase of plant, property and equipment),
operating expenses, research and development expenses, tax liabilities and payments to Third Party creditors, each as set forth
on JVCO’s financial statements for such period, and available for distribution pursuant to Sections 4.02(d) and 5.02. Free
Cash Flow shall be calculated before any dividends are paid and any payments are made with respect to any outstanding Shareholder
loans and Carry.
(x)
“
Ground Floor Price
” means the investment by Amyris and its Affiliates into the Brazil Jet Business Assets
(excluding the Brazil Jet Commercialization Assets) from November 2011 through the date the Brazil Jet Business Assets are contributed
to JVCO under Article VIII below, including, but not limited to, technical development activities undertaken in Brazil, industrial
and supply chain, capital expenditures, working capital, sales and marketing commitments, negative operating cash flow (
i.e.,
not discounted by any losses) net of any liabilities of the Brazil Jet Business Assets that are assumed by JVCO and net of any
subsidies provided to the Brazil Jet Business Assets that are not subject to any repayment or claw-back obligation retained by
Amyris, which amount shall be mutually agreed to between Amyris and JVCO.
(y)
“
Jet Product
” means one or more fermentation produced isoprenoid(s) that may or may not be hydrogenated
or hydroprocessed, which when blended with petroleum-derived jet fuel, meet the ASTM D 1655 specification or the equivalent of
(or successor to) such standard for use as a jet fuel.
(z)
“
LIBOR
” means the British Bankers Association LIBOR Rate, as published by Reuters (or such other commercially
available source providing quotations of LIBOR as may be agreed upon in writing by TENA USA and Amyris) at approximately 11:00
a.m., London time, two Business Days prior to the relevant date.
(aa)
“
Lien
” means any security interest, pledge, mortgage, lien, charge, adverse claim of ownership or use,
or other encumbrance of any kind (other than any transfer restrictions imposed under securities laws, or any options, transfer
restrictions or purpose limitations pursuant to the Articles of Association or this Agreement or the Amyris License Agreement).
(bb)
“
Lock-up Period
” means the period commencing on the date of this Agreement and ending at 11:59 p.m.,
Pacific time, on March 1, 2018.
(cc)
“
Management Board
” means the management board of JVCO.
(dd)
“
Managing Director
” means a member of the Management Board.
(ee)
“
Non-Participation Issuance
” means any of the following issuances of Shares by JVCO: (i) Shares issued
by JVCO in consideration for the acquisition (whether by merger or otherwise) by JVCO of shares of capital stock or assets of any
Third Party; (ii) Shares issued by JVCO as a dividend, share sub-division, stock split, split-up or similar distribution of Shares;
and (iii) Shares or shares of capital stock or options to subscribe for Shares or shares of capital stock issued pursuant to awards
granted to employees, Officers or consultants of JVCO pursuant to an option plan or other compensation arrangement (including Shares
or shares of capital stock issued upon exercise of any such options).
(ff)
“
Permitted Deviations
” means the incurrence of expenses (or commitments therefor) in any quarter that
individually or in the aggregate (i) would not result in an overage of 10% or more from the aggregate capital expenditures or investments
included in the Budget (as finally determined pursuant to Section 3.11) for such quarter with respect to such capital expenditure
or investment (the “Target Capital Expenditures”), (ii) would not result in an overage of 10% or more from the aggregate
operating expenditures included in the Budget (as finally determined pursuant to Section 3.11) for such quarter (the “Target
Operating Expenditures”) and (iii) would not result in an overage of 10% or more from the aggregate other expenditures included
in the Budget (as finally determined pursuant to Section 3.11) for such quarter (“Target Other Expenditures”);
provided
,
however
, that if the total revenue for any quarter exceeds the targeted revenue for such quarter provided in the Budget,
the aggregate amount of Target Capital Expenditures, Target Operating Expenditures and Target Other Expenditures for the following
quarter may be increased on a dollar-for-dollar basis by an amount equal to such excess revenue for purposes of determining the
maximum Permitted Deviations for such following quarter, with the allocation of such excess revenue being allocated among such
target amounts as determined by the Management Board.
(gg)
“
Person
” means any individual, corporation (including any non-profit corporation), limited liability
company, joint stock company, general partnership, limited partnership, limited liability partnership, joint venture, estate, trust,
firm, governmental entity or other enterprise, association, organization or entity.
(hh)
“
Quarterly Financial Statements
” means true and complete copies of the consolidated unaudited balance
sheet of JVCO as of the last day of each fiscal quarter of JVCO and the related consolidated statements of income, retained earnings,
shareholders’ equity and cash flows of JVCO for each such fiscal quarter, together with all related notes and schedules thereto,
prepared in accordance with the Accounting Standards (except for the absence of footnotes and for normal year-end adjustments).
(ii)
“
Share
” means a share in the capital of JVCO.
(jj)
“
Shareholder
” means a holder of one or more Shares.
(kk)
“
TENA USA License Agreements
” means the license or licenses to be granted to JVCO by TENA USA as described
in Section 9 and Exhibit B of the Second Amendment to the Collaboration Agreement, dated July 30, 2012, between TENA USA
and Amyris,
as amended on April 1, 2015, and as subsequently amended from time-to-time (the “Second Amendment”).
(ll)
“
Third Party
” means any of: (x) with respect to any Shareholder, any Person (including, in the case of
Amyris, any Amyris Associated Entity) other than (i) such Shareholder’s Permitted Transferees or Affiliates, or (ii) JVCO,
and (y) with respect to JVCO, any Person other than (i) any Affiliate of JVCO, or (ii) any Shareholder or any of such Shareholder’s
Permitted Transferees or Affiliates.
(mm)
“
Transfer
” means the voluntary or involuntary sale, assignment, transfer (by gift or otherwise), conveyance,
grant of a participation interest, pledge or grant of a Lien (except to another Shareholder) or other disposition or conveyance
of legal or beneficial interest, directly or indirectly, whether in one transaction or in a series of related transactions.
(nn)
“
U.S. GAAP
” means United States generally accepted accounting principles and practices as in effect from
time to time and applied consistently by JVCO throughout the periods involved and consistent with past practice (to the extent
applicable).
Section 1.02.
Definitions
. The following terms have the meanings set forth in the Sections set forth below:
|
Definition
|
Section
|
|
Acceptance Notice
|
4.06(b)
|
|
Action
|
13.03(a)
|
|
Activities
|
7.04(a)
|
|
Additional Capital
|
4.03(a)
|
|
Additional Capital Notice Period
|
4.03(b)
|
|
Advisor
|
4.03(c)
|
|
Advisor’s Report
|
4.03(c)
|
|
Aggregate Carry Amount
|
4.02(a)
|
|
Agreement
|
Preamble
|
|
Amyris
|
Preamble
|
|
Amyris Directors
|
3.02(h)
|
|
Amyris License Agreement
|
2.02(a)
|
|
Anti-Corruption Laws
|
7.04(a)
|
|
Appraiser
Appraiser’s Report
Audit Committee
|
8.03(a)
8.03(b)
3.08(b)
|
|
Associates
|
7.04(a)
|
|
Auditors
|
3.07
|
|
Board Approval
|
3.09(a)
|
|
Budget
|
3.11(b)
|
|
Buyer
|
6.06(a)(i)
|
|
Carry
|
4.02(a)
|
|
Carry Lender
|
4.02(b)
|
|
Carry Notice
|
4.02(a)
|
|
Cash Option Amount
Chief Executive Officer
|
8.02
3.12(a)(i)
|
|
Chief Financial Officer
|
3.12(a)(ii)
|
|
COC Party
|
9.01(a)
|
|
Confidential Information
|
7.03(a)
|
|
Continuing Director
Covered Person
|
1.01(d)
13.03(a)
|
|
Default Offerees
|
6.05(c)
|
|
Default Purchase
|
4.05(a)
|
|
Defaulting Offeree
|
6.05(c)
|
|
Defaulting Shareholder
|
4.05(a)
|
|
Dispute
|
13.13(a)
|
|
Electronic Delivery
|
13.14
|
|
Eligible Shareholder
|
4.06(a)
|
|
Excess Transfer Shares
|
6.05(b)
|
|
Exchange Act
Fair Value
|
1.01(d)
4.03(c)
|
|
Fiscal Year
|
3.14
|
|
Five Year Plan
|
3.11(a)
|
|
Funding Default
|
4.05(a)
|
|
Funding Default Loan
|
4.05(a)
|
|
HSE
|
7.04(d)
|
|
ICC Rules
|
13.13(c)(i)
|
|
Indemnified Party
|
10.02
|
|
Indemnifying Party
|
10.02
|
|
Independent Accounting Firm
|
8.03(a)
|
|
Issuance Notice
|
4.06(a)
|
|
JVCO
|
Preamble
|
|
Lead Director
|
3.06(a)
|
|
Losses
|
13.03(a)
|
|
Non-COC Party
|
9.01(a)
|
|
Non-Defaulting Shareholder
|
4.05(a)
|
|
Offering Shareholder
|
6.05(a)(i)
|
|
Offeror
|
6.05(a)(i)
|
|
Officers
|
3.12(a)(iii)
|
|
Opinion Period
|
4.03(c)
|
|
Option Exercise Notice
Option Price
Participation Exercise Period
|
8.01
8.02
4.06(a)
|
|
Party or Parties
|
Preamble
|
|
Permitted Transferee
|
6.07
|
|
Pro Rata Share
|
4.06(a)
|
|
Reference Laws
|
7.04(a)
|
|
Report Period
Representatives
|
8.03(b)
7.03(a)
|
|
Right of First Refusal Notice
|
6.05(a)(i)
|
|
Second Amendment
Secondment Agreement
|
1.01(kk)
7.07
|
|
Securities
|
4.06(a)
|
|
Services Agreement
|
7.06
|
|
Shareholder Offerees
|
6.05(a)(i)
|
|
Share Price
|
4.03(c)
|
|
Subsidiary
|
3.13
|
|
Shareholder Approval
|
3.10(b)
|
|
Tag-Along Notice
|
6.06(a)(ii)
|
|
Tag-Along Offerees
|
6.06(a)(i)
|
|
Tag-Along Shares
|
6.06(a)(i)
|
|
Target Capital Expenditures
|
1.01(ee)
|
|
Target Operating Expenditures
|
1.01(ee)
|
|
Target Other Expenditures
|
1.01(ee)
|
|
TENA USA
|
Preamble
|
|
TENA USA Directors
|
3.02(g)
|
|
Transfer Default Shares
|
6.05(c)
|
|
Transfer Offer
|
6.05(a)(i)
|
|
Transfer Offerees
|
6.05(a)(i)
|
|
Transfer Shares
|
6.05(a)(i)
|
|
Transferor
Voting Shares
|
6.06(a)(i)
1.01(d)
|
Section 1.03.
Interpretation and Rules of Construction.
(a) The headings
contained in this Agreement, in any Exhibit or Schedule, and in the table of contents to this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this Agreement. All Schedules or Exhibits annexed hereto
or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
(b)
In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by all Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of
the authorship of any provisions of this Agreement.
(c)
The definitions of the terms herein shall apply equally to the singular and the plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
The word “shall” shall be construed to have the same meaning and effect as the word “will.” Unless the
context requires otherwise (i) any definition of or reference to any contract, instrument or other document shall be construed
as referring to such contract, instrument or other document as from time to time amended, supplemented or otherwise modified (subject
to any restrictions on such amendments, supplements or modifications set forth herein or otherwise set forth in such document);
(ii) any reference herein to
any Person shall be construed to include the Person’s successors and permitted assigns; (iii) the words “herein,”
“hereof,” “hereunder” and words of similar import shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof; (iv) ”day” shall mean calendar day, unless “Business Day”
is expressly used; and (v) all references to Articles, Sections, Schedules or Exhibits shall be construed to refer to Articles,
Sections, Schedules or Exhibits of this Agreement. The terms “dollars” and “$” shall mean United States
dollars. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any”
and “either” are not exclusive.
ARTICLE II
ORGANIZATION AND RELATED MATTERS
Section 2.01.
Purpose
. The purpose of JVCO is to develop, produce and commercialize jet fuels under the Amyris License Agreement
and conduct any and all activities related thereto.
Section 2.02.
Licenses
.
(a)
On or about the date of this Agreement, Amyris and JVCO have executed an Amended and Restated Jet Fuel License Agreement
(the “
Amyris License Agreement
”) in place of the Original Amyris License Agreement.
(b)
Promptly upon (i) a request from JVCO, in the case of the licenses described in Section 9.A (hydrogenation) or 9.B (certification)
of the Second Amendment, or (ii) the adoption of the initial Five Year Plan, in the case of the license described in the last paragraph
of Exhibit B to the Second Amendment, TENA USA and JVCO shall enter into the relevant TENA USA License Agreement(s), as otherwise
provided in the Second Amendment.
(c)
No Party grants any licenses, express or implied, to any other Party hereunder. The only license grants to JVCO or any other
Party (or any of their respective Affiliates) are those set forth (i) in the Amyris License Agreement or (ii) other separate written
agreements that may be entered into between or among the applicable Parties after the date hereof.
ARTICLE III
CORPORATE GOVERNANCE
Section 3.01.
Power of the Management Board
. The Management Board shall have the power and authority to manage, control and operate
JVCO as set forth in the Articles of Association.
Section 3.02.
Managing Directors
.
(a)
The Management Board shall consist of six Managing Directors. As of the date of this Agreement, the members of the Management
Board are set forth on
Schedule 3.02(a). Subject to
the provisions of this Article III, each Managing Director shall hold such office until he or she is removed or otherwise vacates
such office.
(b)
The number of Managing Directors may not be increased or decreased. For so long as the Management Board consists of six
Managing Directors, TENA USA and Amyris shall be entitled to designate one Managing Director for each one-sixth of the capital
stock of JVCO owned by such Shareholder or its Affiliates and Permitted Transferees (with fractional amounts below one-half of
the capital stock of JVCO that do not equal an increment of one-sixth being rounded up to the next one-sixth increment, and fractional
amounts above one-half of the capital stock of JVCO that do not equal an increment of one-sixth being rounded down to the next
one-sixth increment). As long as either TENA USA or Amyris, together with their respective Affiliates and Permitted Transferees,
own more than two-sixths of the capital stock of JVCO, such Shareholder shall be entitled to designate three Managing Directors,
as long as such Shareholder, and its Affiliates and Permitted Transferees, own more than one-sixth of the capital stock of JVCO,
such Shareholder shall be entitled to designate two Managing Directors, and as long as any such Shareholder, and its Affiliates
and Permitted Transferees, own either (x) at least 10% of the capital stock of JVCO (without rounding up as described above), or
(y) the second largest percentage of capital stock of JVCO, such Party shall be entitled to designate one Managing Director. If
either TENA USA or Amyris, and together with their respective Affiliates and Permitted Transferees, does not own either (I) at
least 10% of the capital stock of JVCO (without rounding up as described above) or (II) the second largest percentage of capital
stock of JVCO, such Shareholder shall not be entitled to designate any Managing Directors. Upon the written request of Amyris or
TENA USA to appoint any Managing Director that it is entitled to designate pursuant to this Agreement, each of Amyris and TENA
USA shall, and shall cause their Affiliates and Permitted Transferees to, vote, consent in writing and take or cause to be taken
all other actions necessary to appoint such Managing Director.
(c)
If the aggregate ownership of the capital stock of JVCO by either TENA USA or Amyris and their respective Affiliates and
Permitted Transferees at any time equals or exceeds five-sixths, then the other Shareholder shall promptly (and in any event within
five Business Days) cause one of its designated Managing Directors to resign from the Management Board and the vacancy on the Management
Board shall be filled by a fifth Managing Director designated by the Shareholder owning (together with its Affiliates and Permitted
Transferees) five-sixths of the capital stock of JVCO. The same procedure shall apply if either TENA USA or Amyris and their respective
Affiliates and Permitted Transferees is no longer entitled to designate a Managing Director pursuant to Section 3.02(b). Notwithstanding
the foregoing, if a Shareholder that has been required to cause a Managing Director to resign from the Management Board pursuant
to the procedure above increases its ownership of the capital stock of JVCO by it and its Affiliates and Permitted Transferees
such that it is entitled to designate a Managing Director pursuant to Section 3.02(b) (or increases it such that it is entitled
to Designate more than one Managing Director, as the case may be), then the other Shareholder shall promptly cause one (or more,
as the case may be) Managing Directors to resign from the Management Board and the vacancy (or vacancies, as the case may be) on
the
Management Board shall be filled
by a Managing Director designated by the Shareholder increasing its ownership of capital stock of JVCO.
(d)
Each Managing Director may consider the best interests of the Shareholder that appointed such Managing Director to the Management
Board in making any determination as a Managing Director.
(e)
To the extent that the laws of the Netherlands do not provide otherwise, any Managing Director that becomes aware of any
opportunity relevant to the Company (including opportunities in countries in which the Company is or is intended to be active),
then such Managing Director shall be free to inform the Shareholder that appointed him of such opportunity and such Shareholder
shall be free to proceed with such opportunity on its own with such opportunity at its sole cost, risk and expense, and it shall
be under no obligation to notify, or otherwise offer to engage with, the Company, in respect of such opportunity.
(f)
Each Shareholder shall pay the reasonable out of pocket costs and expenses incurred by each Managing Director selected by
such Shareholder in connection with attending the meetings of the Management Board and any committee thereof;
provided
,
however
, that JVCO shall pay the reasonable out of pocket costs and expenses incurred by each Managing Director in connection
with attending any meetings of the Management Board and any committee thereof held in the Netherlands. Except as otherwise provided
in the immediately preceding sentence or elsewhere in this Agreement, the Managing Directors shall not be compensated for their
services as members of the Management Board.
(g)
TENA USA will indemnify and hold harmless Amyris from and against any tax consequences to Amyris that are caused by or result
from the country of residence (other than the Netherlands) of any of the Managing Directors designated by TENA USA under this Section
3.02 (the “TENA Directors”), including any taxes due in the country of residence of any such TENA Directors if other
than the Netherlands;
provided
, that such indemnity shall not be applicable to the extent any such tax consequences are
caused by or result from any business that JVCO, Amyris or any of their respective Affiliates may conduct in, or any other contacts
JVCO, Amyris or any of their respective Affiliates may have with, the country of residence of any such TENA Directors.
(h)
Amyris will indemnify and hold harmless TENA USA from and against any tax consequences to TENA USA that are caused by or
result from the country of residence (other than the Netherlands) of any of the Managing Directors designated by Amyris under this
Section 3.02 (the “Amyris Directors”), including any taxes due in the country of residence of any such Amyris Directors
if other than the Netherlands;
provided
, that such indemnity shall not be applicable to the extent any such tax consequences
are caused by or result from any business that JVCO, TENA USA or any of their respective Affiliates may conduct in, or any other
contacts JVCO, TENA USA or any of their respective Affiliates may have with, the country of residence of any such Amyris Directors.
Section 3.03.
Removal
.
(a)
Upon the written request of Amyris or TENA USA to remove a Managing Director that it is entitled to designate pursuant to
this Agreement or the Articles of Association (whether or not for Cause), the Shareholders shall, and shall cause their Affiliates
and Permitted Transferees to, vote, consent in writing and take or cause to be taken all actions necessary to remove such Managing
Director. Except pursuant to this Section 3.03, no Shareholder shall, and no Shareholder shall permit any of its Affiliates and
Permitted Transferees, to, vote, consent in writing or take any other action to cause the removal without Cause of any Managing
Director that such Shareholder (or its Affiliates and Permitted Transferees) did not designate pursuant to Section 3.02.
(b)
Notwithstanding the foregoing, each Shareholder hereby agrees that any Managing Director designated pursuant to this Agreement
or the Articles of Association shall be removed for Cause upon the written request of another Shareholder and upon such other Shareholder
establishing that Cause exists and the Shareholders shall vote, consent in writing and take, or cause to be taken, all actions
necessary to remove such Managing Director.
(c)
Notwithstanding the foregoing, the removal of a Managing Director with or without Cause in no way eliminates, reduces or
otherwise modifies the respective rights of Amyris and TENA USA pursuant to Section 3.02 and Section 3.04 and the Articles of Association
to designate a replacement or successor or the respective obligations of the Shareholders pursuant to Section 3.04(b) or Section
3.05 with respect thereto.
Section 3.04.
Vacancies
.
(a)
In the event that a vacancy is created on the Management Board at any time by reason of the death, disability, retirement,
resignation or removal (with or without Cause) of any Managing Director, a replacement Managing Director to fill such vacancy shall
be designated in accordance with the Articles of Association and Section 3.02.
(b)
Notwithstanding any other provision in this Agreement, any individual designated pursuant to this Section 3.04 by a Shareholder
may not previously have been a Managing Director who was removed from the Management Board for Cause.
Section 3.05.
Covenant to Vote
.
(a)
Each Shareholder shall (and shall cause its Affiliates and Permitted Transferees to) take all actions necessary (i) to call,
or cause the appropriate Officers and Managing Directors of JVCO to call, a general meeting of Shareholders, and (ii) to vote all
Shares controlled, owned or held beneficially or of record by such Shareholder (or its Affiliates and Permitted Transferees) at
any such general meeting in favor of all actions, and shall (and shall cause its Affiliates and Permitted Transferees to) take
all actions by
written consent in lieu of any
such meeting, in each case to effect the intent of this Article III, including the nomination and election of Managing Directors
designated pursuant to this Article III.
(b)
Except as otherwise contemplated hereby, no Shareholder shall (or shall permit any of its Affiliates and Permitted Transferees
to) enter into any agreements or arrangements of any kind with respect to the voting of any Shares or deposit any Shares into a
voting trust or other similar arrangement.
Section 3.06.
Lead Directors
.
(a)
Each of TENA USA and Amyris shall designate one of their appointed Managing Directors to be a lead director representative
with respect to such Shareholder (each, a “Lead Director”). Each Lead Director shall be a senior executive of Amyris
or TENA USA, as applicable, and shall be required to spend an appropriate amount of time directly overseeing and supporting JVCO
as set forth in Section 3.06(b). Either TENA USA or Amyris may designate another Managing Director as its Lead Director at any
time or from time to time. If either TENA USA or Amyris is only entitled to designate one Managing Director pursuant to this Agreement,
such Managing Director so designated shall be the Lead Director of such Shareholder.
(b)
Each Lead Director shall (i) coordinate with the other Managing Directors (if any) appointed by such Shareholder; (ii) be
responsible for coordinating the requests from JVCO to the Shareholder appointing such Lead Director for resources that such Shareholder
has agreed to provide pursuant to this Agreement, the Amyris License Agreement, and the TENA USA License Agreement; (iii) work
with the other Lead Director and the Chief Executive Officer to resolve issues between Management Board meetings; and (iv) be the
initial point of contact for JVCO information requests made by the Shareholder designating such Lead Director.
Section 3.07.
Auditors
. The Parties agree that the outside auditors of JVCO shall be an independent accounting firm of internationally-recognized
reputation (the “Auditors”).
Section 3.08.
Management Board Committees
.
(a)
From time to time, the Management Board may designate one or more committees of Managing Directors, including, without limitation,
the Audit Committee. Unless the Management Board otherwise determines by the unanimous vote of all Managing Directors: (a) each
committee shall consist of at least two Managing Directors appointed by the Management Board; (b) Shareholders, together with their
Affiliates and Permitted Transferees, owning thirty percent (30%) or more of the outstanding capital stock of JVCO are entitled
to be represented on each such committee by their Managing Directors in proportion to the number of Managing Directors such Shareholder
is entitled to designate to the Management Board as a percentage of the entire Management Board (with fractional amounts below
one-half of the capital stock of JVCO that do not equal an increment of one Managing Director on any such committee being rounded
up, and fractional amounts above one-half of the capital stock of JVCO
that do not equal an increment
of one Managing Director on any such committee being rounded down); and (c) no committee will have any authority to act for or
on behalf of the Management Board or JVCO or to otherwise bind the Management Board or JVCO, but shall only be empowered to make
recommendations to the Management Board;
provided
,
however
, that if Amyris or TENA USA are not entitled to be represented
on a committee pursuant to subsection (b) above, so long as they are allocated a Managing Director pursuant to Section 3.02, they
shall be entitled to appoint an observer on such committee, who shall be allowed to attend and participate in each meeting of such
committee, and receive all information provided to the members of the committee, but shall not be allowed to vote at such meeting.
Unless unanimously agreed by all of the Managing Directors serving on any committee, meetings of any committee shall be subject
to the same notice, attendance, quorum and other procedural requirements as meetings of the Management Board as provided in Section
3.09. In the event that any committee is unable to resolve any recommendation on matters that it was appointed to consider, the
committee shall refer such matters to the Management Board. The Management Board may designate one or more Managing Directors as
alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee;
provided
,
however
, that, with respect to Managing Directors designated as alternates, only an Amyris Director may replace an absent
or disqualified committee member that is an Amyris Director, and only a TENA USA Director may replace an absent or disqualified
committee member that is a TENA USA Director.
(b)
At the request of any Shareholder, the Management Board shall designate an audit committee (the “Audit Committee”)
in accordance with Section 3.09(a). Following its designation, regular meetings of the Audit Committee shall be held at least quarterly
during each Fiscal Year. The purpose of the Audit Committee shall be, among other things, to: (i) review and recommend to the Management
Board the selection and appointment of the Auditors; (ii) review and make recommendations to the Management Board regarding the
internal audit functions of JVCO; (iii) review JVCO’s accounting systems; and (iv) review and recommend to the Management
Board the Quarterly Financial Statements and Financial Statements, and material accounting principles and practices.
Section 3.09.
Action by the Management Board
.
(a)
All actions of the Management Board, including, notwithstanding Article 14.1(b) of the Articles of Association to the contrary,
any proposed action or representation to be undertaken by three (3) Managing Directors acting jointly, shall require the affirmative
vote of at least a majority of the Managing Directors present or represented at a duly convened meeting of the Management Board
at which a majority of the Managing Directors is present, or, in lieu of a meeting, by the unanimous written consent of the Management
Board (“Board Approval”). Without limiting the foregoing, each Party shall not permit JVCO to make, take, enter, cause
or permit to occur, commit to, authorize or approve any of the following without Board Approval:
(i)
the approval and adoption of any Five Year Plan and the approval and adoption of any amendments to any approved Five Year
Plan, or any material change to the
nature, scope or scale of the business
of JVCO or the manner in which the business, operations, or other activities of JVCO are conducted from those contemplated by an
approved Five Year Plan;
(ii)
the hiring or dismissal of any Officer, subject to Section 3.12(a);
(iii)
subject to Section 3.10(b)(x), in the case of any Budget or any amendment to an approved Budget that increases the equity
or debt funding requirements of JVCO, or Section 3.10(b)(xxi), in the case of any other Budget or amendment to an approved Budget,
the approval and adoption of the Budget for any Fiscal Year and any amendments or deviations to an approved Budget, except for
Permitted Deviations;
(iv)
subject to Article V, any (A) declaration or payment of any dividend or other distribution on or in respect of any Shares
or the setting aside a sinking fund for such payment; (B) redemption, purchase or other acquisition of any Shares or other application
of any assets of JVCO thereto; (C) change in dividend policy of JVCO; or (D) other distributions pursuant to Article V;
(v)
the appointment of and any change in the Auditors or legal counsel of JVCO;
(vi)
any approval, entry into, revocation or material change to or non-renewal of any insurance policies held by JVCO;
(vii)
the establishment of any committees of the Management Board;
(viii)
the granting to any Person of any license or sublicense (subject to the terms of the applicable license agreement) or any
other grant of rights, including any right of enforcement or covenant not to sue, to or under any patents, know-how, trade secrets,
copyrights or other intellectual property;
(ix)
the approval of any capital expenditures or acquisitions that would reasonably be expected to require additional funding
(including pursuant to the Carry);
(x)
the determination of which Parties or Third Parties will conduct Manufacturing activities in whole or in part under a tolling
agreement; and
(xi)
all other matters that expressly require Management Board approval pursuant to this Agreement, the Articles of Association
or applicable law.
(b)
The Chief Executive Officer shall be responsible for setting the Management Board agenda prior to Management Board meetings
(which agenda shall specify in reasonable detail the matters to be discussed at the applicable Management Board meeting and which
shall be delivered to each Managing Director not later than five (5) Business Days before any regular meeting and concurrent with
the applicable notice for any special meeting).
(c)
Meetings of the Management Board shall be held at least once every six (6) months at such place and time as shall be determined
by the Chief Executive Officer (who shall as reasonably feasible accommodate requests with respect to the locations of each alternate
meeting as may be made by Amyris). At the start of each Fiscal Year, the Chief Executive Officer shall use commercially reasonable
efforts to set the time and place for regular meetings of the Management Board for such Fiscal Year. Regular meetings of the Management
Board shall be held upon not less than ten (10) Business Days’ prior notice in writing to each Managing Director; provided,
however, that such notice may, as to a Managing Director, be waived in writing by such Managing Director.
(d)
Special meetings of the Management Board may be called by any two Managing Directors. Special meetings of the Management
Board shall be held upon not less than five (5) Business Days’ prior notice in writing to each Managing Director, which notice
shall state the purpose or purposes for which such special meeting is being called; provided, however, that such notice may, as
to a Managing Director, be waived in writing by such Managing Director; and provided, further, that if the nature of the action
to be taken is such that time is of the essence with respect to such action, such emergency special meeting may be held without
such five (5) Business Days’ prior written notice if at least seventy-two (72) hours prior notice in writing has been given
to each Managing Director, a good faith effort has been made to notify and consult with each Managing Director regarding such action,
and a quorum exists for the taking of such action.
(e)
The Management Board shall use reasonable efforts to schedule regular and special meetings of the Management Board at such
places and times based on the reasonable availability of the Managing Directors such that all Managing Directors may participate
in all regular and special meetings of the Board.
(f)
At least four (4) of the Managing Directors then in office must be present or represented by another Managing Director at
any meeting of the Management Board in order to constitute a quorum for the transaction of business at such meeting. A majority
of the Managing Directors present or represented, whether or not a quorum is present, may adjourn any meeting to another time and
place. In the event that a quorum is not constituted at a duly called meeting of the Management Board, such meeting shall be adjourned
and postponed and notice of a second call for such meeting shall be sent to all Managing Directors setting forth a time and place
for the reconvening of the original meeting that is not less than three (3) Business Days nor more than fifteen (15) days after
the date initially set for such meeting. If a quorum is not present at such reconvened meeting, then such reconvened meeting shall
be adjourned and postponed and notice of a third call for such meeting shall be sent to all Managing Directors setting forth a
time and place for the reconvening of the original meeting that is not less than three (3) Business Days nor more than thirty (30)
days after the date initially set for such meeting
Section 3.10.
Action by the Shareholders
.
(a)
No Shareholder or group of Shareholders acting independently of the Management Board has the power to bind JVCO. A special
meeting of the
Shareholders may be called at
any time by a majority of the Management Board, the Chief Executive Officer or by one or more Shareholders upon not less than ten
Business Days’ prior written notice (which may be electronic) to each Shareholder, which notice shall state the purpose or
purposes for which such special meeting is being called;
provided
,
however
, that such notice may, as to any Shareholder,
be waived in writing by such Shareholder. No business may be transacted at such special meeting other than the business specified
in the notice to the Shareholders. JVCO shall use reasonable efforts to schedule meetings of Shareholders at such places and times
based on the reasonable availability of the Shareholders such that all Shareholders may participate in all meetings of Shareholders.
At all meetings of Shareholders of JVCO, the holders of at least a majority of the Shares entitled to vote thereat, present in
person or by proxy, will be required for and will constitute a quorum for the transaction of business;
provided
,
however
,
that a quorum for any meeting at which the Shareholders will vote on any items requiring Shareholder Approval pursuant to Section
3.10(b), shall equal holders of at least two-thirds of the Shares entitled to vote thereat, present in person or by proxy. In the
absence of a quorum, the holders of a majority of the Shares present at the meeting may only adjourn the meeting from time to time.
At any such adjourned meeting at which a quorum will be present, any business may be transacted that might have been transacted
at the meeting as originally called. Notice of the adjourned meeting will be given to each Shareholder setting forth a time and
place for the reconvening of the original meeting and observing a notice period of not less than ten Business Days. In the event
of two consecutive duly called special meetings at which a quorum has not been established, the quorum at the next special meeting
shall be the presence, in person or by proxy, of the holders of 50% or more of the Shares entitled to vote thereat.
(b)
JVCO shall not make, take, enter, cause or permit to occur, commit to, authorize, or approve any of the following, and each
Party shall not permit JVCO to make, take, enter, cause or permit to occur, commit to, authorize, or approve any of the following
without the affirmative vote of the holders of a majority of the outstanding Shares at a duly convened Shareholder meeting at which
a quorum is present, or, in lieu of a meeting, by the unanimous written consent of all Shareholders (“Shareholder Approval”)
(
provided
,
however
, that the Management Board shall submit for approval each of the below actions to the Shareholders,
and take such actions to implement any such actions which are approved by the holders of a majority of the outstanding Shares pursuant
to this subsection (b)):
(i)
the incorporation, establishment or acquisition of any Subsidiary, in accordance with Section 3.13;
(ii)
the issuance, including the increase of any share premium, to any Person of any capital stock of JVCO, or of any Securities,
warrants, options or rights in or to any capital stock of JVCO, including any Additional Capital, or the redemption, purchase or
other acquisition of any capital stock or other securities of JVCO;
(iii)
the subscription for or acquisition of any shares of or any interest in any Person, or the creation of any Person of which
it would be a stockholder, partner, member or similar participant, including in each case any subsidiary of JVCO;
(iv)
any merger, consolidation, share exchange, amalgamation or similar business combination transaction with or into any other
Person;
(v)
the increase or decrease of the authorized or issued number of Shares or the creation (by reclassification or otherwise)
of any new class or series of capital stock of JVCO having rights, preferences or privileges senior to or on a parity with any
outstanding series of Shares;
(vi)
in addition to the approval required pursuant to Section 7.09, any transaction between JVCO, on the one hand, and any Shareholder,
any Affiliate of a Shareholder, or any officer, director, or employee of any Shareholder or its Affiliates, on the other hand;
(vii)
[reserved];
(viii)
any voluntary bankruptcy, consent to involuntary bankruptcy, dissolution, winding-up, merger, liquidation, sale of a portion
or all of the assets (other than the sale of inventory in the ordinary course of business) of JVCO;
(ix)
the entry into any investment or contract by JVCO the performance of which will entail expenditures to be funded in the
form of capital stock of JVCO or securities convertible into or exercisable or exchangeable for capital stock of JVCO;
(x)
any Budget or any amendment to an approved Budget that increases the equity or debt funding requirements of JVCO or any
subsidiary of JVCO;
(xi)
the engaging in any business outside the scope of JVCO set forth in this Agreement;
(xii)
in addition to the approval required pursuant to Section 13.11, any modification, amendment or variation of the items listed
in this Section 3.10(b);
(xiii)
the acquisition or disposition in any Fiscal Year of assets (including intellectual property) having a value in excess of
the greater of (A) $5M and (B) 10% of the Consolidated Equity or its equivalent in other currencies;
(xiv)
the extension of credit to any one customer or other debtor in an amount exceeding the greater of (A) $5M and (B) 10% of
the Consolidated Equity or its equivalent in other currencies;
(xv)
the incurrence or borrowing of any indebtedness or any lease transaction in excess of the greater of (A) $5M and (B) 10%
of the Consolidated Equity or its equivalent in other currencies, other than pursuant to the Carry;
(xvi)
the waiver or non-enforcement of any rights for an amount exceeding the greater of (A) $5M and (B) 10% of the Consolidated
Equity or its equivalent in other currencies that JVCO may have pursuant to any contracts or agreements, or in respect of any transactions;
(xvii)
the initiation or settlement of any legal or arbitration proceedings or dispute with a value reasonably estimated to be
in excess of the greater of (A) $5M and (B) 10% of the Consolidated Equity or its equivalent in other currencies;
(xviii)
the granting of any Lien on a material portion or all of the assets or capital stock of JVCO, other than pursuant to the
Carry;
(xix)
the entry into any investment or contract the performance of which will entail non-equity (including securities convertible
into or exercisable or exchangeable for equity) financed expenditures in excess of the greater of (A) $5M and (B) 10% of the Consolidated
Equity or its equivalent in other currencies;
(xx)
in addition to the approval required pursuant to Section 13.11, any amendment to or waiver pursuant to this Agreement or
the Articles of Association;
(xxi)
any approval of any Budget or amendment to an approved Budget and any variation which is not a Permitted Deviation; and
(xxii)
all other matters that expressly require Shareholder approval pursuant to this Agreement, the Articles of Association or
applicable law.
Section 3.11.
Approval of Five Year Plan; Approval of Budget
.
(a)
Promptly upon the request of a majority of the Shareholders, the Management Board shall adopt a template and statement of
principles to be followed in connection with the preparation of an initial five year strategic business plan for JVCO. After the
approval of such template and statement of principles, JVCO shall prepare an initial five year strategic business plan for JVCO
(the “Five Year Plan”), which initial Five Year Plan shall be prepared in a manner consistent with such approved template
and statement of principles. Within 90 days after the presentation of the Five Year Plan to the Management Board, the Management
Board shall meet to consider adopting the initial Five Year Plan.
(b)
No later than September 15 of each Fiscal Year, the Officers shall submit to the Management Board a proposed budget for
JVCO (including, as applicable, a capital expenditure budget and an operating budget) for the following Fiscal Year (a “Budget”),
which Budget shall include the equity and debt funding requirements of JVCO in respect of such Fiscal Year. Within 60 days after
the submission thereof, the Management Board shall meet to discuss such Budget and shall adopt such Budget, subject to Shareholder
Approval. The adoption and approval of any Budget which includes equity and debt funding requirements for JVCO does not constitute
the agreement or commitment by, or consent of, any Shareholder to provide, or to any other Shareholder or Third Party providing,
the required equity or debt financing.
Section 3.12.
CEO and CFO
.
(a)
The Management Board shall appoint from its members a Chief Executive Officer and a Chief Financial Officer. The Chief Executive
Officer shall also
be the chairperson of the Management
Board. Without prejudice to the collective responsibility of the Management Board as a whole, the Chief Executive Officer and the
Chief Financial Officer are charged with specific parts of the managerial tasks:
(i)
Chief Executive Officer
. The Chief Executive Officer of JVCO (the “
Chief Executive Officer
”) is
primarily responsible for (a) preparing an agenda and chairing meetings of the Management Board, (b) ensuring that the Management
Board functions and makes decisions in a collective manner, (c) ensuring that passed resolutions are in accordance with the strategy
that should lead to the realization of the objectives of JVCO as referred to in Section 2.01, (d) supervising the implementation
of passed resolutions and determining if further consultation with the Management Board on their implementation is required, (e)
consulting on an ad hoc basis with members of the Management Board regarding their respective tasks, (f) the development and implementation
of JVCO's strategy and objectives and (g) to affix the signature of JVCO to all deeds, contracts, agreements, conveyances, mortgages,
guarantees, leases, licenses, obligations, bonds, certificates and other papers and instruments in writing that have been authorized
by the Management Board or that, in the judgment of the Chief Executive Officer, should be executed on behalf of JVCO. The Chief
Executive Officer shall be designated by the Management Board, subject to a veto right by TENA USA, provided that TENA USA holds
at least 40% of the Shares at the time of the exercise of such veto right.
(ii)
Chief Financial Officer
. The Chief Financial Officer of JVCO (the “
Chief Financial Officer
”) is
primarily responsible for (a) formulating and communicating the JVCO’s financial strategy, (b) overseeing and ensuring the
integrity of JVCO’s accounts, (c) the financial reporting of JVCO and (d) perform such other duties and have such other powers
as are commonly incident to the office of Chief Financial Officer and of treasurer of JVCO, or as the Management Board may from
time to time prescribe.
(iii)
Other Officers
. The Management Board may appoint certain other key officers (together with the Chief Executive Officer
and the Chief Financial Officer, collectively the “
Officers
”), including a chief technical officer, chief operating
officer and chief marketing officer, to manage JVCO together with the Management Board. The duties, powers and responsibilities
of each such other officer shall be as determined by the Management Board but may not be inconsistent with this Article III or
superior to the duties, power and responsibilities of the Chief Executive Officer or the Chief Financial Officer.
(b)
The Officers shall conduct the day-to-day business of JVCO pursuant to such authority as may be delegated to each of them
by the Management Board.
(c)
Subject to the Five Year Plan and each Budget, the Officers shall hire such other employees as they shall deem necessary
to operate JVCO, either directly employed or on a seconded basis in accordance with Section 7.07.
(d)
Notwithstanding the foregoing, (i) the removal of any Officer with or without Cause in no way eliminates, reduces, or otherwise
modifies the rights of TENA USA to veto a replacement or successor pursuant to this Section 3.12 and (ii) any Officer designated
pursuant to this Section 3.12 may not previously have been an Officer
who was removed for Cause. No
Shareholder shall have any liability to JVCO or to any other Shareholder or their Affiliates for the actions of an Officer designated,
recommended, approved or not vetoed by such Shareholder.
Section 3.13.
Subsidiaries
. Subject to Section 3.10(b)(i) hereof, JVCO may form or acquire any corporation, partnership, limited
liability company, joint venture or other legal entity (each a “
Subsidiary
”). If 100% of the stock or other
equity interests of a Subsidiary is not held, directly or indirectly, by JVCO or other Subsidiaries of JVCO, the Parties will negotiate
in good faith to amend this Agreement to address the governance of such new Subsidiary prior to such formation or acquisition.
Section 3.14.
Fiscal Year
. JVCO’s fiscal year shall be from January 1st to December 31st (the “
Fiscal Year
”)
of each year.
ARTICLE IV
JVCO FUNDING
Section 4.01.
Funding Principles
.
(a) The Parties
acknowledge and agree that, subject to tax and legal requirements and conditions in the financial markets and in the markets for
JVCO’s products, in order to maximize leverage for projects undertaken by JVCO, JVCO shall primarily seek to pursue debt
from Third Parties that is non-recourse to the Shareholders to meet their ongoing funding requirements, and such Third Party debt
may be senior to any debt incurred pursuant to Section 4.02 and Section 4.04 and may be secured by Liens on the assets of JVCO.
(b)
It is the intention of the Parties, subject to the governance provisions included herein and in the Articles of Association,
that all funding requirements of JVCO, to the extent not available from Third Party debt financing sources pursuant to Section
4.01(a), shall be provided first by TENA USA as Carry pursuant to Section 4.02, second by Shareholders and their Affiliates as
Shareholder loans pursuant to Section 4.04 (
provided
,
however
, that such financing provided as Carry or Shareholder
loans shall not cause JVCO to have greater than a three to one debt to equity ratio), and third by Shareholders and their Affiliates
as Additional Capital pursuant to Section 4.03 (and then by TENA USA (and its Affiliates) and Amyris (and its Affiliates) in proportion
to their pro rata ownership of the capital stock of JVCO).
Section 4.02.
Carry by TENA USA
.
(a)
At any time and from time to time prior to December 31, 2016, the Management Board, taking into consideration the funding
principles set forth in Section 4.01, may cause JVCO to provide written notice (a “
Carry Notice
”) to TENA USA
to procure one or more loans to JVCO (each, a “
Carry
”) of not more than $50,000,000 in the aggregate (the “
Aggregate
Carry Amount
”);
provided
,
however
, that in any vote by the Management Board to approve a Carry Notice,
and
provided
that the Management Board has taken into consideration the funding principles set forth in Section 4.01, the
Managing Directors appointed by TENA USA shall (i) not vote against
such approval and (ii) shall
be deemed to be present at the meeting if they are not attending a duly convened Management Board meeting. The Carry Notice shall
include the following information: (i) the amount of Carry to be loaned, (ii) a statement whether the Carry would be loaned in
one tranche or in installments, and if in installments, the anticipated schedule and conditions of such installments, including
milestones triggering payment, (iii) a certification by JVCO that the use of proceeds of the Carry is consistent with the limitation
for the use of Carry in accordance with the last sentence of this Section 4.02(a) and (iv) a statement describing the use of proceeds
for the Carry loan. A Carry may be provided after December 31, 2016 so long as the applicable Carry Notice was provided prior to
December 31, 2016. Any Carry shall only be loaned to JVCO for purposes of (i) capital expenditures, (ii) acquisitions approved
by the Management Board of Managing Directors per Section 3.09 for the purpose of making and selling activities undertaken by JVCO,
and (iii) operating expenses and working capital needs of the Company.
(b)
Each Carry shall be a loan from TENA USA, an Affiliate of TENA USA, or a Third Party financial institution arranged and
guaranteed in full by and with full recourse to TENA USA and having the terms set forth in subsection (c) (each, a “Carry
Lender”) to JVCO. Each of the Carry Lender and JVCO shall negotiate in good faith definitive and customary documentation,
reasonably satisfactory to the Carry Lender and Amyris (on behalf of JVCO), in respect of each Carry as promptly as practicable
following delivery by JVCO of a Carry Notice and in any event within 90 days.
(c)
The material terms of the Carry shall be as follows: (i) the Carry Lender shall earn interest on the outstanding principal
on the Carry at a rate of 10.0% per annum, computed on the basis of the actual number of days elapsed; (ii) all unpaid principal,
together with any then unpaid and accrued interest, in respect of all Carry shall be due and payable on December 31, 2020, unless
otherwise agreed by the Parties, whether or not there shall exist sufficient Free Cash Flow to enable JVCO to make any such payment;
(iii) the principal and interest on the Carry shall be repaid in dollars by wire transfer of immediately available funds to the
Carry Lender; and (iv) all Carry (including any Carry provided by a Third Party financial institution) shall be subordinated to
any indebtedness with any Third Parties (other than any Carry provided by a Third Party financial institution) but shall rank senior
to other Shareholder loans. A Carry may provide for a single advance or may permit JVCO to draw down such Carry through multiple
borrowings over a period of time, but any amounts repaid under a Carry may not be reborrowed as Carry.
(d)
For so long as any Carry is outstanding, prior to making any distributions pursuant to Article V, JVCO shall use an amount
equal to 70% of its Free Cash Flow, to repay the principal of, and interest accruing on, such Carry (with any such payments being
applied first to the payment of interest).
(e)
Each Carry shall be secured by (i) a pledge by JVCO of all assets of JVCO (ii) several (and not joint) guarantees by each
Shareholder (and, in the case of Amyris, its ultimate parent entity, if applicable) in proportion to such Shareholder’s pro
rata ownership of JVCO, which guarantees shall additionally be secured by a pledge of
the Shares beneficially owned,
directly or indirectly, by such Shareholder (and its Affiliates and Permitted Transferees). The definitive documentation in respect
of the pledges and guarantees contemplated by this Section 4.02(e) shall be in customary form, shall be reasonably satisfactory
to the Carry Lender and Amyris (on behalf of JVCO) and shall be negotiated in good faith by the Parties as promptly as practicable
following delivery by JVCO of a Carry Notice and in any event within 90 days. In the event the Carry Lender is TENA USA or an Affiliate
of TENA USA, the Carry Lender shall have no obligation to enforce any such guarantee against TENA USA;
provided
,
however
,
that if Amyris shall make any payment in respect of any Carry under its guarantee, TENA USA shall make, or shall be deemed to have
made, a payment in respect of such Carry under its guarantee corresponding to its proportionate equity in JVCO. The guarantees
contemplated by this Section 4.02(e) shall be proportionately adjusted in the event: (x) a Third Party becomes a Shareholder in
JVCO and issues a pro rata guarantee pursuant to subsection (f), or (y) a Shareholder’s proportionate equity in JVCO is diluted
or increased.
(f)
If JVCO issues or sells Shares to a Third Party, or recognizes the Transfer of any Shares by any Shareholder to a Third
Party, and any portion of the Aggregate Carry Amount has not yet been borrowed by JVCO, TENA USA shall assign, and such Third Party
shall accept the assignment of, the pro-rata portion of TENA USA’s obligation to provide the remaining unborrowed portion
of the Aggregate Carry Amount that corresponds to the relative percentages of TENA USA (and its Affiliates) and such Third Party’s
shares in JVCO (excluding the shares of Amyris). If JVCO issues or sells Shares to a Third Party, or recognizes the Transfer of
any Shares by any Shareholder to a Third Party, and any Carry is outstanding, the Carry Lender shall assign, and such Third Party
shall accept the assignment of, the pro-rata portion of the outstanding Carry that corresponds to the relative percentages of the
Carry Lender (and its Affiliates) and such Third Party’s shares in JVCO (excluding the shares of Amyris), and such Third
Party shall pay to the Carry Lender such pro-rata portion of any amounts outstanding under the Carry (including interest accrued)
and no later than two Business Days after such issuance or sale of Shares and shall thereby become the Carry Lender with respect
to such pro rata portion. Such Third Party shall also provide ultimate parent company guarantees and pledge its Shares as security
for the repayment of its pro-rata portion (including the share of Amyris) of the Carry, in each case on substantially similar terms
to those guarantees and pledges provided by the Shareholders.
Section 4.03.
Additional Capital Contributions by the Shareholders
.
(a)
At any time after TENA USA has provided the Aggregate Carry Amount to JVCO, if the Management Board determines that JVCO
requires additional capital for any reason or, prior to such a time, if the Management Board determines that JVCO requires additional
capital and the use of proceeds of such additional capital does not meet the purpose requirements for a Carry contained in Section
4.02 (other than, in each case, to repay any outstanding Carry or Shareholder loans), and in each case the Third Party financing
contemplated by Section 4.01(a) is not available or sufficient and sufficient Shareholder loans pursuant to Section 4.04 are not
agreed with Shareholders or advisable due to applicable legal or tax constraints (such as minimum capital
requirements and thin capitalization
rules), and accordingly the Management Board determines to seek additional equity capital for JVCO from the Shareholders (in any
such case, “
Additional Capital
”), then JVCO shall (i) request that the Shareholders approve the issuance of
Additional Capital pursuant to Section 3.10(b)(ii) and (ii) take or cause to be taken all actions reasonably necessary to effect
the raising of such Additional Capital.
(b)
If the Shareholders shall approve the issuance of Additional Capital pursuant to Section 3.10(b)(ii), then JVCO shall notify
each Shareholder of the Additional Capital to be provided pursuant to this Section 4.03 by delivering a written notice to each
Shareholder in accordance with Section 13.05 specifying the aggregate amount of Additional Capital required at such time, the entity
seeking such Additional Capital, the amount of Additional Capital requested to be provided by such Shareholder, which shall be
equal to the pro rata ownership of the capital stock of JVCO of such Shareholder and its Affiliates and Permitted Transferees,
the price per Share for the Additional Capital (determined as set forth in Section 4.3(c) below), and the date on which such Additional
Capital is due (which date shall be no less than 60 days following delivery of such notice) (the “
Additional Capital Notice
Period
”).
(c)
The price per Share for the Additional Capital shall be (i) approved by the Management Board and (ii) agreed among the Parties
purchasing such Additional Capital, or if such price cannot be so agreed, it shall be equal to the Share Price. For purposes of
this Agreement, (i) “
Share Price
” means the Fair Value of JVCO divided by the total number of outstanding Shares
(including in such case Shares that would be issuable upon conversion, exercise or exchange of all securities that are then convertible,
exercisable or exchangeable into or for (whether directly or indirectly) Shares) as of the date of a determination of Fair Value;
and (ii) “
Fair Value
” of JVCO means the aggregate equity value of JVCO that a willing buyer would pay a willing
seller in an arms’-length transaction to acquire JVCO, assuming that JVCO was being sold in a manner designed to maximize
bids, when neither the buyer nor the seller was acting under compulsion and when both have reasonable knowledge of the relevant
facts, without any control premiums or illiquidity or minority interest discounts. Amyris and TENA USA shall negotiate in good
faith for a period of 20 days from the date of the event giving rise to the need for a determination of Fair Value to try to determine
the Fair Value of JVCO. If Amyris and TENA USA are unable to reach a mutual determination of Fair Value within such 20-day period,
each of Amyris and TENA USA shall promptly appoint (at its own expense) a qualified, recognized appraiser of international standing
(such as, by way of example only, the valuation group of an international accounting firm or a global investment bank) with substantial
experience in valuing companies with a size, organization, and assets similar to that of JVCO (each, an “
Advisor
”),
and each such Advisor shall deliver a written opinion with supporting materials as to the Fair Value of JVCO (an “
Advisor’s
Report
”) to each of Amyris and TENA USA concurrently within 20 Business Days of its appointment (the “
Opinion
Period
”). If the Fair Value of JVCO determined by an Advisor is presented in such Advisor’s Report as a range of
values, then the Fair Value of JVCO for purposes of such Advisor’s Report shall be deemed to be the arithmetic average of
such range. If only one Advisor timely delivers its Advisor’s Report, the value determined by such Advisor shall be deemed
to be the Fair Value of JVCO for purposes hereof. If both of the Advisors timely deliver an Advisor’s Report
and if the difference between
the Fair Values submitted by each Advisor equals 10% or less of the higher value, then the Fair Value of JVCO for purposes hereof
shall be deemed to be the arithmetic average of the Fair Values submitted by such Advisors. If the difference between the two values
is greater than 10% of the higher value, then Amyris and TENA USA shall negotiate in good faith for a period of 5 Business Days
from the expiration of the Opinion Period to try to determine the Fair Value of JVCO. If, during such period, Amyris and TENA USA
cannot agree on the Fair Value of JVCO, then they shall jointly select a third Advisor that has not been engaged by either of Amyris
and TENA USA or their respective Affiliates in any capacity during the two-year period preceding such date, which third Advisor
shall be required to choose only one of the two previously-submitted Fair Values and shall not be authorized to determine a new,
third value. If Amyris and TENA USA cannot agree on the third Advisor, then their respective Advisors shall together be instructed
to select as the third Advisor an Advisor that has not been engaged by either of Amyris and TENA USA or their respective Affiliates
in any capacity during the two-year period preceding such date. Neither Amyris nor TENA USA (or any Affiliate or representative
of either Amyris or TENA USA) shall communicate unilaterally with the third Advisor. The third Advisor will be instructed to deliver
to Amyris and TENA USA concurrently, within 15 Business Days of its appointment, an Advisor’s Report selecting which of the
two Fair Values submitted by the original two Advisors better approximates the Fair Value of JVCO. The value chosen by the third
Advisor shall then be deemed to be the Fair Value of JVCO and will be non-appealable, final and binding on the Parties for purposes
hereof. The Parties shall cooperate with each other and with the Advisors and shall provide all information reasonably requested
by the Advisors in connection with their valuation. The Advisors shall, in determining the Fair Value of JVCO, consider all material
information resulting from such diligence and access, subject to the definition of “Fair Value” set forth herein. Each
of Amyris and TENA USA shall bear the fees and expenses of its Advisor, and they shall split equally the fees and expenses of the
third Advisor. Each Party shall use its respective reasonable efforts to assist in the determination of the Fair Value of JVCO,
including providing any information reasonably required for such purpose.
(d)
Promptly upon a contribution of Additional Capital pursuant to this Section 4.03, JVCO shall issue to each contributing
Shareholder (or its designated Affiliate) that receives additional Shares pursuant to this Section 4.03 such additional Shares,
Schedule 6.02 to this Agreement and the register of Shareholders of JVCO shall be amended to reflect the issuance of such additional
Shares to reflect the name of the designated Affiliate holding such Shares.
Section 4.04.
Shareholder Loans
. Subject to Section 4.02, the Shareholders (or any Affiliates thereof) may, but shall not be obligated
to, make loans to JVCO, to the extent requested in writing by JVCO, if the material terms and conditions thereof are approved by
the Management Board and the Shareholders. Such loans shall (i) be on terms acceptable to JVCO, and agreed to by the Management
Board and the Shareholders; (ii) be made by a Shareholder in proportion to such Shareholder’s pro rata ownership of JVCO;
(iii) rank pari passu with all other Shareholder loans (other than any Carry) and be made pursuant to identical contractual terms
(including with respect to interest thereon) with each Shareholder; (iv) provide that drawdowns and, except as required pursuant
to Section 9.01, repayments be simultaneous for all
Shareholders (with the amount of a drawdown
to be proportional to such Shareholders’ pro rata ownership of JVCO and the amount of a repayment to be proportional to the
aggregate outstanding amount of Shareholder loans); and (v) be subordinated to any indebtedness with any Third Parties and to any
Carry. With the exception of the Carry in Section 4.02, under no circumstances shall a Shareholder (or any Affiliate thereof) be
obligated to make loans to JVCO.
Section 4.05.
Funding Defaults
.
(a)
In the event of any (i) failure by Amyris or TENA USA, as applicable, to contribute its pro rata share of previously approved
and committed Additional Capital to the extent required pursuant to Section 4.03, (ii) failure by Amyris or TENA USA, as applicable,
to fund a drawdown of a Shareholder loan to the extent required pursuant to Section 4.04, or (iii) failure by TENA USA to fund
a Carry to the extent required pursuant to Section 4.02, in each case which failure is not cured within five Business Days of the
applicable required funding date (in each case a “Funding Default” and, the Shareholder whose failure to fund any such
Additional Capital, Shareholder Loan or Carry, the “Defaulting Shareholder”), the other Shareholder (the “Non-Defaulting
Shareholder”), at its sole option, may either: (A) if applicable, discontinue payments of, and no longer be obligated to
make any drawdown or contribution of, such Shareholder loan or Additional Capital, and, to the fullest extent possible under applicable
laws, immediately be repaid any and all amounts paid by the Non-Defaulting Shareholder that were unmatched by the Defaulting Shareholder,
or (B) fund the amount of such Funding Default not paid by the Defaulting Shareholder to the Company, in the form of a loan from
the Non-Defaulting Shareholder to JVCO (a “Funding Default Loan”), which Funding Default Loan shall bear interest at
a rate equal to 10% per annum, shall have a payment term of three years and shall be convertible at the election of the Non-Defaulting
Shareholder into Shares at any time after six months have elapsed from the date of funding such Funding Default Loan at a conversion
price equal to 0.85 of the Share Price (the “Funding Default Loan”);
provided
,
however
, that if (x) the
Funding Default Loan has not been converted after one year has elapsed from the date of funding such Funding Default Loan, and
(y) the original principal under the Funding Default Loan was greater than $10,000,000, at any time after one year following the
funding of such Funding Default Loan, the Non-Defaulting Shareholder shall have the right to purchase all (but not less than all)
of the Shares held by the Defaulting Shareholder (and any of its Affiliates and Permitted Transferees) at the Fair Value of the
Shares held by the Defaulting Shareholder (and its Affiliates and Permitted Transferees) (the “Default Purchase”);
provided
,
further
,
however
, that the Defaulting Shareholder can cure any such Funding Default prior to any
exercise of conversion or purchase rights contemplated by this Section 4.05 by funding the amount of such Funding Default plus
any interest accrued on the Funding Default Loan to JVCO (which JVCO will promptly then pay to the Non-Defaulting Party).
(b)
The closing of any Default Purchase shall take place at the principal executive offices of JVCO on the 30th day after the
final determination of the Fair Value of the Shares held by the Defaulting Shareholder and its Affiliates and Permitted Transferees
(which closing date may be extended solely to receive any consent of any governmental authority that may be required pursuant to
the requirements of any
Competition Law in connection
with such sale of Shares to the Non-Defaulting Party). At such closing (i) the Non-Defaulting Party shall deliver to the Defaulting
Party the appropriate cash consideration by wire transfer of immediately available funds and (ii) the Defaulting Party shall transfer
the Shares (which shall be free and clear of Liens, defects and other adverse interests (other than as provided for in this Agreement))
held by the Defaulting Party (and any of its Affiliates and Permitted Transferees) to the Non-Defaulting Party. Concurrent with
the payment of the appropriate cash consideration, the Non-Defaulting Party shall, or shall cause JVCO to, repay in full all principal
and accrued and unpaid interest on all Shareholder loans provided by the Defaulting Party (and any of its Affiliates and Permitted
Transferees), and shall cause the several guarantees by the Defaulting Party (and, in the case of Amyris, its ultimate parent entity,
if applicable) and any pledge of the Shares beneficially owned, directly or indirectly, by such Shareholder (and its Affiliates
and Permitted Transferees) securing such guarantees to be released in full. Any transfer pursuant to this Section 4.05 shall be
made without any representations, warranties, covenants or indemnities;
provided
,
however
, that the Defaulting Party
shall be deemed to have represented that (i) the transfer has been duly authorized by it; (ii) it has the capacity, power and authority
to transfer such Shares; and (iii) the Non-Defaulting Party shall obtain good and valid title to such Shares, free and clear of
any Liens, defects and other adverse interests (other than as provided for in this Agreement). Notwithstanding anything to the
contrary in this Agreement, a Transfer pursuant to this Section 4.05 shall not be subject to Article VI.
Section 4.06.
Participation Rights on Third Party Financing
. (a) With respect to any proposed issuance to any Third Party of Shares
or securities exchangeable or exercisable for or convertible into Shares (“
Securities
”) (other than any Non-Participation
Issuance), JVCO shall offer to each Shareholder (other than any Shareholder that acquired Shares upon exercise of any options to
subscribe for Shares issued pursuant to an option plan or other compensation arrangement) (each, an “
Eligible Shareholder
”),
in lieu of the Third Party to whom such Securities are proposed to be issued, by written notice (the “
Issuance Notice
”)
the right, for a period of 60 days following delivery of such Issuance Notice (the “
Participation Exercise Perio
d”),
to subscribe for, at a subscription price per Security equal to the subscription price for which the Securities are proposed to
be issued to such Third Party and otherwise upon the terms specified in the Issuance Notice, up to that number of Securities necessary
to permit such Eligible Shareholder to maintain its pro rata ownership of JVCO (after giving effect to any Securities issued to
JVCO) following such issuance (calculated on an as-converted basis) (“
Pro Rata Share
”) in accordance with paragraph
(b) below. The Issuance Notice shall include the aggregate number and type of Securities to be issued, the price per Security and
any other material terms of the proposed issuance to such Third Party;
provided
,
however
, if the subscription price
at which JVCO proposes to issue, deliver or sell any Securities is to be paid with consideration other than cash, then the subscription
price at which a Shareholder may acquire its portion of such Securities will be equal in value (as determined in good faith by
the Management Board) but payable entirely in cash. Each Eligible Shareholder’s rights under this Section 4.06(a) shall terminate
if not exercised within the Participation Exercise Period.
(b)
Each Eligible Shareholder (or any Affiliate thereof) may accept JVCO’s offer as to the full number of Securities offered
to it or any lesser number by written notice thereof delivered by such Eligible Shareholder to JVCO prior to the expiration of
the Participation Exercise Period (an “
Acceptance Notice
”), in which event JVCO shall issue, and such Eligible
Shareholder (or any Affiliate thereof) shall buy, upon the terms specified in the Issuance Notice, the number of Securities agreed
to be purchased by such Eligible Shareholder (or any Affiliate thereof) on a date not later than 10 days (or longer if required
by law) after the expiration of the Participation Exercise Period. In the event any purchase by an electing Eligible Shareholder
(or any Affiliate thereof) is not consummated, other than as a result of the fault of JVCO, within the time period specified above,
JVCO may issue the Securities subject to purchase by the defaulting Eligible Shareholder (or any Affiliate thereof) to any other
Eligible Shareholder (or any Affiliate thereof) electing to purchase Securities pursuant to this Section 4.06. Any Securities not
purchased by the Eligible Shareholders (or their Affiliates) may be issued by JVCO at any time prior to 90 days after the expiration
of the Participation Exercise Period to the Third Party to which JVCO intended to issue such Securities on terms and conditions
no less favorable to JVCO than the terms specified in the Issuance Notice. No issuance of Securities may be made to any Person
unless such Person agrees in writing to be bound by the terms and conditions of this Agreement. JVCO shall not issue any Securities
that have not been subscribed for within such 90-day period without again complying with this Section 4.06.
(c)
Promptly upon an issuance of Securities pursuant to this Section 4.06, JVCO shall issue to each Person that receives Securities
pursuant to this Section 4.06 such Securities the register of Shareholders of JVCO shall be amended to reflect the issuance of
such Securities and to reflect the name of such Person.
ARTICLE V
DISTRIBUTIONS
Section 5.01.
General
. Except as otherwise provided in this Agreement, distributions prior to the dissolution of JVCO shall be
made in accordance with this Article V and each Shareholder actually receiving amounts pursuant to a specific distribution by JVCO
shall receive a pro rata share of each item of cash or property of which such distribution is constituted (based upon such Shareholder’s
pro rata ownership of JVCO).
