UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-Q
(Mark One)
x
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended  March 31, 2013
OR
¨
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period from              to             
Commission File Number: 001-34885

AMYRIS, INC.
(Exact name of registrant as specified in its charter)  
Delaware
 
55-0856151
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)


Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, CA 94608
(510) 450-0761
(Address and telephone number of principal executive offices)

 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuance to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer.
Large accelerated filer
¨
Accelerated filer
x
 
 
 
 
Non-accelerated filer
¨
Smaller reporting company
¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.
Class
Outstanding at April 26, 2013
Common Stock, $0.0001 par value per share
75,760,456 shares




AMYRIS, INC.
QUARTERLY REPORT ON FORM 10-Q
For the Quarterly Period Ended March 31, 2013

INDEX
 
 
 
Page
 
PART I - FINANCIAL INFORMATION
 
 
 
 
Item 1.
Item 2.
Item 3.
Item 4.
 
 
 
 
PART II - OTHER INFORMATION
 
 
 
 
Item 1.
Item 1A.
Item 2.
Item 3.
Item 4.
Item 5.
Item 6.
 
 

 



PART I

ITEM 1. FINANCIAL STATEMENTS

Amyris, Inc.
Condensed Consolidated Balance Sheets
(In Thousands, Except Share and Per Share Amounts)
(Unaudited)
 
March 31,
 
December 31,
 
2013
 
2012
Assets
 
 
 
Current assets:
 
 
 
Cash and cash equivalents
$
23,250

 
$
30,592

Short-term investments
1,605

 
97

Accounts receivable, net of allowance of $481 and $481, respectively
7,541

 
3,846

Inventories, net
6,527

 
6,034

Prepaid expenses and other current assets
9,078

 
8,925

Total current assets
48,001

 
49,494

Property, plant and equipment, net
162,253

 
163,121

Restricted cash
956

 
955

Other assets
20,778

 
20,112

Goodwill and intangible assets
9,120

 
9,152

Total assets
$
241,108

 
$
242,834

Liabilities and Equity
 
 
 
Current liabilities:
 
 
 
Accounts payable
$
14,161

 
$
15,392

Deferred revenue
10,433

 
1,333

Accrued and other current liabilities
21,428

 
24,410

Capital lease obligation, current portion
998

 
1,366

Debt, current portion
7,082

 
3,325

Total current liabilities
54,102

 
45,826

Capital lease obligation, net of current portion
988

 
1,244

Long-term debt, net of current portion
60,322

 
61,806

Related party debt
39,528

 
39,033

Deferred rent, net of current portion
8,129

 
8,508

Deferred revenue, net of current portion
5,000

 
4,255

Other liabilities
14,262

 
15,933

Total liabilities
182,331

 
176,605

Commitments and contingencies (Note 5)

 

Stockholders’ equity:
 
 
 
Preferred stock - $0.0001 par value, 5,000,000 shares authorized, none issued and outstanding
—

 
—

Common stock - $0.0001 par value, 100,000,000 shares authorized as of March 31, 2013 and December 31, 2012; 75,410,031 and 68,709,660 shares issued and outstanding as of March 31, 2013 and December 31, 2012, respectively
8

 
7

Additional paid-in capital
690,385

 
666,233

Accumulated other comprehensive loss
(12,088
)
 
(12,807
)
Accumulated deficit
(618,941
)
 
(586,327
)
Total Amyris, Inc. stockholders’ equity
59,364

 
67,106

Noncontrolling interest
(587
)
 
(877
)
Total stockholders' equity
58,777

 
66,229

Total liabilities and stockholders' equity
$
241,108

 
$
242,834

See the accompanying notes to the unaudited condensed consolidated financial statements.

3



Amyris, Inc.
Condensed Consolidated Statements of Operations
(In Thousands, Except Share and Per Share Amounts)
(Unaudited)
 
 
Three Months Ended March 31,
 
2013
 
2012
Revenues
 
 
 
Product sales
$
2,983

 
$
26,307

Grants and collaborations revenue
4,886

 
3,162

Total revenues
7,869

 
29,469

Cost and operating expenses
 
 
 
Cost of products sold
8,960

 
43,811

Loss on purchase commitments and write off of production assets
—

 
36,652

Research and development
15,754

 
21,344

Sales, general and administrative
14,827

 
21,715

Total cost and operating expenses
39,541

 
123,522

Loss from operations
(31,672
)
 
(94,053
)
Other income (expense):
 
 
 
Interest income
36

 
606

Interest expense
(1,562
)
 
(1,054
)
Other income (expense), net
1,119

 
(151
)
Total other expense
(407
)
 
(599
)
Loss before income taxes
(32,079
)
 
(94,652
)
Provision for income taxes
(236
)
 
(244
)
Net loss
$
(32,315
)
 
$
(94,896
)
Net loss attributable to noncontrolling interest
(299
)
 
348

Net loss attributable to Amyris, Inc. common stockholders
$
(32,614
)
 
$
(94,548
)
Net loss per share attributable to common stockholders, basic and diluted
$
(0.44
)
 
$
(1.88
)
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock, basic and diluted
73,306,860

 
50,214,192


See the accompanying notes to the unaudited condensed con solidated financial statements.


4


Amyris, Inc.
Condensed Consolidated Statements of Comprehensive Loss
(In Thousands)
(Unaudited)

 
Three Months Ended March 31,
 
2013
 
2012
Comprehensive loss:
 
 
 
Net loss
$
(32,315
)
 
$
(94,896
)
Foreign currency translation adjustment, net of tax
710

 
1,471

Total comprehensive loss
(31,605
)
 
(93,425
)
Loss attributable to noncontrolling interest
(299
)
 
348

Foreign currency translation adjustment attributable to noncontrolling interest
9

 
(87
)
Comprehensive loss attributable to Amyris, Inc.
$
(31,895
)
 
$
(93,164
)

See the accompanying notes to the unaudited condensed consolidated financial statements.


5


Amyris, Inc.
Condensed Consolidated Statements of Stockholders' Equity
(Unaudited)
 
 
Common Stock
 
 
 
 
 
 
 
 
 
 
(In Thousands, Except Share and Per Share Amounts)
 
Shares
 
Amount
 
Additional Paid-in Capital
 
Accumulated Deficit
 
Accumulated Other Comprehensive Income (Loss)
 
Noncontrolling Interest
 
Total Equity (Deficit)
December 31, 2012
 
68,709,660

 
$
7

 
$
666,233

 
$
(586,327
)
 
$
(12,807
)
 
$
(877
)
 
$
66,229

Issuance of common stock upon exercise of stock options, net of restricted stock
 
76,898

 
—

 
40

 
—

 
—

 
—

 
40

Issuance of common stock in a private placement, net of issuance cost of $65
 
6,567,299

 
1

 
19,934

 
 
 
 
 
 
 
19,935

Shares issued from restricted stock unit settlement
 
56,174

 
—

 
(15
)
 
—

 
—

 
—

 
(15
)
Stock-based compensation
 
—

 
—

 
4,193

 
—

 
—

 
—

 
4,193

Foreign currency translation adjustment, net of tax
 
—

 
—

 
—

 
—

 
719

 
(9
)
 
710

Net loss
 
—

 
—

 
—

 
(32,614
)
 
—

 
299

 
(32,315
)
March 31, 2013
 
75,410,031

 
$
8

 
$
690,385

 
$
(618,941
)
 
$
(12,088
)
 
$
(587
)
 
$
58,777

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
See the accompanying notes to the unaudited condensed consolidated financial statements


6


Amyris, Inc.
Condensed Consolidated Statements of Cash Flows
(In Thousands)
(Unaudited)
 
Three Months Ended March 31,
 
2013
 
2012
Operating activities
 
 
 
Net loss
$
(32,315
)
 
$
(94,896
)
Adjustments to reconcile net loss to net cash used in operating activities:
 
 
 
Depreciation and amortization
4,390

 
3,687

Loss on disposal of property, plant and equipment
70

 
2

Stock-based compensation
4,193

 
6,521

Amortization of debt discount
495

 
—

Loss on purchase commitments and write-off of production assets
—

 
36,652

Change in fair value of derivative instruments
(1,006
)
 
—

Other noncash expenses
—

 
113

Changes in assets and liabilities:
 
 
 
Accounts receivable
(3,715
)
 
2,227

Inventories, net
(426
)
 
(65
)
Prepaid expenses and other assets
(410
)
 
(691
)
Accounts payable
(1,626
)
 
(2,417
)
Accrued and other long-term liabilities and restructuring
(3,448
)
 
(12,957
)
Deferred revenue
9,845

 
262

Deferred rent
(337
)
 
(294
)
Net cash used in operating activities
(24,290
)
 
(61,856
)
Investing activities
 
 
 
Purchase of short-term investments
(1,507
)
 
(8,238
)
Maturities of short-term investments
—

 
—

Sales of short-term investments
—

 
16,449

Change in restricted cash
(1
)
 
—

Purchase of property, plant and equipment, net of disposals
(2,118
)
 
(20,928
)
Deposits on property, plant and equipment
—

 
(849
)
Net cash used in investing activities
(3,626
)
 
(13,566
)
Financing activities
 
 
 
Proceeds from issuance of common stock, net of repurchases
25

 
93

Proceeds from issuance of common stock in private placements, net of issuance costs
19,935

 
58,606

Principal payments on capital leases
(624
)
 
(1,091
)
Proceeds from debt issued
2,517

 
25,004

Principal payments on debt
(992
)
 
(705
)
Net cash provided by financing activities
20,861

 
81,907

Effect of exchange rate changes on cash and cash equivalents
(287
)
 
1,229

Net increase (decrease) in cash and cash equivalents
(7,342
)
 
7,714

Cash and cash equivalents at beginning of period
30,592

 
95,703

Cash and cash equivalents at end of period
$
23,250

 
$
103,417


7


Amyris, Inc.
Condensed Consolidated Statements of Cash Flows—(Continued)
(In Thousands)
(Unaudited)
 
 
Three Months Ended March 31,
 
2013
 
2012
Supplemental disclosures of cash flow information:
 
 
 
Cash paid for interest
$
723

 
$
755

Cash paid for income taxes, net of refunds
$
—

 
$
—

Supplemental disclosures of noncash investing and financing activities:
 
 
 
Acquisitions of property, plant and equipment under accounts payable, accrued liabilities and notes payable
$
(51
)
 
$
(321
)
Financing of insurance premium under notes payable
$
215

 
$
—

Accrued offering cost of common stock in private placement
$
65

 
$
220

Accrued deferred offering costs
$
—

 
$
99

Transfer of long term deposits to property, plant and equipment
$
—

 
$
11,723


See the accompanying notes to the unaudited condensed consolidated financial statements.

8


Amyris, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
 
1. The Company

Amyris, Inc. (the “Company”) was incorporated in California on July 17, 2003 and reincorporated in Delaware on June 10, 2010 for the purpose of leveraging breakthroughs in synthetic biology to develop and provide renewable compounds for a variety of markets. The Company is currently building and applying its industrial synthetic biology platform to provide alternatives to select petroleum-sourced products used in specialty chemical and transportation fuel markets worldwide. The Company's first commercialization efforts have been focused on a renewable hydrocarbon molecule called farnesene (Biofene®), which forms the basis for a wide range of products varying from specialty chemical applications to transportation fuels, such as diesel. While the Company's platform is able to use a wide variety of feedstocks, the Company is focused initially on Brazilian sugarcane. In addition, the Company has entered into various contract manufacturing agreements to support commercial production. The Company has established two principal operating subsidiaries, Amyris Brasil Ltda. (formerly Amyris Brasil S.A., “Amyris Brasil”) for production in Brazil, and Amyris Fuels, LLC ("Amyris Fuels"). Nearly all of the Company's revenues to date have come from the sale of ethanol and reformulated ethanol-blended gasoline with substantially all of the remaining revenues coming from collaborations, government grants and sales of renewable products. In the third quarter of 2012, the Company transitioned out of the ethanol and reformulated ethanol-blended gasoline business. The Company does not expect to be able to replace much of the revenue lost in the near term as a result of this transition, particularly in 2013, while it continues its efforts to establish a renewable products business.

Beginning in March 2012, the Company initiated a plan to shift a portion of its production capacity from contract manufacturing facilities to a Company-owned plant that was then under construction. As a result, the Company evaluated its contract manufacturing agreements and recorded a loss of $30.4 million related to adverse purchase commitments, $10.0 million related to the write-off of facility modification costs and $5.5 million related to Company-owned equipment at contract manufacturing facilities in the year ended December 31, 2012. The Company regularly monitors its plan related to production capacity, sales requirements and related cost structure. Changes to this plan may result in additional losses and impairment charges.

The Company's renewable products business strategy is to focus on direct commercialization of higher-value, lower-volume markets while moving lower-margin, higher-volume commodity products into joint venture arrangements with established industry partners. To commercialize its products, the Company must be successful in using its technology to manufacture its products at commercial scale and on an economically viable basis (i.e., low per unit production costs). The Company is building its experience producing renewable products at commercial scale. The Company's prospects are subject to risks, expenses and uncertainties frequently encountered by companies in this stage of development.

The Company expects to fund its operations for the foreseeable future with cash and investments currently on hand, with cash inflows from collaboration and grant funding, cash contributions from product sales, and with new debt and equity financing. The Company's planned 2013 working capital needs and its planned operating and capital expenditures for 2013 are dependent on significant inflows of cash from existing collaboration partners, as well as additional funding from new collaborations, equity or debt offerings, credit facilities or loans, or combinations of these sources. The Company will continue to need to fund its research and development and related activities and to provide working capital to fund production, storage, distribution and other aspects of its business. The Company's operating plan contemplates capital expenditures of approximately $10.0 million in 2013 and the Company expects to continue to incur costs in connection with its existing contract manufacturing arrangements. (See Note 6 - “Debt” and Note 10 - “Stockholders' Equity”).

Liquidity

The Company has incurred significant losses in each year since its inception and believes that it will continue to incur losses and negative cash flow from operations into at least 2014. As of March 31, 2013 , the Company had an accumulated deficit of $618.9 million and had cash, cash equivalents and short term investments of $24.9 million . The Company has significant outstanding debt and contractual obligations related to purchase commitments, as well as capital and operating leases. As of March 31, 2013 , the Company's debt totaled $106.9 million , of which $7.1 million matures within the next twelve months. In addition, the Company's debt agreements contain various covenants, including restrictions on business that could cause the Company to be at risk of defaults. Please refer to Note 5 “Commitments and Contingencies” and Note 6 “Debt” for further details regarding the Company's obligations and commitments.




9


In March 2013, the Company signed a collaboration agreement with Firmenich that included a funding component, and obtained a commitment letter from an existing stockholder with respect to additional convertible note funding (see Note 8 - “Significant Agreements” and Note 6 - "Debt"), and the Company expects to use amounts received under these arrangements to fund its operations. Furthermore, the Company is expecting additional funding in 2013 from collaborations, equity or debt offerings, or combinations of these sources. The Company is currently in discussions with potential investors and intends to secure a portion of this additional funding in the second quarter of 2013. However, as of the date of this filing, the Company has not yet secured this additional funding. There can be no assurance that financing will be available on commercially acceptable terms or at all.

If the Company is unable to raise additional financing, or if other expected sources of funding are delayed or not received, the Company would take the following actions as early as the second quarter of 2013 to support its liquidity needs through the remainder of 2013 and into 2014:

•
Effect significant headcount reductions in the U.S. and in Brazil, particularly with respect to both general and administrative employees and other employees not connected to critical or contracted activities.

•
Shift its focus to existing products and customers with significantly reduced investment in new product and commercial development efforts.

•
Reduce its expenditures for third party contractors, including consultants, professional advisors and other vendors.

•
Suspend operations at its pilot plants and demonstration facilities.

•
Reduce or delay uncommitted capital expenditures, including non-essential lab equipment and information technology projects.

If fully implemented, these actions are designed to save the Company an estimated $40 million to $45 million over the next twelve months. Implementing this plan could have a material negative impact on the Company's ability to continue its business as currently contemplated, including, without limitation, delays or failures in its ability to:

•
Achieve planned production levels;

•
Develop and commercialize products within planned timelines or at planned scales; and

•
Continue other core activities.

Furthermore, any inability to scale-back operations as necessary, and any unexpected liquidity needs, could create pressure to implement more severe measures. Such measures could have a material adverse effect on the Company's ability to meet contractual requirements, including obligations to maintain manufacturing operations, and increase the severity of the consequences described above.


2. Summary of Significant Accounting Policies

Basis of Presentation

The accompanying interim condensed consolidated financial statements have been prepared in accordance with the accounting principles generally accepted in the United States of America (“GAAP”) and with the instructions for Form 10-Q and Regulation S-X. Accordingly, they do not include all of the information and notes required for complete financial statements. These interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto contained in the Company’s Form 10-K filed with the Securities and Exchange Commission (“SEC”) on March 28, 2013. The unaudited condensed consolidated financial statements include the accounts of the Company and its consolidated subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation.

Use of Estimates

In preparing the unaudited condensed consolidated financial statements, management must make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the unaudited condensed consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates.

10



Unaudited Interim Financial Information

The accompanying interim condensed consolidated financial statements and related disclosures are unaudited, have been prepared on the same basis as the annual consolidated financial statements and, in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary for a fair statement of the results of operations for the periods presented. The year-end condensed balance sheet data was derived from audited financial statements, but does not include all disclosures required by U.S. GAAP. The condensed consolidated results of operations for any interim period are not necessarily indicative of the results to be expected for the full year or for any other future year or interim period.

Recent Accounting Pronouncements

In December 2011, the International Accounting Standards Board ("IASB") and the FASB issued common disclosure requirements that are intended to enhance comparability between financial statements prepared on the basis of U.S. GAAP and those prepared in accordance with IFRS. In January 2013, the FASB issued an accounting standard update to limit the scope of the new balance sheet offsetting disclosures to derivative instruments, repurchase agreements, and securities lending transactions to the extent that they are offset in the financial statement or subject to an enforceable master netting arrangement or similar arrangement. While this guidance does not change existing offsetting criteria in U.S. GAAP or the permitted balance sheet presentation for items meeting the criteria, it requires an entity to disclose both net and gross information about assets and liabilities that have been offset and the related arrangements. Required disclosures under this new guidance should be provided retrospectively for all comparative periods presented. This new guidance is effective for fiscal years beginning on or after January 1, 2013, and interim periods within those years, which was the Company's first quarter of fiscal 2013. The adoption of this guidance did not have a material effect on the Company's consolidated financial statements.

In July 2012, the FASB issued an amended accounting standard update to simplify how entities test indefinite-lived intangible assets for impairment which improve consistency in impairment testing requirements among long-lived asset categories. The amended guidance permits an assessment of qualitative factors to determine whether it is more likely than not that the fair value of an indefinite-lived intangible asset is less than its carrying value. For assets in which this assessment concludes it is more likely than not that the fair value is more than its carrying value, then the amended guidance eliminates the requirement to perform quantitative impairment testing as outlined in the previously issued standards. The amended guidance is effective for fiscal years beginning after September 15, 2012; however, early adoption is permitted. This amended guidance did not have an impact on the Company's consolidated financial statements.
 
In February 2013, in connection with the accounting standard related to the presentation of the Statement of Comprehensive Income, the FASB issued an accounting standard update to improve the reporting of reclassifications out of accumulated other comprehensive income of various components. This guidance requires companies to present either parenthetically on the face of the financial statements or in the notes, significant amounts reclassified from each component of accumulated other comprehensive income and the income statement line items affected by the reclassification. This standard is effective for interim periods and fiscal years beginning after December 15, 2012, which was the Company's first quarter of fiscal 2013. The adoption of this guidance did not have a material effect on the Company's consolidated financial statements.



3. Fair Value of Financial Instruments

The inputs to the valuation techniques used to measure fair value are classified into the following categories:

Level 1: Quoted market prices in active markets for identical assets or liabilities.

Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data.

Level 3: Unobservable inputs that are not corroborated by market data.

As of March 31, 2013 , the Company’s financial assets and financial liabilities are presented below at fair value and were classified within the fair value hierarchy as follows (in thousands):

11


 
Level 1
 
Level 2
 
Level 3
 
Balance as of
 March 31, 2013
Financial Assets
 
 
 
 
 
 
 
Money market funds
$
182

 
$
—

 
$
—

 
$
182

Certificates of deposit
1,565

 
—

 
—

 
1,565

Total financial assets
$
1,747

 
$
—

 
$
—

 
$
1,747

Financial Liabilities
 
 
 
 
 
 
 
Notes payable
$
—

 
$
1,452

 
$
—

 
$
1,452

Loans payable
—

 
23,069

 
—

 
23,069

Credit facilities
—

 
10,906

 
—

 
10,906

Convertible notes
—

 
—

 
62,401

 
62,401

Compound embedded derivative liability
—

 
—

 
6,842

 
6,842

Currency interest rate swap derivative liability
—

 
1,432

 
—

 
1,432

Total financial liabilities
$
—

 
$
36,859

 
$
69,243

 
$
106,102


The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires management to make judgments and consider factors specific to the asset or liability. The fair values of money market funds are based on fair values of identical assets. The fair values of the loan payable, convertible notes, credit facility and currency interest rate swaps are based on the present value of expected future cash flows and assumptions about current interest rates and the creditworthiness of the Company. Market risk associated with fixed and variable rate long-term debt relates to the potential reduction in fair value and negative impact to future earnings, respectively, from an increase in interest rates.

The carrying amounts of certain financial instruments, such as cash equivalents, accounts receivable, accounts payable, accrued liabilities and notes payable, approximate fair value due to their relatively short maturities, and low market interest rates if applicable. The fair values of the loan payable, convertible notes and credit facility are based on the present value of expected future cash flows and assumptions about current interest rates and the creditworthiness of the Company.

The following table provides a reconciliation of the beginning and ending balances for the compound embedded derivative liability measured at fair value using significant unobservable inputs (Level 3) (in thousands):
 
Compound Embedded Derivative Liability
Balance at December 31, 2012
$
7,894

    Total (gain) losses included in other income (expense), net
(1,052
)
Balance at March 31, 2013
$
6,842


The compound embedded derivative liability, which is included in other liabilities, represents the value of the equity conversion option and a "make-whole" provision of outstanding senior unsecured convertible promissory notes issued to Total Gas & Power USA SAS (see Note 6). There is no current observable market for this type of derivative and, as such, the Company determined the value of the embedded derivative using a Black-Scholes valuation model that combines expected cash outflows with market-based assumptions regarding risk-adjusted yields, stock price volatility, probability of a change of control and the trading information of the Company's common stock into which the notes are convertible. The Company marks the embedded derivative to market due to the conversion price not being indexed to the Company's own stock. Except for the "make-whole interest" provision included in the conversion option, which is only required to be settled in cash upon a change of control at the noteholder's option, the embedded derivative will be settled in either cash or shares. As of March 31, 2013 , the Company had enough common shares to settle the conversion option in shares.

The Company’s financial assets and financial liabilities as of December 31, 2012 are presented below at fair value and were classified within the fair value hierarchy as follows (in thousands):


12


 
Level 1
 
Level 2
 
Level 3
 
Balance as of December 31, 2012
Financial Assets
 
 
 
 
 
 
 
Money market funds
$
15,847

 
$
—

 
$
—

 
$
15,847

Certificates of deposit
757

 
—

 
—

 
757

Total financial assets
$
16,604

 
$
—

 
$
—

 
$
16,604

Financial Liabilities
 
 
 
 
 
 
 
Notes payable
$
—

 
$
1,676

 
$
—

 
$
1,676

Loans payable
—

 
20,707

 
—

 
20,707

Credit facilities
—

 
11,503

 
—

 
11,503

Convertible notes
—

 
—

 
62,522

 
62,522

Compound embedded derivative liability
—

 
—

 
7,894

 
7,894

Currency interest rate swap derivative liability
—

 
1,367

 
—

 
1,367

Total financial liabilities
$
—

 
$
35,253

 
$
70,416

 
$
105,669



Derivative Instruments

The Company’s derivative instruments included Chicago Board of Trade (CBOT) ethanol futures and Reformulated Blendstock for Oxygenate Blending (RBOB) gasoline futures. All derivative commodity instruments were recorded at fair value on the consolidated balance sheets. None of the Company’s derivative instruments were designated as a hedging instrument. Changes in the fair value of these non-designated hedging instruments were recognized in cost of products sold in the consolidated statements of operations. As of March 31, 2013 , the Company had no outstanding derivative commodity instruments resulting from the Company's transition out of of its ethanol and ethanol-blended gasoline business in the quarter ended September 30, 2012.

In June 2012, the Company entered into a loan agreement with Banco Pine S.A. under which the bank provided the Company with a short term loan of R$52.0 million (approximately US$25.4 million based on the exchange rate as of December 31, 2012 ) (the “Bridge Loan”). At the time of the Bridge Loan, the Company also entered into a currency interest rate swap arrangement with Banco Pine with respect to the repayment of R$22.0 million (approximately US$10.9 million based on the exchange rate of as of March 31, 2013 ). The swap arrangement exchanges the principal and interest payments under the Banco Pine loan of R$22.0 million entered into in July 2012 for alternative principal and interest payments that are subject to adjustment based on fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real. The swap has a fixed interest rate of 3.94% . Changes in the fair value of the swap are recognized in other income (expense), net in the consolidated statements of operations.

As of March 31, 2013 , the Company had recorded a compound embedded derivative liability of $6.8 million which was included in other liabilities and represents the value of the equity conversion option and a "make-whole" provision of outstanding senior unsecured convertible promissory notes issued to Total Gas & Power USA SAS (see Note 6).

Derivative instruments measured at fair value as of March 31, 2013 and December 31, 2012 , and their classification on the consolidated balance sheets and consolidated statements of operations, are presented in the following tables (in thousands except contract amounts):
 
 
Asset/Liability as of
 
 
March 31, 2013
 
December 31, 2012
Type of Derivative Contract
 
Quantity of
Contracts
 
Fair Value
 
Quantity of
Contracts
 
Fair Value
Currency interest rate swap, included as net liability in other long term liability
 
1

 
$
1,432

 
1

 
$
1,367

 

13


 
 
Income
Statement Classification
Three Months Ended March 31,
Type of Derivative Contract
2013
 
2012
 
 
 
Gain (Loss) Recognized
Regulated fixed price futures contracts
 
Cost of products sold
$
—

 
$
(720
)
Currency interest rate swap
 
Other income (expense), net
$
65

 
$
—


4. Balance Sheet Components

Inventories

Inventories are stated at the lower of cost or market and consist of the following (in thousands):
 
March 31,
 
December 31,
 
2013
 
2012
Raw materials
$
1,435

 
$
1,574

Work-in-process
2,907

 
1,771

Finished goods
2,185

 
2,689

Inventories, net
$
6,527

 
$
6,034


The Company evaluates the recoverability of its inventories based on assumptions about expected demand and net realizable value. If the Company determines that the cost of inventories exceeds its estimated net realizable value, the Company records a write-down equal to the difference between the cost of inventories and the estimated net realizable value. Cost is computed on a first-in, first-out basis. Inventory costs include transportation costs incurred in bringing the inventory to its existing location. The Company also evaluates the terms of its agreements with its suppliers and establishes accruals for estimated adverse purchase commitments as necessary, applying the same lower of cost or market approach that is used to value inventory.


Property, Plant and Equipment, net

Property, plant and equipment, net is comprised of the following (in thousands):  
 
 
 
March 31,
 
December 31,
 
Useful Life
 
2013
 
2012
Leasehold improvements
Remaining lease term
 
$
39,330

 
$
39,290

Machinery and equipment
7 - 15 Years
 
107,436

 
105,162

Computers and software
3 - 5 Years
 
8,480

 
8,232

Furniture and office equipment
5 years
 
2,525

 
2,467

Buildings
15 Years
 
6,470

 
5,888

Vehicles
5 years
 
543

 
575

Construction in progress
 
 
45,807

 
45,372

 
 
 
$
210,591

 
206,986

Less: accumulated depreciation and amortization
 
 
(48,338
)
 
(43,865
)
Property, plant and equipment, net
 
 
$
162,253

 
$
163,121


The Company's first, purpose-built, large-scale Biofene production plant commenced operations in southeastern Brazil in December 2012. This plant is in Brotas in the state of São Paulo and is adjacent to an existing sugar and ethanol mill, Paraíso Bioenergia. The Company's construction in progress consists primarily of the upfront plant design and the initial construction of a second large-scale production plant in Brazil, located at the Usina São Martinho sugar and ethanol mill (also in the state of São Paulo).

Property, plant and equipment, net includes $3.4 million and $9.1 million of machinery and equipment and furniture and office equipment under capital leases as of March 31, 2013 and December 31, 2012 , respectively. Accumulated amortization of assets under capital leases totaled $0.9 million and $4.1 million as of March 31, 2013 and December 31, 2012 , respectively.


14


Depreciation and amortization expense, including amortization of assets under capital leases, was $4.4 million and $3.6 million for the three months ended March 31, 2013 and 2012 , respectively.

The Company capitalizes interest costs incurred to construct plant and equipment. The capitalized interest is recorded as part of the depreciable cost of the asset to which it relates to and is amortized over the asset's estimated useful life. Interest cost capitalized as of March 31, 2013 and December 31, 2012 was $0.6 million and $0.6 million , respectively.

Accrued and Other Current Liabilities

Accrued and other current liabilities are comprised of the following (in thousands):
 
March 31,
 
December 31,
 
2013

2012
Professional services
$
1,580

 
$
824

Accrued vacation
2,668

 
2,673

Payroll and related expenses
3,680

 
5,809

Tax-related liabilities
929

 
851

Deferred rent, current portion
1,491

 
1,448

Contractual obligations to contract manufacturers, current
8,443

 
9,952

Customer advances
970

 
970

Other
1,667

 
1,883

Total accrued and other current liabilities
$
21,428

 
$
24,410



Other Liabilities

Other liabilities are comprised of the following (in thousands):
 
March 31,
 
December 31,
 
2013
 
2012
Contractual obligations to contract manufacturers, non-current
3,000

 
4,000

Fair market value of swap obligations
1,432

 
1,367

Fair value of compound embedded derivative liability (1)
6,842

 
7,894

Other
2,988

 
2,672

Total other liabilities
$
14,262

 
$
15,933

______________ 
(1)  
The compound embedded derivative liability represents the fair value of the equity conversion feature and a "make-whole" feature of the outstanding senior unsecured convertible promissory notes issued to Total.


5. Commitments and Contingencies

The Company leased certain facilities and financed certain of its equipment under operating and capital leases. Operating leases include leased facilities and capital leases included leased equipment, see Note 4 Balance Sheet Components - “Property, Plant and Equipment”. Rent expense under operating leases was approximately $0.7 million and $1.2 million respectively, for the three months ended March 31, 2013 and 2012 , respectively.
Future minimum payments under the Company's lease obligations as of March 31, 2013 , are as follows (in thousands):


15


Years ending December 31:
Capital
Leases
 
Operating
Leases
 
Total Lease Obligations
2013 (Nine Months)
$
823

 
$
5,229

 
$
6,052

2014
1,007

 
6,831

 
7,838

2015
289

 
6,932

 
7,221

2016
—

 
6,915

 
6,915

2017
—

 
6,767

 
6,767

Thereafter
—

 
4,417

 
4,417

Total future minimum lease payments
2,119

 
$
37,091

 
39,210

Less: amount representing interest
(133
)
 
 
 


Present value of minimum lease payments
1,986

 
 
 

Less: current portion
(998
)
 
 
 


Long-term portion
$
988

 
 
 



Guarantor Arrangements

The Company has agreements whereby it indemnifies its officers and directors for certain events or occurrences while the officer or director is, or was, serving at the Company’s request in such capacity. The term of the indemnification period is for the officer or director’s lifetime. The maximum potential amount of future payments the Company could be required to make under these indemnification agreements is unlimited; however, the Company has a director and officer insurance policy that limits its exposure and enables the Company to recover a portion of any future amounts paid. As a result of its insurance policy coverage, the Company believes the estimated fair value of these indemnification agreements is minimal. Accordingly, the Company had no liabilities recorded for these agreements as of March 31, 2013 and December 31, 2012 .
 
The Company has a facility (“FINEP Credit Facility”) with a financial institution to finance a research and development project on sugarcane-based biodiesel (see Note 6). The FINEP Credit Facility provides for loans of up to an aggregate principal amount of R$6.4 million (approximately US$3.2 million based on the exchange rate as of March 31, 2013 ) which is guaranteed by a chattel mortgage on certain equipment of the Company. The Company's total acquisition cost for the equipment under this guarantee is approximately R$6.0 million (approximately US$3.0 million based on the exchange rate as of March 31, 2013 ). Through December 31, 2012 , the Company received all four disbursements after compliance with certain terms and conditions under the FINEP Credit Facility as described in more detail in Note 6. After the release of the first disbursement and prior to any subsequent drawdown from the FINEP Credit Facility, the Company provided bank letters of guarantee of R$3.3 million (approximately US$1.6 million based on the exchange rate as of December 31, 2012 ) through Banco ABC Brasil S.A. As of March 31, 2013 , all available credit under this facility was fully drawn.

The Company has a credit facility (“BNDES Credit Facility”) with a financial institution to finance a production site in Brazil. This credit facility is collateralized by a first priority security interest in certain of the Company's equipment and other tangible assets totaling R$24.9 million (approximately US$12.4 million based on the exchange rate as of March 31, 2013 ). The Company is a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, the Company is required to provide a bank guarantee under the BNDES Credit Facility.

The Company has signed loan agreements and a security agreement where the Company pledged certain farnesene production assets as collateral (the fiduciary conveyance of movable goods) with each of Nossa Caixa and Banco Pine. Under the loan agreements, Banco Pine agreed to lend R$22.0 million and Nossa Caixa agreed to lend R$30.0 million as financing for capital expenditures relating to the Company's production facility in Brotas. The Company's total acquisition cost for the farnesene production assets pledged as collateral under these agreements is approximately R$68.0 million (approximately US$33.8 million based on the exchange rate as of March 31, 2013 ). The Company is a also a parent guarantor for the payment of the outstanding balance under these loan agreements. 
The Company has an export financing agreement for approximately US$2.5 million (approximately R$5.0 million based on exchange rate as of March 18, 2013) for a 1 year-term to fund exports through March 2014. This loan is collateralized by fu ture exports from the Company's subsidiary in Brazil.


16


Under an operating lease agreement for its office facilities in Brazil, which commenced on November 15, 2011, the Company is required to maintain restricted cash or letters of credit equal to 3 months of rent of approximately R$0.2 million (approximately US$0.1 million based on the exchange rate as of March 31, 2013 ) in the aggregate as a guarantee that the Company will meet its performance obligations under such operating lease agreement.

Purchase Obligations

As of March 31, 2013 , the Company had $47.7 million in purchase obligations which included $47.3 million in non-cancelable contractual obligations and construction commitments, of which $11.2 million have been accrued as loss on purchase commitments.

Other Matters

Certain conditions may exist as of the date the financial statements are issued which may result in a loss to the Company but will only be recorded when one or more future events occur or fail to occur. The Company's management assesses such contingent liabilities, and such assessment inherently involves an exercise of judgment. In assessing loss contingencies related to legal proceedings that are pending against and by the Company or unasserted claims that may result in such proceedings, the Company's management evaluates the perceived merits of any legal proceedings or unasserted claims as well as the perceived merits of the amount of relief sought or expected to be sought.
If the assessment of a contingency indicates that it is probable that a material loss has been incurred and the amount of the liability can be estimated, then the estimated liability would be accrued in the Company's financial statements. If the assessment indicates that a potential material loss contingency is not probable but is reasonably possible, or is probable but cannot be estimated, then the nature of the contingent liability, together with an estimate of the range of possible loss if determinable and material would be disclosed. Loss contingencies considered to be remote by management are generally not disclosed unless they involve guarantees, in which case the guarantee would be disclosed.
The Company is subject to disputes and claims that arise or have arisen in the ordinary course of business and that have not resulted in legal proceedings or have not been fully adjudicated. Such matters that may arise in the ordinary course of business are subject to many uncertainties and outcomes are not predictable with assurance. Therefore, if one or more of these legal disputes or claims resulted in settlements or legal proceedings that were resolved against the Company for amounts in excess of management’s expectations, the Company’s consolidated financial statements for the relevant reporting period could be materially adversely affected.


6. Debt

Debt is comprised of the following (in thousands):

 
March 31,
 
December 31,
 
2013
 
2012
Credit facilities
$
11,994

 
$
12,409

Notes payable
1,452

 
1,572

Convertible notes
25,000

 
25,000

Related party convertible notes
39,528

 
39,033

Loans payable
28,958

 
26,150

Total debt
106,932

 
104,164

Less: current portion
(7,082
)
 
(3,325
)
Long-term debt
$
99,850

 
$
100,839


FINEP Credit Facility

In November 2010, the Company entered into a credit facility with Financiadora de Estudos e Projetos (“FINEP”), a state-owned company subordinated to the Brazilian Ministry of Science and Technology. This FINEP Credit Facility was extended to partially fund expenses related to the Company’s research and development project on sugarcane-based biodiesel (“FINEP Project”) and provides for loans of up to an aggregate principal amount of R$6.4 million (approximately US$3.2 million based on the

17


exchange rate as of March 31, 2013 ) which is secured by a chattel mortgage on certain equipment of the Company as well as by bank letters of guarantee. As of December 31, 2012, all available credit under this facility was fully drawn.

Interest on loans drawn under this credit facility is fixed at 5%  per annum. In case of default under or non-compliance with the terms of the agreement, the interest on loans will be dependent on the long-term interest rate as published by the Central Bank of Brazil (“TJLP”). If the TJLP at the time of default is greater than 6% , then the interest will be 5% plus a TJLP adjustment factor, otherwise the interest will be at 11%  per annum. In addition, a fine of up to 10% shall apply to the amount of any obligation in default. Interest on late balances will be 1% interest per month, levied on the overdue amount. Payment of the outstanding loan balance is being made in 81 monthly installments, which commenced in July 2012 and extends through March 2019. Interest on loans drawn and other charges are paid on a monthly basis and commenced in March 2011. As of March 31, 2013 and December 31, 2012 , the total outstanding loan balance under this credit facility was R$6.0 million (approximately US$3.0 million based on exchange rate as of March 31, 2013 ) and R$6.4 million (approximately US$3.1 million based on exchange rate as of December 31, 2012 ), respectively.

The FINEP Credit Facility contains the following significant terms and conditions:
•
The Company would share with FINEP the costs associated with the FINEP Project. At a minimum, the Company would contribute from its own funds approximately R$14.5 million (approximately US$7.1 million based on the exchange rate as of December 31, 2012) of which R$11.1 million was to be contributed prior to the release of the second disbursement. As of December 31, 2012, all four disbursements were completed and for its part, the Company has fulfilled all of its cost sharing obligations;
•
After the release of the first disbursement, prior to any subsequent drawdown from the FINEP Credit Facility, the Company was required to provide bank letters of guarantee of up to R$3.3 million in aggregate (approximately US$1.6 million based on the exchange rate as of December 31, 2012). On December 17, 2012 and prior to release of the second disbursement on December 26, 2012, the Company obtained the required bank letter of guarantees from Banco ABC Brasil, S.A.
•
Amounts released from the FINEP Credit Facility must be completely used by the Company towards the FINEP Project within 30 months after the contract execution.

BNDES Credit Facility

In December 2011, the Company entered into a credit facility ("BNDES Credit Facility”) in the amount of R$22.4 million (approximately US$11.1 million based on the exchange rate at March 31, 2013 ) with Banco Nacional de Desenvolvimento Econômico e Social ('BNDES”), a government owned bank headquartered in Brazil. This BNDES facility was extended as project financing for a production site in Brazil. The credit line is divided into an initial tranche for up to approximately R$19.1 million (approximately US$9.5 million based on the exchange rate at March 31, 2013 ) and an additional tranche of approximately R$3.3 million (approximately US$1.6 million based on the exchange rate at March 31, 2013 )that becomes available upon delivery of additional guarantees. The credit line is available for 12 months from the date of the Credit Facility, subject to extension by the lender.
The principal of the loans under the BNDES Credit Facility is required to be repaid in 60 monthly installments, with the first installment due in January 2013 and the last due in December 2017. Interest was due initially on a quarterly basis with the first installment due in March 2012. From and after January 2013, interest payments are due on a monthly basis together with principal payments. The loaned amounts carry interest of 7%  per annum. Additionally, there is a credit reserve charge of 0.1% on the unused balance from each credit installment from the day immediately after it is made available through its date of use, when it is paid.

The BNDES Credit Facility is collateralized by a first priority security interest in certain of the Company's equipment and other tangible assets totaling R$24.9 million (approximately US$12.4 million based on the exchange rate as of March 31, 2013 ). The Company is a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, the Company is required to provide a bank guarantee equal to 10.0% of the total approved amount ( R$22.4 million in total debt) available under this Credit Facility. For advances of the second tranche (above R$19.1 million ), the Company is required to provide additional bank guarantees equal to 90.0% of each such advance, plus additional Company guarantees equal to at least 130.0% of such advance. The BNDES Credit Facility contains customary events of default, including payment failures, failure to satisfy other obligations under this credit facility or related documents, defaults in respect of other indebtedness, bankruptcy, insolvency and inability to pay debts when due, material judgments, and changes in control of Amyris Brasil. If any event of default occurs, the Lender may terminate its commitments and declare immediately due all borrowings under the facility. As of March 31, 2013 and December 31, 2012 the Company had R$18.1 million (approximately US$9.0 million based on the exchange rate as of March 31, 2013 ) and R$19.1 million (approximately US$9.3 million based on the exchange rate as of December 31, 2012 ) in outstanding advances under the BNDES Credit Facility.

18



Notes Payable

During the period between May 2008 and October 2008, the Company entered into notes payable agreements with the lessor of its headquarters under which it borrowed a total of $3.3 million for the purchase of tenant improvements, bearing an interest rate of 9.5%  per annum and to be repaid over a period of 55 to 120 months. As of March 31, 2013 and December 31, 2012 , a principal amount of $1.5 million and $1.6 million , respectively, was outstanding under these notes payable.

Convertible Notes

In February 2012, the Company completed the sale of senior unsecured convertible promissory notes in an aggregate principal amount of $25.0 million pursuant to a Securities Purchase Agreement, between the Company and certain investment funds affiliated with Fidelity Investments Institutional Services Company, Inc. The offering consisted of the sale of 3.0% senior unsecured convertible promissory notes with a March 1, 2017 maturity date and an initial conversion price equal to $7.0682 per share of the Company's common stock, subject to adjustment for proportional adjustments to outstanding common stock and anti-dilution provisions in case of dividends and distributions. As of March 31, 2013 , the notes were convertible into an aggregate of up to 3,536,968 shares of common stock. The note holders have a right to require repayment of 101% of the principal amount of the notes in an acquisition of the Company, and the notes provide for payment of unpaid interest on conversion following such an acquisition if the note holders do not require such repayment.  The securities purchase agreement and notes include covenants regarding payment of interest, maintaining the Company's listing status, limitations on debt, maintenance of corporate existence, and filing of SEC reports. The notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults, material adverse effect clauses and breaches of the covenants in the securities purchase agreement and notes, with default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, the senior unsecured convertible notes include restrictions on the amount of debt the Company is permitted to incur. The Company's total outstanding debt at any time can not exceed the greater of $200.0 million or 50% of its consolidated total assets and its secured debt cannot exceed the greater of $125 million or 30% of its consolidated total assets. As of March 31, 2013 and December 31, 2012 , a principal amount of $25.0 million and $25.0 million , respectively, was outstanding under these notes payable.