Section 5.02.
Distributions
. At least once annually, the Management Board shall determine to what extent JVCO has Free Cash Flow.
To the extent that the Management Board determines that JVCO has Free Cash Flow, the Management Board shall use an amount equal
to 70% of such cash to repay any outstanding Carry in accordance with Section 4.02(d), and with respect to the remainder of such
cash shall either (i) retain such cash in JVCO to meet current and anticipated needs and commitments (including the Budget, the
Five Year Plan, capital expenditures, operating expenses, research and development expenses, tax liabilities and payments to Third
Party creditors), along with a reserve for future costs, expenses, liabilities and obligations, or (ii) use such cash to repay
or prepay any outstanding Shareholder loans other than any Carry or, in the event there are no outstanding Shareholder loans, distribute
such cash to the Shareholders in accordance with Section 5.01. The allocation of such cash as between clause
(i) and (ii) shall be subject to Board
Approval;
provided
, that no cash allocated to clause (i) for any period shall be included in Free Cash Flow for any future
period.
Section 5.03.
Tax Distributions
.
[reserved]
ARTICLE VI
RESTRICTIONS ON TRANSFER AND SHARE PLEDGES
Section 6.01.
General
. JVCO and each Shareholder agrees that it shall not, and shall not permit any of its respective Affiliates
to, directly or indirectly (it being acknowledged that a change of control of a Shareholder shall not constitute an indirect Transfer
of Shares for purposes of the Agreement and shall instead be addressed pursuant to Article IX), make, effect or otherwise consummate
any Transfer of any Shares except in accordance with the terms and conditions of this Agreement. Each Shareholder shall pledge
its Shares to the other Shareholder as security for the performance of its obligations under this Agreement.
Section 6.02.
New Shareholders
. In the event that any Shares are validly Transferred pursuant to this Article VI, the register
of Shareholders of JVCO shall be amended to reflect any changes in the ownership of Shares. If any Shares are validly Transferred
pursuant to this Article VI to a Person who is not then a party to this Agreement, as a condition to any such Transfer and prior
to the effectiveness of any such Transfer, such Person shall execute a joinder to this Agreement adding such Person as a party
to this Agreement and binding such Person to the terms and conditions of this Agreement.
Section 6.03.
Recognition of Transfer
. No Transfer of any Shares that is in violation of this Article VI shall be valid or effective,
and neither JVCO nor any Shareholder shall recognize such invalid Transfer. Neither JVCO nor any Shareholder shall incur any liability
as a result of refusing to make any distributions to the transferee of any such invalid Transfer.
Section 6.04.
Lock-up Period
. During the Lock-up Period, no Transfer of Shares (other than transfers to Permitted Transferees in
accordance with Section 6.07) shall be permitted in any circumstance.
Section 6.05.
Rights of First Refusal
.
(a)
Rights of First Refusal Generally
.
(i)
Subject to the limitations of Section 6.05(f), if at any time following the expiration of the Lock-up Period, any Shareholder
(the “
Offering Shareholder
”) receives a Bona Fide Offer that such Offering Shareholder wishes to accept (a “
Transfer
Offer
”) from any Third Party (the “
Offeror
”) to purchase or otherwise acquire Shares then owned by
the Offering Shareholder (together with any Tag-Along Shares in substitution for an equal portion of such Shares after the exercise
of tag-along rights pursuant to Section 6.06, the “
Transfer Shares
”), the Offering Shareholder shall provide
a written notice (the “
Right of First Refusal Notice
”) of such Transfer Offer (which shall contain a copy of
the Bona Fide Offer) to JVCO and to each of the other Eligible Shareholders (the “
Shareholder Offerees
” and,
together with
JVCO, the “
Transfer Offerees
”).
The Right of First Refusal Notice shall also contain an irrevocable offer by the Offering Shareholder to sell all, but not less
than all (unless otherwise consented to by the Offering Shareholder), of the Transfer Shares to the Transfer Offerees (in the manner
set forth below) at the same price, for the same form of consideration and upon terms and conditions that are no less favorable
to the Transfer Offerees than the terms and conditions contained in the Transfer Offer and shall be accompanied by a copy of the
Transfer Offer (which shall identify the Offeror, the Transfer Shares, the price contained in the Transfer Offer and all of the
other terms and conditions of the Transfer Offer);
provided
,
however
, that (i) the Right of First Refusal Notice
may be combined with a Tag-Along Notice and (ii) references herein to a Right of First Refusal Notice shall be deemed to include
any such combined Tag-Along Notice/Right of First Refusal Notice.
(ii)
The Transfer Offerees shall have the right and option, within 30 Business Days after the date that the Right of First Refusal
Notice is delivered to such Transfer Offerees (which 30-Business Day period, in the case of a combined Tag-Along Notice/Right of
First Refusal Notice, shall run concurrently with the 30-Business Day period set forth in Section 6.06(a)(iii)), to irrevocably
accept such offer (subject to the priorities and pro rata adjustments set forth below), in the aggregate, as to all, but not less
than all (unless otherwise consented to by the Offering Shareholder), of the Transfer Shares. Each Transfer Offeree that desires
to exercise such option shall provide the Offering Shareholder with written notice (specifying the number of Transfer Shares as
to which each Transfer Offeree is accepting the offer) within such 30-Business Day period. Unless the Offering Shareholder shall
have otherwise consented to the purchase of less than all of the Transfer Shares, no Transfer Offeree shall have the right to acquire
such Transfer Shares unless all such Shares are being acquired by Transfer Offerees pursuant to the provisions of this Section
6.05.
(iii)
Notwithstanding anything to the contrary contained in this Section 6.05, there shall be no liability on the part of the
Offering Shareholder to any Shareholder in the event that the sale of Transfer Shares contemplated by this Section 6.05 is not
consummated for any reason whatsoever. Whether a sale of Transfer Shares contemplated by this Section 6.05 is effected by the Offering
Shareholder is in the sole and absolute discretion of the Offering Shareholder.
(b)
Apportionment of Shares Among Eligible Shareholders in the Event of Over-Subscription
. If the aggregate number of
Transfer Shares as to which notices of acceptance that are provided by all Transfer Offerees exceeds the number of Transfer Shares,
then the right to purchase the Transfer Shares shall be allocated (i) first, to JVCO and (ii) second, to the Shareholder Offerees
with respect to any Transfer Shares as to which a notice of acceptance has not been provided by JVCO (the “
Excess Transfer
Shares
”). Each Shareholder Offeree that provided a notice of acceptance shall be allocated the lesser of (A) the number
of Transfer Shares that such Shareholder Offeree agreed to purchase and (B) the number of Transfer Shares equal to the full number
of Excess Transfer Shares multiplied by a fraction (x) the numerator of which shall be the number of Shares held or deemed to be
held by such Shareholder Offeree as of the date of the Right of First Refusal Notice (for the purpose of such calculation, a Shareholder
Offeree shall be deemed to hold the number of Shares that would be issuable, as of the date of the Right of First Refusal Notice,
to such Shareholder Offeree upon conversion,
exercise or exchange of all securities
then held by such Shareholder Offeree that are then convertible, exercisable or exchangeable (but excluding any unvested options)
into or for (whether directly or indirectly) Shares), and (y) the denominator of which shall be the aggregate number of Shares
(calculated as aforesaid) held or deemed to be held on such date by all Shareholder Offerees who accepted the offer contained in
the Right of First Refusal Notice. After giving effect to the initial allocation of Excess Transfer Shares to Shareholder Offerees
pursuant to the preceding sentence, the balance of the Excess Transfer Shares (if any) offered shall be reallocated among the Shareholder
Offerees accepting the offer contained in the Right of First Refusal Notice in the same proportion as set forth in the preceding
clause (B) (
provided
,
however
, that no Shareholder Offeree shall be obligated to purchase more than the number of
Transfer Shares that such Shareholder Offeree initially agreed to purchase) in continuous reallocations until all such remaining
shares have been reallocated fully among such Shareholder Offerees;
provided
,
however
, that all allocations referred
to herein shall be determined in good faith by JVCO in accordance with the provisions of this Section 6.05(b) and any share amounts
so determined shall be rounded to avoid fractional shares.
(c)
Apportionment of Shares Among Eligible Shareholders in the Event of Failure to Purchase
. If any Transfer Shares are
not purchased by a Shareholder Offeree (the “
Defaulting Offeree
”) that previously delivered a written notice
of acceptance relating thereto and was allocated Transfer Shares in accordance with Section 6.05(b) (collectively, the “
Transfer
Default Shares
”), such Transfer Default Shares may be purchased (i) first, by JVCO at its option and (ii) if JVCO declines
to purchase such shares, by the other Shareholder Offerees purchasing Transfer Shares (the “Default Offerees”) allocated
among such Default Offerees in proportion to the number of Transfer Shares otherwise being purchased by those of such Default Offerees
who agree to purchase Transfer Default Shares;
provided
,
however
, that the provisions of this Section 6.05(c) shall
not excuse the failure by any Defaulting Offeree to purchase Transfer Default Shares with respect to which it previously delivered
a written notice of acceptance relating thereto and was allocated shares in accordance with Section 6.05(b);
provided
further
,
however
, that all allocations referred to herein shall be determined in good faith by JVCO in accordance with the provisions
of this Section 6.05(c) and any share amounts so determined shall be rounded to avoid fractional shares. The provisions of the
last sentence of Section 6.05(a)(ii) shall apply if JVCO and the Default Offerees do not in the aggregate purchase all of the Transfer
Default Shares.
(d)
Transfer Mechanics
. The closing of the purchase of the Transfer Shares by the Transfer Offerees who have exercised
the option pursuant to Section 6.05(a) shall take place at the principal executive offices of JVCO on the 30th day (which 30-day
period may be extended solely to receive any consent of any governmental authority that may be required pursuant to the requirements
of any Competition Law in connection with such purchase of Transfer Shares by the Transfer Offerees) after the expiration of the
30-Business Day period after the delivery of the Right of First Refusal Notice (or such other date as may be mutually agreed to
by the parties to such transaction). At such closing, (i) each Transfer Offeree shall deliver to the Offering Shareholder (and
to any holder of Tag-Along Shares that is selling together with the Offering Shareholder) the appropriate per share consideration
and (ii) the Offering
Shareholder (and any holder of
Tag-Along Shares that is selling together with the Offering Shareholder) shall transfer the Transfer Shares (and the Tag-Along
Shares) (which shall be free and clear of Liens, defects and other adverse interests (other than as provided for in this Agreement))
to the Transfer Offerees.
(e)
Transfers to Third Parties After JVCO and the Eligible Shareholders Decline Rights of First Refusal
. If at the end
of the 30-Business Day period following the delivery of the Right of First Refusal Notice, the Transfer Offerees shall not have
collectively accepted the offer contained in such notice as to all Transfer Shares covered thereby (unless otherwise consented
to by the Offering Shareholder), the Offering Shareholder shall have 30 days (which 30-day period may be extended solely to receive
any consent of any governmental authority that may be required pursuant to the requirements of any Competition Law in connection
with such sale of the Transfer Shares to the Offeror) in which to sell the Transfer Shares to the Offeror at a price not less than
that contained in the Right of First Refusal Notice and on terms and conditions not more favorable to the Offeror than were contained
in the Right of First Refusal Notice. No sale may be made to any Offeror unless such Offeror agrees in writing to be bound by the
terms and conditions of this Agreement. Promptly after any sale pursuant to this Section 6.05(e), the Offering Shareholder shall
notify JVCO of the consummation thereof and shall furnish such evidence of the completion (including time of completion) of such
sale and of the terms and conditions thereof as JVCO may reasonably request. If, at the end of such 30-day period (as such period
may be extended as set forth above), the Offering Shareholder has not completed the sale of the Transfer Shares, then the Offering
Shareholder and its Permitted Transferees shall no longer be permitted to sell such Shares pursuant to this Section 6.05(e) without
again fully complying with the provisions of this Section 6.05, and all of the restrictions on Transfer contained in this Agreement
shall again be in effect with respect to all such Person’s Shares, including the Transfer Shares. In addition, the Offering
Shareholder and its Permitted Transferees shall not be entitled to give another Right of First Refusal Notice for a period of 180
days from the day its earlier Right of First Refusal Notice was delivered.
(f)
Exceptions to Rights of First Refusal
. The provisions of this Section 6.05 shall not be applicable to any Transfer
of Shares from any Shareholder to any Permitted Transferee, or from any Permitted Transferee of such Shareholder to such Shareholder;
provided
,
however
, that in any Transfer to a Permitted Transferee, such Permitted Transferee must agree in writing
to be bound by the terms and conditions of this Agreement.
Section 6.06.
Tag-Along Rights
.
(a)
Tag-Along Rights Generally
.
(i)
Subject to the limitations of Section 6.06(e), if any Shareholder (the “
Transferor
”) proposes to Transfer
any of its Shares to a Third Party (including any other Shareholder) (the “
Buyer
”), and such Transfer is not
prohibited by Section 6.04, the Transferor Selling Person shall first offer to each of the other Shareholders (the “
Tag-Along
Offerees
”) to include, at the option of each Tag-Along Offeree, in the Transfer to the Buyer, such number of
Shares (collectively, the “
Tag-Along
Shares
”) as shall be determined in accordance with this Section 6.06;
provided
, that with respect to any such
Transfer that is also governed by Section 6.05, the Shareholders having a right of first refusal under Section 6.05 shall have
first been or shall concurrently be afforded the opportunity to acquire such Shares in accordance with the provisions of Section
6.05.
(ii)
Upon the receipt by the Transferor of a Bona Fide Offer from a Buyer to purchase or otherwise acquire Shares then owned
by the Transferor (other than a Transfer that, pursuant to Section 6.06(e), would not be subject to the provisions of Section 6.06)
that such Transferor desires to accept, such Transferor shall provide written notice (the “Tag-Along Notice”) of such
Buyer’s offer (which shall contain a copy of the Bona Fide Offer) to JVCO and each of the Tag-Along Offerees. The Tag-Along
Notice must contain an offer by the Buyer to purchase or otherwise acquire Tag-Along Shares from the Tag-Along Offerees according
to the terms and conditions of this Section 6.06 and at the same price, for the same form of consideration and upon terms and conditions
that are no less favorable to the Tag-Along Offerees than the terms and conditions contained in the Buyer’s offer and shall
be accompanied by a copy of the Buyer’s offer (which shall identify the Buyer, the Shares proposed to be Transferred by the
Transferor, the price contained in the Buyer’s offer and all of the other terms and conditions of the Buyer’s offer);
provided
,
however
, that (1) the Tag-Along Notice may be combined with a Right of First Refusal Notice and (2) references
herein to a Tag-Along Notice shall be deemed to include any such combined Tag-Along Notice/Right of First Refusal Notice.
(iii)
At any time within 30 Business Days after its receipt of the Tag-Along Notice (which 30-Business Day period, in the case
of a combined Tag-Along Notice/Right of First Refusal Notice, shall run concurrently with the 30-Business Day period set forth
in Section 6.05(a)(ii)), each of the Tag-Along Offerees may irrevocably accept the Buyer’s offer included in the Tag-Along
Notice for up to such number of Tag-Along Shares as is determined in accordance with the provisions of this Section 6.06 by furnishing
written notice of such acceptance to the Transferor and the Buyer. Such written notice of acceptance must be accompanied by a limited
power-of-attorney authorizing the Transferor to sell or otherwise dispose of such shares pursuant to the terms and conditions set
forth in the Tag-Along Notice and the terms and conditions of this Section 6.06.
(iv)
Notwithstanding anything to the contrary contained in this Section 6.06, there shall be no liability on the part of the
Transferor to any Shareholder in the event that the sale of Shares to the Buyer contemplated by this Section 6.06 is not consummated
for any reason whatsoever. Whether a sale of Shares to the Buyer contemplated pursuant to this Section 6.06 is effected is in the
sole and absolute discretion of the Transferor.
(b)
Allocation of Tag-Along Shares
. Each Tag-Along Offeree shall have the right to sell pursuant to the Buyer’s
offer a number of Tag-Along Shares up to (i) the total number of Shares to be acquired by the Buyer as set forth in the Tag-Along
Notice (or such higher number of Shares as the Buyer may agree to) multiplied by (ii) a fraction (x) the numerator of which shall
be the number of Shares held or deemed to be held by such Tag-Along Offeree as of the date of the Tag-Along Notice (for the purpose
of such calculation, a Tag-Along Offeree shall be deemed to hold the number of Shares that would be issuable, as of the date of
the Tag-Along Notice, to such Tag-Along Offeree
upon conversion, exercise or
exchange of all securities then held by such Tag-Along Offeree that are then convertible, exercisable or exchangeable (but excluding
any unvested options) into or for (whether directly or indirectly) Shares), and (y) the denominator of which shall be the aggregate
number of Shares (calculated as aforesaid) held or deemed to be held on such date by all Shareholders;
provided
,
however
,
that all allocations referred to herein shall be determined in good faith by JVCO in accordance with the provisions of this Section
6.06(b) and any share amounts so determined shall be rounded to avoid fractional shares.
(c)
Transfer Mechanics
. The purchase from the Tag-Along Offerees pursuant to this Section 6.06 shall be on the same terms
and conditions, including any representations, warranties, covenants and indemnities, the per share price (which shall be paid
by wire transfer of immediately available funds, unless otherwise specified in the Tag-Along Notice) and the date of sale or other
disposition (
provided
,
however
, that if a right of first refusal has been exercised such date shall be determined
by Section 6.05(d)), as are received by the Transferor and stated in the Tag-Along Notice. As promptly as practicable (but in no
event later than one Business Day) after the consummation of the sale or other disposition of Shares of the Transferor and Tag-Along
Shares of the Tag-Along Offerees to the Buyer (including a sale to a Transfer Offeree or Transfer Offerees pursuant to Section
6.05), the Transferor shall (i) notify the Tag-Along Offerees thereof; (ii) remit to each Tag-Along Offeree who accepted the Buyer’s
offer in accordance with the provisions of this Section 6.06 the total sales price of the Tag-Along Shares of such Tag-Along Offeree
sold or otherwise disposed of pursuant thereto; and (iii) furnish such other evidence of the completion and time of completion
of such sale or other disposition and the terms and conditions thereof as may be reasonably requested by the Tag-Along Offerees.
(d)
Transfers After Shareholders Decline Tag-Along Rights
. If within 30 Business Days after the delivery of the Tag-Along
Notice any Tag-Along Offeree has not accepted the offer contained in the Tag-Along Notice, then such Tag-Along Offeree will be
deemed to have waived any and all rights with respect to the sale or other disposition of Tag-Along Shares described in the Tag-Along
Notice and the Transferor shall have 30 days (which 30-day period may be extended solely to receive any consent of any governmental
authority that may be required pursuant to the requirements of any Competition Law in connection with such sale of Shares to the
Buyer) in which to sell or otherwise dispose of the Shares described in the Buyer’s offer on terms and conditions not more
favorable to the Transferor than were set forth in the Tag-Along Notice. If, at the end of such 30-day period (as such period may
be extended as set forth above), the Transferor has not completed the sale or other disposition of Shares of the Transferor and
Tag-Along Shares of any Tag-Along Offeree in accordance with the terms and conditions of the Buyer’s offer all of the restrictions
on Transfer contained in this Agreement with respect to Shares owned by the Transferor shall again be in effect.
(e)
Exceptions to Tag-Along Rights
. The provisions of this Section 6.06 shall not be applicable to any Transfer of Shares
from any Shareholder to any Permitted Transferee, or from any Permitted Transferee of such Shareholder to such Shareholder;
provided
,
however
, that in any Transfer to a Permitted Transferee, such
Permitted Transferee must agree
in writing to be bound by the terms and conditions of this Agreement.
Section 6.07.
Permitted Transferees. Notwithstanding the restrictions in this Article VI but subject to Section 6.01, Section 6.02 and
Section 6.03, a Shareholder shall be permitted to Transfer all or any portion of its Shares to an Affiliate of such Shareholder
(a “Permitted Transferee”); provided, however, that (a) the transferring Shareholder delivers to the Management Board
20 days’ prior written notice of a proposed Transfer specifying the Shares to be Transferred and the identity of the proposed
transferee, together with such documentation as the Management Board may reasonably require in order to demonstrate that the proposed
transferee qualifies as such Shareholder’s Permitted Transferee, (b) such Affiliate shall execute a statement in writing
and reasonably acceptable to JVCO whereby such Affiliate expressly agrees to become a party to this Agreement, and (c) if such
Affiliate ceases at any time after any such Transfer to be an Affiliate of the transferring Shareholder, all Shares previously
Transferred to such Affiliate shall be required to be promptly Transferred back to the transferring Shareholder. No Transfer of
Shares to a Permitted Transferee shall release the assigning Shareholder from liability for the obligations of such Shareholder
and its Permitted Transferee pursuant to this Agreement, unless otherwise agreed by all of the Shareholders. Notwithstanding anything
to the contrary in this Agreement, a Transfer pursuant to this Section 6.07 shall not be subject to either Section 6.05 or Section
6.06.
Section 6.08.
Registration Rights. In the event JVCO agrees to include any Shares (including any securities issued in exchange for any
Shares) held by any Shareholder in any registration statement to be filed by JVCO with the United States Securities and Exchange
Commission, or any similar document to be filed with any other securities exchange or regulatory authority in connection with any
public offering of Shares (including any securities issued in exchange for any Shares), JVCO shall afford all Eligible Shareholders
an equal right and opportunity to include their Shares (including any securities issued in exchange for any Shares) in such registration
statement or similar filing, and any cut-backs or similar restriction on the ability to include such Shares (including any securities
issued in exchange for any Shares) shall be applied to the Eligible Shareholders on a pro rata basis in proportion, as nearly as
practicable, to the respective amounts of Shares (including any securities issued in exchange for any Shares) then held by all
such Eligible Shareholders.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.01.
Information to be Provided to Shareholders
.
(a)
JVCO will prepare and deliver to each Shareholder: (i) Quarterly Financial Statements as soon as practicable after the end
of each fiscal quarter but in any event within 45 days after such fiscal quarter; (ii) Financial Statements that are audited by
the Auditors as soon as practicable after the end of each Fiscal Year but in any event within 90 days after the end of each Fiscal
Year; (iii) as soon as available, but in any event no later than September 15 of each year, the proposed Budget for the following
Fiscal Year, and promptly following the adoption thereof by the Management Board, the Budget for such Fiscal Year as adopted by
the Management Board; (v) after the adoption
of the Initial Five Year Plan,
no later than January 31 of each year, a new Five Year Plan in respect of the next five Fiscal Years; and (vi) promptly following
any amendment to any item contemplated by clauses (i) through (v), each such amendment. Upon request by any Shareholder, JVCO shall
also provide such Shareholder and such Shareholder’s auditors with such additional financial or other information as it may
reasonably require to timely comply with its financial and other reporting and certification requirements pursuant to applicable
law, audit and listing requirements. To the extent practicable, such Shareholder requesting such additional financial or other
information shall use commercially reasonable efforts to provide such requests for additional information to JVCO sufficiently
in advance of the required delivery date so as to allow JVCO to incorporate such requests into its standard record keeping practices
(which shall include record keeping in compliance with the Accounting Standards) and to minimize the incurrence of additional expenses
for JVCO with respect thereto. JVCO will also promptly provide to each Shareholder copies of all final reports (including management
representation letters, list of adjustments not booked, management comment letters and the like) delivered by the Auditors. JVCO
shall make available such books, records, files, data and information of JVCO as reasonably requested by such Shareholder for such
Shareholder and such Shareholder’s auditors to (i) enable Shareholder to prepare its books, quarterly and annual consolidated
financial statements and other public reports, including certifications, as required pursuant to applicable law and listing requirements
and (ii) if applicable, to verify that JVCO has established and maintains a sufficient system of disclosure controls and procedures
(as defined in Rules 13a-15(e) and 15d-15(e) under the United States Securities Exchange Act of 1934, as amended) and internal
control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the United States Securities Exchange Act of
1934, as amended), including information technology general controls, in order to ensure timely and accurate financial statement
inputs, and for such Shareholder’s auditors to perform their audits and quarterly reviews of the books of account and records
of JVCO as a consolidated Subsidiary of such Shareholder.
(b)
JVCO will promptly notify in writing each Shareholder of the occurrence of any material breaches or defaults pursuant to
contracts and the occurrence of material litigation and the occurrence of any other event that, in the good faith determination
of the CEO, is reasonably likely to have a material adverse impact on JVCO. JVCO will also furnish or cause to be furnished to
each Shareholder, promptly after the sending or filing thereof, copies of all reports that JVCO sends to any of its creditors,
and copies of all tax returns that JVCO files with any taxing authority.
Section 7.02.
Access to Information
. Subject to Section 7.03, JVCO will permit representatives of each Shareholder, upon reasonable
advance notice and at such Shareholder’s sole costs and expense, to (a) obtain from JVCO all documents and other information
in the possession or control of JVCO as may reasonably be requested, (b) visit and inspect the properties of JVCO, (c) discuss
the business, affairs, finances and accounts of JVCO with officers of JVCO, and (d) have access to the books, records, properties,
facilities and employees of JVCO, in each case, in order to (i) monitor its investment in JVCO, (ii) exercise its rights pursuant
to this Agreement and (iii) confirm the satisfaction of JVCO with its covenants and obligations hereunder;
provided
,
however
,
that any such access or furnishing of information shall
be conducted during normal business hours,
under the reasonable supervision of JVCO’s employees and in such a manner as not to unreasonably interfere with the normal
business operations of JVCO.
Section 7.03.
Confidential Information
.
(a)
Except as provided herein or as otherwise agreed in writing, each Party (i) shall, and shall cause its Affiliates, officers,
directors, employees, attorneys, accountants, auditors and agents (collectively “Representatives”) to, maintain in
the strictest confidence any and all confidential or proprietary information relating to another Party that is not available to
the general public and that is obtained pursuant to this Agreement, including such information about properties, employees, finances,
businesses and operations of such other Party, and all notes, extracts, summaries, analyses, compilations, studies, forecasts,
interpretations or other documents prepared by the recipient or its Representatives and that contain, reflect or are based upon,
in whole or in part, any confidential or proprietary information (collectively, the “Confidential Information”); and
(ii) shall not use or disclose, and shall cause its Representatives not to use or disclose, any Confidential Information, except
(A) as expressly permitted by the disclosing Party, as expressly permitted in this Agreement, or to the extent that a disclosure
is required pursuant to applicable stock exchange rules or applicable law, regulation, or governmental or regulatory order (and
in which event the Party making such disclosure or whose Representatives are making such disclosure shall so notify the disclosing
Party as promptly as practicable (and, if practicable, prior to making such disclosure), shall disclose only such information as
it is required to disclose pursuant to such stock exchange rules, law, regulation, or governmental or regulatory order, and, in
connection with filings with a stock exchange or governmental or regulatory entity, shall cooperate with the other Party and use
commercially reasonable efforts to seek confidential treatment for proprietary confidential technical information as well as confidential
customer-specific pricing information), or (B) to the extent that the receiving Party has the right to use or disclose such information
under the Collaboration Agreement, Amyris License Agreement, or TENA USA License Agreement.
(b)
Notwithstanding Section 7.03(a), any Party may provide, or require JVCO to provide, Confidential Information to a prospective
purchaser of all or a portion of such Party’s Shares, or to a prospective provider of equity or debt financing for such Party
or its Affiliates or to a prospective party to a change of control of such Party in connection with reasonable due diligence by
such Person;
provided
,
however
, that (i) prior to any such disclosure, such prospective purchaser shall execute a
confidentiality agreement that contains provisions at least as protective for the Parties as the provisions set forth in Section
7.03(a); (ii) such disclosure, to the extent that it requires an inspection of the books of account or other business records of
JVCO, occurs during normal business hours and does not unreasonably interfere with the normal business operations of JVCO; and
(iii) JVCO, in its sole discretion, may refuse to disclose any highly sensitive Confidential Information or any Confidential Information
subject to attorney-client privilege or similar protection.
(c)
Notwithstanding Section 7.03(a), any receiving Party or any Representative thereof may disclose any Confidential Information
for bona fide business purposes on a strict “need to know” basis to its Representatives;
provided
,
however
,
that each such Representative agrees to keep such Confidential Information confidential in the manner set forth in Section 7.03(a);
(d)
Section 7.03(a) shall not apply to, and Confidential Information shall not include:
(i)
any information that is or has become generally available to the public other than as a result of a disclosure by a receiving
Party or any Representative thereof in breach of any of the provisions of this Section 7.03;
(ii)
any information that the receiving Party can demonstrate by written evidence was independently developed by a receiving
Party or any Representative thereof without reference to any Confidential Information of another Party; or
(iii)
any information made available to a receiving Party or any Representative thereof on a non-confidential basis by any Third
Party who is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation.
(e)
Except as otherwise provided for in this Section 7.03, Confidential Information shall be used and disclosed by each Party
and its Affiliates solely in connection with such Party’s investment in JVCO or to conduct activities on behalf of JVCO pursuant
to this Agreement, the Amyris License Agreement, or the TENA USA License Agreement.
(f)
The obligations of each Party pursuant to this Section 7.03 shall survive for as long as such Party remains a Shareholder
or otherwise a Party to this Agreement and for three years thereafter (
provided
,
however
, that with regard to any
R&D Activities and/or Inventions (each, as defined in the Collaboration Agreement), such obligations shall survive for the
term of the Collaboration Agreement and two years thereafter). Amyris and TENA USA acknowledge that the expiration of their obligations
under this Section 7.03 are without limitation of their respective confidentiality obligations under the Collaboration Agreement.
Amyris and JVCO acknowledge that the expiration of their obligations under this Section 7.03 are without limitation of their and
their Representatives’ respective confidentiality obligations under the Amyris License Agreement. In the event of a conflict
between this Section 7.03 and Section 9 of the Collaboration Agreement with respect to R&D Activities or Biofene Development
Project (both as defined in the Collaboration Agreement), the Collaboration Agreement shall control. In the event of a conflict
between this Section 7.03 and the Amyris License Agreement, the Amyris License Agreement shall control.
Section 7.04.
Compliance with Laws
.
(a)
Anti-Corruption Laws. The Parties and their respective Affiliates, employees, agents, representatives, and subcontractors
(collectively, “
Associates
”) are fully aware of, and undertake to respect the principles enshrined in, the pertinent
international and regional conventions
on combating corruption and to ensure compliance with the anti-corruption laws applicable (mainly French law, the UK Anti Bribery
Act and the United States Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78 et seq.), collectively referred
to herein as the “
Reference Laws
”) to the activities of the Parties under this Agreement and the activities
to be developed by JVCO (collectively, the “
Activities
”). JVCO shall not, directly or indirectly, take any action
in violation of the Reference Laws or any other applicable anti-corruption, recordkeeping and internal controls law (collectively,
the “
Anti-Corruption Laws
”). The Shareholders covenant and agree that they shall instruct the management of
JVCO to adopt, implement and comply with, within 15 days after the creation of JVCO, a compliance program for the prevention of
corruption that will address, among the topics, the retention of agents and will comply with the principles established in the
US Federal Guidelines for Sentencing of Organizations and the UK Ministry of Justice Guidelines for Compliance Programs. In furtherance
of the foregoing, each of the Parties and their respective Associates have not and will not commit, and have no information, reason
to believe, or knowledge of anyone else having committed or intending to commit, any violation of any Anti-Corruption Law, or any
act or omission which could cause any of the Shareholders or JVCO to be in violation of any Anti-Corruption Law, with respect to
any of the Activities. In carrying out their responsibilities under this Agreement, each of the Parties and their respective Associates
shall not pay, offer or promise to pay, or authorize any payment or offer of money or anything of value, directly or indirectly,
to any government official, a political party or party official, or any candidate for political office for the purpose of influencing
any act or decision of such person in his or her official capacity, inducing them to do or omit to do any act in violation of his
or her lawful duty, obtaining any improper advantage, or inducing such person to use his or her influence improperly to affect
or influence any act or decision, or otherwise give or accept a financial or other advantage to any person to induce or reward
improper performance by such person of such person’s relevant function or activity (as such concepts are defined in applicable
Anti-Corruption Laws). Each of the Parties shall ensure that all of its respective Associates are informed of, and comply with,
the obligations under and restrictions contained in this Section 7.04(a).
(b)
Export Laws
. Notwithstanding anything to the contrary contained herein, all obligations of the Parties are subject
to prior compliance with export regulations applicable to each Party and such other related laws and regulations as may be applicable
to each Party, and to obtaining all necessary approvals required by the applicable government entity. Each Party shall each use
its reasonable efforts to obtain such approvals for its own activities. Each Party shall cooperate with the other Parties and shall
provide assistance to the other Parties as reasonably necessary to obtain any required approvals.
(c)
Governmental Matters
. To the extent, if any, that a Party concludes in good faith that in accordance with applicable
laws and regulations it is required to file or register this Agreement or a notification thereof with any governmental entity,
such Party may do so, and the other Party shall cooperate in such filing or notification and shall execute all documents reasonably
required in connection therewith, at the expense of the requesting Party. The Parties shall promptly notify each other as to
the activities or inquires
of any such governmental entity relating to this Agreement and shall cooperate to respond to any request for further information
therefrom at the expense of the requesting Party.
(d)
Health, Safety and Environmental
. The Shareholders are sensitive to the implementation by JVCO of health, safety
and environmental (“HSE”) standards consistent with their own HSE policies and with the requirements of the Shareholders
from their Affiliates regarding HSE matters. JVCO, specifically the Management Board, is solely responsible for taking all actions
necessary for creating, implementing, monitoring, auditing and improving its HSE standards. Local plant condition, differing regulatory
requirements and other national, regional and local variations among production facilities make it essential for safety standards
to be determined by local personnel who understand the uniquely local circumstances, but based always on JVCO’s commitment
to best practices in matters of employee health and safety. The creation and implementation of any HSE standard by JVCO shall be
approved by the Management Board. No Shareholder or Managing Director designated by a Shareholder shall have any liability to JVCO
or to any other Shareholder or their Affiliates for the actions of JVCO or the Management Board in connection with creating, implementing,
monitoring, auditing or improving their respective HSE standards.
(e)
Protection of Personal Data
. Each Party undertakes (i) to comply with any applicable legal provisions relating to
personal data protection, and (ii) to take adequate confidentiality and security measures to ensure that data is kept safe and,
in particular, to prevent data from being altered, corrupted or to prevent unauthorized third parties from accessing the data.
JVCO shall conduct its activities in compliance with any applicable legal provisions relating to personal data protection.
Section 7.05.
Other
Covenants
.
(a)
Non-Solicitation. From and after the date of this Agreement, each Party shall not (i) solicit, directly or indirectly, any
employee of any other Party or of any of its respective Affiliates who is directly involved in the business, operations or activities
related to JVCO; or (ii) induce or attempt to induce, directly or indirectly, any such employee to leave the employ of such other
Party or of any of its respective Affiliates;
provided
,
however
, that a Party shall not be precluded from hiring
any such employee of such other Party or its Affiliates (A) if such employee contacts such Party or any of its Affiliates on his
or her own initiative (including if such employee sends an unsolicited job application to such Party or any of its Affiliates),
or (B) if such employee responds to a general solicitation of employment placed by such Party or any of its Affiliates, or their
respective recruiters and other agents, by way of general public announcements (including in newspapers, trade journals, the internet
or any similar media) that are not specifically directed at any employee covered by this Section 7.05(a);
provided
further
,
however
, that no such event described in clause (A) or (B) shall be considered a breach of this Section 7.05(a).
(b)
Insurance Policies
. JVCO shall procure and maintain in effect policies of insurance with respect to its employees,
properties and business in accordance with good industry practice.
(c)
Inventions and Information Agreements
. Unless otherwise determined by the Parties, JVCO shall require all employees,
and shall require, in the case of clause (i), and shall use commercially reasonable means to require, in the case of clauses (ii),
(iii) and (iv), all contractors and consultants that are not employees of Amyris or TENA USA or any of their respective Affiliates,
now or hereafter employed or otherwise engaged by JVCO to enter into an agreement (i) requiring each such employee, and each such
contractor and consultant that is not an employee of Amyris or TENA USA or any of their respective Affiliates, to protect and keep
confidential all of the confidential information, intellectual property used, licensed or owned by, and trade secrets used, licensed
or owned by, any of JVCO and its Affiliates, TENA USA and its Affiliates or Amyris and its Affiliates, (ii) subject to applicable
law, prohibiting each such employee, and each such contractor and consultant that is not an employee of Amyris or TENA USA or any
of their respective Affiliates, from competing with JVCO during and for a reasonable time after their employment or other engagement
with JVCO, (iii) prohibiting each such employee, and each such contractor and consultant that is not an employee of Amyris or TENA
USA or any of their respective Affiliates, during and for a reasonable time after the end of its employment or other engagement
with JVCO from soliciting the employees, contractors and consultants of JVCO, and (iv) requiring each such employee, and each such
contractor and consultant that is not an employee of Amyris or TENA USA or any of their respective Affiliates, to assign all ownership
rights in his or her work product, including any intellectual property rights with respect thereto to JVCO, or to Amyris or TENA
USA, as the case may be, to the maximum extent permitted by applicable law. JVCO shall enforce any such agreement against any such
employee, contractor or consultant at the request of TENA USA as it relates to TENA USA or its Affiliates or any of their respective
businesses, intellectual property rights or technologies, and JVCO shall enforce any such agreement against any such employee,
contractor or consultant at the request of Amyris as it relates to Amyris or its Affiliates or any of their respective businesses,
intellectual property rights or technologies.
(d)
Books and Records; Audits
. JVCO will prepare and maintain separate books of accounts for JVCO that shall show a true
and accurate record of all costs and expenses incurred, all charges made, all credits made and received and all income derived
in connection with the operation of JVCO in accordance with the Accounting Standards consistently applied, and, to the extent inconsistent
therewith, in accordance with this Agreement. Such books of account, together with the minutes of proceedings of the Management
Board and a certified copy of this Agreement and of the Articles of Association, shall at all times be maintained at the principal
place of business of JVCO and shall be open to inspection and examination at reasonable times by each Shareholder and its duly
authorized representatives for any purpose reasonably related to such Shareholder’s interest in JVCO. JVCO will prepare its
consolidated unaudited and audited financial statements in accordance with the Accounting Standards and shall implement and maintain
such appropriate systems, controls and procedures as are necessary to convert the financial information into that required by the
Accounting
Standards. JVCO shall (i) keep
accurate books and records and ensure that all payments on behalf of JVCO to Third Parties are supported by written invoices, and
(ii) maintain a system of internal accounting controls sufficient to provide reasonable assurance that transactions on behalf of
JVCO are conducted in accordance with applicable law (including the U.S. Sarbanes-Oxley Act) and that assets owned by JVCO are
appropriately recorded. The books of account and the records of JVCO shall be audited as of the end of each Fiscal Year by the
Auditors. Any Shareholder shall have the right to have a private audit of JVCO’s books and records conducted at reasonable
times and after reasonable advance notice to JVCO for any purpose reasonably related to such Shareholder’s interest in JVCO.
Any such private audit shall be at the expense of the Shareholder desiring it, and it shall not be paid for out of JVCO funds.
No Shareholder shall have the right to have a private audit of JVCO books and records conducted more than once in any Fiscal Year.
Section 7.06.
Services Agreements
. A Shareholder may from time to time provide services, including as information technology, tax,
accounting and other services, to JVCO pursuant to a written agreement between the Shareholder and JVCO (each, a “
Services
Agreement
”).
Section 7.07.
Secondment
. Employees of a Shareholder may from time to time be seconded to JVCO pursuant to a written agreement
between the Shareholder and JVCO (each, a “
Secondment Agreement
”).
Section 7.08.
Liabilities
. Notwithstanding anything to the contrary in this Agreement, all liabilities and obligations of each
Shareholder to JVCO or any Third Party, if any, shall be several and not joint.
Section 7.09.
Transactions Between JVCO and the Shareholders or their Affiliates
. In addition to the approval required pursuant
to Section 3.10(b)(vi), no material transaction between JVCO, on the one hand, and any Shareholder or its Affiliates or any Amyris
Associated Entity, on the other hand (including the entry into any Services Agreement, Secondment Agreement, or any termination
thereof), shall be entered into or conducted, and no material terms thereof shall be changed, modified, waived or amended, unless
(i) a copy of the proposed written contract or any such proposed material change or waiver to it are disclosed to the Management
Board reasonably in advance, (ii) upon the prior written request of any Managing Director, JVCO has provided the Management Board
with information reasonably demonstrating that such written contract or any such proposed material change or waiver is not less
favorable to JVCO than those that might be obtained at the time from a Person who is not a Shareholder or any of its Affiliates
in an arm’s length transaction, and (iii) it receives Board Approval.
Section 7.10
Enforcement
of Rights by JVCO Against the Shareholders or their Affiliates
. Any legal remedy of JVCO in respect of any transaction between
JVCO, on the one hand, and either Amyris or TENA USA or their respective Affiliates or any Amyris Associated Entity, on the other
hand, shall be pursued on behalf of JVCO by: (1) TENA USA, at its sole cost and expense, in the event of a claim by or on behalf
of JVCO against Amyris, its Affiliates or any Amyris Associated Entity or (2) Amyris, at its sole cost and expense, in the event
of a claim by or on behalf of JVCO against TENA USA or any of its Affiliates, and JVCO hereby
grants an irrevocable power of attorney
(with full power of substitution) to Amyris (in the event of a claim by or on behalf of JVCO against TENA USA or any of its Affiliates),
and to TENA USA (in the event of a claim by or on behalf of JVCO against Amyris, its Affiliates or any Amyris Associated Entity),
to pursue any such legal remedy on behalf of JVCO and in JVCO’s name or otherwise.
ARTICLE VIII
RIGHT TO ACQUIRE BRAZIL JET BUSINESS
ASSETS
Section 8.01.
Exercise of Right
. Subject to the terms and conditions set forth herein, Amyris hereby grants JVCO the right to acquire
the Brazil Jet Business Assets for the Ground Floor Price and/or the Brazil Jet Commercialization Assets Fair Market Value, as
applicable. In order to exercise this right, JVCO must first deliver written notice to Amyris, no later than March 1, 2018, that
JVCO wishes to commence the valuation process in preparation of exercising its option to acquire the Brazil Jet Business Assets.
If JVCO does not provide such timely written notice, then JVCO’s right hereunder shall terminate.
If JVCO provides such timely written notice,
then Amyris and JVCO will, within sixty (60) days of JVCO’s written notice, determine the (i) composition of the Brazil Jet
Business Assets and (ii) the Ground Floor Price and/or the Brazil Jet Commercialization Assets Fair Market Value, as applicable.
During this period, Amyris agrees to provide JVCO with complete and accurate information to allow JVCO to understand the Brazil
Jet Business Assets and to calculate the Ground Floor Price and/or the Brazil Jet Commercialization Assets Fair Market Value, as
applicable. In addition, Amyris shall provide JVCO and its respective advisors with reasonable access during normal business hours,
upon reasonable notice, to any assets, properties, contracts, books, records and personnel of the Brazil Jet Business as they may
reasonably request to accomplish such determinations.
If JVCO wishes to acquire the Brazil Jet
Business Assets, JVCO shall, within thirty (30) days of the determination of the Ground Floor Price and/or the Brazil Jet Commercialization
Assets Fair Market Value, as applicable, (together, the “Option Price”) pursuant to this Section 8.01 or Section 8.03,
provide Amyris written notice of its exercise of this right (the “Option Exercise Notice”).
Section 8.02.
Execution of Acquisition Transaction
. Within sixty (60) days following the delivery of the Option Exercise Notice,
JVCO shall purchase the Brazil Jet Business Assets from Amyris. At Amyris’ election, either:
(x) TENA USA shall contribute
to JVCO an amount of readily available cash equal to its pro rata share (based on its pro rata ownership of JVCO immediately preceding
the transaction) of the Option Price (the “Cash Option Amount”) and shall receive a number of Shares equal to the Cash
Option Amount divided by the Share Price, and JVCO will pay Amyris the Cash Option Amount, in readily available cash, and issue
such number of Shares to Amyris as is necessary for Amyris to maintain its pro rata share ownership of JVCO immediately preceding
the transaction, after taking into account the issuance of Shares to TENA USA in connection with the transaction; or
(y) TENA USA shall contribute
to JVCO an amount of readily available cash equal to the Option Price and shall receive a number of Shares equal to the Option
Price divided by the Share Price, and JVCO will pay Amyris the Option Price in readily available cash.
Such purchase shall be effected by such
documents as, in the mutual agreement of JVCO and Amyris, are necessary or appropriate to convey the Brazil Jet Business Assets;
provided
, that Amyris shall be required to provide customary representations or warranties agreed to by the parties for
this kind of transaction including basic representations and warranties regarding its authority to enter into the sale documentation,
the due execution and binding nature of the sale documentation by Amyris, and that its participation in the sale will not contravene,
or require a consent, waiver or approval pursuant to, any applicable law or pursuant to any agreement to which it is subject.
If the Brazil Jet Business Assets are being
acquired by JVCO hereunder, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws to consummate and make
effective any such transfer of the Brazil Jet Business Assets to JVCO, including, without limitation, using reasonable best efforts
to obtain all licenses, permits, consents, approvals, authorizations, qualifications and orders of the competent governmental entities.
Without limiting the generality of the foregoing, the Parties shall, when required in order to effect such transfer of the Brazil
Jet Business Assets to JVCO, make all necessary filings, and thereafter make any other required or appropriate submissions, under
any Competition Law and shall supply as promptly as practicable to the appropriate governmental entity any additional information
and documentary material that may be requested pursuant to any Competition Law.
Section 8.03.
Dispute over Acquisition Price
.
(a)
Dispute over Ground Floor Price Calculation
.
If Amyris and JVCO are unable to agree
upon the Ground Floor Price within sixty (60) days of JVCO’s timely written notice to acquire the Brazil Jet Business Assets,
then either Amyris or JVCO may submit all matters that remain in dispute with respect to the determination of the Ground Floor
Price to a mutually agreed independent qualified, recognized appraiser of international standing (such as, by way of example only,
the valuation group of an international accounting firm or a global investment bank) with substantial experience in valuing assets
similar to that of the Brazil Jet Business Assets (an “Appraiser”) or a “Big Four” accounting firm (such
Appraiser or accounting firm, the “Independent Accounting Firm”). Within sixty (60) days after such firm’s selection,
the Independent Accounting Firm shall make a final determination, binding on the Parties, of the appropriate amount of each disputed
item submitted to the Independent Accounting Firm.
With respect to each disputed item, such
determination, if not in accordance with the position of either Amyris or JVCO, shall not be in excess of the higher, nor less
than the lower, of the amounts advocated by them with respect to such disputed item. The cost of the Independent Accounting Firm’s
review and determination shall be borne in the same proportion as the aggregate amount of the disputed items that is unsuccessfully
disputed by each (as determined by
the Independent Accounting Firm) bears
to the total amount of disputed items submitted to the Independent Accounting Firm.
During the review by the Independent Accounting
Firm, Amyris and its accountants will make available to the Independent Accounting Firm such information, books and records and
work papers, as may be reasonably required by the Independent Accounting Firm to fulfill its obligations under this Subsection
(a);
provided
,
however
, that the external auditors of Amyris shall not be obligated to make any work papers available
to the Independent Accounting Firm except in accordance with such auditors’ normal disclosure procedures and then only after
such Independent Accounting Firm has signed a customary agreement relating to such access to work papers in form and substance
reasonably acceptable to such auditors.
(b)
Dispute over Brazil Jet Commercialization Assets Fair Market Value
. If Amyris and JVCO are unable to reach a mutual
determination of the Brazil Jet Commercialization Assets Fair Market Value within sixty (60) days of JVCO’s timely written
notice to acquire the Brazil Jet Business Assets, then each of Amyris and JVCO shall promptly engage (at its own expense) an Appraiser,
and each such Appraiser shall deliver a written opinion as to its determination of the Brazil Jet Commercialization Assets Fair
Market Value (each, an “Appraiser’s Report”) to each of Amyris and JVCO concurrently within twenty (20) Business
Days of its engagement (the “Report Period”).
If the Brazil Jet Commercialization Assets
Fair Market Value determined by an Appraiser is presented in such Appraiser’s Report as a range of values, then the Brazil
Jet Commercialization Assets Fair Market Value for purposes of such Appraiser’s Report shall be deemed to be the arithmetic
average of such range. If only one Appraiser timely delivers its Appraiser’s Report, the value determined by such Appraiser
shall be deemed to be the Brazil Jet Commercialization Assets Fair Market Value for purposes hereof. If both of the Appraisers
timely deliver an Appraiser’s Report and if the difference between the values submitted by each Appraiser equals 10% or less
of the higher value, then the Brazil Jet Commercialization Assets Fair Market Value for purposes hereof shall be deemed to be the
arithmetic average of the values submitted by such Appraisers. If the difference between the two values is greater than 10% of
the higher value, then Amyris and JVCO shall negotiate in good faith for a period of five Business Days from the expiration of
the Report Period to try to determine the Brazil Jet Commercialization Assets Fair Market Value.
If, during such period, Amyris and JVCO
cannot agree on the Brazil Jet Commercialization Assets Fair Market Value, then they shall jointly select a third Appraiser that
has not been engaged by either Amyris or any of its Affiliates or TENA USA or any of its Affiliates (but only with respect to matters
involving the New Energies business of TENA USA’s ultimate parent holding company and any other entity then operating what
is currently the New Energies business) in any capacity during the six (6) months preceding such date. Such third Appraiser shall
be required to choose only one of the two previously-submitted values as the Brazil Jet Commercialization Assets Fair Market Value
and shall not be authorized to determine a new, third value. If Amyris and JVCO cannot agree on the third Appraiser, then their
respective Appraisers shall together be instructed to select as the third Appraiser an Appraiser that has not been engaged by either
Amyris or any of its Affiliates or TENA USA or any of its Affiliates (but only with respect to matters involving the New Energies
business of TENA USA’s ultimate
parent holding company and any other entity
then operating what is currently the New Energies business) in any capacity during the six (6) month period preceding such date.
Neither Amyris nor JVCO (or any Affiliate
or representative of either Amyris or JVCO) shall communicate unilaterally with the third Appraiser. The third Appraiser will be
instructed to deliver to Amyris and JVCO concurrently, within fifteen (15) Business Days of its engagement, an Appraiser’s
Report selecting which of the two values submitted by the original two Appraiser s better approximates the Brazil Jet Commercialization
Assets Fair Market Value. The value chosen by the third Appraiser shall then be deemed to be the Brazil Jet Commercialization Assets
Fair Market Value and will be non-appealable, final and binding on the parties for purposes hereof. Amyris and JVCO covenant to
provide the Appraisers with complete and accurate information to allow the Appraisers to accurately and independently estimate
the Brazil Jet Commercialization Assets Fair Market Value. The Appraisers shall, in determining the Brazil Jet Commercialization
Assets Fair Market Value, consider all material information resulting from such diligence and access, subject to the definition
of “Brazil Jet Commercialization Assets Fair Market Value” set forth herein. Each of Amyris and JVCO shall bear the
fees and expenses of its Appraiser, and they shall split equally the fees and expenses of the third Appraiser. Each party shall
use its respective reasonable efforts to assist in the determination of the Brazil Jet Commercialization Assets Fair Market Value,
including providing any information reasonably required for such purpose.
ARTICLE IX
AMYRIS CHANGE OF CONTROL
Section 9.01.
Change of Control Option
.
(a)
In the event of an Amyris Change of Control (Amyris (together with its Affiliates), the “COC Party” and the
Shareholder (together with its Affiliates) not undergoing the change of control, the “Non-COC Party”), the Non-COC
Party shall have the right, exercisable during the period beginning on the date of the first public announcement of a transaction
that, if consummated, would result in an Amyris Change of Control and ending on the 60th day thereafter, to purchase, contingent
on the consummation of such Amyris Change of Control, all Shares held by the COC Party (and any of its Affiliates and Permitted
Transferees) at the Fair Value of such Shares.
(b)
The closing of the transaction contemplated by Section 9.01(a) shall take place at the principal executive offices of JVCO
on the later to occur of (x) the consummation of such Amyris Change of Control and (y) the 30th day after the final determination
of the Fair Value of the Shares held by the COC Party (and any of its Affiliates and Permitted Transferees) (which closing date
may be extended solely to receive any consent of any governmental authority that may be required pursuant to the requirements of
any Competition Law in connection with such sale of Shares to the Non-COC Party). At such closing, (i) the Non-COC Party shall
deliver to the COC Party the appropriate cash consideration by wire transfer of immediately available funds and (ii) the COC-Party
shall transfer the Shares (which shall be free and clear of Liens, defects and other adverse interests (other than as provided
for in this Agreement)) held by the COC Party (and any of its Affiliates and Permitted Transferees) to the Non-COC Party.
Concurrent with the payment of
the appropriate cash consideration, the Non-COC Party shall, or shall cause JVCO to, repay in full all principal and accrued and
unpaid interest on all Shareholder loans provided by the COC Party (and any of its Affiliates and Permitted Transferees), and shall
cause the several guarantees by the COC Party (and its ultimate parent entity, if applicable) and any pledge of the Shares beneficially
owned, directly or indirectly, by such COC Party (and its Affiliates and Permitted Transferees) securing such guarantees to be
released in full. Any transfer pursuant to this Section 9.01 shall be made without any representations, warranties, covenants or
indemnities;
provided
,
however
, that the COC Party shall be deemed to have represented that (i) the transfer has
been duly authorized by it; (ii) it has the capacity, power and authority to transfer such Shares; and (iii) the Non-COC Party
shall obtain good and valid title to such Shares, free and clear of any Liens, defects and other adverse interests (other than
as provided for in this Agreement).
Section 9.02.
Certain Consequences of an Amyris Change of Control
. In addition to the rights provided to TENA USA pursuant to Section
9.01, (a) upon the public announcement of a transaction approved by the Amyris board of directors that, if consummated, would result
in an Amyris Change of Control, all of TENA USA’s obligations pursuant to Section 4.02 shall be suspended,
provided
,
however
, that if such announced change of control transaction is terminated, such suspended obligations will resume promptly
following such termination; (b) upon the consummation of an Amyris Change of Control of Amyris, all of TENA USA’s obligations
pursuant to Section 4.02 shall be immediately terminated; and (c) if the Amyris Change of Control also (i) constitutes an F-1 Change
of Control (as defined in the Collaboration Agreement) or (ii) does not receive the approval of at least two-thirds of the members
of the board of directors of Amyris, then any amounts owed by JVCO to TENA USA (including any Carry or loans by TENA USA or any
of its Affiliates) shall become immediately due and payable by JVCO.
Section 9.03.
Exemption from Transfer Restrictions
. Notwithstanding anything to the contrary in this Agreement, a Transfer pursuant
to this Article IX shall not be subject to Article VI.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
Section 10.01.
Representations and Warranties of the Shareholders
. TENA USA and Amyris each severally and not jointly hereby makes
the following representations and warranties to JVCO as of the date hereof:
(a)
Organization
. It is a company duly organized, validly existing and in good standing under the laws of the jurisdiction
in which it is organized. It has all requisite corporate power and authority to own its respective properties and to carry on its
respective business as conducted as of the date of this Agreement and as proposed to be conducted. It is duly licensed or qualified
to transact business and is in good standing in each jurisdiction wherein the character of the property owned or leased, or the
nature of the activities conducted, make such licensing or qualification necessary, except where the failure to be so licensed
or qualified would not have a material adverse effect on its
business or properties. It has
the requisite power and authority to execute, deliver and perform its obligations under this Agreement and the agreements contemplated
by this Agreement and to own its Shares.
(b)
Authorization and Enforceability
. All corporate action on the part of it, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this Agreement (other than any documents related to Carry), and the
performance of all obligations hereunder and thereunder, have been taken. This Agreement has been duly executed and delivered by
it and (assuming due authorization, execution and delivery by the other Parties signatory hereto) this Agreement constitutes, valid
and legally binding obligations of it and its Affiliates, if applicable, enforceable against it and its Affiliates, if applicable,
in accordance with their respective terms except to the extent that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect relating to creditor’s rights generally and (ii)
the remedy of specific performance or injunctive and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
(c)
No Conflict
. The execution, delivery and performance of this Agreement (with or without the giving of notice, the
lapse of time or both), and the consummation of the transactions contemplated hereby, (i) do not require the consent of any third
party; (ii) do not conflict with, result in a breach of, or constitute a default under, its organizational documents or any other
material contract or agreement to which it is a party or by which it may be bound or affected; and (iii) do not violate in any
material respect any provision of applicable law or any order, injunction, judgment or decree of any government entity by which
it may be bound, or require any regulatory filings or other actions to comply with the requirements of applicable law, except to
the extent that it is required to file any notification pursuant to applicable Competition Laws. It is not a party to, nor is it
bound by, any agreement or commitment that prohibits the execution and delivery of this Agreement.
(d)
No Insolvency
. No insolvency proceedings of any character, including bankruptcy, receivership, reorganization, composition
or arrangement with creditors, voluntary or involuntary, affecting it are pending or threatened, and it has not made any assignment
for the benefit of creditors or taken any action in contemplation of, or which would constitute the basis for, the institution
of such insolvency proceedings.
(e)
Absence of Claims and Violations
. There is no action, suit, proceeding or investigation pending or threatened against
it which questions the validity of this Agreement or the agreements contemplated by this Agreement. It is not in violation of any
applicable law in respect of the conduct of its business or the ownership of its properties which violation would have a material
adverse effect on its business or the ownership of its properties, and it shall undertake its obligations hereunder in accordance
in all material respects with applicable law.
(f)
The representations and warranties of each Party in this Section 10.01 shall survive for a period of 24 months following
the date hereof.
Section 10.02.
Indemnification
. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the
other Party, its shareholders, directors, officers, employees, representatives, Affiliates, agents, contractors and their respective
directors, officers and employees (collectively the “Indemnified Party”), from and against all Claims made against
or suffered by any Indemnified Party that arise from any misrepresentation, breach of warranty or non-fulfillment of any covenant,
undertaking or agreement on the part of the Indemnifying Party in connection with this Agreement.
ARTICLE XI
TERM OF AGREEMENT
Section 11.01.
Duration. This Agreement shall continue in full force and effect without limit in time until the earlier of:
(a)
the Parties agreeing in writing to terminate it;
(b)
the date on which all of the Shares, to the extent remaining in issue, are owned by one Shareholder; and
(c)
an effective unanimous written resolution of Shareholders is passed or a binding judicial order of a court of competent
jurisdiction is made for the winding-up of JVCO,
provided that this Agreement
shall cease to have effect as regards any Shareholder who ceases to hold any Shares, save for Articles I (Definitions), VIII (Right
to Acquire Brazil Jet Business Assets), and XI (Term of Agreement) and Sections 7.03 (Confidential Information), 7.05(a) (Non-Solicitation),
7.05(c) (Inventions and Information Agreements), 7.08 (Liabilities), 7.10 (Enforcement of Rights by JVCO Against the Shareholders
or their Affiliates), 10.02 (Indemnification), 13.01 (Conflict), and 13.04 (Expenses) through 13.17 (Cumulative Rights), which
shall continue in force after termination generally or in relation to any such Shareholder.
Section 11.02
Effects
of Termination
. Termination of this Agreement shall be without prejudice to any liability or obligation in respect of any matters,
undertakings or conditions that shall not have been observed or performed by the relevant Party prior to such termination.
ARTICLE XII
TAX MATTERS
Section 12.01. [
reserved
]
ARTICLE XIII
GENERAL PROVISIONS
Section 13.01.
Conflict
. In the event that any provision of this Agreement conflicts with or is inconsistent with any provision
of the Articles of Association, to the extent permitted by applicable law, the terms of this Agreement shall control and prevail
in all respects over the Articles of Association, and each Shareholder shall, and shall cause its Affiliates to, vote all Shares
now or hereafter controlled, owned or held beneficially or of record thereby, at each
annual or extraordinary general meeting
of Shareholders of JVCO, in favor of, and take all actions by written resolution in lieu of any such meeting, and take all other
reasonable actions, as are necessary to ensure that at all times the Articles of Association do not impair, limit, restrict, prevent,
or otherwise adversely affect any provision of this Agreement.
Section 13.02.
Further Action
. Each Party shall, and shall cause its Affiliates to, (i) vote or cause to be voted all Shares now
or hereafter controlled, owned or held beneficially or of record by them, at each annual or extraordinary general meeting of Shareholders
of JVCO, in favor of, and take all actions by written resolution in lieu of any such meeting, and cause its directors to vote for
and take all actions by written resolution (or replace such directors with designees who will vote for and take all action by written
consent), to effect the matters contemplated by this Agreement and shall waive all right to object to or dissent with respect to,
or otherwise prevent, the foregoing; and (ii) execute and deliver such instruments, documents and other papers, give such written
assurances, give such written consents (including any that may be required under the Articles of Association and do, or cause to
be done, all things otherwise necessary, proper or advisable under applicable law, and otherwise cooperate with each other, in
each case as may be required or reasonably requested by any other Party in order to cause, evidence, reflect, consummate and make
effective any and all of the matters contemplated by this Agreement.
Section 13.03.
Indemnities
.
(a)
The Articles of Association shall at all times provide that to the maximum extent permitted by applicable law, JVCO shall
indemnify, defend and hold harmless any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed claim, action, charge, lawsuit, litigation or other similar formal legal proceeding brought by or before any governmental
entity, arbitrator, mediator or other tribunal, whether civil, criminal, administrative or investigative (an “Action”)
(other than a claim, action, charge, lawsuit, litigation or other similar formal legal proceeding by or in the right of JVCO),
by reason of the fact that he or she is or was a Managing Director or Officer of JVCO (any such person, a “Covered Person”),
against all costs, fees and expenses (including attorneys’ fees and investigation expenses), judgments, fines, losses, claims,
damages, liabilities and amounts paid in settlement or compromise in connection with any Action (“Losses”) if he or
she acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of JVCO,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
The termination of any Action by judgment, order, settlement, conviction, or upon a plea of
nolo contendere
or its equivalent
shall not, of itself, create a presumption that the person seeking indemnification did not act in good faith and in a manner that
he or she reasonably believed to be in, or not opposed to, the best interests of JVCO, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
(b)
The Articles of Association shall at all times provide that to the maximum extent permitted by applicable law, JVCO shall
indemnify, defend and hold harmless any Covered Person who was or is a party or is threatened to be made a party to
any threatened,
pending or completed Action by or in the right of JVCO to procure a judgment in its favor by reason of the fact that he or she
is or was a Managing Director or Officer of JVCO, against all Losses if he or she acted in good faith and in a manner that he or
she reasonably believed to be in, or not opposed to, the best interests of JVCO;
provided
,
however
, that no such
indemnification shall be made in respect of any Action as to which such person shall have been adjudged to be liable to JVCO except,
and then only to the extent that, the court in which such Action was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances, such person is fairly and reasonably entitled to indemnification
for such Losses that such court shall deem proper.
(c)
The Articles of Association shall at all times provide that to the extent that a Covered Person has been successful on the
merits or otherwise in defense of any Action referred to in Section 13.03(a) or Section 13.03(b), he or she shall be indemnified,
defended and held harmless against all Losses incurred by him or her in connection therewith to the maximum extent permitted by
applicable law.
(d)
Fees and expenses (including attorneys’ fees and investigation costs) incurred by a Covered Person in defending an
Action shall be paid by JVCO in advance of the final disposition of such Action upon receipt of an undertaking by or on behalf
of such Covered Person to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified
by JVCO. Fees and expenses (including attorneys’ fees and investigation costs) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the Management Board deems appropriate.
(e)
Subject to applicable law, at the request of a Covered Person, JVCO will promptly enter into an indemnification agreement
with such Covered Person on customary terms and conditions covering such Covered Person.
(f)
The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 13.03 shall not be deemed
to be exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled pursuant
to applicable law, agreement, determination of the Management Board or otherwise, both as to action in an official capacity and
as to action in another capacity while holding such office.
(g)
The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 13.03 shall, unless otherwise
provided when authorized or ratified, continue as to a Covered Person who has ceased to be a Managing Director or Officer of JVCO
and shall inure to the benefit of the heirs, executors and administrators of such person.
Section 13.04.
Expenses
. Except as otherwise specified in this Agreement, all costs and expenses, including fees and disbursements
of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated by
this Agreement shall be paid by the Party incurring such costs and expenses.
Section 13.05.
Notices
. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall
be given or made (and shall be deemed to have been duly given or made upon receipt) (i) upon delivery in person or by pre-paid
internally-recognized overnight or second-day courier service, or (ii) by fax (with a written or electronic confirmation of delivery),
in each case to the respective Parties at the following addresses and fax numbers (or at such other address or fax number for a
Party as shall be specified in a notice given in accordance with this Section 13.05). Notices, requests, claims, demands and other
communications hereunder are deemed delivered when actually delivered to, or delivery is refused at, the applicable address.
(a)
if to TENA USA to:
TOTAL ENERGIES NOUVELLES ACTIVITES
USA
24, cours Michelet
92800 Courbevoie
France
Attn: President
Fax. No.:
with a copy (which shall not constitute
notice) to:
Legal Department
Total Energies Nouvelles
24, cours Michelet
92800 Courbevoie
France
Attn: Department Head
Fax. No.:
(b)
if to Amyris to:
Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, CA 94608
United States of America
Attn: General Counsel
Fax. No.:
(c)
if to JVCO (with a copy (which shall not constitute notice) to each of TENA USA and Amyris) to:
Total Amyris BioSolutions B.V.
Debussylaan 24
1082 MD Amsterdam
The Netherlands
Section 13.06.
Public Announcements
. No Party shall make, or cause to be made, any press release or public announcement in respect
of this Agreement or the transactions
contemplated by this Agreement, or otherwise
communicate with respect thereto, with the public or any news media without the prior written consent of each Shareholder, other
than as required by applicable law or regulation. The Parties shall cooperate as to the timing and contents of any such press release
or public announcement.
Section 13.07.
Severability
. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced
by any applicable law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force
and effect to the fullest extent permitted by law. Upon determination that any term or other provision is invalid, illegal or incapable
of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible in a reasonably acceptable manner.
Section 13.08.
Entire Agreement
. This Agreement, together with the Amyris License Agreement and the Collaboration Agreement, constitutes
the entire agreement of the Parties 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 has been made or relied upon by any Party with respect
to the subject matter of this Agreement.
Section 13.09.
Assignment
. This Agreement may not be assigned without the express written consent of each Shareholder;
provided
,
however
, that any Shareholder may assign its rights and obligations pursuant to this Agreement to any of its Affiliates,
and shall assign its rights and obligations pursuant to this Agreement to any Permitted Transferee in connection with any Transfer
of Shares to such Permitted Transferee, without the written consent of the other Shareholders (so long as the assignor remains
primarily liable for the obligations so assigned and such assignment does not act as a novation thereof).
Section 13.10.
Third Party Beneficiaries
. Except with respect to the rights granted to Covered Persons pursuant to Section 13.03,
this Agreement shall be binding upon and inure solely to the benefit of the Parties and their permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other Person (including any employee or prospective employee of the
Shareholders or of JVCO) any legal or equitable right, benefit or remedy of any nature whatsoever pursuant to or by reason of this
Agreement. Notwithstanding the foregoing, it is agreed that the Covered Persons are intended third party beneficiaries of Section
13.03 of this Agreement and shall have the right to enforce Section 13.03 of this Agreement as if a party hereto.
Section 13.11.
Amendment and Waiver
.
(a)
This Agreement may not be amended except by an instrument in writing signed by, or on behalf of, JVCO and each Shareholder.
(b)
Any Party may (i) extend the time for the performance of any of the obligations or other acts of any other Party, (ii) waive
any inaccuracies in the representations and warranties of any other Party contained herein or in any document
delivered by any other Party
pursuant hereto, or (iii) waive compliance with any of the agreements or conditions of any other Party contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same
term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any Party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights. Any extension of time or other indulgence granted to a Party
hereunder shall not otherwise alter or affect any power, remedy or right of any other Party or the obligations of the Party to
whom such extension or indulgence is granted.
Section 13.12.
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New
York, without reference to provisions related to conflicts of laws.
Section 13.13.
Dispute Resolution
.
(a)
General
. Except for a dispute related to the inability to agree on the Option Price leading to the application of
Section 8.03, any dispute, controversy or claim (a “Dispute”) arising out of or relating to this Agreement or the Articles
of Association (including the application, interpretation or any alleged breach hereunder or thereunder) will be resolved in accordance
with the procedures specified in this Section 13.13. The Parties intend that these provisions will be valid, binding, enforceable,
irrevocable and will survive any termination of this Agreement and shall be the sole and exclusive set of procedures for the resolution
of any Dispute.
(b)
Escalation
.
(i)
If there is a Dispute, such Dispute shall be referred to the Lead Directors of Amyris and TENA USA for further discussion
and resolution. The Lead Directors shall as soon as practicable meet and attempt in good faith to resolve the Dispute and reach
agreement on behalf of the Parties. The Lead Directors may obtain the advice of other employees or consultants as they deem necessary
or advisable in connection with such good faith efforts. If the Lead Directors cannot reach agreement as to any matter referred
to it pursuant to this Section 13.13(b) within thirty (30) days, the Dispute shall be referred to the Executive Officers pursuant
to clause (b)(ii).
(ii)
Except as provided in Section 13.13(d), the Executive Officers shall attempt in good faith to resolve any Dispute referred
to it pursuant to Section 13.13(b)(i) within twenty (20) days after such referral by meeting (either in person or by video teleconference,
unless otherwise mutually agreed by the Parties) at a mutually acceptable time, and thereafter as often as they reasonably deem
necessary, to exchange relevant information and to attempt to resolve the Dispute. If the Dispute has not been resolved within
20 days after such referral, either Party shall have the right to initiate arbitration pursuant to Section 13.13(c) for purposes
of having the Dispute and any related Disputes resolved. If an Executive Officer intends to be accompanied at a meeting by an attorney,
the other Executive Officer shall be given at least two Business Days’ notice of such intention and may also be
accompanied by an attorney. All negotiations
conducted pursuant to this Section 13.13(b), and all documents and information exchanged by the Parties in furtherance of such
negotiations, (i) are the Confidential Information of the Parties, (ii) shall be treated as evidence of compromise and settlement
for purposes of the United States Federal Rules of Evidence and any other applicable state or national rules of evidence or procedure,
and (iii) shall be inadmissible in any arbitration conducted pursuant to Section 13.13(c) or other proceeding with respect to a
Dispute.
(c)
Arbitration.
(i)
All Disputes shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC
Rules”) by an arbitration tribunal appointed in accordance with the said ICC Rules as modified hereby.
(ii)
There shall be three arbitrators, one selected by the initiating Party in the request for arbitration, the second selected
by mutual agreement of the other Parties within 20 days of the delivery of the request for arbitration, and the third (who shall
act as chairperson of the arbitration tribunal) selected by the two Party-appointed arbitrators within 20 days of the selection
of the second arbitrator. In the event that the respondent fails to select an arbitrator, or if the two Party-appointed arbitrators
are unable or fail to agree upon the third arbitrator, the International Court of Arbitration of the International Chamber of Commerce
shall designate the remaining arbitrator(s) required to comprise the tribunal. The claimant in the arbitration shall provide a
copy of the request for arbitration to the respondent at the time such request is submitted to the Secretariat of the International
Chamber of Commerce.
(iii)
Each arbitrator chosen pursuant to this Section 13.13(c) shall speak, read, and write English fluently and shall be either
(A) a practicing lawyer who has specialized in business litigation with at least 25 years of experience in a law firm of over 50
lawyers or (B) a retired judge of a court of general jurisdiction in New York, New York.
(iv)
The place of arbitration shall be New York, New York. The language of the arbitral proceedings and of all submissions and
written evidence shall be English;
provided
, however, that a Party, at its expense, may provide for translation or simultaneous
interpretation into a language other than English.
(v)
The arbitrators shall issue an award within nine months of the submission of the request for arbitration of any Dispute.
This time limit may be extended by agreement of the Parties or by the tribunal if necessary.
(vi)
It is expressly understood and agreed by the Parties that the rulings and award of the tribunal shall be conclusive and
binding on the Parties, their successors and permitted assigns. Judgment on the award rendered by the tribunal may be entered in
any court having jurisdiction thereof.
(vii)
Each Party shall bear its own costs and expenses and attorneys’ fees, and the Party that does not prevail in the arbitration
proceeding shall pay the arbitrator’s fees and any administrative fees of arbitration. All proceedings and decisions of the
tribunal shall be deemed Confidential Information of each of the Parties.
(d)
Temporary or Preliminary Injunctive Relief
. Notwithstanding the Parties’ agreement to submit all Disputes to
final and binding arbitration pursuant to Section 13.13(c), the Parties shall have the right to seek and obtain temporary or preliminary
injunctive relief in any court of competent jurisdiction. Such courts shall have authority to, among other things, grant temporary
or provisional injunctive relief (with such relief effective until the arbitrators have rendered similar relief or a final award)
in order to protect any Party’s rights pursuant to this Agreement. Regardless of the Parties’ agreement in this Section
13.13, the Parties shall also have the right to have recourse to, and shall be bound by the pre-arbitral referee procedure of,
the International Chamber of Commerce in accordance with its Rules for a Pre-Arbitral Referee Procedure.
Section 13.14.
Counterparts
. This Agreement and any amendments hereto may be executed in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each
of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Any
such counterpart, to the extent delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery,
an “Electronic Delivery”), shall be treated in all manner and respects as an original executed counterpart and shall
be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party
shall raise the use of Electronic Delivery to deliver a signature, or the fact that any signature or agreement or instrument was
transmitted or communicated through the use of Electronic Delivery, as a defense to the formation of a contract, and each Party
forever waives any such defense, except to the extent such defense relates to lack of authenticity.
Section 13.15.
Specific Performance
. The Parties agree that irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity, without the necessity of demonstration of the inadequacy of monetary
damages.
Section 13.16.
Relationship
. This Agreement establishes among the Parties an independent relationship. The Parties intend that no
partnership or joint venture is created hereby, that no Party will be a partner or joint venturer of any other Party for any purposes,
and that this Agreement will not be construed to the contrary, and the Parties will not hold themselves out as being in any such
arrangement.
Section 13.17.
Cumulative Rights
. Except as otherwise provided in this Agreement, all of the rights and remedies expressly provided
to a Party pursuant to this Agreement shall be deemed cumulative, and in addition, to any and all other rights and remedies available
to such Party under applicable law, in equity, or by contract.
[
Signature page follows
.]
IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed as of the date first written above by their respective duly authorized officers.
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[Signature Page to Shareholders’ Agreement]
SCHEDULE 3.02(a)
INITIAL MANAGING DIRECTORS
Amyris Directors
James Iacoponi (Lead Director)
John Melo
TENA USA Directors
[●] (Chief Executive Officer, chairperson and Lead Director)
[●] (Chief Financial Officer)
[●]
[●]
ANNEX C
AMENDED & RESTATED JET FUEL LICENSE
AGREEMENT
This Amended &
Restated Jet Fuel License Agreement (the “
Agreement
”) is entered into on July __, 2015 (the “
Effective
Date
”) by and among
AMYRIS, INC.
,a corporation organized and existing under the laws of the state of Delaware,
United States of America, with its principal place of business at 5885 Hollis Street, Suite 100, Emeryville, California 94608 (“
AMYRIS
”),
and Total Amyris BioSolutions B.V., a private company with limited liability under the laws of the Netherlands (
besloten vennootschap
met beperkte aansprakelijkheid
), co-owned, as of the Effective Date, by Amyris and Total Energies Nouvelles Activités
USA, with its principal place of business at Hoogoorddreef 15, 1101 BA Amsterdam, the Netherlands (the “
Company
”).
AMYRIS and Company may each be referred to herein individually as a “
Party
,” and collectively as the “
Parties
.”
This Agreement amends and restates the License Agreement, dated December 2, 2013 between AMYRIS and Company (the “
Original
License Agreement
”).
BACKGROUND
WHEREAS, AMYRIS and
Total Gas & Power USA Biotech, Inc. entered into a technology license, research, development, commercialization and collaboration
relationship pursuant to that certain Technology License, Development, Research and Collaboration Agreement, dated as of June 21,
2010 (as such agreement may be amended from time to time by the parties thereto, including as amended pursuant to the Second Amendment
(as defined below), the “
Collaboration Agreement
”), which Collaboration Agreement was assigned by Total Gas
& Power USA Biotech, Inc. to Total Gas & Power USA SAS, which is now called Total Energies Nouvelles Activités USA
and is a société par actions simplifiée organized under the laws of the Republic of France (“
TOTAL
”),
by letter agreement dated January 11, 2011;
WHEREAS, the Collaboration
Agreement contemplates that AMYRIS and TOTAL may form one or more joint venture companies to exploit certain technologies resulting
from research and development activities conducted under the Collaboration Agreement;
WHEREAS, AMYRIS and
TOTAL entered into a Second Amendment to the Collaboration Agreement dated as of July 31, 2012, as amended on April 1, 2015, (“
Second
Amendment
”) and an Amended and Restated Master Framework Agreement dated December 2, 2013, as amended on April 1, 2015,
(“
Amended & Restated Master Framework Agreement
”), which agreements contemplated that AMYRIS would grant
to a joint venture entity certain licenses and other rights to use certain intellectual property of AMYRIS to Make and Sell certain
jet and diesel fuel products and conduct certain related activities, in each case, according to the terms and conditions set forth
in a license agreement;
WHEREAS, in order to
create such a joint venture entity, to make such license grants, and to address certain related matters, AMYRIS and TOTAL incorporated
the Company on November 29, 2013 as a Dutch B.V. and entered into a shareholders’ agreement with the Company on December
2, 2013 (“
Original Company Shareholders’ Agreement
”), and then the Parties entered into the Original License
Agreement;
7524602 1
WHEREAS, AMYRIS, TOTAL and Company now desire
to make certain changes in their relationship from what is set forth in the Original License Agreement and Original Company Shareholders’
Agreement, including reversion of Company’s diesel fuel rights back to AMYRIS;
WHEREAS, in order to
make these changes to the license grants to Company and to address certain related matters, the Parties desire to enter into this
Agreement, subject to the terms and conditions hereof; and
WHEREAS, of even date
herewith, AMYRIS, TOTAL and Company are entering into an amended and restated shareholders’ agreement (the “
Company
Shareholders’ Agreement
”) to govern their reallocated joint ownership of the Company and AMYRIS and TOTAL are entering
into a separate License Agreement regarding Diesel Fuel in the EU (“
EU Diesel Fuel License Agreement
”).
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth below and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Capitalized terms
used but not defined herein shall have the meanings set forth in the Company Shareholders’ Agreement. References to definitions
in the Company Shareholders’ Agreement and/or the Collaboration Agreement, including the Second Amendment, are to such definitions
as they exist as of the Effective Date.
1.2 “
Affiliate
”
shall have the meaning set forth in Section 1.1 of the Collaboration Agreement; except that (i) Novvi LLC and its Affiliates (collectively,
“
Novvi
”) shall not be deemed an Affiliate of AMYRIS under this Agreement unless AMYRIS’ equity ownership
of a Novvi entity exceeds 50%, at which time, the applicable Novvi entity(ies) will be considered an Affiliate of AMYRIS for purposes
of this Agreement, (ii) Company shall not be considered an Affiliate of AMYRIS nor an Affiliate of TOTAL and neither TOTAL nor
AMYRIS shall be considered an Affiliate of Company, and (iii) SMA Indústria Química S.A and its Affiliates (collectively,
“
SMA
”) shall not be deemed an Affiliate of AMYRIS under this Agreement unless AMYRIS’ equity ownership
of a SMA entity exceeds 50%, at which time, the applicable SMA entity(ies) will be considered an Affiliate of AMYRIS for purposes
of this Agreement. For clarity, the Affiliates of AMYRIS as of the Effective Date include: AMYRIS Fuels LLC, AB Technologies LLC,
and AMYRIS Brasil Ltda.
1.3 “
AMYRIS
Certification Materials
” means the Jet Certification Materials (as defined in Section 7 of the Second Amendment) made
or generated by or on behalf of AMYRIS.
1.4 “
AMYRIS
Competitor
” means an entity (other than AMYRIS or its Affiliates) whose primary business is to use a synthetic biology
platform to make genetically modified microorganisms and to use such genetically modified organisms to
make Compounds (as defined in the Collaboration Agreement) that
compete with AMYRIS Compounds.
1.5 “
AMYRIS Family
” means
AMYRIS and its Affiliates.
1.6 “
AMYRIS
Farnesene Included IP
” means any (i) AMYRIS Background IP (as defined in the Collaboration Agreement) and any AMYRIS
Non-Collaboration IP (as defined in the Collaboration Agreement), in each case that is Controlled by AMYRIS or its Affiliates as
of the Second Amendment Date, and (ii) AMYRIS Non-Collaboration IP developed after the Second Amendment Date (other than by a Third
Party Acquirer), in each case, that (x) encompass general means of practicing synthetic biology or (y) are necessary or useful
for the R&D Activities (as defined in the Collaboration Agreement) contemplated in connection with the Biofene Development
Project.
1.7 “
AMYRIS
Farnesene Production IP
” means any Farnesene Production IP owned or Controlled by AMYRIS or its Affiliates (other than
a Third Party Acquirer).
1.8 “
AMYRIS
Hydrogenation IP
” means any AMYRIS Background IP and AMYRIS Non-Collaboration IP in each case that is Controlled by AMYRIS
or its Affiliates (other than a Third Party Acquirer) and is necessary or materially useful in order to hydrogenate farnesene into
farnesane.
1.9 “
AMYRIS
Included IP
” shall have the meaning provided in Section 1.4 of the Collaboration Agreement.
1.10 “
AMYRIS
Licensed IP
” means, all Inventions to the extent owned or Controlled by AMYRIS or its Affiliates (other than a Third
Party Acquirer) as of the Effective Date or at any time thereafter during the Term until thirty (30) years following the Effective
Date including, AMYRIS Technology (as defined in Section 1.11 of the Collaboration Agreement), AMYRIS-Owned Collaboration IP (as
defined in Section 1.9 of the Collaboration Agreement), AMYRIS Hydrogenation IP, AMYRIS-Owned Improvement Scope IP, AMYRIS’
interest in Jointly-Owned Improvement Scope IP (as defined in Section 6.1(e) of the Collaboration Agreement), Jointly Owned Collaboration
IP (as defined in Section 6.1(d)(ii) of the Collaboration Agreement), AMYRIS Farnesene Included IP and AMYRIS Production IP (as
defined herein), and any Invention(s) licensed to AMYRIS by Novvi pursuant to the IP License Agreement entered by AMYRIS and Novvi
on March 26, 2013 and amended on July _____, 2015, (the “
IP License Agreement
”), and subject to the terms of
Section 2.A(vii) below, the AMYRIS Certification Materials, in each case that is necessary or, in the case of the AMYRIS Farnesene
Production IP, useful (i) to develop and/or optimize the processes of making farnesene from the Commercial Farnesene Strain and
purifying it from the fermentation broth and converting farnesene into farnesane and/or (ii) to Make and Sell (as defined in Section
1.75 of the Collaboration Agreement) JV Jet Products; provided that any such Inventions first developed or Controlled by AMYRIS
or its Affiliates after the Effective Date shall be included in the AMYRIS Licensed IP only if Company agrees to pay to AMYRIS
a commercially reasonable royalty (to be determined with regard to any such Invention(s) following the development of the applicable
Invention(s) pursuant to
Section 2.A(iii)). For purposes of this definition and for Sections
2.A(i)(a), 2.A(i)(c) and 7.D, an item of AMYRIS Licensed IP will be deemed to be necessary with respect to a particular activity
if it is actually used by the Company in carrying out such activity.
1.11 “
AMYRIS-Owned Improvement
Scope IP
” means any and all Improvement Scope IP that is owned by AMYRIS pursuant to Section 6.1(e) of the Collaboration
Agreement.
1.12 “
Banked
Strain
” has the meaning set forth in Section 2.D hereof.
1.13 “
Biofene
Development Project
” means the project and activities described in the Biofene Development Project Plan.
1.14 “
Biofene
Development Project Plan
” means the written Development Project Plan agreed by AMYRIS and TOTAL for the research, development,
and scale-up production activities to be conducted pursuant to the Second Amendment (as amended from time to time, if applicable,
pursuant to the Collaboration Agreement).
1.15 “
Biofene
Development Project Termination Date
” means the date that the Biofene Development Project terminates.
1.16 “
Biofene
Development Project Extension Agreement
” means a written contract between TOTAL and AMYRIS, entered into pursuant to
the EU Diesel Fuel License Agreement, under which TOTAL and AMYRIS extend the term of the Biofene Development Project beyond July
31, 2016 to set forth the Strain engineering and other activities AMYRIS will perform during such extension period, and the payments
TOTAL will make to AMYRIS for AMYRIS’s Biofene Development Project-related activities during this extension period.
1.17 “
Brazil
Jet Business
” means production and commercialization by Amyris and its Affiliates of Farnesane Jet Products within Brazil
for commercialization solely in Brazil, including the production of Farnesane Jet Products outside of Brazil for commercialization
within Brazil, but excluding the production of Farnesane Jet Products within Brazil for commercialization outside of Brazil. However,
for purposes of this definition, the commercialization of Farnesane Jet Products for use in vehicles that begin an international
travel segment within Brazil and conclude such international travel segment outside of Brazil shall constitute commercialization
of such products within Brazil.
1.18 “
Buy-Out
Closing
” means the closing of TOTAL’s purchase of all of AMYRIS’ interest in the Company pursuant to the
Company Shareholders’ Agreement.
1.19 “
By-Product
”
means any composition other than a JV Jet Product that is produced (and has been produced in greater than
de minimis
levels
in a manufacturing process that is at least a 300 liter scale) (a) as a direct consequence of the manufacture of a JV Jet Product
by the Company or its Affiliates, Subcontractors or sublicensees, and (b) except in the case of dead yeast cells, with a weight
that is less than 40% of the weight of the applicable JV Jet Product concurrently produced and, in each case, any composition resulting
from further purification processing.
1.20 “
Change
of Control
” means the occurrence of any of the following with respect to AMYRIS: (i) the consolidation of AMYRIS with,
or the merger of AMYRIS with or into, another “person” (as such term is used in Rule 13d-3 and Rule 13d-5 of the Exchange
Act), or the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially
all of the assets of the AMYRIS and its subsidiaries taken as a whole, or the consolidation of another “person” with,
or the merger of another “person” into, AMYRIS, other than in each case pursuant to a transaction in which the “persons”
that “beneficially owned” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly, the Voting Shares of AMYRIS immediately prior to the transaction “beneficially own”, directly or indirectly,
Voting Shares representing at least a majority of the total voting power of all outstanding classes of voting stock of the surviving
or transferee person; (ii) the adoption by AMYRIS of a plan relating to the liquidation or dissolution of AMYRIS, (iii) the consummation
of any transaction (including any merger or consolidation) the result of which is that any “person” becomes the “beneficial
owner” directly or indirectly, of more than 50% of the Voting Shares of the AMYRIS (measured by voting power rather than
number of shares); or (iv) the first day on which a majority of the members of the AMYRIS board of directors does not consist of
Continuing Directors. As used in this definition, “
Voting Shares
” of any Person means capital shares or capital
stock of such Person which ordinarily has voting power for the election of directors (or persons performing similar functions)
of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.
As used in this definition, “
Continuing Director
” means, as of any date of determination, any member of the
AMYRIS board of directors who (i) was a member of the AMYRIS Board of Directors on July 31, 2012 or (ii) was nominated for election
or elected to the AMYRIS board of directors with the approval of a majority of the Continuing Directors who were members of the
AMYRIS board of directors at the time of such nomination or election and who voted with respect to such nomination or election;
provided that a majority of the members of the AMYRIS board of directors voting with respect thereto shall at the time have been
Continuing Directors. Notwithstanding the foregoing, an AMYRIS Change of Control shall not be deemed to have occurred in connection
with (A) any acquisition of Amyris by TENA USA (or any of its Affiliates) or (B) any change in the board of directors of AMYRIS
such that it is no longer composed of a majority of Continuing Directors if any designee of TENA USA (or any of its Affiliates)
to the board of directors of AMYRIS approves the nomination or election of any member of the board of directors of AMYRIS that
is not a Continuing Director or if TENA USA (or any of its Affiliates) votes any Voting Shares in favor of the election of any
member of the board of directors of AMYRIS that is not a Continuing Director.
1.21 “
Commercial
Farnesene Strain
” means any Commercial Strain (as defined in Section 1.25 of the Collaboration Agreement) designed for
the production of farnesene.
1.22 “
Commercial
Scale
” means with respect to a particular Commercial Farnesene Strain, the use of such Strain to reproducibly produce
farnesene of commercially quality in commercial quantities and at commercially reasonable cost, as shown by production of [*]
[*] 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.
[*]
1.23 “
Commercial Technology Transfer
Package
” has the meaning set forth in Section 2.D(i).
1.24 “
Company’s
Articles of Association
” means the articles of association of the Company, as amended from time to time.
1.25 “
Company Indemnitees
”
has the meaning set forth in Section 5.A(ii) hereof.
1.26. “
Company
Independent Strain Engineering Patents”
means any issued
Patent owned by Company
or a wholly-owned Affiliate of Company with respect to an Invention conceived or reduced to practice by or on behalf of the Company
in connection with the exercise of the license granted in Section 2.A(i)(b) of this Agreement that claims
(a) a Strain including a Mevalonate Pathway that produces one
or more isoprenoid compounds, or (b) methods of using such Strain outside the Field.
1.27 “
Company
Strains
” means the Commercial Farnesene Strain(s), the Intermediate Strain(s) and any other Strains that are genetic
manipulations or modifications of any of the foregoing.
1.28 “
Confidential
Information
” has the meaning set forth in Section 6.A hereof.
1.29 “
Control
”
or “
Controlled
” means, with respect to any Invention, Patent or other intellectual property right, that the
applicable Party or its Affiliates owns or has a license to such Invention, Patent or other intellectual property right and such
applicable Party or its Affiliates has the ability to disclose the same to the other Party and to grant the other Party a license
or a sublicense (as applicable) under the same as provided in this Agreement without violating the terms of any agreement or other
arrangement with any Third Party.
1.30 “
Dispute
”
means any dispute, claim or controversy that arises between the Parties in connection with this Agreement or any agreement or instrument
delivered in connection herewith, or the negotiation, execution, interpretation, breach, termination invalidity or enforcement
hereof or thereof.
1.31 “
Executive
Officers
” means (a) in the case of AMYRIS, the Chief Commercial Officer or such other officer designated in writing by
the Chief Executive Officer, and (b) in the case of Company, the Chief Executive Officer or such other officer as may be designated
by Company’s board of directors.
1.32 “
Farnesane
Jet Product
” means a Jet Product that is farnesane, wherein the isoprenoid is farnesene.
[*] 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.
1.33 “
Farnesene Production IP
”
means any and all (a) AMYRIS Farnesene Included IP, (b) Collaboration IP and (c) Improvement Scope IP, in each case that is necessary
or useful to (i) produce farnesene from fermentation of a Farnesene Strain or
(ii) purify such
farnesene
from the fermentation medium to hydrogenation grade.
1.34
Farnesene Strain
”
means any Strain that produces farnesene.
1.35 “
Field
”
means jet fuel applications.
1.36 “
Governmental
Entity
” shall have the meaning set forth in Section 1.54 of the Collaboration Agreement.
1.37 “
Improvement
Scope IP
” means any and all Inventions that are conceived or reduced to practice on or after the Effective Date of the
Collaboration Agreement by
(a) any employee, agent or Third Party contractor of TOTAL or
any of its Affiliates,
(b) any employee, agent or Third Party contractor of AMYRIS
or any of its Affiliates, or
(c) any of the foregoing jointly, in each case, in the performance
of Improvement Scope Activities (x) during the term of the Collaboration Agreement or (y) during the term that a JV Jet Product
is being commercialized by Company.
1.38 “
Indemnified
Party
” has the meaning set forth in Section 5.A(iii) hereof.
1.39 “
Indemnifying
Party
” has the meaning set forth in Section 5.A(iii) hereof.
1.40 “
Infringement
”
has the meaning set forth in Section 3.D(i) hereof.
1.41 “
Initial
Package
” has the meaning in Section 2.D(iii)(a) hereof.
1.42 “
Intermediate
Strain(s)
” means, at a given point in time, (i) the Farnesene Strain then most recently used by AMYRIS for the commercial
Manufacture of farnesene, if any, and (ii) up to ten (10) other Strains developed in the Biofene Development Project that are most
likely to achieve the goals of the Biofene Development Project. The four Intermediate Strains to be initially escrowed as part
of the Initial Package have been selected by the Management Committee (as defined in the Collaboration Agreement). Company agrees
that the Management Committee pursuant to the Second Amendment may periodically designate additional Intermediate Strain(s) for
inclusion as Banked Strains to replace any or all of the four (4) initial Banked Strains, provided that if the Management Committee
is unable to agree upon whether a particular Strain should be designated as an Intermediate Strain, then the TOTAL representative(s)
to the Management Committee shall have the right to make such decision with respect to eight (8) (but not more) of the subject
Strains but in no event may the TOTAL representatives(s) designate more than eight (8) Strains for escrow. Notwithstanding the
above, at any given time, there shall be no more than fourteen (14) Banked Strains.
1.43 “
Invention(s)
”
means, whether or not patentable, any inventions, information, technology, methods, compositions of matter, formulae and other
subject matter (including all related software, workflow, apparatus or arrangement of apparatuses, knowledge database systems,
processes, systems and technology for the design, selection,
engineering, development and manufacture
of Strains, Compounds or Products (each, as defined in the Collaboration Agreement), the Strains and the Compounds and the Products
themselves, chemistry, process engineering, materials transformation, Strain or Compound or Product specifications, know-how, trade
secrets, improvements and all intellectual property rights therein or pertaining thereto.
1.44 “
IP License Agreement
”
has the meaning set forth in Section 1.10.
1.45 “
Jet
Product
” means one or more fermentation produced isoprenoid(s) that may or may not be hydrogenated or hydroprocessed,
which when blended with petroleum-derived jet fuel, meet the ASTM D 1655 specification or the equivalent of (or successor to) such
standard for use as a jet fuel.
1.46 “
JV Jet
Product
” means (i) farnesene or farnesane for use in Jet Product or
(ii) Farnesane Jet Product.
1.47 “
Knowledge
”
means actual or constructive knowledge of any officer of AMYRIS.
1.48 “
Known
By-Product
” means a By-Product that is specified on Exhibit E as of the Effective Date or added to Exhibit E in accordance
with Section 2.H.
1.49 “
Legal
Requirement
” means, with respect to any Party, any federal, state or local law, constitution, treaty, ordinance, code,
edict, writ, decree, rule, regulation, judgment, ruling, injunction or requirement issued, enacted, adopted, promulgated, implemented
or otherwise put into effect by or under the authority of any Governmental Entity that is binding upon or applicable to such Party,
including Environmental Laws (as defined in the Collaboration Agreement) and any of the foregoing applicable to genetically modified
microorganisms, related to food, drugs, health or safety.
1.50 “
Lien
”
means any security interest, pledge, mortgage, lien, charge, adverse claim of ownership or use, or other encumbrance of any kind.
1.51 “
Manufacture
”
means make and have made (including practicing and using for the foregoing purposes).
1.52 “
Patent(s)
”
means (a) all national, regional and international patents and patent applications, including provisional patent applications;
(b) all patent applications filed either from a patent or patent application described in clause (a) or from an application claiming
priority to a patent or patent application described in clause (a), including divisionals, continuations, continuations-in-part,
provisionals, converted provisionals, and continued prosecution applications; (c) any and all patents that have issued or in the
future issue from the foregoing patent applications (clauses (a) and (b)), including utility models, petty patents and design patents
and certificates of invention; (d) any and all extensions or restorations by existing or future extension or restoration mechanisms,
including revalidations, reissues, re-examinations and extensions (including any supplementary protection certificates and the
like) of the foregoing patents or patent applications (clauses (a), (b) and (c)); and (e) any similar rights, including so-called
pipeline protection, or any
importation, revalidation, confirmation
or introduction patent or registration patent or patent of additions to any such foregoing patent applications and patents.
1.53 “
Person”
means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated association, joint venture or other similar entity
or organization, including a government or political subdivision, department or agency of a government.
1.54
Potential Third
Party Conflict
” has the meaning set forth in Section 2.H(ii).
1.55 “
Program
Strain
” means a Commercial Strain (as defined in Section 1.25 of the Collaboration Agreement) designed for the production
of farnesene that satisfies the criteria of a Commercial Farnesene Strain.
1.56 “
Second
Amendment Date
” means July 30, 2012.
1.57 “
Strain
”
means any microorganism, including bacteria, yeast, higher fungi and algae, that is tested, modified or optimized to produce compounds
according to the alteration of metabolic pathways, including AMYRIS’ genetically modified yeast strain that includes the
Mevalonate Pathway (as defined in the Collaboration Agreement) from which it is capable of making an isoprenoid compound.
1.58
“Strain
Improvement Technology
” means any Invention Controlled by AMYRIS or its Affiliates (other than a Third Party Acquirer)
that is necessary or materially useful to perform strain engineering or other genetic manipulation (by any means) in order to genetically
manipulate any Strain(s) for the purpose of developing or improving a Farnesene Strain.
1.59 “
Subcontractor
”
means any Third Party Subcontractor or TOTAL Subcontractor.
1.60 “
Subject
Third Party Agreement
” shall have the meaning set forth in Section 4.D(i) hereof.
1.61 “
Successful
Commercial Transfer
” means with respect to a particular Commercial Farnesene Strain, the use of such Strain to reproducibly
produce farnesene at Commercial Scale.
1.62 “
Term
”
has the meaning set forth in Section 7.A hereof.
1.63 “
Territory
”
means worldwide.
1.64 “
Third
Party
” means a Person other than Company or any of its Affiliates, AMYRIS or TOTAL or an Affiliate of AMYRIS or TOTAL.
1.65 “
Third
Party Acquirer
” means (i) a Third Party that acquires AMYRIS in a Change of Control or acquires substantially all of
the assets of AMYRIS and (ii) any Affiliates of such Third Party (other than the members of AMYRIS Family as of immediately prior
to the AMYRIS transaction described in subparagraph (i)).
1.66 “
Third
Party Agreement
” means any agreement that was entered or is entered by AMYRIS with a Third Party pursuant to which AMYRIS
obtained or obtains a license, with the right to sublicense, of any Inventions, including without limitation Patents, within the
AMYRIS Licensed IP.
1.67 “
Third
Party Conflict
” has the meaning set forth in Section 2.H(i).
1.68 “
Third
Party Subcontractor
” has the meaning set forth in Section 2.C(ii) hereof.
1.69 “
TOTAL
Subcontractor
” has the meaning set forth in Section 2.C(ii) hereof.
ARTICLE 2. LICENSE GRANT AND RELATED
TERMS
A.
License to Make
and Sell JV Jet Products
.
(i)
License Grants
.
Subject to Section 2.F and 2.J below and Article 7, AMYRIS and its Affiliates hereby grant to Company the following perpetual and
irrevocable licenses, with the right to sublicense through multiple tiers pursuant to Section
2.C below, for the JV Jet Products:
(a) a non-exclusive,
worldwide (subject to Section 2.E(iv) below), royalty-free (subject to Section 2.B below) right and license under the AMYRIS Licensed
IP in each case that is necessary or, in the case of the AMYRIS Farnesene Production IP, useful to develop and/or optimize the
processes of making farnesene from a Commercial Farnesene Strain, purify farnesene from the fermentation broth, and convert farnesene
into farnesane, in each case solely for Company to exercise its licenses under clauses (c) and (d) below;
(b) a non-exclusive,
worldwide (subject to Section 2.E(iv) below), royalty-free (subject to Section 2.B below) right and license under the Strain Improvement
Technology to optimize and/or engineer, by any means, any Farnesene Strain for use in the Field (including but not limited to Commercial
Farnesene Strains with performance characteristics that exceed Commercial Scale), which license may be practiced upon the earliest
to occur of the following: (1) when TOTAL may practice its license under Section 2.A(i)(b) of the EU Diesel Fuel License Agreement
or (2) the occurrence of a Buy-Out Closing prior to August 1, 2016. Such license may be practiced for so long as the Company is
pursuing the development and/or Manufacture of farnesene for use in the Field;
(c) an exclusive (subject
to Section 2.A(iv)), royalty-free (subject to Section 2.A(iii) and (vii) and Section 2.B below) right and license under the AMYRIS
Licensed IP in each case that is necessary
or, in the case of the AMYRIS Farnesene Production IP, useful to Make and Sell JV Jet Products within the Territory; and
(d) a non-exclusive,
royalty-free (subject to Section 2.B below) right and license under the AMYRIS Licensed IP, in each case, that is necessary to
offer for sale, sell and import any Known By-Product(s) for any uses other than for use(s) precluded by Third Party Conflicts;
provided, however, that this license shall not expand any obligation that AMYRIS may have to disclose the AMYRIS Licensed IP beyond
what is set forth elsewhere in this Agreement. For clarity, the production of By-Products by Company or its Sublicensees or Subcontractors
in connection with the practice of the right to Manufacture JV Jet Products pursuant to Section 2.A(c) above shall not be a breach
of this Agreement.
For clarity, there shall be no volume or
production limits on the foregoing licenses set forth in clauses (a), (c) and (d), and such licenses may be practiced by Company
and its sublicensees anywhere in the Territory (subject to Section 2.E(iv)) for the licensed uses. For additional clarity, the
licenses granted in clauses (a)-(d) above include the right to Make and Sell solely for use in the Field farnesane made with farnesene
produced via the exercise of such licenses.
(ii)
Limited License
.
The licenses granted Company above (a) allow it to conduct licensed activities with respect to (x) the JV Jet Products solely for
use in the Field, and/or (y) Known By-Products (on a case-by-case basis) solely for use outside the applicable Third Party Conflict(s),
and (b) with respect to Section 2.A(i)(b), include the right to optimize or modify the applicable Company Strain(s) by any means.
Upon termination of the license granted in Section 2.A(i)(b), unless otherwise agreed in writing by the Parties, at AMYRIS’
written request, Company shall destroy all quantities of the Intermediate Strain(s) and any Strains developed under such license
based on or using the Intermediate Strain(s) other than the Commercial Strain(s).
(iii)
Inventions
First Developed or Controlled by AMYRIS after the Biofene Development Project Termination Date
. Except as provided in Sections
2.A(i)(a), (b), and (d), any Invention(s) first developed or Controlled by AMYRIS or its Affiliates after the Biofene Development
Project Termination Date that would be covered by the AMYRIS Licensed IP shall be included therein only if the Company (or any
successor of Company) agrees to pay a commercially reasonable royalty (to be determined with regard to such Inventions following
its development with regard thereto). Notwithstanding the foregoing, in consideration of the license to Company Independent Strain
Engineering Patents, no royalty shall be due to AMYRIS with respect to any Invention(s) first developed or Controlled by AMYRIS
or its Affiliates after the Biofene Development Project Termination Date that would constitute Strain Improvement Technology. AMYRIS
shall notify Company (or any successor of Company) of any such Invention(s) promptly as they first are developed or otherwise become
Controlled by AMYRIS or its Affiliates, providing a detailed description thereof. At the request of Company (and/or any successor
of Company), the Parties shall negotiate in good faith a commercially reasonable royalty for the use of such Invention(s). If the
Parties (or AMYRIS and any successor of Company) agree in writing on such terms for inclusion of such Invention(s) within the
AMYRIS Licensed IP, then they shall be
subject to the applicable licenses in Section 2.A. If the Parties (or AMYRIS and any successor of Company) are unable to reach
agreement on such terms, then at the request of Company (or any successor of Company), such matter shall be submitted to baseball
arbitration for final resolution as provided in Section 8.E below.
(iv)
AMYRIS Retained
Rights
. AMYRIS retains (a) the co-exclusive right to Make and Sell JV Jet Products in Brazil, unless and until the Brazil Jet
Business Assets (as defined in the Company Shareholders’ Agreement) are acquired by the Company in accordance with the terms
of the Company Shareholders’ Agreement, (b) rights to Manufacture JV Jet Products in the Territory but only for sale within
the Territory to Company or its designees, (c) the right to import JV Jet Products into the Territory but only for sale to Company
and its designees, (d) rights to conduct activities within the Improvement Scope as permitted under the Collaboration Agreement
and the conduct of the Biofene Development Project and (e) the exclusive (as between the Company and AMYRIS), worldwide rights
to Make and Sell and otherwise exploit products for use outside the Field, including the right to Manufacture farnesene and/or
farnesane for use in such other products.
(v)
Future JV Jet
Product Supply Agreement
. If AMYRIS is Manufacturing JV Jet Product for the Company pursuant to Section 2.A(iv) and Company
desires to purchase some of such JV Jet Product from AMYRIS to offer for sale and sell it for use in the Field in the Territory,
the Parties will, in good faith, negotiate commercially reasonable terms, which will include a “most favored nation basis”
pricing mechanism (based on similarity of markets, geographies, uses, quantities, etc.), for AMYRIS to supply Company with agreed
upon quantities of such JV Jet Product.
(vi)
General
.
(a)
Survival
.
Except as provided in Section 2.A(i)(b) or in Section 7.C, the licenses granted to Company in Article 2 shall be irrevocable until
the end of the Term and remain in full force and effect during the Term, notwithstanding any breach or alleged breach of the Collaboration
Agreement or any termination or expiration of the Collaboration Agreement. For clarity, the licenses granted to Company shall terminate
upon the earlier of (i) expiration of the Term and (ii) termination of this Agreement pursuant to Section 7.C. However, during
the Term, except for such modifications as may apply under Section 2.J, such licenses shall remain in effect regardless of the
equity ownership of Company or any changes thereto.
(b)
Licensed Patent
List
. The Patents existing as of the Effective Date within the AMYRIS Licensed IP are those set forth in a letter provided
by AMYRIS to the Company of even date herewith. Upon the Company first becoming eligible to practice the license granted in Section
2.A(i)(b), AMYRIS shall provide to Company a list of Patents then currently existing within the Strain Improvement Technology.
During the Term, AMYRIS shall provide to Company at least semi-annually a complete and accurate written updated list of all Patents
within the AMYRIS Licensed IP and, if Company is eligible to practice the license granted in Section 2.A(i)(b), the Strain Improvement
Technology; provided, however, that such obligation shall cease (1) with respect to AMYRIS Licensed IP as of the expiration of
the last to expire of the Patents that are included in the AMYRIS Licensed IP at the time of the first commercial sale of a JV
Jet Product or if no such sale has occurred by twenty (20) years after the Effective Date, as of such date, and (2) with respect
to the Strain Improvement Technology upon the existence of (x) a Suitable Commercial Strain or (y) the achievement of a Successful
Commercial Transfer of a Commercial Farnesene Strain.
(vii)
AMYRIS Certification
Materials
. If Company wishes to use any AMYRIS Certification Materials to sell, as certified, a Farnesene Jet Product for use
in the Field in the Territory, then Company shall notify AMYRIS and shall be obligated to reimburse AMYRIS for the documented amounts
incurred by AMYRIS in generating the applicable AMYRIS Certification Materials after June 21, 2010; provided, however, for activities
conducted by AMYRIS Brazil in furtherance of its Brazil Jet Business, no reimbursement shall be required if the Brazil Jet Business
Assets (as defined in the Company Shareholders’ Agreement) have been acquired by Company. Company shall pay such amounts
to AMYRIS within thirty (30) days of receipt of an invoice therefor unless otherwise agreed in writing by the Parties.
(viii)
Extension of
the Biofene Development Project
. The Parties acknowledge that under the EU Diesel Fuel License Agreement, at any time prior
to the end of the Biofene Development Project (i.e., July 31, 2016), TOTAL may provide a written request that AMYRIS enter into
negotiations regarding an extension of the Biofene Development Project, per a Biofene Development Project Extension Agreement,
with the objective of generating one or more Commercial Farnesene Strains for use in the Field (including but not limited to Commercial
Farnesene Strains with performance characteristics that exceed the minimal requirements for Commercial Farnesene Strain). If AMYRIS
fails to timely respond to TOTAL’s notice, Amyris declines to participate in such negotiations, or if the Parties cannot
reach agreement on the terms of such Biofene Development Project Extension Agreement within the agreed negotiation period, then
TOTAL and AMYRIS have no more obligations to attempt to extend the Biofene Development Project and in such case, but in no event
before the expiration of the Biofene Development Project, the Company may practice the license in Section 2.A(i)(b) of this Agreement
when TOTAL may practice the license in Section 2.A(i)(b) of the EU Diesel Fuel License Agreement.
B.
Third Party Agreements
.
(i) Company acknowledges
that certain Patents and/or Inventions within the AMYRIS Licensed IP have been or may be licensed to AMYRIS pursuant to one or
more Third Party Agreement(s), and that the sublicenses granted by AMYRIS to Company with respect to the AMYRIS Licensed IP that
is subject to any such Third Party Agreement(s) are subordinate to the applicable terms of the applicable Third Party Agreement.
In the event that such terms would impose any obligations on Company beyond those set forth in this Agreement, AMYRIS shall promptly
notify Company of such terms of any Third Party Agreement so that Company will be informed of such terms. If AMYRIS fails to promptly
disclose any such terms, then Company shall have no
responsibility to comply with the non-disclosed
terms or liability for failing to so comply. In the event that the licenses granted hereunder include a sublicense under the IP
License Agreement, the Company acknowledges that such sublicense shall be subject to Section 2.2 thereof.
(ii) Company further
acknowledges that, with respect to Patents and/or Inventions within the scope of the AMYRIS Licensed IP or the Strain Improvement
Technology, as applicable, that are licensed pursuant to a Third Party Agreement to AMYRIS or its applicable Affiliate after the
completion of the Biofene Development Project, the sublicense granted by AMYRIS to Company may result in payment obligations to
the Third Party for the grant and/or practice of such sublicense to Company. In such a case, Company shall only receive such a
sublicense if it agrees in writing, in a form reasonably acceptable to AMYRIS, to pay any such amounts due for the grant of a sublicense
to Company or practice of such a sublicense by Company or its sublicensees (which payments may include milestone payments and/or
royalties on product sales), and to otherwise comply with the terms of such Third Party Agreement.
(iii) In the event of
the filing of a bankruptcy petition under Title 11 of the United States Code (the “
Bankruptcy Code
”) by or against
a licensor of intellectual property to AMYRIS under a Third Party Agreement(s) (the “
Third Party Licensor
”),
Subject to the rights granted to TOTAL in the EU Diesel Fuel License Agreement, which Company agrees shall take precedence over
the rights granted to Company in this provision, AMYRIS hereby assigns to Company the right to make the election set forth in Section
365(n)(1)(B) of the Bankruptcy Code (the “
365(n) Election
”) if Third Party Licensor as debtor in possession,
or a trustee on its behalf, rejects the Third Party Agreement pursuant to Section 365 of the Bankruptcy Code; provided, however,
that such 365(n) Election must be made by Company no later than the earlier of (x) seven (7) Business Days after AMYRIS has provided
written notice to Company of any rejection of the Third Party Agreement and (y) five (5) Business Days prior to any date set forth
in an order of the bankruptcy court having jurisdiction over the bankruptcy case of Third Party Licensor as the date by which any
such Section 365(n) Election must be made, which deadline shall be provided in writing to Company by AMYRIS within two (2) Business
Days after AMYRIS receives written notice of same from such Third Party Licensor (the “
Election Deadline
”).
AMYRIS shall not have the right to make the election set forth in Section 365(n)(1)(A) of the Bankruptcy Code prior to (1) the
Election Deadline, in the event Company has timely exercised the 365(n) Election, or (2) if AMYRIS fails to timely notify Company
of the rejection of such Third Party Agreement, the date by which such Section 365(n) Election must be made. If Company does not
make the 365(n) Election on or prior to the Election Deadline, then the right to make the Section 365(n) Election shall automatically
re-vest in AMYRIS, in which case AMYRIS shall be free to exercise the 365(n) Election in its discretion.
(iv) AMYRIS agrees not
to terminate or permit termination of the Third Party Agreement containing such license by exercise of an election under Section
365(n)(1)(A) of the Bankruptcy Code without the prior written consent of Company. AMYRIS acknowledges that because the sublicenses
granted by AMYRIS to Company is a significant part of Company’s benefits under the Agreement, Company does not anticipate
that it would consent to termination of
such Third Party Agreement and shall not under any circumstances be obliged to give such consent.
(v) In the event that
any royalties are due under a 365(n) Election, then, for clarity, the principles of Section 2.B(ii) shall apply to the allocation
of such royalties between the Parties. For clarity, the allocation between the Parties of any royalties due with respect to the
Third Party intellectual property subject to such 365(n) Election shall remain unaltered following such 365(n) Election.
C.
Sublicenses and
Subcontracts
.
(i) Company shall have
the right to grant sublicenses, through multiple tiers, of the licenses granted to Company in Section 2.A; provided, however, with
respect to the Manufacture of farnesene, Company may only grant sublicenses for the Manufacture of farnesene solely for sale to
Company and its other sublicensees to Make and Sell JV Jet Products. Company and its Affiliates shall bind its sublicensees to
the restrictions in clauses (a) and (b) of Section 4.B(iii) and AMYRIS shall have third party beneficiary rights with respect thereto
analogous to those set forth in Section 2.C(iii)(b).
(ii) Company may grant
to a Third Party or TOTAL or any of TOTAL’s Affiliates (any such Third Party, a “
Third Party Subcontractor
”,
and/or to any of TOTAL, or any of its Affiliates, in its capacity as subcontractor to Company, a “
TOTAL Subcontractor
”)
have made rights under:
(a) the licenses in
Section 2.A(i)(a) and (c), as are reasonably necessary or materially useful for such Subcontractor to Manufacture the JV Jet Products
for Company, including without limitation, if reasonably necessary or materially useful for the relevant activity, use of the Commercial
Farnesene Strain(s); and
(b)
the license in Section 2.A(i)(b), on and after the date on which such license may be practiced, as reasonably necessary or materially
useful for such Subcontractor to exercise such license for Company to modify or improve the Farnesene Strain(s) for the Field.
Any Subcontractor shall represent, warrant and covenant that its Manufacture and supply of farnesene or the applicable JV
Jet Product (or intermediate thereof) to Company will be conducted in accordance with the specifications and instructions provided
by Company and all applicable Legal Requirements.
(iii)
Common Provisions
.
(a) Any sublicense
or Subcontractor agreement entered into by Company shall be in writing and contain (1) terms that are consistent in all material
respects with this Agreement; (2) reasonable confidentiality terms that obligate the sublicensee or Subcontractor to comply with
provisions regarding non-disclosure and non-use of AMYRIS Confidential Information at least as restrictive as those of this Agreement;
(3) if the sublicensee or Subcontractor will have access to any Company Strain (such a Person or any other Person that has access
to any Company Strain, a “
Strain Recipient
”),
material transfer and use restrictions
on the Company Strains consistent with those as described in Section 2.E below, and, without limitation of Section 3.A, such other
provisions governing intellectual property as may be agreed in writing by Company and AMYRIS, on a case-by-case basis; (4) a covenant
limiting the practice of the licenses to the Field, all as described in Section 4.B(iii) below; (5) provisions regarding reporting,
audit and inspection rights, including those to protect AMYRIS Farnesene Production IP and the Company Strain(s), including as
described in Section 2.F; and (6) provisions to effect the transfer to Company (or at the request of AMYRIS, to AMYRIS) of rights
to any intellectual property with respect to which AMYRIS is entitled to ownership, as described in Section 3.A hereof).
(b) Each sublicense
or Subcontractor agreement and any other agreement that relates to use of a Strain with a Strain Recipient shall further provide
that AMYRIS shall be a third party beneficiary of such agreement by a right to directly enforce against the sublicensee or Subcontractor
or other Strain Recipient an uncured material breach of such agreement, as the case may be, if and solely to the extent that (1)
such a breach relates to activities conducted with farnesene made by a Company Strain, and (2) Company fails to act reasonably
and as expeditiously as possible under the circumstances to address any such breach (provided that such failure to act expeditiously
is not the result of any action or inaction on the part of AMYRIS). For the avoidance of doubt, the foregoing sentence shall not
be deemed to limit any right of any AMYRIS member of the board of managing directors of Company to act in the best interests of
AMYRIS in making any determination as a managing director. Each sublicensee of Company hereunder and each Company Affiliate shall
also be required to so designate AMYRIS as a third party beneficiary in any of its agreements with any Strain Recipient.
(c) Except as otherwise
agreed by AMYRIS and Company, each sublicensee and Subcontractor and any other Strain Recipient in any agreement described in clause
(b) above shall be required (1) to obtain and maintain insurance at least as great as required to be held by Company pursuant to
Section 5.B hereof and (2) to indemnify and hold harmless Company, AMYRIS and TOTAL and their respective directors, officers, employees
and agents from and against any and all Third Party claims, suits and proceedings to the extent that such claims, suits and proceedings
arise out of, are based on, or result from its willful misconduct or gross negligence or a breach of any provision of Subcontractor’s
or sublicensees or Strain Recipient’s agreement with Company (or its Affiliates or sublicensees), including any representation,
warranty or covenant thereunder.
D.
Technology Transfer
and Escrow
.
(i)
Commercial Technology
Transfer
. Following the designation of a Program Strain, to facilitate the practice by Company of the licenses granted herein,
at Company’s written request and expense, AMYRIS shall deliver to Company the Program Strain and with regard to the then
current process for the Manufacture of JV Jet Products using such Program Strain and the documentation specified on
Exhibit
A
(“
Commercial Technology Transfer Package
”).
(ii)
Commercial Strain
Technology Transfer Assistance
. At Company's
request and expense,
to facilitate the practice of the licenses granted to Company, following the designation of the first Program Strain, AMYRIS shall
provide to Company (or its designee) a one-time site-specific technology transfer of the then-current Manufacturing process for
the JV Jet Products using the Program Strain, which technology transfer shall include training and on-site support (by persons
directly involved in the development, use, scale-up and/or operation of the AMYRIS Licensed IP to implement the practice of the
AMYRIS Licensed IP and achieve steady state production of farnesene and/or farnesane).
(iii)
Escrow
.
At Company’s expense, AMYRIS will deposit (on the timing specified below) with a mutually agreed Third Party escrow agent
(the “
Escrow Agent
”), pursuant to one or more escrow agreements entered by such Escrow Agent, AMYRIS and Company
the following (collectively, the “
Escrowed Materials
” and each escrowed Strain, a “
Banked Strain
”):
(a) Continuing until
the earliest of (1) the twentieth anniversary of the Effective Date, (2) the date six (6) months after the date on which Company
has the right to practice the license set forth in Section 2.A(i)(b), and (3) the achievement of a Successful Commercial Transfer,
AMYRIS shall escrow the following materials: the Intermediate Strain(s) and the then current process for the Manufacture of JV
Jet Products using the Intermediate Strain(s) including the documentation specified on
Exhibit B
(“
Initial Package
”).
The Initial Package shall be escrowed no later than within ninety (90) days of the Effective Date, and at least semi-annually thereafter
until the occurrence of the earliest of clauses (1) -(3) of this Section 2.D(iii)(a), AMYRIS shall update the Initial Package to
reflect the then current process for the Manufacture of JV Jet Products using the then current Intermediate Strain(s).
(b) No later than thirty
(30) days after the Parties’ designation of each Program Strain, if any, AMYRIS shall escrow the following materials: such
Program Strain and the then current process for the Manufacture of JV Jet Products using such Program Strain, including without
limitation, the documentation specified on
Exhibit A
.
(c) Company may, from
time to time, obtain access to the Escrowed Materials (at the location of the Escrow Agent) for audit purposes, i.e. to verify
that the Escrowed Materials have been properly submitted and stored (provided that if AMYRIS requests, Company’s representative
may be accompanied by AMYRIS’ representative during such audit), and upon request of Company and at the Company’s expense,
AMYRIS shall cause the Escrowed Materials to be sent to an independent laboratory reasonably agreed to by the Parties to allow
testing and to evidence that the Banked Strains remain viable and continue to produce farnesene at expected yields, in which case
such laboratory shall be considered a Strain Recipient for purposes of this Agreement.
(d) Company will have
the right to a release of the Escrowed Materials from the Escrow Agent at such time as Company is entitled to exercise the license
granted in Section 2.A(i)(b).
(e) AMYRIS’ obligations
to escrow under this Agreement, including the Intermediate Strain(s), the Initial Package, and, if applicable, the Program Strain(s)
and the
Commercial Technology Transfer Package,
shall terminate six (6) months after the date on which Company has the right to practice the license set forth in Section 2.A(i)(b).
Thereafter, the Company shall be responsible for maintaining the Strains and information that were the subject of the Successful
Commercial Transfer. Notwithstanding anything to the contrary in this Agreement, under no circumstances shall Company receive more
than an aggregate of fourteen (14) Banked Strains.
(f) Any dispute between
the Parties regarding the deposit of any Escrowed Materials or the access to any Escrowed Materials shall be resolved as provided
in Section 8.A, B and D.
(iv) Thirty (30) days
after the date on which Company has the right to practice the license set forth in Section 2.A(i)(b), AMYRIS shall deliver to Company
(a) for each of the Banked Strains, detailed written (or electronic) information regarding its ancestor and lineage, a description
of each of the changes (e.g., random, rational or directed modifications) made to such strain, the types of changes (e.g., deletion,
insertion, ploidy) and the locus of each genetic modification, and (b) a family tree showing the genetic relationships between
all Strains studied or prepared in connection with the activities performed under the Collaboration Agreement, to enable Company
to utilize the license granted in Section 2.A(i)(b).
(v) For clarity, the
information, know-how and materials disclosed by AMYRIS in any technology transfer or otherwise hereunder shall only be used by
Company and its Affiliates and sublicensees and Subcontractors pursuant to the applicable license(s) granted in Section 2.A above
and such disclosure is not intended to grant any other rights of use, express or implied.
(vi) At the time of delivery
of the Initial Package or the Commercial Technology Transfer Package, as the case may be, Amyris shall also provide to the Company,
upon its request, the then current capital costs at AMYRIS’ Brotas plant and its then current operating expenses for farnesene
production.
E.
Strain Restrictions
.
During the Term except as expressly provided in this Agreement (e.g., Sections 2.A(i)(b)), without the express written consent
of AMYRIS, Company shall:
(i) not, and shall not
allow any other Person to, (a) engage in the further optimization of any Commercial Farnesene Strain(s), including using any strain
engineering or method of genetic manipulation by any means other than random mutagenesis, and (b) use any other Company Strain
other than pursuant to the license set forth in Section 2.A(i)(b), if applicable;
(ii) not, and shall not
allow any other Person to, except as expressly permitted in this Agreement, (a) reverse engineer any Company Strain(s), (b) engineer
any other strain from the Commercial Farnesene Strain(s) (c) use any Company Strain, or (d) distribute, disclose or transfer any
Company Strain, or any AMYRIS Licensed IP, with respect to subsections (a) and (b) of this Section 2.E(ii), for any purpose; and
with respect to subsections (c) and (d) of this Section 2.E(ii), for any purpose outside of the scope of
licenses granted in Section 2.A above and
the subcontracting rights set forth in Section 2.C, and in all such cases, such activities shall be subject to the terms of this
Agreement;
(iii) handle, and
cause any Strain Recipient to handle, the Company Strain(s) in a safe and prudent manner, in accordance with applicable law and
regulations and guidelines used by AMYRIS in its own activities involving the Company Strains, as provided by AMYRIS to Company;
(iv) not distribute,
disclose or transfer (or permit to be distributed, disclosed or transferred) the Intermediate Strain(s) or any other Strain that
is a genetic manipulation or modification of any Intermediate Strain (other than the Commercial Farnesene Strain(s) which the Company
may use as described below) in connection with the exercise of its license under Section 2.A(i)(b), if applicable, to any other
Person (except pursuant to and in accordance with this Agreement) or to any location other than the following countries: Australia,
Brazil, Canada, Japan, Mexico, South Korea, United States, or the countries that are members of the European Union as of the Effective
Date, a listing of which is provided on
Exhibit D
. For clarity, it is understood and agreed that the Company and its designees
may conduct any licensed activities involving the practice of the licenses granted to Company under Section 2.A(i)(a), (c) or (d)
(e.g. use of a Commercial Farnesene Strain for production of JV Jet Products as well as any downstream processing of JV Jet Products)
in any location such entities deem appropriate; provided, if the Company or its designees intend to conduct the Manufacture of
farnesene in any country other than: Australia, Brazil, Canada, Japan, Mexico, South Korea, United States and the member countries
of the European Union which are listed on
Exhibit D
, the Company shall notify AMYRIS at least sixty (60) days prior to the
selection of the applicable country as a farnesene manufacturing location. If AMYRIS believes that the farnesene Manufacture in
such identified country would pose material risk that the conduct of such activities could jeopardize any Commercial Farnesene
Strain, including loss of trade secret status with respect to the Commercial Farnesene Strain or any material information with
respect thereto or to the related manufacturing process, AMYRIS shall identify such risks with particularity and provide reasonable
evidence that the existing precautionary measures provided in this Agreement are insufficient with respect to such material risks.
In any such case, the Parties shall discuss in good faith such risks and other reasonable precautionary measures that could be
taken to mitigate such risks. In the event the Parties agree on such other precautionary measures, then such measures shall constitute
the “
Precautionary Measures
”. In the event the Parties do not agree on whether any Precautionary Measures should
be established or the nature of such Precautionary Measures, either Party may refer the matter to the dispute resolution procedures
under Sections 8.A and 8.B for determination of (a) whether any Precautionary Measures should be established and (b) if so, the
nature of such Precautionary Measures. Company shall implement any Precautionary Measures (whether mutually agreed or established
pursuant to the preceding sentence) prior to engaging in the licensed activities in the applicable country and shall maintain any
such Precautionary Measures in place for so long as such activities are being conducted;
(v) ensure that any sublicensee,
Subcontractor or Strain Recipient shall be expressly bound in writing to the provisions set forth in this Section 2.E; and
(vi) With regard to Company’s
exercise of its license in Section 2.A(i)(b), the terms in this Section 2.E supersede any and all limitations on Company’s
ability to modify or optimize the Farnesene Strain(s) using only random mutagenesis that are contained in other contracts between
the Parties or between TOTAL and Amyris, including without limitation, those set forth in Section 6.6(a) of the Collaboration Agreement.
F.
Reporting, Audit
and Inspection Rights
. This Section 2.F shall apply to any Third Party that Manufactures farnesene for Company (each a “
Third
Party Manufacturer
”) or, if the Company Manufactures JV Jet Products itself, to the Company and to any other Strain Recipient.
AMYRIS shall have the right, upon reasonable prior notice and during normal business hours, at agreed times to inspect those portions
of facilities at which farnesene is Manufactured or where any Company Strain is used where such activities occur, and the books
and records of Third Party Manufacturer or Company or other Strain Recipient, as applicable, relating specifically to such Manufacture
or any Company Strain, including any Manufacturing batch records for the Manufacture of farnesene. At the request of any Third
Party Manufacturer, AMYRIS shall enter into a customary confidentiality agreement with the Third Party Manufacturer in form and
substance reasonably acceptable to the Manufacturer to keep the results of such inspection confidential, provided that AMYRIS may
(i) share with Company the results of any such inspections, and (ii) use and disclose such results to the extent reasonably necessary
to enable Company to enforce its rights under its contract with the Third Party Manufacturer. Company or any Third Party Manufacturer,
as applicable, shall deliver to AMYRIS a once-monthly summary report relating to any Manufacture conducted using any Company Strain
and such other customarily-maintained information regarding such Manufacture as may be reasonably requested by AMYRIS.
G.
No Implied Rights
.
For the avoidance of doubt, (i) Company and its Affiliates shall have no right, express or implied, with respect to any intellectual
property rights of AMYRIS or any of its Affiliates, except as expressly provided in this Agreement or the Collaboration Agreement
and (ii) AMYRIS and its Affiliates shall have no right, express or implied, with respect to any intellectual property rights of
Company or any of its Affiliates, except as expressly provided in this Agreement or the Collaboration Agreement.
H.
By-Products
.