Related Party Convertible Notes

In July 30, 2012 , the Company entered into a further amendment of the collaboration agreement with Total that expanded Total's investment in the biofene collaboration, incorporated the development of certain joint venture products for use in diesel and jet fuel into the scope of the collaboration, provided a new structure for the research and development program and formation of the joint venture (the “Fuels JV”) to commercialize the products encompassed by the diesel and jet fuel research and development program (the “Program”) and changed the structure of the funding from Total to include a convertible debt mechanism.
The purchase agreement for the notes related to the funding from Total provides for the sale of an aggregate of $105.0 million in notes as follows:

•
As part of an initial closing under the purchase agreement (which initial closing was completed in two installments), (i) on July 30, 2012 , the Company sold a 1.5% Senior Unsecured Convertible Note Due 2017 to Total in the face amount of $38.3 million , including $15.0 million in new funds and $23.3 million in previously-provided diesel research and development funding by Total, and (ii) on September 14, 2012 , the Company sold another note (in the same form) for $15.0 million in new funds from Total.
•
The purchase agreement provides that additional notes may be sold in subsequent closings in July 2013 (for cash proceeds to the Company of $30.0 million ) and July 2014 (for cash proceeds to the Company of $21.7 million , which would be settled in an initial installment of $10.85 million payable at such closing and a second installment of $10.85 million payable in January 2015 ).

The notes each have a March 1, 2017 maturity date and an initial conversion price equal to $7.0682 per share of the Company's common stock. The notes bear interest of 1.5% per annum (with a default rate of 2.5% ), accruing from the date of funding and payable at maturity or on conversion or a change of control where Total exercises the right to require the Company to repay the notes. Accrued interest is canceled if the notes are canceled based on a “Go” decision.The agreements contemplate that the research and development efforts under the Program may extend through 2016, with a series of “Go/No Go” decisions by Total through such date tied to funding by Total.


19


The notes become convertible into the Company's common stock (i) within 10 trading days prior to maturity (if they are not canceled as described above prior to their maturity date), (ii) on a change of control of the Company, (iii) if Total is no longer the largest stockholder of the Company following a “No-Go” decision (subject to a six -month lock-up with respect to any shares of common stock issued upon conversion), and (iv) on a default by the Company. If Total makes a final “Go” decision, then the notes will be exchanged by Total for equity interests in the Fuels JV, after which the notes will not be convertible and any obligation to pay principal or interest on the notes will be extinguished. If Total makes a “No-Go” decision, outstanding notes will remain outstanding and become payable at maturity.

In connection with the Private Placement that occurred on December 24, 2012, Total elected to participate in the Private Placement by exchanging approximately $5.0 million of its $53.3 million in senior unsecured convertible promissory notes for 1,677,852 of the Company's common stock at $2.98 per share. As such, $5.0 million of the outstanding $53.3 million in senior unsecured convertible promissory notes was cancelled. The cancellation of the debt was treated as an extinguishment of debt in accordance with the guidance outlined in ASC 470-50.

As of March 24, 2013 , the Company entered into a letter agreement with Total under which Total agreed to waive its right to cease its participation in our fuels collaboration at the July 2013 decision point and committed to proceed with the July 2013 funding tranche of $30.0 million (subject to the Company's satisfaction of the relevant closing conditions for such funding in the securities purchase agreement).  As consideration for this waiver and commitment, the Company agreed to:
•
Reduce the conversion price for the senior unsecured convertible promissory notes to be issued in connection with such funding from $7.0682 per share to a price per share equal to the greater of (i) the consolidated closing bid price of the Company's common stock on the date of the letter agreement, plus $0.01 , and (ii) $3.08 per share, provided that the conversion price will not be reduced by more than the maximum possible amount permitted under the NASDAQ rules such that the new conversion price would require the Company to obtain stockholder consent; and
•
Grant Total a senior security interest in the Company's intellectual property, subject to certain exclusions and subject to release by Total when the Company and Total enter into final documentation regarding the establishment of the Fuels JV.

In addition to the waiver by Total described above, Total also agreed that, at the Company's request and contingent upon the Company meeting its obligations described above, it would pay advance installments of the amounts otherwise payable at the July 2013 closing.  Specifically, if the Company requests such advance installments, subject to certain closing conditions and delivery of certifications regarding the Company's cash levels, Total is obligated to fund $10.0 million no later than May 15, 2013 , and an additional $10.0 million no later than June 15, 2013 , with the remainder to be funded on the original July 2013 closing date.

The conversion price of the notes is subject to adjustment for proportional adjustments to outstanding common stock and under anti-dilution provisions in case of certain dividends and distributions. Total has a right to require repayment of 101% of the principal amount of the notes in the event of a change of control of the Company and the notes provide for payment of unpaid interest on conversion following such a change of control if Total does not require such repayment. The purchase agreement and notes include covenants regarding payment of interest, maintenance of the Company's listing status, limitations on debt, maintenance of corporate existence, and filing of SEC reports. The notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults, and breaches of the covenants in the purchase agreement and notes, with added default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, the senior unsecured convertible notes include restrictions on the amount of debt the Company is permitted to incur. The Company's total outstanding debt at any time cannot exceed the greater of $200.0 million or 50% of its consolidated total assets and its secured debt cannot exceed the greater of $125.0 million or 30% of its consolidated total assets. As of March 31, 2013 and December 31, 2012 , a principal amount of $39.5 million and $39.0 million , respectively, was outstanding under these convertible notes.

Loans Payable

In December 2009, the Company entered into a loans payable agreement with the lessor of its Emeryville pilot plant under which it borrowed a total of $250,000 , bearing an interest rate of 10.0%  per annum and to be repaid over a period of 96 months. As of March 31, 2013 and December 31, 2012 , a principal amount of $170,000 and $177,000 , respectively, was outstanding under the loan.

In June 2012, the Company entered into a loan agreement with Banco Pine under which Banco Pine provided the Company with a short-term bridge loan of R$52.0 million (approximately US$25.4 million based on the exchange rate as of December 31, 2012 ). The interest rate for the bridge loan was 0.4472% monthly (approximately 5.5% on an annualized basis). The principal and

20


interest due under the bridge loan matured and were required to be repaid on September 19, 2012 , subject to extension by Banco Pine. At the time of this bridge loan, the Company entered into a currency interest rate swap arrangement with the lender for R$22.0 million (approximately US$10.9 million based on the exchange rate as of March 31, 2013 ). The interest rate swap arrangement exchanged the principal and interest payments under the Banco Pine loan of R$22.0 million entered into in July 2012 for alternative principal and interest payments that were subject to adjustment based on fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real. The swap had a fixed interest rate of 3.94% . In July 2012, the Company repaid the outstanding bridge loan of R$52.0 million from Banco Pine.

In July 2012, the Company entered into a Note of Bank Credit and a Fiduciary Conveyance of Movable Goods agreements with each of Nossa Caixa and Banco Pine. Under these agreements, the Company's total acquisition cost for the farnesene production assets pledged as collateral was approximately R$68.0 million (approximately US$33.8 million based on the exchange rate as of March 31, 2013 ). The Company is a also a parent guarantor for the payment of the outstanding balance under these loan agreements. Under such instruments, the Company could borrow an aggregate of R$52.0 million (approximately US$25.8 million based on the exchange rate as of March 31, 2013 ) as financing for capital expenditures relating to the Company's manufacturing facility in Brotas.  Under the loan agreements, Banco Pine, agreed to lend R$22.0 million and Nossa Caixa agreed to lend R$30.0 million .  The funds for the loans are provided by Banco Nacional de Desenvolvimento Econômico e Social ("BNDES"), but are guaranteed by the lenders. The loans have a final maturity date of July 15, 2022 and bear a fixed interest rate of 5.5% per year. The loans are also subject to early maturity and delinquency charges upon occurrence of certain events including interruption of manufacturing activities at Brotas for more than 30 days, except during sugarcane off-season.  For the first two years that the loans are outstanding, the Company is required to pay interest only on a quarterly basis.  After August 15, 2014 , the Company is required to pay equal monthly installments of both principal and interest for the remainder of the term of the loans. As of March 31, 2013 and December 31, 2012 , a principal amount of $25.8 million and $25.4 million , respectively, was outstanding under these loan agreements.

In October 2012, the Company entered into a loans payable agreement with a lender under which it borrowed $0.6 million to pay the insurance premiums of certain policies. The loan is payable in nine monthly installments of principal and interest. Interest accrues at a rate of 3.24% per annum. As of March 31, 2013 and December 31, 2012 , the outstanding unpaid loan balance was $0.2 million and $0.4 million , respectively.

On March 18, 2013 , the Company entered into an export financing agreement with Banco ABC Brasil S.A. (ABC Bank) for approximately US$2.5 million (approximately R$5.0 million based on exchange rate as of March 18, 2013) for a 1 year-term to fund exports through March 2014. This loan is collateralized by future exports from the Company's subsidiary in Brazil. As of March 31, 2013 , the principal amount outstanding was US$2.5 million .

Letters of Credit

In June 2012, the Company entered into a letter of credit agreement for $1.0 million under which it provided a letter of credit to the landlord for its headquarters in Emeryville, California in order to cover the security deposit on the lease. The letter of credit is secured by a certificate of deposit. Accordingly, the Company has $1.0 million as restricted cash as of March 31, 2013 and December 31, 2012 .

Future minimum payments under the debt agreements as of March 31, 2013 are as follows (in thousands):

Years ending December 31:
Related Party Convertible Debt
 
Convertible Debt
 
Notes Payable
 
Loans Payable
 
Credit Facility
2013 (Nine Months)
$
—

 
$
573

 
$
1,464

 
$
1,803

 
$
2,331

2014
—

 
760

 
—

 
5,480

 
2,969

2015
—

 
765

 
—

 
4,476

 
2,815

2016
—

 
760

 
—

 
4,304

 
2,662

2017
51,627

 
25,125

 
—

 
4,126

 
2,507

Thereafter
—

 
—

 
—

 
16,668

 
641

Total future minimum payments
51,627

 
27,983

 
1,464

 
36,857

 
13,925

Less: amount representing interest
(12,099
)
 
(2,983
)
 
(12
)
 
(7,899
)
 
(1,931
)
Present value of minimum debt payments
39,528

 
25,000

 
1,452

 
28,958

 
11,994

Less: current portion
—

 
—

 
(1,452
)
 
(3,136
)
 
(2,494
)
Noncurrent portion of debt
$
39,528

 
$
25,000

 
$
—

 
$
25,822

 
$
9,500


21





7. Joint Ventures and Noncontrolling Interest

SMA Indústria Química

On April 14, 2010, the Company established SMA, a joint venture with Usina São Martinho, to build the first facility in Brazil fully dedicated to the production of Amyris renewable products. The new company is located at the Usina São Martinho mill in Pradópolis, São Paulo state. SMA has a 20 year initial term.

 SMA is managed by a three member executive committee, of which the Company appoints two members, one of whom is the plant manager who is the most senior executive responsible for managing the construction and operation of the facility. SMA is governed by a four member board of directors, of which the Company and Usina São Martinho each appoint two members. The board of directors has certain protective rights which include final approval of the engineering designs and project work plan developed and recommended by the executive committee.

The joint venture agreements require the Company to fund the construction costs of the new facility and Usina São Martinho would reimburse the Company up to RS$61.8 million (approximately US$30.7 million based on the exchange rate as of March 31, 2013 ) of the construction costs after SMA commences production. Post commercialization, the Company would market and distribute Amyris renewable products and Usina São Martinho would sell feedstock and provide certain other services to SMA. The cost of the feedstock to SMA would be a price that is based on the average return that Usina São Martinho could receive from the production of its current products, sugar and ethanol. The Company would be required to purchase the output of SMA for the first four years at a price that guarantees the return of Usina São Martinho’s investment plus a fixed interest rate. After this four year period, the price would be set to guarantee a break-even price to SMA plus an agreed upon return.

Under the terms of the joint venture agreements, if the Company becomes controlled, directly or indirectly, by a competitor of Usina São Martinho, then Usina São Martinho has the right to acquire the Company’s interest in SMA. If Usina São Martinho becomes controlled, directly or indirectly, by a competitor of the Company, then the Company has the right to sell its interest in SMA to Usina São Martinho. In either case, the purchase price shall be determined in accordance with the joint venture agreements, and the Company would continue to have the obligation to acquire products produced by SMA for the remainder of the term of the supply agreement then in effect even though the Company would no longer be involved in SMA’s management.

The Company has a 50% ownership interest in SMA. The Company has identified SMA as a variable interest entity ("VIE") pursuant to the accounting guidance for consolidating VIEs because the amount of total equity investment at risk is not sufficient to permit SMA to finance its activities without additional subordinated financial support, as well as because the related commercialization agreement provides a substantive minimum price guarantee. Under the terms of the joint venture agreement, the Company directs the design and construction activities, as well as production and distribution. In addition, the Company has the obligation to fund the design and construction activities until commercialization is achieved. Subsequent to the construction phase, both parties equally fund SMA for the term of the joint venture. Based on those factors, the Company was determined to have the power to direct the activities that most significantly impact SMA’s economic performance and the obligation to absorb losses and the right to receive benefits. Accordingly, the financial results of SMA are included in the Company’s consolidated financial statements and amounts pertaining to Usina São Martinho’s interest in SMA are reported as noncontrolling interests in subsidiaries.

Novvi

In June 2011, the Company entered into joint venture agreements with Cosan Combustíveis e Lubrificantes S.A. and Cosan S.A. Industria e Comércio (such Cosan entities, collectively or individually, “Cosan”), related to the formation of a joint venture to focus on the worldwide development, production and commercialization of base oils made from Biofene for the automotive, commercial and industrial lubricants markets (the "Original JV Agreement"). The parties originally envisioned operating their joint venture through Novvi S.A., a Brazilian entity jointly owned by Cosan and Amyris Brasil.
 
Under the Original JV Agreement and related agreements, the Company and Cosan each owned 50% of Novvi S.A. and each party would share equally any costs and any profits ultimately realized by Novvi S.A. The joint venture agreement had an initial term of 20 years from the date of the Original JV Agreement, subject to earlier termination by mutual written consent or by a non-defaulting party in the event of specified defaults by the other party. The Shareholders' Agreement had an initial term of 10 years from the date of the agreement, subject to earlier termination if either the Company or Cosan ceases to own at least 10% of the voting stock of Novvi S.A. Since its formation, the Novvi S.A. had minimal operating activities while the Company and Cosan

22


continued to determine and finalize the strategy and operating activities of Novvi S.A. Upon determination by the Company and Cosan that the joint venture be operated out of a US entity, the operating activities of Novvi S.A. ceased. The Company has identified that Novvi S.A. is a VIE and determined that the power to direct activities, which most significantly impact the economic success of the joint venture, is equally shared between the Company and Cosan. Accordingly, the Company is not the primary beneficiary and therefore accounts for its investment in Novvi S.A. under the equity method of accounting.

On March 26, 2013 , the Company, Amyris Brasil and Cosan entered into a termination agreement to terminate the Original JV Agreement. In addition, Amyris Brasil agreed to sell, its 50% ownership in Novvi S.A. for approximately R$22,000 which represented the current value of its 50% equity ownership in Novvi S.A., a now-dormant company, to Cosan. Upon the consummation of the transaction with the shares transferring from Amyris Brasil to Cosan, the Shareholders Agreement of Novvi S.A. dated June 3, 2011 will automatically terminate.

In September 2011, the Company and Cosan US, Inc. (“Cosan U.S.”) formed Novvi LLC, a U.S. entity that is jointly owned by the Company and Cosan U.S. On March 26, 2013 the Company and Cosan U.S. entered into agreements to (i) expand their base oils joint venture to also include additives and lubricants and (ii) operate their joint venture exclusively through Novvi LLC (“Novvi”). Specifically, the parties entered into an Amended and Restated Operating Agreement for Novvi, which sets forth the governance procedures for Novvi and the joint venture and the parties' initial contribution. The Company also entered into an IP License Agreement with Novvi under which the Company granted Novvi (i) an exclusive (subject to certain limited exceptions for the Company), worldwide, royalty-free license to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in the automotive, commercial and industrial lubricants markets and (ii) a non-exclusive, royalty free license, subject to certain conditions, to manufacture Biofene solely for its own products. In addition, both the Company and Cosan U.S. granted Novvi certain rights of first refusal with respect to alternative base oil and additive technologies that may be acquired by the Company or Cosan U.S. during the term of the IP License Agreement. Under these agreements, the Company and Cosan U.S. will each own 50% of Novvi and each party will share equally in any costs and any profits ultimately realized by the joint venture. Novvi is governed by a six member Board of Managers, three from each investor who will appoint the Officers of Novvi who will be responsible for carrying out the daily operating activities of Novvi as directed by the Board of Managers. The IP License Agreement has an initial term of 20 years from the date of the agreement, subject to standard early termination provisions such as uncured material breach or a party's insolvency. Under the terms of the Amended and Restated Operating Agreement for initial contribution, Cosan U.S. is obligated to fund its 50% ownership share of Novvi in cash in the amount of $10.0 million and the Company is obligated to fund its 50% ownership share of Novvi through the granting of an IP License to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in the automotive, commercial and industrial lubricants markets which has been agreed upon by Cosan U.S. and Amyris valued at $10.0 million . On March 26, 2013 , the Company measured its initial contribution of IP to Novvi at the Company's carrying value of the licenses granted under the IP License Agreement, which was zero . Additional funding requirements to finance the ongoing operations of Novvi are expected to happen through revolving credit or other loan facilities provided by unrelated parties (i.e. such as financial institutions); cash advances or other credit or loan facilities provided by the Company and Cosan U.S. or their affiliates; or additional capital contributions by the Company and Cosan U.S.

The Company has identified Novvi as a VIE and determined that the power to direct activities, which most significantly impact the economic success of the joint venture (i.e. continuing research and development, marketing, sales, distribution and manufacturing of Novvi products), is equally shared between the Company and Cosan. Accordingly, the Company is not the primary beneficiary and therefore accounts for its investment in Novvi under the equity method of accounting. The Company will continue to reassess its primary beneficiary analysis of Novvi if there are changes in events and circumstances impacting the power to direct activities that most significantly affect Novvi's economic success. Under the equity method, the Company's share of profits and losses are to be included in “Income (loss) from equity method investments, net” in the consolidated statements of operations. During the three months ended March 31, 2013 , the Company recorded no amounts for its share of Novvi's net loss as the carrying amount of the Company's investment in Novvi was zero and losses in excess of the carrying amount are offset by the accretion of the Company's share in the basis difference resulted from the parties' initial contribution. For the three months ended March 31, 2013 and 2012 , the Company recorded $2.5 million and zero , respectively, of revenue from the research and development activities that it has performed on behalf of Novvi.

Glycotech

In January 2011, the Company entered into a production service agreement with Glycotech, whereby Glycotech is to provide process development and production services for the manufacturing of various Company products at its leased facility in Leland, North Carolina. The Company products to be manufactured by Glycotech will be owned and distributed by the Company. Pursuant to the terms of the agreement, the Company is required to pay the manufacturing and operating costs of the Glycotech facility which is dedicated solely to the manufacture of Amyris products. The initial term of the agreement is for a two year period commencing on February 1, 2011 and will renew automatically for successive one -year terms, unless terminated by the Company.

23


On the same date as the production service agreement, the Company also entered into a right of first refusal agreement with the lessor of the facility and site leased by Glycotech covering a two year period commencing in January 2011. Per the terms of the right of first refusal agreement, the lessor agreed not to sell the facility and site leased by Glycotech during the term of the production service agreement. In the event that the lessor is presented with an offer to sell or decides to sell an adjacent parcel, the Company has the right of first refusal to acquire it.

The Company has determined that the arrangement with Glycotech qualifies as a VIE. The Company determined that it is the primary beneficiary of this arrangement since it has the power through the management committee over which it has majority control to direct the activities that most significantly impact Glycotech's economic performance. In addition, the Company is required to fund 100% of Glycotech's actual operating costs for providing services each month while the facility is in operation under the production service agreement. Accordingly, the Company consolidates the financial results of Glycotech. As of March 31, 2013 , the carrying amounts of the consolidated VIE's assets and liabilities were not material to the Company's consolidated financial statements.

The table below reflects the carrying amount of the assets and liabilities of the two consolidated VIEs for which the Company is the primary beneficiary. The assets include $25.1 million in property, plant and equipment and $4.5 million in other assets, and $0.5 million in current assets. The liabilities include $0.2 million in accounts payable and accrued current liabilities and $0.3 million in loan obligations by Glycotech to its shareholders that are non-recourse to the Company. The creditors of each consolidated VIE have recourse only to the assets of that VIE.

 
 
March 31,
 
December 31,
(In thousands)
2013
 
2012
Assets
$
30,103

 
$
29,564

Liabilities
$
505

 
$
355


The change in noncontrolling interest for the three months ended March 31, 2013 and 2012 is summarized below (in thousands):
 
2013
 
2012
Balance at January 1
$
(877
)
 
$
(240
)
Foreign currency translation adjustment
(9
)
 
87

Gain (loss) attributable to noncontrolling interest
299

 
(348
)
Balance at March 31
$
(587
)
 
$
(501
)


8. Significant Agreements

Firmenich Master Collaboration Agreement

On March 13, 2013 , the Company entered into a Master Collaboration Agreement (the “Agreement”) with Firmenich to establish a collaboration for the development and commercialization of multiple renewable flavors and fragrances ("F&F") compounds. Under this Agreement, except for rights granted under preexisting collaboration relationships, the Company is granting Firmenich exclusive access for such compounds to specified Company intellectual property for the development and commercialization of F&F products in exchange for research and development funding and a profit sharing arrangement. The Agreement supersedes and expands a prior collaboration agreement between the Company and Firmenich.

The Agreement provides annual, up-front funding to the Company by Firmenich of $10.0 million for each of the first three years of the collaboration. The initial payment of $10.0 million was received by the Company on March 27, 2013 . The Agreement contemplates additional funding b y Firmenich on a discretionary basis and up to $5.0 million over three milestone payments from Firmenich to the Company. Under the Company's revenue recognition policy for milestone payments, for arrangements that include milestones that are determined to be substantive and at risk at the inception of the arrangement, revenue is recognized upon achievement of the milestone and is limited to those amounts whereby collectibility is reasonably assured. The Company concluded that the first milestone payment of $2.0 million is substantive and at-risk at the time of the signing of the Agreement, and therefore should be recognized as revenue upon achievement of the milestone event. The second and third milestones of $1.5 million each

24


were not considered substantive at the time of the signing of the Agreement as they were not fully defined, and as such, these milestone payments may be treated as additional consideration. As these milestones are defined or modified after the initial contract date, they could possibly still be substantive milestones and accounted for under the milestone method assuming that they meet all of the criteria.

In addition, the Agreement contemplates that the parties will mutually agree on a supply price for each compound and share product margins from sales of each compound on a 70/30 basis ( 70% for Firmenich) until Firmenich receives $15.0 million more than the Company in the aggregate, after which the parties will share 50/50 in the product margins on all compounds. The Company also agreed to pay a one-time success bonus of up to $2.5 million to Firmenich for outperforming certain commercialization targets. Firmenich's eligibility to receive the one -time success bonus commences upon the first sale of the first Firmenich product .

The Agreement does not impose any specific research and development commitments on either party after year six , but if the parties mutually agree to perform development after year six , the Agreement provides that the parties will fund it equally.

Under the Agreement, the parties jointly select target compounds, subject to final approval of compound specifications by Firmenich. During the development phase, the Company is required to provide labor, intellectual property and technology infrastructure and Firmenich is required to contribute downstream polishing expertise and market access. The Agreement provides that the Company will own research and development and strain engineering intellectual property, and Firmenich will own blending and, if applicable, chemical conversion intellectual property. Under certain circumstances such as the Company's insolvency, Firmenich gains expanded access to the Company's intellectual property. Following development of F&F compounds under the Agreement, the Agreement contemplates that the Company will manufacture the initial target molecules for the compounds and Firmenich will perform any required downstream polishing and distribution, sales and marketing.



9. Goodwill and Intangible Assets


The following table presents the components of the Company's intangible assets (in thousands):

 
 
 
March 31, 2013
 
December 31, 2012
 
Useful Life in Years
 
Gross Carrying Amount
Accumulated Amortization
Net Carrying Value
 
Gross Carrying Amount
Accumulated Amortization
Net Carrying Value
In-process research and development
Indefinite
 
$
8,560

$
—

$
8,560

 
$
8,560


$
8,560

Acquired licenses and permits
2
 
772

(772
)
—

 
772

(740
)
32

Goodwill
Indefinite
 
560

—

560

 
560


560

 
 
 
$
9,892

$
(772
)
$
9,120

 
$
9,892

$
(740
)
$
9,152



The following table presents the activity of intangible assets for the three months ended March 31, 2013 (in thousands):

 
 
December 31, 2012
 
 
 
 
 
 
 
March 31, 2013
 
 
Net Carrying Value
 
Additions
 
Adjustments
 
Amortization
 
Net Carrying Value
In-process research and development
 
$
8,560

 
$
—

 
$
—

 
$
—

 
$
8,560

Acquired licenses and permits
 
32

 
—

 
—

 
(32
)
 
—

Goodwill
 
560

 
—

 
—

 
—

 
560

 
 
$
9,152

 
$
—

 
$
—

 
$
(32
)
 
$
9,120




25


The intangible assets acquired through the Draths Corporation acquisition on October 6, 2011 of in process research and development of $8.6 million and goodwill of $0.6 million are treated as indefinite lived intangible assets until completion or abandonment of the projects, at which time the assets will be amortized over the remaining useful life or written-off, as appropriate. If the carrying amount of the assets is greater than the measures of fair value, impairment is considered to have occurred and a write-down of the asset is recorded. Any finding that the value of its intangible assets has been impaired would require the Company to write-down the impaired portion, which could reduce the value of its assets and reduce (increase) its net income (loss) for the year in which the related impairment charges occur.    

Acquired licenses and permits are amortized using a straight-line method over its estimated useful life. Amortization expense for this intangible was $32,000 and $97,000 for the three months ended March 31, 2013 and 2012 , respectively. As of March 31, 2013 , acquired licenses and permits were fully amortized.

      

10. Stockholders’ Equity

February 2012 Private Placement

In February 2012, the Company completed a private placement of 10,160,325 shares of its common stock at a price of $5.78 per share for aggregate proceeds of $58.7 million . In connection with this private placement, the Company entered into an agreement with an investor to purchase additional shares of the Company's common stock for an additional $15.0 million by March 2013 upon satisfaction by the Company of criteria associated with the commissioning of the Company's production plant in Brotas. This was satisfied by the investor through a $10.0 million investment in a private placement completed by the Company in December 2012 and subsequently, through a $5.0 million investment in a private placement completed by the Company in March 2013.

December 2012 Private Placement

In December 2012, the Company completed a private placement of its common stock for the issuance of 14,177,849 shares of its common stock at a price of $2.98 per share for aggregate proceeds of $37.2 million and the cancellation of $5.0 million worth of outstanding senior unsecured convertible promissory notes previously issued by the Company. Shares totaling 1,677,852 were issued to Total in exchange for this cancellation. Net cash received as of December 31, 2012 was $22.2 million and the remaining $15.0 million of proceeds was received in January 2013. In connection with this private placement, the Company entered into a Letter of Agreement, dated December 24, 2012 with an investor under which the Company acknowledged that the investor's initial investment of $10.0 million in December 2012 represented partial satisfaction of the investor's preexisting contractual obligation to fund $15.0 million by March 31, 2013 upon satisfaction by the Company of criteria associated with the commissioning of the Company's production plant in Brotas.

In January 2013, the Company received $15.0 million in proceeds from a private placement offering that closed in December 2012. Consequently, the Company issued 5,033,557 shares of the Company's common stock.

Biolding Follow-on Investment

In March 2013, the Company completed a private placement of 1,533,742 shares of its common stock at a price of $3.26 per share for aggregate proceeds of $5.0 million . This private placement represented the final tranche of Biolding's preexisting contractual obligation to fund $15.0 million upon satisfaction by the Company of certain criteria associated with the commissioning of a production plant in Brazil.

Evergreen Shares for 2010 Equity Plan and 2010 ESPP

On January 23, 2013, the Company's Board of Directors approved the additional shares which will be available for issuance under the 2010 Equity Plan and the 2010 ESPP. These shares represent an automatic increase in the number of shares available for issuance under the 2010 Equity Plan and the 2010 ESPP of 3,435,483 and 687,096 , respectively, equal to 5% and 1% , respectively of 68,709,660 shares, the total outstanding shares of the Company’s common stock as of December 31, 2012. This automatic increase was effective as of January 1, 2013. Shares available for issuance under the 2010 Equity Plan and 2010 ESPP were initially registered on a registration statement on Form S-8 filed with the Securities and Exchange Commission on October 1, 2010 (Registration No. 333-169715). The Company filed a registration statement on Form S-8 on March 28, 2013 with respect to a portion of the shares added by the automatic increase on January 1, 2013.


26




11. Stock-Based Compensation

 
The Company’s stock option activity and related information for the three months ended March 31, 2013 was as follows:
 
 
 
 
Number
Outstanding
 
Weighted -
Average
Exercise
Price
 
Weighted -
Average
Remaining
Contractual
Life (Years)
 
Aggregate
Intrinsic
Value
 
 
 
 
 
 
 
 
 
(in thousands)
Outstanding - December 31, 2012
 
8,946,592

 
$
9.07

 
7.5
 
$
954

 
Options granted
 
235,355

 
$
2.92

 

 

 
Options exercised
 
(76,898
)
 
$
0.52

 

 

 
Options cancelled
 
(580,083
)
 
$
9.75

 

 

Outstanding - March 31, 2013
 
8,524,966

 
$
8.93

 
6.88
 
$
710

 
 
 
 
 
 
 
 
 
Vested and expected to vest after March 31, 2013
 
7,998,920

 
$
9.04

 
6.76
 
$
662

Exercisable at March 31, 2013
 
4,290,319

 
$
10.08

 
5.24
 
$
370



The aggregate intrinsic value of options exercised under all option plans was $0.2 million and $0.6 million for the three months ended March 31, 2013 and 2012 , respectively, determined as of the date of option exercise.

The Company’s restricted stock units ("RSUs") and restricted stock activity and related information for the three months ended March 31, 2013 was as follows:

  
 
RSUs
 
Weighted Average Grant-Date Fair Value
 
Weighted Average Remaining Contractual Life (Years)
Outstanding - December 31, 2012
2,550,799

 
$
7.92

 
1.3

 
 Awarded
130,000

 
$
2.89

 
—

 
 Vested
(61,000
)
 
$
30.30

 
—

 
 Forfeited
(126,666
)
 
$
4.70

 
—

Outstanding - March 31, 2013
2,493,133

 
$
4.34

 
1.22

Expected to vest after March 31, 2013
2,244,997

 
$
4.34

 
0.97



27


The following table summarizes information about stock options outstanding as of March 31, 2013 :
 
 
Options Outstanding
 
Options Exercisable
Exercise Price
Number of Options
 
Weighted -
Average
Remaining
Contractual Life
(Years)
 
Weighted Average Exercise Price
 
Number of Options
 
Weighted Average Exercise Price
$0.10—$2.76
1,007,735

 
7.92
 
$
2.43

 
209,005

 
$
1.31

$2.89—$3.23
882,190

 
9.36
 
$
3.04

 
18,402

 
$
3.12

$3.55—$3.83
57,655

 
9.34
 
$
3.57

 
73

 
$
3.83

$3.86—$3.86
1,289,906

 
8.36
 
$
3.86

 
369,454

 
$
3.86

$3.93—$3.93
1,187,954

 
3.42
 
$
3.93

 
1,169,546

 
$
3.93

$4.06—$9.32
1,300,531

 
6.36
 
$
6.34

 
854,701

 
$
6.35

$10.44—$14.28
286,773

 
6.06
 
$
12.75

 
210,061

 
$
13.41

$16.00—$16.00
1,048,551

 
6.85
 
$
16.00

 
572,391

 
$
16.00

$16.50—$20.41
858,276

 
6.20
 
$
18.93

 
545,087

 
$
18.97

$24.20—$30.17
605,395

 
7.49
 
$
26.82

 
341,599

 
$
26.78

$0.10—$30.17
8,524,966

 
6.88
 
$
8.93

 
4,290,319

 
$
10.08

 

Stock-Based Compensation Expense

Stock-based compensation expense related to options and restricted stock units granted to employees and nonemployees was allocated to research and development expense and sales, general and administrative expense as follows (in thousands):
 
 
Three Months Ended March 31,
 
2013
 
2012
Research and development
$
1,247

 
$
1,513

Sales, general and administrative
2,946

 
5,008

Total stock-based compensation expense
$
4,193

 
$
6,521


As of March 31, 2013 , there were unrecognized compensation costs of $22.8 million related to stock options and the Company expects to recognize those costs over a weighted average period of 2.72 years . As of March 31, 2013 , there were unrecognized compensation costs of $5.7 million related to RSUs.
 
Stock-based compensation cost for RSUs is measured based on the closing fair market value of the Company's common stock on the date of grant. Stock-based compensation cost for stock options and employee stock purchase plan rights is estimated at the grant date and offering date, respectively, based on the fair-value using the Black-Scholes option pricing model. The fair value of employee stock options is being amortized on a straight-line basis over the requisite service period of the awards. The fair value of employee stock options was estimated using the following weighted-average assumptions:
 
 
For Three Months Ended March 31,
 
2013
 
2012
Expected dividend yield
—
%
 
—
%
Risk-free interest rate
1.2
%
 
1.3
%
Expected term (in years)
6.1

 
5.9

Expected volatility
84
%
 
75
%


28


The fair value of nonemployee stock options was estimated using the following weighted-average assumptions:
 
 
For Three Months Ended March 31,
 
2013
 
2012
Expected dividend yield
—
%
 
—
%
Risk-free interest rate
1.3
%
 
1.8
%
Expected term (in years)
6.7

 
7.3

Expected volatility
84
%
 
75
%
 
12. Related Party Transactions

February 2012 Private Placement

In February 2012, the Company completed a private placement of 10,160,325 shares of its common stock at a price of $5.78 per share for aggregate proceeds of $58.7 million pursuant to a securities purchase agreement, among the Company and existing certain investors, including Total and Maxwell (Mauritius) Pte Ltd, each a beneficial owner of more than 5% of the Company's existing common stock at the time of the transaction. In addition, members of the Company's Board of Directors and certain parties related to such directors participated in the offering.

Biolding Follow-on Investment

In March 2013, the Company completed a private placement of 1,533,742 shares of its common stock to an existing stockholder, Biolding Investment SA ("Biolding"), at a price of $3.26 per share for aggregate proceeds of $5.0 million . This private placement represented the final tranche of Biolding's preexisting contractual obligation to fund $15.0 million upon satisfaction by the Company of certain criteria associated with the commissioning of a production plant in Brazil.

Letter Agreement with Total

As of March 24, 2013 , the Company entered into a letter agreement with Total under which Total agreed to waive its right to cease its participation in our fuels collaboration at the July 2013 decision point and committed to proceed with the July 2013 funding tranche of $30.0 million (subject to the Company's satisfaction of the relevant closing conditions for such funding in the securities purchase agreement).  As consideration for this waiver and commitment, the Company agreed to:
•
Reduce the conversion price for the senior unsecured convertible promissory notes to be issued in connection with such funding from $7.0682 per share to a price per share equal to the greater of (i) the consolidated closing bid price of the Company's common stock on the date of the letter agreement, plus $0.01 , and (ii) $3.08 per share, provided that the conversion price will not be reduced by more than the maximum possible amount permitted under the NASDAQ rules such that the new conversion price would require the Company to obtain stockholder consent; and
•
Grant Total a senior security interest in the Company's intellectual property, subject to certain exclusions and subject to release by Total when the Company and Total enter into final documentation regarding the establishment of the Fuels JV.

In addition to the waiver by Total described above, Total also agreed that, at the Company's request and contingent upon the Company meeting its obligations described above, it would pay advance installments of the amounts otherwise payable at the July 2013 closing.  Specifically, if the Company requests such advance installments, subject to certain closing conditions and delivery of certifications regarding the Company's cash levels, Total is obligated to fund $10.0 million no later than May 15, 2013 , and an additional $10.0 million no later than June 15, 2013 , with the remainder to be funded on the original July 2013 closing date.


13. Income Taxes

For the three months ended March 31, 2013 and 2012 , the Company recorded a provision for income taxes of $236,000 and $244,000 , respectively. The provision for income taxes for the three months ended March 31, 2013 and 2012 consisted of an accrual of Brazilian withholding tax on an intercompany interest liability. Other than the above mentioned provision for income tax, no additional provision for income taxes has been made, net of the valuation allowance, due to cumulative losses since the commencement of operations.


29


The Company is currently under audit by the US Internal Revenue Service for tax year 2008. As of March 31, 2013 , the Company has received a Form 4549-A, Income Tax Discrepancy Adjustments (Examination No Change Report) which concluded that there were no adjustments resulting from the audit by the US Internal Revenue Service for the tax year 2008.  As of March 31, 2013 , the Company has not yet received the Area Director's final approval of the report. Therefore, the tax year 2008 remains open.

On January 2, 2013, the President signed into law The American Taxpayer Relief Act of 2012, or ATRA. Under prior law, a taxpayer was entitled to a research tax credit for qualifying amounts incurred through December 31, 2011. The ATRA extends the research credit for two years for qualified research expenditures incurred through the end of 2013. The extension of the research credit is retroactive and includes amounts incurred after 2011. The benefit of the reinstated credit did not impact the income statement in the period of enactment, which is the first quarter of 2013, as the research and development credit carryforwards are offset by a full valuation allowance.

14. Segment Information

The chief operating decision maker for the Company is the chief executive officer. The chief executive officer reviews financial information presented on a consolidated basis, accompanied by information about revenue by geographic region, for purposes of allocating resources and evaluating financial performance. The Company has one business activity comprised of research and development and sales of fuels and farnesene-derived products and there are no segment managers who are held accountable for operations, operating results or plans for levels or components below the consolidated unit level. Accordingly, the Company has determined that it has a single reportable segment and operating segment structure.

Revenues by geography are based on the location of the customer. The following tables set forth revenue and long-lived assets by geographic area (in thousands):

Revenues
 
Three Months Ended March 31,
 
2013
 
2012
United States
$
5,564

 
$
26,306

Brazil
818

 
875

Europe
225

 
1,938

Asia
1,262

 
350

Total
$
7,869

 
$
29,469


Long-Lived Assets
 
March 31,
 
December 31,
 
2013
 
2012
United States
$
67,832

 
$
70,273

Brazil
92,612

 
90,982

Europe
1,809

 
1,866

Total
$
162,253

 
$
163,121


15. Comprehensive Income (Loss)

Comprehensive income (loss) represents all changes in stockholders’ equity except those resulting from investments or contributions by stockholders. The Company’s foreign currency translation adjustments represent the components of comprehensive income (loss) excluded from the Company’s net loss and have been disclosed in the consolidated statements of comprehensive loss for all periods presented.

The components of accumulated other comprehensive loss are as follows (in thousands):

 
 
 
March 31, 2013
 
December 31, 2012
Foreign currency translation adjustment, net of tax
$
(12,088
)
 
$
(12,807
)
Total accumulated other comprehensive loss
$
(12,088
)
 
$
(12,807
)

30




16. Net Loss Attributable to Common Stockholders and Net Loss per Share

The Company computes net loss per share in accordance with ASC 260, “Earnings per Share.” Basic net loss per share of common stock is computed by dividing the Company’s net loss attributable to Amyris, Inc. common stockholders by the weighted-average number of shares of common stock outstanding during the period. Diluted net loss per share of common stock is computed by giving effect to all potentially dilutive securities, including stock options, restricted stock units, common stock warrants, using the treasury stock method or the as converted method, as applicable. For all periods presented, basic net loss per share was the same as diluted net loss per share because the inclusion of all potentially dilutive securities outstanding was anti-dilutive. As such, the numerator and the denominator used in computing both basic and diluted net loss are the same for each period presented.

The following table presents the calculation of basic and diluted net loss per share of common stock attributable to Amyris, Inc. common stockholders (in thousands, except share and per share amounts):
 
Three Months Ended March 31,
 
2013
 
2012
Numerator:
 
 
 
Net loss attributable to Amyris, Inc. common stockholders
$
(32,614
)
 
$
(94,548
)
Denominator:
 
 
 
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock, basic and diluted
73,306,860

 
50,214,192

Net loss per share attributable to common stockholders, basic and diluted
$
(0.44
)
 
$
(1.88
)

The following outstanding shares of potentially dilutive securities were excluded from the computation of diluted net loss per share of common stock for the periods presented because including them would have been anti-dilutive:
 
Three Months Ended March 31,
 
2013
 
2012
Period-end stock options to purchase common stock
8,524,966

 
7,928,567

Convertible promissory notes
10,370,391

 
3,536,968

Period-end common stock subject to repurchase
1

 
5,564

Period-end common stock warrants
21,087

 
23,339

Period-end restricted stock units
2,493,133

 
219,183

Total
21,409,578

 
11,713,621


31


17. Subsequent Events

IFF Agreement

On April 23, 2013 , the Company entered into a joint development and license agreement with International Flavors & Fragrances Inc. ("IFF"). Under the terms of the multi-year agreement, IFF and the Company will jointly develop certain fragrance ingredients. IFF will have exclusive rights to these fragrance ingredients for applications in the flavors and fragrances field, and the Company will have exclusive rights in other fields. IFF and the Company will share in the economic value derived from these ingredients. The joint development and license agreement provides for up to $6.0 million funding by IFF to the Company during the first phase of the collaboration, of which $4.5 million is based on achievement of certain milestones.

Amendment of Lease Agreement - Emeryville

On April 30, 2013, the Company entered into an amendment of its operating lease for its headquarters in Emeryville, California (the "Amendment"). The operating lease amendment provided for an extension of the lease term to May 2023, a modification of the base rent and elimination of the Company's loans and notes payable to the lessor of approximately $1.6 million .




32


ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

Forward-Looking Statements

The following discussion and analysis should be read in conjunction with our condensed consolidated financial statements and the related notes that appear elsewhere in this Form 10-Q. These discussions contain forward-looking statements reflecting our current expectations that involve risks and uncertainties which are subject to safe harbors under the Securities Act of 1933, as amended, or the Securities Act, and the Securities Exchange Act of 1934, as amended, or the Exchange Act. These forward-looking statements include, but are not limited to, statements concerning our strategy, future production capacity and other aspects of our future operations, ability to improve our production efficiencies, future financial position, future revenues, projected costs, expectations regarding demand and acceptance for our technologies, growth opportunities and trends in the market in which we operate, prospects and plans and objectives of management. The words “anticipates,” “believes,” “estimates,” “expects,” “intends,” “may,” “plans,” “projects,” “will,” “would” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking statements. These forward-looking statements involve risks and uncertainties that could cause our actual results to differ materially from those in the forward-looking statements, including, without limitation, the risks set forth in Part II, Item 1A, “Risk Factors,” in this Quarterly Report on Form 10-Q and in our other filings with the Securities and Exchange Commission. We do not assume any obligation to update any forward-looking statements.

Trademarks
Amyris ® , the Amyris logo, Biofene ® and No Compromise ® are trademarks or registered trademarks of Amyris, Inc. This report also contains trademarks and trade names of other businesses that are the property of their respective holders.

Overview

Amyris is a renewable products company focused on providing sustainable alternatives to a broad range of petroleum-sourced products. We developed innovative microbial engineering and screening technologies that modify the way microorganisms process sugars. We are using our proprietary synthetic biology platform to design microbes, primarily yeast, and use them as living factories in established fermentation processes to convert plant-sourced sugars into renewable hydrocarbons. We are developing, and, in some cases, already commercializing, products from these hydrocarbons in several target markets, including cosmetics, lubricants, flavors and fragrances, polymers and plastic additives, home and personal care products, and transportation fuels. We call these No Compromise products because we design them to perform comparably to or better than currently available products.