(i) As used in this Section,
“
Third Party Conflict
” is a conflict between (a) a proposed grant of a non-exclusive license to the Company
under Section 2.A(i)(d) with respect to a potential Known By-Product or Known By-Product and (b) a written agreement between AMYRIS
and a Third Party granting an exclusive license or other exclusive commercial rights (e.g. non-competition) to such Third Party
for the applicable potential Known By-Product or Known By-Product for one or more uses, which contractual right is in effect at
the time of designation of the applicable By-Product as a Known By-Product, which written agreement either (x) precludes designating
such By-Product as a Known By-Product for any uses, or (y) excludes one or more uses from the Company’s non-exclusive license
for such Known By-Product(s) for one or more specific uses (including the making of a particular Known By-Product from a non-conflicting
By
Product and using such Known By-Product
for one or more specific excluded uses). In the event that a Third Party Conflict exists for some but not all uses for a particular
Known By-Product, the Third Party Conflict shall only apply to these limited uses.
(ii) As used in this
Section, a “
Potential Third Party Conflict
” is a conflict between (a) a proposed grant of a non-exclusive license
to the Company under Section 2.A(i)(d) with respect to any potential Known By-Product or Known By-Product, and (b) any arrangement
that AMYRIS is negotiating in good faith with a Third Party pursuant to a written term sheet in which AMYRIS has offered to grant
an exclusive license or other exclusive commercial rights (e.g. non competition) with regard to any such By-Products for one or
more uses, and timely notified the Company pursuant to Section 2.H(iii) below, provided that such term sheet (whether or not binding)
either (x) precludes designating such By-Product as a Known By-Product or (y) specifically excludes one or more uses from the Company’s
non-exclusive license for such Known By-Product(s) (including the making of a particular Known By-Product from a non-conflicting
By-Product and using such Known By-product for one or more specific excluded uses). If there is a Potential Third Party Conflict,
the applicable By-Product shall not be designated as a Known By-Product (or in the case of a Known By-Product as of the Effective
Date, shall be suspended unless and until the first to occur of: (a) AMYRIS ceases such negotiations, or (b) AMYRIS has not completed
such negotiations with the Third Party with which it was negotiating as of the date of AMYRIS’ notice of the Potential Third
Party Conflict within twelve (12) months after such receipt or delivery of notice (the “
Negotiation Period
”).
If AMYRIS timely concludes such negotiations and enters a definitive agreement with such Third Party, then the Potential Third
Party Conflict with respect such agreement would become a Third Party Conflict. In the event that a Third Party Conflict exists
for some but not all uses for a particular Known By Product, the Third Party Conflict shall only apply to these limited uses.
(iii) Within three (3)
weeks after the Effective Date, AMYRIS shall notify the Company of all Third Party Conflicts with respect to the Known By-Products
identified as of the Effective Date and Total, on the behalf of the Company, may, at its election, initiate the verification process
as provided for in Section 2.H.(vii). With respect to Known By-Products identified as of the Effective Date, AMYRIS shall not enter
into any term sheet that would conflict with the rights granted to the Company hereunder and/or any exclusive agreement with any
Third Party after the Effective Date.
(iv) During the Term
of this Agreement, if (x) AMYRIS in the course of performing the Biofene Development Project or (y) the Company identifies any
By-Products that are not then Known By-Products, it shall notify the other Party in writing and identify such By-Product (by chemical
structure, if possible, and if not, by some other unambiguous manner of characterization) and prevalence relative to the JV Jet
Product. Upon receipt of such notice, such By-Product shall be designated as a Known By-Product (and listed on
Exhibit E
)
unless, within forty-five (45) days of AMYRIS’ receipt or delivery of such notice, AMYRIS notifies the Company of a Third
Party Conflict(s) with respect to such By-Product that prevents such By-Product from being designated as a Known By-Product, in
which case such By-Product will not be designated as a Known By-Product, except as otherwise provided in this Section 2.H.
(v) If AMYRIS fails to
identify a Third Party Conflict or Potential Third Party Conflict within the applicable time frame set forth above, with respect
to (a) a particular potential Known By-Product, then such potential Known By-Product shall be a Known By-Product and automatically
be listed on
Exhibit E
hereto, and (b) a Known By-Product, then any such unidentified Third Party Conflict shall not limit
the Company’s non-exclusive license hereunder with regard thereto.
(vi) If at any time a
Potential Third Party Conflict and/or a Third Party Conflict, as applicable, that previously existed has, in part or in whole,
been reduced or eliminated for one or more Known By-Products or for any By-Product denied designation as a Known By-Product, AMYRIS
will within thirty (30) days notify the Company in writing, identifying for each By-Product all remaining limitations on such use,
and the list of Third Party Conflict(s) will, with regard to such affected By-Products, be automatically modified accordingly.
(vii) In the event that
Company desires verification of the scope or applicability of any Third Party Conflict with respect to any particular Known By-Product
or By-Product denied designation as a Known By-Product, then on or after receipt of notice of the applicable Third Party Conflict,
the Company shall notify AMYRIS in writing, and AMYRIS shall make available a copy of all terms of the agreement(s) entered by
AMYRIS with Third Parties, which terms give rise to the Third Party Conflict(s) at issue, and any ancillary provisions necessary
to fully interpret such Third Party Conflict(s), to a mutually acceptable, conflict-free attorney practicing in the United States
at a nationally recognized law firm and who has an college or advanced degree in chemistry for the sole purpose of determining
whether AMYRIS has accurately described the scope or applicability of the license grant or other restrictions that comprise the
Third Party Conflict(s) with regard to the applicable Known By-Product or By-Product denied designation as a Known By-Product so
that the Company can be informed of the information described in the following sentence. Subject to obligations of confidentiality
to AMYRIS, such attorney may disclose to the Company, with respect to any particular Known By-Product or By-Product denied designation
as a Known By-Product, the scope of the license(s) and applicable restrictions (including, the uses, geographies and time periods)
comprising the Third Party Conflict under the applicable Third Party agreement, but not the provisions themselves. The costs of
any such determination shall be borne by the Company (or its designee).
(viii) In the event that
there are limits on the ability of the Company to commercialize a particular Known By-Product or By-Product denied designation
as a Known By-Product due to Third Party agreements previously entered by AMYRIS, at the request of the Company, AMYRIS and the
Company shall discuss in good faith structures and, if possible, terms for the commercialization of such Known By-Product or By-Product
denied designation as a Known By-Product, consistent with AMYRIS’ existing obligations to Third Parties.
I.
License to AMYRIS
.
Subject to the terms of this Section 2.I, Company hereby grants to AMYRIS a non-exclusive, worldwide, sublicenable, fully-paid
up, royalty-free right and license under the Company Independent Strain Engineering Patents to develop Strains to Make and Sell
isoprenoids except farnesene for use in or as JV Jet
Products; however, the license with respect
to Diesel Products (as defined in the EU Diesel Fuel License Agreement) shall be subject to the limitations in Section 2.A(iii)
of the EU Diesel Fuel License Agreement. The license granted to AMYRIS herein may not be terminated other than as specified in
this Section. In the case of a material breach (but only in the case of a material breach) of the relevant license, Company shall
have the right to terminate the license in accordance with the following. If Company believes any such breach by AMYRIS has occurred,
Company shall within thirty (30) days provide written notice to AMYRIS describing the specific alleged material breach. If a material
breach is not cured within sixty (60) days of AMYRIS’s receipt of such notice, then Company may terminate the applicable
license with further written notice to AMYRIS (A) immediately at the end of such sixty (60) day period, if AMYRIS has not contested
the allegation, or (B) if AMYRIS has contested such allegation, only upon a final written determination, if any, of an arbitrator
in a proceeding subject to Section 8.B that an uncured material breach has occurred. For clarity, in the case of any dispute between
the Parties as to whether any uncured material breach has occurred that would permit Company to terminate the license, no notice
of termination may be given and no such termination shall be effective until the final resolution of a dispute resolution proceeding
conducted pursuant to Section 8.B, and such license may only be terminated if the arbitrator finally determines an uncured material
breach has occurred. For purposes of determining whether a material breach that would trigger a right of termination under Section
has occurred, any Affiliate of AMYRIS shall be treated as if it was AMYRIS.
In the event that any
subcontractor or sublicensee of AMYRIS violates this Section, then such violation may provide a basis for a material breach and
termination of this license, but only if AMYRIS fails to use commercially reasonable efforts to cure such breach, which efforts
may include terminating its agreement with such subcontractor or sublicensee and initiating and continuing to pursue appropriate
legal action to stop such unauthorized activity. Unless terminated as set forth in this Section, the foregoing license shall remain
in effect after a termination of this Agreement by AMYRIS under Section 7.C. Each agreement in which AMYRIS grants a sublicense
under, or authorizes a subcontractor to practice, any Company Independent Strain Engineering Patents shall require such subcontactor
or sublicensee to agree that Company shall be an intended third party beneficiary of such agreement with a right to directly enforce
against the sublicensee or subcontractor any uncured material breach of such agreement, to the extent that (1) such a breach relates
to a breach of the scope of the sublicense under the Company Independent Strain Engineering Patents and (2) AMYRIS fails to act
reasonably to remedy any such breach. In all cases, Company shall have the rights to seek any remedies available at law or in equity
for any breach.
J.
Consequences
of Amyris Competitor Control of the Company
. Except in the case of an assignment of the Agreement to an AMYRIS Competitor that
is an Affiliate of TOTAL in compliance with Section 9.E, if an AMYRIS Competitor owns, directly or indirectly, the majority of
the Voting Shares of the Company, then as of the effective date of the acquisition of such majority of Voting Shares of the Company
(the “
Transition Date
”), the licenses granted to the Company with respect to (a) AMYRIS Licensed IP, including
any AMYRIS Farnesene Production IP, and (b) any Strain Improvement Technology, shall not include Inventions first made or generated
after the Transition Date,
or intellectual property
rights relating to such Inventions (collectively, the “
Excluded Inventions
”). In addition, except in the case
of an assignment of the Agreement to an AMYRIS Competitor that is an Affiliate of TOTAL in compliance with Section 9.E, notwithstanding
anything herein, the Company shall have no rights, and AMYRIS shall have no obligations, hereunder with respect to any Excluded
Inventions.
ARTICLE 3. OWNERSHIP AND PATENT MATTERS
A.
Ownership
.
(i)
Biofene Development
Project Inventions
. Company acknowledges that the intellectual property ownership provisions in the Collaboration Agreement
establish the ownership of Inventions developed, conceived, or reduced to practice in whole or in part by AMYRIS and/or TOTAL in
the performance of the Biofene Development Project or the Collaboration Agreement. Other than the licenses granted herein, the
Company acknowledges and agrees that it has no, and shall not acquire any, ownership of or other rights to any Inventions developed,
conceived, or reduced to practice in whole and/or in part by AMYRIS and/or TOTAL in the performance of the Biofene Development
Project or under the Collaboration Agreement.
(ii)
Company Inventions
. Unless otherwise agreed in writing by the Parties, the Company shall be the sole owner of any Inventions
that are conceived and reduced to practice by the Company or its Affiliates, subcontractors, or Sublicensees, including any conceived
and reduced to practice by the Company or its Affiliates, subcontractors, or Sublicensees in the practice of the licenses in Section
2.A(i), and any such intellectual property shall not be Collaboration IP (as defined in the Collaboration Agreement). For clarity,
notwithstanding the license from the Company under Section 2.I, Amyris (and its Affiliates and sublicensees of such license) shall
not by virtue of such
license be considered as Sublicensee(s) of the Company
.
(iii)
Assignment
.
In furtherance of the provisions of Section 3.A(i) above, Company hereby assigns, without further consideration, (a) to AMYRIS,
all right, title and interest that Company may have from time to time (other than by virtue of the license grants in Section 2
above) in any intellectual property that the Collaboration Agreement allocates sole ownership to AMYRIS, and (b) to AMYRIS and
TOTAL, jointly all right, title and interest that Company may have from time to time (other than by virtue of the license grants
in Section 2 above) in any intellectual property that the Collaboration Agreement allocates joint ownership to AMYRIS and TOTAL.
With respect to Inventions that are the subject of Section 3.A(i) above, each Party agrees, at the request and expense of the requesting
Party, to execute all documents and take all actions reasonably requested by the other Party from time to time to perfect title
to and the ownership interest of the requesting Party in a manner consistent with the allocation of ownership set forth in Section
3.A(i).
B.
Prosecution
and Maintenance of Patents
.
(i)
Collaboration
Agreement
. Company agrees that with respect to the Inventions deemed to be Collaboration IP pursuant to 3.A(i) above, the patent
prosecution and maintenance provisions of Section 6.8 of the Collaboration Agreement apply with respect to any Patents filed with
respect thereto.
(ii)
Patent Maintenance
.
AMYRIS shall comply with the terms of Section 4.D(i) below.
(iii)
Company-Owned
Patents
. Company shall at its discretion and expense, conduct and be responsible for the prosecution and maintenance of patent
applications it files with respect to Inventions owned by it pursuant to Section 3.A(ii) above.
C.
Information Rights
.
(i)
Status Reports
.
Following execution of a common interest agreement contemplated in Section 3.F, AMYRIS shall provide to the Company at least quarterly,
or on such other schedule as the Parties may agree, a status report on the prosecution and maintenance of patent applications and
patents within the AMYRIS Licensed IP. In addition, AMYRIS shall provide Company with periodic updates regarding Inventions (including
intellectual property) generated in connection with the Biofene Development Project and/or that specifically relate to JV Jet Products,
decisions to file (or not file) patent applications with respect to such Inventions, and the status of any patent applications
filed with respect to such Inventions.
(ii)
Review Rights
.
To allow the Company to be informed with respect to AMYRIS Licensed IP licensed to Company under this Agreement, Company shall
have the right, on reasonable notice, to inspect and review the following records maintained by AMYRIS relating to the information
contained in those certain Biofene Development Project weekly reports and quarterly reports provided under the Collaboration Agreement
and the associated documentation forming the basis of such reports, including at least, standard operating protocols, procedures,
batch records, reports regarding deviations, laboratory notes, bioinformatic and genomic data, detailed fermentation performance
data in the laboratory, pilot plant or manufacturing runs, in each case, solely to the extent necessary (or in the case of the
AMYRIS Farnesene Production IP included therein, materially useful) for Company (or its sublicensees or Subcontractors) to exercise
its rights or perform its obligations under this Agreement and, for clarity, provided that AMYRIS shall not be required to create
any documents not already in existence for the sole purpose of complying with this clause 3.C(ii).
D.
Patent Enforcement
.
(i)
Notice
. Each
of AMYRIS and Company shall promptly notify the other in writing of any existing or threatened infringement or misappropriation
by any Third Party of any AMYRIS Licensed IP licensed to Company under this Agreement, which infringement or misappropriation could
reasonably be expected to have a material
adverse effect on the ability of the Company
or its designees to Make and/or Sell one or more JV Jet Products (“
Infringement
”) of which it becomes aware,
and upon reasonable request (and subject to an applicable common interest agreement) shall provide all evidence in its possession
demonstrating such Infringement (other than information that such Party is prevented from disclosing due to confidentiality or
other similar obligations).
(ii)
Collaboration
Agreement
. Company agrees that the patent enforcement provisions of Section 7.2 of the Collaboration Agreement shall govern
any intellectual property that is the subject thereof and agrees to be bound by such provisions, except as expressly provided below.
(a)
AMYRIS
.
AMYRIS shall have the first right (but not the obligation) to enforce any issued Patent(s) within the AMYRIS Licensed IP claiming
the use of any JV Jet Product(s) in the Field, including without limitation (1) US Patent No. 7,399,323 and/or US Patent No. 7,846,222
(and any foreign equivalents), and/or (2) any issued Patent that is within the AMYRIS Licensed IP and comprises Collaboration IP
developed by or on behalf of Company, in each case, against any Third Party infringement (including any declaratory judgment with
respect to Third Party non-infringement) that would adversely affect the business of Company relating to JV Jet Products in the
Field and to conduct the defense in connection with any such action. At the request of AMYRIS or Company, Company and AMYRIS shall
discuss means to cease any such infringement. If AMYRIS fails to commence a proceeding to cease any such infringement within one
hundred twenty (120) days of becoming aware of such an infringement, Company shall have the right to commence and control proceedings
to cease any such infringement. In each case, the enforcing Party may retain any damages recovered in any such proceeding. In any
enforcement proceeding that is the subject of this Section 3.D(ii)(a), Company (and its Affiliates and sublicensees) or AMYRIS,
as the case may be, shall join in any such proceeding, at the enforcing Party's request or if required by applicable law, in each
case at the enforcing Party’s expense. In a case in which Company is enforcing under this Section 3.D(ii)(a), AMYRIS and
Company shall seek to develop a litigation strategy that will cease the infringement while limiting any adverse impact on the other
businesses of AMYRIS or any of its Affiliates or licensees.
(b)
Company
.
For any Patents or other intellectual property owned by Company, Company shall have the sole right, at its expense, to enforce
and defend such Patents or other intellectual property (including without limitation, any declaratory judgment actions) and to
retain any recovery.
(c)
Cooperation
.
In connection with any claim, suit or proceeding subject to this Section 3.D (including per Section 7.2 of the Collaboration Agreement),
the Parties shall cooperate with each other (in the case of enforcement by Company, at the expense of Company) and shall keep each
other reasonably informed of all material developments in connection with any such claim, suit or proceeding.
(d)
Settlement
.
In connection with any claim, suit or proceeding subject to this Section 3.D(ii), neither Party shall enter into any settlement
agreement with any Third Party that would conflict with rights granted to the other Party under this
Agreement, or impose any obligations on
such other Party (beyond those already included herein), without the prior written consent of such affected Party, which consent
shall not be unreasonably withheld.
E.
Infringement
of Third Party Rights
.
(i) If a JV Jet Product
becomes the subject of a claim or assertion of infringement of a Third Party Patent granted in any jurisdiction, the Party first
learning of such claim or assertion shall promptly notify the other Party in writing, and shall provide all information relating
thereto (other than information that such Party is prevented from disclosing due to confidentiality or other similar obligations).
(ii) In the event of
such a Third Party claim of infringement, any Party that is the subject of such claim or assertion under this Section 3.E may defend
itself in its sole discretion and at its sole expense; provided, however, that (a) the Party that is the indemnifying Party with
respect to such claim pursuant to the terms of Section 5 or (b) the Party designated in writing by the Parties may control the
conduct of any proceeding and in such case the procedures set forth in Section 5.A shall govern the defense of such action. In
any such case, the Indemnified Party shall cooperate with the Indemnifying Party with such defense; provided, if there is a conflict
of interest between the Parties, the Indemnified Party shall be entitled to be represented by separate counsel at the Indemnifying
Party’s expense. In a case in which Company is defending an action under this Section 3.E(ii)(b), AMYRIS and Company shall
seek to develop a litigation strategy to defend the claim while limiting any adverse impact on the other businesses of AMYRIS or
any of its Affiliates or other licensees.
(iii) In connection with
any such claim of infringement, Company and AMYRIS shall cooperate in the defense of any such action at the request and expense
of the Party controlling such action, unless there is a material conflict of interest that would prevent such cooperation.
(iv) In connection with
any claim, suit or proceeding that is the subject of this Section 3.E, neither Party shall enter into any settlement agreement
with any Third Party that would conflict with rights granted to the other Party under this Agreement, or impose any obligations
on such other Party (beyond those already included herein), without the prior written consent of such affected Party, which consent
shall not be unreasonably withheld.
F.
Common Interest
Disclosures and Agreement
. With regard to any information, materials or opinions disclosed relating to the freedom to operate
under the licenses granted hereunder, which information, materials or opinions are regarding intellectual property or technology
owned by Third Parties that may affect the conduct of Company and the activities contemplated by this Agreement, the Parties agree
that they have a common legal interest in determining whether, and to what extent, such Third Party intellectual property rights
may affect the conduct of Company and the activities contemplated by this Agreement, and have a further common legal interest in
defending against any actual or prospective Third Party claims based on allegations of misuse or
infringement of intellectual property rights
relating to Company. All such information, materials and opinions will be treated if applicable as protected by the attorney-client
privilege, the work product privilege, and any other privilege or immunity from discovery that may otherwise be applicable. By
sharing any such information, materials or opinions, neither Party intends to waive or limit any privilege or immunity from discovery
that may apply to the shared information and materials. Neither Party shall have the authority to waive any privilege or immunity
on behalf of the other Party without such other Party’s prior written consent, nor shall the waiver of privilege or immunity
resulting from the conduct of one Party be deemed to apply against the other Party. In addition, with regard to (i) the prosecution
of Patents for intellectual property developed, conceived, or reduced to practice by or on behalf the Company and governed by the
Collaboration Agreement and (ii) other relevant matters, the Parties shall enter into (with TOTAL) a reasonable common interest
agreement, with the consent to the terms not to be unreasonably withheld.
ARTICLE 4. REPRESENTATIONS, WARRANTIES
AND COVENANTS
A.
Mutual Representations
and Warranties
. Company hereby makes the following representations and warranties to AMYRIS, and AMYRIS hereby makes the following
representations and warranties to Company, in each case as of the Effective Date:
(i) It is a company duly
organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized. It has all requisite
corporate power and authority to own its respective properties and to carry on its respective business as conducted as of the date
of this Agreement and as proposed to be conducted. It has the requisite power and authority to execute, deliver and perform its
obligations under this Agreement.
(ii) All corporate action
on the part of it, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement,
and the performance of all obligations hereunder, has been taken or shall be taken prior to the date of this Agreement, and this
Agreement, when executed and delivered by it, shall constitute a valid and legally binding obligation of it, enforceable against
it in accordance with its terms except to the extent that (a) such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to creditor’s rights generally and (b) the remedy of
specific performance or injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(iii) The execution,
delivery and performance of this Agreement (with or without the giving of notice, the lapse of time or both) and the consummation
of the transactions contemplated hereby, (a) do not require the consent of any Third Party; (b) do not conflict with, result in
a breach of, or constitute a default under, its organizational documents or any other material contract or agreement to which it
is a party or by which it may be bound or affected; and (c) do not violate in any material respect any provision of applicable
law or any order, injunction, judgment or decree of any Governmental Entity by which it may be bound, or require any regulatory
filings or other actions to comply with the requirements of applicable law, except to the extent that either Party is required
to file any
notification pursuant to applicable anti-trust
or competition laws. It is not a party to, nor is it bound by, any agreement or commitment that prohibits the execution and delivery
of this Agreement.
(iv) No insolvency proceedings
of any character, including bankruptcy, receivership, reorganization, composition or arrangement with creditors, voluntary or involuntary,
affecting it are pending or threatened, and it has not made any assignment for the benefit of creditors or taken any action in
contemplation of, or which would constitute the basis for, the institution of such insolvency proceedings.
(v) There is no action,
suit, proceeding or investigation pending or threatened against it which questions the validity of this Agreement. It is not in
violation of any applicable law in respect of the conduct of its business or the ownership of its properties which violation would
have a material adverse effect on its business or the ownership of its properties, and it shall undertake its obligations hereunder
in accordance in all material respects with applicable law.
B.
Covenants of
Company
. During the Term:
(i) Company and its Affiliates
shall have valid arrangements with all of its Subcontractors, consultants and employees that are enforceable in accordance with
its terms, except as enforcement may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or
other laws of general application relating to or affecting creditors’ rights generally, and are sufficient to assign all
of their rights, title and interest in and to all Inventions or other technology or intellectual property developed or created
by them in connection with this Agreement to Company or its Affiliates, as applicable, in order to effect the ownership principles
set forth in Section 3.A.
(ii) Company shall not
enter into any agreement, contract, lease, license, instrument or other arrangement with a Third Party that results in a breach
of or constitutes a default under this Agreement.
(iii) Company and
its Affiliates, Subcontractors, and sublicensees shall not (a) exercise the licenses granted in Section 2.A outside the Field or
(b) knowingly sell JV Jet Products to customers for use outside the Field.
(iv) Company shall not,
and shall use reasonable efforts to ensure that its Affiliates, Subcontractors, sublicensees and customers do not, use or sell
any JV Jet Product for any use outside the Field.
C.
Representations
and Warranties of AMYRIS
. AMYRIS represents and warrants, as of the Effective Date, that:
(i) AMYRIS and/or its
Affiliates (a) owns and possesses sufficient right, title and interest in the AMYRIS Licensed IP to grant the rights granted herein,
(b) has a valid and enforceable written license to the AMYRIS Licensed IP that includes the right to sublicense to the extent of
the licenses granted herein and/or (c) has obtained all necessary consents of any Third Party required, for AMYRIS and/or any of
its Affiliates to
grant the licenses and sublicenses to Company
with respect to the AMYRIS Licensed IP granted herein.
(ii) The non-financial
terms of this Agreement are no less favorable than those licenses that AMYRIS grants to other partners for the Manufacture of farnesene
and/or farnesane.
(iii) AMYRIS has provided
to Company an accurate and complete list of all existing agreements between AMYRIS (and/or its Affiliates) and Third Parties that
provide to AMYRIS (and/or its Affiliates) licenses or other rights to AMYRIS Licensed IP that AMYRIS believes may be necessary
for the practice of the AMYRIS Licensed IP by the Company with respect to the JV Jet Products under the licenses granted in Section
2.A(i)(a) and (c), and has disclosed to the Company all terms in such agreements that would impose any obligations on Company beyond
those set forth in this Agreement.
(iv) The AMYRIS Licensed
IP is subject to no Liens and/or other restrictions and/or limitations, in each case which would prevent the grant to Company of
the licenses set forth herein on the terms and conditions set forth herein, and neither AMYRIS nor any of its Affiliates has granted
any Third Party any rights under the AMYRIS Licensed IP or the Strain Improvement Technology in the Field that would conflict with
the licenses granted to the Company herein.
(v) Neither AMYRIS nor
any of its Affiliates is in material breach of any of its agreements with Third Parties and no Third Party has notified AMYRIS
and/or any of its Affiliates of any material breach of such Third Party Agreement(s), in each case that remains uncured and which
would result in a material adverse effect on the ability of AMYRIS and/or its Affiliates to perform its obligations hereunder.
AMYRIS and/or its Affiliates have not received written notice from any licensor under a Third Party Agreement purporting to terminate,
and/or restrict the scope of, AMYRIS' rights under such Third Party Agreement by reason of any action and/or omission of AMYRIS
and/or its Affiliates.
(vi) Except as provided
by AMYRIS to TOTAL prior to the Effective Date, AMYRIS and its Affiliates (a) have not received any communications alleging that
any use of the AMYRIS Licensed IP by AMYRIS or any of its Affiliates has violated, infringed or misappropriated or would violate,
infringe or misappropriate any of the intellectual property of any other person or entity and (b) has no Knowledge of any Third
Party infringement, misappropriation or violation of any AMYRIS Licensed IP
.
(vii) To its Knowledge,
there are no pending or issued patent rights of any Third Party that foreclose practice of any AMYRIS Licensed IP for the following
purposes: (a) to make farnesene using the Mevalonate Pathway or (b) to Make and Sell JV Jet Products.
(viii) Novvi, per Section
5.2 of the IP License Agreement, has (a) agreed that AMYRIS and/or its Affiliates solely and exclusively own the AMYRIS Biofene
Manufacturing Technology and (b) has assigned exclusively to AMYRIS all rights, title, and interest in and to any and all inventions,
discoveries, data and information, whether or
not copyrightable or patentable, conceived,
reduced to practice, made, observed or developed (together with all intellectual property rights related thereto) by or on behalf
of Novvi or its Affiliates or sublicensees, solely or jointly with others, or jointly by or on behalf of AMYRIS and Novvi (or their
respective Affiliates, employees, sublicensees, contractors, or agents), in each case that are based upon, derived from, incorporating,
in connection with, or related to the Amyris Biofene Manufacturing Technology. The “
AMYRIS Biofene Manufacturing Technology
”
are patents and know-how that are controlled by AMYRIS and are necessary or reasonably useful for the development, making (and
having made), offering for sale, sale, and importing of farnesene itself, including, but not limited to, Farnesene Strains and
any patents and know-how related to the genetic engineering of such Farnesene Strains, the fermentation methods for making farnesene,
the methods of recovery of farnesene from fermentation broth, the processes of isolating farnesene directly from fermentation broth,
and the methods of purifying farnesene.
(ix) To its Knowledge:
(a) there is no claim by any Person contesting the validity and/or enforceability of the Patents within the AMYRIS Licensed IP,
and/or use and/or ownership of the AMYRIS Licensed IP, is currently outstanding and/or threatened, and (b) there is no pending
(i.e., filed and/or requested) interference and/or litigation that involves any of the Patents within the AMYRIS Licensed IP licensed
hereunder.
D.
AMYRIS' Covenants
.
AMYRIS hereby covenants that during the Term:
(i) AMYRIS and its Affiliates
shall timely pay all maintenance costs, annuity payments and similar fees due with respect to all Patents within the AMYRIS Licensed
IP issued in the following countries: United States, Europe (in any country(ies) where any European Patent was validated), Brazil,
Canada, China, India, and Japan. AMYRIS shall notify Company prior to abandoning any other issued Patents within the AMYRIS Licensed
IP with respect to which Company has an enforcement right pursuant to Section 3.D and, subject to rights granted to TOTAL under
the EU Diesel Fuel License Agreement, afford Company an opportunity to pay the maintenance fees and annuity payments associated
with such Patents and if the Company makes such payments, AMYRIS and each of its Affiliates shall promptly assign to the Company
its entire right, title and interest in such Patent. To the extent that AMYRIS has an obligation to assign a Patent to Company
under this paragraph and also to assign the same Patent to TOTAL under the EU Diesel Fuel License Agreement, AMYRIS’ obligations
under the EU Diesel Fuel License Agreement shall take precedence. AMYRIS shall notify Company if any Patents within the AMYRIS
Licensed IP become subject to an interference, reissue, or reexamination. In such event, if AMYRIS elects not to undertake commercially
reasonable efforts to respond to such interference, reissue or re-examination and defend the claims at issue, then it shall notify
Company and afford Company the right to respond thereto. Notwithstanding the foregoing, Company’s rights with respect to
prosecution under this clause (i) shall apply with respect to in-licensed AMYRIS Licensed IP only to the extent that AMYRIS has
the right to afford the Company such rights, e.g., AMYRIS controls prosecution of the applicable patent applications or patent
rights under the applicable license agreement. To the extent that AMYRIS has an obligation to allow Company to respond to an interference,
reissue or re-examination under this paragraph and also to allow
TOTAL to respond to the same interference,
reissue or re-examination under the EU Diesel Fuel License Agreement, Company agrees that AMYRIS’ obligations under the EU
Diesel Fuel License Agreement shall take precedence.
(ii) For so long as any Third Party Agreement
is necessary or materially useful for Company to Make and Sell the JV Jet Products using a Commercial Farnesene Strain (“
Subject
Third Party Agreement
”), (a) with respect to Subject Third Party Agreements that are necessary for Company to practice
the licenses in Section 2.A(i)(a), (b), or (c), AMYRIS shall, and shall cause each of its Affiliates to, comply with all of its
obligations under the Subject Third Party Agreements and will not terminate or amend such Subject Third Party Agreement in each
case in any manner which diminishes the licenses to Company or increases any obligations of Company with respect to the AMYRIS
Licensed IP that is subject to such Subject Third Party Agreement (“
Detriment
”) without the consent of Company
and (b) with respect to Subject Third Party Agreements that are materially useful for Company to practice the licenses in Section
2.A(i)(a), (b), or (c), AMYRIS shall provide advance written notice to Company in connection with terminating or amending such
Subject Third Party Agreement that would result in a Detriment. In addition, AMYRIS will, and will cause each of its Affiliates
to, notify Company promptly, if AMYRIS and/or any of its Affiliates receives notice, whether or not there is a cure period, from
a Third Party that AMYRIS and/or any of its Affiliates and/or other licensees is in material breach of any such Subject Third Party
Agreement if such material breach could result in a Detriment, and/or notice from any Third Party which purports to modify and/or
terminate any such Subject Third Party Agreement in a manner that would cause a Detriment. AMYRIS will and will cause its Affiliates
to take prompt and commercially reasonable steps to cure any such breach. AMYRIS acknowledges that any breach of such Subject Third
Party Agreement(s) by AMYRIS and/or its Affiliates may result in damage to Company with respect to the subject AMYRIS Licensed
IP, which may include loss of license rights to such AMYRIS Licensed IP and/or monetary damages. For any Subject Third Party Agreement
entered into by AMYRIS after the Effective Date that satisfies the criteria above, AMYRIS agrees that it will use commercially
reasonable efforts to obtain an agreement from the licensor that Company can continue with its sublicense if the license to AMYRIS
under the applicable Subject Third Party Agreement is terminated, that Company may approach AMYRIS' licensors under the Subject
Third Party Agreements for the limited purpose of obtaining an agreement from such a licensor that Company can continue with it
sublicense if the license to AMYRIS under the applicable Subject Third Party Agreement is terminated, and AMYRIS agrees that it
shall facilitate such contact, on Company's request, and AMYRIS will not object to such an agreement.
(iii) AMYRIS shall not
enter into any agreement, contract, lease, license, instrument or other arrangement with a Third Party that results in a breach
of or constitutes a default under this Agreement or that would conflict with the licenses and rights granted to the Company hereunder.
(iv) No member of the
AMYRIS Family other than a Third Party Acquirer shall commercialize, or grant any Third Party any rights to commercialize, any
isoprenoid or isoprenoid-derived compound for a Jet Product or otherwise conduct or authorize any activity in conflict with the
licenses granted in Section 2, provided that the
exercise of its retained rights hereunder
as set forth in Section 2.A(iv) above shall not be construed as a violation of this clause (iv).
(v) Company shall not
be obligated to pay to AMYRIS any fees of any type (including royalties, milestones, maintenance, sublicense, etc.) beyond any
amounts due under Section 2.A(iii) or (vii) or Section 2.B for its use, license, sublicense and/or any other commercial exploitation
of the licenses granted Company herein with respect to the AMYRIS Licensed IP.
(vi) AMYRIS shall promptly
inform Company if AMYRIS and/or any of its Affiliates becomes aware of any action, suit, investigation and/or proceeding pending
and/or threatened before any arbitrator and/or any governmental authority, in each case, to which AMYRIS or any of its Affiliates
is a party, which could reasonably be expected to have a material adverse effect on the ability of Company and/or any of its Affiliates
to practice any of the rights granted Company in this Agreement.
(vii) Until the expiration
or termination of the Collaboration Agreement, AMYRIS shall not, without prior notice to Company, enter into any grant or contract
that may provide any government or non-for profit entity any rights (e.g., rights provided to the U.S. Government under 35 U.S.
200 et seq. or any similar provisions of foreign law) to any patent application or patents resulting from work done in connection
with such grant or contract that would be materially useful in connection with the conduct of the Biofene Development Project or
to Manufacture farnesene to make JV Jet Products or to Make and Sell JV Jet Products.
(viii) AMYRIS shall not,
and shall not permit any Affiliate to, create, incur, assume or permit to exist any Lien on any Invention within the AMYRIS Licensed
IP owned by AMYRIS or its Affiliates as of the Effective Date or hereafter acquired; provided, however, that AMYRIS and its Affiliates
shall not be precluded by this clause
(viii) from granting
licenses to its Affiliates and Third Parties under the AMYRIS Licensed IP, provided that such licenses do not conflict with the
licenses and other rights granted to the Company hereunder. For clarity, nothing in this clause (viii) shall restrict the granting
by AMYRIS of (a) licenses with respect to products other than JV Jet Products, (b) licenses outside the Field or (c) licenses within
the scope of AMYRIS’ retained rights under Section 2.A(iv).
(ix) AMYRIS shall not,
and shall not permit any Affiliate to, use any Known By-Product to Make or Sell any JV Jet Product except in connection with the
Brazil Jet Business.
(x) AMYRIS shall not
amend the terms of the IP License Agreement with regard to its prohibition on Novvi’s sale of its by-products for use as
jet fuel (the “
Novvi By-Product Restriction
”), without the express prior written consent of the Company.
(xi) In the event that
the Company or AMYRIS become aware that Novvi has breached the Novvi By-Product Restriction, it shall notify the other providing
detailed information. In the event that Novvi breaches the Novvi By-Product Restriction, AMYRIS, upon Company’s written request,
agrees to use its best efforts to enforce the Novvi By
Product Restriction against Novvi including,
if necessary, promptly commencing legal action against Novvi to cease such breach and recover damages for such breach.
(xii) AMYRIS shall not,
and shall not assist (by joining as a party or otherwise) any Third Party to, commence or conduct any legal action against the
Company or its sublicensees or Subcontractors for the production of any By-Products in compliance with the terms of this Agreement.
E.
Disclaimer
.
EXCEPT AS PROVIDED IN THIS ARTICLE 4, NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY PRODUCT OR PROCESS, OR AS TO THE VALIDITY
OR SCOPE OF ANY OF INTELLECTUAL PROPERTY OR THAT THE PRACTICE OF ANY OF INTELLECTUAL PROPERTY WILL BE FREE FROM INFRINGEMENT OF
ANY PATENT OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY OR TOTAL OR ANY OF ITS AFFILIATES.
ARTICLE 5. INDEMNITY; LIMITATION OF
LIABILITY
A.
Indemnification
.
(i)
Indemnification
by Company
. Company shall defend, indemnify, and hold AMYRIS and AMYRIS’ officers, directors, employees, and agents (the
“
AMYRIS Indemnitees
”) harmless from and against any and all damages, liabilities, judgments, recoveries, costs,
and expenses (including court costs and reasonable attorneys’ fees and expenses), resulting from any claims, suits, actions
or proceedings of any Third Party (collectively, “
Claims
”) to the extent that such Claims arise out of, are
based on, or result from (a) a breach of any of Company’s representations, warranties, covenants and/or obligations under
this Agreement; (b) the willful misconduct or grossly negligent acts of Company or its Affiliates, or the officers, directors,
employees, or agents of Company or its Affiliates in connection with its activities under this Agreement; or (c) the exercise by
Company of the licenses granted hereunder (excluding claims for infringement and misappropriation of a Third Party’s intellectual
property for which AMYRIS is obligated to indemnify Company pursuant to Section 5(A)(ii)(b) below); in each case except to the
extent such Claims arise out of, are based on, or result from (x) a breach by AMYRIS of any of AMYRIS’ representations, warranties,
covenants and/or obligations under this Agreement; or (y) the willful misconduct or grossly negligent acts of AMYRIS, its Affiliates,
or the officers, directors, employees, or agents of AMYRIS or its Affiliates.
(ii)
Indemnification
by AMYRIS
. AMYRIS shall defend, indemnify, and hold Company and its Affiliates and each of their officers, directors, employees,
and agents (the “
Company Indemnitees
”) harmless from and against any and all damages, liabilities, judgments,
recoveries, costs, and expenses (including court costs and reasonable attorneys’ fees and expenses), resulting from any Claims
(as defined in Section 5.A(i) above) to the extent that (A) such Claims arise out of, are based on, or result from (a) a breach
of any of AMYRIS’ representations, warranties, covenants and/or obligations under
this Agreement, (b) any manufacture by
the Company of farnesene that allegedly has infringed or misappropriated a Third Party’s intellectual property, but only
to the extent such alleged infringement or misappropriation is directly attributable to Company’s adherence to AMYRIS’
then approved farnesene manufacturing process (as provided in the Successful Commercial Transfer) licensed from AMYRIS as part
of the AMYRIS Licensed IP and not to any deviation or modification from such process made by or on behalf of Company other than
a deviation or modification made by Company at the written direction of AMYRIS, (c) the willful misconduct or grossly negligent
acts of AMYRIS, its Affiliates, or the officers, directors, employees, or agents of AMYRIS or its Affiliates or (B) such Claims
(a) are Patent infringement claims brought by Novvi against the Company, (b) allege that one or more of the JV Jet Products infringes
one or more Patents owned by Novvi and (c) are based on Inventions conceived and reduced to practice by Novvi; in each case ((A)
and (B)), except to the extent such Claims arise out of, are based on, or result from (x) a breach by Company of any of Company’s
representations, warranties, covenants and/or obligations under this Agreement; or (y) the willful misconduct or grossly negligent
acts of Company and its Affiliates or the officers, directors, employees, or agents of Company or its Affiliates.
(iii)
Indemnification
Procedures
. In the event that a Party claiming indemnity under this Section 5.A (the “
Indemnified Party
”)
becomes aware of any Claim for which it seeks indemnification from the other Party (the “
Indemnifying Party
”),
the Indemnified Party shall: (a) reasonably promptly notify Indemnifying Party thereof, in no event later than ten (10) business
days after the Indemnified Party becomes aware of such Claim (provided that failure to provide such notice will not release the
Indemnifying Party from any of its indemnity obligations hereunder except to the extent that such failure increases the Indemnifying
Party's indemnity obligation); (b) permit the Indemnifying Party to assume control of the defense or settlement of the Claim; (c)
at the Indemnifying Party’s expense, provide the Indemnifying Party with reasonable cooperation in the defense or settlement
thereof; and (d) not settle any such claim without the Indemnifying Party’s written consent, not to be unreasonably withheld.
The Indemnified Party may participate in and monitor such defense with counsel of its own choosing at its sole expense. If the
Indemnifying Party does not assume and conduct the defense of the claim as provided above, (x) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any settlement with respect to the claim in any manner the Indemnified
Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying
Party in connection therewith), and (y) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party as provided
in this Section 5.A.
B.
Insurance
.
Prior to the commencement of its operational activities, Company shall acquire, and thereafter maintain, product liability insurance
and general commercial liability insurance, to the extent, in amounts and from carriers with quality ratings not lower than industry
standards for a similarly situated company, during the Term and thereafter for so long as Company is exercising its license rights
granted hereunder and including with respect to Company’s facilities used in conducting such activities. Company shall provide
to AMYRIS a certificate of insurance evidencing such coverage upon request.
C.
Limitation of
Liability
. EXCEPT IN CIRCUMSTANCES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY A PARTY OR ITS AFFILIATES OR WITH RESPECT
TO A BREACH OF ARTICLE 6, NEITHER PARTY, NOR ANY OF ITS AFFILIATES, SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE GRANTED HEREUNDER. FOR CLARITY, ANY DAMAGES
FINALLY AND ACTUALLY SUFFERED BY AN INDEMNIFIED PARTY (WHETHER BY A FINAL JUDGMENT OF A COURT OF LAW OR THROUGH A SETTLEMENT) ARISING
OUT OF A CLAIM FOR WHICH THE INDEMNIFIED PARTY IS INDEMNIFIABLE UNDER THIS ARTICLE 5 SHALL BE DEEMED DIRECT DAMAGES FOR PURPOSE
OF THIS SECTION 5.C. NEITHER PARTY NOR ANY OF ITS AFFILIATES SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY PUNITIVE DAMAGES
HEREUNDER.
ARTICLE 6. CONFIDENTIALITY
A.
Confidential
Information
. Except to the extent expressly authorized by this Agreement or otherwise provided herein or agreed in writing
by the Parties, during the Term and for two (2) years thereafter, each Party shall keep confidential and shall not publish or otherwise
disclose and shall not use for any purpose other than as permitted in this Agreement, the Collaboration Agreement, the Company
Articles of Association, or the Company Shareholders’ Agreement, any Inventions or other confidential information, including
any information relating to any Strain, disclosed to it by the other Party or its Affiliates pursuant to this Agreement (collectively,
“
Confidential Information
” of the disclosing Party). Each Party shall use at least the same standard of care
as it uses to protect proprietary or confidential information of its own, but in no event less than reasonable care, to ensure
that its and its Affiliates’ and sublicensees’ employees, previous employees, agents, consultants, Subcontractors,
and other representatives do not disclose or make any unauthorized use of the Confidential Information of the other Party. Each
Party shall promptly notify the other upon discovery of any unauthorized use or disclosure of the other Party’s Confidential
Information. The terms and conditions of this Agreement (but not the existence hereof) shall be the Confidential Information of
both Parties. Any Confidential Information disclosed hereunder shall be the Confidential Information of the disclosing Party. The
receiving Party is permitted to use such Confidential Information only to the extent permitted in this Agreement, the Collaboration
Agreement, the Company Articles of Association, or the Company Shareholders’ Agreement. Any Inventions owned by AMYRIS under
this Agreement (including by reference to the Collaboration Agreement in Section 3.A above) shall constitute Confidential Information
of AMYRIS.
B.
Exceptions
.
The obligations of non-disclosure and non-use under Section 6.A shall not apply to any Confidential Information of a disclosing
Party if the receiving Party can prove by contemporaneous written documentation or otherwise reasonably demonstrate that such Confidential
Information: (1) is at the time of receipt, or thereafter becomes, through no breach of this Agreement, the Collaboration Agreement,
the Company Articles of Association, or the Company Shareholders’ Agreement by the receiving Party, generally known or publicly
available; (2) is known by the receiving Party at the time of
receiving such Confidential Information;
(3) is hereafter furnished to the receiving Party by a Third Party, which is not, to the receiving Party’s reasonable knowledge,
in breach of any confidentiality obligation related to such information; (4) is independently discovered or developed (in the case
of the Company, without the practice of the licenses granted hereunder or reference to the AMYRIS Licensed IP or the Confidential
Information of AMYRIS, and without use of Confidential Information of AMYRIS under the Collaboration Agreement, the Company Articles
of Association, or the Company Shareholders’ Agreement and without violation of any agreement between AMYRIS and any of its
Affiliates, on the one hand, and TOTAL or any of its Affiliates, on the other hand), (5) is the subject of a written permission
to disclose provided by the disclosing Party; or (6) is disclosed pursuant to any ruling of a governmental or regulatory authority
or court or by mandatory law, provided that written notice of such ruling is given, as soon as reasonably possible, to the disclosing
Party so as to give the disclosing Party an opportunity to intervene and provided further that the receiving Party uses reasonable
efforts to obtain assurance that the Confidential Information shall be treated confidentially. In addition, each Party may disclose
Confidential Information of the other Party to the extent such disclosure is reasonably necessary in the following instances:
(i) filing or prosecuting
Patents as permitted by this Agreement (but such disclosure must comply with Section 6(C) below);
(ii) regulatory filings
for products to which such Party has a license or a right to develop hereunder;
(iii) prosecuting or defending litigation
as permitted by or relating to this Agreement;
(iv) otherwise required
by law or the requirements of a national securities other similar regulatory body; provided that the receiving Party shall (a)
provide the disclosing Party with reasonable advance notice of, and an opportunity to comment on, any such required disclosure,
to the extent such advance notice is legally permitted, (b) if requested by the disclosing Party, and at the disclosing Party’s
expense, seek confidential treatment with respect to any such disclosure to the extent available, and (c) use good faith efforts
to incorporate the comments of the disclosing Party in any such disclosure or request for confidential treatment;
(v) complying with applicable
Legal Requirements or governmental requests;
(vi) disclosure to its
Affiliates, licensees, sublicensees and Subcontractors and their respective representatives, who reasonably need to know such Confidential
Information for the purpose of performing the obligations or exercising its license rights as described in this Agreement and internal
reporting to its Affiliates, provided, in each case, each Party shall be responsible for ensuring that all such representatives
to whom the Confidential Information is disclosed under this Agreement shall keep such information confidential and shall not disclose
the same to any unauthorized person; or
(vii) to underwriters
or investors or potential investors or their counsel or accountants in connection with a Monetization (as defined in Section 13.6
of the Collaboration Agreement) or other investment transaction (and to its and their respective Affiliates, representatives and
financing sources); provided, however, that each such Third Party to whom information is disclosed will (a) be subject to obligations
of confidentiality substantially similar hereunder, (b) be informed of the confidential nature of the Confidential Information
so disclosed, and (c) agree to hold such Confidential Information subject to the terms thereof; provided, that the disclosure rights
shall not apply with respect to the other Party’s intellectual property.
C.
Public Disclosures
of Technical Information
. If Company seeks to publish any technical information relating to any Strain, the substance of which
has not been previously approved by AMYRIS for publication or disclosure, Company shall first provide to AMYRIS the material proposed
for disclosure or publication, such as by oral presentation, manuscript or abstract, and AMYRIS shall have the right to review
and comment on all such material. Before any such material is submitted for publication, Company shall deliver a complete copy
to AMYRIS at least sixty (60) days prior to submitting the material to a publisher or initiating any other disclosure. AMYRIS shall
review any such material and give its comments to Company as soon as practicable, but no later than forty-five (45) days after
delivery of such material to Company. Company shall not publish any such technical information, the substance of which has not
been previously approved by AMYRIS for publication or disclosure, without AMYRIS’ prior written consent in each instance,
which consent shall not be unreasonably withheld or delayed. For clarity, such consent is not required for disclosures relating
to the JV Jet Products to the extent such disclosure does not comprise technical information relating to Strains.
D.
Publicity and
Disclosure of this Agreement
. A Party that desires to make, or that is required to make pursuant to applicable laws or regulations,
any press release or other public disclosure regarding the existence or terms of this Agreement (including the identity of the
other Party to this Agreement) shall first consult with the other Party (to the extent such consultation does not violate applicable
laws or regulations) with respect to the text and timing of such press release or other public disclosure and shall obtain the
other Party’s approval over the text and timing of such release and disclosure prior to the issuance or disclosure thereof
(to the extent such approval does not violate applicable laws or regulations). Following the initial press release or other public
disclosure announcing the existence or terms of this Agreement (if any), each Party shall be free to disclose, without the other
Party’s prior written consent, the existence of this Agreement, the identity of the other Party and those terms of this Agreement
which have already been publicly disclosed in accordance herewith.
E.
Residuals
.
Nothing in this Agreement shall restrict any employee or representative of a Party from using general ideas, concepts, practices,
learning, or know-how relating to any activities conducted on behalf of the Company (“
General Know-How
”) that
are retained in the unaided memory of such employee or representative following performance of the Biofene Development Project
and such employee or representative is not aware at the time of use that such information is Confidential Information of the other
Party, provided that the foregoing is not intended to grant, and
shall not be deemed to grant (i) any right
to disclose the Confidential Information of the other Party, or (ii) any license under any Patents of the other Party. The General
Know-How shall in no event include any financial, business statistical, or personnel information specific to the other Party. A
person’s memory is “unaided” if such person has not intentionally memorized the Confidential Information for
the purpose of retaining and subsequently using or disclosing it otherwise than as authorized pursuant to this Agreement.
ARTICLE 7. TERM AND TERMINATION
A.
Term
. The
term of this Agreement shall commence on the Effective Date and remain in effect for fifty (50) years (the “
Term
”).
B.
Consequence of
Events
. The Parties agree as follows:
(i)
Buy-Out Closing
.
For clarity, this Agreement shall remain in full force and effect in the event of any Buy-Out Closing.
(ii)
Change of Control
of AMYRIS
. For clarity, this Agreement shall remain in full force and effect in the event of any Change of Control of AMYRIS.
(iii)
Termination
of Collaboration Agreement
. For clarity, the Parties agree that, regardless of any termination of the Collaboration Agreement,
this Agreement shall remain in full force and effect according to its terms.
C.
Termination of
Agreement
.
(i) The licenses granted
to the Company herein shall be irrevocable (other than as specified in this Section 7.C), provided in the case of a material breach
(but only in the case of a material breach) of the relevant license, AMYRIS shall have a right to terminate the applicable license
in accordance with the following. If AMYRIS believes any such breach by the Company has occurred, AMYRIS shall within thirty (30)
days provide written notice to Company describing the specific alleged material breach. If a material breach is not cured within
ninety (90) days of the Company’s receipt of such notice, then AMYRIS may terminate the applicable license with further written
notice to Company (A) immediately at the end of such ninety (90) day period, if the Company has not contested the allegation, or
(B) if the Company has contested such allegation, only upon a final written determination, if any, of an arbitrator in a proceeding
subject to Section 8.B that an uncured material breach has occurred. For clarity, in the case of any dispute between the Parties
as to whether any uncured material breach has occurred that would permit AMYRIS to terminate a license or this Agreement, no notice
of termination may be given and no such termination shall be effective until the final resolution of a dispute resolution proceeding
conducted pursuant to Section 8.B, and such licenses may only be terminated if the arbitrator finally determines an uncured material
breach has occurred.
(ii) In the case of an
uncured material breach of Section 2.E(i) or (ii) by the Company, then, except to the extent Section 7.C(iii) below applies, AMYRIS
shall have the right to terminate the licenses granted in Section 2.A in their entirety in accordance with
the procedure described in Section 7.C(i)
above, and in the case of such a license termination, this Agreement shall terminate concurrently.
(iii) In the case
of any uncured material breach by the Company based on the use of any Intermediate Strain or any other Strain that is a genetic
manipulation or modification of any Intermediate Strain (other than any Commercial Farnesene Strain(s)) outside the scope of the
limited license in Section 2.A(i)(b), then in accordance with the procedure described in clause 7.C(i) above, AMYRIS shall have
the right to terminate the license granted in Section 2.A(i)(b) and all other rights of Company permitting its development and
use of Intermediate Strains, including Company’s right to release of the Escrowed Materials relating to the Intermediate
Strains) as described in clause (i) above but AMYRIS may not otherwise terminate any provision of this Agreement or this Agreement
in its entirety.
(iv) For purposes
of determining whether a material breach that would trigger a right of termination under Section 7.C has occurred, any Affiliate
of the Company shall be treated as if it was the Company.
(v) Except as expressly
provided in this Section 7.C(v), no acts or omissions of any Subcontractor or sublicensee of the Company shall be the basis of
any termination of this Agreement. In the event that any Subcontractor or sublicensee of Company violates Section 2.E(i) or Section
2.E(ii)(a) or (b), then such violation may provide a basis for a material breach and termination of this Agreement under Section
7.C(ii) above, but only if the Company fails to use commercially reasonable efforts to cure such breach, which efforts may include
terminating its agreement with such Subcontractor or sublicensee and initiating and continuing to pursue appropriate legal action
to stop such unauthorized activity. In the event that a sublicensee or Subcontractor of Company uses any Intermediate Strain in
a manner that exceeds the scope of or violates the restrictions on the exercise of the license in Section 2.A(i)(b), then in accordance
with the procedure described in Section 7.C(i) above, AMYRIS shall have the right to terminate the license in Section 2.A(i)(b)
pursuant to Section 7.C(iii) and Company’s related rights in respect of Intermediate Strains but only if the Company is not
using commercially reasonable efforts to cure such breach, which efforts may include terminating its agreement with Affiliate,
sublicensee or Subcontractor pertaining to the Intermediate Strain(s) and initiating and continuing to pursue appropriate legal
action to stop such unauthorized activity.
D.
Conversion to
Non-Exclusive License
. In the event of the expiration of this Agreement at the end of the Term, the Company shall retain a
perpetual, non-exclusive (subject to Section 2.A(iv)), royalty-free (subject to Section 2.A(iii) and (vii) and Section 2.B) right
and license under the AMYRIS Licensed IP, in each case that is necessary or, in the case of the AMYRIS Farnesene Production IP,
useful to Make and Sell JV Jet Products within the Territory.
E.
Effects of Termination
.
1.
Strains; Return
or Destruction of Confidential Information
. Except as provided in Section 7.D, upon expiration or termination of this Agreement
and/or the
licenses granted herein, as applicable,
Company shall immediately cease and cause its Affiliates, sublicensees and Subcontractors to cease use of any AMYRIS Licensed IP,
Strain Improvement Technology and all Company Strains (or in the case of a termination under Section 7.C(iii), the Intermediate
Strains and any Strains derived therefrom) and within ninety (90) days following a written request from the other Party, each receiving
Party shall at the disclosing Party’s discretion, promptly destroy or return to the disclosing Party (a) all written copies
of the disclosing Party’s Confidential Information that is marked confidential and (b) all biological materials (including
all Company Strains), in each case (a) and (b) to which the receiving Party does not retain rights hereunder, except that the receiving
Party may retain such Confidential Information or materials, to the extent that the receiving Party requires such Confidential
Information or materials for the purpose of performing any obligations under this Agreement that may survive such expiration or
termination, or with respect to Confidential Information only for archival purposes or for information contained in management
reports.
2.
Rights
in Bankruptcy
. All rights and licenses granted under or pursuant to this Agreement to the Company are, and will otherwise
be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code (the “
Bankruptcy
Code
”), licenses of rights to “intellectual property” as that term is defined in the Bankruptcy Code.
Company, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and
elections under the Bankruptcy Code. Upon the filing of a case by or against AMYRIS or any AMYRIS Affiliate (the
“
Bankrupt Entity
”), including without limitation, AMYRIS Fuels LLC, AB Technologies LLC, and/or AMYRIS
Brasil Ltda. (each of such Affiliates, a “
Co-Licensor
”) under the Bankruptcy Code, then (a) Company shall
be entitled to the fullest protections conferred upon licensees under Section 365(n) of the Bankruptcy Code, or any similar
provision; (b) AMYRIS and each Co-Licensor shall perform all of its obligations under this Agreement; (c) the Bankrupt Entity
shall immediately, without the need for any further request by Company, or notice or hearing, provide to Company a complete
duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual
property (which embodiments, throughout this Agreement, shall include without limitation, the Escrowed Materials), or any
other information necessary or desirable for Company to utilize such intellectual property; and (d) AMYRIS and each
Co-Licensor shall not interfere with the rights of Company as provided in this Agreement, or in any agreement supplementary
to this Agreement, to such intellectual property (including such embodiment), including any right to obtain such intellectual
property (and such embodiment) from another entity or person. To the extent AMYRIS and/or a Co-Licensor rejects
this Agreement under the Bankruptcy Code and Company elects to retain its rights, (x) Company shall have the full rights
provided to it under Section 365(n) of the Bankruptcy Code; (y) the waivers under Section 365(n)(2)(C) shall apply only to
rights of setoff and administrative claims arising solely out of this Agreement, and not to any other agreements or
instruments, including, without limitation, claims or rights arising out of agreements supplementary to this Agreement; and
(z) the Bankrupt Entity shall, without need for notice or hearing, provide to Company any intellectual property (including
such embodiment) held by AMYRIS and/or each Co-licensor and/or any other entity or person, and shall not interfere with the
rights of Company as provided in this Agreement, or any agreement supplementary to this Agreement, to such intellectual
property (including such
embodiment) including any right to obtain
such intellectual property (and such embodiment) from another entity or person. For purposes of this Agreement, the term “embodiment”
shall mean any and all materials required to be delivered by AMYRIS or a Co-Licensor to Company hereunder and any materials relating
to the licenses granted hereunder which, in the course of dealing between the Parties under this Agreement, are customarily delivered,
in whatever format (whether electronic, written or otherwise). All written agreements entered into relating to and in connection
with the Parties’ performance hereunder from time-to-time, shall be considered agreements “supplementary” to
this Agreement for purposes of Section 365(n) of the Bankruptcy Code. AMYRIS and each Co-Licensor acknowledges and agrees that
the rights of Company to such intellectual property (and such embodiments) are unique, and that to the extent AMYRIS or a Co-Licensor,
or their respective trustees in bankruptcy, were to sell any portion of such intellectual property free and clear of liens, claims
or interests, Company would suffer irreparable damages, such that AMYRIS and each Co-Licensor agrees that such sale shall not occur
without Company’s express written consent. For the avoidance of doubt, “intellectual property,” as used in this
Section 7.E.2, is limited to intellectual property included in the AMYRIS Licensed IP and the Strain Improvement Technology, and
any tangible embodiments of such intellectual property, and includes all such intellectual property and tangible embodiments of
such intellectual property (provided in the case of the Strain Improvement Technology, only to the extent, and for the uses and
period, described in Section 2.A.(i)(b)).
3.
Accrued Rights
.
Termination or expiration of this Agreement for any reason shall not release either Party from any liability or obligation that
already has accrued prior to such expiration or termination, nor affect the survival of any provision hereof to the extent it is
expressly stated to survive such termination. Termination or expiration of this Agreement for any reason shall not constitute a
waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages
or otherwise, that a Party may have hereunder or that may arise out of or in connection with such termination or expiration.
F.
Survival
.
Subject to the other provisions set forth in this Article 7 and any other applicable terms and conditions of this Agreement, the
obligations and rights of the Parties under the following provisions of this Agreement shall survive expiration of this Agreement:
Articles 1 (Definitions) (to the extent any definitions are applicable after expiration hereof), 5 (Indemnity; Limitation of Liability),
6 (Confidentiality) (for the period set forth therein), 8 (Dispute Resolution) and 9 (Miscellaneous); Sections 2.A (License to
Make and Sell JV Jet Products) (where the licenses are on the non-exclusive basis described above), 2.B (Third Party Agreements),
2.C (Sublicenses and Subcontracts), 2.E (Strain Restrictions), 2.F (Reporting, Audit and Inspection Rights), 2.G (No Implied Rights),
2.I, 3.A (Ownership), 3.E (Infringement of Third Party Rights), 3.F (Common Interest Disclosures and Agreement), 4.E (Disclaimer),
7.C (Termination of Agreement), 7.D (Conversion to Non-Exclusive License) and 7.E (Effects of Termination); and this Section 7.F
(Survival). Subject to the other provisions set forth in this Article 7 and any other applicable terms and conditions of this Agreement,
the obligations and rights of the Parties under the following provisions of this Agreement shall survive termination of this Agreement:
Articles 1 (Definitions) (to the extent any definitions are applicable after
termination hereof), 5 (Indemnity; Limitation
of Liability), 6 (Confidentiality) (for the period set forth therein), 8 (Dispute Resolution) and 9 (Miscellaneous); Sections 3.A
(Ownership), 3.E (Infringement of Third Party Rights), 3.F (Common Interest Disclosures and Agreement), 4.E (Disclaimer), 7.C (Termination
of Agreement) and 7.E (Effects of Termination); and this Section 7.F (Survival).
ARTICLE 8. DISPUTE RESOLUTION
A.
Escalation
.
Except as provided in Section 8.B or 8.D, if any Dispute arises between the Parties under this Agreement, such Dispute shall be
referred to the Executive Officers for further discussion and resolution. The Executive Officers shall attempt in good faith to
resolve any Dispute referred to them pursuant to this Section 8.A within ten (10) days after such referral by meeting (either in
person or by video teleconference, unless otherwise mutually agreed) at a mutually acceptable time, and thereafter as often as
they reasonably deem necessary, to exchange relevant information and to attempt to resolve the Dispute. If the Dispute has not
been resolved within twenty (20) days thereafter and the Dispute does not consist of a failure by the Parties to reach agreement
where one or both Parties have discretion whether to agree, either Party may, by written notice to the other Party, elect to initiate
arbitration pursuant to Section 8.B for purposes of having the Dispute and any related Disputes resolved. If an Executive Officer
intends to be accompanied at a meeting by an attorney, the other Executive Officer shall be given at least forty-eight (48) hours’
notice of such intention and may also be accompanied by an attorney. All negotiations conducted pursuant to Section 8.B, and all
documents and information exchanged by the Parties in furtherance of such negotiations, (i) are the Confidential Information of
the Parties, (ii) shall be treated as evidence of compromise and settlement for purposes of the United States Federal Rules of
Evidence and any other applicable state or national rules of evidence or procedure, and (iii) shall be inadmissible in any arbitration
conducted pursuant to this Section 8 or other proceeding with respect to a Dispute.
B.
Arbitration
.
Except for Disputes that are subject to Sections 8.C, D or E, all Disputes arising out of or in connection with this Agreement
that cannot be resolved by the Executive Officers pursuant to Section 8.A shall be finally settled as follows:
(i) Except for Disputes
that are subject to Section 8.C, D or E, all Disputes arising out of or in connection with this Agreement that cannot be resolved
by the Executive Officers pursuant to Section 8.A, shall be finally settled under the Rules of Arbitration of the International
Chamber of Commerce (the “
ICC Rules
”) by an arbitration tribunal appointed in accordance with the said ICC Rules
as modified hereby.
(ii) There shall be three
(3) arbitrators, one selected by the initiating Party in the request for arbitration, the second selected by the other Party within
twenty (20) days of receipt of the request for arbitration, and the third (who shall act as chairperson of the arbitration tribunal)
selected by the two (2) Party-appointed arbitrators within twenty (20) days of the selection of the second arbitrator. In the event
that the respondent fails to select an arbitrator, or if the two Party-appointed arbitrators are unable or fail to agree upon the
third arbitrator, the international Court of Arbitration of the International Chamber of Commerce shall designate the remaining
arbitrator(s) required to comprise the tribunal. The
claimant in the arbitration shall provide
a copy of the request for arbitration to the respondent at the time such request is submitted to the Secretariat of the International
Chamber of Commerce.