We have been applying our industrial synthetic biology platform to provide alternatives to a broad range of petroleum-sourced products. We have focused our development efforts on the production of Biofene, our brand of renewable farnesene, a long-chain, branched liquid hydrocarbon molecule. Using Biofene as a first commercial building block molecule, we are developing a wide range of renewable products for our target markets.

While our platform is able to utilize a wide variety of feedstocks, we are focusing our large-scale production plans primarily on the use of Brazilian sugarcane as our feedstock because of its abundance, low cost and relative price stability. We have also been able to produced Biofene from other feedstocks such as sugar beets, corn dextrose, sweet sorghum and cellulosic sugars.

Our first purpose-built, large-scale Biofene production plant commenced operations in southeastern Brazil in December 2012. This plant in Brotas, in the state of São Paulo, is adjacent to an existing sugar and ethanol mill, Paraíso Bioenergia. We have also commenced initial construction of a second large-scale production plant in Brazil, located at the Usina São Martinho sugar and ethanol mill also in the state of São Paulo, which we intend to complete when production economics support start-up of that plant. To satisfy initial commercial demand for our products until our own facilities are operating, we have leveraged contract-manufacturing capabilities of established companies.

Our business strategy is to focus our direct commercialization efforts on higher-value, lower-volume markets while moving lower-margin, higher-volume commodity products, including our fuels and base oil lubricants products, into joint venture arrangements with established industry leaders. We believe this approach will permit access to the capital and resources necessary to support large-scale production and global distribution for our large-market commodity products. Our initial renewable products efforts have been focused on cosmetics, niche fuel opportunities, fragrance oils, and farnesene for liquid polymers.

Total Relationship

33



In June 2010, we entered into a collaboration agreement with Total. This agreement provided for joint collaboration on the development of products through the use of our synthetic biology platform. In connection with this agreement, Total invested $133.2 million in our equity. In November 2011, we entered into an amendment of the collaboration agreement with Total with respect to development and commercialization of Biofene for diesel. This represented an expansion of the initial collaboration with Total, and established a global, exclusive collaboration for the development of Biofene for diesel and a framework for the creation of a joint venture to manufacture and commercialize Biofene for diesel. In addition, a limited number of other potential products were subject to development for the joint venture on a non-exclusive basis. In July 2012, we entered into a further amendment of the collaboration agreement with Total that expanded Total's investment in the Biofene collaboration, incorporated the development of certain joint venture products for use in diesel and jet fuel into the scope of the collaboration, and changed the structure of the funding from Total to include a convertible debt mechanism. Under the new agreements, we issued senior unsecured convertible notes to Total for an aggregate of $30.0 million in new cash in the third quarter of 2012. Total may decide to provide further funding at annual decision points in mid-2013 and 2014. Upon completion of the research and development program, we and Total would form a joint venture company that would have exclusive rights to produce and market renewable diesel and/or jet fuel. Should Total decide not to pursue commercialization, under certain conditions, it is eligible to recover up to $100 million, payable in March 2017, in the form of cash or in the form of common stock at a conversion price of $7.0682 per share (or, for notes issued in 2013, a lower price as determined under the March 2013 letter agreement as described below).

In connection with a private placement of our common stock that occurred in December 2012, Total elected to participate by exchanging approximately $5.0 million of its $53.3 million in senior unsecured convertible debt outstanding for 1,677,852 shares at the purchase price in this private placement of $2.98 per share. As such, $5.0 million of the outstanding $53.3 million in senior unsecured convertible debt was cancelled.
 
In March 2013 , we entered into a letter agreement with Total under which Total agreed to waive its right to cease its participation in our fuels collaboration at the July 2013 decision point referenced above and committed to proceed with the July 2013 funding tranche of $30.0 million (subject to our satisfaction of the relevant closing conditions for such funding in the securities purchase agreement). As consideration for this waiver and commitment, we agreed to:

•
Reduce the conversion price for the senior unsecured convertible promissory notes to be issued in connection with such funding from $7.0682 per share to a price per share equal to the greater of (i) the consolidated closing bid price of our common stock on the date of the letter agreement, plus $0.01, and (ii) $3.08 per share; and

•
Grant Total a senior security interest in our intellectual property, subject to certain exclusions and subject to release by Total when we and Total enter into final documentation regarding the establishment of the Fuels JV.

In addition to the waiver by Total described above, Total also agreed that, at our request and contingent upon us meeting our obligations described above, it would pay advance installments of the amounts otherwise payable at the July 2013 closing.  Specifically, if we request such advance installments, subject to certain closing conditions and delivery of certifications regarding our cash levels, Total is obligated to fund $10.0 million no later than May 15, 2013 , and an additional $10.0 million no later than June 15, 2013 , with the remainder to be funded on the original July 2013 closing date.

Manufacturing

Beginning in March 2012, we initiated a plan to shift production capacity from contract manufacturing facilities to Amyris-owned plants that were then under construction. As a result, we evaluated our contract manufacturing agreements and recorded a loss of $31.2 million related to $10.0 million in facility modification costs and $21.2 million of fixed purchase commitments in the first quarter of 2012. We recognized additional charges of $1.4 million and $7.8 million , respectively, in the third and fourth quarter of 2012 associated with losses on fixed purchase commitments. We computed the loss on facility modification costs and fixed purchase commitments using the same lower of cost or market approach that is used to value inventory. The computation of the loss on firm purchase commitments is subject to several estimates, including cost to complete and the ultimate selling price of any of our products manufactured at the relevant production facilities, and is therefore inherently uncertain. We also recorded a loss on write-off of production assets of $5.5 million related to Amyris-owned production equipment at contract manufacturing facilities in the three months ended March 31, 2012. We will continue to evaluate the potential for losses in future periods based on updated production and sales price assumptions.

During the year ended December 31, 2012, we incurred $38.7 million of scale-up costs to support our production of Biofene-derived products that are included within cost of products sold. These scale-up costs include the contract manufacturing cost related to production of Biofene-derived products and the finishing of Biofene into finished products. We continue to commit significant

34


resources to our production process in advance of our achieving full commercial production volume. As only a portion of our production costs varies with our revenue, our production costs will be greater than our revenue until we achieve significant product volume. We anticipate that our production costs will decrease as we continue to improve our processes and increase throughput.

Joint Ventures

Novvi

On March 26, 2013 , we and Cosan entered into a termination agreement to terminate the Original JV Agreement. In addition, we agreed to sell our 50% ownership in Novvi S.A. for approximately R$22,000 which represented the current value of our 50% equity ownership in Novvi S.A., a now-dormant company, to Cosan. Upon the consummation of the transaction with the shares transferring from Amyris Brasil to Cosan, the Shareholders Agreement of Novvi S.A. dated June 3, 2011 will automatically terminate.

In September 2011, we and Cosan US, Inc. (“Cosan U.S.”) formed Novvi LLC, a U.S. entity that is jointly owned by the Company and Cosan U.S. On March 26, 2013 we and Cosan U.S. entered into agreements to (i) expand their base oils joint venture to also include additives and lubricants and (ii) operate their joint venture exclusively through Novvi LLC (“Novvi”). Specifically, the parties entered into an Amended and Restated Operating Agreement for Novvi, which sets forth the governance procedures for Novvi and the joint venture and the parties' initial contribution. We also entered into an IP License Agreement with Novvi under which we granted Novvi (i) an exclusive (subject to certain limited exceptions for the Company), worldwide, royalty-free license to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in the automotive, commercial and industrial lubricants markets and (ii) a non-exclusive, royalty free license, subject to certain conditions, to manufacture Biofene solely for its own products. In addition, both we and Cosan U.S. granted Novvi certain rights of first refusal with respect to alternative base oil and additive technologies that may be acquired by us or Cosan U.S. during the term of the IP License Agreement. Under these agreements, we and Cosan U.S. will each own 50% of Novvi and each party will share equally in any costs and any profits ultimately realized by the joint venture. Novvi is governed by a six member Board of Managers, three from each investor who will appoint the Officers of Novvi who will be responsible for carrying out the daily operating activities of Novvi as directed by the Board of Managers. The IP License Agreement has an initial term of 20 years from the date of the agreement, subject to standard early termination provisions such as uncured material breach or a party's insolvency. Under the terms of the Amended and Restated Operating Agreement for initial contribution, Cosan U.S. is obligated to fund its 50% ownership share of Novvi in cash in the amount of $10.0 million and we are obligated to fund our 50% ownership share of Novvi through the granting of an IP License to develop, produce and commercialize base oils, additives, and lubricants derived from Biofene for use in the automotive, commercial and industrial lubricants markets which has been agreed upon by Cosan U.S. and Amyris valued at $10.0 million . On March 26, 2013 , we measured our initial contribution of IP to Novvi at our carrying value of the licenses granted under the IP License Agreement, which was zero . Additional funding requirements to finance the ongoing operations of Novvi are expected to happen through revolving credit or other loan facilities provided by unrelated parties (i.e. such as financial institutions); cash advances or other credit or loan facilities provided by us and Cosan U.S. or their affiliates; or additional capital contributions us and Cosan U.S.

We have identified Novvi as a VIE and determined that the power to direct activities, which most significantly impact the economic success of the joint venture (i.e. continuing research and development, marketing, sales, distribution and manufacturing of Novvi products), is equally shared between us and Cosan. Accordingly, we are not the primary beneficiary and therefore account for our investment in Novvi under the equity method of accounting. We will continue to reassess our primary beneficiary analysis of Novvi if there are changes in events and circumstances impacting the power to direct activities that most significantly affect Novvi's economic success. Under the equity method, our share of profits and losses are to be included in “Income (loss) from equity method investments, net” in our consolidated statements of operations. During the three months ended March 31, 2013 , we recorded no amounts for our share of Novvi's net loss as the carrying amount of our investment in Novvi was zero and losses in excess of the carrying amount are offset by the accretion of our share in the basis difference resulted from the parties' initial contribution. For the three months ended March 31, 2013 and 2012 , we recorded $2.5 million and zero , respectively, of revenue from the research and development activities that we had performed on behalf of Novvi.

Sales and Revenue

To commercialize our initial Biofene-derived product, squalane, for sale to cosmetics companies for use as a moisturizing ingredient in cosmetics and other personal care products, we have entered into marketing and distribution agreements with a number of distributors since June 2010. As an initial step towards commercialization of Biofene-based diesel, we have entered into agreements with several bus operators in São Paulo, Brazil. Our diesel fuel is supplied to BR Distribudora, a division of Petrobras, which in turn blends our product with petroleum diesel and sells to a number of bus operators including Santa Brigida,

35


the largest bus fleet operator in São Paulo. For the industrial lubricants market, in June 2011 we established a joint venture with Cosan for the worldwide development, production and commercialization of renewable base oils.
 
We have also entered into agreements to sell Biofene and its derivatives directly to various potential customers, including with M&G for use in plastics, with Kuraray for use in production of polymers, with Michelin for use in tires, with Firmenich and Givaudan for ingredients for the flavors and fragrances market, and with Method for use in home and personal care products. Production and sale of our products pursuant to any of these relationships will depend on the achievement of contract-specific technical, development and commercial milestones.

We transitioned out of the ethanol and ethanol-blended business during the third quarter ended September 30, 2012. We do not expect to be able to replace much of the revenues lost in the near term as a result of this transition, particularly in 2013 while we continue our efforts to establish our renewable products business.

The following table sets forth our comparative revenue data for the periods or the periods shown (in thousands):

 
 
Three Months Ended March 31,
 
Year-to  Year
Change
 
Percentage
Change
 
 
2013
 
2012
 
 
 
(Dollars in thousands)
 
 
Revenues
 
 
 
 
 
 
 
 
Ethanol and ethanol-blended gasoline
 
$
—

 
$
23,869

 
$
(23,869
)
 
(100
)%
Renewable products
 
2,983

 
2,438

 
545

 
22
 %
Collaborations revenue
 
3,054

 
891

 
2,163

 
243
 %
Grants
 
1,832

 
2,271

 
(439
)
 
(19
)%
Total revenues
 
$
7,869

 
$
29,469

 
$
(21,600
)
 
(73
)%

Financing

In 2012, we completed multiple financings involving loans and convertible debt and equity offerings. In February 2012, we completed a private placement of 10.2 million shares of common stock for aggregate proceeds of $58.7 million and raised $25.0 million from an offering of senior unsecured convertible promissory notes. In May 2012, we completed a private placement of 1.7 million shares of common stock for aggregate proceeds of $4.1 million. In July 2012, we completed a sale of a $38.3 million in a senior unsecured convertible promissory note for cash proceeds of $15.0 million and our repayment of $23.3 million in previously-provided research and development funds and, in September 2012, we completed a sale of an additional senior unsecured convertible promissory note for additional cash proceeds of $15.0 million. In December 2012, we completed a private placement of our common stock for the issuance of 14,177,849 shares at a price of $2.98 per share for aggregate proceeds of $37.2 million and the cancellation of $5.0 million worth of outstanding senior unsecured convertible promissory notes previously issued us. Shares totaling 1,677,852 were issued to Total in exchange for this cancellation. Net cash received as of December 31, 2012 was $22.2 million and the remaining $15.0 million of proceeds was received in January 2013. In connection with this private placement, we entered into a Letter of Agreement, dated December 24, 2012 with Biolding under which we acknowledged that Biolding's initial investment of $10.0 million in December 2012 represented partial satisfaction of it's preexisting contractual obligation to fund $15.0 million by March 31, 2013 upon satisfaction by us of criteria associated with the commissioning of our production plant in Brotas.

On March 27, 2013 , we completed a private placement of our common stock to Biolding and issued 1,533,742 of our common stock at a price of $3.26 per share resulting in aggregate proceeds of approximately $5.0 million . This private placement represented the final tranche of Biolding's preexisting contractual obligation to fund $15.0 million upon satisfaction by us of certain criteria associated with the commissioning of a production plant in Brazil.

Liquidity

We have incurred significant losses in each year since our inception and believe that we will continue to incur losses and negative cash flow from operations into at least 2014. As of March 31, 2013 , we had an accumulated deficit of $618.9 million and had cash, cash equivalents and short term investments of $24.9 million . We have significant outstanding debt and contractual obligations related to purchase commitments, as well as capital and operating leases. As of March 31, 2013 , our debt totaled $106.9 million , of which $7.1 million matures within the next twelve months. In addition, our debt agreements contain various covenants, including restrictions on business that could cause us to be at risk of defaults.


36




In March 2013, we signed a collaboration agreement with Firmenich that included a funding component, and obtained a commitment letter from Total with respect to additional convertible note funding (as described above), and we expect to use amounts received under these arrangements to fund our operations. Furthermore, we are expecting additional funding in 2013 from collaborations, equity or debt offerings, or combinations of these sources. We are currently in discussions with potential investors and intend to secure a portion of this additional funding in the second quarter of 2013. However, as of the date of this filing, we have not yet secured this additional funding. There can be no assurance that financing will be available on commercially acceptable terms or at all.




37




Results of Operations

The following table sets forth our condensed consolidated statement of operations data for the periods shown:
 
Three Months Ended March 31,
 
2013
 
2012
 
(In Thousands, Except share and Per Share Amounts)
Consolidated Statement of Operations Data:
 
 
Revenues
 
 
 
Product sales
$
2,983

 
$
26,307

Grants and collaborations revenue
4,886

 
3,162

Total revenues
7,869

 
29,469

Cost and operating expenses
 
 
 
Cost of products sold
8,960

 
43,811

Loss on purchase commitments and write off of production assets
—

 
36,652

Research and development (1)
15,754

 
21,344

Sales, general and administrative (1)
14,827

 
21,715

Total cost and operating expenses
39,541

 
123,522

Loss from operations
(31,672
)
 
(94,053
)
Other income (expense):
 
 
 
Interest income
36

 
606

Interest expense
(1,562
)
 
(1,054
)
Other income (expense), net
1,119

 
(151
)
Total other (expense)
(407
)
 
(599
)
Loss before income taxes
(32,079
)
 
(94,652
)
Provision for income taxes
(236
)
 
(244
)
Net loss
$
(32,315
)
 
$
(94,896
)
Net loss attributable to noncontrolling interest
(299
)
 
348

Net loss attributable to Amyris, Inc. common stockholders
$
(32,614
)
 
$
(94,548
)
Net loss per share attributable to common stockholders, basic and diluted
$
(0.44
)
 
$
(1.88
)
Weighted-average shares of common stock outstanding used in computing net loss per share of common stock, basic and diluted
73,306,860

 
50,214,192



Comparison of Three Months Ended March 31, 2013 and 2012

Revenues
 
 
Three Months Ended March 31,
 
Year-to  Year
Change
 
Percentage
Change
 
 
2013
 
2012
 
 
 
(Dollars in thousands)
 
 
Revenues
 
 
 
 
 
 
 
 
Ethanol and ethanol-blended gasoline
 
$
—

 
$
23,869

 
$
(23,869
)
 
(100
)%
Renewable products
 
2,983

 
2,438

 
545

 
22
 %
Product sales
 
2,983

 
26,307

 
(23,324
)
 
(89
)%
Grants and collaborations revenue
 
4,886

 
3,162

 
1,724

 
55
 %
Total revenues
 
$
7,869

 
$
29,469

 
$
(21,600
)
 
(73
)%


38


Our total revenues decreased by $21.6 million to $7.9 million for the three months ended March 31, 2013 with such reduction resulting primarily from a decrease in product sales. Revenue from product sales decreased by $23.3 million to $3.0 million primarily due to the absence of sales of ethanol and reformulated ethanol-blended gasoline purchased from third parties which accounted for $23.9 million of the reduction. We transitioned out of the ethanol and ethanol-blended gasoline business during the third quarter of 2012. We do not expect to be able to replace much of the revenue lost in the near term as a result of this transition, particularly in 2013 while we continue our efforts to establish a renewable products business. Product sales of our farnesene-derived products increased $0.5 million in the first quarter of 2013 compared to the prior year. Grants and collaborations revenue in the three months ended March 31, 2013 increased by $1.7 million compared to the same period of the prior year primarily due to the revenue recognized from collaboration research services under the Novvi Joint Venture.


Cost and Operating Expenses
 
 
 
Three Months Ended March 31,
 
Year-to  Year
Change
 
Percentage
Change
 
 
2013
 
2012
 
 
 
(Dollars in thousands)
 
 
Cost of products sold
 
$
8,960

 
$
43,811

 
$
(34,851
)
 
(80
)%
Loss on purchase commitments and write-off of production assets
 
—

 
36,652

 
(36,652
)
 
nm

Research and development
 
15,754

 
21,344

 
(5,590
)
 
(26
)%
Sales, general and administrative
 
14,827

 
21,715

 
(6,888
)
 
(32
)%
Total cost and operating expenses
 
$
39,541

 
$
123,522

 
$
(83,981
)
 
(68
)%
 
 
 
 
 
 
 
 
 

______________ 
nm= not meaningful

Cost of Products Sold

Our cost of products sold decreased by $34.9 million to $9.0 million for the three months ended March 31, 2013 compared to the same period in the prior year. Our cost of products sold includes production costs of farnesene-derived products, which includes cost of raw materials, amounts paid to contract manufacturers and period costs including inventory write-downs resulting from applying lower-of-cost-or-market inventory valuations. Cost of farnesene-derived products sold also includes certain costs related to the scale-up in production of such products.

We transitioned out of our ethanol and gasoline business in the quarter ended September 30, 2012, which resulted in a reduction of $23.6 million in cost of products sold. As of December 2012, we began operating our own large-scale Biofene production plant in Brotas, in the state of São Paulo, Brazil.

Loss on Purchase Commitments and Write-Off of Production Assets

Beginning in March 2012, we initiated a plan to shift a portion of our production capacity from contract manufacturing facilities to Amyris-owned plants that were then under construction. As a result, we evaluated our contract manufacturing agreements and, in the first quarter of 2012, recorded a loss of $31.2 million related to facility modification costs and fixed purchase commitments. We also recorded an impairment charge of $5.5 million in the three months ended March 31, 2012 related to Amyris-owned equipment at contract manufacturing facilities, based on the excess of the carrying value of the assets over their fair value. We computed the loss on facility modification costs and fixed purchase commitments using the same approach that is used to value inventory-the lower of cost or market value. The computation of the loss on firm purchase commitments is subject to several estimates, including the ultimate selling price of any of our products manufactured at the relevant production facilities, and is therefore inherently uncertain. No additional loss on purchase commitments and write-off of production assets were recorded during the three months ended March 31, 2013 .

Research and Development Expenses

Our research and development expenses decreased by $5.6 million for the three months ended March 31, 2013 over the same period in the prior year, primarily as a result of overall lower spending. The decrease was attributable to a $2.3 million

39


reduction in personnel-related expenses associated with a lower headcount, $2.0 million reduction in other overhead expenses, $1.1 million reduction in outside consulting expenses, and a $0.2 million decrease in travel-related expenses. Research and development expenses included stock-based compensation expense of $1.2 million and $1.5 million during the three months ended March 31, 2013 and 2012 , respectively.

Sales, General and Administrative Expenses

Our sales, general and administrative expenses decreased by $6.9 million for the three months ended March 31, 2013 compared to the same period of the prior year, primarily a result of overall lower spending. The decrease is attributed primarily to a $5.1 million reduction in personnel-related expenses associated with a lower headcount, $1.2 million reduction in consulting and professional service fees, and $0.7 million reduction in other overhead expenses. Sales, general and administrative expenses included stock-based compensation expense of $2.9 million and $5.0 million during the three months ended March 31, 2013 and 2012 , respectively.

Other Income (Expense)
 
 
 
Three Months Ended March 31,
 
Year-to  Year
Change
 
Percentage
Change
 
 
2013
 
2012
 
 
 
(Dollars in thousands)
 
 
Other income (expense):
 
 
 
 
 
 
 
 
Interest income
 
$
36

 
$
606

 
$
(570
)
 
(94
)%
Interest expense
 
(1,562
)
 
(1,054
)
 
(508
)
 
48
 %
Other income (expense), net
 
1,119

 
(151
)
 
1,270

 
(841
)%
Total other expense
 
$
(407
)
 
$
(599
)
 
$
192

 
(32
)%

Total other expense decreased by approximately $0.2 million to $0.4 million for the three months ended March 31, 2013 compared to the same period of the prior year. The decrease in total other expense was attributable to an increase in other income of $1.3 million of which $1.1 million is due to a change in fair value of the compound embedded derivative liability associated with our senior unsecured convertible promissory notes issued to Total. Partially offsetting this decrease was an increase in interest expense of $0.5 million associated with increased borrowings to fund our operations including capital expenditures and a $0.6 million decrease in interest income due to lower cash balance compared to the same period in the prior year.


Liquidity and Capital Resources
 
 
 
March 31, 2013
 
December 31, 2012
 
 
(Dollars in thousands)
Working capital
 
$
(6,101
)
 
$
3,668

Cash and cash equivalents and short-term investments
 
$
24,855

 
$
30,689

Debt and capital lease obligations
 
$
108,918

 
$
106,774

Accumulated deficit
 
$
(618,941
)
 
$
(586,327
)
 
 
Three Months Ended March 31,
 
2013
 
2012
 
(Dollars in thousands)
Net cash used in operating activities
$
(24,290
)
 
$
(61,856
)
Net cash used in investing activities
(3,626
)
 
(13,566
)
Net cash provided by financing activities
20,861

 
81,907


Working Capital. Working capital was $(6.1) million at March 31, 2013 , a decrease of $9.8 million from working capital as of December 31, 2012 . This decrease was principally attributable to a reduction in net cash and investment balances of $5.8 million due primarily to fund our operating expenses and service our debt, a $9.1 million increase in short-term deferred revenue, and an increase of $3.8 million in short term debt balances. This decrease was offset in part by a $3.7 million increase in accounts receivable and a reduction of $4.2 million in accounts payable and accrued and other current liabilities.

40



To support production of our products in contract manufacturing and dedicated production facilities, we have incurred, and we expect to continue to incur, capital expenditures as we invest in these facilities.We plan to continue to seek external debt financing from U.S. and Brazilian sources to help fund our investments in these contract manufacturing and dedicated production facilities.

We expect to fund our operations for the foreseeable future with cash and investments currently on hand, with cash inflows from collaboration and grant funding, cash contributions from product sales, and with new debt and equity financing. Our planned 2013 working capital needs and our planned operating and capital expenditures for 2013 are dependent on significant inflows of cash from existing collaboration partners, as well as additional funding from new collaborations, equity or debt offerings, credit facilities or loans, or combinations of these sources. We will continue to need to fund our research and development and related activities and to provide working capital to fund production, storage, distribution and other aspects of our business. Our operating plan contemplates capital expenditures of approximately $10.0 million in 2013 and we expect to continue to incur costs in connection with our existing contract manufacturing arrangements.

Liquidity . We have incurred significant losses in each year since our inception and believe that we will continue to incur losses and negative cash flow from operations into at least 2014. As of March 31, 2013 , we had an accumulated deficit of $618.9 million and had cash, cash equivalents and short term investments of $24.9 million . We have significant outstanding debt and contractual obligations related to purchase commitments, as well as capital and operating leases. As of March 31, 2013 , our debt totaled $106.9 million , of which $7.1 million matures within the next twelve months. In addition, our debt agreements contain various covenants, including restrictions on business that could cause us to be at risk of defaults. In March 2013 , we signed a collaboration agreement with Firmenich that included a funding component, and obtained a commitment letter from Total with respect to additional convertible note funding (as described above under "Overview-Total Relationship"), and we expect to use amounts received under these arrangements to fund our operations. Furthermore, we are expecting additional funding in 2013 from collaborations, equity or debt offerings, or combinations of these sources. We are currently in discussions with potential investors and intend to secure a portion of this additional funding in the second quarter of 2013. However, as of the date of this filing, we have not yet secured this additional funding. There can be no assurance that financing will be available on commercially acceptable terms or at all.

If we are unable to raise additional financing, or if other expected sources of funding are delayed or not received, we would take the following actions as early as the second quarter of 2013 to support our liquidity needs through the remainder of 2013 and into 2014:

•
Effect significant headcount reductions in the U.S. and in Brazil, particularly with respect to both general and administrative employees and other employees not connected to critical or contracted activities.

•
Shift our focus to existing products and customers with significantly reduced investment in new product and commercial development efforts.

•
Reduce our expenditures for third party contractors, including consultants, professional advisors and other vendors.

•
Suspend operations at our pilot plants and demonstration facilities.

•
Reduce or delay uncommitted capital expenditures, including non-essential lab equipment and information technology projects.

If fully implemented, these actions are designed to save us an estimated $40 million to $45 million over the next twelve months. Implementing this plan could have a material negative impact on our ability to continue our business as currently contemplated, including, without limitation, delays or failures in our ability to:

•
Achieve planned production levels;

•
Develop and commercialize products within planned timelines or at planned scales; and

•
Continue other core activities.

Furthermore, any inability to scale-back operations as necessary, and any unexpected liquidity needs, could create pressure to implement more severe measures. Such measures could have a material adverse effect on our ability to meet contractual

41


requirements, including obligations to maintain manufacturing operations, and increase the severity of the consequences described above.

Convertible Note Offering. In February 2012, we sold $25.0 million in principal amount of senior unsecured convertible promissory notes due March 1, 2017 . The notes have a 3.0% annual interest rate and are convertible into shares of our common stock at a conversion price of $7.0682 per share, subject to adjustment for proportional adjustments to outstanding common stock and anti-dilution provisions in case of dividends and distributions.  The note holders have a right to require repayment of 101% of the principal amount of the notes in an acquisition of Amyris, and the notes provide for payment of unpaid interest on conversion following such an acquisition if the note holders do not require such repayment.  The securities purchase agreement and notes include covenants regarding payment of interest, maintaining our listing status, limitations on debt, maintenance of corporate existence, and filing of SEC reports. The notes include standard events of default resulting in acceleration of indebtedness, including failure to pay, bankruptcy and insolvency, cross-defaults, and breaches of the covenants in the securities purchase agreement and notes, with default interest rates and associated cure periods applicable to the covenant regarding SEC reporting. Furthermore, the senior unsecured convertible notes include restrictions on the amount of debt we are permitted to incur. Our total outstanding debt at any time can not exceed the greater of $200.0 million or 50% of our consolidated total assets and our secured debt cannot exceed the greater of $125 million or 30% of our consolidated total assets. As of March 31, 2013 and December 31, 2012 , a principal amount of $25.0 million and $25.0 million , respectively, was outstanding under these notes payable.

In July and September of 2012, we issued $53.3 million worth of senior unsecured convertible notes to Total for an aggregate of $30.0 million in cash proceeds and our repayment of $23.3 million in previously-provided research and development funds as described in more detail under "Overview - Total Relationship" above. As part of the December 2012 private placement, 1,677,852 shares of the Company's common stock were issued in exchange for the cancellation of $5.0 million worth of an outstanding senior unsecured convertible promissory note held by Total.
 
Common Stock Offerings. In February 2012, we sold 10,160,325 shares of our common stock in a private placement for aggregate offering proceeds of $58.7 million .

In May 2012, we completed a private placement of 1,736,100 shares of our common stock for aggregate cash proceeds of $4.1 million .

In December 2012, we completed a private placement of 14,177,849 shares common stock for aggregate proceeds of $37.2 million , of which $22.2 million in cash was received in December 2012 and $15.0 million in cash was received in January 2013. As part of this private placement, 1,677,852 of the 14,177,849 shares were issued to Total in exchange for the cancellation of $5.0 million worth of an outstanding senior unsecured convertible promissory note we previously issued to Total.

In January 2013, we received $15.0 million in proceeds from a private placement offering that closed in December 2012. Consequently, we issued 5,033,557 of the 14,177,849 shares of our common stock.

In March 2013, we completed a private placement of 1,533,742 shares of its common stock at a price of $3.26 per share for aggregate proceeds of $5.0 million . This private placement represented the final tranche of Biolding's preexisting contractual obligation to fund $15.0 million upon satisfaction by us of certain criteria associated with the commissioning of a production plant in Brazil.

Export Financing with ABC Brasil. On March 18, 2013 , we entered into an export financing agreement with Banco ABC Brasil S.A. (ABC Bank) for approximately US$2.5 million (approximately R$5.0 million based on exchange rate as of March 18, 2013) for a 1 year-term to fund exports through March 2014. As of March 31, 2013 , the principal amount outstanding was US$2.5 million . This loan is collateralized by future exports from our subsidiary in Brazil.

Banco Pine/Nossa Caixa Financing . In July 2012, we entered into a Note of Bank Credit and a Fiduciary Conveyance of Movable Goods agreement with each of Nossa Caixa and Banco Pine. Under such instruments, we borrowed an aggregate of
R$52.0 million (approximately US$25.8 million based on the exchange rate as of March 31, 2013 ) as financing for capital expenditures relating to our manufacturing facility in Brotas. Under the loan agreements, Banco Pine agreed to lend R$22.0 million and Nossa Caixa agreed to lend R$30.0 million . The funds for these loans are provided by Banco Nacional de Desenvolvimento Econômico e Social, or BNDES, a government owned bank headquartered in Brazil, but are guaranteed by the lenders. The loans have a final maturity date of July 15, 2022 and bear a fixed interest rate of 5.5% per year. The loans are also subject to early maturity and delinquency charges upon occurrence of certain events including interruption of manufacturing activities at Brotas for more than 30 days, except during sugarcane off-season. The loans are secured by certain of our farnesene production assets at the manufacturing facility in Brotas, and we were required to provide parent guarantees to each of the lenders.


42


BNDES Credit Facility . In December 2011, we entered into a credit facility in the amount of R$22.4 million (approximately US$11.1 million based on the exchange rate as of March 31, 2013 ) with BNDES. This BNDES facility was extended as project financing for a production site in Brazil. The credit line is divided into an initial tranche for up to approximately R$19.1 million (approximately US$9.5 million based on the exchange rate at March 31, 2013 ) and an additional tranche of approximately R$3.3 million (approximately US$1.6 million based on the exchange rate at March 31, 2013 ) that becomes available upon delivery of additional guarantees. The credit line is available for 12 months from the date of the Credit Agreement, subject to extension by the lender.

The principal of loans under the BNDES credit facility is required to be repaid in 60 monthly installments, with the first installment due in January 2013 and the last due in December 2017. Interest was initially due on a quarterly basis with the first installment due in March 2012. From and after January 2013, interest payments are due on a monthly basis together with principal payments. The loaned amounts carry interest of 7% per year. Additionally, a credit reserve charge of 0.1% on the unused balance from each credit installment from the day immediately after it is made available through its date of use, is due when such credit installment is repaid.
 
The BNDES Credit Facility is collateralized by a first priority security interest in certain of our equipment and other tangible assets totaling R$24.9 million (approximately US$12.4 million on the exchange rate as of March 31, 2013 ). We are a parent guarantor for the payment of the outstanding balance under the BNDES Credit Facility. Additionally, we are required to provide a bank guarantee equal to 10.0% of the total approved amount ( R$22.4 million in total debt) available under the BNDES Credit Facility. For advances in the second tranche (above R$19.1 million ), we are required to provide additional bank guarantees equal to 90.0% of each such advance, plus additional Amyris guarantees equal to at least 130.0% of such advance. The BNDES Credit Facility contains customary events of default, including payment failures, failure to satisfy other obligations under the credit facility or related documents, defaults in respect of other indebtedness, bankruptcy, insolvency and inability to pay debts when due, material judgments, and changes in control of Amyris Brasil. If any event of default occurs, BNDES may terminate its commitments and declare immediately due all borrowings under the facility. As of March 31, 2013 and December 31, 2012 the Company had R$18.1 million (approximately US$9.0 million based on the exchange rate as of March 31, 2013 and R$19.1 million (approximately US$9.3 million based on the exchange rate as of December 31, 2012 ) in outstanding advances under the BNDES Credit Facility.

FINEP Credit Facility. In November 2010, we entered into a credit facility with Financiadora de Estudos e Projetos (“FINEP”), a state-owned company subordinated to the Brazilian Ministry of Science and Technology. This FINEP Credit Facility was extended to partially fund expenses related to our research and development project on sugarcane-based biodiesel (“FINEP Project”) and provides for loans of up to an aggregate principal amount of R$6.4 million (approximately US$3.2 million based on the exchange rate as of March 31, 2013 ) which is secured by a chattel mortgage on certain equipment of the Company as well as by bank letters of guarantee. As of December 31, 2012, all available credit under this facility was fully drawn.

Interest on loans drawn under this credit facility is fixed at 5.0% per annum. In case of default under, or non-compliance with, the terms of the agreement, the interest on loans will be dependent on the long-term interest rate as published by the Central Bank of Brazil, or TJLP. If the TJLP at the time of default is greater than 6%, then the interest will be 5.0% + a TJLP adjustment factor otherwise the interest will be at 11.0% per annum. In addition, a fine of up to 10.0% will apply to the amount of any obligation in default. Interest on late balances will be 1.0% interest per month, levied on the overdue amount. Payment of the outstanding loan balance will be made in 81 monthly installments, which commenced in July 2012 and extends through March 2019. Interest on loans drawn and other charges are paid on a monthly basis and commenced in March 2011. As of March 31, 2013 , total outstanding loan balance under this credit facility was R$6.0 million (approximately US$3.0 million based on the exchange rate as of March 31, 2013 ).

The FINEP Credit Facility contains the following significant terms and conditions:

•
We are required to share with FINEP the costs associated with the FINEP Project. At a minimum, we are required to contribute approximately R$14.5 million (approximately US$7.1 million based on the exchange rate as of December 31, 2012) of which R$11.1 million was contributed prior to the release of the second disbursement. As of December 31, 2012, we have fulfilled all of our cost sharing obligations;
•
After the release of the first disbursement, prior to any subsequent drawdown from the FINEP Credit Facility, we were required to provide bank letters of guarantee of up to R$3.3 million in aggregate (approximately US$1.6 million based on the exchange rate as of December 31, 2012) before receiving the second installment in December 2012. We obtained the bank letters of guarantee from Banco ABC Brasil, S.A.;
•
Amounts released from the FINEP Credit Facility must be completely used by us towards the FINEP Project within 30 months after the contract execution.

43



The fair values of the notes payable, loan payable, convertible notes and credit facility are based on the present value of expected future cash flows and assumptions about current interest rates and the creditworthiness of the Company that market participants would use in pricing the debt.

Joint Venture Agreement . In 2010, we established SMA, a joint venture with Usina São Martinho. Under the terms of the agreement, if SMA fails to commence operations by the end of 2013, Usina São Martinho has the right to terminate the joint venture and to require us to buy Usina São Martinho's equity in SMA at its acquisition cost and transfer SMA's assets at the Usina São Martinho site to another location. In that event, we would incur significant costs beginning in mid-2014 and be required to find alternative locations for the facility. In March 2013, we met with Usina São Martinho and the parties agreed in principle to a revised business plan for the joint venture with the plant becoming operational in 2016. While we are in the process of documenting that revised business plan as an amendment to the agreement, we may not be able to reach final agreement on the revised terms.

As of March 31, 2013 , we delayed further construction of and commissioning of the SMA plant and we expect to continue to defer the project in the near term based on economic considerations and to allow us to focus on the successful implementation of our plant in Brotas.

Government Contracts . In 2010, we were awarded a $24.3 million “Integrated Bio-Refinery” grant from the U.S. Department of Energy, or DOE. Under this grant, we are required to fund an additional $10.6 million in cost sharing expenses. According to the terms of the DOE grant, we were required to maintain a cash balance of $8.7 million, calculated as a percentage of the total project costs, to cover potential contingencies and cost overruns. As of March 31, 2013 , the cash requirement is zero . These funds are not legally restricted but they must be available and unrestricted during the term of the project. Our obligation for this cost share is contingent on reimbursement for project costs incurred. As of March 31, 2013 , we have fully utilized all of our $24.3 million award.
 
In August 2010, we were appointed as a subcontractor to National Renewable Energy Laboratory, or NREL, under a DOE grant awarded to NREL. We have the right to be reimbursed for up to $3.6 million, and are required to fund an additional $1.4 million, in cost sharing expenses. Through March 31, 2013 , we had recognized $2.2 million in revenue under this grant, of which $0.4 million was received in cash during the three months ended March 31, 2013 .

In June 2012, we entered into a Technology Investment Agreement with The Defense Advanced Research Projects Agency (DARPA), under which we will perform certain research and development activities funded in part by DARPA. The work is to be performed on a cost-share basis, where DARPA funds 90% of the work and we fund the remaining 10% (primarily by providing specified labor). Under the agreement, we could receive funding of up to approximately $8.0 million over two years based on achievement of program milestones, and, accordingly, would be responsible for contributions equivalent to approximately $900,000. The agreement has an initial term of one year and, at DARPA's option, may be renewed for an additional year. Through March 31, 2013 , we had recognized $0.4 million in revenue under this agreement, of which zero was received in cash during the three months ended March 31, 2013 .


Cash Flows during the Three Months Ended March 31, 2013 and 2012

Cash Flows from Operating Activities

Our primary uses of cash from operating activities are cost of products sold and personnel-related expenditures offset by cash received from product sales, grants and collaborative research. Cash used in operating activities was $24.3 million and $61.9 million for the three months ended March 31, 2013 and 2012 , respectively.

The largest component of the $24.3 million of cash used in our operations during the three months ended March 31, 2013 related to our net loss of $32.3 million , which included $4.2 million of stock-based compensation and $4.4 million of depreciation and amortization expenses.

Significant operating cash inflows during the three months ended March 31, 2013 were derived primarily from sales of renewable products and from collaborative research services. Operating cash inflows also included a $9.8 million increase in deferred revenue primarily from the up-front payment from Firmenich.

Net cash used in operating activities of $61.9 million for the three months ended March 31, 2012 reflected a net loss of $94.9 million and a $22.1 million net change in our operating assets and liabilities partially offset by non-cash charges of $55.1 million. Net change in operating assets and liabilities of $22.1 million primarily consisted of a $13.0 million decrease in accrued and other

44


long term liabilities, an $8.2 million increase in inventory, a $2.4 million decrease in accounts payable, a $0.7 million increase in prepaid expenses and other assets and $0.3 million decrease in deferred rent partially offset by a $2.2 million decrease in accounts receivable and a $0.3 million increase in deferred revenue. Non-cash charges of $55.1 million were primarily related to $36.7 million of losses from firm purchase commitments and write off of production assets at contract manufacturers, $6.5 million of stock-based compensation, an $8.1 million write down of renewable product inventory to its net realizable value, and $3.7 million of depreciation and amortization expenses.


Cash Flows from Investing Activities

Our investing activities consist primarily of capital expenditures and investment activities.

For the three months ended March 31, 2013 , cash used in investing activities was $3.6 million as a result of $2.1 million in capital expenditures on plant, property and equipment due principally to the construction of our first owned production facility in Brotas and $1.5 million in purchases of short-term investments.

For the three months ended March 31, 2012 , cash used in investing activities was $13.6 million as a result of $21.8 million of capital expenditures and deposits on property and equipment, offset by net sales of short term investments of $8.2 million.

Cash Flows from Financing Activities

For the three months ended March 31, 2013 , cash provided by financing activities was $20.9 million , primarily the result of the receipt of $19.9 million in proceeds from sales of common stock in private placements net of issuance cost and the net receipt of $2.5 million from debt financing. These cash inflows were offset in part by principal payments on debt and capital leases of $1.6 million .

For the three months ended March 31, 2012, cash provided by financing activities was $81.9 million , primarily the result of $25.0 million in debt financing and the receipt of $58.6 million in proceeds from the sale of common stock in a private placement, net of issuance costs. These cash receipts were offset in part by principal payments on debt of $0.7 million and principal payments on capital leases of $1.1 million .

Off-Balance Sheet Arrangements

We did not have during the periods presented, and we do not currently have, any material off-balance sheet arrangements, as defined under SEC rules, such as relationships with unconsolidated entities or financial partnerships, which are often referred to as structured finance or special purpose entities, established for the purpose of facilitating financing transactions that are not required to be reflected on our consolidated financial statements.

Contractual Obligations

The following is a summary of our contractual obligations as of March 31, 2013 (in thousands):
 
 
 
Total
 
2013
(Nine Months)
 
2014

 
2015

 
2016

 
2017

 
Thereafter
Principal payments on long-term debt
 
$
115,704

 
$
3,901

 
$
6,222

 
$
5,622

 
$
5,622

 
$
78,922

 
$
15,415

Interest payments on long-term debt, fixed rate (1)
 
16,152

 
2,270

 
2,987

 
2,434

 
2,104

 
4,463

 
1,894

Operating leases
 
37,091

 
5,229

 
6,831

 
6,932

 
6,915

 
6,767

 
4,417

Principal payments on capital leases
 
1,986

 
742

 
956

 
288

 
—

 
—

 
—

Interest payments on capital leases
 
133

 
81

 
51

 
1

 
—

 
—

 
—

Terminal storage costs
 
251

 
141

 
76

 
34

 
—

 
—

 
—

Purchase obligations (2)
 
47,658

 
10,403

 
18,108

 
10,249

 
8,629

 
221

 
48

Total
 
$
218,975

 
$
22,767

 
$
35,231

 
$
25,560

 
$
23,270

 
$
90,373

 
$
21,774


____________________

45


(1)  
The fixed interest rates are more fully described in Note 6 of our consolidated financial statements.
(2)  
Purchase obligations include non-cancelable contractual obligations and construction commitments of $47.3 million , of which $11.2 million have been accrued as loss on purchase commitments.

This table does not reflect non-reimbursable expenses that we expect to incur in 2013 in connection with research activities under the NREL subcontract discussed above under the caption "Liquidity and Capital Resources - Government Contracts." We have the right to be reimbursed for up to $3.6 million of a total of $5.0 million of expenses for research activities that we undertake under the NREL grant.

Additionally, this table does not reflect the expenses that we expect to incur in 2013 and 2014 in connection with research activities under DARPA under which we will perform certain research and development activities funded in part by DARPA. The work is to be performed on a cost-share basis, where DARPA funds 90% of the work and we fund the remaining 10% (primarily by providing specified labor). Under the agreement, we could receive funding of up to approximately $8.0 million over two years based on achievement of program milestones, and, accordingly, we would be responsible for contributions equivalent to approximately $900,000.

Critical Accounting Policies

There were no material changes in the Company's critical accounting policies during the three months ended March 31, 2013.

Recent Accounting Pronouncements

The information contained in Note 2 to the Unaudited Condensed Consolidated Financial Statements under the heading recent accounting pronouncements is hereby incorporated by reference into this Part I, Item 2.


ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

The market risk inherent in our market risk sensitive instruments and positions is the potential loss arising from adverse changes in: commodity market prices, foreign currency exchange rates, and interest rates as described below.

Interest Rate Risk

Our exposure to market risk for changes in interest rates relates primarily to our investment portfolio and our outstanding debt obligations. We generally invest our cash in investments with short maturities or with frequent interest reset terms. Accordingly, our interest income fluctuates with short-term market conditions. As of March 31, 2013 , our investment portfolio consisted primarily of money market funds and certificates of deposit, all of which are highly liquid investments. Due to the short-term nature of our investment portfolio, our exposure to interest rate risk is minimal. Additionally, as of March 31, 2013 , 100% of our outstanding debt is in fixed rate instruments.

Foreign Currency Risk

Most of our sales contracts are denominated in U.S. dollars and, therefore, our revenues are not currently subject to significant foreign currency risk. The functional currency of our wholly-owned consolidated subsidiary in Brazil is the local currency (Brazilian real) in which recurring business transactions occur. We do not use currency exchange contracts as hedges against amounts permanently invested in our foreign subsidiary. The amount we consider permanently invested in our foreign subsidiary and translated into U.S. dollars using the March 31, 2013 exchange rate is $86.2 million at March 31, 2013 and $76.7 million at December 31, 2012 . The increase in the permanent investments in our foreign subsidiary in the three months ended March 31, 2013 is due to additional capital contributions and, to a lesser extent, the appreciation of the Brazilian real versus the U.S. dollar; partially offset by an increase in accumulated deficit of our wholly-owned consolidated subsidiary in Brazil. The potential loss in fair value, which would principally be recognized in Other Comprehensive Income (Loss), resulting from a hypothetical 10% adverse change in quoted Brazilian real exchange rates is $8.6 million and $7.7 million as of March 31, 2013 and December 31, 2012 , respectively. Actual results may differ.

We make limited use of derivative instruments, which includes currency interest swap agreements, to manage the Company's exposure to the foreign currency exchange rate and the interest rate related to the Company's Banco Pine S.A. loan. In June 2012, we entered into a currency interest rate swap arrangement with Banco Pine for R$22.0 million (approximately US$10.9 million

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based on the exchange rate as of March 31, 2013 ). The swap arrangement exchanges the principal and interest payments under the Banco Pine loan entered into in July 2012 for alternative principal and interest payments that are subject to adjustment based on fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real. The swap has a fixed interest rate of 3.94% . This arrangement hedges the fluctuations in the foreign exchange rate between the U.S. dollar and Brazilian real.

Commodity Price Risk

Our primary exposure to market risk for changes in commodity prices currently relates to our purchases of sugar feedstocks. When possible, we manage our exposure to this risk primarily through the use of supplier pricing agreements. Through the third quarter of 2012, we also had commodity market risk related to our purchases of ethanol and reformulated ethanol-blended gasoline in which we used standard derivative commodity instruments to hedge the price volatility of ethanol and reformulated ethanol-blended gasoline, principally through futures contracts. However, as of September 30, 2012, we transitioned out of that business and no longer purchase any ethanol and reformulated ethanol-blended gasoline or use standard derivative commodity instruments. The changes in fair value of these contracts are recorded on the balance sheet and recognized immediately in cost of products sold. We recognized a loss of zero and $0.7 million as the change in fair value for the three months ended March 31, 2013 and 2012 , respectively (see Note 3 to our Condensed Consolidated Financial Statements).

ITEM 4. CONTROLS AND PROCEDURES

Disclosure Controls and Procedures

Our management, with the participation of our chief executive officer and chief financial officer, evaluated the effectiveness of our disclosure controls and procedures pursuant to Rule 13a-15 under the Exchange Act of 1934, as of the end of the period covered by this Quarterly Report on Form 10-Q.  Based on this evaluation, our chief executive officer ("CEO") and chief financial officer ("CFO") concluded that, as of March 31, 2013 , our disclosure controls and procedures are designed and are effective to provide reasonable assurance that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the SEC's rules and forms, and that such information is accumulated and communicated to our management, including our CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure.

Our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

Changes in Internal Control over Financial Reporting

There were no changes in our internal control over financial reporting identified in management’s evaluation pursuant to Rules 13a-15(d) or 15d-15(d) of the Exchange Act during our first quarter ended March 31, 2013 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.



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PART II

ITEM 1. LEGAL PROCEEDINGS

We are not involved in any legal proceedings that we believe will have a material adverse effect on our business, results of operations, financial position or cash flows. We may, however, be involved, from time to time, in legal proceedings and claims arising in the ordinary course of our business. Such matters are subject to many uncertainties and there can be no assurance that legal proceedings arising in the ordinary course of business or otherwise will not have a material adverse effect on our business, results of operations, financial position or cash flows.



ITEM 1A. RISK FACTORS

Investing in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties described below, together with all of the other information set forth in this Annual Report on Form 10-K, which could materially affect our business, financial condition or future results. If any of the following risks actually occurs, our business, financial condition, results of operations and future prospects could be materially and adversely harmed. The trading price of our common stock could decline due to any of these risks, and, as a result, you may lose all or part of your investment.

Risks Related to Our Business

We have incurred losses to date, anticipate continuing to incur losses in the future and may never achieve or sustain profitability.

We have incurred significant losses in each year since our inception and believe that we will continue to incur losses and negative cash flow from operations into at least 2014. As of March 31, 2013 , we had an accumulated deficit of $618.9 million and had cash, cash equivalents and short term investments of $24.9 million . We have significant outstanding debt and contractual obligations related to purchase commitments, as well as capital and operating leases. As of March 31, 2013 , our debt totaled $106.9 million , of which $7.1 million matures within the next twelve months. In addition, our debt agreements contain various covenants, including restrictions on business that could cause us to be at risk of defaults. We expect to incur additional costs and expenses related to the continued development and expansion of our business, including construction and operation of our manufacturing facilities, our research and development operations, continued operation of our pilot plants and demonstration facility, and engineering and design work. Further, we expect to incur costs related to contract manufacturing arrangements. There can be no assurance that we will ever achieve or sustain profitability on a quarterly or annual basis.

We have limited experience producing our products at commercial scale and may not be able to commercialize our products to the extent necessary to sustain and grow our current business.

To commercialize our products, we must be successful in using our yeast strains to produce target molecules at commercial scale and at a commercially viable cost. If we cannot achieve commercially-viable production economics, we will be unable to achieve a sustainable integrated renewable products business. Most of our commercial manufacturing experience to date has been at contract manufacturing facilities. We are now focused on developing most of our production capacity through purpose-built, large-scale production plants in Brazil, which is a time-consuming, costly, uncertain and expensive process. Given our limited experience commissioning and operating our own manufacturing facilities and our limited financial resources, we cannot be sure that we will be successful in commissioning and scaling up production at these larger-scale plants, either in a timely manner or with production economics that allow us to meet our plans for commercialization. Even to the extent we successfully complete product development in our laboratories and pilot and demonstration facilities, and at contract manufacturing facilities, we may be unable to translate such success to large-scale, purpose-built plants. If this occurs, our ability to commercialize our technology will be adversely affected and we may be unable to produce and sell any significant volumes of our products. Also, with respect to products that we are able to bring to market, we may not be able to lower the cost of production, which would adversely affect our ability to sell such products profitably.

We will require additional financing to fund our anticipated operations and may not be able to obtain such financing on favorable terms, if at all.

Our planned 2013 working capital needs and our planned operating and capital expenditures for 2013 are dependent on significant inflows of cash from existing collaboration partners, as well as additional funding from new collaborations, equity or debt offerings, credit facilities or loans, or combinations of these sources. We will continue to need to fund our research and development and related activities and to provide working capital to fund production, storage, distribution and other aspects of its

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business. Our operating plan contemplates capital expenditures of approximately $10.0 million in 2013 and we expect to continue to incur costs in connection with our existing contract manufacturing arrangements. We are expecting additional funding in 2013 from collaborations, equity or debt offerings, or combinations of these sources. We are currently in discussion with potential investors and intend to secure a portion of this additional funding in the second quarter of 2013. However, as of the date of this filing, we have not yet secured this additional funding and there can be no assurance that financing will be available on commercially acceptable terms or at all. For example, some of our existing anticipated financing sources, such as research and development collaborations, are subject to risk that we cannot meet milestones or are not yet subject to definitive agreements or mandatory funding commitments and we may not be able to secure additional equity or debt financing in a timely manner or on reasonable terms, if at all.

If we seek additional types of funding that involve the issuance of equity securities, our existing stockholders would suffer dilution. For example, in 2012 and through the first quarter of 2013, we completed private placements of our common stock that resulted in the issuance of approximately 27.6 million shares of our common stock. In 2012, we also issued approximately $78.3 million in unsecured senior convertible promissory notes that are convertible into common stock at an initial conversion price of $7.0682 per share. Through 2015, we expect to issue up to an aggregate of $51.7 million in additional unsecured senior convertible promissory notes under the agreements with Total described below under the caption, “Our relationship with our strategic partner, Total, may have a substantial impact on our company.” In addition to dilution, to the extent we issue convertible promissory notes and similar instruments, we would become subject to various covenants, including restrictions on our business, that could cause us to be at risk of defaults. For example, the convertible notes we issued in 2012 contained various covenants, including restrictions on the amount of debt we are permitted to incur.

If we are unable to raise additional financing, or if other expected sources of funding are delayed or not received, we would take the following actions as early as the second quarter of 2013 to support our liquidity needs through the remainder of 2013 and into 2014:

•
Effect significant headcount reductions in the U.S. and in Brazil, particularly with respect to both general and administrative employees and other employees not connected to critical or contracted activities.

•
Shift our focus to existing products and customers with significantly reduced investment in new product and commercial development efforts.

•
Reduce our expenditures for third party contractors, including consultants, professional advisors and other vendors.

•
Suspend operations at our pilot plants and demonstration facilities.

•
Reduce or delay uncommitted capital expenditures, including non-essential lab equipment and information technology projects.

If fully implemented, these actions are designed to save us an estimated $40 million to $45 million over the next twelve months. Implementing this plan could have a material negative impact on our ability to continue our business as currently contemplated, including, without limitation, delays or failures in our ability to:

•
Achieve planned production levels;

•
Develop and commercialize products within planned timelines or at planned scales; and

•
Continue other core activities.

Furthermore, any inability to scale-back operations as necessary, and any unexpected liquidity needs, could create pressure to implement more severe measures. Such measures could have a material adverse effect on our ability to meet contractual requirements, including obligations to maintain manufacturing operations, and increase the severity of the consequences described above. We also may be forced to seek funding on terms that are not favorable to us. For example, in order to raise sufficient funds, we could be forced to issue preferred and discounted equity, agree to onerous covenants, grant security interests in our assets, enter into collaboration and licensing arrangements that require us to relinquish commercial rights or grant licenses on terms that are not favorable to us, or any or all of these.

If our major production facilities do not successfully commence operations, our customer relationships, business and results of operations may be adversely affected.


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A substantial component of our planned production capacity in the near and long term depends on successful operations at our initial and planned large-scale production plants in Brazil. We are in the early stages of operating our first purpose-built, large-scale production plant in Brotas and may complete construction of certain other facilities in the coming years. Delays or problems in the construction, start-up or operation of these facilities will cause delays in our ramp-up of production and hamper our ability to reduce our production costs. Delays in construction can occur due to a variety of factors, including regulatory requirements and our ability to fund construction and commissioning costs. Once our large-scale production facilities are built, we must successfully commission them and they must perform as we have designed them. If we encounter significant delays, cost overruns, engineering issues, contamination problems, equipment supply constraints or other serious challenges in bringing these facilities online and operating them at commercial scale, we may be unable to produce our initial renewable products in the time frame we have planned. We may also need to continue to use contract manufacturing sources more than we expect, which would reduce our anticipated gross margins and may prevent us from accessing certain markets for our products. Further, if our efforts to complete and commence production at these facilities are not successful, other mill owners in Brazil may decide not to work with us to develop additional production facilities, demand more favorable terms or delay their commitment to invest capital in our production.

Our reliance on the large-scale production plant in Brotas subjects us to execution and economic risks.

Our decision to focus our efforts for production capacity on the manufacturing facility in Brotas means that we will have limited manufacturing sources for our products in 2013 and beyond. Accordingly, any failure to establish operations at that plant could have a significant negative impact on our business, including our ability to achieve commercial viability for our products. Construction and commissioning of the plant in Brotas was recently completed, and we cannot be sure that we will be able to successfully scale up and operate the plant at levels sufficient to supply farnesene previously produced at contract manufacturing facilities. Furthermore, while we are moving our production focus to our plant in Brotas based on an expectation that we will ultimately be able to produce farnesene at a lower cost using such facility, we cannot be sure when, or if, using such plant will in fact result in such lower production costs than contract manufacturing facilities. Also, with the facility in Brotas, we will, for the first time, be the operator of a commercial fermentation and separation facility. We are inexperienced at operating plants and may face unexpected difficulties associated with the operation of the plant. For example, we have in the past, at certain contract manufacturing facilities, encountered significant delays and difficulties in ramping up production based on contamination in the production process, problems with plant utilities, lack of automation and related human error, issues arising from process modifications to reduce costs and adjust product specifications, and other similar challenges. Such challenges could arise in our plant in Brotas, and we cannot be certain that we will be able to remedy them quickly or effectively enough to achieve commercially viable near-term production costs and volumes.

As part of our arrangement to build the plant in Brotas, we have an agreement with Paraíso Bioenergia to purchase from Paraíso Bioenergia sugarcane juice corresponding to a certain number of tons of sugarcane per year, along with specified water and vapor volumes. Until this annual volume is reached, we are restricted from purchasing sugarcane juice for processing in the facility from any third party, subject to limited exceptions, unless we pay the premium to Paraíso Bioenergia that we would have paid if we bought the juice from them. As such, we will be relying on Paraíso Bioenergia to supply such juice and utilities on a timely basis, in the volumes we need, and at competitive prices. If a third party can offer superior prices and Paraíso Bioenergia does not consent to our purchasing from such third party, we would be required to pay Paraíso Bioenergia the applicable premium, which would have a negative impact on our production cost. Furthermore, we agreed to pay a price for the juice that is based on the lower of the cost of two other products produced by Paraíso Bioenergia using such juice, plus a premium. Paraíso Bioenergia may not want to sell sugarcane juice to us if the price of one of the other products is substantially higher than the one setting the price for the juice we purchase. While the agreement provides that Paraíso Bioenergia would have to pay a penalty to us if it fails to supply the agreed-upon volume of juice for a given month, the penalty may not be enough to compensate us for the increased cost if third-party suppliers do not offer competitive prices. Also, if the prices of the other products produced by Paraíso Bioenergia increase, we could be forced to pay those increased prices for production without a related increase in the price at which we can sell our products, reducing or eliminating any margins we can otherwise achieve. If in the future these supply terms no longer provide a viable economic structure for the operation in Brotas, we may be required to renegotiate our agreement, which could result in manufacturing disruptions and delays.

Our joint venture with Usina São Martinho subjects us to certain legal and financial terms that could adversely affect us.

We have various agreements with Usina São Martinho that contemplate construction of another large-scale manufacturing facility as a joint venture in Brazil. Under these agreements, we are responsible for designing and managing the construction project, and are responsible for the initial construction costs. We projected the construction costs of the project to be approximately US$100 million . While we completed a significant portion of the construction of the plant before 2012, we delayed further construction and commissioning of the plant while we constructed and commissioned our production plant in Brotas, and we expect to continue to defer the project for the near term based on economic considerations and to allow us to focus on successful implementation at our production plant in Brotas. While Usina São Martinho was obligated to contribute up to approximately R

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$61.8 million (approximately US$30.7 million based on the exchange rate as of March 31, 2013 ) to the construction of the plant, such contributions depended on, among other things, successful commencement of operations at the plant. Based on our shifting manufacturing priorities and uncertainty regarding financing availability, we cannot currently predict when or if our facility at Usina São Martinho will be completed or commence commercial operations, which means that Usina São Martinho's anticipated contribution will be delayed and may never occur. Under our existing agreement with Usina São Martinho, if the joint venture fails to commence operations by the end of 2013, Usina São Martinho has the right to terminate the joint venture and to require us to buy Usina São Martinho's equity in the joint venture at its acquisition cost, and transfer the joint venture's assets at the Usina São Martinho site to another location. In that event, we would incur significant costs and be required to find alternative locations for the facility. In March 2013, we met with Usina São Martinho and the parties agreed in principle to a revised business plan for the joint venture with the plant becoming operational in 2016. While we are in the process of documenting that revised business plan as an amendment to the agreement, we may not be able to reach final agreement on the revised terms. In addition, if Amyris Brasil becomes controlled, directly or indirectly, by a competitor of Usina São Martinho, then Usina São Martinho has the right to acquire our interest in the joint venture and if Usina São Martinho becomes controlled, directly or indirectly, by a competitor of ours, then we have the right to sell our interest in the joint venture to Usina São Martinho. In either case, the purchase price is to be determined in accordance with the joint venture agreements, and we would continue to have the obligation to acquire products produced by the joint venture for the remainder of the term of the supply agreement then in effect even though we might no longer be involved in the joint venture's management.

If we are ultimately successful in establishing the plant at Usina São Martinho, the agreements governing the joint venture subject us to terms that may not be favorable to us under certain conditions. For example, we are required to purchase the output of the joint venture for the first four years at a price that guarantees the return of Usina São Martinho's investment plus a fixed interest rate. We may not be able to sell the output at a price that allows us to achieve anticipated, or any, level of profitability on the product we acquire under these terms. Similarly, the return that we are required to provide the joint venture for products after the first four years may have an adverse effect on the profitability we achieve from acquiring the mill's output. Additionally, we are required to to purchase the output of the joint venture regardless of whether we have a customer for such output, and our results of operations and financial condition would be adversely affected if we are unable to sell the output that we are required to purchase.

Our reliance on and relationships with contract manufacturers exposes us to risks relating to costs, contractual terms and logistics .

We commenced commercial production of Biofene and some specialty chemical products in 2011 through the use of contract manufacturers, and we anticipate that we will continue to use contract manufacturers for chemical conversion and production of end-products and, to mitigate cost and volume risks at our large-scale production facilities, for production of Biofene. Establishing and operating contract manufacturing facilities requires us to make significant capital expenditures, which reduces our cash and places this capital at risk. For example, based on an evaluation of our assets associated with contract manufacturing facilities and anticipated levels of use of such facilities, we recorded a loss on write off of production assets of approximately $5.5 million in the year ended December 31, 2012. Further write off of such assets may occur in future quarters as we continue to evaluate and adjust our priorities for production, including the levels of utilization of our current and planned manufacturing facilities, which would cause us to incur additional losses associated with such facilities in the future. Also, many of our contract manufacturing agreements contain terms that commit us to pay for capital expenditures and other costs incurred or expected to be earned by the plant operators and owners, which can result in contractual liability and losses for us even if we terminate a particular contract manufacturing arrangement or decide to reduce or stop production under such an arrangement. We incurred a $40.4 million loss in the year ended December 31, 2012 related to $10.0 million in facility modification costs and $30.4 million of fixed purchase commitment losses associated with a scale-back of production at certain facilities. Some of our contract manufacturing agreements have also contained requirements to pay bonuses for milestone achievements by the contractor, minimum offtake requirements with penalties for failure to purchase specified amounts in a given period, and other terms that created contingent liabilities or other obligations for us. Any failure to comply with such requirements could result in legal claims against us, resulting in additional liability and diverting management attention, which could have a material adverse effect on our business.

The locations of contract manufacturers can pose additional cost, logistics and feedstock challenges. If production capacity is available at a plant that is remote from usable chemical finishing or distribution facilities, or from customers, we will be required to incur additional expenses in shipping products to other locations. Such costs could include shipping costs, compliance with export and import controls, tariffs and additional taxes, among others. In addition, we may be required to use feedstock from a particular region for a given production facility. The feedstock available in a particular region may not be the least expensive or most effective feedstock for production, which could significantly raise our overall production cost until we are able to optimize the supply chain.


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Loss or termination of contract manufacturing relationships could harm our ability to meet our production goals.

As we have focused on building and commissioning our own plant and improving our production economics, we have limited our use of contract manufacturing and have terminated relationships with some of our contract manufacturing partners. The failure to have multiple available supply options could create a risk for us if a single source or a limited number of sources of manufacturing runs into operational issues. In addition, if we are unable to secure the services of contract manufacturers when and as needed, we may lose customer opportunities and the growth of our business may be impaired. We cannot be sure that contract manufacturers will be available when we need their services, that they will be willing to dedicate a portion of their capacity to our projects, or that we will be able to reach acceptable price and other terms with them for the provision of their production services. If we shift priorities and stop or adjust anticipated production levels at contract manufacturing facilities, such adjustments could also result in disputes or otherwise harm our business relationships with contract manufacturers. In addition, reducing or stopping production at one facility while increasing or starting up production at another facility generally results in significant losses of production efficiency, which can persist for varying periods of time. Also, in order for production to commence under our contract manufacturing arrangements, we will generally have to provide equipment needed for the production of our products and we cannot be assured that such equipment can be ordered, or installed, on a timely basis, at acceptable costs, or at all. Further, in order to establish new manufacturing facilities, we need to transfer our yeast strains and production processes from lab to commercial plants controlled by third parties, which may pose technical or operational challenges that delay production or increase our costs.

If we are unable to decrease our production costs, we may not be able to produce our products at competitive prices and our ability to grow our business will be limited.

Currently, our costs of production are not low enough to allow us to offer many of our planned products at competitive prices. Our production costs depend on many factors that could have a negative effect on our ability to offer our planned products at competitive prices. Key factors beyond production scale and feedstock cost that impact our production costs include yield, productivity, separation efficiency and chemical process efficiency. Yield refers to the amount of the desired molecule that can be produced from a fixed amount of feedstock. Productivity represents the rate at which our product is produced by a given yeast strain. Separation efficiency refers to the amount of desired product produced in the fermentation process that we are able to extract and the time that it takes to do so. Chemical process efficiency refers to the cost and yield for the chemical finishing steps that convert our target molecule into a desired product. In order to successfully enter transportation fuels and certain chemical markets, we must produce those products at significantly lower costs, which will require both substantially higher yields than we have achieved to date and other significant improvements in production efficiency, including in productivity and in separation and chemical process efficiencies. There can be no assurance that we will be able to make these improvements or reduce our production costs sufficiently to offer our planned products at competitive prices, and any such failure could have a material adverse impact on our business and prospects.

Our ability to establish substantial commercial sales of our products is subject to many risks, any of which could prevent or delay revenue growth and adversely impact our customer relationships, business and results of operations.

There can be no assurance that our products will be approved or accepted by customers, that customers will choose our products over competing products, or that we will be able to sell our products profitably at prices and with features sufficient to establish demand. The markets we intend to enter first are primarily those for specialty chemical products used by large consumer products or specialty chemical companies. In entering these markets, we intend to sell our products as alternatives to chemicals currently in use, and in some cases the chemicals that we seek to replace have been used for many years. The potential customers for our molecules generally have well developed manufacturing processes and arrangements with suppliers of the chemical components of their products and may have a resistance to changing these processes and components. These potential customers frequently impose lengthy and complex product qualification procedures on their suppliers, influenced by consumer preference, manufacturing considerations such as process changes and capital and other costs associated with transitioning to alternative components, supplier operating history, regulatory issues, product liability and other factors, many of which are unknown to, or not well understood by, us. Satisfying these processes may take many months or years. If we are unable to convince these potential customers (and the consumers who purchase products containing such chemicals) that our products are comparable to the chemicals that they currently use or that the use of our products is otherwise to their benefits, we will not be successful in entering these markets and our business will be adversely affected.

In order for our diesel fuel to be accepted in various countries around the world, diesel engine manufacturers must determine that the use of our fuels in their equipment will not invalidate product warranties and that they otherwise regard our diesel fuel as an acceptable fuel. In addition, we must successfully demonstrate to these manufacturers that our fuel does not degrade the performance or reduce the life cycle of their engines or cause them to fail to meet emissions standards. Meeting these suitability standards can be a time consuming and expensive process, and we may invest substantial time and resources into such qualification efforts without ultimately securing approval. To date, our diesel fuel has achieved limited approvals from certain engine

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manufacturers, but we cannot be assured that other engine or vehicle manufacturers or fleet operators, will approve usage of our fuels. To distribute our diesel fuel, we must also meet requirements imposed by pipeline operators and fuel distributors. If these operators impose volume limitations on the transport of our fuels, our ability to sell our fuels may be impaired. Our ability to sell a jet fuel product is subject to similar types of qualification requirements as diesel, although we believe the qualification process will ultimately take longer and will be more expensive than the process for diesel.

We expect to face competition for our specialty chemical and transportation fuels products from providers of petroleum-based products and from other companies seeking to provide alternatives to these products, and if we cannot compete effectively against these companies or products we may not be successful in bringing our products to market or further growing our business after we do so.

We expect that our renewable products will compete with both the traditional, largely petroleum-based specialty chemical and fuels products that are currently being used in our target markets and with the alternatives to these existing products that established enterprises and new companies are seeking to produce.

In the specialty chemical markets that we are initially seeking to enter, and in other chemical markets that we may seek to enter in the future, we will compete primarily with the established providers of chemicals currently used in these products. Producers of these incumbent products include global oil companies, large international chemical companies and companies specializing in specific products, such as squalane or essential oils. We may also compete in one or more of these markets with products that are offered as alternatives to the traditional petroleum-based or other traditional products being offered in these markets.

In the transportation fuels market, we expect to compete with independent and integrated oil refiners, advanced biofuels companies and biodiesel companies. Refiners compete with us by selling traditional fuel products and some are also pursuing hydrocarbon fuel production using non-renewable feedstocks, such as natural gas and coal, as well as processes using renewable feedstocks, such as vegetable oil and biomass. We also expect to compete with companies that are developing the capacity to produce diesel and other transportation fuels from renewable resources in other ways. These include advanced biofuels companies using specific enzymes that they have developed to convert cellulosic biomass, which is non-food plant material such as wood chips, corn stalks and sugarcane bagasse, into fermentable sugars. Similar to us, some companies are seeking to use engineered enzymes to convert sugars, in some cases from cellulosic biomass and in others from natural sugar sources, into renewable diesel and other fuels. Biodiesel companies convert vegetable oils and animal oils into diesel fuel and some are seeking to produce diesel and other transportation fuels using thermochemical methods to convert biomass into renewable fuels.

With the emergence of many new companies seeking to produce chemicals and fuels from alternative sources, we may face increasing competition from alternative fuels and chemicals companies. As they emerge, some of these companies may be able to establish production capacity and commercial partnerships to compete with us. If we are unable to establish production and sales channels that allow us to offer comparable products at attractive prices, we may not be able to compete effectively with these companies.

We believe the primary competitive factors in both the chemicals and fuels markets are:

•
product price;

•
product performance and other measures of quality;

•
infrastructure compatibility of products;

•
sustainability; and

•
dependability of supply.

The oil companies, large chemical companies and well-established agricultural products companies with whom we compete are much larger than we are, have, in many cases, well developed distribution systems and networks for their products, have valuable historical relationships with the potential customers we are seeking to serve and have much more extensive sales and marketing programs in place to promote their products. In order to be successful, we must convince customers that our products are at least as effective as the traditional products they are seeking to replace and we must provide our products on a cost-competitive basis with these traditional products and other available alternatives. Some of our competitors may use their influence to impede the development and acceptance of renewable products of the type that we are seeking to produce.


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We believe that for our chemical products to succeed in the market, we must demonstrate that our products are comparable alternatives to existing products and to any alternative products that are being developed for the same markets based on some combination of product cost, availability, performance, and consumer preference characteristics. With respect to our diesel and other transportation fuels products, we believe that our product must perform as effectively as petroleum-based fuel, or alternative fuels, and be available on a cost-competitive basis. In addition, with the wide range of renewable fuels products under development, we must be successful in reaching potential customers and convincing them that ours are effective and reliable alternatives.

Our relationship with our strategic partner, Total, has a substantial impact on our company.

We have a license, development, research and collaboration agreement with Total, under which we may develop, produce and commercialize products with Total, that originally contemplated Total paying up to the first $50 million in research costs for selected research and development projects (which arrangement has been modified as described below). Under the agreement, Total has a right of first negotiation with us with respect to exclusive commercialization arrangements that we would propose to enter into with certain third parties, as well as the right to purchase any of our products on terms not less favorable than those offered to or received by us from third parties in any market where Total or its affiliates have a significant market position. These rights might inhibit potential strategic partners or potential customers from entering into negotiations with us about future business opportunities. Total also has the right to terminate the collaboration agreement in the event we undergo a sale or change of control to certain entities, which could discourage a potential acquirer from making an offer to acquire us.

In November 2011, we entered into an amendment of the collaboration agreement with Total with respect to development and commercialization of Biofene for diesel. This represented an expansion of the initial collaboration that the parties established in 2010, and established a global, exclusive collaboration for the development of Biofene for diesel and a framework for the creation of a joint venture to manufacture and commercialize Biofene for diesel. In addition, a limited number of other potential products were subject to development for the joint venture on a non-exclusive basis. In July 2012, we entered into a further amendment of the collaboration agreement with Total that expanded Total's investment in the Biofene collaboration, incorporated the development of certain joint venture products for use in diesel and jet fuel into the scope of the collaboration, and changed the structure of the funding from Total to include a convertible debt mechanism. Under the new agreements, Total funded $30 million in new cash investment during the third quarter of 2012 and, in March 2013, it confirmed its agreement to provide an additional $30 million in 2013. Total may decide to provide further funding in 2014. Upon completion of the research and development program, we and Total would form a joint venture company that would have exclusive rights to produce and market renewable diesel and/or jet fuel. Should Total decide not to pursue commercialization, under certain conditions, it is eligible to recover up to $100 million, payable in March 2017, in the form of cash or in the form of common stock at a conversion price of $7.0682 per share (or, for notes issued in 2013, a lower price as determined under the March 2013 letter agreement as described above in Management's Discussion and Analysis of Financial Condition and Results of Operations-Overview-Total).

Under the agreements related to the July 2012 amendment, the $50 million in funding by Total originally contemplated under the collaboration agreement is deemed to be exhausted, so the funding under the most recent amendment is all the funding still contemplated by our agreements with Total. We cannot be certain that Total will choose to continue funding the research and development program or ultimately opt in to participate in the anticipated joint venture. Under the new agreements, Total may, at certain decision points through a final decision date following the earlier of completion of the research and development program or December 31, 2016, decide not to continue funding or participating in the program and, if it does, any notes issued to Total to date will remain outstanding and become payable or convertible into our common stock. If Total chooses to demand repayment of amounts advanced under the notes, we may not be able to repay them by the maturity date in March 2017, which could lead to defaults and our insolvency, and Total and other creditors could pursue collection claims against us. If the notes become convertible and Total chooses to convert them, the resulting issuance of common stock would be dilutive to other stockholders. Under the July 2012 agreements, Total also has a right to participate in our future equity or convertible debt financings through December 31, 2013 to preserve its pro rata ownership of us (and thereafter in limited circumstances). The agreements provided that the purchase price for the first $30 million of purchases under this pro rata right would be paid by cancellation of outstanding notes held by Total; Total canceled $5 million of an outstanding convertible promissory note in connection with a private placement in December 2012, which reduced the amount of notes it could cancel to exercise its pro rata rights by $5 million. Exercise by Total of this right by cancellation of notes reduces the cash proceeds we receive from any covered offering.

The new agreements provide that we will provide an exclusive license to our intellectual property related to the manufacture and commercialization of Biofene-based diesel and jet fuel to the above-mentioned fuels joint venture, and also contemplate providing an option to Total to buy out our interest in the joint venture under certain circumstances such as our insolvency. Furthermore, the new agreements contemplate that Total can, if there is a deadlock in finalizing various matters related to the formation of the joint venture, initiate a bidding process where the fair value of the proposed joint venture would be determined and we would be required to choose whether to (i) sell our joint venture assets to Total for 50% of the joint venture value, (ii) proceed with formation of the joint venture with Total as a 50% owner and accept Total's position regarding the funding requirements

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of the joint venture, or (iii) proceed with the formation of the joint venture with Total as a 50% owner, accepting Total's position regarding the funding requirements of the joint venture, and then sell all or a portion of our 50% interest in the joint venture to Total for a price equal to the fair value multiplied by the percentage ownership of the joint venture sold to Total. If we are forced to relinquish our rights with respect to diesel and jet fuel under these scenarios (or under an early exclusive license as described above), our ability to continue pursuing our fuels business will be impaired.

If we do not meet technical, development and commercial milestones in our collaboration agreements, our future revenue and financial results will be adversely impacted.

We have entered into a number of agreements regarding the further development of certain of our products and, in some cases, for ultimate sale of certain products to the customer under the agreement. None of these agreements affirmatively obligates the other party to purchase specific quantities of any products at this time, and most contain important conditions that must be satisfied before additional research and development funding or product purchases would occur. These conditions include research and development milestones and technical specifications that must be achieved to the satisfaction of our collaborators, which we cannot be certain we will achieve. If we do not achieve these contractual milestones, our revenues and financial results will be harmed.

We are subject to risks related to our reliance on collaboration arrangements to fund development and commercialization of our products.

For most product markets we are trying to address, we either have or are seeking collaboration partners to fund the research and development, commercialization and production efforts required for the target products. Typically we provide limited exclusive rights and revenue sharing with respect to the production and sale of particular types of products in specific markets in exchange for such up-front funding. These exclusivity, revenue-sharing and other similar terms limit our ability to commercialize our products and technology, and may impact the size of our business or our profitability in ways that we do not currently envision. In addition, revenues from these types of relationships are a key part of our cash plan for 2013 and beyond. If we fail to collect expected collaboration revenues, or to identify and add sufficient additional collaborations to fund our planned operations, we may be unable to fund our operations or pursue development and commercialization of our planned products. To achieve our collaboration revenue targets from year to year, we may be forced to enter into agreements that contain less favorable terms, including broader exclusivity provisions for commercial partners and a smaller financial stake in any successful ventures resulting from collaborations.

Our manufacturing operations require sugar feedstock, and the inability to obtain such feedstock in sufficient quantities or in a timely manner, or at reasonable prices, may limit our ability to produce our products profitably, or at all.

We anticipate that the production of our products will require large volumes of feedstock. We have relied on a mixture of feedstock sources for use at our contract manufacturing operations, including cane sugar, corn-based dextrose and beet molasses. For our large-scale production facilities in Brazil, we are relying primarily on Brazilian sugarcane. We cannot predict the future availability or price of these various feedstocks, nor can we be sure that our mill partners, which we expect to supply the sugarcane feedstock necessary to produce our products in Brazil, will be able to supply it in sufficient quantities or in a timely manner. Furthermore, to the extent we are required to rely on sugar feedstock other than Brazilian sugarcane, the cost of such feedstock may be higher than we expect, increasing our anticipated production costs. Feedstock crop yields and sugar content depend on weather conditions, such as rainfall and temperature. Weather conditions have historically caused volatility in the ethanol and sugar industries by causing crop failures or reduced harvests. Excessive rainfall can adversely affect the supply of sugarcane and other sugar feedstock available for the production of our products by reducing the sucrose content and limiting growers' ability to harvest. Crop disease and pestilence can also occur from time to time and can adversely affect feedstock growth, potentially rendering useless or unusable all or a substantial portion of affected harvests. With respect to sugarcane, our initial primary feedstock, the limited amount of time during which it keeps its sugar content after harvest and the fact that sugarcane is not itself a traded commodity increases these risks and limits our ability to substitute supply in the event of such an occurrence. If production of sugarcane or any other feedstock we may use to produce our products is adversely affected by these or other conditions, our production will be impaired, and our business will be adversely affected.

The price of sugarcane and other feedstocks can be volatile as a result of changes in industry policy and may increase the cost of production of our products.

In Brazil, Conselho dos Produtores de Cana, Açúcar e Álcool (Council of Sugarcane, Sugar and Ethanol Producers), or Consecana, an industry association of producers of sugarcane, sugar and ethanol, sets market terms and prices for general supply, lease and partnership agreements for sugarcane. If Consecana makes changes to such terms and prices, this could result higher sugarcane prices and/or a significant decrease in the volume of sugarcane available for the production of our products. Furthermore, if Consecana were to cease to be involved in this process, such prices and terms could become more volatile. Similar principles apply to pricing of other feedstocks as well. Any of these events could adversely affect our business and results of operations.

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Our large-scale commercial production capacity is centered in Brazil, and our business will be adversely affected if we do not operate effectively in that country.

For the foreseeable future, we will be subject to risks associated with the concentration of essential product sourcing and operations in Brazil. The Brazilian government has changed in the past, and may change in the future, monetary, taxation, credit, tariff and other policies to influence the course of Brazil's economy. For example, the government's actions to control inflation have at times involved setting wage and price controls, adjusting interest rates, imposing taxes and exchange controls and limiting imports into Brazil. We have no control over, and cannot predict, what policies or actions the Brazilian government may take in the future. Our business, financial performance and prospects may be adversely affected by, among others, the following factors:

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delays or failures in securing licenses, permits or other governmental approvals necessary to build and operate facilities and use our yeast strains to produce products;

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rapid consolidation in the sugar and ethanol industries in Brazil, which could result in a decrease in competition;

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political, economic, diplomatic or social instability in or affecting Brazil;

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changing interest rates;

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tax burden and policies;

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effects of changes in currency exchange rates;

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exchange controls and restrictions on remittances abroad;

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inflation;

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land reform movements;

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export or import restrictions that limit our ability to move our products out of Brazil or interfere with the import of essential materials into Brazil;

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changes in or interpretations of foreign regulations that may adversely affect our ability to sell our products or repatriate profits to the U.S.;

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tariffs, trade protection measures and other regulatory requirements;

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successful compliance with U.S. and foreign laws that regulate the conduct of business abroad;

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an inability, or reduced ability, to protect our intellectual property in Brazil including any effect of compulsory licensing imposed by government action; and

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difficulties and costs of staffing and managing foreign operations. 

We cannot predict whether the current or future Brazilian government will implement changes to existing policies on taxation, exchange controls, monetary strategy, social security and the like, nor can we estimate the impact of any such changes on the Brazilian economy or our operations.

Our international operations expose us to the risk of fluctuation in currency exchange rates and rates of foreign inflation, which could adversely affect our results of operations.

We currently incur significant costs and expenses in Brazilian reais and may in the future incur additional expenses in foreign currencies and derive a portion of our revenues in the local currencies of customers throughout the world. As a result, our revenues and results of operations are subject to foreign exchange fluctuations, which we may not be able to manage successfully. During the past few decades, the Brazilian currency in particular has faced frequent and substantial exchange rate fluctuations in relation to the U.S. dollar and other foreign currencies. There can be no assurance that the Brazilian real will not significantly appreciate or depreciate against the U.S. dollar in the future. We also bear the risk that the rate of inflation in the foreign countries where we incur costs and expenses or the decline in value of the U.S. dollar compared to those foreign currencies will increase our costs as

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expressed in U.S. dollars. For example, future measures by the Central Bank of Brazil to control inflation, including interest rate adjustments, intervention in the foreign exchange market and actions to fix the value of the real, may weaken the U.S. dollar in Brazil. Whether in Brazil or otherwise, we may not be able to adjust the prices of our products to offset the effects of inflation or foreign currency appreciation on our cost structure, which could increase our costs and reduce our net operating margins. If we do not successfully manage these risks through hedging or other mechanisms, our revenues and results of operations could be adversely affected.

Our use of genetically-modified feedstocks and yeast strains to produce our products subjects us to risks of regulatory limitations and rejection of our products.

The use of genetically-modified microorganisms, or GMMs, such as our yeast strains, is subject to laws and regulations in many countries, some of which are new and some of which are still evolving. Public attitudes about the safety and environmental hazards of, and ethical concerns over, genetic research and GMMs could influence public acceptance of our technology and products. In the U.S., the Environmental Protection Agency, or EPA, regulates the commercial use of GMMs as well as potential products produced from the GMMs. Various states within the U.S. could choose to regulate products made with GMMs as well. While the strain of genetically modified yeast that we currently use for the development and anticipate using for the commercial production of our target molecules, S. cerevisiae , is eligible for exemption from EPA review because it is recognized as posing a low risk, we must satisfy certain criteria to achieve this exemption, including but not limited to use of compliant containment structures and safety procedures, and we cannot be sure that we will meet such criteria in a timely manner, or at all. If exemption of S. cerevisiae is not obtained, our business may be substantially harmed. In addition to S. cerevisiae , we may seek to use different GMMs in the future that will require EPA approval. If approval of different GMMs is not secured, our ability to grow our business could be adversely affected. In addition to the regulatory requirements relating directly to our yeast strains and products, we must satisfy the product specification requirements of our customers, which can include requirements that we use non-genetically modified feedstocks. For example, some cosmetics suppliers require that ingredients used in their cosmetics not be produced from any genetically-modified feedstocks.

In Brazil, GMMs are regulated by the National Biosafety Technical Commission, or CTNBio. We have obtained approval from CTNBio to use GMMs in a contained environment in our Campinas facilities for research and development purposes as well as at a contract manufacturing facility in Brazil. In addition, we have obtained initial commercial approval from CTNBio for one of our current yeast strains. As we continue to develop new yeast strains and deploy our technology at new production facilities in Brazil, we will be required to obtain further approvals from CTNBio in order to use these strains in commercial production in Brazil. We may not be able to obtain approvals from relevant Brazilian authorities on a timely basis, or at all, and if we do not, our ability to produce our products in Brazil would be impaired, which would adversely affect our results of operations and financial condition.

In addition to our production operations in the U.S. and Brazil, we have been party to contract manufacturing agreements with parties in other production locations around the world, including Europe. The use of GMM technology is strictly regulated in the European Union, which has established various directives for member states regarding regulation of the use of such technology, including notification processes for contained use of such technology. We expect to encounter GMM regulations in most, if not all, of the countries in which we may seek to establish production capabilities, and the scope and nature of these regulations will likely be different from country to country. If we cannot meet the applicable requirements in other countries in which we intend to produce products using our yeast strains, or if it takes longer than anticipated to obtain such approvals, our business could be adversely affected.

We may not be able to obtain regulatory approval for the sale of our renewable products.

Our renewable chemical products may be subject to government regulation in our target markets. In the U.S., the EPA administers the Toxic Substances Control Act, or TSCA, which regulates the commercial registration, distribution, and use of many chemicals. Before an entity can manufacture or distribute significant volumes of a chemical, it needs to determine whether that chemical is listed in the TSCA inventory. If the substance is listed, then manufacture or distribution can commence immediately. If not, then in most cases a “Chemical Abstracts Service” number registration and pre-manufacture notice must be filed with the EPA, which has up to 180 days to review the filing. Some of the products we produce or plan to produce, such as Biofene and squalane, are already in the TSCA inventory. Others, such as our farnesane (in diesel and new jet fuel applications), are not yet listed. We may not be able to expediently receive approval from the EPA to list the molecules we would like to make on the TSCA registry, resulting in delays or significant increases in testing requirements. A similar program exists in the European Union, called REACH (Registration, Evaluation, Authorization, and Restriction of Chemical Substances). Under this program, we need to register our products, including Biofene, with the European Commission, and this process could cause delays or significant costs. To the extent that other geographies, such as Brazil, may rely on TSCA or REACH (or similar laws and programs) for chemical registration in their geographies, delays with the U.S. or European authorities may subsequently delay entry into these markets as well.