(iii) Each arbitrator
chosen under this Section shall speak, read, and write English fluently and shall be either (a) a practicing lawyer who has specialized
in business litigation with at least ten (10) years of experience in a law firm of over fifty (50) lawyers or (b) a retired judge
of a court of general jurisdiction.
(iv) The place of arbitration
shall be New York, New York. The language of the arbitral proceedings and of all submissions and written evidence shall be English;
provided, however, that a Party, at its expense, may provide for translation or simultaneous interpretation into a language other
than English.
(v) The arbitrators
shall issue an award within nine (9) months of the submission of the request for arbitration. This time limit may be extended by
agreement of the Parties or by the tribunal if necessary.
(vi) It is expressly
understood and agreed by the Parties that the rulings and award of the tribunal shall be conclusive on the Parties, their successors
and permitted assigns. Judgment on the award rendered by the tribunal may be entered in any court having jurisdiction thereof.
(vii) Each Party shall
bear its own costs and expenses and attorneys' fees, and the Party that does not prevail in the arbitration proceeding shall pay
the arbitrator's fees and any administrative fees of arbitration. All proceedings and decisions of the tribunal shall be deemed
Confidential Information of each of the Parties, and shall be subject to Article 6.
For clarity, any disputes between the Parties
regarding the deposit of Escrowed Materials or access to any Escrowed Materials shall not be required to be resolved via arbitration,
and either Party may seek equitable relief for such dispute, including without limitation, specific performance, pursuant to Section
8.D.
C.
Patent Validity
and Infringement Disputes
. In the event that a Dispute arises with respect to the inventorship, scope, validity, enforceability,
revocation or infringement of a Patent, and such Dispute cannot be resolved by the Executive Officers in accordance with Section
8.A, unless otherwise agreed by the Parties in writing, such Dispute shall not be submitted to arbitration in accordance with Section
8.B, and notwithstanding anything in this Agreement to the contrary, the sole forum to resolve such Dispute shall be to initiate
litigation in a court or other tribunal of competent jurisdiction in the country of issuance of the Patent that is the subject
of the Dispute.
D.
Equitable Relief
.
Notwithstanding anything to the contrary, either Party may at any time seek to obtain equitable relief from a court of competent
jurisdiction with respect to an issue arising under this Agreement if the rights of such Party would be prejudiced absent such
relief.
E.
Disputes Subject
to Section 2.A(iii)
. In the event of any disagreement between the Parties (or their successors) regarding the terms on which
any Inventions subject to Section 2.A(iii) shall be licensed to Company, then at the request of Company (or its successor), such
dispute be resolved by a single arbitrator agreed by the Parties or if the Parties are unable to agree within thirty (30) days
of Company’s request, selected by the head of the New York office of the International Chamber of Commerce. Such arbitrator
shall have expertise in the licensing of biotechnology intellectual property for industrial applications. Each Party shall submit
to the arbitrator a written brief of its position regarding the license terms, which submission (including supporting documentation)
shall not exceed 50 pages. The arbitrator shall select the position of one of the Parties, in its entirety, as his or her decision,
and shall have no authority to vary any of the terms of the prevailing proposal. The Parties shall equally share the costs of such
arbitration. Any such arbitration shall be completed within 120 days of selection of the arbitrator.
F.
Attorney’s
Fees
. If any action, proceeding or arbitration is brought by a Party to enforce or interpret this Agreement, the prevailing
Party, in addition to all other legal or equitable remedies possessed, shall be entitled to be reimbursed for all reasonable attorneys’
fees incurred by reason of such action or proceeding to the extent related to the enforcement or interpretation of this Agreement.
ARTICLE 9. MISCELLANEOUS
A.
Governing Law
.
This Agreement and any arbitration hereunder shall be governed by, interpreted and construed and enforced in accordance with, the
laws of the State of New York, without giving effect to any conflicts of laws principles thereof.
B.
Entire Agreement;
Modification
. This Agreement, together with the Company’s Shareholder Agreement (until a Buy-Out Closing), the Company’s
Articles of Association (until a Buy-Out Closing), and the Collaboration Agreement, constitutes the entire agreement of the Parties
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 in this Agreement has been made or relied upon by either Party with respect to the subject matter of this Agreement.
No rights or licenses with respect to any intellectual property right of either Party are granted or deemed granted hereunder or
in connection herewith, other than those rights expressly granted in this Agreement. This Agreement may only be modified or supplemented
in a writing expressly stated for such purpose and signed by the Parties to this Agreement. For clarity, except as modified herein,
the Collaboration Agreement remains in full force and effect; provided, in the event of any inconsistency between the Collaboration
Agreement and this Agreement, the terms of this Agreement shall prevail.
C.
Relationship
.
This Agreement establishes between the Parties an independent relationship. The Parties intend that no partnership or joint venture
is created hereby between Company and AMYRIS, that neither Party will be a partner or joint venturer of the other Party for any
purposes, and that this Agreement will not be construed to the contrary.
D.
Non-Waiver
.
Either Party may (i) extend the time for the performance of any of the obligations or other acts of the other Party, (ii) waive
any inaccuracies in the representations and warranties of the other Party contained herein or in any document delivered by the
other Party pursuant hereto, or (iii) waive compliance with any of the agreements or conditions of the other Party contained herein.
Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties. Any waiver of
any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition,
or a waiver of any other term or condition, of this Agreement. The failure of either Party to assert any of its rights hereunder
shall not constitute a waiver of any of such rights. Any extension of time or other indulgence granted to a Party hereunder shall
not otherwise alter or affect any power, remedy or right of the other Party or the obligations of the Party to whom such extension
or indulgence is granted.
E.
Assignment
.
This Agreement may not be assigned by either Party without the express written consent of the other Party; provided, however, that
either Party may assign its rights and obligations pursuant to this Agreement without the written consent of the other Party to
any of its Affiliates
;
provided, that (i) such Affiliate agrees to be bound by the terms of this Agreement, and (ii) Company
may not assign this Agreement to any AMYRIS Competitor without the written consent of AMYRIS. In the event of any Buy-Out Closing,
notwithstanding the foregoing, this Agreement shall thereafter (a) be assignable by Company to an AMYRIS Competitor that is an
Affiliate of TOTAL without the consent of AMYRIS; and (b) be assignable by AMYRIS to a Third Party in connection with a Change
of Control of AMYRIS. Any purported assignment not specifically described above shall be null and void, without the express written
agreement of both Parties hereto.
F.
Severability
.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any applicable law or public
policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect to the fullest extent
permitted by law. Upon determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible
in a reasonably acceptable manner.
G.
Notices
.
Any notice to be given under this Agreement must be in writing and delivered either in person by registered or certified mail (postage
prepaid) requiring return receipt, or by overnight courier or facsimile confirmed thereafter by any of the foregoing, to the Party
to be notified at its address(es) given below, or at any address such Party has previously designated by prior written notice to
the other. Notice shall be deemed sufficiently given for all purposes upon the earliest of (a) the date of actual receipt; (b)
if mailed, three (3) days after the date of postmark; or (c) if delivered by overnight courier, the next business day the overnight
courier regularly makes deliveries.
If to Company, notices must
be addressed to:
Hoogoorddreef 15
1101 BA
Amsterdam, the Netherlands
With a required copy to (which
shall not constitute notice):
Total Energies Nouvelles Activités
USA
24 Cours Michelet
92800 Puteaux
France
Attn: Bernard Clément,
President
Fax. No.:
Email:
If to AMYRIS, notices must
be addressed to:
AMYRIS, Inc.
5885 Hollis Street, Suite
100
Emeryville, CA 94608
Attention: General Counsel
Facsimile:
H.
Force Majeure
.
Each Party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement by reason
of any event beyond such Party’s reasonable control including but not limited to acts of God, fire, flood, explosion, earthquake,
or other natural forces, war, civil unrest, accident, any strike or labor disturbance, or any other event similar to those enumerated
above. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay
in performance and provided that the Party has not caused such event(s) to occur and continues to use diligent, good faith efforts
to avoid the effects of such event and to perform the obligation. Notice of a Party’s failure or delay in performance due
to force majeure must be given to the unaffected Party promptly thereafter but no later than five (5) days after its occurrence
which notice shall describe the force majeure event and the actions taken to minimize the impact thereof. All delivery dates under
this Agreement that have been affected by force majeure shall be tolled for the duration of such force majeure. In no event shall
any Party be required to prevent or settle any labor disturbance or dispute.
I.
Trademarks and
Logos
. Neither Party shall use, in advertising or otherwise, the other Party’s or its Affiliates’ names, trade
names, trademarks, service marks, logos or other indicia of origin or refer to the other Party or its Affiliates, directly or indirectly,
in any media release, public announcement or public disclosure relating to this Agreement or its subject matter, including in any
promotional or marketing materials, lists, referral lists, or business presentations, without prior written consent from the other
Party for each such use or release. The restrictions imposed by this Section 9.I shall not prohibit either Party from making any
disclosure (a) identifying the other Party as a counterparty to this
Agreement to its or its Affiliates’
actual or prospective acquirers, merger candidates, underwriters, or investors (and their attorneys and accountants), (b) that
is required by Applicable Law or the requirements of a national securities exchange or another similar regulatory body (provided
that any such disclosure shall be governed by Section 6) or (c) with respect to which written consent of the other Party has previously
been obtained.
J.
Export Control
.
Notwithstanding anything to the contrary contained herein, all obligations of the Parties are subject to prior compliance with
export regulations applicable to each Party and such other related laws and regulations as may be applicable to each Party, and
to obtaining all necessary approvals required by the applicable government entity. Each Party shall each use its reasonable efforts
to obtain such approvals for its own activities. Each Party shall cooperate with the other Parties and shall provide assistance
to the other Parties as reasonably necessary to obtain any required approvals.
K.
Interpretation
.
(i)
Captions &
Headings
. The captions and headings of clauses contained in this Agreement preceding the text of the articles, sections, subsections
and paragraphs hereof are inserted solely for convenience and ease of reference only and shall not constitute any part of this
Agreement, or have any effect on its interpretation or construction.
(ii)
Singular &
Plural
. All references in this Agreement to the singular shall include the plural where applicable, and all references to gender
shall include both genders and the neuter.
(iii)
Including as
Example
. Use of the term “including” or “include” in this Agreement shall be interpreted to mean “including,
without limitation,” or “include, but not limited to,” and shall be exemplary rather than restrictive.
(iv)
Sections &
Subsections
. Unless otherwise specified, references in this Agreement to any section shall include all subsections and paragraphs
in such sections, and references in this Agreement to any subsection shall include all paragraphs in such subsection.
(v)
Days
. All
references to days in this Agreement mean calendar days, unless otherwise specified.
(vi)
Ambiguities
.
Ambiguities and uncertainties in this Agreement, if any, shall not be interpreted against either Party, irrespective of which Party
may be deemed to have caused the ambiguity or uncertainty to exist.
(vii)
English Language
.
All notices required or permitted to be given hereunder, and all written, electronic, oral or other communications between the
Parties regarding this Agreement shall be in the English language.
L.
Drafting
.
Each Party agrees that it participated equally with the other in the drafting of this Agreement, using counsel of its choice. This
Agreement shall be interpreted
without regard to any principle of construction
regarding the drafting, authorship or revision thereof.
M.
Further Assurances
.
After the Effective Date, each of the Parties shall execute and deliver such additional documents, certificates, and instruments
and perform such additional acts, as may be reasonably requested and necessary or appropriate to carry out the purposes and intent
and all of the provisions of this Agreement and to consummate all of the transactions contemplated by this Agreement.
N.
License Registrations
.
Company may, at its expense, register the exclusive licenses granted under this Agreement in any country of, or community or association
of countries in, the Territory. AMYRIS shall reasonably cooperate in such registration at Company’s expense. Upon request
by Company, AMYRIS agrees promptly to execute any "short form" licenses developed in a form reasonably acceptable to
both Company and AMYRIS and reasonably submitted to it by Company from time to time in order to effect the foregoing registration
in such country. No such "short form" license shall be deemed to amend or be used to interpret this Agreement. If there
is any conflict between such a license or other recordation document and this Agreement, this Agreement shall control.
O.
Counterparts
.
This Agreement and any amendments hereto may be executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have been signed by each Party and delivered to the
other Party, it being understood that both Parties need not sign the same counterpart. Any such counterpart, to the extent delivered
by electronic delivery, shall be treated in all manner and respects as an original executed counterpart and shall be considered
to have the same binding legal effect as if it were the original signed version thereof delivered in person. Neither Party shall
raise the use of electronic delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted
or communicated through the use of electronic delivery, as a defense to the formation of a contract, and each Party forever waives
any such defense, except to the extent such defense relates to lack of authenticity.
P.
Affiliates
.
Each Party hereto shall be responsible for ensuring that its Affiliates (whether existing as of the Effective Date or thereafter
during the Term of this Agreement) comply with the terms of this Agreement.
[
Signatures on following page
]
THIS AGREEMENT
IS EXECUTED by the authorized representatives of the Parties as of the date first written above.
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AMYRIS, INC.
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Company
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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The following AMYRIS Affiliates existing
as of the Effective Date of this Agreement hereby acknowledge and approve the licenses granted to Company in Section 2.A and Section
7.E.2 of this Agreement.
AMYRIS Fuels LLC
AB Technologies LLC
AMYRIS Brasil Ltda.
Exhibit A
Commercial Technology Transfer Package
A commercial technology transfer package should include the
following:
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a.
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Back-ground strain design information such as strain information, genetic background, sequence information, genetic modifications
information. e.g.,
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I.
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Strain ancestor and lineage of the applicable strain including each of the rational or directed strain engineering changes,
what type of changes – deletion, insertion, ploidy changes, description of the changes, locus at which the changes were engineered
and what were the resulting genii of the modified strain at each step.
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b. Strain storage and propagation
I. SOP for the overall strain
storage including detailed media recipes for preserving strain
II. SOP for strain revival including
steps all the way from seed vial to inoculums tanks for the propagation media for revival of the strain
c. Feed-stock information – ingredient
information, sourcing, specificities, testing
I. Feed-stock sources and details of handling the feedstock
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2.
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Details of a fermentation run at all scales (including from inoculum to shake-flask to 300L to
1m
3
, 40 m
3
and 200 m
3
production reactors):
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a.
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SOP’s for media, sterilization, fill and draw
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b.
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Sampling intervals, sampling protocols
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c.
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Performance and specific testing at each step, protocols for tests at each stage
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d.
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Historical data of runs at all scales (including 1m
3
, 40 m
3
and 200 m
3
) to register and monitor
variability
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3. Process design (including
Brotas data):
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a.
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Detailed manufacturing process, process narrative, operating conditions
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b.
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PFD’s design basis, heat/material balance, with identified streams
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c.
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Equipment list and material of construction – vessel specifications, identify an special modifications, performance required,
design and fabrication codes, vendor and model numbers
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d.
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Utility flow and diagrams – all major inputs, outputs, stream compositions, flow rates
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e.
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Waste-water specification
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f.
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Routine maintenance, testing, replacements
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4. Process book including process control and details
of the operation:
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a.
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Aseptic design and operation, sterilization and cleaning (SIP/CIP) procedures and schedules
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b.
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batch and fed-batch operational details,
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c.
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feeding algorithm details,
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d.
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process control and monitoring strategies
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e. h istoric data of all prior
runs with the strains – access to database of prior runs
And any other information that
is necessary for being able to operate the strain in commercial settings.
Exhibit B
Initial Package
Current process book for the current strain
Amyris is using for the commercial production of farnesene and the following with respect to the all of the designated Intermediate
Strains:
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a.
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Back-ground strain design information such as strain information, genetic background, sequence information, genetic modifications
information. e.g.,
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I.
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Strain ancestor and lineage of the current strain including each of the rational or directed strain engineering changes, what
type of changes – deletion, insertion, ploidy changes, description of the changes, locus at which the changes were engineered
and what were the resulting genii of the modified strain at each step.
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b.
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Strain storage and propagation
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i.
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SOP for the overall strain storage including detailed media recipes for preserving strain
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ii.
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SOP for strain revival including steps all the way from seed vial to inoculums tanks for the propagation media for revival
of the strain
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c. Feed-stock information – ingredient
information, sourcing, specificities, testing
II. Feed-stock sources and
details of handling the feedstock
III. Testing results for content
of sugar or other impacting ingredients
IV. Seasonal variation information or data
V. Protocols for any adjustment made to feedstock
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2.
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Current best details of a fermentation run at all scales (including from inoculum to shake-flask
to 300L to 1m
3
, 40 m
3
and 200 m
3
production reactors -if not at the largest scale then information
on best scale at which this strain is current been running):
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a.
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SOP’s for media, sterilization, fill and draw
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b.
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Sampling intervals, sampling protocols
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c.
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Performance and specific testing at each step, protocols for tests at each stage
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d. Historical data of runs at all scales (including
1m
3
, 40 m
3
and 200 m
3
) to register and monitor variability
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3.
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Current best process design (including Brotas data):
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a. Detailed manufacturing process, process narrative, operating
conditions
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b.
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PFD’s design basis, heat/material balance, with identified streams
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c.
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Equipment list and material of construction – vessel specifications, identify an special modifications, performance required,
design and fabrication codes, vendor and model numbers
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d.
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Utility flow and diagrams – all major inputs, outputs, stream compositions, flow rates
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e.
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Waste-water specification
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f.
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Routine maintenance, testing, replacements
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4. Current best process book including process control and details
of the operation:
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a.
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Aseptic design and operation, design constraints, sterilization and cleaning (SIP/CIP) procedures and schedules
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b.
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batch and fed-batch operational details,
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c.
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feeding algorithm details,
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d.
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process control and monitoring strategies
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e.
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Performance data of recent runs
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Any other information that is necessary
for being able to operate the strain in commercial settings.
Exhibit C
Section 6.1 of Collaboration Agreement
Subject to Section 11 of the Second Amendment,
Section 6.1 is as follows as of the Effective Date:
6.1 Ownership.
(a) Background IP. Subject to the license grants set forth in
this Agreement, (i) TOTAL shall retain all of its right, title and interest in and to the TOTAL Background IP, and (ii) AMYRIS
shall retain all of its right, title and interest in and to the AMYRIS Background IP. Notwithstanding any other provision of this
Agreement, TOTAL Background IP shall not be deemed to be introduced as TOTAL Included IP in any aspect of R&D Activities, Improvement
Scope Activities, or Commercialization activities without an express election by TOTAL and by following the process set forth in
Section 6.1(c)(i) below.
(b) Non-Collaboration IP. Subject to the license grants set
forth in this Agreement with respect to Included IP, (i) TOTAL shall retain all of its right, title and interest in and to the
TOTAL Non-Collaboration IP, and (ii) AMYRIS shall retain all of its right, title and interest in and to the AMYRIS Non-Collaboration
IP. Notwithstanding any other provision of this Agreement, TOTAL Non-Collaboration IP shall not be deemed to be introduced as TOTAL
Included IP in any aspect of R&D Activities, Improvement Scope Activities, or commercialization activities without an express
election by TOTAL and by following the process set forth in Section 6.1(c)(i) below. Notwithstanding any other provision of this
Agreement, AMYRIS Non-Collaboration IP shall not be deemed to be introduced as AMYRIS Included IP in any aspect of R&D Activities,
Improvement Scope Activities, or commercialization activities without an express election by AMYRIS and by following the process
set forth in Section 6.1(c)(i) below, other than AMYRIS Non-Collaboration IP which is automatically deemed to be AMYRIS Included
IP as set forth in Section 6.1(c)(ii).
(c) Included IP.
(i) From time to time during the Term of this Agreement, a Party
may choose, in its sole discretion, to introduce its Non-Collaboration IP and/or its Background IP into the R&D Collaboration
to facilitate the performance of the R&D Activities, the activities of a JV Company related to a Product or under the Improvement
Scope Activities. In each such case, such Party shall provide advance written notice to the Joint Steering Committee identifying
the nature of such Non-Collaboration IP and/or such Background IP and a proposal for how such Non-Collaboration IP and/or Background
IP, as applicable, may be used in the R&D Collaboration, the activities of a JV Company related to a JV Jet Product or the
Improvement Scope Activities. If the Joint Steering Committee agrees to accept the terms under which the Non-Collaboration IP and/or
Background IP, as applicable, may be used in the R&D Collaboration or the activities of a JV Company related to a JV Jet Product
or the Improvement Scope Activities, such Non-Collaboration IP and/or Background IP, as applicable, shall become Included IP. In
any event, each Party agrees
not to assert infringement of any intellectual property it Controls
by the other Party or any of its Affiliates for asserting its rights, or performing its obligations, under the Agreement or the
documents establishing the JV Company.
(ii) Notwithstanding the following, any AMYRIS Background IP
and AMYRIS Non-Collaboration IP, in each case, encompassing general means of practicing synthetic biology, including without limitation,
methods and means to construct and test a Strain (including without limitation all related software, workflow, apparatus or arrangement
of apparatuses, knowledge database systems, processes, systems and technology for the design, selection, engineering and development
of Strains) shall be deemed AMYRIS Included IP without further action on the part of AMYRIS or the Joint Steering Committee, and
such AMYRIS Included IP may be utilized by the Parties for the performance of the R&D Activities, the activities of a JV Company
related to a Product or the Improvement Scope Activities, according to the terms of the Agreement. However, TOTAL may veto the
inclusion of selected AMYRIS Non-Collaboration IP that would otherwise constitute Included IP, but such veto must be exercised
in connection with the voting of its representatives on the Joint Steering Committee.
(iii) From time to time during the Term of this Agreement, Inventions
Controlled by a Third Party may be used in the performance of the R&D Activities, the activities of a JV Company related to
a Product and the Improvement Scope Activities. Terms and provisions relating to such Third Party Inventions shall be agreed on
in writing by the Parties on a case by case basis.
(d) Collaboration IP.
(i) AMYRIS-Owned Collaboration IP. As between the Parties, subject
to the license grants set forth in this Agreement, AMYRIS shall have sole and exclusive ownership of all right, title and interest
on a worldwide basis in and to the AMYRIS Tools IP and MEV Pathway IP conceived and reduced to practice in the performance the
R&D Activities and/or the performance of activities on behalf of the JV Company related to a Product or the means of making
the Product (“AMYRIS Owned Collaboration IP”). TOTAL hereby assigns to AMYRIS, without further consideration, all right,
title and interest that TOTAL may have from time to time (other than by virtue of the license grants in this Article 6) in any
AMYRIS Tools IP and MEV Pathway IP and shall, at AMYRIS’ reasonable expense, execute all documents and take all actions reasonably
requested by AMYRIS from time to time to perfect AMYRIS’ title to and ownership thereof.
(ii) Jointly-Owned Collaboration IP. As between the Parties,
subject to the license grants set forth in this Agreement, AMYRIS and TOTAL shall have joint ownership of all right, title and
interest on a worldwide basis in and to the New Tools IP and Main IP conceived and reduced to practice in the performance of the
R&D Activities and/or the performance of activities on behalf of the JV Company related to a Product or the means of making
the Product, other than TOTAL Owned Collaboration IP (“Jointly Owned Collaboration IP”). Each Party shall have the
right to use and exploit all Jointly-Owned Collaboration IP without duty to account to the other joint owner and without obligation
to obtain consent of the other joint owner, except as may otherwise be provided in the
Agreement or in the documents establishing the JV Company. Notwithstanding
the foregoing, a license under each Party’s respective Background IP and Non-Collaboration IP, if required for the other
Party’s use and exploitation of Jointly-Owned Collaboration IP, is not granted herein unless otherwise expressly provided
in this Article 6. Each Party shall have an undivided one half ownership interest in such Jointly-Owned Collaboration IP and each
Party hereby assigns to the other Party, without further consideration, such right, title and interest that it may have from time
to time (other than by virtue of the license grants in this Article 6) in any and all Jointly-Owned Collaboration IP as required
to effect such coownership.
(iii) TOTAL-Owned Collaboration IP. As between the Parties,
subject to the license grants set forth in this Agreement, TOTAL shall have sole and exclusive ownership of all right, title and
interest on a worldwide basis in and to Main IP and New Tools IP conceived and reduced to practice in the performance of R&D
Activities under a New Technology Project conducted under the TOTAL R&D Option (the "TOTAL-Owned Collaboration IP").
AMYRIS hereby assigns to TOTAL, without further consideration, all right, title and interest that AMYRIS may have from time to
time (other than by virtue of the license grants in this Article 6) in any such IP and shall, at TOTAL’s reasonable expense,
execute all documents and take all actions reasonably requested by TOTAL from time to time to perfect TOTAL’s title to and
ownership thereof.
(iv) Each Party shall have the right, on reasonable notice,
to inspect and review the specific records maintained by the other Party reflecting the Collaboration IP made by such other Party,
solely to the extent reasonably needed by the reviewing Party for exercising its rights or performing its obligations under this
Agreement.
(e) Improvement Scope IP. Improvement Scope IP will be (a) jointly
owned by TOTAL and AMYRIS, if the Improvement Right of First Refusal has been accepted by the corresponding Party (in a manner
analogous to the Jointly-Owned Collaboration IP as described in Section 6.1.(d)(ii)) (the "Jointly Owned Improvement Scope
IP"), or (b) owned solely by the Improving Party (TOTAL , for the “TOTAL Owned Improvement Scope IP” or AMYRIS
for the “AMYRIS Owned Improvement Scope IP”) if the Improvement Right of First Refusal has been rejected by the other
Party.
Exhibit D
List of the Member States of the European
Union
The following States are members of the
European Union as of the Effective Date:
Exhibit E
Known By-Products
1
Identified as of the Effective Date
: The following compositions: (i) dead yeast cells, (ii) ethanol, (iii) farnesol,
(iv) farnesene dimer, (v) triglyceride, (vi) hexahydrofarnesol, (vii) hydrogenated farnesene dimer, or (viii) combination of items
in (i) through (vii) with or without farnesene and/or farnesane.
2
Identified after the Effective Date
:
ANNEX D
LICENSE AGREEMENT
REGARDING DIESEL FUEL IN THE EU
License Agreement regarding
Diesel Fuel in the EU (the “
A greement
”) is entered into on July ____, 2015 (the “
Effective D ate
”)
by and among
AMYRIS,INC .
,a corporation organized and existing under the laws of the state of Delaware, United States of
America, with its principal place of business at 5885 Hollis Street, Suite 100, Emeryville, California 94608 (“
AMYRIS
”), and Total Energies Nouvelles Activités USA,
a société par actions simplifiée
organized
under the laws of the Republic of France, with its principal place of business at 24 Cours Michelet, 92800 Puteaux, France (“
TOTAL
”).
AMYRIS and TOTAL may each be referred to herein individually as a “
Party
,” and collectively as the “
P
arties
.”
B A C KGROUND
WHEREAS, AMYRIS and
Total Gas & Power USA Biotech, Inc. entered into a technology license, research, development, commercialization and collaboration
relationship pursuant to that certain Technology License, Development, Research and Collaboration Agreement, dated as of June 21,
2010 (the “
Original C o
WHEREAS, AMYRIS and
TOTAL entered into an amendment of the Original Collaboration Agreement as of November 23, 2011 (“
First Amendment
”),
and subsequently further amended the Original Collaboration Agreement effective as of July 31, 2012, (“
Original Second
Amendment
”), which amendment superseded the First Amendment with respect to the matters set forth therein and contemplated
that AMYRIS would grant to a joint venture entity certain licenses and other rights to use certain intellectual property of AMYRIS
to Make and Sell JV Products (as defined in the Original Second Amendment) and conduct certain related activities, in each case,
according to the terms and conditions set forth in a license agreement;
WHEREAS, on November
29, 2013, AMYRIS and TOTAL established Total Amyris BioSolutions, B.V., a joint venture entity (“
JVCO
”), in
order to develop and commercialize JV Products as contemplated in the Original Second Amendment, and in connection with the establishment
of JVCO: (i) AMYRIS entered into a license agreement with JVCO, effective as of December 2, 2013 (“
JVCO License Agreement
”),
granting to JVCO the contemplated licenses and rights with respect to the JV Products, and (ii) AMYRIS and TOTAL entered into a
letter agreement to clarify (x) the obligations of AMYRIS with regard to the restrictions to be incorporated in its future agreements
regarding the production and commercialization of farnesene and/or farnesane and (y) Section 4.1 of the IP License Agreement (as
defined below);
WHEREAS, AMYRIS and
TOTAL amended the Original Second Amendment effective as of April 1, 2015, to authorize TOTAL to conduct certain hydrogenation
activities and to clarify the licenses to be granted by TOTAL to AMYRIS and JVCO regarding intellectual property created from such
activities (as amended, the “
Second
7524602 1
Amendment
”, and the Original
Collaboration Agreement, as amended by the First Amendment and the Second Amendment, and as may be further amended from time-totime,
the “
Collaboration Agreement
”).
WHEREAS, on the date
of this Agreement, the Parties now wish to bifurcate the rights previously granted to JVCO, with JVCO retaining the licenses and
rights under the JVCO License Agreement only with respect to JV Products for use as, and in, jet fuels pursuant to the “
Amended
and Restated JVCO Jet Fuel License Agreement
” entered of even date herewith, and the licenses and rights under the JVCO
License Agreement with respect to JV Products for use as, and in, diesel fuels reverting to AMYRIS except as provided herein;
WHEREAS, with regard
to the reverted rights with respect to products for use as, and in, diesel fuels, the Parties have agreed that AMYRIS would grant
certain licenses and rights to TOTAL and would retain the remainder of such rights for itself and its Affiliates;
In order to make such
license grants to TOTAL and to address certain related matters, the Parties desire to enter into this Agreement, subject to the
terms and conditions hereof;
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth below and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
ARTICLE 1. DEFINITIONS
1.1 References to definitions
in the Collaboration Agreement, including the Second Amendment, are to such definitions as they exist as of the Effective Date.
1.2 “
Affiliate
”
shall have the meaning set forth in Section 1.1 of the Collaboration Agreement; except that (i) Novvi LLC and its Affiliates (collectively,
“
N \ovvi
”) shall not be deemed an Affiliate of AMYRIS under this Agreement unless AMYRIS’ equity ownership
of a Novvi entity exceeds 50%, at which time, the applicable Novvi entity(ies) will be considered an Affiliate of AMYRIS for purposes
of this Agreement, (ii) Company shall not be considered an Affiliate of AMYRIS nor an Affiliate of TOTAL and neither TOTAL nor
AMYRIS shall be considered an Affiliate of Company, and (iii) SMA Indústria Química S.A and its Affiliates (collectively,
“
SMA
”) shall not be deemed an Affiliate of AMYRIS under this Agreement unless AMYRIS’ equity ownership
of an SMA entity exceeds 50%, at which time, the applicable SMA entity(ies) will be considered an Affiliate of AMYRIS for purposes
of this Agreement. For clarity, the Affiliates of AMYRIS as of the Effective Date include: AMYRIS Fuels LLC, AB Technologies LLC,
and AMYRIS Brasil Ltda.
1.3 “
AMYRIS
Certification Materials
” means the Diesel Certification Materials (as defined in Section 7 of the Second Amendment) made
or generated by or on behalf of AMYRIS.
1.4 “
AMYRIS
Family
” means AMYRIS and its Affiliates.
1.5 “
AMYRIS
Farnesene Included IP
” means any (i) AMYRIS Background IP (as defined in the Collaboration Agreement) and any AMYRIS
Non-Collaboration IP (as defined in the Collaboration Agreement), in each case that is Controlled by AMYRIS or its Affiliates as
of the Second Amendment Date, and (ii) AMYRIS Non-Collaboration IP developed after the Second Amendment Date (other than by a Third
Party Acquirer), in each case, that (x) encompass general means of practicing synthetic biology or (y) are necessary or useful
for the R&D Activities (as defined in the Collaboration Agreement) contemplated in connection with the Biofene Development
Project.
1.6 “
AMYRIS
Farnesene Production IP
” means any Farnesene Production IP owned or Controlled by AMYRIS or its Affiliates (other than
a Third Party Acquirer).
1.7 “
AMYRIS
Hydrogenation IP
” means any AMYRIS Background IP and AMYRIS Non-Collaboration IP in each case that is Controlled by AMYRIS
or its Affiliates (other than a Third Party Acquirer) and is necessary or materially useful in order to hydrogenate farnesene into
farnesane.
1.8 “
AMYRIS
Included IP
” shall have the meaning provided in Section 1.4 of the Collaboration Agreement.
1.9 “
AMYRIS
Licensed IP
” means, all Inventions to the extent owned or Controlled by AMYRIS or its Affiliates (other than a Third
Party Acquirer) as of the Effective Date or at any time thereafter during the Term until thirty (30) years following the Effective
Date including, AMYRIS Technology (as defined in Section 1.11 of the Collaboration Agreement), AMYRIS-Owned Collaboration IP (as
defined in Section 1.9 of the Collaboration Agreement), AMYRIS Hydrogenation IP, AMYRIS-Owned Improvement Scope IP, AMYRIS’
interest in Jointly-Owned Improvement Scope IP (as defined in Section 6.1(e) of the Collaboration Agreement), Jointly Owned Collaboration
IP (as defined in Section 6.1(d)(ii) of the Collaboration Agreement), AMYRIS Farnesene Included IP and AMYRIS Production IP (as
defined herein), and any Invention(s) licensed to AMYRIS by Novvi pursuant to the IP License Agreement entered by AMYRIS and Novvi
on March 26, 2013 and amended on July _____, 2015, (the “
IP License Agreement
”), and subject to the terms of
Section 2.A(v) below, the AMYRIS Certification Materials, in each case that is necessary or, in the case of the AMYRIS Farnesene
Production IP, useful (i) to develop and/or optimize the processes of making farnesene from the Commercial Farnesene Strain and
purifying it from the fermentation broth and converting farnesene into farnesane and/or (ii) to Make and Sell (as defined in Section
1.75 of the Collaboration Agreement) Licensed Products. For purposes of this definition and for Sections 2(A)(i)(a), 2(A)(i)(c),
2(A)(i)(d), and 7(D), an item of AMYRIS Licensed IP will be deemed to be necessary with respect to a particular activity if it
is actually used by the TOTAL in carrying out such activity.
1.10 “
AMYRIS-Owned
Improvement Scope IP
” means any and all Improvement Scope IP that is owned by AMYRIS pursuant to Section 6.1(e) of the
Collaboration Agreement.
1.11 “
Banked
Strain
” has the meaning set forth in Section 2.D hereof.
1.12 “
Biofene
Development Project
” means the project and activities described in the Biofene Development Project Plan.
1.13 “
Biofene
Development Project Plan
” means the written Development Project Plan agreed by AMYRIS and TOTAL for the research, development,
and scale-up production activities to be conducted pursuant to the Second Amendment (as amended from time to time, if applicable,
pursuant to the Collaboration Agreement).
1.14 “
Biofene
Development Project Extension Agreement
” means a written contract between TOTAL and AMYRIS, negotiated pursuant to the
process set forth in Section 2.A(vii) hereof, under which the Parties extend the term of the Biofene Development Project beyond
July 31, 2016 to set forth the Strain engineering and other activities AMYRIS will perform during such extension period, and the
payments TOTAL will make to AMYRIS for AMYRIS’s Biofene Development Project-related activities during this extension period.
1.15 “
By-Product
”
means any composition other than a Licensed Product that is produced (and has been produced in greater than
de minimis
levels
in a manufacturing process that is at least a 300 liter scale) (a) as a direct consequence of the manufacture of a Licensed Product
by TOTAL or its Affiliates, Subcontractors or sublicensees, and (b) except in the case of dead yeast cells, with a weight that
is less than 40% of the weight of the applicable Licensed Product concurrently produced and, in each case, any composition resulting
from further purification processing.
1.16 “
Change
of Control
” means the occurrence of any of the following with respect to AMYRIS: (i) the consolidation of AMYRIS with,
or the merger of AMYRIS with or into, another “person” (as such term is used in Rule 13d-3 and Rule 13d-5 of the Exchange
Act), or the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially
all of the assets of the AMYRIS and its subsidiaries taken as a whole, or the consolidation of another “person” with,
or the merger of another “person” into, AMYRIS, other than in each case pursuant to a transaction in which the “persons”
that “beneficially owned” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly, the Voting Shares of AMYRIS immediately prior to the transaction “beneficially own”, directly or indirectly,
Voting Shares representing at least a majority of the total voting power of all outstanding classes of voting stock of the surviving
or transferee person; (ii) the adoption by AMYRIS of a plan relating to the liquidation or dissolution of AMYRIS, (iii) the consummation
of any transaction (including any merger or consolidation) the result of which is that any “person” becomes the “beneficial
owner” directly or indirectly, of more than 50% of the Voting Shares of the AMYRIS (measured by voting power rather than
number of shares); or (iv) the first day on which a majority of the members of the AMYRIS board of directors does not consist of
Continuing Directors. As used in this definition, “
Voting Shares
” of any Person means capital shares or capital
stock of such Person which ordinarily has voting power for the election of directors (or persons performing similar functions)
of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.
As used in this definition, “
Continuing Director
” means, as of any date of determination, any member of the
AMYRIS board of directors who (i) was a
member of the AMYRIS Board of Directors
on July 31, 2012 or (ii) was nominated for election or elected to the AMYRIS board of directors with the approval of a majority
of the Continuing Directors who were members of the AMYRIS board of directors at the time of such nomination or election and who
voted with respect to such nomination or election; provided that a majority of the members of the AMYRIS board of directors voting
with respect thereto shall at the time have been Continuing Directors. Notwithstanding the foregoing, an AMYRIS Change of Control
shall not be deemed to have occurred in connection with (A) any acquisition of Amyris by TENA USA (or any of its Affiliates) or
(B) any change in the board of directors of AMYRIS such that it is no longer composed of a majority of Continuing Directors if
any designee of TENA USA (or any of its Affiliates) to the board of directors of AMYRIS approves the nomination or election of
any member of the board of directors of AMYRIS that is not a Continuing Director or if TENA USA (or any of its Affiliates) votes
any Voting Shares in favor of the election of any member of the board of directors of AMYRIS that is not a Continuing Director.
1.17 “
Commercial
Farnesene Strain
” means any Commercial Strain (as defined in Section 1.25 of the Collaboration Agreement) designed for
the production of farnesene.
1.18 “
Commercial
Scale
” means with respect to a particular Commercial Farnesene Strain, the use of such Strain to reproducibly produce
farnesene of commercially quality in commercial quantities and at commercially reasonable cost, as shown by production of [*]
1.19 “
Commercial
Technology Transfer Package
” has the meaning set forth in Section 2.D(i).
1.20 “
Confidential
Information
” has the meaning set forth in Section 6.A hereof.
1.21 “
Control
” or “
Controlled
” means, with respect to any Invention, Patent or other intellectual property right, that the applicable Party or its
Affiliates owns or has a license to such Invention, Patent or other intellectual property right and such applicable Party or its
Affiliates has the ability to disclose the same to the other Party and to grant the other Party a license or a sublicense (as applicable)
under the same as provided in this Agreement without violating the terms of any agreement or other arrangement with any Third Party.
1.22 “
Diesel
Product
” means one or more fermentation-produced isoprenoid(s) that may or may not be hydrogenated or hydroprocessed,
which when blended with petroleum diesel, meet the ASTM D975 specification, the EN590 European standard or the equivalent of (or
successor to) either such standard, in each case, for use as a diesel fuel.
1.23 “
Dispute
”
means any dispute, claim or controversy that arises between the Parties in connection with this Agreement or any agreement or instrument
delivered in
[*] 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.
connection herewith, or the negotiation,
execution, interpretation, breach, termination invalidity or enforcement hereof or thereof.
1.24 “
Executive
Officers
” means (a) in the case of AMYRIS, the Chief Commercial Officer or such other officer designated in writing by
the Chief Executive Officer, and (b) in the case of TOTAL, an executive officer nominated by TOTAL at the time of the Dispute.
1.25 “
Farnesane
Diesel Product
” means a Diesel Product that is farnesane, wherein the isoprenoid is farnesene.
1.26 “
Farnesene
Production IP
” means any and all (a) AMYRIS Farnesene Included IP, (b) Collaboration IP and (c) Improvement Scope IP,
in each case that is necessary or useful to (i) produce farnesene from fermentation of a Farnesene Strain or (ii) purify such farnesene
from the fermentation medium to hydrogenation grade.
1.27 “
Farnesene
Strain
” means any Strain that produces farnesene.
1.28 “
Field
”
means diesel fuel applications.
1.29 “
Governmental
Entity
” shall have the meaning set forth in Section 1.54 of the Collaboration Agreement.
1.30 “
Improvement
Scope IP
” means any and all Inventions that are conceived or reduced to practice on or after the Effective Date of the
Collaboration Agreement by (a) any employee, agent or Third Party contractor of TOTAL or any of its Affiliates, (b) any employee,
agent or Third Party contractor of AMYRIS or any of its Affiliates, or (c) any of the foregoing jointly, in each case, in the performance
of Improvement Scope Activities (x) during the term of the Collaboration Agreement or (y) during the term that a Licensed Product
is being commercialized by TOTAL.
1.31 “
Indemnified
Party
” has the meaning set forth in Section 5.A(iii) hereof.
1.32 “
Indemnifying
Party
” has the meaning set forth in Section 5.A(iii) hereof.
1.33 “
Infringement
”
has the meaning set forth in Section 3.D(i) hereof.
1.34 “
Initial
Package
” has the meaning in Section 2.D(iii)(a) hereof.
1.35 “
Intermediate
Strain(s)
” means, at a given point in time, (i) the Farnesene Strain then most recently used by AMYRIS for the commercial
Manufacture of farnesene, if any, and (ii) up to ten (10) other Strains developed in the Biofene Development Project that are most
likely to achieve the goals of the Biofene Development Project. The four Intermediate Strains to be initially escrowed as part
of the Initial Package have been selected by the Management Committee (as defined in the Collaboration Agreement). The Management
Committee pursuant to the Second Amendment may periodically designate additional Intermediate Strain(s) for inclusion as Banked
Strains to replace any or all of the four (4) initial Banked Strains, provided that if the Management Committee is unable to
agree upon whether a particular Strain
should be designated as an Intermediate Strain, then the TOTAL representative(s) to the Management Committee shall have the right
to make such decision with respect to eight (8) (but not more) of the subject Strains but in no event may the TOTAL representatives(s)
designate more than eight (8) Strains for escrow. Notwithstanding the above, at any given time, there shall be no more than fourteen
(14) Banked Strains.
1.36 “
Invention(s)
”
means, whether or not patentable, any inventions, information, technology, methods, compositions of matter, formulae and other
subject matter (including all related software, workflow, apparatus or arrangement of apparatuses, knowledge database systems,
processes, systems and technology for the design, selection, engineering, development and manufacture of Strains, Compounds or
Products (each, as defined in the Collaboration Agreement), the Strains and the Compounds and the Products themselves, chemistry,
process engineering, materials transformation, Strain or Compound or Product specifications, know-how, trade secrets, improvements
and all intellectual property rights therein or pertaining thereto.
1.37 “
IP License
Agreement
” has the meaning set forth in Section 1.10.
1.38 “
Knowledge
”
means actual or constructive knowledge of any officer of AMYRIS.
1.39 “
Known
By-Product
” means a By-Product that is specified on Exhibit D as of the Effective Date or added to Exhibit D in accordance
with Section 2.H.
1.40 “
Legal
Requirement
” means, with respect to any Party, any federal, state or local law, constitution, treaty, ordinance, code,
edict, writ, decree, rule, regulation, judgment, ruling, injunction or requirement issued, enacted, adopted, promulgated, implemented
or otherwise put into effect by or under the authority of any Governmental Entity that is binding upon or applicable to such Party,
including Environmental Laws (as defined in the Collaboration Agreement) and any of the foregoing applicable to genetically modified
microorganisms, related to food, drugs, health or safety.
1.41
“Licensed
Product”
means (i) farnesene or farnesane for use in Diesel Product and (ii) Farnesane Diesel Product.
1.42 “
Lien
”
means any security interest, pledge, mortgage, lien, charge, adverse claim of ownership or use, or other encumbrance of any kind.
1.43 “
Manufacture
”
means make and have made (including practicing and using for the foregoing purposes).
1.44 “
Negotiation
Period for Biofene Development Project Extension
” means the ninety (90) day period described in Section 2.A(vii).
1.45 “
Patent(s)
”
means (a) all national, regional and international patents and patent applications, including provisional patent applications;
(b) all patent applications filed either from a patent or patent application described in clause (a) or from an application
claiming priority to a patent or patent
application described in clause (a), including divisionals, continuations, continuations-in-part, provisionals, converted provisionals,
and continued prosecution applications; (c) any and all patents that have issued or in the future issue from the foregoing patent
applications (clauses (a) and (b)), including utility models, petty patents and design patents and certificates of invention; (d)
any and all extensions or restorations by existing or future extension or restoration mechanisms, including revalidations, reissues,
re-examinations and extensions (including any supplementary protection certificates and the like) of the foregoing patents or patent
applications (clauses (a), (b) and (c)); and (e) any similar rights, including so-called pipeline protection, or any importation,
revalidation, confirmation or introduction patent or registration patent or patent of additions to any such foregoing patent applications
and patents.
1.46 “
Person”
means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated association, joint venture or other similar entity
or organization, including a government or political subdivision, department or agency of a government.
1.47
“Potential
Third P arty Conflict
” has the meaning set forth in Section 2.H(ii).
1.48 “
Program
Strain
” means a Commercial Strain (as defined in Section 1.25 of the Collaboration Agreement) designed for the production
of farnesene that satisfies the criteria of a Commercial Farnesene Strain.
1.49 “
Second
Amendment Date
” means July 30, 2012.
1.50 “
S train
”
means any microorganism, including bacteria, yeast, higher fungi and algae, that is tested, modified or optimized to produce compounds
according to the alteration of metabolic pathways, including AMYRIS’ genetically modified yeast strain that includes the
Mevalonate Pathway (as defined in the Collaboration Agreement) from which it is capable of making an isoprenoid compound.
1.51
“Strain
Improvement Technology
” means any Invention Controlled by AMYRIS or its Affiliates (other than a Third Party Acquirer)
that is necessary or materially useful to perform strain engineering or other genetic manipulation (by any means) in order to genetically
manipulate any Strain(s) for the purpose of developing or improving a Farnesene Strain.
1.52 “
Subcontractor
”
has the meaning set forth in Section 2.C(ii) hereof.
1.53 “
Subject
Third P arty Agreement
” shall have the meaning set forth in Section 4.D(ii) hereof.
1.54 “
Successful
Commercial Transfer
” means with respect to a particular Commercial Farnesene Strain, the use of such Strain to reproducibly
produce farnesene at Commercial Scale.
1.55 “
Term
”
has the meaning set forth in Section 7.A hereof.
1.56 “
Territory
”
means the member countries of the European Union as of the Effective Date, which countries are listed in
Exhibit C
hereto.
1.57 “
Third
P arty
” means a Person other than AMYRIS or TOTAL or an Affiliate of AMYRIS or TOTAL.
1.58 “
Third
Party Acquirer
” means (i) a Third Party that acquires AMYRIS in a Change of Control or acquires substantially all of
the assets of AMYRIS and (ii) any Affiliates of such Third Party (other than the members of AMYRIS Family as of immediately prior
to the AMYRIS transaction described in subparagraph (i)).
1.59 “
Third
Party Agreement
” means any agreement that was entered or is entered by AMYRIS with a Third Party pursuant to which AMYRIS
obtained or obtains a license, with the right to sublicense, of any Inventions, including without limitation Patents, within the
AMYRIS Licensed IP.
1.60 “
Third
Party Conflict
” has the meaning set forth in Section 2.H(i).
1.61 “
TOTAL
Indemnitees
” has the meaning set forth in Section 5.A(ii) hereof.
1.62 “
TOTAL
Strains
” means the Commercial Farnesene Strain(s), the Intermediate Strain(s) and any other Strains that are genetic
manipulations or modifications of any of the foregoing.
1.63 “
TOTAL
Independent Strain Engineering Patents
” means any issued Patent owned by TOTAL or a wholly-owned Affiliate of TOTAL with
respect to an Invention conceived or reduced to practice by or on behalf of the TOTAL in connection with the exercise of the license
granted in Section 2.A(i)(b) of this Agreement that claims (a) a Strain including a Mevalonate Pathway that produces one or more
isoprenoid compounds, or (b) methods of using such Strain outside the Field.
ARTICLE 2. LICENSE GRANT AND RELATED
TERMS
A.
License to Make
and Sell Licensed Products
.
(i)
License Grants
.
Subject to Section 2.F below and Article 7, AMYRIS and its Affiliates hereby grant to TOTAL the following perpetual and irrevocable
licenses, with the right to sublicense through multiple tiers pursuant to Section 2.C below, for the Licensed Products:
(a) a non-exclusive,
worldwide (subject to Section 2.E(iv) below), royalty-free (subject to Section 2.B below) right and license under the AMYRIS Licensed
IP in each case that is necessary or, in the case of the AMYRIS Farnesene Production IP, useful to develop and/or optimize the
processes of making farnesene from a Commercial Farnesene Strain, purify farnesene from the fermentation broth, and convert
farnesene into farnesane, in each case
solely for TOTAL to exercise its licenses under clauses (c) and (d) below;
(b) a non-exclusive,
worldwide (subject to Section 2.E(iv) below), royalty-free (subject to Section 2.B below) right and license under the Strain Improvement
Technology to optimize and/or engineer, by any means, any Farnesene Strain for use in the Field (including but not limited to Commercial
Farnesene Strains with performance characteristics that exceed Commercial Scale), which license may be practiced upon the earliest
to occur of the following, but in no event before the expiration of the Biofene Development Project: (1) AMYRIS fails to timely
respond or declines to enter into negotiations with TOTAL in respect of a Biofene Development Project Extension Agreement under
Section 2.A(vii), (2) the expiration of the Negotiation Period to Extend the Biofene Development Project, but only if, the Parties
have not executed a Biofene Development Project Extension Agreement as of such expiration, or (3) the expiration of the Biofene
Development Project Extension Agreement. Such license may be practiced for so long as TOTAL is pursuing the development and/or
Manufacture of farnesene for use in the Field;
(c) an exclusive (subject
to Section 2.A(iii)(a)(1) and 2.A(iii)(b)), royalty-free (subject to Section 2.A(vi) and Section 2.B below) right and license under
the AMYRIS Licensed IP, in each case that is necessary or, in the case of the AMYRIS Farnesene Production IP, useful, to import,
offer for sale and sell Licensed Products within the Territory for use in the Field;
(d) a royalty-bearing
(to be negotiated as described in the last sentence below), right and license under the AMYRIS Licensed IP in each case that is
necessary or, in the case of the AMYRIS Farnesene Production IP, useful to Manufacture Licensed Products (x) within the Territory
and (y) outside the Territory (subject to Section 2.E(iv) below), but, in each case, solely for purposes of Manufacturing, importing,
offering for sale, and selling such Licensed Products in the Territory for use in the Field. The license granted under subsection
(x) shall be co-exclusive with AMYRIS while the license in (y) shall be non-exclusive. Prior to Licensed Products first being Manufactured
per the license in this clause (c), TOTAL and AMYRIS will, in good faith, negotiate commercially reasonable terms on a “most
favored nation basis” for royalties to be paid to AMYRIS by TOTAL on the sale of such Manufactured Licensed Product in the
Territory; and
(e) a non-exclusive,
royalty-free (subject to Section 2.B below) right and license under the AMYRIS Licensed IP, in each case, that is necessary to
offer for sale, sell and import any Known By-Product(s) for any uses other than for use(s) precluded by Third Party Conflicts;
provided, however, that this license shall not expand any obligation that AMYRIS may have to disclose the AMYRIS Licensed IP beyond
what is set forth elsewhere in this Agreement. For clarity, the production of By-Products by TOTAL or its sublicensees or Subcontractors
in connection with the practice of the right to Manufacture Licensed Products pursuant to Section 2.A(d) above shall not be a breach
of this Agreement.
For clarity, there (i) shall be no volume
or production limits on the foregoing licenses set forth in clauses (a), (c), (d), and (e), and (ii) the licenses granted in clauses
(a)-(e) above include the right to Manufacture and, solely in the Territory for use in the Field, sell farnesane made with farnesene
produced via the exercise of such licenses.
(ii)
Limited License
.
The licenses granted TOTAL above (a) allow it to conduct licensed activities with respect to (x) the Licensed Products solely for
use in the Field and/or (y) Known By-Products (on a case-by-case basis) solely for use outside the applicable Third Party Conflict(s),
and (b) with respect to Sections 2.A(i)(b), include the right to optimize or modify the applicable TOTAL Strain(s) by any means.
Upon termination of the license granted in Section 2.A(i)(b), unless otherwise agreed in writing by the Parties, at AMYRIS’
written request, TOTAL shall destroy all quantities of the Intermediate Strain(s) and any Strains developed under such license
based on or using the Intermediate Strain(s) other than the Commercial Strain(s).
(iii)
AMYRIS Retained
Rights; TOTAL’s ROFR regarding Certain AMYRIS Manufacturing of Licensed Product in the EU
. AMYRIS retains (a) rights
to Manufacture Licensed Products in the Territory but only for (1) sale within the Territory to TOTAL or its designees and (2)
use, offer for sale, and sale outside of the Territory, (b) the right to import Licensed Products into the Territory but only for
sale to TOTAL and its designees, (c) rights to Manufacture Licensed Products outside the Territory, (d) rights to conduct activities
within the Improvement Scope as permitted under the Collaboration Agreement and the conduct of the Biofene Development Project,
(e) the exclusive right to sell and offer for sale the Licensed Products outside the Territory, and (f) the exclusive, worldwide
rights to Make and Sell and otherwise exploit products for use outside the Field, including the right to Manufacture farnesene
and/or farnesane within or outside of the Territory for use in such other products. If, during the Term, AMYRIS desires to issue
an offer, or receives an offer from a Third Party, to make (or have a Third Party make) Licensed Products in the Territory per
subclause (a) above or intends on its own to begin the construction of a manufacturing facility in the Territory to make such Licensed
Products (the “
Production Offer
”), AMYRIS shall provide a written notice (the “
Right of First Refusal
Notice
”) of such Production Offer (which shall contain a copy of all relevant terms of the Production Offer) to TOTAL.
The Right of First Refusal Notice shall also contain an irrevocable offer by Amyris to enter into an agreement with TOTAL to participate
in the construction and ownership of such facility or make such Licensed Products in the Territory at the same price and upon terms
and conditions that are no less favorable to TOTAL than those that are proposed by Amyris or offered by a Third Party. TOTAL shall
have the right and option, within sixty (60) Business Days after the date that the Right of First Refusal Notice is delivered to
accept such offer. For clarity, TOTAL’s rights in the prior sentence do not apply to any proposed facility for the Manufacture
within the Territory of farnesene and/or farnesane that will be used, within or outside of the Territory, solely for one or more
non-Licensed Product(s).
(iv)
Future Licensed
Product Supply Agreement
. If AMYRIS is Manufacturing Licensed Product and TOTAL desires to purchase some of such Licensed Product
from AMYRIS to offer for sale and sell it for use in the Field in the Territory, the Parties will, in good faith, negotiate commercially
reasonable terms, which will include a
“most favored nation basis”
pricing mechanism (based on similarity of markets, geographies, uses, quantities, etc.), for AMYRIS to supply TOTAL with agreed
upon quantities of such Licensed Product.
(v) General
.
(a)
Survival
.
Except as provided in Section 2.A(i)(b) or in Section 7.C, the licenses granted to TOTAL in Article 2 shall be irrevocable until
the end of the Term and remain in full force and effect during the Term, notwithstanding any breach or alleged breach of the Collaboration
Agreement or any termination or expiration of the Collaboration Agreement. For clarity, the licenses granted to TOTAL shall terminate
upon the earlier of (i) expiration of the Term and (ii) termination of this Agreement pursuant to Section 7.C.
(b)
Licensed Patent
List
. The Patents existing as of the Effective Date within the AMYRIS Licensed IP are those set forth in a letter provided
by AMYRIS to TOTAL of even date herewith. Upon TOTAL first becoming eligible to practice the license granted in Section 2.A(i)(b),
AMYRIS shall provide to TOTAL a list of Patents then currently existing within the Strain Improvement Technology. During the Term,
AMYRIS shall provide to TOTAL at least semi-annually a complete and accurate written updated list of all Patents within the AMYRIS
Licensed IP and, if TOTAL is eligible to practice the license granted in Section 2.A(i)(b), the Strain Improvement Technology;
provided, however, that such obligation shall cease (1) with respect to AMYRIS Licensed IP as of the expiration of the last to
expire of the Patents that are included in the AMYRIS Licensed IP at the time of the first commercial sale of a Licensed Product
or if no such sale has occurred by twenty (20) years after the Effective Date, as of such date, and (2) with respect to the Strain
Improvement Technology upon the existence of (x) a Suitable Commercial Strain or (y) the achievement of a Successful Commercial
Transfer of a Commercial Farnesene Strain.
(vi)
AMYRIS Certification
Materials
. If TOTAL wishes to use any AMYRIS Certification Materials to sell, as certified, a Farnesene Diesel Product for
use in the Field in the Territory, then TOTAL shall notify AMYRIS and shall be obligated to reimburse AMYRIS for the documented
amounts incurred by AMYRIS in generating the applicable AMYRIS Certification Materials after June 21, 2010. TOTAL shall pay such
amounts to AMYRIS within thirty (30) days of receipt of an invoice therefor unless otherwise agreed in writing by the Parties.
(vii)
Extension of
the Biofene Development Project
. At any time prior to the end of the Biofene Development Project (i.e., July 31, 2016), TOTAL
may provide a written request that AMYRIS enter into negotiations regarding an extension of the Biofene Development Project, per
a Biofene Development Project Extension Agreement, with the objective of generating one or more Commercial Farnesene Strains for
use in the Field (including but not limited to Commercial Farnesene Strains with performance characteristics that exceed the minimal
requirements for Commercial Farnesene Strain). AMYRIS will have fourteen (14) days after receipt of such notice to notify TOTAL
whether it wishes to participate in such negotiations. If AMYRIS timely
notifies TOTAL, the Parties will negotiate
in good faith the terms of a Biofene Development Project Extension Agreement for ninety (90) days (the “
Negotiation Period
for Biofene Development Project Extension
”). If AMYRIS fails to timely respond to TOTAL’s notice, Amyris declines
to participate in such negotiations, or if the Parties cannot reach agreement on the terms of such Biofene Development Project
Extension Agreement within the Negotiation Period for Biofene Development Project Extension, then TOTAL and AMYRIS have no more
obligations to attempt to extend the Biofene Development Project and in such case, but in no event before the expiration of the
Biofene Development Project, TOTAL may practice the license in Section 2.A.(b).
B.
Third Party Agreements
.
(i) TOTAL acknowledges that certain Patents
and/or Inventions within the AMYRIS Licensed IP have been or may be licensed to AMYRIS pursuant to one or more Third Party Agreement(s),
and that the sublicenses granted by AMYRIS to TOTAL with respect to the AMYRIS Licensed IP that is subject to any such Third Party
Agreement(s) are subordinate to the applicable terms of the applicable Third Party Agreement. In the event that such terms would
impose any obligations on TOTAL beyond those set forth in this Agreement, AMYRIS shall promptly notify TOTAL of such terms of any
Third Party Agreement so that TOTAL will be informed of such terms. If AMYRIS fails to promptly disclose any such terms, then TOTAL
shall have no responsibility to comply with the non-disclosed terms or liability for failing to so comply. In the event that the
licenses granted hereunder include a sublicense under the IP License Agreement, TOTAL acknowledges that such sublicense shall be
subject to Section 2.2 thereof.
(ii) TOTAL further acknowledges that, with
respect to Patents and/or Inventions within the scope of the AMYRIS Licensed IP or the Strain Improvement Technology, as applicable,
that are licensed pursuant to a Third Party Agreement to AMYRIS or its applicable Affiliate after the completion of the Biofene
Development Project, the sublicense granted by AMYRIS to TOTAL may result in payment obligations to the Third Party for the grant
and/or practice of such sublicense to TOTAL. In such a case, TOTAL shall only receive such a sublicense if it agrees in writing,
in a form reasonably acceptable to AMYRIS, to pay any such amounts due for the grant of a sublicense to TOTAL or practice of such
a sublicense by TOTAL or its sublicensees (which payments may include milestone payments and/or royalties on product sales), and
to otherwise comply with the terms of such Third Party Agreement.
(iii) In the event of
the filing of a bankruptcy petition under Title 11 of the United States Code (the “
Bankruptcy Cod e
”) by or
against a licensor of intellectual property to AMYRIS under a Third Party Agreement(s) (the “
Third P arty Licensor
”),
AMYRIS hereby assigns to TOTAL the right to make the election set forth in Section 365(n)(1)(B) of the Bankruptcy Code (the “
365(n)E
lection
”) if Third Party Licensor as debtor in possession, or a trustee on its behalf, rejects the Third Party Agreement
pursuant to Section 365 of the Bankruptcy Code; provided, however, that such 365(n) Election must be made by TOTAL no later than
the earlier of (x) seven (7) Business Days after AMYRIS has provided written notice to TOTAL of any rejection of the Third Party
Agreement and (y) five (5) Business Days prior to any date set forth in an order of
the bankruptcy court having jurisdiction
over the bankruptcy case of Third Party Licensor as the date by which any such Section 365(n) Election must be made, which deadline
shall be provided in writing to TOTAL by AMYRIS within two (2) Business Days after AMYRIS receives written notice of same from
such Third Party Licensor (the “
Election Deadline
”). In the event TOTAL, having received timely notice from
AMYRIS of the rejection of such Third Party Agreement, has not timely exercised the 365(n) Election by the Election Deadline, the
right to make the 365(n) Election shall transfer to JVCO, which shall have the right to exercise such 365(n) Election in accordance
with the terms of the Amended and Restated JVCO Jet Fuel License Agreement. AMYRIS shall not have the right to make the election
set forth in Section 365(n)(1)(A) of the Bankruptcy Code prior to (1) the deadline established under the Amended and Restated JVCO
Jet Fuel License Agreement for JVCO to make such Section 365(n) Election, or (2) if AMYRIS fails to timely notify TOTAL of the
rejection of such Third Party Agreement, the date by which such Section 365(n) Election must be made. If neither TOTAL nor JVCO
timely makes the 365(n) Election, then the right to make the Section 365(n) Election shall automatically re-vest in AMYRIS, in
which case AMYRIS shall be free to exercise the 365(n) Election in its discretion.
(iv) AMYRIS agrees not
to terminate or permit termination of the Third Party Agreement containing such license by exercise of an election under Section
365(n)(1)(A) of the Bankruptcy Code without the prior written consent of TOTAL. AMYRIS acknowledges that because the sublicenses
granted by AMYRIS to TOTAL is a significant part of TOTAL’s benefits under the Agreement, TOTAL does not anticipate that
it would consent to termination of such Third Party Agreement and shall not under any circumstances be obliged to give such consent.
(v) In the event that
any royalties are due under a 365(n) Election, then, for clarity, the principles of Section 2.B(ii) shall apply to the allocation
of such royalties between the Parties. For clarity, the allocation between the Parties of any royalties due with respect to the
Third Party intellectual property subject to such 365(n) Election shall remain unaltered following such 365(n) Election.
C.
Sublicenses and
Subcontracts
.
(i) TOTAL shall have
the right to grant sublicenses, through multiple tiers, of the licenses granted to TOTAL in Section 2.A; provided, however, with
respect to the Manufacture of farnesene, TOTAL may only grant sublicenses for the Manufacture of farnesene solely for sale to TOTAL
and its other sublicensees to Make and Sell Licensed Products in the Territory in the Field. TOTAL and its Affiliates shall bind
its sublicensees to the restrictions in clauses (a) and (b) of Section 4.B(iii), and AMYRIS shall have third party beneficiary
rights with respect thereto analogous to those set forth in Section 2.C(iii)(b).
(ii) TOTAL may grant
to a Third Party (any such Third Party, a “
S u bcontractor
”) have made rights under:
(a) the licenses in
Section 2.A(i)(a) and (e), as are reasonably necessary or materially useful for such Subcontractor to Manufacture the Licensed
Products for TOTAL, including without limitation, if reasonably necessary or materially useful for the relevant activity, use of
the Commercial Farnesene Strain(s); and
(b) the license in
Section 2.A(i)(b), on and after the date on which such license may be practiced, as reasonably necessary or materially useful for
such Subcontractor to exercise such license for TOTAL to modify or improve the Farnesene Strain(s) for the Field.