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Our diesel fuel is subject to regulation by various government agencies, including the EPA and the California Air Resources Board, or CARB, in the U.S. and Agência Nacional do Petróleo, Gas Natural e Biocombustíveis, or ANP, in Brazil. To date, we have obtained registration with the EPA for the use of our diesel fuel in the U.S. at a 35% blend rate with petroleum diesel. In addition, ANP has authorized the use our diesel fuel at blend rates of 10% and 30% for specific transportation fleets. We are also currently in the process of registering our fuel with the CARB and the European Commission. Registration with each of these bodies is required for the sale and use of our fuels within their respective jurisdictions. In addition, for us to achieve full access to the U.S. fuels market for our fuel products, we will need to obtain EPA and CARB (and potentially other state agencies) certifications for our feedstock pathway and production facilities, including certification of a feedstock lifecycle analysis relating to greenhouse gas emissions. Any delay in obtaining these additional certifications could impair our ability to sell our renewable fuels to refiners, importers, blenders and other parties that produce transportation fuels as they comply with federal and state requirements to include certified renewable fuels in their products.

We expect to encounter regulations in most, if not all, of the countries in which we may seek to sell our renewable chemical and fuel products, and we cannot assure you that we will be able to obtain necessary approvals in a timely manner or at all. If our chemical and fuel products do not meet applicable regulatory requirements in a particular country or at all, then we may not be able to commercialize our products and our business will be adversely affected.

 
Changes in government regulations, including subsidies and economic incentives, could have a material adverse effect upon our business.

The market for renewable fuels is heavily influenced by foreign, federal, state and local government regulations and policies. Changes to existing or adoption of new domestic or foreign federal, state and local legislative initiatives that impact the production, distribution or sale of renewable fuels may harm our renewable fuels business. In the U.S. and in a number of other countries, regulations and policies encouraging production and use of alternative fuels have been modified in the past and may be modified again in the future. Any reduction in mandated requirements for fuel alternatives and additives to gasoline or diesel may cause demand for biofuels to decline and deter investment in the research and development of renewable fuels. The market uncertainty regarding this and future standards and policies may also affect our ability to develop new renewable products or to license our technologies to third parties and to sell products to our end customers. Any inability to address these requirements and any regulatory or policy changes could have a material adverse effect on our business, financial condition and results of operations.

Concerns associated with renewable fuels, including land usage, national security interests and food crop usage, continue to receive legislative, industry and public attention. This attention could result in future legislation, regulation and/or administrative action that could adversely affect our business. Any inability to address these requirements and any regulatory or policy changes could have a material adverse effect on our business, financial condition and results of operations.

Furthermore, the production of our products will depend on the availability of feedstock, especially sugarcane. Agricultural production and trade flows are subject to government policies and regulations. Governmental policies affecting the agricultural industry, such as taxes, tariffs, duties, subsidies, incentives and import and export restrictions on agricultural commodities and commodity products, can influence the planting of certain crops, the location and size of crop production, whether unprocessed or processed commodity products are traded, the volume and types of imports and exports, and the availability and competitiveness of feedstocks as raw materials. Future government policies may adversely affect the supply of feedstocks, restrict our ability to use sugarcane or other feedstocks to produce our products, and negatively impact our future revenues and results of operations.

 
We may incur significant costs complying with environmental laws and regulations, and failure to comply with these laws and regulations could expose us to significant liabilities.

We use hazardous chemicals and radioactive and biological materials in our business and such materials are subject to a variety of federal, state and local laws and regulations governing the use, generation, manufacture, storage, handling and disposal of these materials both in the U.S. and overseas. Although we have implemented safety procedures for handling and disposing of these materials and related waste products in an effort to comply with these laws and regulations, we cannot be sure that our safety measures will prevent accidental injury or contamination from the use, storage, handling or disposal of hazardous materials. In the event of contamination or injury, we could be held liable for any resulting damages, and any liability could exceed our insurance coverage. There can be no assurance that violations of environmental, health and safety laws will not occur in the future as a result of human error, accident, equipment failure or other causes. Compliance with applicable environmental laws and regulations may be expensive, and the failure to comply with past, present, or future laws could result in the imposition of fines, third party property damage, product liability and personal injury claims, investigation and remediation costs, the suspension of production, or a cessation of operations, and our liability may exceed our total assets. Liability under environmental laws can be joint and several

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and without regard to comparative fault. Environmental laws could become more stringent over time, imposing greater compliance costs and increasing risks and penalties associated with violations, which could impair our research, development or production efforts and harm our business.

A decline in the price of petroleum and petroleum-based products may reduce demand for many of our renewable products and may otherwise adversely affect our business.

We anticipate that most of our renewable products, and in particular our fuels, will be marketed as alternatives to corresponding petroleum-based products. If the price of oil falls, we may be unable to produce products that are cost-effective alternatives to petroleum-based products. Declining oil prices, or the perception of a future decline in oil prices, may adversely affect the prices we can obtain from our potential customers or prevent potential customers from entering into agreements with us to buy our products. During sustained periods of lower oil prices we may be unable to sell some of our products, which could materially and adversely affect our operating results.

Our financial results could vary significantly from quarter to quarter and are difficult to predict.

Our revenues and results of operations could vary significantly from quarter to quarter because of a variety of factors, many of which are outside of our control. As a result, comparing our results of operations on a period-to-period basis may not be meaningful. Factors that could cause our quarterly results of operations to fluctuate include:

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achievement, or failure, with respect to technology, product development or manufacturing milestones needed to allow us to enter identified markets on a cost effective basis;

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delays or greater than anticipated expenses associated with the completion or commissioning of new production facilities, or the time to ramp up and stabilize production following completion of a new production facility;

•
impairment of assets based on shifting business priorities and working capital limitations;

•
disruptions in the production process at any manufacturing facility;

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losses associated with producing our products as we ramp to commercial production levels;

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failure to recover value added tax (VAT) that we currently reflect as recoverable in our financial statements (e.g., due to failure to meet conditions for reimbursement of VAT under local law);

•
the timing, size and mix of sales to customers for our products;

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increases in price or decreases in availability of feedstock;

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the unavailability of contract manufacturing capacity altogether or at reasonable cost;

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fluctuations in foreign currency exchange rates;

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gains or losses associated with our hedging activities;

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fluctuations in the price of and demand for sugar, ethanol, and petroleum-based and other products for which our products are alternatives;

•
seasonal variability in production and sales of our products;

•
competitive pricing pressures, including decreases in average selling prices of our products;

•
unanticipated expenses associated with changes in governmental regulations and environmental, health and safety requirements;

•
reductions or changes to existing fuel and chemical regulations and policies;

•
departure of executives or other key management employees resulting in transition and severance costs;


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•
our ability to use our net operating loss carryforwards to offset future taxable income;

•
business interruptions such as earthquakes and other natural disasters;

•
our ability to integrate businesses that we may acquire;

•
risks associated with the international aspects of our business; and

•
changes in general economic, industry and market conditions, both domestically and in our foreign markets.

In addition, nearly all of our revenue through the third quarter of 2012 came from the sale of ethanol and reformulated ethanol-blended gasoline, with the remainder coming from collaborations and government grants and, more recently, sales of our renewable products. In the third quarter of 2012, we transitioned out of the ethanol and reformulated ethanol-blended gasoline business. We do not expect to be able to replace much of the revenue lost as a result of this transition, particularly in 2013 while we continue our efforts to establish a renewable products business.

As part of our operating plan for 2013, we are reducing our cost structure by improving efficiency in our operations and reducing non-critical expenditures. These efforts have included, and may include in the future, reductions to our workforce and adjustments to the timing and scope of planned capital expenditures.

Due to the factors described above, among others, the results of any quarterly or annual period may not meet our expectations or the expectations of our investors and may not be meaningful indications of our future performance.

Loss of key personnel, including key management personnel, and/or failure to attract and retain additional personnel could delay our product development programs and harm our research and development efforts and our ability to meet our business objectives.

Our business involves complex, global operations across a variety of markets and requires a management team and employee workforce that is knowledgeable in the many areas in which we operate. As we build our business, we will need to hire additional qualified research and development, management and other personnel to succeed. The process of hiring, training and successfully integrating qualified personnel into our operation, in both the U.S. and Brazil, is a lengthy and expensive one. The market for qualified personnel is very competitive because of the limited number of people available with the necessary technical skills and understanding of our technology and anticipated products, particularly in Brazil. Our failure to hire and retain qualified personnel could impair our ability to meet our research and development and business objectives and adversely affect our results of operations and financial condition.

The loss of any key member of our management or key technical and operational employees, or the failure to attract or retain such employees could prevent us from developing and commercializing our products for our target markets and executing our business strategy. We also may not be able to attract or retain qualified employees in the future due to the intense competition for qualified personnel among biotechnology and other technology-based businesses, particularly in the renewable chemicals and fuels area, or due to the availability of personnel with the qualifications or experience necessary for our business. In addition, reductions to our workforce as part of cost-saving measures may make it more difficult for us to attract and retain key employees. If do not maintain the necessary personnel to accomplish our business objectives, we may experience staffing constraints that will adversely affect our ability to meet the demands of our collaborators and customers in a timely fashion or to support our internal research and development programs and operations. In particular, our product and process development programs are dependent on our ability to attract and retain highly skilled technical and operational personnel. Competition for such personnel from numerous companies and academic and other research institutions may limit our ability to do so on acceptable terms. All of our employees are at-will employees, which mean that either the employee or we may terminate their employment at any time.

Growth may place significant demands on our management and our infrastructure.

We have experienced, and expect to continue to experience, expansion of our business as we continue to make efforts to develop and bring our products to market. We have grown from 18 employees at the end of 2005 to 380 at April 26, 2013. Our growth and diversified operations have placed, and may continue to place, significant demands on our management and our operational and financial infrastructure. In particular, continued growth could strain our ability to:

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manage multiple research and development programs;

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operate multiple manufacturing facilities around the world;

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•
develop and improve our operational, financial and management controls;

•
enhance our reporting systems and procedures;

•
recruit, train and retain highly skilled personnel;

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develop and maintain our relationships with existing and potential business partners;

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maintain our quality standards; and

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maintain customer satisfaction.

Managing our growth will require significant expenditures and allocation of valuable management resources. If we fail to achieve the necessary level of efficiency in our organization as it grows, our business, results of operations and financial condition would be adversely impacted.

Our proprietary rights may not adequately protect our technologies and product candidates.

Our commercial success will depend substantially on our ability to obtain patents and maintain adequate legal protection for our technologies and product candidates in the U.S. and other countries. As of April 30, 2013, we had 208 issued U.S. and foreign patents and 303 pending U.S. and foreign patent applications that were owned by or licensed to us. We will be able to protect our proprietary rights from unauthorized use by third parties only to the extent that our proprietary technologies and future products are covered by valid and enforceable patents or are effectively maintained as trade secrets.

We apply for patents covering both our technologies and product candidates, as we deem appropriate. However, we may fail to apply for patents on important technologies or product candidates in a timely fashion, or at all. Our existing and future patents may not be sufficiently broad to prevent others from practicing our technologies or from developing competing products or technologies. In addition, the patent positions of companies like ours are highly uncertain and involve complex legal and factual questions for which important legal principles remain unresolved. No consistent policy regarding the breadth of patent claims has emerged to date in the U.S. and the landscape is expected to become even more uncertain in view of recent rule changes by the Patent and Trademark Office, or USPTO, the introduction of patent reform legislation in Congress and recent decisions in patent law cases by the U.S. Supreme Court. In addition, we obtained certain key U.S. patents using a procedure for accelerated examination recently implemented by the USPTO which requires special activities and disclosures that may create additional risks related to the validity or enforceability of the U.S. patents so obtained. The patent situation outside of the U.S. is even less predictable. As a result, the validity and enforceability of patents cannot be predicted with certainty. Moreover, we cannot be certain whether:

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we or our licensors were the first to make the inventions covered by each of our issued patents and pending patent applications;

•
we or our licensors were the first to file patent applications for these inventions;

•
others will independently develop similar or alternative technologies or duplicate any of our technologies;

•
any of our or our licensors' patents will be valid or enforceable;

•
any patents issued to us or our licensors will provide us with any competitive advantages, or will be challenged by third parties;

•
we will develop additional proprietary products or technologies that are patentable; or

•
the patents of others will have an adverse effect on our business.

We do not know whether any of our patent applications or those patent applications that we license will result in the issuance of any patents. Even if patents are issued, they may not be sufficient to protect our technology or product candidates. The patents we own or license and those that may be issued in the future may be challenged, invalidated, rendered unenforceable, or circumvented, and the rights granted under any issued patents may not provide us with proprietary protection or competitive advantages. In particular, U.S. patents we obtained using the USPTO accelerated examination program may introduce additional risks to the validity or enforceability of some or all of these specially-obtained U.S. patents if validity or enforceability are

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challenged. Moreover, third parties could practice our inventions in territories where we do not have patent protection or in territories where they could obtain a compulsory license to our technology where patented. Such third parties may then try to import products made using our inventions into the U.S. or other territories. Additional uncertainty may result from potential passage of patent reform legislation by the U.S. Congress, legal precedent by the U.S. Federal Circuit and Supreme Court as they determine legal issues concerning the scope and construction of patent claims and inconsistent interpretation of patent laws by the lower courts. Accordingly, we cannot ensure that any of our pending patent applications will result in issued patents, or even if issued, predict the breadth, validity and enforceability of the claims upheld in our and other companies' patents.

Unauthorized parties may attempt to copy or otherwise obtain and use our products or technology. Monitoring unauthorized use of our intellectual property is difficult, and we cannot be certain that the steps we have taken will prevent unauthorized use of our technology, particularly in certain foreign countries where the local laws may not protect our proprietary rights as fully as in the U.S. or may provide, today or in the future, for compulsory licenses. If competitors are able to use our technology, our ability to compete effectively could be harmed. Moreover, others may independently develop and obtain patents for technologies that are similar to, or superior to, our technologies. If that happens, we may need to license these technologies, and we may not be able to obtain licenses on reasonable terms, if at all, which could cause harm to our business.

We rely in part on trade secrets to protect our technology, and our failure to obtain or maintain trade secret protection could adversely affect our competitive business position.

We rely on trade secrets to protect some of our technology, particularly where we do not believe patent protection is appropriate or obtainable. However, trade secrets are difficult to maintain and protect. Our strategy for contract manufacturing and scale-up of commercial production requires us to share confidential information with our international business partners and other parties. Our product development collaborations with third parties, including with Total, require us to share confidential information, including with employees of Total who are seconded to Amyris during the term of the collaboration. While we use reasonable efforts to protect our trade secrets, our or our business partners' employees, consultants, contractors or scientific and other advisors may unintentionally or willfully disclose our proprietary information to competitors. Enforcement of claims that a third party has illegally obtained and is using trade secrets is expensive, time consuming and uncertain. In addition, foreign courts are sometimes less willing than U.S. courts to protect trade secrets. If our competitors independently develop equivalent knowledge, methods and know-how, we would not be able to assert our trade secrets against them.

We require new employees and consultants to execute confidentiality agreements upon the commencement of an employment or consulting arrangement with us. These agreements generally require that all confidential information developed by the individual or made known to the individual by us during the course of the individual's relationship with us be kept confidential and not disclosed to third parties. These agreements also generally provide that inventions conceived by the individual in the course of rendering services to us shall be our exclusive property. Nevertheless, our proprietary information may be disclosed, or these agreements may be unenforceable or difficult to enforce. Additionally, trade secret law in Brazil differs from that in the U.S. which requires us to take a different approach to protecting our trade secrets in Brazil. Some of these approaches to trade secret protection may be novel and untested under Brazilian law and we cannot guarantee that we would prevail if our trade secrets are contested in Brazil. If any of the above risks materializes, our failure to obtain or maintain trade secret protection could adversely affect our competitive business position.

Third parties may misappropriate our yeast strains.

Third parties, including contract manufacturers, sugar and ethanol mill owners, other contractors and shipping agents, often have custody or control of our yeast strains. If our yeast strains were stolen, misappropriated or reverse engineered, they could be used by other parties who may be able to reproduce the yeast strains for their own commercial gain. If this were to occur, it would be difficult for us to challenge and prevent this type of use, especially in countries where we have limited intellectual property protection or that do not have robust intellectual property law regimes.

If we are sued for infringing intellectual property rights or other proprietary rights of third parties, litigation could be costly and time consuming and could prevent us from developing or commercializing our future products.

Our commercial success depends on our ability to operate without infringing the patents and proprietary rights of other parties and without breaching any agreements we have entered into with regard to our technologies and product candidates. We cannot determine with certainty whether patents or patent applications of other parties may materially affect our ability to conduct our business. Our industry spans several sectors, including biotechnology, renewable fuels, renewable specialty chemicals and other renewable compounds, and is characterized by the existence of a significant number of patents and disputes regarding patent and other intellectual property rights. Because patent applications can take several years to issue, there may currently be pending applications, unknown to us, that may result in issued patents that cover our technologies or product candidates. We are aware of

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a significant number of patents and patent applications relating to aspects of our technologies filed by, and issued to, third parties. The existence of third-party patent applications and patents could significantly reduce the coverage of patents owned by or licensed to us and limit our ability to obtain meaningful patent protection. If we wish to make, use, sell, offer to sell, or import the technology or compound claimed in issued and unexpired patents owned by others, we will need to obtain a license from the owner, enter into litigation to challenge the validity of the patents or incur the risk of litigation in the event that the owner asserts that we infringe its patents. If patents containing competitive or conflicting claims are issued to third parties and these claims are ultimately determined to be valid, we may be enjoined from pursing research, development, or commercialization of products, or be required to obtain licenses to these patents, or to develop or obtain alternative technologies.

If a third-party asserts that we infringe upon its patents or other proprietary rights, we could face a number of issues that could seriously harm our competitive position, including:

•
infringement and other intellectual property claims, which could be costly and time consuming to litigate, whether or not the claims have merit, and which could delay getting our products to market and divert management attention from our business;

•
substantial damages for past infringement, which we may have to pay if a court determines that our product candidates or technologies infringe a third party's patent or other proprietary rights;

•
a court prohibiting us from selling or licensing our technologies or future products unless the holder licenses the patent or other proprietary rights to us, which it is not required to do; and

•
if a license is available from a third party, such third party may require us to pay substantial royalties or grant cross licenses to our patents or proprietary rights.

The industries in which we operate, and the biotechnology industry in particular, are characterized by frequent and extensive litigation regarding patents and other intellectual property rights. Many biotechnology companies have employed intellectual property litigation as a way to gain a competitive advantage. If any of our competitors have filed patent applications or obtained patents that claim inventions also claimed by us, we may have to participate in interference proceedings declared by the relevant patent regulatory agency to determine priority of invention and, thus, the right to the patents for these inventions in the U.S. These proceedings could result in substantial cost to us even if the outcome is favorable. Even if successful, an interference proceeding may result in loss of certain claims. Our involvement in litigation, interferences, opposition proceedings or other intellectual property proceedings inside and outside of the U.S., to defend our intellectual property rights or as a result of alleged infringement of the rights of others, may divert management time from focusing on business operations and could cause us to spend significant resources, all of which could harm our business and results of operations.

Many of our employees were previously employed at universities, biotechnology, specialty chemical or oil companies, including our competitors or potential competitors. We may be subject to claims that these employees or we have inadvertently or otherwise used or disclosed trade secrets or other proprietary information of their former employers. Litigation may be necessary to defend against these claims. If we fail in defending such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel and be enjoined from certain activities. A loss of key research personnel or their work product could hamper or prevent our ability to commercialize our product candidates, which could severely harm our business. Even if we are successful in defending against these claims, litigation could result in substantial costs and demand on management resources.

We may need to commence litigation to enforce our intellectual property rights, which would divert resources and management's time and attention and the results of which would be uncertain.

Enforcement of claims that a third party is using our proprietary rights without permission is expensive, time consuming and uncertain. Significant litigation would result in substantial costs, even if the eventual outcome is favorable to us and would divert management's attention from our business objectives. In addition, an adverse outcome in litigation could result in a substantial loss of our proprietary rights and we may lose our ability to exclude others from practicing our technology or producing our product candidates.

The laws of some foreign countries do not protect intellectual property rights to the same extent as do the laws of the U.S. Many companies have encountered significant problems in protecting and defending intellectual property rights in certain foreign jurisdictions. The legal systems of certain countries, particularly certain developing countries, do not favor the enforcement of patents and other intellectual property protection, particularly those relating to biotechnology and/or bioindustrial technologies. This could make it difficult for us to stop the infringement of our patents or misappropriation of our other intellectual property

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rights. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and divert our efforts and attention from other aspects of our business. Moreover, our efforts to protect our intellectual property rights in such countries may be inadequate.

Our products subject us to product-safety risks, and we may be sued for product liability.

The design, development, production and sale of our products involve an inherent risk of product liability claims and the associated adverse publicity. Our potential products could be used by a wide variety of consumers with varying levels of sophistication. Although safety is a priority for us, we are not always in control of the final uses and formulations of the products we supply or their use as ingredients. Our products could have detrimental impacts or adverse impacts we cannot anticipate. Despite our efforts, negative publicity about Amyris, including product safety or similar concerns, whether real or perceived, could occur, and our products could face withdrawal, recall or other quality issues. In addition, we may be named directly in product liability suits relating to our products, even for defects resulting from errors of our commercial partners, contract manufacturers or chemical finishers. These claims could be brought by various parties, including customers who are purchasing products directly from us or other users who purchase products from our customers. We could also be named as co-parties in product liability suits that are brought against the contract manufacturers or Brazilian sugar and ethanol mills with whom we partner to produce our products. Insurance coverage is expensive, may be difficult to obtain and may not be available in the future on acceptable terms. We cannot be certain that our contract manufacturers or the sugar and ethanol producers who partner with us to produce our products will have adequate insurance coverage to cover against potential claims. Any insurance we do maintain may not provide adequate coverage against potential losses, and if claims or losses exceed our liability insurance coverage, our business would be adversely impacted. In addition, insurance coverage may become more expensive, which would harm our results of operations.

During the ordinary course of business, we may become subject to lawsuits or indemnity claims, which could materially and adversely affect our business and results of operations.

From time to time, we may in the ordinary course of business be named as a defendant in lawsuits, claims and other legal proceedings. These actions may seek, among other things, compensation for alleged personal injury, worker's compensation, employment discrimination, breach of contract, property damages, civil penalties and other losses of injunctive or declaratory relief. In the event that such actions or indemnities are ultimately resolved unfavorably at amounts exceeding our accrued liability, or at material amounts, the outcome could materially and adversely affect our reputation, business and results of operations. In addition, payments of significant amounts, even if reserved, could adversely affect our liquidity position.

If we fail to maintain an effective system of internal controls, we might not be able to report our financial results accurately or prevent fraud; in that case, our stockholders could lose confidence in our financial reporting, which would harm our business and could negatively impact the price of our stock.

Effective internal controls are necessary for us to provide reliable financial reports and prevent fraud. In addition, Section 404 of the Sarbanes-Oxley Act of 2002 requires us and our independent registered public accounting firm to evaluate and report on our internal control over financial reporting. The process of implementing our internal controls and complying with Section 404 is expensive and time consuming, and requires significant attention of management. We cannot be certain that these measures will ensure that we maintain adequate controls over our financial processes and reporting in the future. In addition, to the extent we create joint ventures or have any variable interest entities and the financial statements of such entities are not prepared by us, we will not have direct control over their financial statement preparation. As a result, we will, for our financial reporting, depend on what these entities report to us, which could result in us adding monitoring and audit processes and increase the difficulty of implementing and maintaining adequate controls over our financial processes and reporting in the future. This may be particularly true where we are establishing such entities with commercial partners that do not have sophisticated financial accounting processes in place, or where we are entering into new relationships at a rapid pace, straining our integration capacity. Additionally, if we do not receive the information from the joint venture or variable interest entity on a timely basis, this could cause delays in our external reporting. Even if we conclude, and our independent registered public accounting firm concurs, that our internal control over financial reporting provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, because of its inherent limitations, internal control over financial reporting may not prevent or detect fraud or misstatements. Failure to implement required new or improved controls, or difficulties encountered in their implementation, could harm our results of operations or cause us to fail to meet our reporting obligations. If we or our independent registered public accounting firm discover a material weakness, the disclosure of that fact, even if quickly remedied, could reduce the market's confidence in our financial statements and harm our stock price. In addition, failure to comply with Section 404 could subject us to a variety of administrative sanctions, including SEC action, ineligibility for short form resale registration, the suspension or delisting of our common stock from the stock exchange on which it is listed, and the inability of registered broker-dealers to make a market in our common stock, which would further reduce our stock price and could harm our business.

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If the value of our goodwill or other intangible assets becomes impaired, it could materially reduce the value of our assets and reduce our net income for the year in which the related impairment charges occur.

We apply the applicable accounting principles set forth in the U.S. Financial Accounting Standards Board's Accounting Standards Codification to our intangible assets (including goodwill), which prohibits the amortization of intangible assets with indefinite useful lives and requires that these assets be reviewed for impairment at least annually. There are several methods that can be used to determine the estimated fair value of the in-process research and development acquired in a business combination. We have used the “income method,” which applies a probability weighting that considers the risk of development and commercialization, to the estimated future net cash flows that are derived from projected sales revenues and estimated costs. These projections are based on factors such as relevant market size, pricing of similar products, and expected industry trends. The estimated future net cash flows are then discounted to the present value using an appropriate discount rate. These assets are treated as indefinite-lived intangible assets until completion or abandonment of the projects, at which time the assets will be amortized over the remaining useful life or written off, as appropriate. If the carrying amount of the assets is greater than the measures of fair value, impairment is considered to have occurred and a write-down of the asset is recorded. Any finding that the value of our intangible assets has been impaired would require us to write-down the impaired portion, which could reduce the value of our assets and reduce our net income for the year in which the related impairment charges occur.  As of March 31, 2013, we had a net carrying value of approximately $9.1 million of in-process research and development and goodwill associated with our acquisition of Draths Corporation.

Our ability to use our net operating loss carryforwards to offset future taxable income may be subject to certain limitations.

In general, under Section 382 of the Internal Revenue Code, or Code, a corporation that undergoes an “ownership change” is subject to limitations on its ability to utilize its pre-change net operating loss carryforwards, or NOLs, to offset future taxable income. If the Internal Revenue Service challenges our analysis that our existing NOLs are not subject to limitations arising from previous ownership changes, or if we undergo an ownership change, our ability to utilize NOLs could be limited by Section 382 of the Code. Future changes in our stock ownership, some of which are outside of our control, could result in an ownership change under Section 382 of the Code. Furthermore, our ability to utilize NOLs of companies that we may acquire in the future may be subject to limitations. For these reasons, we may not be able to utilize a material portion of our NOLs carryforward, even if we attain profitability.

Loss of government contract revenues could impair our research and development efforts.

In 2010, we were awarded an “Integrated Bio-Refinery” grant from the U.S. Department of Energy, or DOE. The terms of this grant make funds available to us to leverage and expand our existing Emeryville, California, pilot plant and support laboratories to develop U.S.-based production capabilities for renewable fuels and chemicals derived from sweet sorghum. In 2012, we entered into a Technology Investment Agreement with The Defense Advanced Research Projects Agency (DARPA), under which we are performing certain research and development activities funded in part by DARPA. Generally, these agreements have fixed terms and may be terminated, modified or recovered by the government agency under certain conditions (such as failure to comply with detailed reporting and governance processes or failure to achieve milestones). Under these agreements, we are also subject to audits, which can result in corrective action plans and penalties up to and including termination. If the DOE or DARPA terminate their agreements with us, in addition to reducing our revenues, our U.S.-based research and development activities could be impaired, which would harm our business.

Our headquarters and other facilities are located in an active earthquake zone, and an earthquake or other types of natural disasters affecting us or our suppliers could cause resource shortages and disrupt and harm our results of operations.

We conduct our primary research and development operations in the San Francisco Bay Area in an active earthquake zone, and certain of our suppliers conduct their operations in the same region or in other locations that are susceptible to natural disasters. In addition, California and some of the locations where certain of our suppliers are located have experienced shortages of water, electric power and natural gas from time to time. The occurrence of a natural disaster, such as an earthquake, drought or flood, or localized extended outages of critical utilities or transportation systems, or any critical resource shortages, affecting us or our suppliers could cause a significant interruption in our business, damage or destroy our facilities, production equipment or inventory or those of our suppliers and cause us to incur significant costs or result in limitations on the availability of our raw materials, any of which could harm our business, financial condition and results of operations. The insurance we maintain against fires, earthquakes and other natural disasters may not be adequate to cover our losses in any particular case.


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Risks Related to Ownership of Our Common Stock

Our stock price may be volatile.

The market price of our common stock has been, and we expect it to continue to be, subject to significant volatility, and it has declined significantly from our initial public offering price. As of April 30, 2013, the reported closing price for our common stock on the NASDAQ Global Select Market was $2.72 per share. Market prices for securities of early stage companies have historically been particularly volatile. Such fluctuations could be in response to, among other things, the factors described in this “Risk Factors” section or elsewhere in this report, or other factors, some of which are beyond our control, such as:

•
fluctuations in our financial results or outlook or those of companies perceived to be similar to us;

•
changes in estimates of our financial results or recommendations by securities analysts;

•
changes in market valuations of similar companies;

•
changes in the prices of commodities associated with our business such as sugar, ethanol and petroleum;

•
changes in our capital structure, such as future issuances of securities or the incurrence of debt;

•
announcements by us or our competitors of significant contracts, acquisitions or strategic alliances;

•
regulatory developments in the U.S., Brazil, and/or other foreign countries;

•
litigation involving us, our general industry or both;

•
additions or departures of key personnel;

•
investors' general perception of us; and

•
changes in general economic, industry and market conditions.

Furthermore, stock markets have experienced price and volume fluctuations that have affected, and continue to affect, the market prices of equity securities of many companies. These fluctuations often have been unrelated or disproportionate to the operating performance of those companies. These broad market fluctuations, as well as general economic, political and market conditions, such as recessions, interest rate changes and international currency fluctuations, may negatively affect the market price of our common stock.

In the past, many companies that have experienced volatility and sustained declines in the market price of their stock have become subject to securities class action litigation. We may be the target of this type of litigation in the future. Securities litigation against us could result in substantial costs and divert our management's attention from other business concerns, which could seriously harm our business.

The concentration of our capital stock ownership with insiders will limit your ability to influence corporate matters.

As of April 30, 2013:

•
our executive officers and directors and their affiliates (including Total) together held approximately 37.7% of our outstanding common stock;

•
Total held approximately 18.0% of our outstanding common stock; and

•
our next two largest holders of outstanding common stock after Total (Maxwell Mauritius Pte. Ltd. and Biolding Investment SA, each of whom has a designee on our Board of Directors) together held approximately 23.6% of our outstanding common stock.

This significant concentration of share ownership may adversely affect the trading price for our common stock because investors often perceive disadvantages in owning stock in companies with controlling stockholders. Also, these stockholders, acting together, will be able to control our management and affairs and matters requiring stockholder approval, including the

66


election of directors and the approval of significant corporate transactions, such as mergers, consolidations or the sale of substantially all of our assets. Consequently, this concentration of ownership may have the effect of delaying or preventing a change of control, including a merger, consolidation or other business combination involving us, or discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control, even if that change of control would benefit our other stockholders.

If securities or industry analysts do not publish or cease publishing research or reports about us, our business or our market, or if they change their recommendations regarding our stock adversely, our stock price and trading volume could decline.

The trading market for our common stock will be influenced by the research and reports that industry or securities analysts may publish about us, our business, our market or our competitors. If any of the analysts who cover us change their recommendation regarding our stock adversely, or provide more favorable relative recommendations about our competitors, our stock price would likely decline. If any analyst who may cover us were to cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline.

We do not expect to declare any dividends in the foreseeable future.

We do not anticipate declaring any cash dividends to holders of our common stock in the foreseeable future. In addition, certain of our equipment leases and credit facilities currently restrict our ability to pay dividends. Consequently, investors may need to rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investment. Investors seeking cash dividends should not purchase our common stock.

Anti-takeover provisions contained in our certificate of incorporation and bylaws, as well as provisions of Delaware law, could impair a takeover attempt.

Our certificate of incorporation and bylaws contain provisions that could delay or prevent a change in control of our company. These provisions could also make it more difficult for stockholders to elect directors and take other corporate actions. These provisions include:

•
staggered board of directors;

•
authorizing the board to issue, without stockholder approval, preferred stock with rights senior to those of our common stock;

•
authorizing the board to amend our bylaws and to fill board vacancies until the next annual meeting of the stockholders;

•
prohibiting stockholder action by written consent;

•
limiting the liability of, and providing indemnification to, our directors and officers;

•
eliminating the ability of our stockholders to call special meetings; and

•
requiring advance notification of stockholder nominations and proposals. 

Section 203 of the Delaware General Corporation Law prohibits, subject to some exceptions, “business combinations” between a Delaware corporation and an “interested stockholder,” which is generally defined as a stockholder who becomes a beneficial owner of 15% or more of a Delaware corporation's voting stock, for a three-year period following the date that the stockholder became an interested stockholder. We have agreed to opt out of Section 203 through our certificate of incorporation, but our certificate of incorporation contains substantially similar protections to our company and stockholders as those afforded under Section 203, except that we have agreed with Total that it and its affiliates will not be deemed to be “interested stockholders” under such protections.
 

In addition, we have an agreement with Total, which provides that, so long as Total holds at least 10% of our voting securities, we must inform Total of any offer to acquire us or any decision of our Board of Directors to sell our company, and we must provide Total with information about the contemplated transaction. In such events, Total will have an exclusive negotiating period of fifteen business days in the event the Board of Directors authorizes us to solicit offers to buy Amyris, or five business days in the event that we receive an unsolicited offer to purchase us. This exclusive negotiation period will be followed by an additional restricted negotiation period of ten business days, during which we are obligated to continue to negotiate with Total and will be prohibited from entering into an agreement with any other potential acquirer.

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These and other provisions in our amended and restated certificate of incorporation and our amended and restated bylaws that became effective upon the completion of our initial public offering under Delaware law and in our agreement with Total could discourage potential takeover attempts, reduce the price that investors might be willing to pay in the future for shares of our common stock and result in the market price of our common stock being lower than it would be without these provisions.

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Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

(a) Recent Sales of Unregistered Securities
                                                                                                                                                                                    
On December 24, 2012, we sold 14,177,849 shares common stock at a price of $2.98 per share for aggregate cash proceeds of $37.2 million and cancellation of $5.0 million of an outstanding senior unsecured convertible promissory notes we previously issued to Total. The cash settlement with respect to 5,033,557 of such shares occurred on January 14, 2013.

On March 27, 2013 , we sold 1,533,742 shares of our common stock at a price of $3.26 per share for aggregate proceeds of $5.0 million .

No underwriters were involved in the foregoing sales of securities. These securities were issued in private transactions pursuant to Section 4(2) of the Securities Act. The recipients of these securities acquired the securities for investment purposes only and without intent to resell, were able to fend for themselves in these transactions, and were accredited investors as defined in Rule 501 of Regulation D promulgated under Section 3(b) of the Securities Act, and appropriate restrictions were set out in the agreements for, and stock certificates issued in, these transactions. These security holders had adequate access, through their relationships with us, to information about us.

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ITEM 3. DEFAULTS UPON SENIOR SECURITIES

Not applicable.



ITEM 4. MINE SAFETY DISCLOSURES

Not applicable.


ITEM 5. OTHER INFORMATION

Not applicable.


ITEM 6 . EXHIBITS

The exhibits listed in Exhibit Index immediately preceding the exhibits are filed (other than exhibits 32.01, 32.02 and 101) as part of this Quarterly Report on Form 10-Q and such Exhibit Index is incorporated herein by reference.


SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
 
 
AMYRIS, INC.
 
 
 
 
Dated:
May 8, 2013
By:
/ S /    J OHN  G. M ELO
 
 
 
John G. Melo
President and Chief Executive Officer
(Principal Executive Officer)
 
 
 
 
Dated:
May 8, 2013
By:
/ S /   STEVEN R. MILLS
 
 
 
STEVEN R. MILLS
Chief Financial Officer
(Principal Financial and Accounting Officer)

 






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EXHIBIT INDEX

Exhibit
Index
 
 
 
Previously Filed
 
Filed
Herewith
Description
 
Form
  
File No.
 
Filing Date
  
Exhibit
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.01
 
Restated Certificate of Incorporation
 
10-Q
 
001-34885
 
November 10, 2010
 
3.01
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.02
 
Restated Bylaws
 
10-Q
 
001-34885
 
November 10, 2010
 
3.02
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
4.01
 
Securities Purchase Agreement, dated March 27, 2013, between registrant and Biolding SA
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
4.02
 
Amendment No. 3 to Amended and Restated Investors' Rights Agreement, dated March 27, 2013, among registrant and registrant's security holders named therein
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.01
 
Modification No. 9, dated January 9, 2013, to Assistance Agreement between registrant and the U.S. Department of Energy
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.02 a
 
Master Collaboration Agreement, dated March 13, 2013, between registrant and Firmenich SA
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.03
 
Letter agreement, dated March 24, 2013, between registrant and Total Gas & Power USA, SAS
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.04
 
Amended and Restated Operating Agreement, dated March 26, 2013, among registrant, Cosan US, Inc. and Novvi LLC.
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.05
 
Termination of the Joint Venture Implementation Agreement, dated March 26, 2013, among registrant, Amyris Brasil Ltda., Cosan Lubrificantes e Especialidades S.A. and Cosan S.A. Indústria E Comércio
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.06
 
IP License Agreement, dated as of March 26, 2013, between registrant and Novvi LLC
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.07 b
 
Offer letter, dated March 30, 2011, between registrant and Gary Loeb
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.08 b
 
Amendment to offer letter, dated May 31 2012, between registrant and Gary Loeb
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
10.09 b
 
Offer letter, dated July 29, 2010, between registrant and Mark Patel
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 

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31.01
 
Certification of Chief Executive Officer pursuant to Securities Exchange Act Rules 13a-14(c) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
31.02
 
Certification of Chief Financial Officer pursuant to Securities Exchange Act Rules 13a-14(c) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
32.01 c
 
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
32.02 c
 
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
101 d
 
The following materials from registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2013, formatted in XBRL (Extensible Business Reporting Language): (i) the Condensed Consolidated Statements of Operations; (ii) the Condensed Consolidated Balance Sheets; (iii) the Condensed Consolidated Statements of Comprehensive Loss; (iv) the Condensed Consolidated Statements of Stockholders' Equity; (v) the Condensed Consolidated Statements of Cash Flows; and (vi) Notes to Unaudited Condensed Consolidated Financial Statements
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 

a.
Portions of this exhibit have been omitted pending a determination by the Securities and Exchange Commission as to whether these portions should be granted confidential treatment.
b.
Indicates management contract or compensatory plan or arrangement.
c.
This certification shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that Section, nor shall it be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended or the Exchange Act.
d.
Pursuant to applicable securities laws and regulations, registrant is deemed to have complied with the reporting obligation relating to the submission of interactive data files in such exhibits and is not subject to liability under any anti-fraud provisions of the federal securities laws as long as registrant has made a good faith attempt to comply with the submission requirements and promptly amends the interactive data files after becoming aware that the interactive data files fails to comply with the submission requirements. These interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of sections 11 or 12 of the Securities Act, are deemed not filed for purposes of section 18 of the Exchange Act and otherwise are not subject to liability under these sections.


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SECURITIES PURCHASE AGREEMENT

This SECURITIES PURCHASE AGREEMENT (this “ Agreement ”) is made and entered into as of March 27, 2013, 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

The Purchasers desire to purchase, and the Company desires to offer and sell to the Purchasers, shares of the Company's common stock, par value $0.0001 per share (“ Common Stock ”).

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 of Common Stock set forth next to such Purchaser's name on Schedule I hereto (such shares, the “ Shares ”) at a price of U.S. $3.26 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 March 31, 2013 (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. 3 to Amended and Restated Investors' Rights Agreement in the form attached hereto as Exhibit A (the “ Rights Agreement Amendment ”) and the other documents referenced in Article 6 . At the Closing, each Purchaser (a) shall pay the Company the applicable Total Purchase Price in immediately available funds or (b) if applicable, shall (i) initiate irrevocable payment instructions to its paying bank to make the payment (an “ Irrevocable Payment Instruction ”) to the Company of the applicable Total Purchase Price in immediately available funds and (ii) deliver to the Company confirmation that such Purchaser has made an Irrevocable Payment Instruction, such confirmation to either be in the form of (A) a federal reference number or other similar written evidence that a wire has been initiated, or (B) a

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side letter in the form attached hereto as Schedule 2.2 . At the Closing, or, if applicable, upon receipt of the applicable Total Purchase Price from a Purchaser who makes an Irrevocable Payment Instruction at the Closing, the Company shall deliver to each Purchaser a single stock certificate representing the number of Shares purchased by such Purchaser, or deliver irrevocable instructions to the Company's transfer agent to deliver such certificate to a Purchaser who has delivered an Irrevocable Payment Instruction upon the Company's receipt of the Total Purchase Price from 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 set forth next to such Purchaser's name on Schedule I hereto, 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.

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, 2011 and, except as Previously Disclosed (as defined in Section 3.9) 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,

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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 Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement, 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 the Transaction Agreements constitute the 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 each of the representations and warranties of each Purchaser in Article 4 of this Agreement, 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 Shares 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 Shares.

3.6.     Non-Contravention . The execution and delivery of the Transaction Agreements, the issuance, sale and delivery of the Shares 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,

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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. 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.     No Registration . Assuming the accuracy of each of the representations and warranties of each Purchaser herein, the issuance by the Company of the Shares is exempt from registration under the Securities Act of 1933, as amended (the “ Securities Act ”).

3.9.     Reporting Status . The Company is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and 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 U.S. Securities and Exchange Commission (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 (i) the SEC Documents filed with the SEC on or after November 9, 2012 but prior to the date hereof, and (ii) the Company's

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Annual Report on Form 10-K for the year ended December 31, 2012 in the form previously provided to the Board of Directors (in each case, 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).    

3.10.     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.

3.11.     Capitalization . Immediately prior to the Closing, the authorized capital stock of the Company consists of (a) 100,000,000 shares of Common Stock, $0.0001 par value per share, 73,876,289 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.

3.12.     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

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governmental agency or body that might have, individually or in the aggregate, a Material Adverse Effect.

3.13.     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.

3.14.     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,

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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.

3.15.     Listing Compliance . The Company is in compliance with the requirements of The NASDAQ Stock Market LLC (“ The NASDAQ Stock Market ”) 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 Shares, including the filing of any listing notice with respect to the issuance of the Shares.

3.16.     Intellectual Property .

(a)    The 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 (i) 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, (ii) 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

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violate, infringe or misappropriate any of the Intellectual Property of any other Person, and (iii) 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.


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3.17.     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.

3.18.     Accountants . PricewaterhouseCoopers LLP, which will express 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, 2012, 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).

3.19.     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.

3.20.     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.


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3.21.     No Material Adverse Change . Except as set forth in the SEC Documents filed with the SEC on or after November 9, 2012 but prior to the date hereof, since November 9, 2012:

(a)     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,

(b)     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,

(c)     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,

(d)    the Company has not altered its method of accounting or the identity of its auditors, except as Previously Disclosed,

(e)    the Company has not issued any equity securities except pursuant to the Company's existing stock based plans or as otherwise Previously Disclosed; and

(f)    there has not been any loss or damage (whether or not insured) to the physical property of the Company or any of its subsidiaries.

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.

3.22.     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.

3.23.     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.

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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.

3.24.     Properties . 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.

3.25.     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

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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.

3.26.     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.

3.27.     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).

3.28.     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.

3.29.     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.

3.30     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

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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.

3.31.     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.

3.32.     Employee Relations . 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.

3.33.     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

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(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.

3.34.     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 .

3.35.     Integration; Other Issuances of Shares . 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 of the Shares 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 Shares under the Securities Act or cause the offering of the Shares to be integrated with other offerings if any such integration would cause the issuance of the Shares hereunder to fail to be exempt from registration under the Securities Act as provided in Section 3.8 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 for resale by the Purchasers using Form S-3 promulgated under the Securities Act.

3.36.     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 Shares by any form of general solicitation or general advertising.

3.37.     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.

3.38.     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

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listed on Exhibits A through G thereof, as amended by Amendment No. 1 to Amended and Restated Investors' Rights Agreement dated February 23, 2012, as further amended by Amendment No. 2 to Amended and Restated Investors' Rights Agreement dated December 24, 2012, and as further amended by 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; and (iii) the Registration Rights Agreement, dated July 30, 2012, by and between the Company and Total Gas & Power USA, SAS, 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.

3.39.     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 Shares and the Purchasers' ownership of the Shares.

3.40.     Disclosure . The Company understands and confirms that the Purchasers will rely on the foregoing representations in effecting transactions in the Shares. 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 no Purchasers make or have made any representations or warranties with respect to the transactions contemplated hereby other than those set forth in Article 4 hereto. Other than (a) side letters contemplated by Section 2.2 hereof, (b) that certain letter agreement dated December 24, 2012 by and among the Company and Biolding Investment SA and (c) letter agreements regarding waivers of rights entered into by the Company and certain of its stockholders on December 24, 2012, the Company has not entered into any letter agreement with a Purchaser hereunder in connection with the transactions contemplated hereby.

3.41.     Milestones . The Company confirms that the Milestone (as such term is defined in the side letter dated February 23, 2012 by and among the Company and the investors listed on Schedule A thereto (the “ Side Letter ”)) has been completed in accordance with the terms and conditions set forth in the Side Letter.

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.


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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 (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 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 Shares 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 Shares. The Purchaser understands that the Shares 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 Shares. The Purchaser has not been offered the opportunity to purchase the Shares by means of any general solicitation or general advertising.

4.8.     Risk of Investment . The Purchaser realizes that the purchase of the Shares 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 Shares. 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.


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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 Shares 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 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 Shares 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 Shares 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 agrees to furnish any additional information that the Company deems reasonably necessary in order to verify such Purchaser's status as an “accredited investors.”


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ARTICLE 5
CONDITIONS TO COMPANY'S OBLIGATIONS AT THE 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 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 (or confirmation that an Irrevocable Payment Instruction has been made with respect to such 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 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.

(c)      Receipt of Executed Documents . Such Purchaser shall have duly executed and delivered to the Company this Agreement and the Rights Agreement Amendment.

ARTICLE 6
CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE 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)      Delivery . The Company shall have complied with its obligations set forth under Section 2.2 to (i) provide, with respect to each Purchaser, a single stock certificate for each Purchaser representing the number of Shares purchased by such Purchaser, or (ii) to have instructed the transfer agent to deliver such certificate upon the receipt of the Total Purchase Price from a Purchaser that has delivered an Irrevocable Payment Instruction and to have provided such Purchaser a portable document format (pdf) copy of the stock certificate at the time of the Closing; provided that such pdf copy of the stock certificate will be held by such Purchaser in escrow until the Company has been notified by its bank that it has received by wire transfer such Purchaser's applicable Total Purchase Price.

(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 Closing.

(c)     Receipt of Rights Agreement Amendment . The Company shall have executed and delivered to each Purchaser the Rights Agreement Amendment.

(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 B hereto.

(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 (i) the

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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, (ii) the Company has satisfied in all material respects all of the conditions set forth in this Agreement and (iii) the Company has completed the Milestone in accordance with the terms and conditions of the Side Letter.

(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, 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.

(h)     Board Approval . The terms and conditions of the issuance of the Shares 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.

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.

7.2.     Form D . The Company agrees to timely file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser (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 Purchasers to, no later than three trading days following the delivery by the Purchaser to the Company of a legended certificate representing Shares (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 Shares 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 Shares

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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 Shares or to the Purchaser, as applicable, a new stock certificate representing such Shares 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 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.     Use of Proceeds . The Company agrees to use the proceeds of the offering for bona fide general corporate purposes and to provide working capital.

7.5.     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 Shares in a manner that would require the registration under the Securities Act of the sale of the Shares to the Purchasers, or that will be integrated with the offer or sale of the Shares 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.

7.6.     Listing . The Company shall promptly take any action required to maintain the listing of all of the 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 Shares 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.

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 Shares.

8.2.     Indemnification .

    

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(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

21


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: Dan Winnike, 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

22


(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

23


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,

24


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.

25


The decision of each Purchaser to purchase Shares 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 repre-sentation (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]

26


This Securities Purchase Agreement is hereby confirmed and accepted by the Company as of March 27, 2013.

AMYRIS, INC.

By: /s/ John Melo            
Name: John Melo
Title: President and CEO


PURCHASERS:
U.S. $4,999,998.92
Total Purchase Price
(U.S. $3.26 per Share)
Number of Shares: 1,533,742

BIOLDING INVESTMENT SA

By:                     
(signature)

Name:                     
(printed name)

Title: Managing Member

Address:                 
                
                    

Facsimile No:                 
E-mail Address:             



This Securities Purchase Agreement is hereby confirmed and accepted by the Company as of March 27, 2013.

AMYRIS, INC.

By:                     
Name: John Melo
Title: President and CEO


PURCHASERS:
U.S. $4,999,998.92
Total Purchase Price
(U.S. $3.26 per Share)
Number of Shares: 1,533,742

BIOLDING INVESTMENT SA

By: /s/ Sheikh Abdullah bin Khalifa Al Thani
(signature)

Name:                     
(printed name)

Title: Managing Member

Address: 11 A Boulevard Prince Henri    
L-1724 Luxembourg            
                        

Facsimile No: illegible            
E-mail Address: illegible            




Schedule I

Schedule of Purchasers

Purchaser
Shares Purchased
Total Purchase Price
Biolding Investment SA
1,533,742

$
4,999,998.92

 
 
 
TOTAL
1,533,742

$
4,999,998.92






Schedule 2.2

Form of Side Letter




March 27, 2013

Biolding Investment SA
11A Boulevard Prince Henri
L 1724 Luxembourg
Attn: HH Sheikh Abdullah bin Khalifa Al Thani and M. Jean Paul Soulié

Dear Investor:
Effective today, Amyris, Inc. (the “ Company ”) is selling shares of the Company's Common Stock pursuant to that certain Securities Purchase Agreement dated as of March 27, 2013 (the “ SPA ”) among the Company, Biolding Investment SA ( “ Investor ”) and the other Purchasers, if any, named therein. In connection therewith, the Company and Investor are entering into this letter agreement (this “ Letter Agreement ”). Capitalized terms used herein and not otherwise defined shall have the meaning given to such terms in the SPA.
The Company and Investor agree to the following:
1.     Irrevocable Payment Instruction . Investor hereby acknowledges and agrees that the Investor has given its payment instructions to its paying bank to make payment to the Company of the Investor's applicable Total Purchase Price pursuant to the SPA and will not revoke such payment instructions.
2.     Stock Certificate . The Company hereby acknowledges and agrees that (i) the Company has instructed its transfer agent to issue to the Investor a single stock certificate representing the number of Shares purchased by Investor pursuant to the SPA (“ Investor's Stock Certificate ”) on March 27, 2013, of which a PDF copy will be delivered to the Company on March 29, 2013; (ii) the Company has instructed its transfer agent to deliver to Investor the Investor's Stock Certificate immediately upon the Company's confirmation to the transfer agent that it has received in its bank account the applicable Total Purchase Price from Investor, (iii) the Company will not revoke the instructions referenced in clause (ii) of this paragraph, and (iv) the Company will immediately notify its transfer agent once the Company has been notified by its bank that it has received by wire transfer Investor's applicable Total Purchase Price.
2.     Amendment and Waiver . No amendment, modification, termination or cancellation of this Letter Agreement shall be effective unless it is in writing signed by the Company and Investor. No waiver of any of the provisions of this Letter Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
3.     Entire Agreement . This Letter Agreement, the SPA and the other documents referenced therein, set forth the entire understanding between the parties hereto relating to the subject matter hereof and supersede and merge all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof between the Company and Investor.
4.     Notices . All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally or by commercial messenger or courier service to the parties at the following addresses (or at such other address for a party as shall be specified



by like notice) or when sent by facsimile transmission or email to the facsimile number or email address specified below (or such other facsimile number or email as shall be specified by like notice), upon machine or electronic confirmation of receipt:

(a)
if to the Company, to:
Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, CA 94608
Attention: General Counsel
Facsimile:
Email:

(b)
if to Investor, to:
Biolding Investment SA
11A Boulevard prince Henri
L 1724 Luxembourg
Attention:
Facsimile:

5.     Governing Law . 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 Delaware without giving effect to its conflict of law provisions.

6.     Counterparts . This Letter Agreement may be executed in one or more counterparts, which shall together constitute one agreement.

Please indicate your agreement to the terms of this Letter Agreement by executing the acknowledgement and agreement below and returning a copy to the attention of Tamara Tompkins, our General Counsel.
[Remainder of Page Intentionally Left Blank]



Very truly yours,

AMYRIS, INC.

                    
Name: John G. Melo
Title : President and Chief Executive Officer


Acknowledged and Agreed as
of the date first written above:

INVESTOR

BIOLDING INVESTMENT SA

By :                     
Name:                     
Title:                     




























[Signature Page to Letter Agreement]



Exhibit A

RIGHTS AGREEMENT AMENDMENT

(see Exhibit 4.03 Quarterly Report on Form 10-Q for the Quarter Ended March 31, 2013
as filed on May 2013)




Exhibit B

OPINION OF COMPANY COUNSEL




March 27, 2013


To the Purchasers 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 1,533,742 shares of the Company's Common Stock (the “ Shares ”) pursuant to the Securities Purchase Agreement, dated as of March 27, 2013 (the “ Purchase Agreement ”), among the Company and the parties whose names appear on the signature pages thereto (the “ Purchasers ”), and the execution and delivery by the Company of the Amendment No. 3 to the Existing Rights Agreement dated as of March 27, 2013 (“ Amendment No. 3 ,” and the Existing Rights Agreement, as amended by Amendment No. 3, the “ Rights Agreement ”). 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 Shares pursuant to the Purchase Agreement. The Purchase Agreement and Amendment No. 3 are referred to in this letter together as the “ Transaction Documents . ” Unless defined herein, capitalized terms used in this letter (which includes Exhibit A hereto and the defined terms set forth therein) have the same meaning given to such terms in the Purchase Agreement.

We have examined such matters of law as we have considered necessary for the purpose of rendering our opinions expressed in this letter. As to matters of fact relevant to the opinions expressed in this letter, 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 an Opinion Certificate of the Company addressed to us and dated March 27, 2013 (the “ Opinion Certificate ”). In addition, we have examined originals or copies of those documents, corporate records and other writings that are listed in Exhibit A attached hereto (the “ Reviewed Documents ”) and have not conducted any other factual examination except for our review of the Reviewed Documents.

In our examination of any documents, corporate records or other writings, and in rendering our opinions expressed in this letter and in providing the confirmation following our opinions, we have assumed, and have not independently verified, and express no opinion with respect to, any of the following matters:

•
the genuineness and authenticity of all signatures on documents, the authenticity and completeness of all documents submitted to us as originals and that all documents submitted to us as copies or facsimiles are complete and accurate copies of, and fully conform to, the originals;

•
the absence of any undisclosed termination, modification, waiver or amendment of, any document reviewed by us;




To the Purchasers of Common
Stock of Amyris, Inc. on the Date Hereof
Page 2

•
that absence of any extrinsic agreements or understandings among the parties to the Transaction Documents, or among the parties to any Reviewed Contract, or among any parties or signatories to any other document reviewed by us, that could supplement, modify, alter or affect the interpretation, substance or meaning of the terms of the Transaction Documents or any of the Reviewed Contracts or any Reviewed Documents or the respective rights or obligations of the parties thereto;

•
other than the Company with respect to the Transaction Documents: (i) each entity who executed, entered into or delivered any Transaction Document or any other document had all requisite corporate or other entity power and authority to do so, and has timely and validly taken all actions, and obtained all authorizations and approvals, necessary to validly authorize it to do so and to perform its obligations thereunder; and (ii) each party or signatory to any Transaction Document or any other document has duly executed and delivered such Transaction Document or other document and has fully performed all of such party's or signatory's obligations thereunder that are to be performed by such party or signatory at or before the Closing;

•
each individual who executed, entered into, or delivered any Transaction Document or any other document on his or her own behalf (and not on behalf of the Company), was not at the relevant time a minor and had all legal competency and capacity necessary to lawfully and validly do so and to perform his or her obligations thereunder;

•
each of the Transaction Documents is duly enforceable in accordance with its respective terms against, and constitute s the legal, valid and binding obligation of, each party or signatory to such Transaction Document (other than the Company);

•
the representations and warranties of the Purchasers set forth in the Transaction Documents are accurate and complete and not misleading in any respect;

•
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 any of the Transaction Documents; and

•
any wire transfers, drafts or checks or other consideration tendered by the Purchasers as payment for the Shares has been delivered to the Company in full as provided in the Purchase Agreement at the Closing and will be honored.

Notwithstanding the examination described above, the expressions “ to our knowledge ,” “ known to us ,” “ our actual knowledge ,” “ we are aware ” or words of similar import when used in this opinion letter with respect to any matter or statement, refer to the current actual knowledge of attorneys within this law firm who have rendered legal services to the Company in connection with the negotiation and preparation of the Transaction Documents and each such expression 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 or statement. No inference as to our knowledge of any matters bearing on



To the Purchasers of Common
Stock of Amyris, Inc. on the Date Hereof
Page 3

the accuracy of any such statement should be drawn from the fact of our representation of the Company or from the rendering of any 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 currently effective 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 (or the extent to which) the laws of any particular jurisdiction apply, and we express no opinion to the extent that any laws (other than Applicable Laws) are applicable to any of the Transaction Documents or any of the transactions contemplated by the Transaction Documents. We disclaim any opinion as to statute, rule, regulation, ordinance, order or other promulgation of any regional or local governmental body. Our opinions are limited to such Applicable Laws (and rules or regulations, governmental or court consents, approvals and notice or filing requirements thereunder) as in our experience are typically applicable to transactions of the sort provided for in the Transaction Documents.

In rendering the opinion set forth in paragraph 1 below with respect 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 the Certificates of Good Standing and on representations contained in the Opinion Certificate.

In rendering the opinion set forth in paragraph 2 below concerning the Company's corporate power and corporate authority to conduct its business as it is presently conducted, with respect to the types of businesses the Company presently conducts, we have relied exclusively upon representations regarding the nature of the Company's business made to us in the Opinion Certificate.

In rendering the opinion set forth in paragraph 4 below concerning the Company's execution and delivery of the Transaction Documents, we have not necessarily observed the execution of such documents by the Company but have relied exclusively upon representations regarding the Company's execution and delivery of the Transaction Documents made to us in the Opinion Certificate and our review of copies, facsimiles or .pdf files of executed signature pages delivered to us by representatives of the Company or their agents, which we have no reason to believe were not executed on behalf of the Company by the persons whose names or signatures appear on such signature pages.

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 as the governing laws, our opinion in paragraph 4



To the Purchasers of Common
Stock of Amyris, Inc. on the Date Hereof
Page 4

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 to the Purchase Agreement, and construe the Purchase Agreement in accordance with, only (i) Internal California Law (as defined below), without regard to any interpretation or construction that might be indicated by any other laws stated as governing the Purchase Agreement and (ii) where applicable, the currently effective DGCL. As used herein, “ Internal California Law ” means the internal laws of the State of California applicable to a contract made by California residents in the State of California that selects California law as the governing law of such contract, without regard to any laws or equitable principles regarding choice of law, conflict of laws or public policies that might make any other law(s) applicable.

We render no opinion in paragraph 5 below, or in any other opinion set forth herein that is dependent upon the issuance of such stock certificates, or as to the effect of the non-issuance of stock certificates has on the valid issuance of the Shares.

We render no opinion in paragraphs 4, 6 or 7 below, 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, the Securities Exchange Act of 1934, as amended, and the rules, regulations and forms promulgated thereunder, or securities antifraud laws, and no such opinion should be inferred from the language of those paragraphs. Any opinion regarding applicable securities laws is rendered solely and expressly in paragraphs 8 and 9 below.

In rendering the opinion in paragraph 6 below regarding breach of, or default under, any Reviewed Contracts 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 Contracts, or on any oral modifications to such Reviewed Contracts made by the parties thereto. Moreover, to the extent that any of the Reviewed Contracts are governed by the laws of any jurisdiction other than the State of California our opinion relating to any such Reviewed Contracts is based solely upon the plain meaning of its language as though only Internal California Law applied to and governed such Reviewed Contracts, without regard to any interpretation or construction that might be indicated by any other laws stated as governing such Reviewed Contracts.

In rendering the opinion expressed in paragraph 8 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 by means of any general solicitation or publication of any advertisement therefor, and we have assumed that the offer and sale of the Shares will not be integrated with any other securities offering of the Company.

Our opinions are qualified by, and we render no opinion with respect to, or as to the effect of, the following:
(a) bankruptcy, insolvency, reorganization, moratorium, assignments for the benefit of creditors and other similar laws relating to or affecting the relief of debtors or



To the Purchasers of Common
Stock of Amyris, Inc. on the Date Hereof
Page 5

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 Shares 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 Purchasers in connection with the offer and sale of the Shares, and (ii) the accuracy or fairness of the past, present or future fair market value of any securities;

(h) the effect that any breach of the fiduciary duties of the members of the Company's Board of Directors, officers or principal stockholders, or any conflicts of interest on the part of any of such persons, would have on the enforceability authorization and/or 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)



To the Purchasers of Common
Stock of Amyris, Inc. on the Date Hereof
Page 6

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.

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.

In rendering the opinions below, we are opining only with respect to the specific legal issues expressly set forth in the numbered paragraphs below, and we render no opinion, whether by implication, inference or otherwise, as to any other matter or matters.

Based upon and subject to the foregoing, and except as set forth in the Purchase Agreement or the Disclosure Letter thereto, as of immediately prior to the Closing we are of the following opinion.




To the Purchasers of Common
Stock of Amyris, Inc. on the Date Hereof
Page 7

(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 transact intrastate 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 by the Company, (b) must be taken by the Company to authorize the sale and issuance to the Purchasers of the Shares on the date hereof and (c) must be taken by the Company as of the date hereof to authorize performance by the Company on the date hereof 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 Purchasers. 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 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 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 Contract set forth on Exhibit A (other than the Side Letter 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 the Bylaws, (b) a material violation by the Company of any judgment or order of any court or governmental authority that is specifically identified on the Disclosure Letter, if any, (c) a material violation by the Company of any Applicable Law or (d) a material breach by the Company of, or a default by the Company under, any Reviewed Contracts 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, and assuming the accuracy of, all the representations made by you in the Purchase Agreement, and subject to (and assuming the timely making of) the filings of such securities law notices as may be required to be filed by the Company subsequent to the Closing, the offer, sale and issuance by the Company to you 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



To the Purchasers of Common
Stock of Amyris, Inc. on the Date Hereof
Page 8

from the qualification requirements of Section 25110 of the California Corporate Securities Law of 1968, as amended.

(9) The Company is not and, after giving effect to the offering and sale of the Shares, 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 except as set forth in the Purchase Agreement or the Disclosure Letter thereto, 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 or other search in any jurisdiction with respect to any action, suit, arbitration, 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, arbitration, proceeding or investigation.


[Remainder of Page Left Intentionally Blank]





To the Purchasers of Common
Stock of Amyris, Inc. on the Date Hereof
Page 9

This opinion is rendered as of the date first written above solely for your benefit in connection with the sale and issuance of the Shares 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. 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.

Very truly yours,

FENWICK & WEST LLP

By: /s/ Daniel Winnike        
Daniel Winnike, a Partner



Exhibit A

Reviewed Documents

1)    The Purchase Agreement.

2)    Amendment No. 3 to the Existing Rights Agreement (as defined below).

3)    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 (the “ Restated Certificate ”).

4)    A copy of the Company's Bylaws certified by the Company's Secretary on March 27, 2013 (the “ Bylaws ”).

5)    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.

6)    An Opinion Certificate addressed to us and dated of even date herewith executed by the Company (the “ Opinion Certificate ”).

7)    A Certificate of Good Standing regarding the Company issued by the Secretary of State of the Delaware, dated March 7, 2013, indicating that the Company is qualified to do business, as a domestic corporation in that state (together with the letter from the California Franchise Tax Board referred to in item (8) below and the Certificate of Status referred to in item (9) below, the “ Certificates of Good Standing ”).

8)    A letter from the California Franchise Tax Board dated March 22, 2013 to 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.

9)    A Certificate of Status from the Secretary of State of the State of California dated March 8, 2013, indicating that the Company is in good standing and is qualified to transact intrastate business as a foreign corporation therein.

The documents described in items (10) through (17) below are collectively referred to in this opinion letter as the “ Reviewed Contracts .”

10)    The Letter Agreement dated February 23, 2012 by and among the Company and Naxyris S.A., Sualk Capital Ltd, Maxwell (Mauritius) Pte Ltd and Biolding Investment SA (the “ Side Letter ”).

11)    A copy of the Series D Preferred Stock Purchase Agreement dated June 21, 2010.




12)    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 and Amendment No. 2 thereto dated December 24, 2012 (the “ Existing Rights Agreement ”).

13)    A copy of the Securities Purchase Agreement dated February 22, 2012 by and among the Company and the Purchasers listed on the signature pages thereto.

14)    A copy of the Securities Purchase Agreement dated February 24, 2012 by and among 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.

15)    Copies of those Common Stock Purchase Agreements dated May 18, 2012 by and among the Company and certain Company stockholders.

16)    Copies of the Securities Purchase Agreement dated July 30, 2012 by and among the Company and Total Gas & Power USA, SAS, the Senior Unsecured Convertible Notes issued thereunder and the Registration Rights Agreement by and among the Company and Total Gas & Power USA, SAS, dated July 30, 2012.

17)    A copy of the Securities Purchase Agreement dated December 24, 2012 by and among the Company and the Purchasers listed on the signature pages thereto.





AMYRIS, INC.
AMENDMENT NO. 3 TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amendment No. 3 to the Amended and Restated Investors' Rights Agreement (this “ Amendment ”) is made and entered into as of March 27, 2013, by and among Amyris, Inc., a Delaware corporation (the “ Company ”), the Investors and the Common Holders.
RECITALS
WHEREAS, the Company, the Investors and the Common Holders are parties to that certain Amended and Restated Investors' Rights Agreement dated June 21, 2010 (the “ Rights Agreement ”). Capitalized terms used in this Amendment and not otherwise defined herein have the meanings ascribed to them in the Rights Agreement.
WHEREAS, the Company, certain Investors and certain Common Holders are parties to that certain Amendment No. 1 to Amended and Restated Investors' Rights Agreement, dated as of February 23, 2012 (“ Amendment No. 1 ”), pursuant to which the Rights Agreement was amended and certain parties were added thereto.
WHEREAS, the Company, certain Investors and certain Common Holders are parties to that certain Amendment No. 2 to Amended and Restated Investors' Rights Agreement, dated as of December 24, 2012 (“ Amendment No. 2 ”), pursuant to which the Rights Agreement was amended and certain parties were added thereto.
WHEREAS, the Company, the Investors and the Common Holders desire to make certain additional amendments to the Rights Agreement.
WHEREAS, pursuant to Section 3.7 of the Rights Agreement, the Rights Agreement may be amended with the written consent of the (i) Company, and (ii) the holders of a majority of the Registrable Securities currently outstanding (together, the “ Requisite Majority ”).
WHEREAS, the undersigned parties constitute the Requisite Majority.
NOW, THEREFORE, the parties hereby agree as follows:
1.     AMENDMENT OF SECTION 1.1(c) OF THE RIGHTS AGREEMENT . Section 1.1(c) of the Rights Agreement shall be deleted in its entirety and replaced with the following:

“The term “ Holder ” means (i) any Investor having purchased more than 5% of the Preferred Stock sold by the Company, (ii) except with respect to Sections 1.2, 1.12, 1.13 and Section 2 hereof, the Common Holders owning or having the right to acquire Registrable Securities or any assignee thereof in accordance with Section 1.13 hereof, (iii) each “Purchaser” as such term is defined in that certain Securities Purchase Agreement dated as of February 22, 2012 by and among the Company and the purchasers identified therein (each, a “ February Purchaser ”), (iv) each “Purchaser” as such term is defined in that certain Securities Purchase Agreement dated December 24, 2012 by and




among the Company and purchasers identified therein (each, a “ December Purchaser ”), and (v) each “Purchaser” as such term is defined in that certain Securities Purchase Agreement dated March 27, 2013 by and among the Company and purchasers identified therein (each, a “ March Purchaser ”).”
2.     AMENDMENT OF SECTION 1.1(f) OF THE RIGHTS AGREEMENT . Section 1.1(f) of the Rights Agreement shall be deleted in its entirety and replaced with the following:

“The term “Registrable Securities” means: (i) any Common Stock issued or issuable upon conversion of the Preferred Stock of the Company, (ii) other than with respect to Sections 1.2, 1.12, 1.13 and Section 2 hereof, any Common Stock of the Company held by the Common Holders, (iii) the Common Shares, as defined in that certain Stock Transfer Agreement, dated December 24, 2009, by and among the Company, certain holders of the Company's Preferred Stock and certain holders of the Company's Common Stock, (iv) shares of Common Stock issued pursuant to that certain Securities Purchase Agreement dated as of February 22, 2012 by and among the Company and the February Purchasers, (v) shares of Common Stock issued pursuant to that certain Securities Purchase Agreement dated December 24, 2012 by and among the Company and the December Purchasers, (vi) shares of Common Stock issued pursuant to that certain Securities Purchase Agreement dated March 27, 2013 by and among the Company and the March Purchasers, and (vii) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange for, or in replacement of, the securities set forth in subsection (i), (ii), (iii), (iv), (v) or (vi) hereof, excluding, however, any Registrable Securities which (A) have previously been registered or which have been sold to the public either pursuant to a registration statement or Rule 144, (B) which have been sold in a private transaction in which the transferor's rights under this Agreement are not assigned, or (C) held by a Holder (together with its affiliates) if, as reflected on the Company's list of stockholders, such Holder (together with its affiliates) holds less than 1% of the Company's outstanding Common Stock (treating all shares of Preferred Stock on an as converted basis).”
3.     FULL FORCE AND EFFECT . Except as expressly modified by this Amendment, the terms of the Rights Agreement shall remain in full force and effect.

4.     GOVERNING LAW . This Amendment shall be governed by and construed under the internal laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California, without reference to principles of conflict of laws or choice of laws.

5.     INTEGRATION . This Amendment and the Rights Agreement and the documents referred to herein and therein and the exhibits and schedules thereto, constitute the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.




6.     COUNTERPARTS; FACSIMILE . This Amendment may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Amendment may be executed and delivered by facsimile, or by email in portable document format (.pdf) and delivery of the signature page by such method will be deemed to have the same effect as if the original signature had been delivered to the other parties.

[Remainder of Page Intentionally Left Blank]




IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

COMPANY:
AMYRIS, INC.

By: /s/ John Melo            
John Melo, Chief Executive Officer



































[Signature Page to Amendment No. 3 to Amyris, Inc. Amended and Restated Investors' Rights Agreement]




IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

INVESTORS:

NAXYRIS S.A.


By: /s/ Christoph Piel /s/ Jacques Reckinger    
Name: Christoph Piel Jacques Reckinger    
Title: Director                    





























[Signature Page to Amendment No. 3 to Amyris, Inc. Amended and Restated Investors' Rights Agreement]




IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

INVESTORS:

KPCB HOLDINGS, INC., AS NOMINEE


By: /s/ Paul M. Vronsky            
Name: Paul M. Vronsky            
Title: General Counsel            





























[Signature Page to Amendment No. 3 to Amyris, Inc. Amended and Restated Investors' Rights Agreement]




IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

INVESTORS:

FORIS VENTURES, LLC


By: /s/ Barbara Hager        
Name: Barbara Hager        
Title: Manager            




























[Signature Page to Amendment No. 3 to Amyris, Inc. Amended and Restated Investors' Rights Agreement]




IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

INVESTORS:

BIOLDING INVESTMENT SA


By: /s/ Sheikh Abdullah bin Khalifa Al Thani    
Name:                         
Title:                         





























[Signature Page to Amendment No. 3 to Amyris, Inc. Amended and Restated Investors' Rights Agreement]




IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

INVESTORS:

TOTAL GAS & POWER USA, SAS


By: /s/ Bernard Clement            
Name: Bernard Clement            
Title: Managing Director        





























[Signature Page to Amendment No. 3 to Amyris, Inc. Amended and Restated Investors' Rights Agreement]




ASSISTANCE AGREEMENT
1. Award No.
 
DE-EE0002869
2. Modification No.
 
009
3. Effective Date
 
12/28/2009
4. CFDA No.
 
81.087
5. Awarded To

AMYRIS, INC.
Attn: NEIL RENNINGER
5885 HOLLIS STREET
SUITE 100
EMERYVILLE CA 946082059
 
6. Sponsoring Office
 
Energy Effcy & Renewable Energy
 
7. Period of Performance
 
12/28/2009
through
06/30/2013
8. Type of Agreement
 
_ Grant
x  Cooperative Agreement
_ Other
 
9. Authority
 
109-58, Energy Policy Act (2005)
111-5, Recovery Act (2009)
10. Purchase Request or Funding Document No.
 
13EE000816
11. Remittance Address
12. Total Amount
13. Funds Obligated
AMYRIS, INC.
Attn: NEIL RENNINGER
5885 HOLLIS STREET
SUITE 100
EMERYVILLE CA 946082059
 
Govt. Share: $ 24,341,409.00
 
Cost Share: $ 10,591,590.00
 
Total: $ 34,932,999.00
This action: $0.00
 
Total: $24,341,409.00
14. Principal Investigator
 
Joel Cherry
Phone: 510-450-0761
15. Program Manager
 
Bryna E. Berendzen
Phone: 720-356-1442
16. Administrator
 
Golden Field Office
U.S. Department of Energy
Golden Field Office
1617 Cole Blvd.
Golden CO 80401-3393
 
17. Submit Payment Requests To
 
OR for Golden
U.S. Department of Energy
Oak Ridge Financial Service Center
P.O. Box 4517
Oak Ridge TN 37831
18. Paying Office
 
OR for Golden
U.S. Department of Energy
Oak Ridge Financial Service Center
P.O. Box 4517
Oak Ridge TN 37831
 
19. Submit Reports To

See Attachment #3
20. Accounting and Appropriation Data
 
See Schedule
21. Research Title and/or Description of Project
 
RECOVERY ACT: SCALE-UP & MOBILIZATION OF RENEWABLE DIESEL & CHEMICAL PRODUCTION FROM COMMON INTERMEDIATE USING US-BASED FERMENTABLE SUGAR FEEDSTOCKS
For the Recipient
 
For the United States of America
 
22. Signature of Person Authorized to Sign
25. Signature of Grants/Agreements Officer
 
Signature on File
23. Name and Title
24. Date Signed
26. Name of Officer
 
Jon F. Olsen
27. Date Signed
 
01/09/2013
 



CONTINUATION SHEET
REFERENCE NO. OF DOCUMENT BEING CONTINUED
 
DE-EE0002869/009
PAGE

2 OF 3
 
NAME OF OFFEROR OR CONTRACTOR
 
AMYRIS, INC.
 
 
 
 
 
 
ITEM 
NO.
(A)
SUPPLIES/SERVICES
(B)
QUANTITY (C)
UNIT (D)
UNIT PRICE (E)
AMOUNT (F)
 
DUNS Number: 185930182
 
The purpose of this modification is to approve a No-Cost Time Extension. Accordingly, the following changes are made:

1) Extend the Period of Performance end date, as noted in Block 7;

2) Revise the Special Terms and Conditions, as shown below:
     a. Extend the Project Period and Budget Period, as shown in Provision 4, "Award Project Period and Budget Periods;"
     b. Delete and replace Provision 15, "Intellectual Property Provisions and Contact Information;"
     c. Delete and replace Provision 18, "Notice Regarding the Purchase of American-Made Equipment and Products;" and

3) Update the Recipient Business Officer and Recipient Principal Investigator, as shown below and in Block 14.

Restrictions still applicable to the award are specified in the following provisions: Rebudgeting and Recovery of Indirect Costs and Subcontract Approvals.

All other terms and conditions remain unchanged.

In Block 7 of the Assistance Agreement, the Period of Performance reflects the beginning of the Project Period through the end of the current Budget Period. For multiple Budget Periods, see Special Terms and Conditions, Provision 4, "Award Project Period and Budget Periods."

The total amounts reflected in Blocks 12 and 13 of the Assistance Agreement do not include the Federally Funded Research and Development Center (FFRDC) funding amount of $658,591 which was funded directly.

DOE Award Administrator: Brenda Dias
E-mail: brenda.dias@go.doe.gov
Phone: 720-356-1519

DOE Project Officer: Bryna Berendzen
E-mail: bryna.berendzen@go.doe.gov
Phone: 720-356-1442

Recipient Business Officer: David Gray
Continued...
E-mail: gray@amyris.com
 
 
 
 
JULY 2004
 




CONTINUATION SHEET
REFERENCE NO. OF DOCUMENT BEING CONTINUED
 
DE-EE0002869/009
PAGE

3 OF 3
 
NAME OF OFFEROR OR CONTRACTOR
 
AMYRIS, INC.
 
 
 
 
 
 
ITEM 
NO.
(A)
SUPPLIES/SERVICES
(B)
QUANTITY (C)
UNIT (D)
UNIT PRICE (E)
AMOUNT (F)
 
Phone: 510-450-0761

Recipient Principal Investigator: Joel Cherry
E-mail: cherry@amyris.com
Phone: 510-450-0761
 
“Electronic signature or signatures as used in this document means a method of signing an electronic message that--

(A) Identifies and authenticates a particular person as the source of the electronic message;
(B) Indicates such person's approval of the information contained in the electronic message; and,
(C) Submission via FedConnect constitutes electronically signed documents.”
ASAP: NO: STD IMMEDIATE Extent Competed: COMPETED
Davis-Bacon Act: YES 
 
 
 
 
JULY 2004
 





DE-EE0002869 / 009

SPECIAL TERMS AND CONDITIONS

Table of Contents

Number      Subject      Page

1.
RESOLUTION OF CONFLICTING CONDITIONS      2
2.
AWARD AGREEMENT TERMS AND CONDITIONS      2
3.
ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS      2
4.
AWARD PROJECT PERIOD AND BUDGET PERIODS      2
5.
PAYMENT PROCEDURES      3
6.
COST SHARING      3
7.
REBUDGETING AND RECOVERY OF INDIRECT COSTS      4
8.
FINAL INCURRED COST AUDIT      5
9.
STATEMENT OF FEDERAL STEWARDSHIP      5
10.
STATEMENT OF SUBSTANTIAL INVOLVEMENT      5
11.
SITE VISITS      6
12.
REPORTING REQUIREMENTS      6
13.
PUBLICATIONS      7
14.
FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS      7
15.
INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION      7
16.
NATIONAL SECURITY: CLASSIFIABLE RESULTS ORIGINATING UNDER AN AWARD      8
17.
LOBBYING RESTRICTIONS      9
18.
NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT
AND PRODUCTS      9
19.
PROPERTY      9
20.
DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS      10
21.
INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP      10
22.
INDEMNITY      10
23.
SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009)      11
24.
REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512
OF THE RECOVERY ACT      15
25.
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED
GOODS - SECTION 1605 OF THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009      15
26.
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED
GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) - SECTION
1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009      18
27.
RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF
EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT
RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS      22
28.
WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY
ACT      23
29.
DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT      23
30.
CONTINGENCY      34
31.
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS      34
32.
SUBCONTRACT APPROVALS      35


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1.    RESOLUTION OF CONFLICTING CONDITIONS

Any apparent inconsistency between Federal statutes and regulations and the terms and conditions contained in this award must be referred to the DOE Award Administrator for guidance.

2.    AWARD AGREEMENT TERMS AND CONDITIONS

This award/agreement consists of the Assistance Agreement, plus the following:
a.
Special Terms and Conditions.
b.
Attachments:
Attachment Number        Title
1.        Intellectual Property Provisions
2.        Statement of Project Objectives
3.        Federal Assistance Reporting Checklist and Instructions
4.        Budget Pages (SF 424A)     
5.        Requirements for Contingency Funds for Integrated Biorefinery
Projects    

c.
Applicable program regulations.
d.
DOE Assistance Regulations, 10 CFR Part 600 at http://ecfr.gpoaccess.gov .
e.
If the award is for research and the award is for a university or non-profit, the Research Terms & Conditions and the DOE Agency Specific Requirements at http://www.nsf.gov/bfa/dias/policy/rtc/index.jsp apply.
f.
Application/proposal as approved by DOE.
g.
National Policy Assurances to be incorporated as award terms in effect on date of award at http://energy.gov/management/downloads/national-policy-assurances-be-incorporated-award-terms

3.    ELECTRONIC AUTHORIZATION OF AWARD DOCUMENTS

Acknowledgement of award documents by the Recipient's authorized representative through electronic systems used by the Department of Energy, specifically FedConnect, constitutes the Recipient's acceptance of the terms and conditions of the award. Acknowledgement via FedConnect by the Recipient's authorized representative constitutes the Recipient's electronic signature.

4.    AWARD PROJECT PERIOD AND BUDGET PERIODS

The Project Period for this award is 12/28/2009 through 06/30/2013, consisting of the following Budget Periods:

Budget Period
Phase
Start Date
End Date
1
1
12/28/2009
4/21/2010
 
2
4/22/2010
6/30/2013


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5.    PAYMENT PROCEDURES

a.
Method of Payment . Payment will be made by reimbursement through ACH.

b.
Requesting Reimbursement . Requests for reimbursements must be made electronically through Department of Energy's Oak Ridge Financial Service Center (ORFSC) VIPERS. To access and use VIPERS, you must enroll at https://vipers.oro.doe.gov . Detailed instructions on how to enroll are provided on the web site.

For non-construction awards, you must submit a Standard Form (SF) 270, “Request for Advance or Reimbursement,” at https://vipers.oro.doe.gov and attach a file containing appropriate supporting documentation. The file attachment must show the total Federal share claimed on the SF 270, the non-Federal share claimed for the billing period if cost sharing is required, and cumulative expenditures to date (both Federal and non-Federal) for each of the following categories: salaries/wages and fringe benefits; equipment; travel; participant/training support costs, if any; other direct costs, including subawards/contracts; and indirect costs. For construction awards, you must submit a SF 271, “Outlay Report and Request for Reimbursement for Construction Programs,” through VIPERS.

c.
Timing of submittals. Submittal of the SF 270 or SF 271 should coincide with your normal billing pattern, but not more frequently than every two weeks. Requests for reimbursement must be limited to the amount of disbursements made during the billing period for the Federal share of direct project costs and the proportionate share of any allowable indirect costs incurred during that billing period.

d.
Adjusting payment requests for available cash. You must disburse any funds that are available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting additional cash payments from DOE.

e.
Payments . The DOE approving official will approve the invoice as soon as practical, but not later than 30 days after your request is received, unless the billing is improper. Upon receipt of an invoice payment authorization from the DOE approving official, the ORFSC will disburse payment to you. You may check the status of payments at the VIPER web site. All payments are made by electronic funds transfer to the bank account identified on the ACH Vendor/Miscellaneous Payment Enrollment Form (SF 3881) that you filed.

6.    COST SHARING

a. Total Estimated Project Cost is the sum of the Federal Government share, including Federally Funded Research and Development Center (FFRDC) contractor costs, and Recipient share of the estimated project costs. The DOE FFRDC contractor cost is not included in the total approved budget for this award, because DOE will pay the DOE
    

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FFRDC contractor portion of the effort under an existing DOE contract. The Recipient is not responsible for reporting on that portion of the total estimated cost that is paid directly to the DOE FFRDC contractor.

The Recipient's cost share must come from non-Federal sources unless otherwise allowed by law. By accepting Federal funds under this award, you agree that you are liable for your percentage share of allowable project costs, on a budget period basis, even if the project is terminated early or is not funded to its completion. This cost is shared as follows:

Budget Period

1
Phase
DOE Cost Share,
including FFRDC Costs
Recipient Cost Share
$ / %
Total Estimated Costs
DOE $ / %
FFRDC $ / %
1
$3,008,260/63.1%
—
$1,702,920/36.9%
$4,711,180
2
$21,333,149/69.1%
$658,591/2.1%
$8,888,670/28.8%
$30,880,410
 
 Total Project
$24,341,409/68.4%
$658,591/2.0%
$10,591,590/29.8%
$35,591,590

b. If you discover that you may be unable to provide cost sharing of at least the amount identified in paragraph a of this Article, you should immediately provide written notification to the DOE Award Administrator, indicating whether you will continue the project or phase out the project. If you plan to continue the project, the notification must describe how replacement cost sharing will be secured.

c. You must maintain records of all project costs you claim as cost sharing, including in-kind costs, as well as records of costs to be paid by DOE. Such records are subject to audit.

d. Failure to provide the cost share required by this Article may result in the subsequent recovery by DOE of some or all the funds provided under the award.

7.    REBUDGETING AND RECOVERY OF INDIRECT COSTS

a.
If actual allowable indirect costs are less than those budgeted and funded under the award, you may use the difference to pay additional allowable direct costs during the project period. If at the completion of the award the Government's share of total allowable costs (i.e., direct and indirect), is less than the total costs reimbursed, you must refund the difference.

b.
Recipients are expected to manage their indirect costs. DOE will not amend an award solely to provide additional funds for changes in indirect cost rates. DOE recognizes that the inability to obtain full reimbursement for indirect costs means the Recipient must absorb the underrecovery. Such underrecovery may be allocated as part of the organization's required cost sharing .

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8.    FINAL INCURRED COST AUDIT

In accordance with 10 CFR 600, DOE reserves the right to initiate a final incurred cost audit on this award. If the audit has not been performed or completed prior to the closeout of the award, DOE retains the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.

9.    STATEMENT OF FEDERAL STEWARDSHIP

DOE will exercise normal Federal stewardship in overseeing the project activities performed under this award. Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and financial reports; providing technical assistance and/or temporary intervention in unusual circumstances to correct deficiencies which develop during the project; assuring compliance with terms and conditions; and reviewing technical performance after project completion to ensure that the award objectives have been accomplished.

10.    STATEMENT OF SUBSTANTIAL INVOLVEMENT

a.
Government Insight

In order to adequately monitor project progress and provide technical direction and/or redirection to the Recipient, DOE must be provided an adequate level of insight into various Recipient activities. Government Insight activities by DOE include attendance at Recipient meetings, reviews and tests, as well as access for DOE's consultants to perform independent evaluations of Recipient's plans and processes. Recipient shall notify the DOE Project Officer of meetings, reviews, and tests in sufficient time to permit DOE participation, and provide all appropriate documentation for DOE review.

b. Specific activities to be conducted by DOE

1. Risk Evaluation -DOE will review the Recipient's initial Risk Mitigation Plan (RMP) for quality and completeness. DOE will also monitor updates to the RMP and actions taken by the Recipient during the performance of its award to mitigate risks and improve the probability of successful execution of the integrated Biorefinery project. At DOE's discretion, additional independent risk analyses of the project by DOE consultants may be requested.