Any Subcontractor shall represent, warrant
and covenant that its Manufacture and supply of farnesene or the applicable Licensed Product (or intermediate thereof) to TOTAL
will be conducted in accordance with the specifications and instructions provided by TOTAL and all applicable Legal Requirements.
(iii)
Common Provisions
.
(a) Any sublicense
or Subcontractor agreement entered into by TOTAL shall be in writing and contain (1) terms that are consistent in all material
respects with this Agreement; (2) reasonable confidentiality terms that obligate the sublicensee or Subcontractor to comply with
provisions regarding non-disclosure and non-use of AMYRIS Confidential Information at least as restrictive as those of this Agreement;
(3) if the sublicensee or Subcontractor will have access to any TOTAL Strain (such a Person or any other Person that has access
to any TOTAL Strain, a “
S train Recipient
”), material transfer and use restrictions on the TOTAL Strains consistent
with those as described in Section 2.E below, and, without limitation of Section 3.A, such other provisions governing intellectual
property as may be agreed in writing by TOTAL and AMYRIS, on a case-bycase basis; (4) a covenant limiting the practice of the licenses
to the Field and, as applicable, to the Territory, all as described in Section 4.B(iii) below; (5) provisions regarding reporting,
audit and inspection rights, including those to protect AMYRIS Farnesene Production IP and the TOTAL Strain(s), including as described
in Section 2.F; and (6) provisions to effect the transfer to TOTAL (or at the request of AMYRIS, to AMYRIS) of rights to any intellectual
property with respect to which AMYRIS is entitled to ownership, as described in Section 3.A(i) hereof).
(b) Each sublicense
or Subcontractor agreement and any other agreement that relates to use of a Strain with a Strain Recipient shall further provide
that AMYRIS shall be a third party beneficiary of such agreement by a right to directly enforce against the sublicensee or Subcontractor
or other Strain Recipient an uncured material breach of such agreement, as the case may be, if and solely to the extent that (1)
such a breach relates to activities conducted with farnesene made by a TOTAL Strain, and (2) TOTAL fails to act reasonably and
as expeditiously as possible under the circumstances to address any such breach (provided that such failure to act expeditiously
is not the result of any action or inaction on the part of AMYRIS). Each sublicensee of TOTAL hereunder and each TOTAL Affiliate
shall also be required to so designate AMYRIS as a third party beneficiary in any of its agreements with any Strain Recipient.
(c) Except as otherwise
agreed by AMYRIS and TOTAL, each sublicensee and Subcontractor and any other Strain Recipient in any agreement described in clause
(b) above shall be required (1) to obtain and maintain insurance at least as great as required to be held by TOTAL pursuant to
Section 5.B hereof and (2) to indemnify and hold harmless AMYRIS and TOTAL and their respective directors, officers, employees
and agents from and against any and all Third Party claims, suits and proceedings to the extent that such claims, suits and proceedings
arise out of, are based on, or result from its willful misconduct or gross negligence or a breach of any provision of Subcontractor’s
or sublicensees or Strain Recipient’s agreement with TOTAL (or its Affiliates or sublicensees), including any representation,
warranty or covenant thereunder.
D.
Technology Transfer
and Escrow
.
(i)
Commercial Technology
Transfer
. Following the designation of a Program Strain, to facilitate the practice by TOTAL of the licenses granted herein,
at TOTAL’s written request and expense, AMYRIS shall deliver to TOTAL the Program Strain and with regard to the then current
process for the Manufacture of Licensed Products using such Program Strain and the documentation specified on
Exhibit A
(“
Commercial
Technology Transfer Package
”).
(ii)
Commercial Strain
Technology Transfer Assistance
. At TOTAL's request and expense, to facilitate the practice of the licenses granted to TOTAL,
following the designation of the first Program Strain, AMYRIS shall provide to TOTAL (or its designee) a one-time site-specific
technology transfer of the then-current Manufacturing process for the Licensed Products using the Program Strain, which technology
transfer shall include training and on-site support (by persons directly involved in the development, use, scale-up and/or operation
of the AMYRIS Licensed IP to implement the practice of the AMYRIS Licensed IP and achieve steady state production of farnesene
and/or farnesane).
(iii)
Escrow
.
At TOTAL’s expense, AMYRIS will deposit (on the timing specified below) with a mutually agreed Third Party escrow agent (the
“
Escrow A gent
”), pursuant to one or more escrow agreements entered by such Escrow Agent, AMYRIS and TOTAL the
following (collectively, the “
Escrowed Materials
” and each escrowed Strain, a “
Banked S train
”):
(a) Continuing until
the earliest of (1) the twentieth anniversary of the Effective Date, (2) the date six (6) months after the date on which TOTAL
has the right to practice the license set forth in Section 2.A(i)(b), and (3) the achievement of a Successful Commercial Transfer,
AMYRIS shall escrow the following materials: the Intermediate Strain(s) and the then current process for the Manufacture of Licensed
Products using the Intermediate Strain(s) including the documentation specified on
Exhibit B
(“
Initial P ackage
”).
The Initial Package shall be escrowed no later than within ninety (90) days of the Effective Date, and at least semi-annually thereafter
until the occurrence of the earliest of clauses (1) -(3) of this Section 2.D(iii)(a), AMYRIS shall update the Initial Package to
reflect the then current process for the Manufacture of Licensed Products using the then current Intermediate Strain(s).
(b) No later than thirty
(30) days after the Parties’ designation of each Program Strain, if any, AMYRIS shall escrow the following materials: such
Program Strain and the then current process for the Manufacture of Licensed Products using such Program Strain, including without
limitation, the documentation specified on
Exhibit A
.
(c) TOTAL may, from
time to time, obtain access to the Escrowed Materials (at the location of the Escrow Agent) for audit purposes, i.e. to verify
that the Escrowed Materials have been properly submitted and stored (provided that if AMYRIS requests, TOTAL’s representative
may be accompanied by AMYRIS’ representative during such audit), and upon request of TOTAL and at TOTAL’s expense,
AMYRIS shall cause the Escrowed Materials to be sent to an independent laboratory reasonably agreed to by the Parties to allow
testing and to evidence that the Banked Strains remain viable and continue to produce farnesene at expected yields, in which case
such laboratory shall be considered a Strain Recipient for purposes of this Agreement.
(d) TOTAL will have
the right to a release of the Escrowed Materials from the Escrow Agent at such time as TOTAL is entitled to exercise the license
granted in Section 2.A(i)(b).
(e) AMYRIS’ obligations
to escrow under this Agreement, including the Intermediate Strain(s), the Initial Package, and, if applicable, the Program Strain(s)
and the Commercial Technology Transfer Package, shall terminate six (6) months after the date on which TOTAL has the right to practice
the license set forth in Section 2.A(i)(b). Thereafter, TOTAL shall be responsible for maintaining the Strains and information
that were the subject of the Successful Commercial Transfer. Notwithstanding anything to the contrary in this Agreement, under
no circumstances shall TOTAL receive more than an aggregate of fourteen (14) Banked Strains.
(f) Any dispute between
the Parties regarding the deposit of any Escrowed Materials or the access to any Escrowed Materials shall be resolved as provided
in Section 8.A, B and D.
(iv) Thirty (30) days
after the date on which TOTAL has the right to practice the license set forth in Section 2.A(i)(b), AMYRIS shall deliver to TOTAL
(a) for each of the Banked Strains, detailed written (or electronic) information regarding its ancestor and lineage, a description
of each of the changes (e.g., random, rational or directed modifications) made to such strain, the types of changes (e.g., deletion,
insertion, ploidy) and the locus of each genetic modification, and (b) a family tree showing the genetic relationships between
all Strains studied or prepared in connection with the activities performed under the Collaboration Agreement, to enable TOTAL
to utilize the license granted in Section 2.A(i)(b).
(v) For clarity, the
information, know-how and materials disclosed by AMYRIS in any technology transfer or otherwise hereunder shall only be used by
TOTAL and its Affiliates and sublicensees and Subcontractors pursuant to the applicable license(s) granted in Section 2.A above
and such disclosure is not intended to grant any other rights of use, express or implied.
(vi) At the time of delivery
of the Initial Package or the Commercial Technology Transfer Package, as the case may be, Amyris shall also provide to TOTAL, upon
its request, the then current capital costs at AMYRIS’ Brotas plant and its then current operating expenses for farnesene
production.
E.
Strain Restrictions
.
During the Term except as expressly provided in this Agreement (e.g., Section 2.A(i)(b)), without the express written consent of
AMYRIS, TOTAL shall:
(i) not, and shall not
allow any other Person to, (a) engage in the further optimization of any Commercial Farnesene Strain(s), including using any strain
engineering or method of genetic manipulation by any means other than random mutagenesis, and (b) use any other TOTAL Strain other
than pursuant to the license set forth in Section 2.A(i)(b), if applicable;
(ii) not, and shall not
allow any other Person to, except as expressly permitted in this Agreement, (a) reverse engineer any TOTAL Strain(s), (b) engineer
any other strain from the Commercial Farnesene Strain(s) (c) use any TOTAL Strain, or (d) distribute, disclose or transfer any
TOTAL Strain, or any AMYRIS Licensed IP, with respect to subsections (a) and (b) of this Section 2.E(ii), for any purpose; and
with respect to subsections (c) and (d) of this Section 2.E(ii), for any purpose outside of the scope of licenses granted in Section
2.A above and the subcontracting rights set forth in Section 2.C, and in all such cases, such activities shall be subject to the
terms of this Agreement;
(iii) handle, and cause
any Strain Recipient to handle, the TOTAL Strain(s) in a safe and prudent manner, in accordance with applicable law and regulations
and guidelines used by AMYRIS in its own activities involving the TOTAL Strains, as provided by AMYRIS to TOTAL;
(iv) not distribute,
disclose or transfer (or permit to be distributed, disclosed or transferred) the Intermediate Strain(s) or any other Strain that
is a genetic manipulation or modification of any Intermediate Strain (other than the Commercial Farnesene Strain(s) which TOTAL
may use as described below) in connection with the exercise of its license under Section 2.A(i)(b), if applicable, to any other
Person (except pursuant to and in accordance this Agreement) or to any location other than the following countries: Australia,
Brazil, Canada, Japan, Mexico, South Korea, United States, or the countries of the Territory. For clarity, it is understood and
agreed that TOTAL and its designees may conduct any licensed activities involving the practice of the licenses granted to TOTAL
under Section 2.A(i)(a), (d), (e), or (f) (e.g. use of a Commercial Farnesene Strain for production of Licensed Products as well
as any downstream processing of Licensed Products) in any location such entities deem appropriate; provided, if TOTAL or its designees
intend to conduct the Manufacture of farnesene in any country other than: Australia, Brazil, Canada, Japan, Mexico, South Korea,
United States and the countries of Territory, TOTAL shall notify AMYRIS at least sixty (60) days prior to the selection of the
applicable country as a farnesene manufacturing location. If AMYRIS believes that the farnesene Manufacture in such identified
country would pose material risk that the conduct of such activities could jeopardize any Commercial Farnesene Strain, including
loss of
trade secret status with respect to the
Commercial Farnesene Strain or any material information with respect thereto or to the related manufacturing process, AMYRIS shall
identify such risks with particularity and provide reasonable evidence that the existing precautionary measures provided in this
Agreement are insufficient with respect to such material risks. In any such case, the Parties shall discuss in good faith such
risks and other reasonable precautionary measures that could be taken to mitigate such risks. In the event the Parties agree on
such other precautionary measures, then such measures shall constitute the “
Precautionary Measures
”. In the
event the Parties do not agree on whether any Precautionary Measures should be established or the nature of such Precautionary
Measures, either Party may refer the matter to the dispute resolution procedures under Sections 8.A and 8.B for determination of
(a) whether any Precautionary Measures should be established and (b) if so, the nature of such Precautionary Measures. TOTAL shall
implement any Precautionary Measures (whether mutually agreed or established pursuant to the preceding sentence) prior to engaging
in the licensed activities in the applicable country and shall maintain any such Precautionary Measures in place for so long as
such activities are being conducted;
(v) ensure that any sublicensee,
Subcontractor or Strain Recipient shall be expressly bound in writing to the provisions set forth in this Section 2.E; and
(vi) With regard to TOTAL’s
exercise of its license in Section 2.A(i)(b), the terms in this Section 2.E supersede any and all limitations on TOTAL’s
ability to modify or optimize the Farnesene Strain(s) using only random mutagenesis that are contained in other contracts between
the Parties, including without limitation, those set forth in Section 6.2(c) or 6.3(a) of the Collaboration Agreement or paragraph
13 of the Second Amendment to the Collaboration Agreement.
F.
Reporting, Audit
and Inspection Rights
. This Section 2.F shall apply to any Third Party that Manufactures farnesene for TOTAL (each a “
Third
P arty M anu factu rer
”) or, if TOTAL Manufactures Licensed Products itself, to TOTAL and to any other Strain Recipient.
AMYRIS shall have the right, upon reasonable prior notice and during normal business hours, at agreed times to inspect those portions
of facilities at which farnesene is Manufactured or where any TOTAL Strain is used where such activities occur, and the books and
records of Third Party Manufacturer or TOTAL or other Strain Recipient, as applicable, relating specifically to such Manufacture
or any TOTAL Strain, including any Manufacturing batch records for the Manufacture of farnesene. At the request of any Third Party
Manufacturer, AMYRIS shall enter into a customary confidentiality agreement with the Third Party Manufacturer in form and substance
reasonably acceptable to the Manufacturer to keep the results of such inspection confidential, provided that AMYRIS may (i) share
with TOTAL the results of any such inspections, and (ii) use and disclose such results to the extent reasonably necessary to enable
TOTAL to enforce its rights under its contract with the Third Party Manufacturer. TOTAL or any Third Party Manufacturer, as applicable,
shall deliver to AMYRIS a once-monthly summary report relating to any Manufacture conducted using any TOTAL Strain and such other
customarily-maintained information regarding such Manufacture as may be reasonably requested by AMYRIS.
G.
No Implied Rights
.
For the avoidance of doubt, (i) TOTAL and its Affiliates shall have no right, express or implied, with respect to any intellectual
property rights of AMYRIS or any of its Affiliates, except as expressly provided in this Agreement or the Collaboration Agreement
and (ii) AMYRIS and its Affiliates shall have no right, express or implied, with respect to any intellectual property rights of
TOTAL or any of its Affiliates, except as expressly provided in this Agreement or the Collaboration Agreement.
H.
By-Products
.
(i) As used in this Section,
“
Third P arty C onflict
” is a conflict between (a) a proposed grant of a non-exclusive license to TOTAL under
Section 2.A(i)(e) with respect to a potential Known By-Product or Known By-Product and (b) a written agreement between AMYRIS and
a Third Party granting an exclusive license or other exclusive commercial rights (e.g. non-competition) to such Third Party for
the applicable potential Known By-Product or Known By-Product for one or more uses, which contractual right is in effect at the
time of designation of the applicable By-Product as a Known By-Product, which written agreement either (x) precludes designating
such By-Product as a Known By-Product for any uses, or (y) excludes one or more uses from the TOTAL’s non-exclusive license
for such Known By-Product(s) for one or more specific uses (including the making of a particular Known By-Product from a non-conflicting
By-Product and using such Known By-Product for one or more specific excluded uses). In the event that a Third Party Conflict exists
for some but not all uses for a particular Known By-Product, the Third Party Conflict shall only apply to these limited uses.
(ii) As used in this
Section, a “
P otentialThird P arty C onflict
” is a conflict between (a) a proposed grant of a non-exclusive
license to TOTAL under Section 2.A(i)(e) with respect to any potential Known By-Product or Known By-Product, and (b) any arrangement
that AMYRIS is negotiating in good faith with a Third Party pursuant to a written term sheet in which AMYRIS has offered to grant
an exclusive license or other exclusive commercial rights (e.g. non competition) with regard to any such By-Products for one or
more uses, and timely notified TOTAL pursuant to Section 2.H(iii) below, provided that such term sheet (whether or not binding)
either (x) precludes designating such By-Product as a Known By-Product or (y) specifically excludes one or more uses from TOTAL’s
non-exclusive license for such Known By-Product(s) (including the making of a particular Known By-Product from a non-conflicting
By-Product and using such Known By-product for one or more specific excluded uses). If there is a Potential Third Party Conflict,
the applicable By-Product shall not be designated as a Known By-Product (or in the case of a Known By-Product as of the Effective
Date, shall be suspended unless and until the first to occur of: (a) AMYRIS ceases such negotiations, or (b) AMYRIS has not completed
such negotiations with the Third Party with which it was negotiating as of the date of AMYRIS’ notice of the Potential Third
Party Conflict within twelve (12) months after such receipt or delivery of notice (the “
N egotiation P eriod
”).
If AMYRIS timely concludes such negotiations and enters a definitive agreement with such Third Party, then the Potential Third
Party Conflict with respect such agreement would become a Third Party Conflict. In the event that a Third Party Conflict exists
for some but not all uses for a particular Known By-Product, the Third Party Conflict shall only apply to these limited uses.
(iii) Within three (3)
weeks after the Effective Date, AMYRIS shall notify TOTAL of all Third Party Conflicts with respect to the Known By-Products identified
as of the Effective Date and Total, on the behalf of TOTAL, may, at its election, initiate the verification process as provided
for in Section 2.H.(vii). With respect to Known By-Products identified as of the Effective Date, AMYRIS shall not enter into any
term sheet that would conflict with the rights granted to TOTAL hereunder and/or any exclusive agreement with any Third Party after
the Effective Date.
(iv) During the Term
of this Agreement, if (x) AMYRIS in the course of performing the Biofene Development Project or (y) TOTAL identifies any By-Products
that are not then Known By-Products, it shall notify the other Party in writing and identify such By-Product (by chemical structure,
if possible, and if not, by some other unambiguous manner of characterization) and prevalence relative to the Licensed Product.
Upon receipt of such notice, such By-Product shall be designated as a Known By-Product (and listed on
Exhibit D
) unless,
within forty-five (45) days of AMYRIS’ receipt or delivery of such notice, AMYRIS notifies TOTAL of a Third Party Conflict(s)
with respect to such By-Product that prevents such By-Product from being designated as a Known By-Product, in which case such By-Product
will not be designated as a Known By-Product, except as otherwise provided in this Section 2.H.
(v) If AMYRIS fails to
identify a Third Party Conflict or Potential Third Party Conflict within the applicable time frame set forth above, with respect
to (a) a particular potential Known By-Product, then such potential Known By-Product shall be a Known By-Product and automatically
be listed on
Exhibit D
hereto, and (b) a Known By-Product, then any such unidentified Third Party Conflict shall not limit
TOTAL’s non-exclusive license hereunder with regard thereto.
(vi) If at any time a
Potential Third Party Conflict and/or a Third Party Conflict, as applicable, that previously existed has, in part or in whole,
been reduced or eliminated for one or more Known By-Products or for any By-Product denied designation as a Known By-Product, AMYRIS
will within thirty (30) days notify TOTAL in writing, identifying for each By-Product all remaining limitations on such use, and
the list of Third Party Conflict(s) will, with regard to such affected By-Products, be automatically modified accordingly.
(vii) In the event that
TOTAL desires verification of the scope or applicability of any Third Party Conflict with respect to any particular Known By-Product
or By-Product denied designation as a Known By-Product, then on or after receipt of notice of the applicable Third Party Conflict,
TOTAL shall notify AMYRIS in writing, and AMYRIS shall make available a copy of all terms of the agreement(s) entered by AMYRIS
with Third Parties, which terms give rise to the Third Party Conflict(s) at issue, and any ancillary provisions necessary to fully
interpret such Third Party Conflict(s), to a mutually acceptable, conflict-free attorney practicing in the United States at a nationally
recognized law firm and who has an college or advanced degree in chemistry for the sole purpose of determining whether AMYRIS has
accurately described the scope or applicability of the license grant or other restrictions that comprise the Third Party Conflict(s)
with regard to the applicable Known By-Product or By-Product denied designation as a Known By
Product so that TOTAL can be informed of
the information described in the following sentence. Subject to obligations of confidentiality to AMYRIS, such attorney may disclose
to TOTAL, with respect to any particular Known By-Product or By-Product denied designation as a Known By-Product, the scope of
the license(s) and applicable restrictions (including, the uses, geographies and time periods) comprising the Third Party Conflict
under the applicable Third Party agreement, but not the provisions themselves. The costs of any such determination shall be borne
by TOTAL (or its designee).
(viii) In the event that
there are limits on the ability of TOTAL to commercialize a particular Known By-Product or By-Product denied designation as a Known
By-Product due to Third Party agreements previously entered by AMYRIS, at the request of TOTAL, AMYRIS and TOTAL shall discuss
in good faith structures and, if possible, terms for the commercialization of such Known By-Product or By-Product denied designation
as a Known By-Product, consistent with AMYRIS’ existing obligations to Third Parties.
I.
License to AMYRIS
.
Subject to the terms of this Section 2.I, TOTAL hereby grants to AMYRIS a non-exclusive, worldwide, sublicensable, fully-paid up,
royalty-free right and license under the TOTAL Independent Strain Engineering Patents to develop Strains to Make and Sell isoprenoids
except farnesene for use in or as Jet Products; however, the license with respect to Diesel Products shall be subject to the limitations
in Section 2.A(iii). The license granted to AMYRIS herein may not be terminated other than as specified in this Section. In the
case of a material breach (but only in the case of a material breach) of the relevant license, TOTAL shall have the right to terminate
the license in accordance with the following. If TOTAL believes any such breach by AMYRIS has occurred, TOTAL shall within thirty
(30) days provide written notice to AMYRIS describing the specific alleged material breach. If a material breach is not cured within
sixty (60) days of AMYRIS’s receipt of such notice, then TOTAL may terminate the applicable license with further written
notice to AMYRIS (A) immediately at the end of such sixty (60) day period, if AMYRIS has not contested the allegation, or (B) if
AMYRIS has contested such allegation, only upon a final written determination, if any, of an arbitrator in a proceeding subject
to Section 8.B that an uncured material breach has occurred. For clarity, in the case of any dispute between the Parties as to
whether any uncured material breach has occurred that would permit TOTAL to terminate the license, no notice of termination may
be given and no such termination shall be effective until the final resolution of a dispute resolution proceeding conducted pursuant
to Section 8.B, and such license may only be terminated if the arbitrator finally determines an uncured material breach has occurred.
For purposes of determining whether a material breach that would trigger a right of termination under Section has occurred, any
Affiliate of AMYRIS shall be treated as if it was AMYRIS.
In the event that any subcontractor or
sublicensee of AMYRIS violates this Section, then such violation may provide a basis for a material breach and termination of this
license, but only if AMYRIS fails to use commercially reasonable efforts to cure such breach, which efforts may include terminating
its agreement with such subcontractor or sublicensee and initiating and continuing to pursue appropriate legal action to stop such
unauthorized activity. Unless terminated as set forth in this Section, the foregoing license shall remain in
effect after a termination of this Agreement
by AMYRIS under Article 7.C. Each agreement in which AMYRIS grants a sublicense under, or authorizes a subcontractor to practice,
any TOTAL Independent Strain Engineering Patents shall require such subcontactor or sublicensee to agree that TOTAL shall be an
intended third party beneficiary of such agreement with a right to directly enforce against the sublicensee or subcontractor any
uncured material breach of such agreement, to the extent that (1) such a breach relates to a breach of the scope of the sublicense
under the TOTAL Independent Strain Engineering Patents and (2) AMYRIS fails to act reasonably to remedy any such breach. In all
cases, TOTAL shall have the rights to seek any remedies available at law or in equity for any breach.
ARTICLE3. OWNERSHIP AND PATENT MATTERS
A.
Ownership
.
(i)
Biofene Development
Project and Collaboration Agreement Inventions
. TOTAL and AMYRIS agree that the ownership of, and rights to, any and all Inventions
developed, conceived, or reduced to practice in whole or in part by AMYRIS and/or TOTAL in the performance of the Biofene Development
Project or the Collaboration Agreement shall be governed by Section 6.1(d) of the Collaboration Agreement.
(ii)
TOTAL Inventions
.
Unless otherwise agreed in writing by the Parties, TOTAL shall be the sole owner of any Inventions that are conceived and reduced
to practice by TOTAL or its Affiliates, subcontractors, or Sublicensees, including any conceived and reduced to practice by TOTAL
or its Affiliates, subcontractors, or Sublicensees in the practice of the licenses in Section 2.A(i), and any such Invention shall
be TOTAL Non-Collaboration IP. For clarity, (a) Inventions conceived and reduced to practice by TOTAL or its Affiliates, subcontractors,
or Sublicensees in the practice of the licenses in Section 2.A(i) shall not be governed by Section 6.1(d) of the Collaboration
Agreement; and (b) notwithstanding the license from TOTAL under Section 2.I, AMYRIS (and its Affiliates and sublicensees of such
license) shall not by virtue of such license be considered as Sublicensees of TOTAL.
B.
Prosecution and
Maintenance of Patents
.
(i)
Collaboration
Agreement
. TOTAL agrees that with respect to the Inventions deemed to be Collaboration IP pursuant to 3.A(i) above, the patent
prosecution and maintenance provisions of Section 6.8 of the Collaboration Agreement apply with respect to any Patents filed with
respect thereto.
(ii)
Patent Maintenance
.
AMYRIS shall comply with the terms of Section 4.D(i) below.
(iii)
TOTAL-Owned
Patents
. TOTAL shall at its discretion and expense, conduct and be responsible for the prosecution and maintenance of patent
applications it files with respect to Inventions owned by it pursuant to Section 3.A(ii) above.
C.
Information Rights
.
To the extent that TOTAL would not already be entitled to the following reports and information pursuant to the Collaboration Agreement,
then:
(i)
Status Reports
.
AMYRIS shall provide to TOTAL at least quarterly, or on such other schedule as the Parties may agree, a status report on the prosecution
and maintenance of patent applications and patents within the AMYRIS Licensed IP. In addition, AMYRIS shall provide TOTAL with
periodic updates regarding Inventions (including intellectual property) generated in connection with the Biofene Development Project
and/or that specifically relate to Licensed Products, decisions to file (or not file) patent applications with respect to such
Inventions, and the status of any patent applications filed with respect to such Inventions.
(ii)
Review Rights
.
To allow TOTAL to be informed with respect to AMYRIS Licensed IP licensed to TOTAL under this Agreement, TOTAL shall have the right,
on reasonable notice, to inspect and review the following records maintained by AMYRIS relating to the information contained in
those certain Biofene Development Project weekly reports and quarterly reports provided under the Collaboration Agreement and the
associated documentation forming the basis of such reports, including at least, standard operating protocols, procedures, batch
records, reports regarding deviations, laboratory notes, bioinformatic and genomic data, detailed fermentation performance data
in the laboratory, pilot plant or manufacturing runs, in each case, solely to the extent necessary (or in the case of the AMYRIS
Farnesene Production IP included therein, materially useful) for TOTAL (or its sublicensees or Subcontractors) to exercise its
rights or perform its obligations under this Agreement and, for clarity, provided that AMYRIS shall not be required to create any
documents not already in existence for the sole purpose of complying with this clause 3.C(ii).
D.
Patent Enforcement
.
(i)
Notice
. Each
of AMYRIS and TOTAL shall promptly notify the other in writing of any existing or threatened infringement or misappropriation by
any Third Party of any AMYRIS Licensed IP licensed to TOTAL under this Agreement, which infringement or misappropriation could
reasonably be expected to have a material adverse effect on the ability of TOTAL or its designees to Make and/or Sell one or more
Licensed Products in the Field in the Territory (“
Infringement
”) of which it becomes aware, and upon reasonable
request (and subject to an applicable common interest agreement) shall provide all evidence in its possession demonstrating such
Infringement (other than information that such Party is prevented from disclosing due to confidentiality or other similar obligations).
(ii)
Collaboration
Agreement
. The Parties agree that the patent enforcement provisions of Section 7.2 of the Collaboration Agreement shall govern
any intellectual property that is the subject thereof and agree to be bound by such provisions, except as expressly provided below.
(a)
AMYRIS
.
AMYRIS shall have the first right (but not the obligation) to enforce any issued Patent(s) within the AMYRIS Licensed IP claiming
the
use of any Licensed Product(s) in the Field
in the Territory, including without limitation European Patent application EP 2084249, against any Third Party infringement (including
any declaratory judgment with respect to Third Party non-infringement) that would adversely affect the business of TOTAL relating
to Licensed Products in the Field in the Territory and to conduct the defense in connection with any such action. At the request
of AMYRIS or TOTAL, TOTAL and AMYRIS shall discuss means to cease any such infringement. If AMYRIS fails to commence a proceeding
to cease any such infringement within one hundred twenty (120) days of becoming aware of such an infringement, TOTAL shall have
the right to commence and control proceedings to cease any such infringement. In each case, the enforcing Party may retain any
damages recovered in any such proceeding. In any enforcement proceeding that is the subject of this Section 3.D(ii)(a), TOTAL (and
its Affiliates and sublicensees) or AMYRIS, as the case may be, shall join in any such proceeding, at the enforcing Party's request
or if required by applicable law, in each case at the enforcing Party’s expense. In a case in which TOTAL is enforcing under
this Section 3.D(ii)(a), AMYRIS and TOTAL shall seek to develop a litigation strategy that will cease the infringement while limiting
any adverse impact on the other businesses of AMYRIS or any of its Affiliates or licensees.
(b)
TOTAL
. For
any Patents or other intellectual property owned by TOTAL, TOTAL shall have the sole right, at its expense, to enforce and defend
such Patents or other intellectual property (including without limitation, any declaratory judgment actions) and to retain any
recovery.
(c)
Cooperation
.
In connection with any claim, suit or proceeding subject to this Section 3.D (including per Section 7.2 of the Collaboration Agreement),
the Parties shall cooperate with each other (in the case of enforcement by TOTAL, at the expense of TOTAL) and shall keep each
other reasonably informed of all material developments in connection with any such claim, suit or proceeding.
(d)
Settlement
.
In connection with any claim, suit or proceeding subject to this Section 3.D(ii), neither Party shall enter into any settlement
agreement with any Third Party that would conflict with rights granted to the other Party under this Agreement, or impose any obligations
on such other Party (beyond those already included herein), without the prior written consent of such affected Party, which consent
shall not be unreasonably withheld.
E.
Infringement
of Third Party Rights
.
(i) If a Licensed Product
becomes the subject of a claim or assertion of infringement of a Third Party Patent granted in any jurisdiction, the Party first
learning of such claim or assertion shall promptly notify the other Party in writing, and shall provide all information relating
thereto (other than information that such Party is prevented from disclosing due to confidentiality or other similar obligations).
(ii) In the event of
such a Third Party claim of infringement, any Party that is the subject of such claim or assertion under this Section 3.E may defend
itself in its sole discretion and at its sole expense; provided, however, that (a) the Party that is the
indemnifying Party with
respect to such claim pursuant to the terms of Section 5 or (b) the Party designated in writing by the Parties may control the
conduct of any proceeding and in such case the procedures set forth in Section 5.A shall govern the defense of such action. In
any such case, the Indemnified Party shall cooperate with the Indemnifying Party with such defense; provided, if there is a conflict
of interest between the Parties, the Indemnified Party shall be entitled to be represented by separate counsel at the Indemnifying
Party’s expense. In a case in which TOTAL is defending an action under this Section 3.E(ii)(b), AMYRIS and TOTAL shall seek
to develop a litigation strategy to defend the claim while limiting any adverse impact on the other businesses of AMYRIS or any
of its Affiliates or other licensees.
(iii) In connection with
any such claim of infringement, TOTAL and AMYRIS shall cooperate in the defense of any such action at the request and expense of
the Party controlling such action, unless there is a material conflict of interest that would prevent such cooperation.
(iv) In connection with
any claim, suit or proceeding that is the subject of this Section 3.E, neither Party shall enter into any settlement agreement
with any Third Party that would conflict with rights granted to the other Party under this Agreement, or impose any obligations
on such other Party (beyond those already included herein), without the prior written consent of such affected Party, which consent
shall not be unreasonably withheld.
F.
Common Interest
Disclosures and Agreement
. With regard to any information, materials or opinions disclosed relating to the freedom to operate
under the licenses granted hereunder, which information, materials or opinions are regarding intellectual property or technology
owned by Third Parties that may affect the conduct of TOTAL and the activities contemplated by this Agreement, the Parties agree
that they have a common legal interest in determining whether, and to what extent, such Third Party intellectual property rights
may affect the conduct of TOTAL and the activities contemplated by this Agreement, and have a further common legal interest in
defending against any actual or prospective Third Party claims based on allegations of misuse or infringement of intellectual property
rights relating to TOTAL. All such information, materials and opinions will be treated if applicable as protected by the attorney-client
privilege, the work product privilege, and any other privilege or immunity from discovery that may otherwise be applicable. By
sharing any such information, materials or opinions, neither Party intends to waive or limit any privilege or immunity from discovery
that may apply to the shared information and materials. Neither Party shall have the authority to waive any privilege or immunity
on behalf of the other Party without such other Party’s prior written consent, nor shall the waiver of privilege or immunity
resulting from the conduct of one Party be deemed to apply against the other Party. With regard to the prosecution of Patents for
intellectual property governed by the Collaboration Agreement, the Parties have executed a Common Interest Agreement. For other
relevant matters, the Parties shall enter into a reasonable common interest agreement, with the consent to the terms not to be
unreasonably withheld.
ARTICLE 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
A.
Mutual Representations
and Warranties
. TOTAL hereby makes the following representations and warranties to AMYRIS, and AMYRIS hereby makes the following
representations and warranties to TOTAL, in each case as of the Effective Date:
(i) It is a company duly
organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized. It has all requisite
corporate power and authority to own its respective properties and to carry on its respective business as conducted as of the date
of this Agreement and as proposed to be conducted. It has the requisite power and authority to execute, deliver and perform its
obligations under this Agreement.
(ii) All corporate action
on the part of it, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement,
and the performance of all obligations hereunder, has been taken or shall be taken prior to the date of this Agreement, and this
Agreement, when executed and delivered by it, shall constitute a valid and legally binding obligation of it, enforceable against
it in accordance with its terms except to the extent that (a) such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to creditor’s rights generally and (b) the remedy of
specific performance or injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(iii) The execution,
delivery and performance of this Agreement (with or without the giving of notice, the lapse of time or both) and the consummation
of the transactions contemplated hereby, (a) do not require the consent of any Third Party; (b) do not conflict with, result in
a breach of, or constitute a default under, its organizational documents or any other material contract or agreement to which it
is a party or by which it may be bound or affected; and (c) do not violate in any material respect any provision of applicable
law or any order, injunction, judgment or decree of any Governmental Entity by which it may be bound, or require any regulatory
filings or other actions to comply with the requirements of applicable law, except to the extent that either Party is required
to file any notification pursuant to applicable anti-trust or competition laws. It is not a party to, nor is it bound by, any agreement
or commitment that prohibits the execution and delivery of this Agreement.
(iv) No insolvency proceedings
of any character, including bankruptcy, receivership, reorganization, composition or arrangement with creditors, voluntary or involuntary,
affecting it are pending or threatened, and it has not made any assignment for the benefit of creditors or taken any action in
contemplation of, or which would constitute the basis for, the institution of such insolvency proceedings.
(v) There is no action,
suit, proceeding or investigation pending or threatened against it which questions the validity of this Agreement. It is not in
violation of any applicable law in respect of the conduct of its business or the ownership of its properties which violation would
have a material adverse effect on its business or the
ownership of its properties, and it shall
undertake its obligations hereunder in accordance in all material respects with applicable law.
B.
Covenants of
TOTAL
. During the Term:
(i) TOTAL and its Affiliates
shall have valid arrangements with all of its Subcontractors, consultants and employees that are enforceable in accordance with
its terms, except as enforcement may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or
other laws of general application relating to or affecting creditors’ rights generally, and are sufficient to assign all
of their rights, title and interest in and to all Inventions or other technology or intellectual property developed or created
by them in connection with this Agreement to TOTAL or its Affiliates, as applicable, in order to effect the ownership principles
set forth in Section 3.A.
(ii) TOTAL shall not
enter into any agreement, contract, lease, license, instrument or other arrangement with a Third Party that results in a breach
of or constitutes a default under this Agreement.
(iii) TOTAL and its Affiliates,
Subcontractors, and sublicensees shall not
(a) exercise the licenses
granted in Section 2.A outside the Field or (b) knowingly sell Licensed Products to customers for any use outside the Territory
or for any use within the Territory that is outside the Field.
(iv) TOTAL shall not,
and shall use reasonable efforts to ensure that its Affiliates, Subcontractors, sublicensees and customers do not, use or sell
any Licensed Product for any use outside the Territory or for any use within the Territory that is outside the Field.
C.
Representations
and Warranties of AMYRIS
. AMYRIS represents and warrants, as of the Effective Date, that:
(i) AMYRIS and/or its
Affiliates (a) owns and possesses sufficient right, title and interest in the AMYRIS Licensed IP to grant the rights granted herein,
(b) has a valid and enforceable written license to the AMYRIS Licensed IP that includes the right to sublicense to the extent of
the licenses granted herein and/or (c) has obtained all necessary consents of any Third Party required, for AMYRIS and/or any of
its Affiliates to grant the licenses and sublicenses to TOTAL with respect to the AMYRIS Licensed IP granted herein.
(ii) The non-financial
terms of this Agreement are no less favorable than those licenses that AMYRIS grants to other partners for the Manufacture of farnesene
and/or farnesane.
(iii) AMYRIS has provided
to TOTAL an accurate and complete list of all existing agreements between AMYRIS (and/or its Affiliates) and Third Parties that
provide to AMYRIS (and/or its Affiliates) licenses or other rights to AMYRIS Licensed IP that AMYRIS believes may be necessary
for the practice of the AMYRIS Licensed IP by TOTAL with respect to the Licensed Products under the licenses granted in Section
2.A(i)(a), (c), and (d), and has disclosed
to TOTAL all terms in such agreements that would impose any obligations on TOTAL beyond those set forth in this Agreement.
(iv) The AMYRIS Licensed
IP is subject to no Liens and/or other restrictions and/or limitations, in each case which would prevent the grant to TOTAL of
the licenses set forth herein on the terms and conditions set forth herein, and neither AMYRIS nor any of its Affiliates has granted
any Third Party any rights under the AMYRIS Licensed IP or the Strain Improvement Technology in the Field that would conflict with
the licenses granted to TOTAL herein.
(v) Neither AMYRIS nor
any of its Affiliates is in material breach of any of its agreements with Third Parties and no Third Party has notified AMYRIS
and/or any of its Affiliates of any material breach of such Third Party Agreement(s), in each case that remains uncured and which
would result in a material adverse effect on the ability of AMYRIS and/or its Affiliates to perform its obligations hereunder.
AMYRIS and/or its Affiliates have not received written notice from any licensor under a Third Party Agreement purporting to terminate,
and/or restrict the scope of, AMYRIS' rights under such Third Party Agreement by reason of any action and/or omission of AMYRIS
and/or its Affiliates.
(vi) Except as provided
by AMYRIS to TOTAL prior to the Effective Date, AMYRIS and its Affiliates (a) have not received any communications alleging that
any use of the AMYRIS Licensed IP by AMYRIS or any of its Affiliates has violated, infringed or misappropriated or would violate,
infringe or misappropriate any of the intellectual property of any other person or entity and (b) has no Knowledge of any Third
Party infringement, misappropriation or violation of any AMYRIS Licensed IP
.
(vii) To its Knowledge,
there are no pending or issued patent rights of any Third Party that foreclose practice of any AMYRIS Licensed IP for the following
purposes:
(a) to make farnesene
using the Mevalonate Pathway or (b) to Make and Sell Licensed Products.
(viii) Novvi, per Section
5.2 of the IP License Agreement, has (a) agreed that AMYRIS and/or its Affiliates solely and exclusively own the AMYRIS Biofene
Manufacturing Technology and (b) has assigned exclusively to AMYRIS all rights, title, and interest in and to any and all inventions,
discoveries, data and information, whether or not copyrightable or patentable, conceived, reduced to practice, made, observed or
developed (together with all intellectual property rights related thereto) by or on behalf of Novvi or its Affiliates or sublicensees,
solely or jointly with others, or jointly by or on behalf of AMYRIS and Novvi (or their respective Affiliates, employees, sublicensees,
contractors, or agents), in each case that are based upon, derived from, incorporating, in connection with, or related to the Amyris
Biofene Manufacturing Technology. The “
AMYRIS Biofene Manufactu ring Technology
” are patents and know-how that
are controlled by AMYRIS and are necessary or reasonably useful for the development, making (and having made), offering for sale,
sale, and importing of farnesene itself, including, but not limited to, Farnesene Strains and any patents and know-how related
to the genetic engineering of such Farnesene Strains, the fermentation methods for making
farnesene, the methods of recovery of farnesene
from fermentation broth, the processes of isolating farnesene directly from fermentation broth, and the methods of purifying farnesene.
(ix) To its Knowledge:
(a) there is no claim by any Person contesting the validity and/or enforceability of the Patents within the AMYRIS Licensed IP,
and/or use and/or ownership of the AMYRIS Licensed IP, is currently outstanding and/or threatened, and (b) there is no pending
(i.e., filed and/or requested) interference and/or litigation that involves any of the Patents within the AMYRIS Licensed IP licensed
hereunder.
D.
AMYRIS' Covenants
. AMYRIS hereby
covenants that during the Term:
(i) AMYRIS and its Affiliates
shall timely pay all maintenance costs, annuity payments and similar fees due with respect to all Patents within the AMYRIS Licensed
IP issued in the following countries: United States, Europe (in any country(ies) where any European Patent was validated), Brazil,
Canada, China, India, and Japan. AMYRIS shall notify TOTAL prior to abandoning any other issued Patents within the AMYRIS Licensed
IP with respect to which TOTAL has an enforcement right pursuant to Section 3.D and afford TOTAL an opportunity to pay the maintenance
fees and annuity payments associated with such Patents, and if TOTAL makes such payments, AMYRIS and each of its Affiliates shall
promptly assign to TOTAL its entire right, title and interest in such Patent. To the extent that AMYRIS has an obligation to assign
a Patent to TOTAL under this paragraph and also to assign the same Patent to JVCO under the Amended and Restated JVCO Jet Fuel
Agreement, AMYRIS’ obligations under this Agreement shall take precedence. AMYRIS shall notify TOTAL if any Patents within
the AMYRIS Licensed IP become subject to an interference, reissue, or re-examination. In such event, if AMYRIS elects not to undertake
commercially reasonable efforts to respond to such interference, reissue or re-examination and defend the claims at issue, then
it shall notify TOTAL and afford TOTAL the right to respond thereto. Notwithstanding the foregoing, TOTAL’s rights with respect
to prosecution under this clause (i) shall apply with respect to in-licensed AMYRIS Licensed IP only to the extent that AMYRIS
has the right to afford TOTAL such rights, e.g., AMYRIS controls prosecution of the applicable patent applications or patent rights
under the applicable license agreement. To the extent that AMYRIS has an obligation to allow TOTAL to respond to an interference,
reissue or reexamination under this paragraph and also to allow JVCO to respond to the same interference, reissue or re-examination
under the Amended and Restated JVCO Jet Fuel Agreement, AMYRIS’ obligations under this Agreement shall take precedence.
(ii) For so long as any
Third Party Agreement is necessary or materially useful for TOTAL to Make and Sell the Licensed Products in the Field in the Territory
using a Commercial Farnesene Strain (“
Subject Third Party Agreement
”), (a) with respect to Subject Third Party
Agreements that are necessary for TOTAL to practice the licenses in Section 2.A(i)(a), (b), (c), or (d), AMYRIS shall, and shall
cause each of its Affiliates to, comply with all of its obligations under the Subject Third Party Agreements and will not terminate
or amend such Subject Third Party Agreement in each case in any manner which diminishes the licenses to TOTAL or increases any
obligations of TOTAL with respect to the AMYRIS Licensed IP that is subject to such Subject Third Party
Agreement (“
Detriment
”)
without the consent of TOTAL and (b) with respect to Subject Third Party Agreements that are materially useful for TOTAL to practice
the licenses in Section 2.A(i)(a), (b), (c), or (d), AMYRIS shall provide advance written notice to TOTAL in connection with terminating
or amending such Subject Third Party Agreement that would result in a Detriment. In addition, AMYRIS will, and will cause each
of its Affiliates to, notify TOTAL promptly, if AMYRIS and/or any of its Affiliates receives notice, whether or not there is a
cure period, from a Third Party that AMYRIS and/or any of its Affiliates and/or other licensees is in material breach of any such
Subject Third Party Agreement if such material breach could result in a Detriment, and/or notice from any Third Party which purports
to modify and/or terminate any such Subject Third Party Agreement in a manner that would cause a Detriment. AMYRIS will and will
cause its Affiliates to take prompt and commercially reasonable steps to cure any such breach. AMYRIS acknowledges that any breach
of such Subject Third Party Agreement(s) by AMYRIS and/or its Affiliates may result in damage to TOTAL with respect to the subject
AMYRIS Licensed IP, which may include loss of license rights to such AMYRIS Licensed IP and/or monetary damages. For any Subject
Third Party Agreement entered into by AMYRIS after the Effective Date that satisfies the criteria above, AMYRIS agrees that it
will use commercially reasonable efforts to obtain an agreement from the licensor that TOTAL can continue with its sublicense if
the license to AMYRIS under the applicable Subject Third Party Agreement is terminated, that TOTAL may approach AMYRIS' licensors
under the Subject Third Party Agreements for the limited purpose of obtaining an agreement from such a licensor that TOTAL can
continue with it sublicense if the license to AMYRIS under the applicable Subject Third Party Agreement is terminated, and AMYRIS
agrees that it shall facilitate such contact, on TOTAL's request, and AMYRIS will not object to such an agreement.
(iii) AMYRIS shall
not enter into any agreement, contract, lease, license, instrument or other arrangement with a Third Party that results in a breach
of or constitutes a default under this Agreement or that would conflict with the licenses and rights granted to the TOTAL hereunder.
(iv) No member of
the AMYRIS Family other than a Third Party Acquirer shall commercialize, or grant any Third Party any rights to commercialize,
any isoprenoid or isoprenoid-derived compound for a Diesel Product in the Field in the Territory or otherwise conduct or authorize
any activity in conflict with the licenses granted in Section 2, provided that the exercise of its retained rights hereunder as
set forth in Section 2.A(iii) above shall not be construed as a violation of this clause (iv).
(v)
Except as expressly contemplated in Section 2.A(i)(d), TOTAL shall not be obligated to pay to AMYRIS any fees of any type (including
royalties, milestones, maintenance, sublicense, etc.) beyond any amounts due under Section 2.A(v) or Section
2.B for its
use, license, sublicense and/or any other commercial exploitation of the licenses granted TOTAL herein with respect to the AMYRIS
Licensed IP.
(vi) AMYRIS shall
promptly inform TOTAL if AMYRIS and/or any of its Affiliates becomes aware of any action, suit, investigation and/or proceeding
pending and/or threatened before any arbitrator and/or any governmental authority, in each case, to
which AMYRIS or any of its Affiliates is
a party, which could reasonably be expected to have a material adverse effect on the ability of TOTAL and/or any of its Affiliates
to practice any of the rights granted TOTAL in this Agreement.
(vii) Until the expiration
or termination of the Collaboration Agreement, AMYRIS shall not, without prior notice to TOTAL, enter into any grant or contract
that may provide any government or non-for profit entity any rights (e.g., rights provided to the U.S. Government under 35 U.S.
200 et seq. or any similar provisions of foreign law) to any patent application or patents resulting from work done in connection
with such grant or contract that would be materially useful in connection with the conduct of the Biofene Development Project or
to Manufacture farnesene to make Licensed Products or to Make and Sell Licensed Products in the Field in the Territory.
(viii) AMYRIS shall not,
and shall not permit any Affiliate to, create, incur, assume or permit to exist any Lien on any Invention within the AMYRIS Licensed
IP owned by AMYRIS or its Affiliates as of the Effective Date or hereafter acquired; provided, however, that AMYRIS and its Affiliates
shall not be precluded by this clause
(viii) from granting
licenses to its Affiliates and Third Parties under the AMYRIS Licensed IP, provided that such licenses do not conflict with the
licenses and other rights granted to TOTAL hereunder. For clarity, nothing in this clause (viii) shall restrict the granting by
AMYRIS of (a) licenses with respect to products other than Licensed Products, (b) licenses outside the Field or (c) licenses within
the scope of AMYRIS’ retained rights under Section 2.A(iii).
(ix) AMYRIS shall not,
and shall not permit any Affiliate to, use any Known By-Product to Make or Sell any Licensed Product in the Field in the Territory
except in connection with the scope of AMYRIS’ retained rights under Section 2.A(iii).
(x) AMYRIS shall not
amend the terms of the IP License Agreement with regard to its prohibition on Novvi’s sale of its by-products for use as
diesel fuel in the Territory (the “
Novvi B y-Product Restriction
”), without the express prior written consent
of TOTAL.
(xi) In the event that
TOTAL or AMYRIS become aware that Novvi has breached the Novvi By-Product Restriction, it shall notify the other providing detailed
information. In the event that Novvi breaches the Novvi By-Product Restriction, AMYRIS, upon TOTAL’s written request, agrees
to use its best efforts to enforce the Novvi By-Product Restriction against Novvi including, if necessary, promptly commencing
legal action against Novvi to cease such breach and recover damages for such breach.
(xii) AMYRIS shall not,
and shall not assist (by joining as a party or otherwise) any Third Party to, commence or conduct any legal action against TOTAL
or its sublicensees or Subcontractors for the production of any By-Products in compliance with the terms of this Agreement.
E.
Disclaimer
.
EXCEPT AS PROVIDED IN THIS ARTICLE 4, NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AS TO ANY PRODUCT OR PROCESS, OR AS TO THE VALIDITY OR SCOPE OF ANY OF INTELLECTUAL PROPERTY OR THAT THE PRACTICE OF ANY
OF INTELLECTUAL PROPERTY WILL BE FREE FROM INFRINGEMENT OF ANY PATENT OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY OR TOTAL OR
ANY OF ITS AFFILIATES.
ARTICLE 5. INDEMNITY; LIMITATION OF
LIABILITY
A.
Indemnification
.
(i)
Indemnification
by TOTAL
. TOTAL shall defend, indemnify, and hold AMYRIS and AMYRIS’ officers, directors, employees, and agents (the
“
AMYRIS Indemnitees
”) harmless from and against any and all damages, liabilities, judgments, recoveries, costs,
and expenses (including court costs and reasonable attorneys’ fees and expenses), resulting from any claims, suits, actions
or proceedings of any Third Party (collectively, “
Claims
”) to the extent that such Claims arise out of, are
based on, or result from (a) a breach of any of TOTAL’s representations, warranties, covenants and/or obligations under this
Agreement; (b) the willful misconduct or grossly negligent acts of TOTAL or its Affiliates, or the officers, directors, employees,
or agents of TOTAL or its Affiliates in connection with its activities under this Agreement; or (c) the exercise by TOTAL of the
licenses granted hereunder (excluding claims for infringement and misappropriation of a Third Party’s intellectual property
for which AMYRIS is obligated to indemnify TOTAL pursuant to Section 5(A)(ii)(b) below); in each case except to the extent such
Claims arise out of, are based on, or result from (x) a breach by AMYRIS of any of AMYRIS’ representations, warranties, covenants
and/or obligations under this Agreement; or (y) the willful misconduct or grossly negligent acts of AMYRIS, its Affiliates, or
the officers, directors, employees, or agents of AMYRIS or its Affiliates.
(ii)
Indemnification
by AMYRIS
. AMYRIS shall defend, indemnify, and hold TOTAL and its Affiliates and each of their officers, directors, employees,
and agents (the “
TOTAL Indemnitees
”) harmless from and against any and all damages, liabilities, judgments,
recoveries, costs, and expenses (including court costs and reasonable attorneys’ fees and expenses), resulting from any Claims
(as defined in Section 5.A(i) above) to the extent that (A) such Claims arise out of, are based on, or result from (a) a breach
of any of AMYRIS’ representations, warranties, covenants and/or obligations under this Agreement, (b) any manufacture by
TOTAL of farnesene that allegedly has infringed or misappropriated a Third Party’s intellectual property, but only to the
extent such alleged infringement or misappropriation is directly attributable to TOTAL’s adherence to AMYRIS’ then
approved farnesene manufacturing process (as provided in the Successful Commercial Transfer) licensed from AMYRIS as part of the
AMYRIS Licensed IP and not to any deviation or modification from such process made by or on behalf of TOTAL other than a deviation
or modification made by TOTAL at the written direction of AMYRIS, (c) the willful misconduct or grossly negligent acts of AMYRIS,
its Affiliates, or the officers, directors, employees, or agents of AMYRIS or its Affiliates or (B) such Claims (a) are Patent
infringement claims brought by Novvi against TOTAL, (b) allege that one or more of the Licensed Products infringes one or more
Patents owned by Novvi and (c) are based
on Inventions conceived and reduced to
practice by Novvi; in each case ((A) and (B)), except to the extent such Claims arise out of, are based on, or result from (x)
a breach by TOTAL of any of TOTAL’s representations, warranties, covenants and/or obligations under this Agreement; or (y)
the willful misconduct or grossly negligent acts of TOTAL and its Affiliates or the officers, directors, employees, or agents of
TOTAL or its Affiliates.
(iii)
Indemnification
Procedures
. In the event that a Party claiming indemnity under this Section 5.A (the “
Indemnified P arty
”)
becomes aware of any Claim for which it seeks indemnification from the other Party (the “
Indemnifying Party
”),
the Indemnified Party shall: (a) reasonably promptly notify Indemnifying Party thereof, in no event later than ten (10) business
days after the Indemnified Party becomes aware of such Claim (provided that failure to provide such notice will not release the
Indemnifying Party from any of its indemnity obligations hereunder except to the extent that such failure increases the Indemnifying
Party's indemnity obligation); (b) permit the Indemnifying Party to assume control of the defense or settlement of the Claim; (c)
at the Indemnifying Party’s expense, provide the Indemnifying Party with reasonable cooperation in the defense or settlement
thereof; and (d) not settle any such claim without the Indemnifying Party’s written consent, not to be unreasonably withheld.
The Indemnified Party may participate in and monitor such defense with counsel of its own choosing at its sole expense. If the
Indemnifying Party does not assume and conduct the defense of the claim as provided above, (x) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any settlement with respect to the claim in any manner the Indemnified
Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying
Party in connection therewith), and (y) the Indemnifying Party shall remain responsible to indemnify the Indemnified Party as provided
in this Section 5.A.
B.
Insurance
.
Prior to the commencement of its operational activities, TOTAL shall acquire, and thereafter maintain, product liability insurance
and general commercial liability insurance, to the extent, in amounts and from carriers with quality ratings not lower than industry
standards for a similarly situated company, during the Term and thereafter for so long as TOTAL is exercising its license rights
granted hereunder and including with respect to TOTAL’s facilities used in conducting such activities. TOTAL shall provide
to AMYRIS a certificate of insurance evidencing such coverage upon request.
C.
Limitation of
Liability
. EXCEPT IN CIRCUMSTANCES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY A PARTY OR ITS AFFILIATES OR WITH RESPECT
TO A BREACH OF ARTICLE 6, NEITHER PARTY, NOR ANY OF ITS AFFILIATES, SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE GRANTED HEREUNDER. FOR CLARITY, ANY DAMAGES
FINALLY AND ACTUALLY SUFFERED BY AN INDEMNIFIED PARTY (WHETHER BY A FINAL JUDGMENT OF A COURT OF LAW OR THROUGH A SETTLEMENT) ARISING
OUT OF A CLAIM FOR WHICH THE INDEMNIFIED PARTY IS INDEMNIFIABLE UNDER THIS ARTICLE 5 SHALL BE DEEMED DIRECT DAMAGES FOR PURPOSE
OF THIS SECTION 5.C. NEITHER PARTY NOR ANY OF ITS AFFILIATES SHALL BE
ENTITLED TO RECOVER FROM THE OTHER PARTY
ANY PUNITIVE DAMAGES HEREUNDER.
ARTICLE 6 .CONFIDENTIALITY
A.
Confidential
Information
. Except to the extent expressly authorized by this Agreement or otherwise provided herein or agreed in writing
by the Parties, during the Term and for two (2) years thereafter, each Party shall keep confidential and shall not publish or otherwise
disclose and shall not use for any purpose other than as permitted in this Agreement or the Collaboration Agreement, any Inventions
or other confidential information, including any information relating to any Strain, disclosed to it by the other Party or its
Affiliates pursuant to this Agreement (collectively, “
Confidential Information
” of the disclosing Party). Each
Party shall use at least the same standard of care as it uses to protect proprietary or confidential information of its own, but
in no event less than reasonable care, to ensure that its and its Affiliates’ and sublicensees’ employees, previous
employees, agents, consultants and other representatives do not disclose or make any unauthorized use of the Confidential Information
of the other Party. Each Party shall promptly notify the other upon discovery of any unauthorized use or disclosure of the other
Party’s Confidential Information. The terms and conditions of this Agreement (but not the existence hereof) shall be the
Confidential Information of both Parties. Any Confidential Information disclosed hereunder shall be the Confidential Information
of the disclosing Party. The receiving Party is permitted to use such Confidential Information only to the extent permitted in
this Agreement or the Collaboration Agreement. Any Inventions owned by AMYRIS under this Agreement (including by reference to the
Collaboration Agreement in Section 3.A(i) above) shall constitute Confidential Information of AMYRIS.
B.
Exceptions
.
The obligations of non-disclosure and non-use under Section 6.A shall not apply to any Confidential Information of a disclosing
Party if the receiving Party can prove by contemporaneous written documentation or otherwise reasonably demonstrate that such Confidential
Information: (1) is at the time of receipt, or thereafter becomes, through no breach of this Agreement or the Collaboration Agreement
by the receiving Party, generally known or publicly available; (2) is known by the receiving Party at the time of receiving such
Confidential Information; (3) is hereafter furnished to the receiving Party by a Third Party, which is not, to the receiving Party’s
reasonable knowledge, in breach of any confidentiality obligation related to such information; (4) is independently discovered
or developed (in the case of TOTAL, without the practice of the licenses granted hereunder or reference to the AMYRIS Licensed
IP or the Confidential Information of AMYRIS, and without use of Confidential Information of AMYRIS under the Collaboration Agreement
and without violation of any agreement between AMYRIS and any of its Affiliates, on the one hand, and TOTAL or any of its Affiliates,
on the other hand), (5) is the subject of a written permission to disclose provided by the disclosing Party; or (6) is disclosed
pursuant to any ruling of a governmental or regulatory authority or court or by mandatory law, provided that written notice of
such ruling is given, as soon as reasonably possible, to the disclosing Party so as to give the disclosing Party an opportunity
to intervene and provided further that the receiving Party uses reasonable efforts to obtain assurance that the Confidential Information
shall be treated confidentially. In addition,
each Party may disclose Confidential
Information of the other Party to the extent such disclosure is reasonably necessary in the following instances:
(i) filing or prosecuting
Patents as permitted by this Agreement (but such disclosure must comply with Section 6(C) below);
(ii) regulatory filings
for products to which such Party has a license or a right to develop hereunder;
(iii) prosecuting or
defending litigation as permitted by or relating to this Agreement;
(iv) otherwise required
by law or the requirements of a national securities other similar regulatory body; provided that the receiving Party shall
(a)
provide the disclosing Party with reasonable advance notice of, and an opportunity to comment on, any such required disclosure,
to the extent such advance notice is legally permitted, (b) if requested by the disclosing Party, and at the disclosing Party’s
expense, seek confidential treatment with respect to any such disclosure to the extent available, and (c) use good faith efforts
to incorporate the comments of the disclosing Party in any such disclosure or request for confidential treatment;
(v) complying with applicable
Legal Requirements or governmental requests;
(vi) disclosure to its
Affiliates, licensees, sublicensees and Subcontractors and their respective representatives, who reasonably need to know such Confidential
Information for the purpose of performing the obligations or exercising its license rights as described in this Agreement and internal
reporting to its Affiliates, provided, in each case, each Party shall be responsible for ensuring that all such representatives
to whom the Confidential Information is disclosed under this Agreement shall keep such information confidential and shall not disclose
the same to any unauthorized person; or
(vii) to underwriters
or investors or potential investors or their counsel or accountants in connection with a Monetization (as defined in Section 13.6
of the Collaboration Agreement) or other investment transaction (and to its and their respective Affiliates, representatives and
financing sources); provided, however, that each such Third Party to whom information is disclosed will (a) be subject to obligations
of confidentiality substantially similar hereunder, (b) be informed of the confidential nature of the Confidential Information
so disclosed, and (c) agree to hold such Confidential Information subject to the terms thereof; provided, that the disclosure rights
shall not apply with respect to the other Party’s intellectual property.
C.
Public Disclosures
of Technical Information
. If TOTAL seeks to publish any technical information relating to any Strain, the substance of which
has not been previously approved by AMYRIS for publication or disclosure, TOTAL shall first provide to AMYRIS the material proposed
for disclosure or publication, such as by oral presentation, manuscript or abstract, and AMYRIS shall have the right to review
and
comment on all such material. Before any
such material is submitted for publication, TOTAL shall deliver a complete copy to AMYRIS at least sixty (60) days prior to submitting
the material to a publisher or initiating any other disclosure. AMYRIS shall review any such material and give its comments to
TOTAL as soon as practicable, but no later than forty-five (45) days after delivery of such material to TOTAL. TOTAL shall not
publish any such technical information, the substance of which has not been previously approved by AMYRIS for publication or disclosure,
without AMYRIS’ prior written consent in each instance, which consent shall not be unreasonably withheld or delayed. For
clarity, such consent is not required for disclosures relating to the Licensed Products to the extent such disclosure does not
comprise technical information relating to Strains.
D.
Publicity and
Disclosure of this Agreement
. A Party that desires to make, or that is required to make pursuant to applicable laws or regulations,
any press release or other public disclosure regarding the existence or terms of this Agreement (including the identity of the
other Party to this Agreement) shall first consult with the other Party (to the extent such consultation does not violate applicable
laws or regulations) with respect to the text and timing of such press release or other public disclosure and shall obtain the
other Party’s approval over the text and timing of such release and disclosure prior to the issuance or disclosure thereof
(to the extent such approval does not violate applicable laws or regulations). Following the initial press release or other public
disclosure announcing the existence or terms of this Agreement (if any), each Party shall be free to disclose, without the other
Party’s prior written consent, the existence of this Agreement, the identity of the other Party and those terms of this Agreement
which have already been publicly disclosed in accordance herewith.
E.
Residuals
.
Nothing in this Agreement shall restrict any employee or representative of a Party from using general ideas, concepts, practices,
learning, or know-how relating to any activities conducted on behalf of TOTAL (“
General Know-How
”) that are
retained in the unaided memory of such employee or representative following performance of the Biofene Development Project and
such employee or representative is not aware at the time of use that such information is Confidential Information of the other
Party, provided that the foregoing is not intended to grant, and shall not be deemed to grant (i) any right to disclose the Confidential
Information of the other Party, or (ii) any license under any Patents of the other Party. The General Know-How shall in no event
include any financial, business statistical, or personnel information specific to the other Party. A person’s memory is “unaided”
if such person has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using
or disclosing it otherwise than as authorized pursuant to this Agreement.
ARTICLE 7. TERM AND TERMINATION
A.
Term
. The
term of this Agreement shall commence on the Effective Date and remain in effect for fifty (50) years (the “
Term
”).
B.
Consequence of
Events
. The Parties agree as follows:
(i)
Change of Control
of AMYRIS
. For clarity, this Agreement shall remain in full force and effect in the event of any Change of Control of AMYRIS.
(ii)
Termination of
Collaboration Agreement
. For clarity, the Parties agree that, regardless of any termination of the Collaboration Agreement,
this Agreement shall remain in full force and effect according to its terms.
C.
Termination of
Agreement
.