2. Independent Engineering Assessments-DOE will engage a private, independent engineering (IE) firm to assist in assessing the progress of the project and provide timely and accurate reports to DOE. The Recipient will ensure that the IE has access to any and all relevant documentation sufficient to allow the IE to provide independent evaluations to DOE on the progress of the project. Such documentation includes but is not limited to the following:

• Drawings and specifications

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• Construction and Execution plans
• Resource loaded schedules
• Design functions and requirements for the site final design review
• Risk management plans
• Value management and engineering studies and/or plans
• Acquisition strategies
• Project execution plans
• Project controls including earned value management systems
• Qualifications of the integrated project team.
• Financial strategy for funding the construction project
• Updated marketing and business plan
• Invoices submitted to DOE

DOE will evaluate the quality and completeness of information and documentation provided by the Recipient to DOE and its consultants in order to allow DOE to provide technical direction and/or redirection to the Recipient about how best to achieve the purposes of the award. Consultants to DOE may not provide technical direction and/or redirection to the Recipient.

11.    SITE VISITS

DOE's authorized representatives have the right to make site visits at reasonable times to review project accomplishments and management control systems and to provide technical assistance, if required. You must provide, and must require your subawardees to provide, reasonable access to facilities, office space, resources, and assistance for the safety and convenience of the government representatives in the performance of their duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or delay the work.

12.    REPORTING REQUIREMENTS

a.
Requirements . The reporting requirements for this award are identified on the Federal Assistance Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these reporting requirements is considered a material noncompliance with the terms of the award. Noncompliance may result in withholding of future payments, suspension or termination of the current award, and withholding of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or other financial assistance awards, may also result in a debarment action to preclude future awards by Federal agencies.

b.
Dissemination of scientific/technical reports . Scientific/technical reports submitted under this award will be disseminated on the Internet via the DOE Information Bridge ( www.osti.gov/bridge ), unless the report contains patentable material, protected data or SBIR/STTR data. Citations for journal articles produced under the award will appear on the DOE Energy Citations Database ( www.osti.gov/energycitations ).


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c.
Restrictions . Reports submitted to the DOE Information Bridge must not contain any Protected Personal Identifiable Information (PII), limited rights data (proprietary data), classified information, information subject to export control classification, or other information not subject to release.

13.    PUBLICATIONS

a.
You are encouraged to publish or otherwise make publicly available the results of the work conducted under the award.

b.
An acknowledgment of DOE support and a disclaimer must appear in the publication of any material, whether copyrighted or not, based on or developed under this project, as follows:

Acknowledgment : “This material is based upon work supported by the Department of Energy [National Nuclear Security Administration] [add name(s) of other agencies, if applicable] under Award Number(s) [enter the award number(s)].”

Disclaimer : “This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States Government or any agency thereof. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof.”

14.    FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS

You must obtain any required permits and comply with applicable federal, state, and municipal laws, codes, and regulations for work performed under this award.

15.    INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION

a.
The intellectual property provisions applicable to this award are provided as an attachment to this award or are referenced in the Assistance Agreement. A list of all intellectual property provisions may be found at: http://energy.gov/gc/standard-intellectual-property-ip-provisions-financial-assistance-awards

b. Questions regarding intellectual property matters should be referred to the DOE Award Administrator identified and the Patent Counsel designated as the service provider for the DOE office that issued the award. The Patent Counsel for the Golden Field Office is Julia Moody who may be reached at julia.moody@go.doe.gov or 720-356-1699.

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16.
NATIONAL SECURITY: CLASSIFIABLE RESULTS ORIGINATING UNDER AN AWARD

a.
This award is intended for unclassified, publicly releasable research. You will not be granted access to classified information. DOE does not expect that the results of the research project will involve classified information. Under certain circumstances, however, a classification review of information originated under the award may be required. The Department may review research work generated under this award at any time to determine if it requires classification.

b.
Executive Order 12958 (60 Fed. Reg. 19,825 (1995)) states that basic scientific research information not clearly related to the national security shall not be classified. Nevertheless, some information concerning (among other things) scientific, technological, or economic matters relating to national security or cryptology may require classification. If you originate information during the course of this award that you believe requires classification, you must promptly:

1.
Notify the DOE Project Officer and the DOE Award Administrator;

2.
Submit the information by registered mail directly to the Director, Office of Classification and Information Control, SO-10.2; U.S. Department of Energy; P.O. Box A; Germantown, MD 20875-0963, for classification review.

3.
Restrict access to the information to the maximum extent possible until you are informed that the information is not classified, but no longer than 30 days after receipt by the Director, Office of Classification and Information Control

c.
If you originate information concerning the production or utilization of special nuclear material (i.e., plutonium, uranium enriched in the isotope 233 or 235, and any other material so determined under section 51 of the Atomic Energy Act) or nuclear energy, you must:

1.
Notify the DOE Project Officer and the DOE Award Administrator;

2.
Submit the information by registered mail directly to the Director, Office of Classification and Information Control, SO-10.2; U.S. Department of Energy; P. O. Box A; Germantown, MD 20875-0963 for classification review within 180 days of the date the Recipient first discovers or first has reason to believe that the information is useful in such production or utilization; and

3.
Restrict access to the information to the maximum extent possible until you are informed that the information is not classified, but no longer than 90 days after receipt by the Director, Office of Classification and Information Control.

d.
If DOE determines any of the information requires classification, you agree that the Government may terminate the award by mutual agreement in accordance with
    

8


10 CFR 600.25(d). All material deemed to be classified must be forwarded to DOE, in a manner specified by DOE.

e.
If DOE does not respond within the specified time periods, you are under no further obligation to restrict access to the information.

17.    LOBBYING RESTRICTIONS

By accepting funds under this award, you agree that none of the funds obligated on the award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.

18.
NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS

To the greatest extent practicable, all equipment and products purchased with funds made available under this award should be American-made.

19.    PROPERTY

Real property and equipment acquired by the Recipient shall be subject to the rules set forth in 10 CFR 600.130-137, 10 CFR 600.231-233, or 10 CFR 600.320-324, as applicable.

Consistent with the goals and objectives of this project, the Recipient may continue to use Recipient acquired property beyond the Period of Performance, without obligation, during the period of such use, to extinguish DOE's conditional title to such property as described in 10 CFR 600.132-135, 10 CFR 600.231-233, or 600.321-324, subject to the following: (a) the Recipient continues to utilize such property for the objectives of the project as set forth in the Statement of Project Objectives; (b) DOE retains the right to periodically ask for, and the Recipient agrees to provide, reasonable information concerning the use and condition of the property; and (c) the Recipient follows the property disposition rules set forth in the applicable sections of 10 CFR Part 600, if the property is no longer used by the Recipient for the objectives of the project, and the fair market value of property exceeds $5,000.

Once the per unit fair market value of the property is less than $5,000, pursuant to the applicable sections of 10 CFR Part 600, DOE's residual interest in the property shall be extinguished and the Recipient shall have no further obligation to the DOE with respect to the property.

The regulations as set forth in 10 CFR Part 600 and the requirements of this article shall also apply to property in the possession of any team member, sub-recipient or other entity where such property was acquired in whole or in part with funds provided by DOE under this award or where such property was counted as cost-sharing under the award.


9


20.    DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS

Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or have any obligation to the Recipient for (i) Decontamination and/or Decommissioning (D&D) of any of the Recipient's facilities, or (ii) any costs which may be incurred by the Recipient in connection with the D&D of any of its facilities due to the performance of the work under this Agreement, whether said work was performed prior to or subsequent to the effective date of the Agreement.

21.    INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP

a. You shall immediately notify the DOE of the occurrence of any of the following events: (i) you or your parent's filing of a voluntary case seeking liquidation or reorganization under the Bankruptcy Act; (ii) your consent to the institution of an involuntary case under the Bankruptcy Act against you or your parent; (iii) the filing of any similar proceeding for or against you or your parent, or your consent to the dissolution, winding-up or readjustment of your debts, appointment of a receiver, conservator, trustee, or other officer with similar powers over you, under any other applicable state or federal law; or (iv) your insolvency due to its inability to pay debts generally as they become due.

b. Such notification shall be in writing and shall: (i) specifically set out the details of the occurrence of an event referenced in paragraph (a); (ii) provide the facts surrounding that event; and (iii) provide the impact such event will have on the project being funded by this award.

c. Upon the occurrence of any of the four events described in paragraph a. of this provision, DOE reserves the right to conduct a review of your award to determine your compliance with the required elements of the award (including such items as cost share, progress towards technical project objectives, and submission of required reports). If the DOE review determines that there are significant deficiencies or concerns with your performance under the award, DOE reserves the right to impose additional requirements, as needed, including (i) change of payment method; or (ii) institute payment controls.

d. Failure of the Recipient to comply with this provision may be considered a material noncompliance of this financial assistance award by the Contracting Officer.

22.    INDEMNITY

The Recipient shall indemnify the Government and its officers, agents, or employees for any and all liability, including litigation expenses and attorneys' fees, arising from suits, actions, or claims of any character for death, bodily injury, or loss of or damage to property or to the environment, resulting from the project, except to the extent that such liability results from the direct fault or negligence of Government officers, agents or employees, or to the extent such liability may be covered by applicable allowable costs provisions. 



10


23.
SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (May 2009)

Preamble
 
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, (Recovery Act) was enacted to preserve and create jobs and promote economic recovery, assist those most impacted by the recession, provide investments needed to increase economic efficiency by spurring technological advances in science and health, invest in transportation, environmental protection, and other infrastructure that will provide long-term economic benefits, stabilize State and local government budgets, in order to minimize and avoid reductions in essential services and counterproductive State and local tax increases. Recipients shall use grant funds in a manner that maximizes job creation and economic benefit.
 
The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to governance, accountability, transparency, data collection and resources as specified in Act itself and as discussed below.
 
Recipients should begin planning activities for their first tier subrecipients, including obtaining a DUNS number (or updating the existing DUNS record), and registering with the Central Contractor Registration (CCR).
 
Be advised that Recovery Act funds can be used in conjunction with other funding as necessary to complete projects, but tracking and reporting must be separate to meet the reporting requirements of the Recovery Act and related guidance. For projects funded by sources other than the Recovery Act, Contractors must keep separate records for Recovery Act funds and to ensure those records comply with the requirements of the Act.
 
The Government has not fully developed the implementing instructions of the Recovery Act, particularly concerning specific procedural requirements for the new reporting requirements. The Recipient will be provided these details as they become available. The Recipient must comply with all requirements of the Act. If the recipient believes there is any inconsistency between ARRA requirements and current award terms and conditions, the issues will be referred to the Contracting Officer for reconciliation.
 
Definitions
 
For purposes of this clause, Covered Funds means funds expended or obligated from appropriations under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5. Covered Funds will have special accounting codes and will be identified as Recovery Act funds in the grant, cooperative agreement or TIA and/or modification using Recovery Act funds. Covered Funds must be reimbursed by September 30, 2015.
 
Non-Federal employer means any employer with respect to covered funds -- the contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, or recipient is an employer; and any professional membership organization, certification of other

11


professional body, any agent or licensee of the Federal government, or any person acting directly or indirectly in the interest of an employer receiving covered funds; or with respect to covered funds received by a State or local government, the State or local government receiving the funds and any contractor or subcontractor receiving the funds and any contractor or subcontractor of the State or local government; and does not mean any department, agency, or other entity of the federal government.
 
Recipient means any entity that receives Recovery Act funds directly from the Federal government (including Recovery Act funds received through grant, loan, or contract) other than an individual and includes a State that receives Recovery Act Funds.
 
Special Provisions
 
A. Flow Down Requirement
 
Recipients must include these special terms and conditions in any subaward.
 
B. Segregation of Costs
 
Recipients must segregate the obligations and expenditures related to funding under the Recovery Act. Financial and accounting systems should be revised as necessary to segregate, track and maintain these funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall be commingled with any other funds or used for a purpose other than that of making payments for costs allowable for Recovery Act projects.
 
C. Prohibition on Use of Funds

None of the funds provided under this agreement derived from the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, may be used by any State or local government, or any private entity, for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool.

D. Access to Records
  
With respect to each financial assistance agreement awarded utilizing at least some of the funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, any representative of an appropriate inspector general appointed under section 3 or 8G of the Inspector General Act of 1988 (5 U.S.C. App.) or of the Comptroller General is authorized --
(1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or any State or local agency administering such contract that pertain to, and involve transactions that relate to, the subcontract, subcontract, grant, or subgrant; and
(2) to interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such transactions.



12


E. Publication
 
An application may contain technical data and other data, including trade secrets and/or privileged or confidential information, which the applicant does not want disclosed to the public or used by the Government for any purpose other than the application. To protect such data, the applicant should specifically identify each page including each line or paragraph thereof containing the data to be protected and mark the cover sheet of the application with the following Notice as well as referring to the Notice on each page to which the Notice applies:

Notice of Restriction on Disclosure and Use of Data
The data contained in pages ---- of this application have been submitted in confidence and contain trade secrets or proprietary information, and such data shall be used or disclosed only for evaluation purposes, provided that if this applicant receives an award as a result of or in connection with the submission of this application, DOE shall have the right to use or disclose the data here to the extent provided in the award. This restriction does not limit the Government's right to use or disclose data obtained without restriction from any source, including the applicant.
 
Information about this agreement will be published on the Internet and linked to the website www.recovery.gov, maintained by the Accountability and Transparency Board. The Board may exclude posting contractual or other information on the website on a case-by-case basis when necessary to protect national security or to protect information that is not subject to disclosure under sections 552 and 552a of title 5, United States Code.

F. Protecting State and Local Government and Contractor Whistleblowers .
 
The requirements of Section 1553 of the Act are summarized below. They include, but are not limited to:
 
Prohibition on Reprisals: An employee of any non-Federal employer receiving covered funds under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee's duties, to the Accountability and Transparency Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or other person working for the employer who has the authority to investigate, discover or terminate misconduct), a court or grant jury, the head of a Federal agency, or their representatives information that the employee believes is evidence of:
- gross management of an agency contract or grant relating to covered funds;
- a gross waste of covered funds;
- a substantial and specific danger to public health or safety related to the implementation or use of covered funds;
- an abuse of authority related to the implementation or use of covered funds; or
- as violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds.
 

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Agency Action: Not later than 30 days after receiving an inspector general report of an alleged reprisal, the head of the agency shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the employee to a prohibited reprisal. The agency shall either issue an order denying relief in whole or in part or shall take one or more of the following actions:
- Order the employer to take affirmative action to abate the reprisal.
- Order the employer to reinstate the person to the position that the person held before the reprisal, together with compensation including back pay, compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
- Order the employer to pay the employee an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the employee for or in connection with, bringing the complaint regarding the reprisal, as determined by the head of a court of competent jurisdiction.
 
Nonenforceablity of Certain Provisions Waiving Rights and remedies or Requiring Arbitration: Except as provided in a collective bargaining agreement, the rights and remedies provided to aggrieved employees by this section may not be waived by any agreement, policy, form, or condition of employment, including any predispute arbitration agreement. No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising out of this section.
 
Requirement to Post Notice of Rights and Remedies: Any employer receiving covered funds under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, shall post notice of the rights and remedies as required therein. (Refer to section 1553 of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, www.Recovery.gov, for specific requirements of this section and prescribed language for the notices.).

G. RESERVED

H. False Claims Act
 
Recipient and sub-recipients shall promptly refer to the DOE or other appropriate Inspector General any credible evidence that a principal, employee, agent, contractor, sub-grantee, subcontractor or other person has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity or similar misconduct involving those funds.
 
I. Information in Support of Recovery Act Reporting
 
Recipient may be required to submit backup documentation for expenditures of funds under the Recovery Act including such items as timecards and invoices. Recipient shall provide copies of backup documentation at the request of the Contracting Officer or designee.
 


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J. Availability of Funds
 
Funds appropriated under the Recovery Act and obligated to this award are available for reimbursement of costs until September 30, 2015.

24.
REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT
(a) This award requires the recipient to complete projects or activities which are funded under the American Recovery and Reinvestment Act of 2009 (Recovery Act) and to report on use of Recovery Act funds provided through this award. Information from these reports will be made available to the public.
(b) The reports are due no later than ten calendar days after each calendar quarter in which the Recipient receives the assistance award funded in whole or in part by the Recovery Act.
(c) Recipients and their first-tier subrecipients must maintain current registrations in the Central Contractor Registration ( http://www.ccr.gov ) at all times during which they have active federal awards funded with Recovery Act funds. A Dun and Bradstreet Data Universal Numbering System (DUNS) Number ( http://www.dnb.com ) is one of the requirements for registration in the Central Contractor Registration.
(d) The recipient shall report the information described in section 1512(c) of the Recovery Act using the reporting instructions and data elements that will be provided online at http://www.FederalReporting.gov and ensure that any information that is pre-filled is corrected or updated as needed.

25.
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS - SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009

If the Recipient determines at any time that any construction, alteration, or repair activity on a public building or public works will be performed during the course of the project, the Recipient shall notify the Contracting Officer prior to commencing such work and the following provisions shall apply.
(a) Definitions. As used in this award term and condition-
(1) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been-
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials.

15


(2) Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi-State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements.
(b) Domestic preference. (1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3) of this section and condition.
(2) This requirement does not apply to the material listed by the Federal Government as follows:
none
(3) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph (b)(2) of this section and condition if the Federal Government determines that-
(i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of Section 1605 of the Recovery Act . (1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(3) of this section shall include adequate information for Federal Government evaluation of the request, including-
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;

16


(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, and/or manufactured goods material shall include all delivery costs to the construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably foresee the need for such determination and could not have requested the determination before the funds were obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a determination.
(2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies, use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1605 of the American Recovery and Reinvestment Act.

17


(d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers:
Foreign and Domestic Items Cost Comparison
Description
Unit of measure
Quantity
Cost
(dollars)*
Item 1:
 
 
 
     Foreign steel, iron, or manufactured good
_________
_________
_________
     Domestic steel, iron, or manufactured good
_________
_________
_________
Item 2:
 
 
 
     Foreign steel, iron, or manufactured good
_________
_________
_________
     Domestic steel, iron, or manufactured good
_________
_________
_________
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.

26.
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) - SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
(a) Definitions. As used in this award term and condition-
Designated country - (1) A World Trade Organization Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom;
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore); or
(3) A United States-European Communities Exchange of Letters (May 15, 1995) country: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,

18


Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom.
Designated country iron, steel, and/or manufactured goods - (1) Is wholly the growth, product, or manufacture of a designated country; or
(2) In the case of a manufactured good that consist in whole or in part of materials from another country, has been substantially transformed in a designated country into a new and different manufactured good distinct from the materials from which it was transformed.
Domestic iron, steel, and/or manufactured good - (1) Is wholly the growth, product, or manufacture of the United States; or
(2) In the case of a manufactured good that consists in whole or in part of materials from another country, has been substantially transformed in the United States into a new and different manufactured good distinct from the materials from which it was transformed. There is no requirement with regard to the origin of components or subcomponents in manufactured goods or products, as long as the manufacture of the goods occurs in the United States.
Foreign iron, steel, and/or manufactured good means iron, steel and/or manufactured good that is not domestic or designated country iron, steel, and/or manufactured good.
Manufactured good means a good brought to the construction site for incorporation into the building or work that has been-
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials.
Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi-State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works.
Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements.
(b) Iron, steel, and manufactured goods. (1) The award term and condition described in this section implements-

19


(i) Section 1605(a) of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act), by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States; and
(ii) Section 1605(d), which requires application of the Buy American requirement in a manner consistent with U.S. obligations under international agreements. The restrictions of section 1605 of the Recovery Act do not apply to designated country iron, steel, and/or manufactured goods. The Buy American requirement in section 1605 shall not be applied where the iron, steel or manufactured goods used in the project are from a Party to an international agreement that obligates the recipient to treat the goods and services of that Party the same as domestic goods and services. This obligation shall only apply to projects with an estimated value of $7,443,000 or more.
(2) The recipient shall use only domestic or designated country iron, steel, and manufactured goods in performing the work funded in whole or part with this award, except as provided in paragraphs (b)(3) and (b)(4) of this section.
(3) The requirement in paragraph (b)(2) of this section does not apply to the iron, steel, and manufactured goods listed by the Federal Government as follows:
none
(4) The award official may add other iron, steel, and manufactured goods to the list in paragraph (b)(3) of this section if the Federal Government determines that-
(i) The cost of domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, and/or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the overall cost of the project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American Act. (1)(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b)(4) of this section shall include adequate information for Federal Government evaluation of the request, including-
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;

20


(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b)(4) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, or manufactured goods shall include all delivery costs to the construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably foresee the need for such determination and could not have requested the determination before the funds were obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a determination.
(2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is nonavailability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and/or other appropriate actions taken to cover costs associated with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redistribute budgeted funds, as appropriate, by at least the differential established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies, use of foreign iron, steel, and/or manufactured goods other than designated country iron, steel, and/or manufactured goods is noncompliant with the applicable Act.
(d) Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the applicant shall include the following information and any applicable supporting data based on the survey of suppliers:


21


Foreign and Domestic Items Cost Comparison
Description
Unit of measure
Quantity
Cost
(dollars)*
Item 1:
 
 
 
     Foreign steel, iron, or manufactured good
_________
_________
_________
     Domestic steel, iron, or manufactured good
_________
_________
_________
Item 2:
 
 
 
     Foreign steel, iron, or manufactured good
_________
_________
_________
     Domestic steel, iron, or manufactured good
_________
_________
_________
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.


27.
RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS
(a) To maximize the transparency and accountability of funds authorized under the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) as required by Congress and in accordance with 2 CFR 215.21 “Uniform Administrative Requirements for Grants and Agreements” and OMB Circular A-102 Common Rules provisions, recipients agree to maintain records that identify adequately the source and application of Recovery Act funds. OMB Circular A-102 is available at http://www.whitehouse.gov/omb/circulars/a102/a102.html.
(b) For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations,” recipients agree to separately identify the expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF-SAC) required by OMB Circular A-133. OMB Circular A-133 is available at http://www.whitehouse.gov/omb/circulars/a133/a133.html. This shall be accomplished by identifying expenditures for Federal awards made under the Recovery Act separately on the SEFA, and as separate rows under Item 9 of Part III on the SF-SAC by CFDA number, and inclusion of the prefix “ARRA-” in identifying the name of the Federal program on the SEFA and as the first characters in Item 9d of Part III on the SF-SAC.

22


(c) Recipients agree to separately identify to each subrecipient, and document at the time of subaward and at the time of disbursement of funds, the Federal award number, CFDA number, and amount of Recovery Act funds. When a recipient awards Recovery Act funds for an existing program, the information furnished to subrecipients shall distinguish the subawards of incremental Recovery Act funds from regular subawards under the existing program.
(d) Recipients agree to require their subrecipients to include on their SEFA information to specifically identify Recovery Act funding similar to the requirements for the recipient SEFA described above. This information is needed to allow the recipient to properly monitor subrecipient expenditure of ARRA funds as well as oversight by the Federal awarding agencies, Offices of Inspector General and the Government Accountability Office.

28.    WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT
(a) Section 1606 of the Recovery Act requires that all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to the Recovery Act shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR parts 1, 3, and 5 to implement the Davis-Bacon and related Acts. Regulations in 29 CFR 5.5 instruct agencies concerning application of the standard Davis-Bacon contract clauses set forth in that section. Federal agencies providing grants, cooperative agreements, and loans under the Recovery Act shall ensure that the standard Davis-Bacon contract clauses found in 29 CFR 5.5(a) are incorporated in any resultant covered contracts that are in excess of $2,000 for construction, alteration or repair (including painting and decorating).
(b) For additional guidance on the wage rate requirements of section 1606, contact your awarding agency. Recipients of grants, cooperative agreements and loans should direct their initial inquiries concerning the application of Davis-Bacon requirements to a particular federally assisted project to the Federal agency funding the project. The Secretary of Labor retains final coverage authority under Reorganization Plan Number 14.

29.
DAVIS BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

If the Recipient determines at any time that any construction, alteration, or repair activity as defined by 29 CFR 5.2(j) ( http://cfr.vlex.com/vid/5-2-definitions-19681309 ) will be performed during the course of the project, the Recipient shall notify the Contracting Officer prior to commencing such work and the following provisions shall apply. A modification to the award

23


which incorporates the appropriate Davis-Bacon wage rate determination(s) will constitute the Contracting Officer's approval to proceed.

Definitions: For purposes of this provision, “Davis Bacon Act and Contract Work Hours and Safety Standards Act,” the following definitions are applicable:

(1) “Award” means any grant, cooperative agreement or technology investment agreement made with Recovery Act funds by the Department of Energy (DOE) to a Recipient. Such Award must require compliance with the labor standards clauses and wage rate requirements of the Davis-Bacon Act (DBA) for work performed by all laborers and mechanics employed by Recipients (other than a unit of State or local government whose own employees perform the construction) Subrecipients, Contractors, and subcontractors.

(2) “Contractor” means an entity that enters into a Contract. For purposes of these clauses, Contractor shall include (as applicable) prime contractors, Recipients, Subrecipients, and Recipients' or Subrecipients' contractors, subcontractors, and lower-tier subcontractors. “Contractor” does not mean a unit of State or local government where construction is performed by its own employees.”

(3) “Contract” means a contract executed by a Recipient, Subrecipient, prime contractor, or any tier subcontractor for construction, alteration, or repair. It may also mean (as applicable) (i) financial assistance instruments such as grants, cooperative agreements, technology investment agreements, and loans; and, (ii) Sub awards, contracts and subcontracts issued under financial assistance agreements. “Contract” does not mean a financial assistance instrument with a unit of State or local government where construction is performed by its own employees.

(4) “Contracting Officer” means the DOE official authorized to execute an Award on behalf of DOE and who is responsible for the business management and non-program aspects of the financial assistance process.

(5) “Recipient” means any entity other than an individual that receives an Award of Federal funds in the form of a grant, cooperative agreement, or technology investment agreement directly from the Federal Government and is financially accountable for the use of any DOE funds or property, and is legally responsible for carrying out the terms and conditions of the program and Award.

(6) “Subaward” means an award of financial assistance in the form of money, or property in lieu of money, made under an award by a Recipient to an eligible Subrecipient or by a Subrecipient to a lower-tier subrecipient. The term includes financial assistance when provided by any legal agreement, even if the agreement is called a contract, but does not include the Recipient's procurement of goods and services to carry out the program nor does it include any form of assistance which is excluded from the definition of “Award” above.


24


(7) “Subrecipient” means a non-Federal entity that expends Federal funds received from a Recipient to carry out a Federal program, but does not include an individual that is a beneficiary of such a program.

(a) Davis Bacon Act

(1) Minimum wages.

(i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and, without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics.

Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein, provided that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

(ii)(A) The Contracting Officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the Contract shall be classified in conformance with the wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:


25


(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;

(2) The classification is utilized in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

(B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the Contracting Officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the Contracting Officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30-day period that additional time is necessary.

(C) In the event the Contractor, the laborers or mechanics to be employed in the classification or their representatives, and the Contracting Officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the questions, including the views of all interested parties and the recommendation of the Contracting Officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30-day period that additional time is necessary.

(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii)(B) or (C) of this section, shall be paid to all workers performing work in the classification under this Contract from the first day on which work is performed in the classification.

(iii) Whenever the minimum wage rate prescribed in the Contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.

(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits

26


under a plan or program, provided that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

(2) Withholding. The Department of Energy or the Recipient or Subrecipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this Contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the Contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the Contract, the Department of Energy, Recipient, or Subrecipient, may, after written notice to the Contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

(3) Payrolls and basic records.

(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification

27


of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

(ii) (A) The Contractor shall submit weekly for each week in which any Contract work is performed a copy of all payrolls to the Department of Energy if the agency is a party to the Contract, but if the agency is not such a party, the Contractor will submit the payrolls to the Recipient or Subrecipient (as applicable), applicant, sponsor, or owner, as the case may be, for transmission to the Department of Energy. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead, the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime Contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the Department of Energy if the agency is a party to the Contract, but if the agency is not such a party, the Contractor will submit them to the Recipient or Subrecipient (as applicable), applicant, sponsor, or owner, as the case may be, for transmission to the Department of Energy, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the Recipient or Subrecipient (as applicable), applicant, sponsor, or owner).

(B) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Contract and shall certify the following:

(1) That the payroll for the payroll period contains the information required to be provided under § 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete;

(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the Contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly,

28


and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3;

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Contract.

(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (a)(3)(ii)(B) of this section.

(D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 3729 of title 31 of the United States Code.

(iii) The Contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Department of Energy or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the Contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

(4) Apprentices and trainees-

(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate,

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who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a Contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the

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wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(iii) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended and 29 CFR part 30.

(5) Compliance with Copeland Act requirements. The Contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this Contract.

(6) Contracts and Subcontracts. The Recipient, Subrecipient, the Recipient's, and Subrecipient's contractors and subcontractor shall insert in any Contracts the clauses contained herein in(a)(1) through (10) and such other clauses as the Department of Energy may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Recipient shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of the paragraphs in this clause.

(7) Contract termination: debarment. A breach of the Contract clauses in 29 CFR 5.5 may be grounds for termination of the Contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.

(8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this Contract.

(9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general disputes clause of this Contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Recipient, Subrecipient, the Contractor (or any of its subcontractors), and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.
(10) Certification of eligibility.

(i) By entering into this Contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).


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(ii) No part of this Contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).

(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.

(b) Contract Work Hours and Safety Standards Act. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.

(1) Overtime requirements. No Contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(1) of this section, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1) of this section.

(3) Withholding for unpaid wages and liquidated damages. The Department of Energy or the Recipient or Subrecipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime Contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section.

(4) Contracts and Subcontracts. The Recipient, Subrecipient, and Recipient's and Subrecipient's contractor or subcontractor shall insert in any Contracts, the clauses set forth in paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Recipient shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section.


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(5) The Contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the Contract for all laborers and mechanics, including guards and watchmen, working on the Contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. The records to be maintained under this paragraph shall be made available by the Contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the Department of Energy and the Department of Labor, and the Contractor or subcontractor will permit such representatives to interview employees during working hours on the job.

(c) Recipient Responsibilities for Davis Bacon Act

(1) On behalf of the Department of Energy (DOE), Recipient shall perform the following functions:

(i) Obtain, maintain, and monitor all Davis Bacon Act (DBA) certified payroll records submitted by the Subrecipients and Contractors at any tier under this Award;

(ii) Review all DBA certified payroll records for compliance with DBA requirements, including applicable DOL wage determinations;

(iii) Notify DOE of any non-compliance with DBA requirements by Subrecipients or Contractors at any tier, including any non-compliances identified as the result of reviews performed pursuant to paragraph (ii) above;

(iv) Address any Subrecipient and any Contractor DBA non-compliance issues; if DBA non-compliance issues cannot be resolved in a timely manner, forward complaints, summary of investigations and all relevant information to DOE;

(v) Provide DOE with detailed information regarding the resolution of any DBA non-compliance issues;

(vi) Perform services in support of DOE investigations of complaints filed regarding noncompliance by Subrecipients and Contractors with DBA requirements;

(vii) Perform audit services as necessary to ensure compliance by Subrecipients and Contractors with DBA requirements and as requested by the Contracting Officer; and

(viii) Provide copies of all records upon request by DOE or DOL in a timely manner.

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(d) Rates of Wages

The minimum wages to be paid laborers and mechanics under this award involved in performance of work at the project site, as determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the pertinent locality, are found at http://www.wdol.gov/ , by clicking on “Selecting DBA WDs”. The Wage Determination Number(s) and General Decision Number(s) specific to this award are found below. These wage rates are minimum rates and are not intended to represent the actual wage rates that the Contractor may have to pay.
 

CONSTRUCTION TYPE
WAGE DETERMINATION NUMBER
GENERAL DECISION NUMBER
Building
CA29, CO7, CA25, KS8
CA100029 03/19/2010 CA29
CO100007 03/12/2010 CO7
CA100025 03/12/2010 CA25
KS100008 03/19/2010 KS8
Highway
n/a
n/a
Residential
n/a
n/a

30.    CONTINGENCY

Contingency Requirement . A minimum amount of Contingency is required for awards selected under Funding Opportunity Announcement DE-FOA-0000096. “Contingency” is defined in the Appendix as: “a provision in the Project Management Plan to mitigate cost and/or schedule risk.” Contingency funds must be (a) liquid, (b) immediately available, and (c) unrestricted funds dedicated exclusively to the Project for the purpose of mitigating project performance baseline risk. Contingency funds may come from a variety of sources, as approved by the Contracting Officer on a case-by-case basis in accordance with the Appendix to these Special Terms and Conditions (Attachment 5).

Minimum Amount of Contingency . Initial Contingency funds shall be not less than 25 percent of the Total Project Cost that begins with Budget Period 2, as more specifically described in Section B(2) of the Appendix to these Special Terms and Conditions (Attachment 5).

Contingency Not Counted Toward Cost Share or DOE Reimbursement . Contingency is in addition to the Total Project Cost and cannot count toward cost share or result in reimbursement by DOE a bove the share approved in the award.

Appendix . All of the terms and conditions set forth in this provision shall be further subject to the requirements and clarifications of Attachment 5.

31.    NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS

For this award, DOE has made a final NEPA determination for all activities under this award that are listed in the Statement of Project Objectives (SOPO) formally approved by DOE through incorporation into and attached to the award. You (Recipient) may proceed with the

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activities as described in the SOPO. This NEPA determination is specific to the project as described in the SOPO formally approved by DOE through incorporation into and attached to the award.

If you later add to or modify the activities in the above-referenced SOPO, you must submit the revised SOPO to the DOE Project Officer. Those additions or modifications are subject to review by the NEPA Compliance Officer and approval by the DOE's Contracting Officer. Recipients are restricted from taking any action using Federal funds, which would have an adverse effect on the environment or limit the choice of reasonable alternatives prior to DOE providing a final NEPA determination. Any new activities or modification of activities is subject to additional NEPA review and is not authorized for federal funding until DOE provides a NEPA determination on those additions or modifications. DOE may require the Recipient to submit additional information to support a revised NEPA determination. Should you move forward with activities that are not authorized for Federal funding by the DOE Contracting Officer in advance of the final NEPA determination, you are doing so at risk of not receiving Federal funding and such costs may not be recognized as allowable cost share.

32.    SUBCONTRACT APPROVALS

a.
At Risk Notice : The Recipient must obtain written approval by the Contracting Officer for reimbursement of costs associated with subcontractors/activities listed in paragraph b. below. No funds shall be expended on the subcontracts supporting the tasks identified in paragraph b. below unless DOE approval is provided. DOE does not guarantee or assume any obligation to reimburse costs incurred by the Recipient or subcontractor for these tasks, until approval is provided in writing by the Contracting Officer.

b.
Contracting Officer approval as set out above is requested for the following:

Activity and Subcontractors      Total Amount ($)
TBD - Product Testing        $20,000
TBD - Analysis            $15,000


The DOE Contracting Officer may require additional information concerning these tasks prior to providing written approval.

c.
Upon written approval by the Contracting Officer, the Recipient may then receive payment for the tasks identified in paragraph b. above for allowable costs incurred, or DOE will recognize costs incurred toward cost share requirements, if any, in accordance with the payment provisions contained in the Special Terms and Conditions of this agreement.


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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.

Collaboration Agreement

This Collaboration Agreement, dated as of March 13, 2013 (the “Effective Date”), is entered into by and between Amyris, Inc., a Delaware corporation, having its place of business at 5885 Hollis Street, Suite 100, Emeryville, California 94608 (“ Amyris ”) together with its Affiliates (the “ Amyris Entities ”) and Firmenich SA, an entity organized under the laws of Switzerland and having its place of business at 1 Route des Jeunes, 1211 Geneva, Switzerland (“ Firmenich ”). Amyris and Firmenich may be referred to herein individually as a “ Party ” and collectively as the “ Parties ”.
RECITALS
WHEREAS, Amyris is a technology company focused on the research, development, production and commercialization of a variety of renewable fuel, chemical and consumer products and has developed a proprietary microbial production technology which converts sugars derived from various plant sources into specific compounds of interest and technology, processes and equipment to produce the compounds of interest on an industrial scale; and
WHEREAS, Firmenich is a member of the privately held Geneva-based Firmenich Group, a world leader in the flavours and fragrance (“ F&F ”) industry, specialized in research, development and production of aromatic ingredients, as well as creation, marketing and sale of fragrances, flavors and related ingredients to consumer industries. Firmenich has a broad portfolio of F&F products and extensive marketing capabilities globally. Firmenich currently operates in over 50 countries and has three Research & Development centers in Geneva (Switzerland), Princeton, NJ (USA), and Shanghai (China) to develop novel molecules, formulations, and new applications in the F&F sector; and
WHEREAS, the Parties had previously entered into a Master Collaboration Agreement dated November 5, 2010 (the “Master Collaboration Agreement”), and a Joint Development Agreement dated November 5, 2010 (the “Joint Development Agreement,” collectively, the “Prior Agreements”), for the purpose of collaborating to use the Amyris' Strain Generation Technology to develop, produce and commercialize the Initial Ingredient, the Follow On Ingredient and the Third Ingredient (as defined in the Master Collaboration Agreement) in the F&F Market (as defined in the Master Collaboration Agreement); and
WHEREAS, the Parties now wish to enter into this Agreement to expand their relationship to collaborate on the development and worldwide use and commercialization of Ingredients in the F&F Market using Strain Generation Technology Controlled by Amyris and other contribution of the Parties as further described below and to supersede the Prior Agreements, which shall no longer be effective as of the Effective Date hereof.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants of the Parties contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. DEFINITIONS

1.1    “ Affiliate ” means, with respect to a Party, any individual, company, organization or other entity that, directly or indirectly, is controlled by, controls or is under common control with such Party by ownership, directly or indirectly, of more than fifty percent (50%) of the stock entitled to vote in the election of directors, or if there is no such stock, more than fifty percent (50%) of the ownership interest in such individual or entity.

1.2    “ Amyris Confidential Information ” means any knowledge and information of any kind (such as technical, financial, commercial and social information) pertaining to the business and activities of Amyris or any of its Affiliates and not available to the public. Amyris Confidential Information will include, without limitation, products and processes, ingredients, recipes, formulae, know-how, models, business plans, samples, inventions, designs, ideas, research and development programs, marketing and sales data, customer and supplier information, business data specifications, as well as any other information pertaining to the Amyris Strain Generation Technology or the business of Amyris. Any Amyris Background Intellectual Property, Amyris Non-Project Intellectual Property and Amyris Collaboration Intellectual Property will be considered Amyris Confidential Information. Amyris Confidential Information also includes any other information specifically designated as the “Confidential Information” of Amyris in this Agreement. Amyris Confidential Information may be presented in any form, orally or in writing, in any media (whether paper, digital, electronic or otherwise).

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1.3    “ Amyris Collaboration Intellectual Property ” means any and all Collaboration Intellectual Property other than Firmenich Collaboration Intellectual Property. For the avoidance of doubt, Amyris Collaboration Intellectual Property includes, without limitation, (a) the Intermediates, (b) the Ingredients except for Ingredients produced through the use of Firmenich Non-Project Intellectual Property, (c) the method of making the Ingredients except for methods that are part of Firmenich Non-Project Intellectual Property, (d) the Strains, including without limitation, the Commercial Strains, and (e) information and inventions related to Strain Generation Technology.

1.4    “ Amyris Product ” means any Intermediate or Ingredient Controlled by Amyris or its Affiliates, licensees or sublicensees during the term of this Agreement, in each case for applications that is intended for internal use or commercialization outside the F&F Market and in the Exclusions; provided, however, no Ingredient, Intermediate, Fragrance or Flavor that is a Firmenich Product shall be an Amyris Product.

1.5     “ Amyris Non-Project Intellectual Property ” means any and all information and inventions, and all intellectual property rights therein or pertaining thereto, that is Controlled by Amyris or its Affiliates during the term of this Agreement that is necessary or actually used in the chemical transformation of an Intermediate to an Ingredient, excluding Amyris Collaboration Intellectual Property and excluding any Amyris Background Intellectual Property.

1.6    “ Background Intellectual Property ” means, with respect to a given Party, any and all information and inventions, and all intellectual property rights therein or pertaining thereto, that are Controlled by such Party or its Affiliates during the term of this Agreement that is necessary, required or actually used in, the development, manufacture and/or commercialization of any Strain, Commercial Strain, Intermediate or Ingredient, excluding Collaboration Intellectual Property. For clarity, Firmenich Non-Project Intellectual Property shall not be included in Background Intellectual Property.

1.7    “ Budget ” will have the meaning set forth in section 3.1.

1.8    “ Business Plan ” means a plan, that, inter alia , presents projections for volume and pricing of an Ingredient (in the form of a Firmenich Product) in order to optimize long term returns for both Parties and which shall be in the form agreed upon by the Steering Committee.

1.9    “ Change in Control ” means (i) a sale of all or substantially all the assets of a Party to a direct competitor of the other Party, excluding any sale to an Affiliate of such Party, or in the case of Amyris, Total or Cosan; (ii) any consolidation or merger of a Party with or into any other corporation or other entity or person who is a direct competitor of the other Party, or any other corporate reorganization, in which the stockholders, members or owners of such Party immediately prior to such consolidation, merger or reorganization own less than fifty percent (50%) of the voting power of the surviving entity immediately after such consolidation, merger or reorganization, excluding any consolidation, merger or reorganization effected exclusively to change the domicile of such Party or an initial public offering; or (iii) the acquisition by any direct competitor of the other Party who is a person, entity or group within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), or any comparable successor provisions of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of a Party such that immediately after the acquisition, a person, entity or group that is not a stockholder, member or owner of such Party as of the date of this Agreement owns securities of such Party representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors, or if there is no such stock, at least fifty percent (50%), by voting power, of the ownership interest in such Party.

1.10    “ Collaboration ” will have the meaning set forth in section 2.1 of this Agreement.

1.11    “ Collaboration Intellectual Property ” means (a) the Strains, including without limitation, the Commercial Strains and (b) any and all information and inventions that have been or are conceived, discovered, developed or otherwise made by or on behalf of either Party or its Affiliates or jointly by or on behalf of the Parties or their Affiliates in the performance of any activities under this Agreement, the Prior Agreements, the Supply Agreement or the Work Plans, and, in each case ((a) and (b)) all intellectual property rights therein or pertaining thereto. Collaboration Intellectual Property does not include Firmenich Non-Project Intellectual Property.

1.12    “ Commercial Strain ” means, with respect to an Ingredient, the Strain or Strains that are selected by Amyris for commercial production of such Ingredient meeting the respective commercial Ingredient Specifications (as such may be modified by mutual agreement), or with respect to an Intermediate, the Strain or Strains that are selected by Amyris for commercial production of such Intermediate meeting the respective commercial specifications agreed by the Parties.

1.13    “ Confidential Information ” means (a) with respect to Amyris, the Amyris Confidential Information, (b) with respect to Firmenich, the Firmenich Confidential Information, and (c) with respect to both Parties, the terms of this Agreement, the Prior

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Agreements, the Supply Agreement and any other information specifically designated as the “Confidential Information” of both Parties in this Agreement, the Prior Agreements or the Supply Agreement.

1.14    “ Control ” means that the applicable Party has the rights necessary to grant the rights and license granted or to be granted in this Agreement, whether by ownership or otherwise without breaching any third party obligation in relation to Exclusions or agreements existing prior to the Effective Date for Intermediates or Ingredients outside the F&F Market.