(i) The licenses granted
to TOTAL herein shall be irrevocable (other than as specified in this Section 7.C), provided in the case of a material breach (but
only in the case of a material breach) of the relevant license, AMYRIS shall have a right to terminate the applicable license in
accordance with the following. If AMYRIS believes any such breach by TOTAL has occurred, AMYRIS shall within thirty (30) days provide
written notice to TOTAL describing the specific alleged material breach. If a material breach is not cured within ninety (90) days
of TOTAL’s receipt of such notice, then AMYRIS may terminate the applicable license with further written notice to TOTAL
(A) immediately at the end of such ninety (90) day period, if TOTAL has not contested the allegation, or (B) if TOTAL has contested
such allegation, only upon a final written determination, if any, of an arbitrator in a proceeding subject to Section 8.B that
an uncured material breach has occurred. For clarity, in the case of any dispute between the Parties as to whether any uncured
material breach has occurred that would permit AMYRIS to terminate a license or this Agreement, no notice of termination may be
given and no such termination shall be effective until the final resolution of a dispute resolution proceeding conducted pursuant
to Section 8.B, and such licenses may only be terminated if the arbitrator finally determines an uncured material breach has occurred.
(ii) In the case of an
uncured material breach of Section 2.E(i) or (ii) by TOTAL, then, except to the extent Section 7.C(iii) below applies, AMYRIS shall
have the right to terminate the licenses granted in Section 2.A in their entirety in accordance with the procedure described in
Section 7.C(i) above, and in the case of such a license termination, this Agreement shall terminate concurrently.
(iii) In the case of
any uncured material breach by TOTAL based on the use of any Intermediate Strain or any other Strain that is a genetic manipulation
or modification of any Intermediate Strain (other than any Commercial Farnesene Strain(s)) outside the scope of the limited license
in Section 2.A(i)(b), then in accordance with the procedure described in clause 7.C(i) above, AMYRIS shall have the right to terminate
the license granted in Section 2.A(i)(b) and all other rights of TOTAL permitting its development and use of Intermediate Strains,
including TOTAL’s right to release of the Escrowed Materials relating to the Intermediate Strains) as described in clause
(i) above but AMYRIS may not otherwise terminate any provision of this Agreement or this Agreement in its entirety.
(iv) For purposes of
determining whether a material breach that would trigger a right of termination under Section 7.C has occurred, any Affiliate of
TOTAL shall be treated as if it was TOTAL.
(v) Except as expressly
provided in this Section 7.C(v), no acts or omissions of any Subcontractor or sublicensee of TOTAL shall be the basis of any termination
of this Agreement. In the event that any Subcontractor or sublicensee of TOTAL violates Section 2.E(i) or Section 2.E(ii)(a) or
(b), then such violation may provide a basis for a material breach and termination of this Agreement under Section 7.C(ii) above,
but only if TOTAL fails to use commercially reasonable efforts to cure such breach, which efforts may include terminating its agreement
with such Subcontractor or sublicensee and initiating and continuing to pursue appropriate legal action to stop such unauthorized
activity. In the event that a sublicensee or Subcontractor of TOTAL uses any Intermediate Strain in a manner that exceeds the scope
of or violates the restrictions on the exercise of the license in Section 2.A(i)(b), then in accordance with the procedure described
in Section 7.C(i) above, AMYRIS shall have the right to terminate the license in Section 2.A(i)(b) pursuant to Section 7.C(iii)
and TOTAL’s related rights in respect of Intermediate Strains but only if the TOTAL is not using commercially reasonable
efforts to cure such breach, which efforts may include terminating its agreement with Affiliate, sublicensee or Subcontractor pertaining
to the Intermediate Strain(s) and initiating and continuing to pursue appropriate legal action to stop such unauthorized activity.
D.
Conversion to
Non-Exclusive License
. In the event of the expiration of this Agreement at the end of the Term, TOTAL shall retain a perpetual,
non-exclusive, royalty-free (subject to Section 2.A(v) and Section 2.B) right and license under the AMYRIS Licensed IP, in each
case that is necessary or, in the case of the AMYRIS Farnesene Production IP, useful to Make and Sell Licensed Products within
the Field within the Territory.
E.
Effects of Termination
.
|
|
1.
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Strains; Return or Destruction of Confidential Information
. Except as provided in Section
7.D, upon expiration or termination of this Agreement and/or the licenses granted herein, as applicable, TOTAL shall immediately
cease and cause its Affiliates, sublicensees and Subcontractors to cease use of any AMYRIS Licensed IP, Strain Improvement Technology
and all TOTAL Strains (or in the case of a termination under Section 7.C(iii), the Intermediate Strains and any Strains derived
therefrom) and within ninety (90) days following a written request from the other Party, each receiving Party shall at the disclosing
Party’s discretion, promptly destroy or return to the disclosing Party (a) all written copies of the disclosing Party’s
Confidential Information that is marked confidential and (b) all biological materials (including all TOTAL Strains), in each case
(a) and (b) to which the receiving Party does not retain rights hereunder, except that the receiving Party may retain such Confidential
Information or materials, to the extent that the receiving Party requires such Confidential Information or materials for the purpose
of performing any obligations under this Agreement that may survive such expiration or termination, or with respect to Confidential
Information only for archival purposes or for information contained in management reports.
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2.
Rights in Bankruptcy
. All rights and licenses granted under or pursuant to this Agreement to TOTAL are, and will
otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code (the “
Bankruptcy
C ode
”), licenses of rights
to “intellectual property” as that term is defined in the Bankruptcy Code. TOTAL, as a licensee of such rights under
this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code. Upon the filing
of a case by or against AMYRIS or any AMYRIS Affiliate (the “
Bankrupt Entity
”), including without limitation,
AMYRIS Fuels LLC, AB Technologies LLC, and/or AMYRIS Brasil Ltda. (each of such Affiliates, a “
Co-Licensor
”)
under the Bankruptcy Code, then (a) TOTAL shall be entitled to the fullest protections conferred upon licensees under Section 365(n)
of the Bankruptcy Code, or any similar provision; (b) AMYRIS and each Co-Licensor shall perform all of its obligations under this
Agreement; (c) the Bankrupt Entity shall immediately, without the need for any further request by TOTAL, or notice or hearing,
provide to TOTAL a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments
of such intellectual property (which embodiments, throughout this Agreement, shall include without limitation, the Escrowed Materials),
or any other information necessary or desirable for TOTAL to utilize such intellectual property; and (d) AMYRIS and each Co-Licensor
shall not interfere with the rights of TOTAL as provided in this Agreement, or in any agreement supplementary to this Agreement,
to such intellectual property (including such embodiment), including any right to obtain such intellectual property (and such embodiment)
from another entity or person. To the extent AMYRIS and/or a Co-Licensor rejects this Agreement under the Bankruptcy Code and TOTAL
elects to retain its rights, (x) TOTAL shall have the full rights provided to it under Section 365(n) of the Bankruptcy Code; (y)
the waivers under Section 365(n)(2)(C) shall apply only to rights of setoff and administrative claims arising solely out of this
Agreement, and not to any other agreements or instruments, including, without limitation, claims or rights arising out of agreements
supplementary to this Agreement; and (z) the Bankrupt Entity shall, without need for notice or hearing, provide to TOTAL any intellectual
property (including such embodiment) held by AMYRIS and/or each Co-licensor and/or any other entity or person, and shall not interfere
with the rights of TOTAL as provided in this Agreement, or any agreement supplementary to this Agreement, to such intellectual
property (including such embodiment) including any right to obtain such intellectual property (and such embodiment) from another
entity or person. For purposes of this Agreement, the term “embodiment” shall mean any and all materials required to
be delivered by AMYRIS or a Co-Licensor to TOTAL hereunder and any materials relating to the licenses granted hereunder which,
in the course of dealing between the Parties under this Agreement, are customarily delivered, in whatever format (whether electronic,
written or otherwise). All written agreements entered into relating to and in connection with the Parties’ performance hereunder
from time-to-time, shall be considered agreements “supplementary” to this Agreement for purposes of Section 365(n)
of the Bankruptcy Code. AMYRIS and each Co-Licensor acknowledges and agrees that the rights of TOTAL to such intellectual property
(and such embodiments) are unique, and that to the extent AMYRIS or a Co-Licensor, or their respective trustees in bankruptcy,
were to sell any portion of such intellectual property free and clear of liens, claims or interests, TOTAL would suffer irreparable
damages, such that AMYRIS and each Co-Licensor agrees that such sale shall not occur without TOTAL’s express written consent.
For the avoidance of doubt, “intellectual property,” as used in this Section 7.E.2, is limited to intellectual property
included in the AMYRIS Licensed IP and the Strain Improvement Technology, and any tangible embodiments of such intellectual property,
and includes all such intellectual
property and tangible embodiments of such
intellectual property (provided in the case of the Strain Improvement Technology, only to the extent, and for the uses and period,
described in Section 2.A.(i)(b)).
3.
Accrued Rights
.
Termination or expiration of this Agreement for any reason shall not release either Party from any liability or obligation that
already has accrued prior to such expiration or termination, nor affect the survival of any provision hereof to the extent it is
expressly stated to survive such termination. Termination or expiration of this Agreement for any reason shall not constitute a
waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages
or otherwise, that a Party may have hereunder or that may arise out of or in connection with such termination or expiration.
F.
Survival
. Subject
to the other provisions set forth in this Article 7 and any other applicable terms and conditions of this Agreement, the obligations
and rights of the Parties under the following provisions of this Agreement shall survive expiration of this Agreement: Articles
1 (Definitions) (to the extent any definitions are applicable after expiration hereof), 5 (Indemnity; Limitation of Liability),
6 (Confidentiality) (for the period set forth therein), 8 (Dispute Resolution) and 9 (Miscellaneous); Sections 2.A (License to
Make and Sell Licensed Products) (where the licenses are on the non-exclusive basis described above), 2.B (Third Party Agreements),
2.C (Sublicenses and Subcontracts), 2.E (Strain Restrictions), 2.F (Reporting, Audit and Inspection Rights), 2.G (No Implied Rights),
2.I, 3.A (Ownership), 3.E (Infringement of Third Party Rights), 3.F (Common Interest Disclosures and Agreement), 4.E (Disclaimer),
7.C (Termination of Agreement), 7.D (Conversion to Non-Exclusive License) and 7.E (Effects of Termination); and this Section 7.F
(Survival). Subject to the other provisions set forth in this Article 7 and any other applicable terms and conditions of this Agreement,
the obligations and rights of the Parties under the following provisions of this Agreement shall survive termination of this Agreement:
Articles 1 (Definitions) (to the extent any definitions are applicable after termination hereof), 5 (Indemnity; Limitation of Liability),
6 (Confidentiality) (for the period set forth therein), 8 (Dispute Resolution) and 9 (Miscellaneous); Sections 3.A (Ownership),
3.E (Infringement of Third Party Rights), 3.F (Common Interest Disclosures and Agreement), 4.E (Disclaimer), 7.C (Termination of
Agreement) and 7.E (Effects of Termination); and this Section 7.F (Survival).
ARTICLE 8. DISPUTE RESOLUTION
A.
Escalation
.
Except as provided in Section 8.B or 8.D, if any Dispute arises between the Parties under this Agreement, such Dispute shall be
referred to the Executive Officers for further discussion and resolution. The Executive Officers shall attempt in good faith to
resolve any Dispute referred to them pursuant to this Section 8.A within ten (10) days after such referral by meeting (either in
person or by video teleconference, unless otherwise mutually agreed) at a mutually acceptable time, and thereafter as often as
they reasonably deem necessary, to exchange relevant information and to attempt to resolve the Dispute. If the Dispute has not
been resolved within twenty (20) days thereafter and the Dispute does not consist of a failure by the Parties to reach agreement
where one or both Parties have discretion whether to agree, either Party may, by written notice to the other
Party, elect to initiate arbitration pursuant
to Section 8.B for purposes of having the Dispute and any related Disputes resolved. If an Executive Officer intends to be accompanied
at a meeting by an attorney, the other Executive Officer shall be given at least forty-eight (48) hours’ notice of such intention
and may also be accompanied by an attorney. All negotiations conducted pursuant to Section 8.B, and all documents and information
exchanged by the Parties in furtherance of such negotiations, (i) are the Confidential Information of the Parties, (ii) shall be
treated as evidence of compromise and settlement for purposes of the United States Federal Rules of Evidence and any other applicable
state or national rules of evidence or procedure, and (iii) shall be inadmissible in any arbitration conducted pursuant to this
Section 8 or other proceeding with respect to a Dispute.
B.
Arbitration
.
Except for Disputes that are subject to Sections 8.C, D or E, all Disputes arising out of or in connection with this Agreement
that cannot be resolved by the Executive Officers pursuant to Section 8.A shall be finally settled as follows:
(i) Except for Disputes
that are subject to Section 8.C, D or E, all Disputes arising out of or in connection with this Agreement that cannot be resolved
by the Executive Officers pursuant to Section 8.A, shall be finally settled under the Rules of Arbitration of the International
Chamber of Commerce (the “
IC C Rules
”) by an arbitration tribunal appointed in accordance with the said ICC
Rules as modified hereby.
(ii) There shall be three
(3) arbitrators, one selected by the initiating Party in the request for arbitration, the second selected by the other Party within
twenty (20) days of receipt of the request for arbitration, and the third (who shall act as chairperson of the arbitration tribunal)
selected by the two (2) Party-appointed arbitrators within twenty (20) days of the selection of the second arbitrator. In the event
that the respondent fails to select an arbitrator, or if the two Party-appointed arbitrators are unable or fail to agree upon the
third arbitrator, the international Court of Arbitration of the International Chamber of Commerce shall designate the remaining
arbitrator(s) required to comprise the tribunal. The claimant in the arbitration shall provide a copy of the request for arbitration
to the respondent at the time such request is submitted to the Secretariat of the International Chamber of Commerce.
(iii) Each arbitrator
chosen under this Section shall speak, read, and write English fluently and shall be either (a) a practicing lawyer who has specialized
in business litigation with at least ten (10) years of experience in a law firm of over fifty (50) lawyers or (b) a retired judge
of a court of general jurisdiction.
(iv) The place of arbitration
shall be New York, New York. The language of the arbitral proceedings and of all submissions and written evidence shall be English;
provided, however, that a Party, at its expense, may provide for translation or simultaneous interpretation into a language other
than English.
(v) The arbitrators shall
issue an award within nine (9) months of the submission of the request for arbitration. This time limit may be extended by agreement
of the Parties or by the tribunal if necessary.
(vi) It is expressly
understood and agreed by the Parties that the rulings and award of the tribunal shall be conclusive on the Parties, their successors
and permitted assigns. Judgment on the award rendered by the tribunal may be entered in any court having jurisdiction thereof.
(vii) Each Party shall
bear its own costs and expenses and attorneys' fees, and the Party that does not prevail in the arbitration proceeding shall pay
the arbitrator's fees and any administrative fees of arbitration. All proceedings and decisions of the tribunal shall be deemed
Confidential Information of each of the Parties, and shall be subject to Article 6.
For clarity, any disputes between the Parties
regarding the deposit of Escrowed Materials or access to any Escrowed Materials shall not be required to be resolved via arbitration,
and either Party may seek equitable relief for such dispute, including without limitation, specific performance, pursuant to Section
8.D.
C.
Patent Validity
and Infringement Disputes
. In the event that a Dispute arises with respect to the inventorship, scope, validity, enforceability,
revocation or infringement of a Patent, and such Dispute cannot be resolved by the Executive Officers in accordance with Section
8.A, unless otherwise agreed by the Parties in writing, such Dispute shall not be submitted to arbitration in accordance with Section
8.B, and notwithstanding anything in this Agreement to the contrary, the sole forum to resolve such Dispute shall be to initiate
litigation in a court or other tribunal of competent jurisdiction in the country of issuance of the Patent that is the subject
of the Dispute.
D.
Equitable Relief
.
Notwithstanding anything to the contrary, either Party may at any time seek to obtain equitable relief from a court of competent
jurisdiction with respect to an issue arising under this Agreement if the rights of such Party would be prejudiced absent such
relief.
E.
Disputes Subject
to Section 2.A(iii)
. In the event of any disagreement between the Parties (or their successors) regarding the terms on which
any Inventions subject to Section 2.A(iii) shall be licensed to Company, then at the request of Company (or its successor), such
dispute be resolved by a single arbitrator agreed by the Parties or if the Parties are unable to agree within thirty (30) days
of Company’s request, selected by the head of the New York office of the International Chamber of Commerce. Such arbitrator
shall have expertise in the licensing of biotechnology intellectual property for industrial applications. Each Party shall submit
to the arbitrator a written brief of its position regarding the license terms, which submission (including supporting documentation)
shall not exceed 50 pages. The arbitrator shall select the position of one of the Parties, in its entirety, as his or her decision,
and shall have no authority to vary any of the terms of the prevailing proposal. The Parties shall equally share the costs of such
arbitration. Any such arbitration shall be completed within 120 days of selection of the arbitrator.
F.
Attorney’s
Fees
. If any action, proceeding or arbitration is brought by a Party to enforce or interpret this Agreement, the prevailing
Party, in addition to all other legal or equitable remedies possessed, shall be entitled to be reimbursed for all reasonable
attorneys’ fees incurred by reason
of such action or proceeding to the extent related to the enforcement or interpretation of this Agreement.
ARTICLE 9 .MISCELLANEOUS
A.
Governing Law
.
This Agreement and any arbitration hereunder shall be governed by, interpreted and construed and enforced in accordance with, the
laws of the State of New York, without giving effect to any conflicts of laws principles thereof.
B.
Entire Agreement;
Modification
. This Agreement and the Collaboration Agreement constitute the entire agreement of the Parties 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
in this Agreement has been made or relied upon by either Party with respect to the subject matter of this Agreement. No rights
or licenses with respect to any intellectual property right of either Party are granted or deemed granted hereunder or in connection
herewith, other than those rights expressly granted in this Agreement. This Agreement may only be modified or supplemented in a
writing expressly stated for such purpose and signed by the Parties to this Agreement. For clarity, except as modified herein,
the Collaboration Agreement remains in full force and effect; provided, in the event of any inconsistency between the Collaboration
Agreement and this Agreement, the terms of this Agreement shall prevail.
C.
Relationship
.
This Agreement establishes between the Parties an independent relationship. The Parties intend that no partnership or joint venture
is created hereby between TOTAL and AMYRIS, that neither Party will be a partner or joint venturer of the other Party for any purposes,
and that this Agreement will not be construed to the contrary.
D.
Non-Waiver
.
Either Party may (i) extend the time for the performance of any of the obligations or other acts of the other Party, (ii) waive
any inaccuracies in the representations and warranties of the other Party contained herein or in any document delivered by the
other Party pursuant hereto, or (iii) waive compliance with any of the agreements or conditions of the other Party contained herein.
Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties. Any waiver of
any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition,
or a waiver of any other term or condition, of this Agreement. The failure of either Party to assert any of its rights hereunder
shall not constitute a waiver of any of such rights. Any extension of time or other indulgence granted to a Party hereunder shall
not otherwise alter or affect any power, remedy or right of the other Party or the obligations of the Party to whom such extension
or indulgence is granted.
E.
Assignment
.
This Agreement may not be assigned by either Party without the express written consent of the other Party; provided, however, that
either Party may assign its rights and obligations pursuant to this Agreement without the written consent of the other Party to
(a) any of its Affiliates or (b) in connection with the transfer or sale by a
Party of all or substantially all the assets
to which this Agreement relates
;
provided, that any such assignee agrees to be bound by the terms of this Agreement.
F.
Severability
.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any applicable law or public
policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect to the fullest extent
permitted by law. Upon determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible
in a reasonably acceptable manner.
G.
Notices
.
Any notice to be given under this Agreement must be in writing and delivered either in person by registered or certified mail (postage
prepaid) requiring return receipt, or by overnight courier or facsimile confirmed thereafter by any of the foregoing, to the Party
to be notified at its address(es) given below, or at any address such Party has previously designated by prior written notice to
the other. Notice shall be deemed sufficiently given for all purposes upon the earliest of (a) the date of actual receipt; (b)
if mailed, three (3) days after the date of postmark; or (c) if delivered by overnight courier, the next business day the overnight
courier regularly makes deliveries.
H.
Force Majeure
.
Each Party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement by reason
of any event beyond such Party’s reasonable control including but not limited to acts of God, fire, flood, explosion, earthquake,
or other natural forces, war, civil unrest, accident, any strike or labor disturbance, or any other event similar to those enumerated
above. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay
in performance and provided that the Party has not caused such event(s) to occur and continues to use diligent, good faith efforts
to avoid the effects of such event and to perform the obligation. Notice of a Party’s failure or delay in performance due
to force majeure must be given to the unaffected Party promptly thereafter but no later than five (5)
days after its occurrence which notice
shall describe the force majeure event and the actions taken to minimize the impact thereof. All delivery dates under this Agreement
that have been affected by force majeure shall be tolled for the duration of such force majeure. In no event shall any Party be
required to prevent or settle any labor disturbance or dispute.
I.
Trademarks and
Logos
. Neither Party shall use, in advertising or otherwise, the other Party’s or its Affiliates’ names, trade
names, trademarks, service marks, logos or other indicia of origin or refer to the other Party or its Affiliates, directly or indirectly,
in any media release, public announcement or public disclosure relating to this Agreement or its subject matter, including in any
promotional or marketing materials, lists, referral lists, or business presentations, without prior written consent from the other
Party for each such use or release. The restrictions imposed by this Section 9.I shall not prohibit either Party from making any
disclosure (a) identifying the other Party as a counterparty to this Agreement to its or its Affiliates’ actual or prospective
acquirers, merger candidates, underwriters, or investors (and their attorneys and accountants), (b) that is required by Applicable
Law or the requirements of a national securities exchange or another similar regulatory body (provided that any such disclosure
shall be governed by Section 6) or (c) with respect to which written consent of the other Party has previously been obtained.
J.
Export Control
.
Notwithstanding anything to the contrary contained herein, all obligations of the Parties are subject to prior compliance with
export regulations applicable to each Party and such other related laws and regulations as may be applicable to each Party, and
to obtaining all necessary approvals required by the applicable government entity. Each Party shall each use its reasonable efforts
to obtain such approvals for its own activities. Each Party shall cooperate with the other Parties and shall provide assistance
to the other Parties as reasonably necessary to obtain any required approvals.
K.
Interpretation
.
(i)
Captions &
Headings
. The captions and headings of clauses contained in this Agreement preceding the text of the articles, sections, subsections
and paragraphs hereof are inserted solely for convenience and ease of reference only and shall not constitute any part of this
Agreement, or have any effect on its interpretation or construction.
(ii)
Singular &
Plural
. All references in this Agreement to the singular shall include the plural where applicable, and all references to gender
shall include both genders and the neuter.
(iii)
Including
as Example
. Use of the term “including” or “include” in this Agreement shall be interpreted to mean
“including, without limitation,” or “include, but not limited to,” and shall be exemplary rather than restrictive.
(iv)
Sections &
Subsections
. Unless otherwise specified, references in this Agreement to any section shall include all subsections and paragraphs
in such sections, and references in this Agreement to any subsection shall include all paragraphs in such subsection.
(v)
Days
. All
references to days in this Agreement mean calendar days, unless otherwise specified.
(vi)
Ambiguities
.
Ambiguities and uncertainties in this Agreement, if any, shall not be interpreted against either Party, irrespective of which Party
may be deemed to have caused the ambiguity or uncertainty to exist.
(vii)
English Language
.
All notices required or permitted to be given hereunder, and all written, electronic, oral or other communications between the
Parties regarding this Agreement shall be in the English language.
L.
Drafting
.
Each Party agrees that it participated equally with the other in the drafting of this Agreement, using counsel of its choice. This
Agreement shall be interpreted without regard to any principle of construction regarding the drafting, authorship or revision thereof.
M.
Further Assurances
.
After the Effective Date, each of the Parties shall execute and deliver such additional documents, certificates, and instruments
and perform such additional acts, as may be reasonably requested and necessary or appropriate to carry out the purposes and intent
and all of the provisions of this Agreement and to consummate all of the transactions contemplated by this Agreement.
N.
License Registrations
.
TOTAL may, at its expense, register the exclusive licenses granted under this Agreement in any country of, or community or association
of countries in, the Territory. AMYRIS shall reasonably cooperate in such registration at TOTAL’s expense. Upon request by
TOTAL, AMYRIS agrees promptly to execute any "short form" licenses developed in a form reasonably acceptable to both
TOTAL and AMYRIS and reasonably submitted to it by TOTAL from time to time in order to effect the foregoing registration in such
country. No such "short form" license shall be deemed to amend or be used to interpret this Agreement. If there is any
conflict between such a license or other recordation document and this Agreement, this Agreement shall control.
O.
Counterparts
.
This Agreement and any amendments hereto may be executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have been signed by each Party and delivered to the
other Party, it being understood that both Parties need not sign the same counterpart. Any such counterpart, to the extent delivered
by electronic delivery, shall be treated in all manner and respects as an original executed counterpart and shall be considered
to have the same binding legal effect as if it were the original signed version thereof delivered in person. Neither Party shall
raise the use of electronic delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted
or communicated through the use of electronic delivery, as a defense to the formation of a contract, and each Party forever waives
any such defense, except to the extent such defense relates to lack of authenticity.
P.
Affiliates
.
Each Party hereto shall be responsible for ensuring that its Affiliates (whether existing as of the Effective Date or thereafter
during the Term of this Agreement) comply with the terms of this Agreement.
[
Signatures on following page
]
THIS AGREEMENT
IS EXECUTED by the authorized representatives of the Parties as of the date first written above.
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AMYRIS, INC.
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Company
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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The following AMYRIS Affiliates existing
as of the Effective Date of this Agreement hereby acknowledge and approve the licenses granted to TOTAL in Section 2.A and Section
7.E.2 of this Agreement.
AMYRIS Fuels LLC
AB Technologies LLC
AMYRIS Brasil Ltda.
Exhibit A
Commercial Technology Transfer Package
A commercial technology transfer package should include the
following:
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a.
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Back-ground strain design information such as strain information, genetic background, sequence information, genetic modifications
information. e.g.,
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I.
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Strain ancestor and lineage of the applicable strain including each of the rational or directed strain engineering changes,
what type of changes – deletion, insertion, ploidy changes, description of the changes, locus at which the changes were engineered
and what were the resulting genii of the modified strain at each step.
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b. Strain storage and propagation
I. SOP for the overall strain
storage including detailed media recipes for preserving strain
II. SOP for strain revival including
steps all the way from seed vial to inoculums tanks for the propagation media for revival of the strain
c. Feed-stock information – ingredient
information, sourcing, specificities, testing
I. Feed-stock sources and details of handling the feedstock
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2.
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Details of a fermentation run at all scales (including from inoculum to shake-flask to 300L to
1m
3
, 40 m
3
and 200 m
3
production reactors):
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a.
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SOP’s for media, sterilization, fill and draw
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b.
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Sampling intervals, sampling protocols
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c.
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Performance and specific testing at each step, protocols for tests at each stage
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d.
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Historical data of runs at all scales (including 1m
3
, 40 m
3
and 200 m
3
) to register and monitor
variability
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3. Process design (including
Brotas data):
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a.
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Detailed manufacturing process, process narrative, operating conditions
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b.
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PFD’s design basis, heat/material balance, with identified streams
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c.
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Equipment list and material of construction – vessel specifications, identify an special modifications, performance required,
design and fabrication codes, vendor and model numbers
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d.
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Utility flow and diagrams – all major inputs, outputs, stream compositions, flow rates
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e.
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Waste-water specification
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f.
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Routine maintenance, testing, replacements
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4. Process book including process control and details
of the operation:
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a.
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Aseptic design and operation, sterilization and cleaning (SIP/CIP) procedures and schedules
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b.
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batch and fed-batch operational details,
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c.
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feeding algorithm details,
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d.
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process control and monitoring strategies
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e. h istoric data of all prior
runs with the strains – access to database of prior runs
And any other information that
is necessary for being able to operate the strain in commercial settings.
Exhibit B
Initial Package
Current process book for the current strain
Amyris is using for the commercial production of farnesene and the following with respect to the all of the designated Intermediate
Strains:
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a.
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Back-ground strain design information such as strain information, genetic background, sequence information, genetic modifications
information. e.g.,
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I.
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Strain ancestor and lineage of the current strain including each of the rational or directed strain engineering changes, what
type of changes – deletion, insertion, ploidy changes, description of the changes, locus at which the changes were engineered
and what were the resulting genii of the modified strain at each step.
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b.
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Strain storage and propagation
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i.
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SOP for the overall strain storage including detailed media recipes for preserving strain
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ii.
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SOP for strain revival including steps all the way from seed vial to inoculums tanks for the propagation media for revival
of the strain
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c. Feed-stock information – ingredient
information, sourcing, specificities, testing
II. Feed-stock sources and
details of handling the feedstock
III. Testing results for content
of sugar or other impacting ingredients
IV. Seasonal variation information or data
V. Protocols for any adjustment made to feedstock
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2.
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Current best details of a fermentation run at all scales (including from inoculum to shake-flask
to 300L to 1m
3
, 40 m
3
and 200 m
3
production reactors -if not at the largest scale then information
on best scale at which this strain is current been running):
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a.
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SOP’s for media, sterilization, fill and draw
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b.
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Sampling intervals, sampling protocols
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c.
|
Performance and specific testing at each step, protocols for tests at each stage
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d. Historical data of runs at all scales (including
1m
3
, 40 m
3
and 200 m
3
) to register and monitor variability
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3.
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Current best process design (including Brotas data):
|
a. Detailed manufacturing process, process narrative, operating
conditions
|
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b.
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PFD’s design basis, heat/material balance, with identified streams
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c.
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Equipment list and material of construction – vessel specifications, identify an special modifications, performance required,
design and fabrication codes, vendor and model numbers
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d.
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Utility flow and diagrams – all major inputs, outputs, stream compositions, flow rates
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e.
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Waste-water specification
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f.
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Routine maintenance, testing, replacements
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4. Current best process book including process control and details
of the operation:
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a.
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Aseptic design and operation, design constraints, sterilization and cleaning (SIP/CIP) procedures and schedules
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b.
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batch and fed-batch operational details,
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c.
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feeding algorithm details,
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d.
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process control and monitoring strategies
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e.
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Performance data of recent runs
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Any other information that is necessary
for being able to operate the strain in commercial settings.
Exhibit C
List of the Member States of the European
Union
The following States are members of the
European Union as of the Effective Date:
Exhibit D
Known By-Products
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1
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Identified as of the Effective Date
: The following compositions: (i) dead yeast cells, (ii) ethanol, (iii) farnesol,
(iv) farnesene dimer, (v) triglyceride, (vi) hexahydrofarnesol, (vii) hydrogenated farnesene dimer, or (viii) combination of items
in (i) through (vii) with or without farnesene and/or farnesane.
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2.
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Identified after the Effective Date
:
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ANNEX E
AMENDMENT #1 TO IP LICENSE
AGREEMENT
THIS AMENDMENT
#1 TO THE IP LICENSE AGREEMENT
("First Amendment") is made and entered into as of _______________________, 2015 (the
"
First Amendment Effective Date
") by and between
Amyris, Inc.
, having its principal place of business located
at 5885 Hollis St, Suite 100, Emeryville
,
CA 94608 USA
("Amyris")
,
and
Novvi LLC
, a Delaware
limited liability corporation
,
having its place of business
at 5885 Hollis Street, Suite 100, Emeryville
,
California
94608 ("
Novvi LLC
").
WHEREAS
,
Amyris and Novvi LLC entered into that certain 1P License Agreement on March 26, 2013 (the
"
License Agreement
"
)
whereby Amyris agreed to license
,
on the terms and conditions
set forth in the License Agreement, certain of its intellectual property rights to Novvi LLC;
WHEREAS, such
License Agreement was clarified by Novvi LLC, Total Amyris BioSolutions B.Y. ("TAB"), and Amyris in an Amended and Restated
Letter Agreement Containing Clarifications to the IP License Agreement dated November 30, 2013, which stated that certain By-Products
would be sold only to Amyris or TAB, and Novvi LLC would retain the ability to sell other By-Products to third parties
;
WHEREAS
,
pursuant to the terms and conditions of this First Amendment, the Parties desire to amend the
License Agreement to clarify that Novvi LLC may offer for sale or sell its By-Products
,
including
Diesel By-Products, for any use excluding any use in or as (i) diesel fuel in the European Union and (ii) jet fuel worldwide.
NOW THEREFORE
, in
consideration of the promises and the mutual covenants contained herein, the Parties agree as follows:
1.
The Parties add the following new definition to Article 1 of the License Agreement:
“
European
Union
"
means those countries that were members
of the European Union as the effective date of Amendment #1 to the 1P License Agreement
,
which
countries are listed on Exhibit A to such amendment."
2
.
Section 2.1 (a)(ii) of the License Agreement is revised to provide in its entirety as follows:
"(ii)
subject to the limitations in Article 4 restricting the sale of By-Products for use in or as (i) diesel fuel in the European Union
and (ii) jet fuel worldwide, a non-exclusive, worldwide, royalty-free, nonsublicensable, and non-assignable license under Amyris
Base Technology to offer for sale, sell, and import any By-Products
.
"
For
clarity, other than the specific changes to clause (ii) set forth above
,
the
remainder of Section 2
.
1(a) of the License Agreement
,
including clause (i) and the two paragraphs immediately following the amended text above
,
remains as is and is not deleted
,
modified,
or amended hereby
.
3.
Article 4 of the License Agreement is hereby amended by deleting such Article in its entirety and replacing it with the following
new Article 4:
"ARTICLE 4
SALE OF BY-PRODUCTS
4
.
1
No Sale of By-Products as Diesel Fuel in the European Union
. Novvi LLC agrees that it shall not
,
at any time
,
offer
for sale or sell any By-Products, including, but not limited to
,
any
farnesane or diesel-related By-Products ("
Diesel By-Products
")
,
for
use in or as diesel fuel in any of the European Union.
4.2
No Sale of Jet Fuel By-Products except to Amyris; Amyris's Obligation to Purchase
.
(a)
Novvi LLC agrees that it will not offer for sale or sell any Jet Fuel By-Products to any person or entity except to Amyris as set
forth in this Section 4.2, and Amyris agrees that it will purchase all such Jet Fuel By-Products. As used in this Section,
"Jet
Fuel By-Product" means a By-Product (i) whose concentration of farnesane, partially hydrogenated
farnesene or farnesene, by volume, is at least 70% or greater; and (ii) that when blended with petroleum-derived jet fuel, meets
the ASTM D1655 and D7566 specifications (or successors thereto) for use as a jet fuel.
(b)
The purchase price payable by Amyris to Novvi LLC for each liter of any Jet
Fuel
By-Product
will be equal to the price per liter that Amyris sells farnesene to Novvi LLC, in case such price is higher than US$2
.
70
per liter. If the per liter of farnesene price Amyris charges to Novvi LLC is below US$2.70 per liter, Amyris will purchase such
Jet Fuel By-Product at the NYMEX ULSD diesel onemonth forward price.
(c)
In connection with the sale of any By-Products by Novvi LLC to a third patty, Novvi LLC shall require any such purchaser to agree
in writing that (i) such By-Products may not be used in or as diesel fuel in the European Union or in or as jet fuels anywhere,
and (ii) if any such By-Products are incorporated into any diesel fuel outside the European Union
,
that such diesel fuels may not be imported into any of the European Union.
(d)
Other than as set forth in this Section, Amyris has no obligation or rights to purchase any By-Products from Novvi LLC.
4.3
No Other Limits on Novvi LLC
.
Other than as set
forth in this Article 4, Novvi LLC may, pursuant to its license in Section 2.1 (a)(ii), freely offer for sale, sell, and import
its By-Products.
Capitalized
terms used in this First Amendment shall have the same meaning as defined in the License Agreement unless otherwise defined herein.
Except as specifically provided in this First Amendment, the terms and conditions of the License Agreement shall remain in full
force and effect. Together, the License Agreement
and
this
First Amendment constitute the entire agreement between the Parties with respect to the subject matter, and supersede any and all
prior negotiations, representations, correspondence, understandings and agreements with
respect
to the subject matter. To the extent of any conflict between the License Agreement and this
First Amendment, this First Amendment shall supersede and govern. This First Amendment may be executed in counterparts, which together
shall constitute one document and be binding on all of the Parties.
[THE REMAINDER OF THIS
PAGE IS INTENTIONALLY BLANK]
IN WITNE
S
S
WHEREOF,
and intending to be bound by the provisions hereof
,
the Parties have caused this First Amendment to be executed personally or by their duly authorized
representatives
,
to be effective as of the First Amendment
Effective Date.
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AMYRIS, INC.
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NOVVI LLC
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By::
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By::
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Title:
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Title:
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By::
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Title:
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Exhibit A
Definition of European Union
I.
Austria
2
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Belgium
3. Bulgaria
4. Croatia
5
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Cyprus
6
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Czech Republic
7
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Denmark
8
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Estonia
9. Finland
10
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France
11. Gelmany
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Greece
13. Hungary
14
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Ireland
15. Italy
16. Latvia
17. Lithuania
18. Luxembourg
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Malta
20. Netherlands
21. Poland
22
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Portugal
23. Romania
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Slovakia
25. Slovenia
26
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Spain
27. Sweden
28
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United Kingdom
Exhibit 10.03
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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.
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TECHNOLOGY INVESTMENT
AGREEMENT BETWEEN
AMYRIS, INC.,
5885 HOLLIS STREET
SUITE 100
EMERYVILLE, CALIFORNIA
94608
AND
THE DEFENSE ADVANCED RESEARCH
PROJECTS AGENCY
675 NORTH RANDOLPH STREET
ARLINGTON, VA 22203-2114
CONCERNING
IMPROVING THE TIMELINE
FOR SCALING UP MOLECULES FROM PROOF OF CONCEPT TO MARKET REDUCING TIME AND COST
(MGS TO KGS)
Agreement No.: HR0011-15-3-0001
DARPA Order No.: HR0011518718
Total Amount of the Agreement: $50,721,349
Total Estimated Government Funding of the Agreement:
$35,160,011
Funds Obligated: $6,035,686
Authority: 10 U.S.C. § 2371
Line of Appropriation – See Article V.C.
This Agreement is entered into between the United
States of America, hereinafter called the Government, represented by The Defense Advanced Research Projects Agency (DARPA), and
AMYRIS, INC., a corporation organized and existing under the laws of the State of Delaware with its principal place of business
at 5885 Hollis Street, Suite 100, Emeryville, California 94608 pursuant to and under U.S.
Federal law.
FOR AMYRIS, INC FOR
THE DEFENSE ADVANCED RESEARCH PROJECTS AGENCY
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/s/ Joel R. Cherry 11 September 2015
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/s/ Michael S. Mutty 9/22/2015
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(Signature & Date)
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(Signature & Date)
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JOEL R. CHERRY, PRESIDENT R&D
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Michael S. Mutty
Agreements Officer
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(Name, Title)
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(Name, Title)
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TABLE OF CONTENTS
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ARTICLES
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PAGE
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ARTICLE I
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Scope of the Agreement
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3
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ARTICLE II
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Term
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7
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ARTICLE III
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Management of the Project
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10
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ARTICLE IV
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Agreement Administration
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11
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ARTICLE V
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Obligation and Payment
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12
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ARTICLE VI
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Disputes
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15
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ARTICLE VII
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Patent Rights
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ARTICLE VIII
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Data Rights
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19
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ARTICLE IX
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Foreign Access to Technology
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21
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ARTICLE X
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Title to and Disposition of Property
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ARTICLE XI
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Civil Rights Act
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ARTICLE XII
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Security
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ARTICLE XIII
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Subcontractors
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23
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ARTICLE XIV
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Key Personnel
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23
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ARTICLE XV
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Order of Precedence
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23
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ARTICLE XVI
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Execution
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23
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ARTICLE XVII
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Applicable Law
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24
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ARTICLE XVIII
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Severability
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24
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ARTICLE XIX
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Data Sharing Plan and Status Reporting
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24
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ATTACHMENTS
ATTACHMENT 1 Statement of Work
ATTACHMENT 2 Report Requirements
ATTACHMENT 3 Total Agreement Funding Plan and Payable
(Revision 1) Milestones and Corresponding Payment
Schedule
ATTACHMENT 4 Funding Schedule
ATTACHMENT 5 List of Intellectual Property Assertions
by the Performer
ATTACHMENT 6 List of Property Greater than $5,000
ATTACHMENT 7 Certifications for Agreement No.
HR0011-15-3-0001
Agreement HR0011-15-3-0001
ARTICLE I: SCOPE OF THE AGREEMENT
A. Background (as revised 10.15.2015 per Modification P00001)
Performer is a leader in applying
synthetic biology technologies to engineer living organisms into manufacturing platforms that are able to produce a wide variety
of target molecules, many of which are impossible to produce through traditional manufacturing processes. While current technologies
are highly advanced, they suffer from a lack of integration and automation. By focusing on the same principles that made the United
States the leaders in traditional manufacturing, namely standardized engineering and efficiency gains through automation, the Performer
seeks, through funding in this Agreement, to develop a state of the art open bio-fabrication facility that will shorten the scale-up
time and cost by using biology to produce molecules. M
any of these molecules
are directly relevant to the DoD mission due to their unique chemical properties that enable their use as fuels, lubricants, anti-fouling
agents, antibiotics, and adhesives while also providing building blocks for novel families of materials. DARPA’s interest
in synthetic biology rises from its potential application to manufacturing. Biological manufacturing is in its infancy and the
work required to reduce the time, effort, and cost needed to develop a new microbe is risky and at odds with the work needed to
bring a product to market which is the chief goal of any company seeking to capitalize on the technology. This Agreement supports
research with a long-term perspective that will enable academic and commercial participants to perform cutting edge research with
less effort and cost than ever before. In addition to producing molecules relevant to the DoD, the commercial opportunities are
immense since virtually any molecule made through traditional manufacturing processes can be replicated using biology as a catalyst.
Although engineering cellular factories has been intermittently successful,
the
cost and time required for success have been prohibitive. The
Performer’s new technological approach will develop
new molecules and materials while at the same time improving efficacy and efficiency. As a result of these improvements, the United
States will reduce production time to under three years and at less than $10M per molecule while simultaneously handling 100, a
20X improvement. To achieve these innovations, the Performer will focus on technology developments addressing metabolic pathway
and enzyme design, strain construction, phenotypic measurements, large-scale data analysis, and strain optimization. To ensure
success, the Performer will complement its expertise in strain engineering by partnering with companies and academic laboratories
that are leaders in their field. Upon completion of this agreement, the capacity to perform biological engineering will far surpass
current capabilities. The United States will possess state of the art facilities for design and biomanufacturing of existing and
novel molecules and materials.
DARPA’s
interest in driving a manufacturing renaissance for biology is critical due to the convergence of advanced synthetic biology technologies
during a time of underinvestment in biological manufacturing. Biological manufacturing is in its infancy and the work required
to reduce the time, effort, and cost needed to develop a new microbe is risky and at odds with the work also needed to bring a
product to market in a one-off manner, the chief goal of any company seeking to capitalize on the technology. This Agreement supports
research with a long-term perspective to support the entire industry by funding efforts that will enable academic and commercial
participants to perform cutting edge research with less effort and cost than ever before.
Agreement HR0011-15-3-0001
B. Definitions
Affiliate:
means, with respect to an entity,
any person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common
control with such first entity. For purposes of this definition, “control”, “controlled by”, and “under
common control with” mean (i) the possession, directly or indirectly, of the power to direct the management or policies of
an entity, whether through the ownership of voting securities, by contract relating to voting rights or corporate governance, or
otherwise or (ii) the ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities or other ownership
interest of an entity.
Agreement:
The body of this Agreement and
Attachments 1 – 7, which are expressly incorporated in and made a part of the Agreement.
Collaborators:
A third party in a contractual
arrangement with the Performer or with a Subcontractor, whether executed before or after the Effective Date, under which arrangement
the Performer or a Subcontractor has agreed to jointly research, develop and/or commercialize a technology or product with such
third party and has an “active role” in such arrangement. For the avoidance of doubt, an “active role”
by the Performer or a Subcontractor is a contractual relationship (1) that involves more than the mere transfer of intellectual
property and (2) where the Performer or a Subcontractor has a significant participation in decision making and/or funding of the
activities.
Data:
Recorded information, regardless of form or method
of recording, which includes but is not limited to, scientific or technical data, software, trade secrets, and mask works, in each
case developed or generated by the Performer or its Subcontractors in performing the Program under this Agreement. The term “Data”
does not include financial, administrative, cost, pricing or management information.
Effective Date:
means November 1, 2015.
Foreign Firm or Institution:
A firm or institution
organized or existing under the laws of a country other than the United States, its territories, or possessions. The term includes,
for purposes of this Agreement, any agency or instrumentality of a foreign government; and firms, institutions or business organizations
which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.
Government:
The United States of America, as represented
by DARPA.
Government Purpose Rights:
The rights to
use, duplicate, or disclose Data, in whole or in part and in any manner, for Government Purposes only, and to have or permit others
to do so for Government Purposes only.
Government Purpose:
Any activity in which the
Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or
transfers by the Government to foreign governments or international organizations. Government Purposes include competitive procurement,
but do not include the rights to use, modify, reproduce, release, perform, display, or disclose Data for commercial purposes or
authorize others to do so.
Invention:
Any invention or discovery which is or may
be patentable or otherwise protectable under Title 35 of the United States Code.
Know-How:
All information including, but
not limited to discoveries, formulas, materials, Inventions, processes, ideas, approaches, concepts, techniques, methods, software,
programs, documentation, procedures, firmware, hardware, technical data, specifications, devices, apparatus and machines.
Agreement HR0011-15-3-0001
Limited Rights:
The rights to use, modify,
reproduce, release, perform, display, or disclose Data, in whole or in part, within the Government. The Government may not, without
the written permission of the Party asserting limited rights, release or disclose applicable Data outside the Government,
use the applicable Data for manufacture, or authorize the applicable Data to be used by another party
,
except that the Government may reproduce, release, or disclose such Data or authorize the use or reproduction of the applicable
Data by persons outside the Government if -
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(i)
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The reproduction, release, disclosure , or use is:
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A.
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Necessary for emergency repair and overhaul; or
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B.
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A release or disclosure to
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1. A covered Government support
contractor in performance of its covered Government support contract for use, modification, reproduction, performance, display
or release or disclosure to a person authorized to receive Limited Rights Data; or
2. A foreign government, of such
Data other than detailed manufacturing or process Data, when use of such Data by the foreign government is in the interest of
the Government and is required for evaluational or informational purposes;
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(ii)
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The recipient of the applicable Data is subject to a prohibition on the further reproduction, release, disclosure, or use of
the Data; and
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(iii)
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The Performer, or its subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.
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Made:
Relates to any Invention means the
conception or first actual reduction to practice of such Invention.
Parties: The Government (represented by
DARPA) and the
Performer.
Payable Milestone:
A Program-related task or tasks identified
in Attachment 3 for which a corresponding payment (also identified in Attachment 3) will be made by the Government to the Performer
upon the Government’s verification, in accordance with this Agreement, that the Performer (or a Subcontractor) accomplished
such task(s).
Performer:
AMYRIS, INC. a corporation organized
and existing under the laws of the State of Delaware with its principal place of business at 5885 Hollis Street, Suite 100,
Emeryville, California 94608
Practical Application:
To manufacture, in
the case of a composition of product, to practice, in the case of a process or method, or to operate, in the case of a machine
or system; and, in each case, under such conditions as to establish that the Subject Invention is capable of being utilized and
that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms. For
the avoidance of doubt, the Parties acknowledge that “Practical Application” under this Agreement may not include actual
commercialization of Subject Invention(s) hereunder because such Subject Invention(s) are likely to be Tools (e.g., it is envisioned
that the Tools resulting from the research carried out under this Agreement will later – outside of this Agreement - be used
by the Performer and its Subcontractors to develop commercial products).
Program:
Research and development being conducted
by the Performer and its Subcontractors under this Agreement, as set forth in Article I, paragraph C and in Attachment 1, Statement
of Work.
Property:
Any tangible personal property other
than property actually consumed during the execution of work under this Agreement.
Agreement HR0011-15-3-0001
Subcontractor:
Those persons or entities that,
per a written agreement with the Performer, will perform certain of the Payable Milestones. As of the date of this Agreement, the
Subcontractors consist of Agilent Technologies, Inc., Arzeda Corporation, m2p-labs GmbH, Ruprecht-Karls-Universität Heidelberg,
and Bruker Corporation.
Subject Invention:
Any Invention conceived
or first actually reduced to practice in the performance of the Program under this Agreement that is capable of use as a Tool for
making or altering a genetically modified organism; provided however, any Inventions, regardless when conceived or reduced to practice,
covering a genetically modified organism, a strain, or any compound or product made by or from an organism or strain shall not
be considered “Subject Inventions” hereunder. For the avoidance of doubt, no Inventions conceived or reduced to practice
prior to the Effective Date, excluding subject inventions conceived or first actually reduced to practice under the Amyris Living
Foundries TIA HR0011-12-3-0006, shall be considered performed “under this Agreement.”
Technology:
Discoveries, innovations, Know-How
and Inventions, whether patentable or not, including computer software, recognized under U.S. law as intellectual creations to
which rights of ownership accrue, including, but not limited to, patents, trade secrets, maskworks, and copyrights, developed under
this Agreement.
Term
: has the meaning set forth in Article
II, paragraph A.
Tools
: Software, analytical methods, standard
operating procedures, and workflow processes.
Unlimited Rights:
Rights to use, duplicate,
release, or disclose Data, in whole or in part, in any manner and for any purposes whatsoever, and to have or permit others to
do so.
C. Scope
1. The Performer shall perform the Program,
which is intended to build an open BioFab that shortens the timeline for scaling up molecules from proof of concept to market to
two to three years, reduces the cost of such development to less than $10 million per molecule, and simultaneously handles a hundred
molecules. Success will be demonstrated by delivering 1 kg of material for 10 molecules generated by an integrated pipeline that
enables the biological production of metric tons of any subsequent molecule in two to three years. The Program shall be carried
out in accordance with the Statement of Work incorporated in this Agreement as Attachment 1. The Performer shall submit or otherwise
provide all documentation required by Attachment 2, Report Requirements.
2. The Performer shall be paid for each Payable
Milestone accomplished in accordance with the Schedule of Payments and Payable Milestones set forth in Attachment 3 and the procedures
of Article V. The Schedule of Payments and Payable Milestones set forth in Attachment 3 may be revised or updated in accordance
with Article III, subject to mutual agreement of the Parties.
3. The Government and the Performer estimate that the
Statement of Work for this Agreement can only be accomplished with the Performer’s provision during the Term of the “Performer
Contribution”, as detailed in the Total Agreement Funding Plan set forth in Attachment 3 and the Funding Schedule set forth
in Attachment 4. The Total Agreement Funding Plan and the Funding Schedule may be revised or updated in accordance with Article
III, subject to mutual agreement of the Parties. The Performer intends and, by entering into this Agreement, undertakes to cause
the Performer Contribution to be provided. However, if either the Government or the Performer is unable to provide its respective
funding (in the case of the Government) or the Performer Contribution (in the case of the Performer) for the Program, the other
Party
Agreement HR0011-15-3-0001
may
reduce its funding or Performer Contribution, whichever is applicable to it, for the Program by a proportional amount. Throughout
the Term, the Parties, through the Performer’s routine reports to the Government, will monitor the Performer’s satisfaction
of the Performer Contribution and will promptly address, in good faith, any divergence or shortfall in the final Performer Contribution
amount anticipated by the Performer (e.g., the Performer purchases Property for the Program at a price significantly cheaper than
what was anticipated when establishing the Performer Contribution) and its effect, if any, on the Government’s funding obligation
under this Agreement.
D. Goals / Objectives
1. The goal of this Agreement is for the Performer
to investigate and build a BioFab that scales up molecules from proof of concept to market in less time and at less cost, as described
under Scope above. The goal is to accomplish this by incorporating radical innovations into key modules at each stage of the Design-Build-Test-Learn
cycle as described in detail Amyris Proposal “Mgs to Kgs” dated February 3, 2015. The modules will be interdependent
and align within an integrated pipeline. The foundation is a set of measurement technologies with various levels of risk. In addition
to new algorithms for pathway prediction, data analysis and hypothesis generation, the BioFab’s testing and optimization
of up to 450 molecules from a large metabolic space will require a paradigm shift from a high-throughput, single-molecule screening
platform to a high throughput, molecule-agnostic screening platform that is predictive of performance to a large scale. To address
the gaps in throughput, quality and scale, a testing platform that utilizes a tiered approach to promote strains will be developed.
Although individual tiers exist in some form at various institutions and companies (including at the Performer), there is not a
single platform that has managed to encompass all of them into a single pipeline at the proposed scale.
2. The Government will have continuous involvement
with the Performer. The Government will also obtain access to research results and certain rights in Data and Subject Inventions
pursuant to Articles VII and VIII. Government and the Performer are bound to each other by a duty of good faith and best research
effort in achieving the goals of the Program.
3. This Agreement is an "other transaction"
pursuant to 10 U.S.C. § 2371. The Parties agree that the principal purpose of this Agreement is for the Government to support
and stimulate the Performer to provide its best effort in advanced research and technology development and not for the acquisition
of property or services for the direct benefit or use of the Government. The Performer will be paid a fixed amount for each Payable
Milestone accomplished in accordance with the Payable Milestones and Corresponding Payment Schedule set forth in Attachment 3 and
the procedures of Article V. The Parties agree that the amount payable to Performer for an accomplished Payable Milestone will
be unaffected by whether Performer ends up expending more or less effort to accomplish such Payable Milestone than the Parties
assumed would be required to accomplish it. This Agreement is not intended to be, nor shall it be construed as, by implication
or otherwise, a partnership, a corporation, or other business organization.
ARTICLE II: TERM
A. Term of this Agreement
The Program commences upon the Effective
Date and continues for forty-eight (48) months, unless extended as described in paragraph C below, (the “Term”) and
is split into three development and operational phases described below and depicted in the table:
“Dev” – in the first twenty-four months,
the initial set of strain designs and testing will be generated using existing infrastructure and processes, while simultaneously
developing the new technology platforms simultaneously;
Agreement HR0011-15-3-0001
“DevOps” – newly developed technology
platforms will be transferred to pipeline operations as part of the
beta-testing
transition process;
“Ops” – once the technology transfer
is completed, the new technologies will be part of standard operations.
If all Government funds committed
for the Program and the Performer Contribution are expended prior to the expiration of the Term, the Parties have no obligation
to continue performance of the Program and may elect to cease development at that point.
Provisions of this Agreement, which,
by their express terms or by necessary implication, apply for periods of time other than specified herein, shall be given effect,
notwithstanding this Article.
Agreement HR0011-15-3-0001
[*]
[*]
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.
Agreement HR0011-15-3-0001
B. Termination Provisions
Subject to a reasonable determination
that the Program will not produce beneficial results commensurate with the expenditure of resources, either Party may terminate
this Agreement by written notice to the other Party,
provided
that such written notice is preceded by consultation between
the Parties. In the event of a termination of the Agreement under this paragraph B, it is agreed that disposition of Data shall
be in accordance with the provisions set forth in Article VIII, Data Rights. The Government and the Performer will negotiate in
good faith a reasonable and timely adjustment of all outstanding issues between the Parties as a result of termination under this
paragraph B. Failure of the Parties to agree to a reasonable adjustment will be resolved pursuant to Article VI, Disputes. The
Government has no obligation to pay the Performer beyond the last completed and paid Payable Milestone if the Performer decides
to terminate under this paragraph B. For the avoidance of doubt, any termination under this paragraph B by either Party does not
require repayment by the Performer of any Payable Milestone amounts already received by the Performer.
C. Extending the Term
The Parties may extend, by mutual
written agreement, the Term if funding availability and research opportunities reasonably warrant. Any extension shall be formalized
through modification of the Agreement by the DARPA Agreements Officer and the Performer’s Administrator.
ARTICLE III: MANAGEMENT OF THE PROJECT
A. Management and Program Structure
The Performer shall be responsible
for the overall technical and program management of the Program, and technical planning and execution shall remain with the Performer.
The DARPA Agreements Officer’s Representative, in consultation with the DARPA Program Manager or DARPA management, shall
provide recommendations to Program developments and technical collaboration and be responsible for the review and verification
of the Payable Milestones.
B. Program Management Planning Process
Program planning will consist of an Annual
Program Plan with inputs and review from the Performer and DARPA management, containing the detailed schedule of research activities
and Payable Milestones. The Annual Program Plan will consolidate quarterly adjustments in the Program’s research schedule,
including revisions/modification to Payable Milestones.
1. Initial Program Plan:
The Performer will follow the initial program plan that is contained in the Statement of Work, Attachment 1, and in the Payable
Milestones and Corresponding Payment Schedule, Attachment 3.
2. Overall Program Plan Annual Review
(a) The Performer, with DARPA Agreements Officer’s
Representative review, in consultation with the DARPA Program Manager or DARPA management, will prepare an overall Annual Program
Plan in the last month of each Agreement year (
i.e.
, October). The Annual Program Plan will be presented and reviewed at
an annual site review, to be held within the sixty (60) days of each subsequent Agreement year, which will be attended by the Performer’s
Key Personnel (as defined in Article XIV), the DARPA Agreements Officer’s Representative, senior DARPA management (as appropriate),
and other DARPA program managers and personnel (as appropriate). The Performer, with DARPA participation and review,
Agreement HR0011-15-3-0001
will prepare a final Annual Program Plan following
such annual site review as more fully described in Attachment 2, Report Requirements.
(b) The Annual Program Plan provides a detailed
schedule of the Program’s research activities, commits the Performer to use its best efforts to meet specific performance
objectives, includes forecasted expenditures and describes the Payable Milestones. The Annual Program Plan will consolidate all
prior adjustments in the Program’s research schedule, including revisions/modifications to the Payable Milestones. Recommendations
for changes, revisions or modifications to the Agreement which result from this annual review process shall be made in accordance
with the provisions of Article III, paragraph C.
C. Modifications
1. As a result of the Parties’ meetings
(in person or videoconference) or annual reviews or at any other time during the Term, the Program’s research progress or
results or other changes in circumstances (e.g., availability of required materials or equipment from external vendors, legal freedom
to operate, etc.) may indicate that a change in the Statement of Work and/or the Payable Milestones would be beneficial to Program’s
objectives. Recommendations for modifications, including justifications to support any changes to the Statement of Work and/or
the Payable Milestones, will be documented in a letter and submitted by the Performer to the DARPA Agreements Officer’s Representative
with a copy to the DARPA Agreements Officer. This documentation letter will detail the technical, chronological, and financial
impact of the proposed modification to the Program. The Performer shall approve any Agreement modification. The Government is not
obligated to pay for additional or revised Payable Milestones until the Payable Milestones and Corresponding Payment Schedule,
Attachment 3, is formally revised by the DARPA Agreements Officer and made part of this Agreement.
2. The DARPA Agreements Officer’s Representative
shall be responsible for the review and verification of any recommendations to revise or otherwise modify the Agreement, the Statement
of Work, the Payable Milestones and Corresponding Payment Schedule, or any other proposed changes to the terms and conditions of
this Agreement.
3. For minor or administrative
Agreement modifications (e.g., changes in the paying office or appropriation data, changes to Government or the Performer’s
personnel identified in the Agreement, etc.), no signature is required by the Performer.
ARTICLE IV: AGREEMENT ADMINISTRATION
Unless otherwise provided in this
Agreement, approvals permitted or required to be made by the Government may be made only by the DARPA Agreements Officer. Administrative
and contractual matters under this Agreement shall be referred to the following representatives of the Parties:
A.
Government Points of Contact:
DARPA Agreements Officer
:
*
DARPA Program Manager
:
*
DARPA Agreements Officer’s Representative
(AOR)
:
*
[*] 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.
Agreement HR0011-15-3-0001
DARPA Administrative Agreements Officer
(AAO)
:
*
DARPA Assistant Director, Program Management
(ADPM
)
*
B. Performer Points of Contact
Administrator
:
*, Program Manager, R&D, *
Contracting
:
*, General Counsel, *
Program Manager
:
*, PI, *
BioAnalytics Group Leader
:
*, Co-PI, *
Each Party may change its representatives named in this Article
by written notification to the other Party. The Government will effect the change as stated in Article III, C.3 above.
ARTICLE V: OBLIGATION AND PAYMENT A. Obligation
1. The Government’s liability to make
payments to the Performer is limited to only those funds obligated under the Agreement or by modification to the Agreement. The
Government may obligate funds to the Agreement incrementally.
2. If modification of a Payable Milestone
becomes necessary in performance of this Agreement, pursuant to Article III, paragraph C, the DARPA Agreements Officer and the
Performer’s Administrator shall execute a revised Payable Milestones and Corresponding Payment Schedule consistent with the
then current Annual Program Plan.
B. Payments for Accomplished Payable Milestones
1. The Performer has, and agrees to maintain,
an established accounting system, which complies with Generally Accepted Accounting Principles and the requirements of this Agreement
and shall ensure that appropriate arrangements have been made for receiving, distributing and accounting for all funding. An acceptable
established accounting system is one in which all cash receipts and disbursements are controlled and documented properly.
2. Once the Performer accomplishes
a Payable Milestone, the Performer may seek payment from the Government of the corresponding payment amount in the Payable Milestones
and Corresponding Payment Schedule in Attachment 3. The Performer shall document the accomplishment of such Payable Milestone by
submitting or otherwise providing the Payable Milestones Report required by Attachment 2, Part F. After written verification of
the accomplishment of such Payable Milestone by the DARPA
[*] 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.
Agreement HR0011-15-3-0001
Agreements Officer’s Representative and approval
by the DARPA Agreements Officer, the associated invoice will be submitted to the payment office via Wide Area Workflow (“WAWF”),
as detailed in subparagraph B.6 of this Article. If a Payable Milestone is composed of more than one task (
e.g.
, Payable
Milestones 2, 6, 7,
etc
.), all such tasks in such Payable Milestone must be fully accomplished before the Performer may
seek payment for such Payable Milestone. However, if a task in a single task Payable Milestone (or all of the tasks in a multi-task
Payable Milestone) cannot be completed by the applicable Milestone (MS) Month set forth in Attachment 3, the Performer will document
such event in its Monthly Technical Status Report, and the Parties will execute a contract modification to incorporate required
changes in Attachment 3, and in Attachments 1 and 4, as applicable. For clarity, the “MS Month” column set forth in
Attachment 3 sets forth the Parties’ good faith estimate of the date by which a Payable Milestone will be accomplished, but
it is not a deadline for accomplishing the applicable Payable Milestone. In addition, missing the MS Month does not prevent the
Performer from subsequently accomplishing the applicable Payable Milestone and has no effect on the corresponding payment amount
in Attachment 3 once accomplished.
If deemed necessary by the DARPA
Agreements Officer, payment approval for the final Payable Milestone will be made after reconciliation of actual Government funding
for the Program with the actual Performer Contribution amount. While there will be this final Government reconciliation and accounting
of the Performer Contribution amount, the Parties agree that the quarterly accounting of the Performer Contribution, as reported
in the quarterly Business Status Report submitted in accordance with Attachment 2, will not, nor is it necessarily intended or
required to, uniformly or proportionally track or match the estimated schedule of the Performer Contribution set forth in either
Attachments 3 or 4.
3. Subject to change only
through written Agreement modification, payment shall be made to the address of the Performer’s Administrator set forth below.
AMYRIS, INC., 5885 Hollis Street,
Suite 100, Emeryville, California 94608
4. Payments will be made by the cognizant
Defense Agencies Financial Services office, as indicated below, within thirty (30) calendar days of an accepted invoice in WAWF.
WAWF is a secure web-based system for electronic invoicing, receipt and acceptance. The WAWF application enables electronic form
submission of invoices, government inspection, and acceptance documents in order to support DoD’s goal of moving to a paperless
acquisition process. Authorized DoD users are notified of pending actions by e-mail and are presented with a collection of documents
required to process the contracting or financial action. It uses Public Key Infrastructure (“PKI”) to electronically
bind the digital signature to provide non-reputable proof that the user (electronically) signed the document with the contents.
Benefits include online access and full spectrum view of document status, minimized re-keying and improving data accuracy, eliminating
unmatched disbursements and making all documentation required for payment easily accessible.
The Performer is required to utilize the WAWF system when processing invoices and receiving reports under this Agreement. The Performer shall (i) ensure an Electronic Business Point of Contact is designated in Central Contractor Registration at
http://www.ccr.gov
and (ii) register to use WAWF–RA at the
https://wawf.eb.mil
site, within ten (10) calendar days after award of this Agreement. Step by step procedures to register are available at the
https://wawf.eb.mil
site. The Performer is directed to use the “2-in-1” format when processing invoices.
a. For the Issue By DoDAAC enter HR0011
b. For the Admin DoDAAC and Ship To fields,
enter S0507A.
c. For the Service Acceptor
field, enter HR0011, Extension 01.
d. Leave the Inspect by DoDAAC,
Ship From Code DoDAAC and LPO DoDAAC fields blank unless otherwise directed by the DARPA Agreements Officer or DARPA Administrative
Agreements Officer.
Agreement HR0011-15-3-0001
e. The following guidance is provided for invoicing
processed under this Agreement through WAWF:
• The DARPA Agreements Officer’s
Representative identified at Article IV "Agreement Administration" shall continue to formally inspect and accept the
deliverable Payable Milestone reports. To the maximum extent practicable, the DARPA Agreements Officer’s Representative shall
review the Payable Milestone report(s) and either: 1) provide a written notice of rejection to the Performer which includes feedback
regarding deficiencies requiring correction or 2) written notice of acceptance to the DARPA Administrative Agreements Officer,
DARPA Program Manager and DARPA Agreements Officer.
• Acceptance within the WAWF system
shall be performed by the DARPA Agreements Officer upon receipt of a confirmation email, or other form of transmittal, from the
DARPA Agreements Officer’s Representative.
• The Performer shall send an email
notice to the DARPA Agreements Officer’s Representative and DARPA Agreements Officer upon submission of an invoice in WAWF
(this can be done from within WAWF).
• Payments shall be made by DFAS-CO/WEST
(HQ0339)
• The Performer agrees, when entering
invoices entered in WAWF to utilize the CLINs associated with each Payable Milestone as delineated at Attachment 3. The description
of the CLIN shall include reference to the associated milestone number along with other necessary descriptive information. The
Performer agrees that the Government may reject invoices not submitted in accordance with this provision.
Note for DFAS: The Agreement shall be entered into
the DFAS system by CLIN – Milestone association as delineated at Attachment 3. The Agreement is to be paid out by CLIN –
Milestone association. Payments shall be made using the CLIN (MS)/ACRN association as delineated at Attachment 3.
5. Payee Information: As
identified at Central Contractor Registration.
• Cage Code: *
• DUNS: *
• TIN: 55-0856151
6. Financial Records and Reports: The Performer
shall maintain adequate records to account for accomplishment of all Payable Milestones for which payment is received by the Performer
under this Agreement and shall maintain adequate records to account for the Performer Contribution provided under this Agreement.
Upon completion or termination of this Agreement, whichever occurs earlier, the Performer’s Administrator shall furnish to
the DARPA Agreements Officer a copy of the Final Report required by Attachment 2, Part E. The Performer’s relevant financial
records are subject to examination or audit on behalf of DARPA by the Government for a period not to exceed three (3) years after
expiration or earlier termination of the Term. The DARPA Agreements Officer or designee shall have direct access to sufficient
records and information of the Performer to ensure accomplishment of the Payable Milestones for which payment was received by the
Performer under this Agreement and satisfaction of the Performer Contribution under this Agreement. Such audit, examination, or
access shall be performed during business
[*] 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.
Agreement HR0011-15-3-0001
hours on business days upon reasonable, prior written
notice and shall be subject to the security requirements of the audited party.
For clarity,
where the labor component of the Performer Contribution is based upon a fixed price hourly commercial rate(s) documented in a contract
(e.g., GSA Schedule contract), the examination or audit of the labor component of such costs shall be limited to a review of hours
worked and shall not include a review of the rates.
C. Accounting and Appropriation Data
CLIN/SLIN/ACRN: 0001/01/AA
LOA: 012199 097 0400 000 N 20152016 D 1320 BLTM66 2015.MBT-02.CORE.A
DARPA 255
FUNDING AMOUNT: $6,035,686
ARTICLE VI: DISPUTES
A. General
The Parties shall communicate with one another in good
faith and in a timely and cooperative manner when raising issues under this Article.
B. Dispute Resolution Procedures
1. Any dispute, disagreement, or misunderstanding
between the Government and the Performer concerning questions of fact or law arising from or in connection with this Agreement,
and, whether or not involving an alleged breach of this Agreement, may be raised only under this Article.
2. Whenever disputes, disagreements, or misunderstandings
arise, the Party aggrieved by such dispute, disagreement, or misunderstanding shall provide written notice to the other Party involved
identifying the matter in dispute and inviting the other Party involved in the dispute to attempt to resolve the issue(s) involved
by discussion and mutual agreement as soon as practicable. If the aggrieved Party does not provide the notification made under
subparagraph B.3 of this Article within three (3) months of becoming aware of the dispute, disagreement, or misunderstanding, then
such dispute, disagreement, or misunderstanding will not constitute the basis for relief under this Article unless the Director
of DARPA in the interests of justice waives this requirement.
3. Failing resolution by mutual agreement described
above, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party (through
the DARPA Agreements Officer or the Performer’s Administrator, as the case may be) in writing of the relevant facts, identify
unresolved issues, and specify the clarification or remedy sought. Within five (5) business days after providing such notice to
the other Party, the aggrieved Party may, in writing, request a joint decision by the DARPA Senior Procurement Executive and a
senior executive (no lower than Vice President, Legal) appointed by the Performer. The other Party shall submit a written position
on the matter(s) in dispute within thirty (30) calendar days after being notified in writing that a joint decision has been requested
regarding the dispute, disagreement, or misunderstanding. The DARPA Senior Procurement Executive and the Performer’s senior
executive shall conduct a review of the matter(s) in dispute and render a decision in writing within thirty (30) calendar days
of receipt of such other Party’s written position. Any such joint decision is final and binding.
4. In the absence of a joint decision, upon written
request to the Director of DARPA, made within thirty (30) calendar days of the expiration of the time for a joint decision under
subparagraph B.3 above, the dispute, disagreement, or misunderstanding shall be further reviewed. The Director of DARPA may elect
to conduct this review personally or through a designee or jointly with a senior executive (no lower than Vice
Agreement HR0011-15-3-0001
President, Legal) appointed by the Performer. Following
the review, the Director of DARPA or designee will resolve the issue(s) and notify the Parties in writing. Such resolution is not
subject to further administrative review and, to the extent permitted by law, shall be final and binding.
C. Limitation of Damages
Claims for damages of any nature
whatsoever pursued under this Agreement shall be limited to direct damages only up to the aggregate amount of Government funding
disbursed as of the time the dispute arises. In no event shall the Government be liable for claims for consequential, punitive,
special and incidental damages, claims for lost profits, or other indirect damages.
ARTICLE VII: PATENT RIGHTS
A. Allocation of Principal Rights
Unless the Performer shall have notified
DARPA (in accordance with subparagraph B.2 below) that the Performer does not intend to retain title, the Performer shall retain
the entire right, title, and interest throughout the world to each Subject Invention consistent with the provisions of this Article
and 35 U.S.C. § 202. With respect to any Subject Invention in which the Performer retains title, the Government shall have
a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced on behalf of the Government the Subject
Invention throughout the world.
With regard to Inventions made under this Agreement that are
not Subject Inventions, i.e. Inventions relating to genetically modified organisms, strains, or any compounds or products made
by or from such organisms or strains that are conceived or first actually reduced to practice in the performance of the Program,
the Government retains a right to request from Performer a nonexclusive, nontransferable, irrevocable license, on fair and reasonable
terms, to such Inventions to have such Inventions practiced on behalf of the Government throughout the world. The Government will
provide Performer with written notice identifying the specific Invention to which it is requesting such license. Prior to granting
such license, the Parties agree to negotiate in good faith fair and reasonable terms under which the Performer would be the exclusive
supplier/manufacturer to the Government of the desired compound or product under the Government’s license. Upon agreement
of such fair and reasonable terms between the Performer and the Government, the Performer shall grant the Government the nonexclusive
license described above to such identified Inventions. In the event that no agreement is reached between Performer and Government
with regard to said fair and reasonable terms on Performer’s supply/manufacturing rights, Performer shall nonetheless grant
the Government a nonexclusive, nontransferable, irrevocable license, on fair and reasonable terms, to such Inventions to have such
Inventions practiced on behalf of the Government throughout the world. Failure to reach agreement on fair and reasonable terms
will be resolved in accordance with Article VI. Disputes.
B. Invention Disclosure, Election of Title, and
Filing of Patent Application
1. The Performer shall disclose each Subject
Invention to DARPA within four (4) months after the inventor discloses it in writing to Performer’s personnel responsible
for patent matters or, in the case of no internal writing from the inventor, within two (2) months after Performer files a provisional
application for it; provided however, that in the event the Performer does not file a provisional application, Performer shall
disclose the Subject Invention to the Government within two (2) months of determining that a particular set of experiments and
or data qualify as a Subject Invention. The disclosure to the Government shall be in the form of a written report and shall identify
the Agreement under which the Subject Invention was Made and the identity of the inventor(s). It shall be sufficiently complete
in technical detail to convey a clear understanding to the extent known at the time of the disclosure, of the nature, purpose,
operation, and the physical, chemical, biological, or electrical characteristics of the Subject Invention. The disclosure shall
Agreement HR0011-15-3-0001
also identify any publication, sale, or public use of
the Subject Invention and whether a manuscript describing the Subject Invention has been submitted for publication and, if so,
whether it has been accepted for publication at the time of disclosure. The Performer shall also submit to the Government an annual
listing of Subject Inventions.
2. If the Performer determines that it does not
intend to retain title to any such Subject Invention, the Performer shall notify the Government, in writing, within eight (8) months
of disclosure to DARPA. However, in any case where publication, sale, or public use has initiated the one (1)-year statutory period
wherein valid patent protection can still be obtained in the United States, the period for such notice may be shortened by DARPA
to a date that is no more than sixty (60) calendar days prior to the end of the statutory period.
3. The Performer shall file its initial patent
application on a Subject Invention to which it elects to retain title within one (1) year after election of title or, if earlier,
prior to the end of the statutory period wherein valid patent protection can be obtained in the United States after a publication,
or sale, or public use. The Performer may elect to file patent applications in additional countries (including the European Patent
Office and the Patent Cooperation Treaty) within either: (i) ten (10) months of the corresponding initial patent application; or
(ii) six (6) months from the date permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications
where such filing has been prohibited by a secrecy order.
4. Requests for extension
of the time for disclosure, election, and filing under Article VII, paragraph B, may, at the discretion of DARPA, and after considering
the position of the Performer, be granted.
C. Conditions When the Government May Obtain Title
Upon DARPA’s written request,
the Performer shall convey title to any Subject Invention to DARPA under any of the following conditions:
1. If the Performer fails to disclose or elects
not to retain title to the Subject Invention within the times specified in paragraph B of this Article; provided, that DARPA may
request title only within sixty (60) calendar days after learning of: (i) the failure of the Performer to disclose; or (ii) Performer’s
election not to retain title, in each case within the specified times.
2. In those countries in which the Performer
fails to file patent applications within the times specified in paragraph B of this Article; provided, that if the Performer has
filed a patent application in a country after the times specified in paragraph B of this Article, but prior to its receipt of the
written request by DARPA, the Performer shall continue to retain title to the Subject Invention in that country; or
3. In any country in which the Performer decides
not to continue the prosecution of, to pay the maintenance fees on, or defend a reexamination of or opposition proceedings on,
a patent application or patent on a Subject Invention.
D. Minimum Rights to the Performer and Protection
of the Performer’s Right to File
1. The Performer shall retain a nonexclusive,
royalty-free, paid-up license throughout the world in each Subject Invention to which the Government obtains title under paragraph
C of this Article, except if the Performer fails to disclose the Subject Invention within the times specified in paragraph B of
this Article. The Performer’s license to such Subject Invention extends to the Performer’s Affiliates and Collaborators,
if any, and includes the right to grant sublicenses of the same scope to the extent that the Performer was legally obligated to
do so at the time the Agreement was awarded. The license is transferable only with the
Agreement HR0011-15-3-0001
approval of DARPA, except as noted above regarding Affiliates
and Collaborators of Performer or when transferred to the successor of that part of the Performer’s business to which the
Subject Invention pertains. DARPA approval for a license transfer requiring DARPA approval shall not be unreasonably withheld or
delayed.
2. The Performer’s license in subparagraph
D.1 of this Article may be revoked or modified by DARPA to the extent necessary to achieve expeditious Practical Application of
the Subject Invention pursuant to an application for an exclusive license submitted consistent with appropriate provisions at 37
CFR Part 404. This license shall not be revoked in that field of use or the geographical areas in which the Performer continues
to practice the general technology developed hereunder in pursuit of commercial goals, including the goal of making the products
derived from such platforms reasonably accessible to the public.
3. Before revocation or modification of the Performer’s
license in subparagraph D.1 of this Article, DARPA shall furnish the Performer a written notice of its intention to revoke or modify
the license, and the Performer shall be allowed thirty (30) calendar days (or such other time as may be authorized for good cause
shown) after the notice to show cause why the license should not be revoked or modified.
E. Action to Protect the Government’s Interest
1. The Performer agrees to execute or to have
executed and promptly deliver to DARPA all instruments necessary to: (i) establish or confirm the rights the Government has throughout
the world in those Subject Inventions to which the Performer elects to retain title; and (ii) convey title to DARPA when requested
under paragraph D of this Article and to enable the Government to obtain patent protection throughout the world in that Subject
Invention.
2. The Performer agrees to require, by written
agreement, its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified
as responsible for the administration of patent matters and in a format suggested by the Performer each Subject Invention Made
under this Agreement in order that the Performer can comply with the disclosure provisions of paragraph B of this Article. The
Performer shall instruct employees, through employee agreements or other suitable educational programs, on the importance of reporting
Subject Inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.
3. The Performer shall notify DARPA of any decisions
not to continue the prosecution of, pay maintenance fees for, or defend in a reexamination or opposition proceedings on a Subject
Invention patent application or patent, in any country, not less than thirty (30) calendar days before the expiration of the response
period required by the relevant patent office.
4. The Performer shall include, within the specification
of any United States patent application and any patent issuing thereon covering a Subject Invention, the following statement: “This
invention was made with Government support under Agreement HR0011-15-3-0001, awarded by DARPA. The Government has certain rights
in the invention.”
F. Lower Tier Agreements
The Performer shall include this
Article VII, suitably modified to identify the Parties and, as applicable, Subcontractors, in all subcontracts or lower tier agreements,
regardless of tier, for experimental, developmental, or research work under the Program.
Agreement HR0011-15-3-0001
G. Reporting on Utilization of Subject Inventions
1. Pursuant to Attachment 2, the Performer agrees
to submit, during the Term, an annual report on the general subject matter research at Performer or its Collaborators, licensees
or assignees in connection with utilization of a Subject Invention or on efforts at obtaining such utilization that is being made
by the Performer or its Collaborators, licensees or assignees. Such reports shall include information regarding the general fields
of potential products where such Subject Inventions may ultimately assist in commercial sales. The Performer also agrees to provide
additional reports as may be requested by DARPA in connection with any march-in proceedings undertaken by DARPA in accordance with
paragraph I of this Article. Consistent with 35 U.S.C. § 202(c) (5), DARPA agrees it shall not disclose such information to
persons outside the Government without permission of the Performer.
2. All required reporting shall be accomplished,
to the extent possible, using the iEdison reporting website:
https://s-edison.info.nih.gov/iEdison/
.
To the extent any such reporting cannot be carried out by use of i-Edison, reports and communications shall be submitted to the
DARPA Agreements Officer and DARPA Administrative Agreements Officer.
H. Preference for American Industry
Notwithstanding any other provision
of this clause, the Performer agrees that it shall not grant to any person the exclusive right to use or sell any Subject Invention
in the United States or Canada unless such person agrees that any product embodying the Subject Invention or produced through the
use of the Subject Invention shall be manufactured substantially in the United States or Canada, except when such rights are in
connection with a Collaborator. However, in individual cases, the requirements for such an agreement beyond what is contemplated
herein may be waived by DARPA upon a showing by the Performer: (1) that reasonable but unsuccessful efforts have been made to grant
licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States; or (2)
that, under the circumstances, domestic manufacture is not commercially feasible.
I. March-in Rights
The Performer agrees that, with respect
to any Subject Invention in which it has retained title, DARPA has the right to require the Performer, an assignee, or exclusive
licensee of a Subject Invention to grant a non-exclusive license to a responsible applicant or applicants, upon terms that are
reasonable under the circumstances, and if the Performer, assignee, or exclusive licensee refuses such a request, DARPA has the
right to grant such a license itself if DARPA determines that:
1. Such action is necessary because the Performer,
assignee, or exclusive licensee has not taken effective steps, consistent with the intent of this Agreement, to achieve Practical
Application of the Subject Invention;
2. Such action is necessary to alleviate health
or safety needs which are not reasonably satisfied by the Performer, assignee, or exclusive licensee;
3. Such action is necessary to meet requirements
for public use and such requirements are not reasonably satisfied by the Performer, assignee, or exclusive licensee; or
4. Such action is necessary because the agreement
required by paragraph I of this Article has not been obtained or waived or because a licensee of the exclusive right to use or
sell any Subject Invention in the United States is in breach of such agreement.
Agreement HR0011-15-3-0001
ARTICLE VIII: DATA RIGHTS
A. Allocation of Principal Rights
1. This Agreement shall be performed with mixed
Government and Performer funding. The Parties agree that in consideration for Government funding, the Performer intends to reduce
to Practical Application Subject Invention(s) developed under this Agreement.
2. The Performer agrees to retain and maintain
in good condition, until two (2) years after completion or termination of this Agreement, all Data necessary to achieve Practical
Application of Subject Invention(s).
3. In the event of exercise of the Government’s
“March-in Rights” as set forth under Article VII or in this subparagraph, the Performer agrees that, with respect to
Data necessary to achieve Practical Application of the applicable Subject Invention(s), the Government has the right to require
the Performer to deliver, within sixty (60) calendar days from the date of the written request and at no additional cost to the
Government, all such Data to the Government in accordance with its reasonable directions if the Government determines that:
(a) Such action is necessary because the Performer,
assignee, or exclusive licensee has not taken effective steps, consistent with the intent of this Agreement, to achieve Practical
Application of the Subject Invention(s) developed during the performance of this Agreement;
(b) Such action is necessary to alleviate health
or safety needs which are not reasonably satisfied by the Performer, assignee, or exclusive licensee; or
(c) Such action is necessary to meet requirements
for public use and such requirements are not reasonably satisfied by the Performer, assignee, or exclusive licensee.
4. With respect to all Data delivered in the
event of the Government’s exercise of its right under this subparagraph A.3, the Government shall receive Unlimited Rights.
5. With respect to Data
developed, generated or delivered under this Agreement, the Government shall receive Government Purpose Rights.
6. Any data or intellectual property developed
or generated exclusively at private expense, either prior to, or outside the scope of, this Agreement, to be utilized or delivered
under this Agreement by the Performer and/or its Subcontractors shall be delivered with restrictions as delineated in the List
of Intellectual Property Assertions provided in Attachment 5. The Performer reserves the right to add to or modify the data or
intellectual property identified in Attachment 5, but agrees that it will not use in the performance of this Agreement any private
expense data or intellectual property until Attachment 5 is modified to reflect such additional data or intellectual property,
in a contractual document executed by the Contracting Officer.
B. Marking of Data
Pursuant to paragraph A above, any
Data delivered under this Agreement shall be marked with the following legend:
“Use, duplication, or disclosure
is subject to the restrictions as stated in Agreement HR0011-15-3-0001 between DARPA and Amyris, Inc.”
Agreement HR0011-15-3-0001
C. Lower Tier Agreements
The Performer shall include this
Article, suitably modified to identify the Parties and, as applicable, Subcontractors, in all subcontracts or lower tier agreements,
regardless of tier, for experimental, developmental, or research work under the Program.
ARTICLE IX: FOREIGN ACCESS TO TECHNOLOGY
This Article shall remain in effect during the Term
and for two (2) years thereafter.
A. General
The Parties agree that research findings
and technology developments arising under this Agreement may constitute a significant enhancement to the national defense and to
the economic vitality of the United States. Accordingly, access to important technology developments under this Agreement by Foreign
Firms or Institutions must be carefully controlled. The controls contemplated in this Article are in addition to, and are not intended
to change or supersede, the provisions of the International Traffic in Arms Regulation (22 CFR pt. 121 et seq.), the DoD Industrial
Security Regulation (DoD 5220.22-R) and the Department of Commerce Export Regulation (15 CFR pt. 770 et seq.)
B. Restrictions on Sale or Transfer of Technology
to Foreign Firms or Institutions
1. In order to promote the national security
interests of the United States and to effectuate the policies that underlie the regulations cited above, the procedures stated
in subparagraphs B.2 and B.3 below shall apply to any proposed Transfer of Technology. For purposes of this Article IX, a “Transfer
of Technology” means a sale of the Performer or of a Subcontractors, and sales or licensing of Technology, however, the term
“Transfer of Technology” does not include:
(a) sales of products or components incorporating
or produced via a Subject Invention(s), or licenses or sales of any genetically modified organism, strain, or compound made by
or from such an organism, strain, excluding genetically modified organism, strain or compound made by or from an organism or strain
developed under this Program.
(b) licenses of software or documentation related
to sales of products or components described in clause (a), or
(c) a transfer of Technology to foreign subsidiaries
of the Performer for purposes related to this Agreement or to Collaborators, or
(d) a transfer of Technology to a Foreign Firm
or Institution, which is a Subcontractor or an approved source of supply or source for the conduct of research under this Agreement;
provided that such transfer shall be limited to that necessary to allow the Foreign Firm or Institution to perform its approved
role under this Agreement.
2. The Performer shall provide written notice
to the DARPA Agreements Officer’s Representative and DARPA Agreements Officer of any proposed Transfer of Technology to a
Foreign Firm or Institution by Performer or a Subcontractor at least sixty (60) calendar days prior to the proposed date of transfer.
Such notice shall cite this Article and shall state specifically what Technology is to be transferred and the general terms of
the transfer. Within thirty (30) calendar days of receipt of the Performer’s written notification, the DARPA Agreements Officer
shall advise the Performer whether it consents to the proposed
Agreement HR0011-15-3-0001
Transfer. If DARPA determines that the proposed Transfer
of Technology may have adverse consequences to the national security interests of the United States, the Performer (or, if applicable,
a Subcontractor) and DARPA shall jointly endeavor to find alternatives to the proposed Transfer of Technology which obviate or
mitigate potential adverse consequences of the Transfer of Technology but which provide substantially equivalent benefits to the
Performer (or, if applicable, a Subcontractor). In cases where DARPA does not concur or sixty (60) calendar days after receipt
and DARPA provides no decision, the Performer (or, if applicable, Performer on behalf of a Subcontractor) may utilize the procedures
under Article VI, Disputes. No such Transfer shall take place until a decision is rendered.
3. In the event a Transfer of Technology to a
Foreign Firm or Institution which is NOT approved by DARPA takes place, the Performer shall: (a) refund to DARPA funds paid by
DARPA for the development of such unapproved transferred Technology; and (b) the Government shall have a non-exclusive, nontransferable,
irrevocable, paid-up license to practice or have practiced on behalf of the Government such Technology throughout the world for
the Government and any and all other purposes, particularly to effectuate the intent of this Agreement. Upon request of the Government,
the Performer shall provide written confirmation of such licenses.
C. Lower Tier Agreements
The Performer shall include this
Article, suitably modified to identify the Parties and, as applicable, Subcontractors, in all subcontracts or lower tier agreements,
regardless of tier, for experimental, developmental, or research work under the Program.
ARTICLE X: TITLE TO AND DISPOSITION OF PROPERTY
A. Title to Property
Title to any items of Property acquired
under this Agreement with an acquisition value of $5,000 or less shall vest in the Performer (and/or its Subcontractors) upon acquisition
with no further obligation of the Parties unless otherwise determined in advance by the DARPA Agreements Officer. The Performer
(and/or its Subcontractors) will acquire Property with an acquisition value greater than $5,000 under this Agreement as set forth
in Attachment 6 to this Agreement, which Property is necessary to further the research and development goals of this Program and
is not for the direct benefit of the Government. Title to this Property shall vest in the Performer (and/or its Subcontractors)
upon acquisition. Should any other item of Property with an acquisition value greater than $5,000 be required during the Program,
the Performer shall obtain prior written approval of the DARPA Agreements Officer, which approval shall not to be unreasonably
withheld or delayed. Title to this later acquired Property shall also vest in the Performer (and/or its Subcontractors) upon acquisition.
The Performer (and/or its Subcontractors) shall be responsible for the maintenance, repair, protection, and preservation of all
such Property at its own expense.
B. Disposition of Property with Value >$5,000
At the completion or termination of the Term,
title to (i) items of Property set forth in Attachment 6 and (ii) any other items of Property acquired under the Program with an
acquisition value greater than $5,000 shall remain vested with the Performer and, if applicable, its Subcontractors without further
obligation to the Government.
Agreement HR0011-15-3-0001
ARTICLE XI: CIVIL RIGHTS ACT
This Agreement is subject to the
compliance requirements of Title VI of the Civil Rights Act of 1964 as amended (42 U.S.C. 2000-d) relating to nondiscrimination
in Federally assisted programs. The Performer has signed a Certifications for Agreement No. HR0011-15-3-0001, a copy of which is
attached hereto as Attachment 7, which certifies, among other matters, the Performer’s compliance with the nondiscriminatory
provisions of the Act.
ARTICLE XII: SECURITY
The Government does not anticipate
the need for the Performer (or its Subcontractors) to develop and/or handle classified information in the performance of this Agreement.
No DD254 is currently required for this Agreement.
ARTICLE XIII: SUBCONTRACTORS
The Performer shall make every
effort to satisfy the intent of competitive bidding of sub-agreements to the maximum extent practical. The Performer may use foreign
entities or nationals as Subcontractors, subject to compliance with the requirements of this Agreement and to the extent otherwise
permitted by law.
ARTICLE XIV: KEY PERSONNEL
A. The Performer shall notify the DARPA Agreements
Officer in writing prior to making any change in Key Personnel for the Program. The following individuals are designated as ”Key
Personnel” for the purposes of this Agreement:
|
Name
|
Role/Title
|
% Time
|
|
*
|
Principal Investigator (PI)
|
100%
|
|
*
|
Co-PI
|
100%
|
B. When replacing any of the Key Personnel identified
above, the Performer must demonstrate that the qualifications of the prospective Key Personnel are acceptable to the Government
as reasonably determined by the Program Manager. Substitution of Key Personnel shall be documented by modification to the Agreement
made in accordance with the procedures outlined in Article III, paragraph C.
ARTICLE XV: ORDER OF PRECEDENCE
In the event of any inconsistency
between the terms of this Agreement and language set forth in the Attachments, the inconsistency shall be resolved by giving precedence
in the following order: (1) the Agreement; and (2) all Attachments to the Agreement.
ARTICLE XVI: EXECUTION
This Agreement constitutes the entire
agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and
[*] 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.
Agreement HR0011-15-3-0001
discussions among the Parties, whether oral or written,
with respect to the subject matter hereof. This Agreement may be revised only by written consent of the Performer and the DARPA
Agreements Officer. This Agreement, or modifications thereto, may be executed in counterparts each of which shall be deemed as
original, but all of which taken together shall constitute one and the same instrument.
ARTICLE XVII: APPLICABLE LAW
United States federal law will apply
to the construction, interpretation, and resolution of any disputes arising out of or in connection with this Agreement.
ARTICLE XIII: SEVERABILITY
In the event that any one or more
of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provisions had never been contained herein, unless the deletion of such
provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein
to be unreasonable.
ARTICLE XIX: DATA SHARING PLAN AND STATUS REPORTING
It is the goal of the Government
that its investment in the tools and capabilities developed under the Program to be multiplied many-fold by adoption and improvement
by researchers across the United States. In order to achieve this vision, the Living Foundries program aims to facilitate interoperability
and open the field to new entrants.
The Performer shall make available
the Tools developed under the Program to the broader synthetic biology community by presenting its Program research Data at public
meetings, conferences, and workshops and publishing results in peer-reviewed journal articles. At a minimum, the types of information
that will be made available to the broader synthetic biology community are as discussed below:
(i) Data and analysis necessary to evaluate
the utility of the Tools developed under the Program, including standard operating procedures and design specifications enabling
others to reconstitute the equipment, set up, and approaches developed.
(ii) Details required
for technical evaluation of the Tools developed under the Program: full protocols, technical drawings of equipment built and specifications
met, Data on accuracy and precision of these systems, and results of procedures performed against large number of samples to investigate
the robustness and readiness of the approaches for broader distribution – providing a trained reader with the information
needed to recapitulate the methods and results described.
(iii) The Key Personnel
shall be reasonably available to consult with third parties seeking to replicate the results.
The Performer shall include as part
of required monthly Technical Status Reports in Attachment 2 an on-going status of efforts to develop and/or carry out this Intellectual
Property and Data Sharing plan. Reporting shall include a summary of Data sharing activities that have taken place during the reporting
period, and any Data sharing activities planned to take place within three months of the reporting period.
Agreement HR0011-15-3-0001
The Performer shall also include as part of required monthly
Technical Status Reports in Attachment 2 a listing of the Performer’s Subject Invention disclosures, Subject Invention patent
applications and a brief discussion summarizing plans, if any, to license the resulting Subject Inventions (e.g., intent and rationale
regarding whether the Performer intends to seek non-exclusive licensing, exclusive licensing for a particular field of use, or
exclusive licensing across the board, etc.).
Attachment 1
M2K Program
Statement of Work (SOW)
References:
|
|
(a)
|
Amyris Proposal “Mgs to Kgs” (M2K) dated February 3, 2015
|
As detailed in reference (a), the Performer will complete
the work set forth below to achieve the Program Goals / Objectives set forth in Technology Investment Agreement HR0011-15-3-0001.
MODULE A: *
Task A.1: * (Ubersax, Amyris)
Task Objective:
*
Milestone (Month 3):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task A.2: * (Meadows, Amyris)
Task Objective:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables *
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 30):
*
[*] 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.
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 36):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 42):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 48):
*
Metrics/Completion Criteria:
*
Deliverables:
*
MODULE B: *
Task B.1: * (Singh, Amyris)
Task Objective:
*
Milestone (Month 3):
*
Deliverables:
*
Milestone (Month 12):
*
Deliverables:
*
Task B.2: * (Singh, Amyris)
Task Objective:
*
Milestone (Month 3):
*
[*] 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.
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 9):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task B.3: * (Singh, Amyris)
Task Objective:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables: *
Milestone (Month 9):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 15):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 18
):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 21):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
[*] 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.
Deliverables:
*.
Milestone (Month 30
):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 36
):
*
Metrics/Completion Criteria*
Deliverables:
*
Task B.4: * (Singh, Amyris)
Task Objective:
*
Milestone (Month 3):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*.
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*.
Task B.5: Designer (Singh, Amyris)
Task Objective:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
[*] 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.
Deliverables:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 21):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 30):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 30):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 36):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 42):
*
Metrics/Completion Criteria:
*
Deliverables:
*
MODULE C: *
Task C.1: * (Toofanny, Arzeda).
Task Objective:
*
[*] 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.
Milestone (Month 3):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 9)
: *
Metrics/Completion Criteria
: *
Deliverables:
*
Milestone (Month 9):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task C.2: * (Galdzicki, Arzeda).
Task Objective:
*
Milestone (Month 18):
*
[*] 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.
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (month 30):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 42):
*
Metrics/Completion Criteria:
*
Deliverables:
*
MODULE D: *
Task D.1: * (Ban, Arzeda)
Task Objective:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
[*] 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.
Deliverables:
*
Task D.2: * (Ban, Arzeda)
Task Objective:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 9):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 12*
Metrics/Completion Criteria
: *
Deliverables:
*
Milestone (Month 15):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 21):
*
[*] 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.
Metrics/Completion Criteria:
*
Deliverables:
*
Task D.3: * (Ban, Arzeda)
Task Objective
: *
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverable:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverable:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverable:
*
Task D.4: * (Ban, Arzeda)
Task Objective*
Milestone (Month 20):
*
[*] 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.
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 22):
*
Metrics/Completion Criteria:
*
Deliverables*
Milestone (Month 24)
: *
Metrics/Completion Criteria:
*
Deliverables:
*
Task D.5: * (Ban, Arzeda).
Task Objective:
*
Milestone (Month 30):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 36):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 45):
*
Metrics/Completion Criteria:
*
Deliverables
: *
Milestone (Month 48)
: *
Metrics/Completion Criteria:
*
[*] 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.
Deliverable
: *
MODULE E: *
Task E.1: * (Horwitz, Amyris)
Task Objective:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task E.2: * (Horwitz, Amyris)
Task Objective:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task E.3 (Month 24): * (Horwitz, Amyris)
Task Objective:
*
Milestone (Month 18):
*
[*] 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.
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
MODULE F: *
Task F.1: * (Shapland, Amyris)
Task Objective:
*
Milestone (Month 3):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask F.1.1 (Month 3):
*
Subtask F.1.2 (Month 3):
*
Subtask F.1.3 (Month 1):
*
Subtask F.1.4 (Month 3):
*
Task F.2: * (Shapland, Amyris)
Task Objective:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask F.2.1 (Month 3):
*
Subtask F.2.2 (Month 3):
*
Subtask F.2.2 (Month 4):
*
Subtask F.2.4 (Month 5):
*
[*] 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.
Subtask F.2.5 (Month 6):
*
Task F.3: * (Shapland, Amyris)
Task Objective:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask F.3.1 (Month 3):
*
Subtask F.3.2 (Month 3):
*
Subtask F.3.2 (Month 4
): *
Subtask F.3.4 (Month 10):
*
Subtask F.3.5 (Month 12):
*
MODULE G: DELETED
MODULE H: *
Task H.1: * (Apffel, Agilent)
Task Objective:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
[*] 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.
Deliverables:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask H.1.1 (Month 3):
*
Subtask H.1.2 (Month 15):
*
Task H.2: * (Denery, Amyris).
Task Objective:
*
Milestone (Month 6)
: *
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task H.3: * (Denery, Amyris)
Task Objective:
*
Milestone (Month 6):
*
[*] 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.
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 18) *
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask H.3.1 (Month 1):
*
Task H.4: * (Apffel, Agilent)
Task Objective:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
[*] 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.
Deliverables:
*
Milestone (Month 24):
*
Metrics/Completion Criteria:
*
Deliverables: *
Subtask H.4.1 (Month 18):
*
Task H.5: * (Apffel, Agilent)
Task Objective:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask H.5.1 (Month 2):
*
Task H.6: * (Denery, Amyris)
Task Objective:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Milestone (Month 18
): *
Metrics/Completion Criteria:
*
Deliverables:
*
[*] 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.
Milestone (Month 30):
*
Metrics/Completion Criteria:
*
Deliverables:
*
MODULE I: *
Task I.1: * (Trapp, Univ. of Heidelberg)
Task Objective:
*
Milestone (Month 9
): *
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask I.1.1 (Month 2): *
Subtask I.1.2 (Month 5):
*
Subtask I.1.3 (month 8):
*
Task I.2: * (Trapp, Univ. of Heidelberg)
Task Objective:
*
Milestone (month 9
): *
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask I.2.1 (Month 1):
*
Subtask I.2.2 (Month 5):
*
Subtask I.2.3 (Month 8):
*
Task I.3: * (van Deren, Amyris)
[*] 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.
Task Objective:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask I.3.1 (Month 10):
*
Task I.4: * (van Deren, Amyris)
Task Objective:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask I.4.1 (Month 9):
*
Subtask I.4.2 (Month 12):
*
Subtask I.4.3 (month 15):
*
Task I.5: * (Trapp, Univ. of Heidelberg)
Task Objective:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Subtask I.5.1 (Month 10):
*
Task I.6: * (van Deren, Amyris)
Task Objective:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*
[*] 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.
Subtask I.6.1 (Month 9):
*
Subtask I.6.2 (Month 12):
*
Subtask I.6.3 (month15):
*
MODULE J: *
Task J.1: * (Leaf, Amyris)
Task Objective:
*
Milestone (Month 3):
*
Deliverables:
*
Subtask J1.1 (Month 2)
: *
Subtask J1.2 (Month 3)
: *
Milestone (Month 12):
*
Deliverables:
*
Subtask J1.2 (Month 6)
: *
Subtask J1.3 (Month 9)
: *
Milestone (Month 18):
*
Deliverables:
*
Subtask J1.4 (Month 12)
: *
Subtask J1.5 (Month 15)
: *
Subtask J1.6 (Month 18)
: *
Task J.2: * (Dahl, Amyris).
Task Objective*
[*] 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.
Milestone (Month 21):
*
Deliverables:
*
Subtask J2.1 (Month 20)
: *
Milestone (Month 24):
*
Deliverables:
*
Subtask J2.2 (Month 24)
: *
Subtask J2.3 (Month 24)
: *
Task J.3: * (Leaf, Amyris)
Task Objective:
*
Milestone (Month 30):
*
Deliverables:
*
Subtask J3.1 (Month 27):
*
Subtask J3.2 (Month 30)
: *
Subtask J3.3 (Month 30)
: *
Milestone (Month 30):
*
Deliverables:
*
Subtask J3.4 (Month 27)
: *
Subtask J3.5 (Month 30)
: *
Milestone (Month 33):
*
Deliverables:
*
[*] 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.
Subtask J3.6 (Month 30)
: *
Subtask J3.7 (Month 33)
: *
Milestone (Month 36):
*
Deliverables:
*
Subtask J3.8 (Month 33)
: *
Subtask J3.9 (Month 36)
: *
Task J.4 (Optional): * (Kaufmann-Malaga, Amyris)
Task Objective
: *
Milestone (12 months):
*
Deliverables:
*
Subtask J4.1 (Month 3)
: *
Subtask J4.2 (Month 6)
: *
Subtask J4.3 (Month 6)
: *
Subtask J4.4 (Month 12)
: *
Milestone (18 months):
*
Deliverables:
*
Subtask J4.5 (Month 6)
: *
Subtask J4.6 (Month 12)
: *
Subtask J4.7 (Month 18)
: *
Milestone (24 months):
*
[*] 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.
Deliverables:
*
Subtask J4.8 (Month 21)
: *
Subtask J4.9 (Month 24)
: *
Subtask J4.10 (Month 24)
: *
MODULE K: *
Task K.1: * (Wojciechowski, Amyris)
Task Objective:
*
Milestone (Month 6):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task K.2: * (Wojciechowski, Amyris)
Task objective:
*
Milestone (Month 12):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task K.3: * (Wojciechowski, Amyris)
Task objective:
*
Milestone (Month 18):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task K.4: * (Wojciechowski, Amyris)
Task Objective
: *
[*] 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.
Milestone (Month 24):
*
Metrics/Completion Criteria
: *
Deliverables:
*
Milestone (Month 30):
*
Metrics/Completion Criteria:
*
Deliverables:
*
Task L: Biosafety and Biosecurity Planning and
Reporting
Task Objective
:The research and engineering
depicted in this Statement of Work seeks to make existing capabilities (e.g. genetic modification of microbes to produce commodity
chemicals) more efficient with the intended purpose of speeding the development of Living Foundries. The goal of this research
is to make better engineering tools, and not to produce microbes that may have dual-use potential. As noted in the Performer’s
technical proposal, a review of the research activities identified within this Statement of Work determined that this project will
not enable technologies that are related to human, animal, or plant health. The Performer’s choice of potential chassis or
hosts will be made from amongst the list of microbes that, prior to genetic modification, are designated safely handled in a Biosafety
Level 1 facility. Additionally, the resulting genetically modified organisms have no selective advantage in the environment. The
Performer shall demonstrate throughout the program that all methods and demonstrations of capability comply with national guidance
for manipulation of genes and organisms and follow all guidance for biological safety and biosecurity. Demonstrations and testbeds
must meet any applicable regulations designed to protect human health and the environment promulgated by the Environmental Protection
Agency, National Institutes of Health, or other relevant agencies of the Federal Government. The Performer shall use, store, and
destroy biological material in accordance with all applicable regulations.
Deliverable
: Include as part of the Monthly
Technical Status Reports an on-going status of Performer efforts to develop and/or carry out Bio-Safety and Security requirements.
[*] 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.
M2K project timelines and milestones
[*]
[*] 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.
ATTACHMENT 2
REPORT REQUIREMENTS
A. TECHNICAL STATUS REPORT
On or before thirty (30) calendar days after the Effective Date
and monthly thereafter throughout the Term, the Performer shall submit, via email, a monthly Technical Status Report to the DARPA
Program Manager, DARPA Agreements Officer, Agreement Officer’s Representative (AOR), and DARPA ADPM. The Technical Status
Report will detail technical progress to date and report on all problems, technical issues, and major developments of the Program,
as well as the status of Collaborations using Subject Inventions during the reporting period. Technical Status Reports shall be
marked with Distribution Statement B:
“
DISTRIBUTION STATEMENT B.
Distribution authorized
to U.S. Government agencies only due to the inclusion of proprietary information. Other requests for this document shall be referred
to DARPA Public Release Center (PRC) via email at
PRC@darpa.mil
.”
B. BUSINESS STATUS REPORT
On or before ninety (90) calendar days after the Effective Date
and quarterly (contract, not calendar) thereafter throughout the Term, the Performer shall submit, via email, a quarterly Business
Status Report to the DARPA Program Manager, DARPA Agreements Officer, Agreement Officer’s Representative (AOR), and DARPA
ADPM. The Business Status Report shall provide summarized details and quarterly accounting of the then-current Performer Contribution
amount compared to the then-anticipated Performer Contribution amount set forth in Attachment 4. Any “major deviations”
(i.e., over plus or minus 10%) from the anticipated Performer Contribution amount at that time shall be explained along with discussions
of the adjustment actions proposed, which could include a potential reduction in Government funding, if necessary, pursuant to
Agreement Article I, paragraph C.3. Depending on the circumstances, the Payable Milestones may require adjustment. Business Status
Reports shall be marked with Distribution Statement B:
“
DISTRIBUTION STATEMENT B.
Distribution authorized
to U.S. Government agencies only due to the inclusion of proprietary information. Other requests for this document shall be referred
to DARPA Public Release Center (PRC) via email at
PRC@darpa.mil
.”
C. ANNUAL PROGRAM PLAN DOCUMENT
The Performer shall submit via email or otherwise provide to
the DARPA Agreements Officer’s Representative, DARPA Program Manager and DARPA Agreements Officer one (1) copy each of the
Annual Program Plan as described in Article III, paragraph B of the Agreement. This document shall be submitted not later than
thirty (30) calendar days following the Annual Site Review as described in Article III, subparagraph B.2(a) of the Agreement. Annual
Program Plans shall be marked with Distribution Statement B:
“
DISTRIBUTION STATEMENT B.
Distribution authorized
to U.S. Government agencies only due to the inclusion of proprietary information. Other requests for this document shall be referred
to DARPA Public Release Center (PRC) via email at
PRC@darpa.mil
.”
D. SPECIAL TECHNICAL REPORTS
The Performer shall submit via email or otherwise provide to
the DARPA Agreements Officer’s Representative, the DARPA Program Manager and DARPA Agreements Officer one (1) copy each of
Special Technical Reports on significant Program events such as significant target accomplishments by the Performer, significant
tests, experiments, or symposia, as discussed in the Attachment 1, Statement of Work. Special Technical Reports shall be marked
with Distribution Statement B:
“
DISTRIBUTION STATEMENT B.
Distribution authorized
to U.S. Government agencies only due to the inclusion of proprietary information. Other requests for this document shall be referred
to DARPA Public Release Center (PRC) via email at
PRC@darpa.mil
.”
E. SCIENTIFIC PAPERS
If, during the Term, the Performer shall publish scientific
papers on the Program, one (1) copy of each published scientific paper shall be submitted via email or otherwise provided to the
DARPA Agreements Officer’s Representative, DARPA Program Manager, and DARPA Agreements Officer. Scientific Papers shall be
marked with Distribution Statement A:
"Approved for public release; distribution is unlimited.”
E. PAYABLE MILESTONES REPORTS
In order to receive payment for an accomplished Payable Milestone,
the Performer shall submit via email or otherwise provide to the DARPA Agreements Officer’s Representative, the DARPA Program
Manager and DARPA Agreements Officer documentation describing the extent of accomplishment of such Payable Milestone(s). This information
contained in such reports shall be as required by Article V, paragraph B of the Agreement and shall be sufficient for the DARPA
Agreements Officer’s Representative to reasonably verify the accomplishment of the applicable Payable Milestone(s) in accordance
with the Attachment 1, Statement of Work and Attachment 3, Payable Milestones and Corresponding Payment Schedule. Payable Milestone
Reports shall be marked with Distribution Statement B:
“
DISTRIBUTION STATEMENT B.
Distribution authorized
to U.S. Government agencies only due to the inclusion of proprietary information. Other requests for this document shall be referred
to DARPA Public Release Center (PRC) via email at
PRC@darpa.mil
.”
F. FINAL REPORT
(NOTE: The Final Report is included in the last Payable Milestone
for the completed Agreement)
1. The Performer shall submit or otherwise provide a
Final Report making full disclosure of all major developments by the Performer upon completion of the Agreement or within sixty
(60) calendar days of termination of this Agreement. With the approval of the DARPA Agreements Officer’s Representative,
reprints of published articles may be attached to the Final Report. The Final Report shall be submitted via email to the DARPA
Program Manager, DARPA Agreements Officer, DARPA Agreement Officer’s Representative, DARPA ADPM, and the Defense Technical
Information Center.
2. The Final Report shall be marked with a distribution
statement to denote the extent of its availability for distribution, release, and disclosure without additional approvals or authorizations.
The Final Report shall be marked on the front page in a conspicuous place with the following marking:
“
DISTRIBUTION STATEMENT B.
Distribution authorized to U.S. Government agencies only due to the inclusion of proprietary information. Other requests for this
document shall be referred to DARPA Public Release Center (PRC) via email at
PRC@darpa.mil
.”
G. REPORT MARKINGS
(1) The cover or title page of each of the above reports
or publications prepared will have the following citation:
Sponsored by: Defense Advanced Research
Projects Agency Biological Technology Office (BTO)
Program: Living Foundries
Issued by: DARPA/CMO under Agreement No.
HR0011-15-3-0001
(2) The title page shall include a disclaimer
worded substantially as follows:
“The views and conclusions contained
in this document are those of the authors and should not be interpreted as representing the official policies, either expressly
or implied, of the Defense Advanced Research Projects Agency or the U.S. Government.”
(3) The Final Report shall include a Standard Form 298, August
1998.
(4) All reports shall be marked with the below Distribution
Statement and Data Rights statements:
(a) Distribution Statement designations
are listed above for each individual type of report.
(b) Government Purpose Rights.
“GOVERNMENT PURPOSE RIGHTS Agreement Number:
HR0011-15-3-0001
Contractor Name: Amyris, Inc.”
“In accordance with Article VIII, as applicable,
contained in the above identified Agreement, the Government has the right to use, duplicate, or disclose Data, in whole or in part
and in any manner, for Government purposes only, and to have or permit others to do so for Government purposes only.”
(c) Limited Rights.
“LIMITED RIGHTS
Agreement Number: HR0011-15-3-0001
Contractor Name: Amyris, Inc.”
“In accordance with Article VIII, as applicable,
contained in the above identified Agreement, the Government has the right to use, modify, reproduce, release, perform, display,
or disclose Data, in whole or in part, within the Government. The Government may not, without the written permission of the party
asserting limited rights, release or disclose the Data outside the Government.”
H. EXECUTIVE SUMMARY
The Performer shall submit a one to two page executive-level
summary of the major accomplishments of the Agreement and the benefits of using the “other transactions” authority
pursuant to 10 U.S.C. § 2371 upon completion of the Agreement. This summary shall include a discussion of the actual or planned
benefits of the technologies for both the military and commercial sectors. Two (2) copies shall be submitted to the DARPA Agreements
Officer.
Attachment 3
Total Agreement Funding Plan and Payable
Milestones and Corresponding Payment Schedule
Revision 1 (per Modification P00001 dated
10.15.2015)
Total Agreement Funding Plan
(for informational purposes only)
|
|
DARPA Payment Total
|
Performer Contribution $
|
Agreement Funding
Grand Total
|
DARPA Share
%
|
Performer Contribution %
|
|
Module A Total
|
$11,267,168
|
$1,238,563
|
$12,505,727
|
90.10%
|
9.90%
|
|
Module B Total
|
$4,517,217
|
$767,829
|
$5,285,046
|
85.47%
|
14.53%
|
|
Module C Total
|
$1,065,228
|
$565,813
|
$1,631,041
|
65.31%
|
34.69%
|
|
Module D Total
|
$2,532,939
|
$1,003,490
|
$3,536,429
|
71.62%
|
28.38%
|
|
Module E Total
|
$1,183,490
|
$1,939,053
|
$3,122,543
|
37.90%
|
62.10%
|
|
Module F Total
|
$1,054,407
|
$767,829
|
$1,822,236
|
57.86%
|
42.14%
|
|
Module G Total
|
DELETED
|
|
Module H Total
|
$5,895,752
|
$3,831,230
|
$9,726,982
|
60.61%
|
39.39%
|
|
Module I Total
|
$1,462,441
|
$1,775,450
|
$3,237,891
|
45.17%
|
54.83%
|
|
Module J Total
|
$3,000,887
|
$2,517,831
|
$5,518,718
|
54.38%
|
45.62%
|
|
Module K Total
|
$3,180,481
|
$1,154,251
|
$4,334,731
|
73.37%
|
26.63%
|
|
|
$35,160,011
|
$15,561,338
|
$50,721,349
|
69.32%
|
30.68%
|
Payable Milestones and Corresponding
Payment Schedule
Payable
Milestones
|
Task
|
Metric
|
Government Payment
due the Performer upon
Completion
|
MS Month
|
CLIN/SLIN/
ACRN
|
|
1
|
*
|
*
|
*
|
1/31/16
|
0001/01/AA
|
|
2
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
*
|
*
|
|
3
|
*
|
*
|
*
|
0001/01/AA
|
|
4
|
*
|
*
|
*
|
0001/01/AA
|
|
5
|
*
|
*
|
*
|
0001/01/AA
|
|
6
|
*
|
*
|
*
|
4/30/16
|
0001/01/AA
|
|
*
|
*
|
|
7
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
*
|
*
|
|
*
|
*
|
|
8
|
*
|
*
|
*
|
0001/01/AA
|
|
9
|
*
|
*
|
*
|
0001/01/AA
|
[*] 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.
HR0011-15-3-0001
|
10
|
*
|
*
|
*
|
|
0001/01/AA
|
|
*
|
*
|
|
11
|
*
|
*
|
*
|
0001/01/AA
|
|
12
|
*
|
*
|
*
|
0001/01/AA
|
|
13
|
*
|
*
|
*
|
0001/01/AA
|
|
14
|
*
|
*
|
*
|
7/31/16
|
0001/01/AA
|
|
*
|
*
|
|
15
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
*
|
*
|
|
16
|
*
|
*
|
*
|
0001/01/AA
|
|
17
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
18
|
*
|
*
|
*
|
0001/01/AA
|
|
19
|
*
|
*
|
*
|
10/31/16
|
0001/01/AA
|
[*] 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.
HR0011-15-3-0001
|
20
|
*
|
*
|
*
|
|
0001/01/AA
|
|
*
|
*
|
|
*
|
*
|
|
*
|
*
|
|
21
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
*
|
*
|
|
*
|
*
|
|
22
|
*
|
*
|
*
|
0001/01/AA
|
|
23
|
*
|
*
|
*
|
0001/01/AA
|
|
24
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
25
|
*
|
*
|
*
|
0001/01/AA
|
[*] 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.
HR0011-15-3-0001
|
|
*
|
*
|
|
|
|
|
*
|
*
|
|
26
|
*
|
*
|
*
|
0001/01/AA
|
|
27
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
28
|
*
|
*
|
*
|
0001/01/AA
|
|
29
|
*
|
*
|
*
|
1/31/17
|
0001/01/AA
|
|
30
|
*
|
*
|
*
|
4/30/17
|
0001/01/AA
|
|
31
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
32
|
*
|
*
|
*
|
0001/01/AA
|
|
33
|
*
|
*
|
*
|
0001/01/AA
|
[*] 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.
HR0011-15-3-0001
|
|
*
|
*
|
|
|
|
|
34
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
*
|
*
|
|
35
|
*
|
*
|
*
|
0001/01/AA
|
|
36
|
*
|
*
|
*
|
0001/01/AA
|
|
37
|
*
|
*
|
*
|
0001/01/AA
|
|
38
|
*
|
*
|
*
|
0001/01/AA
|
|
*
|
*
|
|
39
|
*
|
*
|
*
|
0001/01/AA
(Partially funded @ $315,985 at time of
TIA Award)
|
|
40
|
*
|
*
|
*
|
7/31/17
|
|
|
*
|
*
|
|
*
|
*
|
|
41
|
*
|
*
|
*
|
|
|
42
|
*
|
*
|
*
|
|
|
43
|
*
|
*
|
*
|
4/30/18
|
|
|
44
|
*
|
*
|
*
|
|
|
*
|
*
|
|
*
|
*
|
[*] 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.
HR0011-15-3-0001
|
|
*
|
*
|
|
|
|
|
45
|
*
|
*
|
*
|
|
|
*
|
*
|
|
*
|
*
|
|
*
|
*
|
|
46
|
*
|
*
|
*
|
|
|
*
|
*
|
|
*
|
*
|
|
47
|
*
|
*
|
*
|
|
|
*
|
*
|
|
48
|
*
|
*
|
*
|
|
|
49
|
*
|
*
|
*
|
|
|
50
|
*
|
*
|
*
|
|
|
51
|
*
|
*
|
*
|
|
|
*
|
*
|
|
*
|
*
|
|
52
|
*
|
*
|
*
|
|
|
*
|
*
|
|
53
|
*
|
*
|
*
|
|
|
54
|
*
|
*
|
*
|
|
[*] 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.
HR0011-15-3-0001
|
|
*
|
*
|
|
|
|
|
55
|
*
|
*
|
*
|
|
|
56
|
*
|
*
|
*
|
7/31/18
|
|
|
57
|
*
|
*
|
*
|
10/31/18
|
|
|
58
|
*
|
*
|
*
|
|
|
*
|
*
|
|
59
|
*
|
*
|
*
|
|
|
60
|
*
|
*
|
*
|
|
|
61
|
*
|
*
|
*
|
4/30/19
|
|
|
62
|
*
|
*
|
*
|
|
OPTION 63
|
*
|
*
|
*
|
|
64
|
*
|
*
|
*
|
7/31/19
|
|
|
OPTION 65
|
*
|
*
|
*
|
10/31/19
|
|
|
66
|
*
|
*
|
*
|
|
|
|
|
Baseline Costs
|
$34,167,843
|
|
|
|
|
|
Option Costs
|
$992,168
|
|
|
|
|
|
TOTAL
|
$35,160,011
|
|
|
[*] 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.
Attachment 4
Funding Schedule
A. Projected Program Funding Commitments
|
Fiscal Year
|
DARPA Funding
|
Performer Contribution
|
|
Year 1
|
$6,035,686
|
$2,019,883
|
|
Year 2
|
$10,639,696
|
$5,978,221
|
|
Year 3
|
$8,415,397
|
$3,956,931
|
|
Year 4
|
$6,679,680
|
$2,306,223
|
|
Year 5 Firm
|
$2,397,384
|
$1,300,079
|
|
Year 5 Option
|
$992,168
|
Not Applicable
|
|
Total
|
$35,160,011
|
$15,561,338
|
DARPA funding shall be applied toward the following
expenses: Direct labor, other direct cost purchases and travel cost, to include indirect costs thereof for all three categories,
as included in Amyris’s Living Foundries M2K proposal dated 8 May 2015 (as amended).
DARPA has established two option tasks. The criteria
for funding these option tasks is set forth in the table below:
|
Technical Task #
|
Task # and Title
|
Cost
|
Funding Criteria
|
|
63
|
Task C.2 *
|
$85,125
|
Completion of Task A.2 (Mth 42)
|
|
65
|
Task A.2: *
|
$907,043
|
Completion of Task C.2 (Mth 30)
|
|
|
|
$992,168
|
|
B. Projected Performer Contribution
|
Fiscal Year
|
Cash*
|
In-Kind**
|
|
Year 1
|
$2,019,883
|
$0
|
|
Year 2
|
$5,978,221
|
$0
|
|
Year 3
|
$3,956,931
|
$0
|
|
Year 4
|
$2,306,223
|
$0
|
|
Year 5
|
$1,300,079
|
$0
|
|
Total
|
$15,561,338
|
$0
|
*
Cash
contributions
consist of: direct labor and direct materials/equipment purchases, to include indirect costs thereof for both categories, as included
in Amyris’s Living Foundries M2K proposal dated 8 May 2015 (as amended). The aforementioned are considered cash contributions
made by Amyris in support of the Living Foundries M2K research program.
**
In-kind
contributions consist of: Not applicable
Attachment 5
List of Intellectual Property Assertions
by the Performer
The Performer reserves the right to add
to or modify this Attachment 5 (including Tables 1, 2, 3, and 4). Note that divisional patents and patent applications are not
listed in this Attachment 5
Table 1 lists technical data and computer
software of Amyris, Inc. that is intended to be generated, developed and/or delivered as a result of the work proposed for the
Program, for which the Government will acquire Limited Rights.
|
Table 1.
|
|
Technical Data and Computer Software to be Furnished with Restrictions
|
|
Basis for Assertion
|
Name of Person Asserting Restrictions
|
|
·
*
|
Limited Rights
|
*
|
Amyris, Inc.
|
|
·
*
|
Limited Rights
|
Software suites were developed exclusively with private funding.
|
Amyris, Inc.
|
|
·
*
|
Limited Rights
|
Software suites were developed exclusively with private funding.
|
Amyris, Inc.
|
This page contains proprietary information of Amyris,
Inc. that is provided for purposes of review and evaluation only on a need-to-know basis within the Government. It should not be
released to persons outside the Government.
[*] 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.
Table 2 provides an exemplary, non-limiting
list of patents and patent applications, pending or issued as of September 11, 2015, of Amyris, Inc., the Inventions of which may
be used in the performance of the Program but to which the Government shall have no rights because they existed prior to the Effective
Date:
Table 2.
|
Title
|
Application No.
|
Patent No.
(Publication No.)
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
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|
*
|
*
|
*
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|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
This page contains proprietary information of Amyris,
Inc. that is provided for purposes of review and evaluation only on a need-to-know basis within the Government. It should not be
released to persons outside the Government.
[*] 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.
Table 3 lists technical data and computer
software of Arzeda Corp. that is intended to be generated, developed and/or delivered as a result of the work proposed for the
Program, for which the Government will acquire Limited Rights.
|
Table 3.
|
|
Technical Data and Computer Software to be Furnished with Restrictions
|
|
Basis for Assertion
|
Name of Person Asserting Restrictions
|
|
*
|
Limited Rights
|
*
|
Arzeda Corp.
|
|
*
|
Limited Rights
|
*
|
Arzeda Corp.
|
|
*
|
Limited Rights
|
*
|
Arzeda Corp.
|
|
*
|
*Limited Rights
|
*
|
Arzeda Corp.
|
|
*
|
Limited Rights
|
*
|
Arzeda Corp.
|
|
*
|
Limited Rights
|
*
|
Arzeda Corp.
|
|
|
|
|
|
This page contains confidential and proprietary
information of Arzeda Corp. that is provided for purposes of review and evaluation only on a need-to-know basis within the Government.
It should not be released to persons outside the Government.
[*] 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.
Table 4 provides an exemplary, non-limiting
list of patents and patent applications, pending or issued as of September 11, 2015, of Arzeda Corp., the Inventions of which may
be used in the performance of the Program but to which the Government shall have no rights because they existed prior to the Effective
Date:
Table 4.
|
Title
|
Application No.
|
Patent No.
(Publication No.)
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
|
*
|
*
|
*
|
This page contains confidential and proprietary
information of Arzeda Corp. that is provided for purposes of review and evaluation only on a need-to-know basis within the Government.
It should not be released to persons outside the Government.
[*] 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.
Attachment 6
List of Property Greater than $5,000
|
Module
|
Material/Equipment
|
Units
|
Unit $
|
Total Cost
|
|
E
|
*
|
1
|
$237,177
|
$237,177
|
|
E
|
*
|
4
|
$4978
|
$19,912
|
|
E
|
*
|
1
|
$108,405
|
$108,405
|
|
E
|
*
|
1
|
$321,849
|
$321,849
|
|
E
|
*
|
2
|
$60,061
|
$120,122
|
|
E
|
*
|
1
|
$363,759
|
$363,759
|
|
H
|
*
|
2
|
$787,291.50
|
$1,574,583
|
|
H
|
*
|
1
|
$150,431
|
$150,431
|
|
H
|
*
|
1
|
$495,970
|
$495,970
|
|
H
|
*
|
1
|
$424,530
|
$424,530
|
|
H
|
*
|
1
|
$20,258
|
$20,258
|
|
H
|
*
|
1
|
$33,440
|
$33,440
|
|
I
|
*
|
1
|
$111,991
|
$111,991
|
|
I
|
*
|
1
|
$129,221
|
$129,221
|
|
I
|
*
|
1
|
$766,409
|
$766,409
|
|
J
|
*
|
1
|
$190,859
|
$190,859
|
|
J
|
*
|
1
|
$123,407
|
$123,407
|
|
J
|
*
|
3
|
$190,859
|
$572,577
|
|
J
|
*
|
3
|
$123,407
|
$370,221
|
|
J
|
*
|
1
|
$150,000
|
$150,000
|
|
K
|
*
|
1
|
$232,690
|
$232,690
|
|
K
|
*
|
1
|
$30,000
|
$30,000
|
[*] 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.
Attachment 7
CERTIFICATIONS FOR
AGREEMENT NO. HROOll-lS-3-0001
1. The undersigned certifies, to the best of
his or her knowledge and belief, that this organization
(a) Pursuant to Executive Order 12549 and implementing
rule, is presently not debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions
by any Federal department or agency.
(b) Pursuant to Public Law 100-690 and implementing
final rule, effective 24 July 1990, will provide a drug-free workplace. The place of performance is:
|
5885 Hollis Street, Suite 100
|
Emeryville,
Alameda, CA
|
94608
|
|
[Street Address]
|
[City,
County, State]
|
[Zip code]
|
(c) Is in compliance with the provisions
of DoD Directive 5500.11,
"
Nondiscrimination in
Federally Assisted Programs",
which implements Title VI of the Civil Rights Act of 1964
.
2. The following certification
applies only to actions exceeding $100,000
.
00:
Section 1352, Title 31, u
.
s.c.
(Public Law 101-121, Section 319) entitled, "Limitation on use of appropriated funds to influence certain Federal contracting
and financial transactions."
(1) No Federal appropriated funds
have been paid or will be paid by or on behalf of the undersigned, to any person for influencing or attempting to influence an
officer or employee of an agency, a Member of Congress, an Officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal contract, the making of any Federal Grant
,
the
making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any Federal contract, grant
,
loan
,
cooperative agreement
,
or
other transaction.
(2) If any funds other than Federal
appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee
of any agency
,
a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with the Federal contract, grant, loan, cooperative agreement,
or other transaction
,
the undersigned shall complete and
submit Standard Form LLL, "Disclosure Form to Report Lobbying
,
"
in accordance with its instructions
.
(3) The undersigned shall require
that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts,
sub-grants
,
and contracts under grants, loans, cooperative
agreements and other transactions) and that all sub-recipients shall certify and disclose accordingly.
This certification is a material
representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification
is a prerequisite for making or entering into this transaction imposed by Section 1352
,
Title
31, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000.00
and not more than $100
,
000.00 for each such failure.
3. The undersigned represents that -
(a) It is [ ] is not
[X]
a corporation
that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been
exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible
for collecting the tax liability;
(b) It is [ ] is not
[X]
a corporation
that was convicted of a felony criminal violated under Federal law within the preceding 24 months.
|
Joel Cherry, Ph.D., President, Research and Development
|
|
|
|
[Typed Name and Title of Official responsible for this transaction]
|
|
|
|
|
|
|
|
Amyris, Inc.
|
|
|
|
[Name of Organization/Institution]
|
|
|
|
|
|
|
|
|
|
|
|
[Signature of Official responsible for this transaction]
|
|
[Date]
|