1.15     “ Event of Insolvency ” means with respect to a Party: (i) such Party makes a general assignment for the benefit of creditors; (ii) such Party files an insolvency petition in bankruptcy; (iii) such Party petitions for or acquiesces in the appointment of any receiver, trustee or similar officer to liquidate or conserve its business or any substantial part of its assets; (iv) such Party commences under the laws of any jurisdiction any proceeding involving its insolvency, bankruptcy, reorganization, adjustment of debt, dissolution, liquidation or any other similar proceeding for the release of financially distressed debtors, or the Board of Directors of such Party votes to commence any such proceeding; or (v) such Party becomes a party to any proceeding or action of the type described above and such proceeding or action remains undismissed or unstayed for a period of more than sixty (60) days.

1.16    “ Exclusions ” means (i) the farnesene-derived molecules contemplated for use and sale as a Fragrance or Flavor in Amyris' farnesene-derivative contract executed with a Third Party prior to the Effective Date and (ii) [*].

1.17    “ F&F Market ” means the worldwide market for individual ingredient(s), including the Ingredient(s), Flavor(s) and/or Fragrance(s), whose intended or primary functionality (individually or as part of a blend with auxiliary materials) is to: (a) impart, modify, boost or enhance a desirable scent or odor, in consumer and industrial grade products (including, without limitation, fine fragrances, cosmetics, toiletries, home and body care, detergents, repellants, fertilizers, air fresheners and soaps); and (b) impart, modify, boost or enhance a desirable taste, flavor or sensation, or to conceal, modify or minimize an undesirable taste, flavor or sensation, in materials designed for consumption (including food, beverages, drugs, tobacco and any animal feed).

1.18    “ Firmenich Collaboration Intellectual Property ” means any and all Collaboration Intellectual Property relating to (a) any process of polishing or purifying any Ingredient for use in the F&F Market and any other R&D support necessary to bring an Ingredient to appropriate olfactive quality as described in section 3.3, (b) any terpene synthase gene, (c) analytical methods to monitor compliance with the applicable Ingredient Specifications and (d) any Ingredient which is produced through the use of Firmenich Non-Project Intellectual Property. For clarity, Firmenich Collaboration Property does not include Firmenich Background Intellectual Property or Firmenich Non-Project Intellectual Property except for Firmenich Non-Project Royalty-Bearing Intellectual Property contributed to the Collaboration pursuant to section 3.11.3.

1.19    “ Firmenich Confidential Information ” means any knowledge and information of any kind (such as technical, financial, commercial and social information), pertaining to the business and activities of Firmenich or any of its Affiliates and not available to the public. Firmenich Confidential Information will include without limitation products and processes, ingredients, recipes, formulae, know-how, models, business plans, samples, inventions, designs, ideas, research and development programs, marketing and sales data, customer and supplier information, business data specifications, as well as any other information pertaining to the business of Firmenich. Any Firmenich Background Intellectual Property, Firmenich Non-Project Intellectual Property and Firmenich Collaboration Intellectual Property will be considered Firmenich Confidential Information. Firmenich Confidential Information includes any other information specifically designated as the “Confidential Information” of Firmenich in this Agreement. Firmenich Confidential Information may be presented in any form, orally or in writing in any media (whether paper, digital, electronic or otherwise.


[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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1.20    “ Firmenich Non-Project Intellectual Property ” means any and all information and inventions, and all intellectual property rights therein or pertaining thereto Controlled by Firmenich or its Affiliates during the term of this Agreement that is (a) described in section 3.11, or (b) developed independently of this Agreement using any Firmenich Background Intellectual Property.

1.21    “ Firmenich Product ” means any (i) Intermediate or Ingredient Controlled by Firmenich or its Affiliates, licensees or sublicensees during the term of this Agreement, in each case that is intended for internal use, external sale or commercialization in the F&F Market, and (ii) any Fragrance or Flavor containing any one or more Ingredients.

1.22    “ Flavor ” means a blend of two or more ingredients, including one or more Ingredients and which is used primarily to impart, modify, boost or enhance a desirable taste, flavor, or sensation, or to conceal, modify or minimize an undesirable taste, flavor, or sensation, in materials designed for consumption (including food, beverages, drugs and tobacco and any animal feed).

1.23    “ Fragrance ” means a blend of two or more ingredients, including one or more Ingredients and which is used primarily to impart, modify, boost or enhance a desirable scent or odor, or to conceal or minimize an undesirable scent or odor, in consumer and industrial grade products.

1.24     “ Initial Ingredient ” means a renewable isoprenoid substance comprised of one or more compounds, which substance is being developed by the Parties as a substitute for [*] and which meets the applicable Ingredient Specifications.

1.25    “ Ingredient ” means a substance comprised of one or more compounds made directly by a strain owned by Amyris using the Strain Generation Technology or Strain or derived from an Intermediate, that (a) meets the applicable Ingredient Specifications, and (b) is developed under this Agreement for formulation in a Flavor or Fragrance.

1.26     “ Ingredient Specification(s) ” will have the meaning set forth in an exhibit to the applicable Work Plan, as amended from time to time by the Parties. For the avoidance of doubt, the Ingredient Specifications relate to the composition of the Ingredient prior to any polishing, blending and/or other activities that will be conducted by or on behalf of Firmenich. The Ingredient Specifications for the Initial Ingredient are set out in Appendix A.

1.27     “Intermediate” means an isolated substance, including obvious chemical derivatizations of such substances that can be made without using any Firmenich Patents or knowhow, comprised of one or more compounds made directly using a strain owned by Amyris using Strain Generation Technology or Strain in connection with a Project and which is required and/or made in the development or production of an Ingredient, but is not an Ingredient itself.

1.28    “ Material Breach ” means a breach of or default in any material term or condition of this Agreement by either Party, and the failure of such Party to remedy such default or breach within 60 (sixty) days after receipt of written notice thereof from the other Party hereto, except in the case of a payment breach, as to which the breaching Party will only have a 10-business day cure period. “Material Breach” includes, without limitation, the following: a breach by either Party of their respective obligations as to second sourcing, a breach of exclusivity obligations or a material breach of confidentiality provisions.

1.29     “ Patents ” 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.

1.30    “ Project ” will have the meaning set forth in section 2.2 of this Collaboration Agreement.


[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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1.31     “Reasonable Efforts” means, with respect to a given goal, the exercise of diligent efforts and/or resources consistent with the practice of similar-sized companies in similar industries for a product or opportunity with comparable risk and market opportunity.

1.32    “ Regulatory Plan ” means a plan for all regulatory activities to be conducted under a Project, which plan will include milestones, timelines and budget for regulatory activities and approvals (including but not limited to, as required for manufacturing and production and as required for development and sales in the F&F Market by Firmenich), as approved by the Steering Committee.

1.33    “ Start-Up Plan ” means a plan for (i) assessing customer acceptance of an Ingredient (which shall be Firmenich's responsibility) and (ii) providing production capacity in order to meet the Business Plan (which shall be Amyris' responsibility) which plan will be prepared and presented to the Steering Committee at the time required by the Steering Committee, and which will include milestones and timelines for execution.

1.34    “ Steering Committee ” will have the meaning set forth in section 2.6 of this Agreement.

1.35    “ Strain ” means a genetically modified microbial organism developed by or on behalf of either Party or its Affiliates or jointly by or on behalf of the Parties or their Affiliates, in each case, in the performance of any activities under a Work Plan, that includes at least [*].

1.36    “ Strain Generation Technology ” means any and all information and inventions, which information or inventions relate to the genetic engineering of microbial host cells, genetically modified host cells, fermentation methods for making isoprenoid compounds using genetically modified host cells, recovery of isoprenoid compounds from fermentation broth, isolation of isoprenoid compounds directly from fermentation broth and all intellectual property rights therein or pertaining thereto.

1.37    “ Supply Agreement ” means the Supply Agreement to be entered into pursuant to section 2.3 for the supply by Amyris to Firmenich of Intermediates or Ingredients, as the case may be.

1.38    “ Target Cost ” means, for the Initial Ingredient, an initial target fermentation and recovery cost for all production activities performed by or on behalf of Amyris of U S [*] dollars (US$[*]) per [*] of the Initial Ingredient, which meets the Ingredient Specifications, exclusive of logistics and transportation and any further polishing, distillation, blending with [*], if applicable, or other production activities to be conducted by Firmenich. For all other Ingredients, the targeted dollar amount of initial target fermentation and recovery cost will be determined using a Target Cost Model.

1.39    “ Target Cost Model ” means the model which, inter alia , presents underlying assumptions, estimates and, to the extent possible, actual costs comprising the Target Cost, which Target Cost Model shall be in the form agreed upon by the Steering Committee.

1.40    “ Technical Committee ” will have the meaning set forth in section 2.7 of this Agreement.

1.41    “ Termination Date ” means, with respect to the expiration or termination of this Agreement, the effective date of such expiration or termination.

1.42    “ Third Party ' means any individual, company, organization or entity other than Amyris, Firmenich and their respective Affiliates.

1.43    “ Work Plan ” means the activities performed in connection with a Project, as detailed in section 2.2 and Appendix A hereto.

2. SCOPE

2.1     General Scope . The Parties will collaborate to develop, produce and commercialize Ingredients meeting agreed specifications using Amyris' Strain Generation Technology and Firmenich Background Intellectual Property for use and sale as an ingredient in a Fragrance or Flavor in the F&F Market except for the Exclusions. The Parties may propose to develop any compound, set of compounds or blend of compounds meeting the definition of Ingredient except for those expressly within one or more Exclusions. Amyris must, before the start of any research and development of any Ingredient, notify Firmenich as soon as reasonably possible if Amyris is aware or should be


[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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reasonably aware of any Exclusion which may prohibit or limit the exclusivity rights granted by Amyris to Firmenich under this Agreement, including notification if a molecule proposed during the Steering Committee falls within the Exclusions. If any such Exclusion exists with respect to such Ingredient, Amyris must provide Firmenich written reasons justifying such Exclusion. For the Projects, Amyris will provide the contributions set out in section 3.2 and Firmenich will provide the contributions in section 3.3. The foregoing activities of the Parties are referred to as the “ Collaboration ” and will be conducted on the terms and conditions set forth in this Agreement. The Parties acknowledge that the Collaboration is limited to the F&F Market except for the Exclusions and that they may compete in the Exclusions and in any market that is outside the F&F Market.

2.2     Research and Development . The Parties will cooperate to use Reasonable Efforts on the research and development of the Ingredients but only as directed from time to time by the Steering Committee using Amyris' Strain Generation Technology (each, a “ Project ”) on the terms and conditions set forth herein. Each Project will be conducted under a Work Plan, substantially in the form attached hereto as Appendix A which is the Work Plan for the Initial Ingredient (except as needed to adjust for the particular Project). Each Work Plan will describe the research and development activities required to enable Amyris to manufacture the Ingredient to be produced under the Work Plan, as well as Target Cost, Ingredient Specifications, anticipated development timeline, estimate of resources required and a mutually agreed-upon set of development milestones. A Work Plan will be used by the Technical Committee and the Steering Committee to track progress and to allocate resources. It is expected that the division of responsibilities between the Parties will be similar for all Projects. For each new Project undertaken by the Parties, the Work Plan therefor will be entered into within 2 months of the Steering Committee's decision to proceed. During the development phase of each Project, each Ingredient delivered by Amyris to Firmenich will meet the Ingredient Specifications. The development responsibilities of each Party are set forth in more detail in Article 3 below. The term of the research and development activities hereunder shall be as set forth in Article 20 (Term and Termination).

2.3     Supply .

2.3.1    The goal of each Project is to develop the relevant Ingredient which meets the Ingredient Specifications for production and commercialization in the F&F Market. If the Steering Committee decides that Amyris is the nominated manufacturer and supplier of the Ingredient, Amyris will produce and sell the applicable Ingredient to Firmenich for use in the F&F Market under a Supply Agreement to be negotiated by the Parties. The Supply and Commercialization Agreement for the Initial Ingredient was previously completed by the Parties and is referred to herein as the “Supply Agreement for the Initial Ingredient.” It will remain in place until amended and replaced by the Supply Agreement. The Supply Agreement will be completed by June 2013, or such other date as may be agreed by the Parties, substantially in line with the principles set out in Appendix B, and thereafter will be the Supply Agreement for all Ingredients. Subject to the foregoing, the Ingredients will be produced by Amyris (or on behalf of Amyris) for supply to Firmenich on the terms and conditions set forth in the Supply Agreement. Firmenich will purchase the Ingredients in accordance with the Supply Agreement and, if necessary, conduct further finishing of the Ingredients, as it deems appropriate, for purposes of internal use as well as for external sale in the F&F Market.

2.3.2    If the Steering Committee decides that any Intermediate has commercial value for external sale or may be utilized by Firmenich for internal use and that Amyris is the nominated manufacturer and supplier of that Intermediate, that Intermediate may also be produced and sold under the Supply Agreement. Otherwise, the Parties will discuss in good faith the potential terms and conditions of such supply, providing however that both Parties must consent to such a supply arrangement.

2.4     Manufacturing .    For purposes of this Agreement and subject to Article 20, Amyris will perform the fermentation and isolation-related steps for the Intermediates and Ingredients, and Firmenich will perform the polishing of Ingredients, and, as agreed to on a case-by-case basis, the downstream chemical conversion and other transformation of the Intermediates or Ingredients, unless otherwise expressly agreed by the Parties or expressly set out in this Agreement.

2.5     Commercialization . Firmenich will use, on a Reasonable Efforts basis, its marketing and distribution capabilities to sell Ingredients to the F&F Market except for the Exclusions, for purposes of internal use as well as for external third party sales. Firmenich will be responsible for developing a Business Plan for each Ingredient, and will use Reasonable Efforts to optimize the return on sales of the Ingredients for both Parties. Firmenich shall use Reasonable Efforts to market and sell such Ingredients in the F&F Market except for the Exclusions. The precise nature and elements of the marketing and sale activities shall be at the sole and absolute discretion of Firmenich. Ingredients for commercialization will be selected by the Steering Committee if they meet the milestones determined by the Steering Committee for each of them, such as Target Cost, olfactory standards as determined by Firmenich's perfumers, and ability to be produced on a commercial scale and at Target Cost. Firmenich shall keep the Steering

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Committee advised of its commercialization activities and shall seek and reasonably consider advice and input from the Steering Committee. As set forth in more detail in Article 9, Firmenich shall have exclusive rights in the F&F Market except for the Exclusions to commercialize and use the Intermediates and Ingredients subject to this Agreement.

2.6     Steering Committee .

2.6.1    A Steering Committee composed of two representatives who are employees of each Party (beginning with [*] and [*] from Firmenich and [*] and [*] from Amyris, any of whom can be substituted at any time in the sole discretion of their respective employer, Firmenich or Amyris) will meet quarterly until the Termination Date of the last Commercialization Program or as otherwise mutually agreed by the Parties. Additional employees of either Party may attend and participate in discussions at Steering Committee meetings with the prior approval of the other Party. The role of the Steering Committee will extend through the Supply Agreement and accordingly will be to set the overall strategy and business direction of each of the Projects. The Steering Committee's role, in addition, will be to foster a spirit of collaboration between the Parties and oversee and coordinate each Party's activities to optimize capital efficiency. The Steering Committee will be responsible for review and approval, subject to the terms of section 2.6.3 below, of selection of Commercial Strains, Ingredients, Work Plans (and any change to it requiring an increase in the then current Budget for that Project), Target Cost, Target Cost Model, Budgets, Regulatory Plan, Start Up Plan, the Collaboration portfolio of Projects, whether and how to transform an Intermediate into an Ingredient in accordance with section 3.11, commercialization strategy (marketing and distribution) and manufacturing strategy for the Intermediates and Ingredients (including capital expenditure, manufacturing location and proposed manufacturer for the Intermediates and Ingredients, as the case may be), as well as conferring with the Technical Committee on resourcing. The Steering Committee will also be responsible for final approval of resourcing and for resolving any disputes of the Technical Committee where there is a deadlock. Firmenich (and, at Firmenich's request, Amyris) will nominate new Projects and present the business case for proceeding with such Projects to the Steering Committee. In addition, the Steering Committee will review the anticipated Ingredient Price, and Firmenich Production and Commercialization Costs at least quarterly and review the Maximum Annual Production Cap and recommend changes as necessary. The Steering Committee will perform such other duties and functions as may be assigned to the Steering Committee in this Agreement or later assigned to the Steering Committee by written agreement of the Parties. The Steering Committee chairman shall initially be [*], and the chairmanship will rotate between the Parties annually with a new chairman to assume such position after each one year term of office.

2.6.2    All decisions by the Steering Committee will be made by consensus, with one vote cast by each Party (subject to the following). A quorum of one representative from each Party will be required for every meeting. The chairperson of the Steering Committee is responsible for preparing and circulating draft minutes after each meeting for approval at the next meeting. The Steering Committee will, at that meeting, resolve any areas of disagreement or ambiguity if they are unable to fully concur with the draft minutes. The chairperson will within ten (10) days circulate the revised minutes for approval, and if the Steering Committee still fail to agree, the Steering Committee will meet by teleconference or otherwise within the following five (5) days, with the process repeated until the Steering Committee agrees on the final written minutes, which shall be signed or acknowledged by all members of the Steering Committee.

2.6.3     Deadlock
(a) In the event of any deadlock at the Steering Committee on matters of implementation after the Steering Committee has unanimously approved a Project:
(1)
Amyris has the deciding vote as to matters concerning strain production, scale up and manufacture (but not on choosing the manufacturer if the Steering Committee decides Amyris is not the nominated manufacturer and supplier), including as part of its responsibilities in preparing and implementing the Start-Up Plan, and regulatory responsibilities that have been allocated to it under the Regulatory Plan and day to day management of any Work Plan; and
(2)
Firmenich has the deciding vote as to matters concerning the polishing, blending or other production activities conducted by Firmenich to ensure suitability of the Intermediate or Ingredient, as the case may be, for use in the F&F Market and commercialization (including sales, marketing and distribution strategy) including as part of its responsibilities in preparing and implementing the Start-Up Plan and regulatory approval process (to the extent regulatory responsibilities have been allocated to it under the Regulatory Plan).


[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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(b) Starting three years after the Effective Date, Firmenich has the deciding vote in the event of any deadlock at the Steering Committee as to matters concerning necessary adjustments to the Strategic Model if market conditions demonstrate benefits to change pursuant to section 3.1, provided however that Firmenich agrees to always adjust such Strategic Model only in the best interest of the Collaboration and that Firmenich does not make more than one major unilateral revision to the Strategic Model more than once a year.

(c) When a Party has the deciding vote, it will consider the other Party's comments in good faith. Prior to a Party casting a deciding vote, the non-deciding Party may request that the Dispute be escalated to the Party's respective Chief Executive Officers in accordance with the procedures set forth in section 7.1. If the Chief Executive Officers are unable to reach consensus, the Party with the deciding vote has final authority on the issue and the matter may not be sent to arbitration.

2.6.4    The Steering Committee and any Technical Committee formed in connection with this Agreement will continue to exist until the first to occur of (a) the Parties mutually agreeing to disband one or both such committees, or (b) one Party providing to the other Party written notice of its intention to disband and no longer participate in one or both such committees, which either Party retains the right to do at any time during the term of this Agreement, in its sole discretion. In the event one Party has provided written notice as referred to in this section 2.6.4 to disband one or both such committees, such affected committee will consist solely of the Party not exercising its right to disband, all committee responsibilities will be reassigned to such Party, based on mutual agreement with dispute resolution as would apply under this Agreement in the case of an analogous decision by such committee, and the non disbanding Party will retain the final decision making authority assigned to the disbanding Party in section 2.6.3 with respect to certain subject matters (subject to the escalation provisions described above).

2.7     Technical Committee . A Technical Committee for each Project composed of two representatives of each Party (currently [*] and an additional member to be named within fifteen (15) days of the Effective Date from Firmenich and [*] and [*] from Amyris, any of whom can be substituted at any time in the sole discretion of their respective employer, Firmenich or Amyris) will meet as frequently as deemed necessary by its members to fulfill its role. The role of the Technical Committee will be (i) developing Work Plans for each Ingredient (except the Initial Ingredient) for submission to the Steering Committee for approval, (ii) overseeing and coordinating the Parties' activities under each Work Plan, (iii) reviewing the Work Plan at least every three (3) months and making changes, if any are necessary or otherwise beneficial to the Project, to the Work Plan (or recommending such changes to the Steering Committee for approval if such changes require an increase in the Budget), (iv) monitoring and evaluating progress under the Work Plan, (v) reporting status and progress to the Steering Committee, including notice of any potential technical infeasibility of the Project, (vi) making recommendations to the Steering Committee on allocation of technical resources (using the number of FTEs available based on funding agreed to by the Steering Committee), (vii) evaluating and approving the proposed description and content of the Escrowed Materials to be deposited pursuant to section 3.4; and (viii) performing such other duties or functions as may be assigned by mutual agreement of the Parties. The Technical Committee chairman is initially [*], and chairmanship will rotate between the Parties annually. The chairperson of the Technical Committee is responsible for preparing and circulating draft minutes after each meeting for approval at the next meeting. In the event of any deadlock at the Technical Committee, the matter will be escalated to the Steering Committee.

3. Development Responsibilities

3.1     Project Activities and Budge t. Under the oversight of the Technical Committee and the Steering Committee, Amyris and Firmenich will each perform, or cause its Affiliates to perform, the activities designated for such Party in each Work Plan, in each case, in accordance with the timeline set forth in the Work Plan, as modified from time to time in accordance with this Agreement. The Work Plan for the Initial Ingredient is set forth in Appendix A hereto. The budget for each Project (the “ Budget ”) will be submitted to the Steering Committee for approval concurrently with the Work Plan for the Project. If the Technical Committee determines that a Project cannot be completed without exceeding the Budget for the Project by more than ten (10) percent, then the Technical Committee will submit a request to the Steering Committee to increase the Budget, provided that such request will not, in aggregate with the other Projects, exceed the Funding or the aggregate funding for the applicable year pursuant to section 3.10, as the case may be. Either Party, directly or through its representatives on the Technical Committee, may propose updates to the Work Plan to the Technical Committee from time to time as appropriate in light of changed circumstances. Any changes to the Work Plan, including the Budget, will require the consent of the Technical Committee and any increase in the Budget will require the consent of the Steering Committee. Firmenich will provide the Steering


[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


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Committee with a proposed model for the portfolio of Projects and priorities for the first three (3) years of the Collaboration (the “Strategic Model”), which shall be in the form appended hereto as Appendix C. Once the Strategic Model has been approved by the Steering Committee, Amyris will conduct its research and development activities in accordance with the Strategic Model, and any material deviation from it that is not corrected upon reasonable notice shall be considered a Material Breach by Amyris. However, the Steering Committee will regularly review the Strategic Model and make any adjustments if market conditions demonstrate benefits to change the priority of the development or production of the Ingredients.

3.2     Amyris Contributions and Responsibilities . Amyris shall provide Strain Generation Technology, Amyris Collaboration Intellectual Property, Amyris Background Intellectual Property and its research and development infrastructure, employee labor, pilot facilities and bio-manufacturing expertise. Amyris shall provide a core team to deliver Projects which will be supported by other Amyris employees or contractors with development and scale up expertise. Amyris shall only contribute funding as described in section 3.10. In addition, Amyris will be responsible to (a) develop and optimize a Strain or Strains for the production of each Ingredient in accordance with the Ingredient Specifications, including a process for the capture and isolation of the Ingredient from fermentation broth by conducting the activities in an approved Work Plan, (b) conduct process development and scale-up activities by conducting the activities in an approved Work Plan, (c) develop, at its sole cost, manufacturing capability for the initial production of commercial quantities of the Ingredient in accordance with the Start-Up Plan with the goal of achieving the Target Cost, (d) prepare and implement the portions of the Regulatory Plan for which it is responsible (e.g., relating to approvals required for operation of the production facility), (e) prepare and implement, at its sole cost, the portions of the Start-Up Plan for which it is responsible (e.g. relating to securing production capacity for the Ingredient), (f) propose updates to the Target Cost Model on an annual basis or whenever there is a material change in underlying assumptions (e.g., raw material purchasing strategy, fermentation productivity, batch time, labor, energy costs and geographical location) to optimize long term returns for both Parties, and (g) for potentially useful new products and technologies known to Amyris, including but not limited to new strain technologies, Amyris will inform the Steering Committee of such products and technologies, and Amyris will use reasonable and good faith efforts to be able to incorporate such products and technologies. Amyris further agrees to use its best efforts to obtain a license for the Collaboration to any Patents that would prevent the Parties from pursuing a Project. The Amyris FTEs and sub-contracting expense associated with Amyris' performance of the foregoing Work Plan activities will be included in Collaboration Costs (defined in section 4.1), which for the avoidance of doubt, is covered by the funding in section 3.10. Amyris will generally update the Target Cost Model and report on its activities under the Regulatory Plan and Start-Up Plan as needed, for presentation to and review by the Steering Committee on a quarterly basis. Amyris will discuss with Firmenich major decisions involving Intermediate and Ingredient manufacturing that may have a significant impact on long term returns for both Parties; provided that this does not affect any of Amyris' decision-making rights under this Agreement.

3.3     Firmenich Contributions and Responsibilities . Firmenich shall provide funding for the Collaboration as described in more detail in section 3.10. Firmenich will be responsible for (a) providing resources to assist Amyris in its development of Strains for the production of each Ingredient, including by providing the sequence of certain synthases, as specified in the Work Plan (but only if agreed to by the Parties after a review of data regarding the use of such synthases) and providing analytical methodologies and support; (b) providing expertise in downstream purification, polishing, distillation, blending, or other processing of the Ingredient to ensure that it will meet specifications unique to the F&F Market; (c)  preparing and implementing the portions of the Regulatory Plan for which it is responsible (e.g., TSCA and REACH), (d) preparing and implementing, at its sole cost, portions of the Start-Up Plan for which it is responsible (e.g. customer acceptance of the Ingredient in the F&F Market); and (e)  communicate changes in the Business Plan at least annually or whenever there is a material change in assumptions underlying the Business Plan (e.g. market pricing, estimated demand and competitive landscape) or in the costs of production and/or distributing a Product to optimize long term return for both Parties. Firmenich will generally update the Business Plan and report on its activities under the Regulatory Plan and Start-Up Plan as needed, for presentation to and review by the Steering Committee on a quarterly basis. For the avoidance of doubt, the foregoing will in no regard affect Firmenich's sole right to make decisions relating to sales and marketing strategy and operations with respect to each Intermediate or Ingredient, as the case may be, or require disclosure of Firmenich Confidential Information relating to its sales and marketing strategy or operations. Firmenich will discuss with Amyris major decisions involving sales and marketing of Firmenich Products that may have a significant impact on long term returns for both Parties with respect to each Ingredient; provided, that this does not affect any of Firmenich's decision-making rights under this Agreement. Firmenich will not be obliged, in connection with this Agreement, to provide to Amyris or Amyris Entities any Firmenich Non-Project Intellectual Property, any biological materials nor any chemical or other transformation of any Intermediate or Ingredient under this Agreement, except as Firmenich may expressly agree to provide pursuant to section 3.11.

3.4     Development Strain Escrow . Amyris will deposit, at Firmenich's expense (including reasonable expenses of Amyris FTEs), with a mutually agreed third party subject to an escrow agreement with the Parties (“Escrow Agent”),

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for each Intermediate and Ingredient, as applicable (a) not less than five nor more than one hundred of the most advanced Strains developed under the Work Plan (the amount within such range to be determined by the Technical Committee), or if an Intermediate and Ingredient has been commercialized, the Commercial Strain; (b) a technical report (including strain development history) describing the work to date under the Work Plan; and (c) copies of all supporting SOPs and all other material development-related documentation for each Intermediate and Ingredient developed under its Work Plan (collectively the “ Escrowed Materials ”). Amyris will bank the most current Strains for each Intermediate and Ingredient that has not yet reached commercialization every 6 months during the term of this Agreement and at the completion of each milestone for that Intermediate or Ingredient. Amyris will also bank the most current version of the Escrowed Materials for a Strain that has been selected by Amyris to produce an Intermediate or Ingredient in commercial quantities according to commercial specifications (each, a “Commercial Strain”) every 6 months during the Term to reflect any changed Escrowed Materials for a Commercial Strain and, if Firmenich has the right to access such Escrowed Materials following expiration or termination of this Agreement, prior to anticipated expiration or termination of this Agreement to reflect any changed Escrowed Materials. Amyris must, inform, before each and every deposit, the Technical Committee of the timing and description of the Escrowed Materials to be deposited. Firmenich may also, from time to time, obtain access to the Escrowed Materials for audit purposes, in particular to verify that the Escrowed Materials have been properly submitted and stored (provided that such access shall not include the ability to read or make copies of the reports, documentation, Strains or Commercial Strains or take possession of any Escrowed Material and, if Amyris requires, Firmenich's representative must be accompanied by Amyris' representative during such audit) and to allow testing by an independent laboratory reasonably agreed to by the Parties to evidence that the Strains or Commercial Strains, as the case may be, meet the specifications. For the avoidance of doubt, such independent laboratory would not have limitations with respect to reading reports or documentation but could not maintain copies of any reports, documentation or Strains or Commercial Strains after completing testing. Firmenich will have the right to access such Escrowed Materials in connection with the exercise of the Second Source Option or the Discretionary Second Source Option. In addition, the Escrowed Materials will be released from escrow for Firmenich's access under the conditions set forth in Article 20. However, Amyris will have no escrow obligations under this section and Firmenich will not be entitled to such right of access, if Firmenich is then in Material Breach of this Agreement or an applicable Supply Agreement or experiencing an Event of Insolvency or Change in Control. Firmenich may not transfer the Commercial Strain to any Third Party other than as permitted under this Agreement to an Alternate Supplier who has agreed in writing to comply with the terms and conditions set forth in Appendix D .

3.5     Diligence . During the term of this Agreement, each Party will use Reasonable Efforts to conduct the activities assigned to it under this Article 3 and each Work Plan. Except as otherwise set forth in this Agreement and Work Plan (where there is an overlap in activities), each Party bears its own costs with respect to activities under the Start-Up Plan.

3.6     Regulatory Plan . All of the costs incurred by the Parties under any Regulatory Plan approved by the Steering Committee will be added together and funded 50% by each Party, on an on-going basis. For the avoidance of doubt, such costs shall only include costs after the Initial Ingredient. The costs of complying with the Regulatory Plan will be added to the applicable Budget, and the Steering Committee will decide at what time and in what manner the Parties will be reimbursed for their Regulatory Plan costs. Regulatory Plan costs of each Party must be paid or accounted for in connection with the distribution of any Profits.

3.7     Performance and Subcontracting . Each Party will perform its respective Project activities in material compliance with applicable laws, rules and regulations. In addition, each Party will be responsible for securing any regulatory or other governmental approvals in order to conduct the Project activities assigned to it, except as may otherwise be allocated in the Regulatory Plan or this Agreement. Either Party may subcontract the performance of its respective activities under this Agreement; provided that (a) the subcontracting Party will oversee the performance by its subcontractors of the subcontracted activities in a manner that would be reasonably expected to result in their timely and successful completion and will remain responsible for the performance of such activities in accordance with this Agreement and the Work Plan, and (b) any agreement pursuant to which a Party engages a subcontractor will (i) be consistent in all material respects with this Agreement and (ii) contain terms obligating such subcontractor to: (A) comply with the non-disclosure and non-use provisions of this Agreement; and (B) provide the non-subcontracting Party with substantially the same rights with respect to any intellectual property arising from the performance of the subcontracted obligation as the non-subcontracting Party would have under this Agreement if such intellectual property had arisen from the performance of such obligation by the subcontracting Party; provided, further, however, that the Parties will confer and reach agreement on the subcontracting of any strain engineering activities prior to any such subcontracting.

3.8     Records and Inspection . Each Party will maintain, or cause to be maintained, all records and documentation relating to its activities under each Project, in sufficient detail to support filing for intellectual property protection for the Collaboration Intellectual Property and in material compliance with applicable laws, rules and regulations. Such

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records and documentation will be complete and accurate and will fully and properly reflect all work done under this Agreement, including in the performance of each Work Plan, and, when applicable, for use in connection with Patent filings, prosecution and maintenance for the Collaboration Intellectual Property. Such records and documentation will be retained for at least three (3) years or such longer period as may be required by applicable laws, rules and regulations. Each Party will use diligent efforts to ensure that such records and documentation include only information with respect to such activities and do not include, and are not commingled with, records of activities outside the Collaboration. Each Party will have the right, during normal business hours and upon reasonable notice, to inspect and copy any records maintained by the other Party pursuant to this section 3.8, for use by the receiving Party solely in connection with the performance of the Collaboration in a manner consistent with the terms of this Agreement or the enforcement of its rights under this Agreement. Each Party will notify the other Party prior to destroying any records required to be maintained under this section 3.8 and the other Party will have the right to take custody of such records and documentation within thirty (30) business days after receipt of such notice.

3.9     Reports . Each Party will present a report to the Technical Committee at each of its quarterly meetings describing (a) the Work Plan activities that it has performed, or caused to be performed, over the preceding quarter and course of each Project, evaluating the work performed in relation to the goals and timeline of each Work Plan, (b) its research and development activities in process and the future activities it expects to initiate during the then-current calendar year, as compared to the Work Plan, and (c) in the case of Amyris, the Collaboration Costs (as defined in section 4.1) incurred, and expected to be incurred, for the then-current calendar year, as compared to the Budget set forth in the Work Plan. In addition, each Party will report promptly to the Technical Committee through its respective Technical Committee representatives any material developments with respect to activities that it is responsible for performing under the Work Plan. Each Party will present to the Steering Committee, at least once per calendar quarter during the term of this Agreement, a report describing (i) its activities pursuant to the Regulatory Plan performed, or caused to be performed, over the preceding quarter and the course of the Project, and evaluating the Parties' activities performed in relation to the goals and timelines of such plan and (ii) following preparation of the Start-Up Plan, its activities conducted, or caused to be conducted, pursuant thereto.

3.10     Funding .    

3.10.1    The following mechanism will be used to fund the activities under the Work Plan(s) for the first three (3) years of the Collaboration. Firmenich shall make a nonrefundable payment of US$10 million to Amyris for each of the first three (3) years of the Collaboration. The first such US$10 million payment will be received no later than March 31, 2013 and two more payments of US$10 million each will be made on each subsequent one year anniversary of the Effective Date for a total payment of US$30 million (“Funding”). The Funding will not be subject to increase or decrease at any time. For the avoidance of doubt, nothing about the nature of these payments, including their nonrefundability, is meant to limit the remedies or damages or the amount thereof, if any, available to Firmenich under this Agreement. Failure to make any of these payments as scheduled shall be deemed a Material Breach unless Firmenich has the right to terminate for Cause.

3.10.2    In addition, Firmenich will make the following three milestone payments to Amyris on the following conditions:
•
Two million U.S. dollars (US$2,000,000) within thirty (30) days of achieving the Target Cost or less per kilogram of the Initial Ingredient meeting the Ingredient Specifications when the Initial Ingredient is produced by Amyris (or on its behalf) at a commercial scale (i.e., in a 40,000 liter fermenter or larger, at Amyris' option) (the “ Qualifying Run ”); provided, that in determining whether or not the Target Cost is achieved in such Qualifying Run, the Parties will use the agreed assumed costs of raw materials and fermentation as set forth in the Target Cost Model, not the actual costs for such raw materials and fermentation incurred by Amyris in such Qualifying Run;
•
One and one-half million U.S. dollars (US$1,500,000) within thirty (30) days of achieving a milestone for the next Ingredient, such milestone to be defined by the Technical Committee for that Ingredient; and
•
One and one-half million U.S. dollars (US$1,500,000) within thirty (30) days of achieving a milestone for a third Ingredient, such milestone to be defined by the Technical Committee for that Ingredient.

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The second and third milestones above will be defined by the Technical Committee no later than June 30, 2013 and June 30, 2014, respectively for each of the second and third Ingredients. The milestones will reflect achievement of certain technical parameters, such as yield and productivity of Strains, and/or delivery of a specified sample volume of the Ingredient such that it provides confidence to the Parties that Amyris has sufficiently progressed on the Project to allow the Parties to envision and plan for commercialization of the applicable Intermediate or Ingredient.
3.10.3    The Parties will each fund 50% of the Collaboration Costs (as defined in section 4.1) in years four (4) through to six (6) of the Collaboration. Firmenich shall pay its share of the funding to Amyris on a monthly basis at the start of thirty (30) days after the fourth (4 th ) year from the Effective Date. Payments will take place within thirty (30) days from Firmenich receiving the corresponding invoice from Amyris. Unless otherwise agreed by the Parties, the total funding for the three (3) year period shall not exceed US$[*] million in aggregate with specific annual investments to be determined by the Steering Committee. If there is a disagreement between the Parties on the appropriate amount of funding for any year during years four (4) through to six (6) of the Collaboration, then Firmenich may solely decide the amount that it wishes to fund, and Amyris will not be required to contribute any funding beyond matching the amount provided by Firmenich. Except as otherwise agreed by the Parties in writing, nothing in this Agreement shall require Amyris to fund Firmenich employees without Amyris consent at any time during the Collaboration. There is no obligation for either Party to fund any research and development commitments in year seven (7) and beyond, but if the Parties mutually agree to continue with a Project, any funding will be on a 50/50 basis. The method of payment for funding in year seven (7) and beyond will be mutually agreed to by the Parties.

3.11     Conversion from Intermediate to Ingredient

3.11.1    The Parties agree that, whenever possible, they will attempt to use Amyris Collaboration Intellectual Property to incorporate enzymatic steps to obtain an Ingredient.

3.11.2    If the Technical Committee determines that Amyris is unable to reach the Target Cost of any Ingredient through the use of Amyris Strain Generation Technology, or available Amyris Non-Project Intellectual Property or available Amyris Background Intellectual Property or decides for other reasons to go forward with developing the Ingredient from any Intermediate by using other technology, then the Steering Committee will determine the appropriate means of developing such Ingredient.

3.11.3    If Firmenich is willing to offer Firmenich Non-Project Intellectual Property to conduct conversion of an Intermediate to an Ingredient, and the Steering Committee decides that such conversion should reasonably be accomplished through the use of Firmenich Non-Project Intellectual Property, then any intellectual property conceived, reduced to practice, made or otherwise generated in connection with the research and development of any such Intermediate and/or modification of Intermediate(s) to develop such Ingredient(s), including without limitation any novel composition and methods of making such Ingredient from any Intermediate, shall be Firmenich Non-Project Intellectual Property. Firmenich Non-Project Intellectual Property shall only be used by the Collaboration in connection with this section 3.11.3.

3.11.4    In the case of section 3.11.3, the Parties will discuss in good faith a fair and reasonable royalty payment to be paid by Amyris to Firmenich for the use of Firmenich Non-Project Intellectual Property (“Firmenich Non-Project Royalty-Bearing Intellectual Property”) to develop such Ingredient. Such payments by Amyris to Firmenich may be via offsets or deductions against payments otherwise due to Amyris, as may be agreed by the Parties. The Parties shall agree upon such fair royalty payment within thirty (30) days, or such longer period as may be agreed by the Parties, of Firmenich's notice to commercialize such Ingredient. Any such payments shall reflect the value of the Firmenich Non-Project Royalty-Bearing Intellectual Property in the development of such Ingredient. Such royalty must be paid or accounted for in connection with the distribution of any Profit. If the Parties are unable to agree on such financial terms, they shall escalate such matter to the Chief Executive Officers for resolution in accordance with section 7.1 of this Agreement. For clarity, any license of Firmenich Non-Project Intellectual Property that is owned by a third party, shall be licensed subject to any obligations, financial or otherwise, incurred as a result of the grant or practice of any sublicense thereto, and Amyris must agree to comply with such obligations to obtain the applicable license rights.

3.11.5    If the Steering Committee decides that conversion of an Intermediate to an Ingredient may be best accomplished by a Third Party with sufficient expertise and reputation, the Parties will split the research and development for developing such Ingredient on a 50/50 basis. Any intellectual property conceived, reduced to practice, made or otherwise generated in connection with the research and development of any such


[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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Intermediate and/or modification of Intermediate(s) to develop such Ingredient(s), including without limitation any novel composition and methods of making such Ingredient from any Intermediate, shall be Firmenich Non-Project Intellectual Property.

4. Audit Rights

4.1     Record Retention . Amyris will maintain (and will ensure that its Affiliates and sublicensees will maintain) complete and accurate books, records and accounts that fairly reflect its costs of performing the activities assigned to it (the “Collaboration Costs”) in sufficient detail to confirm the accuracy of any payments required hereunder and in accordance with accounting standards set forth in section 4.5. Such books, records and accounts will be retained by Amyris until the later of (i) three (3) years after the end of the period to which such books, records and accounts pertain, and (ii) expiration of the applicable tax statute of limitations (or any extensions thereof), or for such longer period as may be required by applicable law.

4.2     Audit . Firmenich will have the right to have an independent certified public accounting firm of recognized standing, reasonably acceptable to Amyris, have access during normal business hours, and upon reasonable prior written notice, to such of the records of Amyris (and its Affiliates and sublicensees) as may be reasonably necessary to verify the accuracy of the Collaboration Costs (especially Amyris' FTE costs) for any calendar quarter ending not more than twenty four (24) months prior to the date of such request; provided, however , that Firmenich will not have the right to conduct more than one such audit every twelve (12) months. The accounting firm will disclose to Firmenich whether such Collaboration Costs are correct or incorrect and the specific details concerning any discrepancies. No other information will be provided to Firmenich. Firmenich will bear the cost of such audit unless the audit reveals that Amyris overreported its Collaboration Costs for the calendar quarters that are the subject of the audit by more than 5% of the actual Collaboration Costs for such calendar quarters, in which case Amyris will bear the cost of the audit. The results of such accounting firm will be final, absent manifest error.

4.3     Payment of Additional Amounts . If, based on the results of an audit conducted pursuant to section 4.2, a refund is owed by Amyris or additional payments are owed by Firmenich under this Agreement, such Party will make such refund or additional payments, as applicable, with interest from the date originally due at the rate of one percent (1%) per month, within sixty (60) days after the date on which such accounting firm's written report is delivered to such Party.

4.4     Confidentiality . Firmenich will treat all information subject to review under this Article 4 as Amyris Confidential Information in accordance with the confidentiality, non-use and non-disclosure provisions of Article 8 of this Agreement and will cause its independent certified public accounting firm to enter into a reasonably acceptable confidentiality agreement with Amyris obligating such firm to maintain all such financial information in confidence pursuant to such confidentiality agreement.

4.5     Accounting Standards . Financial calculations, including with respect to Collaboration Costs, required to be made hereunder will be made in accordance with United States generally accepted accounting principles as in effect from time to time, as consistently applied by the applicable Party.

4.6     Adjustments . In addition to the audit of Amyris FTE costs, Amyris will provide a report to the Steering Committee once a year, if requested by Firmenich, on its current FTE costs. The Parties agree that the cost per year for the first three years of the Collaboration for each Amyris FTE will be US$500,000 for the purposes of this Agreement. If the Amyris FTE costs decrease, Amyris will so update the Steering Committee. The Steering Committee will, after the first three (3) years of the Collaboration, determine if adjustments need to be made to the number of FTE's working on a Project based on the funding commitments and will work to optimize the efficiencies of the FTE's to progress as quickly as possible with each Project

5. INTELLECTUAL PROPERTY

5.1     Licenses

5.1.1     Research Licenses . Each Party hereby grants to the other Party (and also to its Affiliates) a royalty-free, non-exclusive, non-sublicensable license under its Background Intellectual Property and Collaboration Intellectual Property, solely to the extent necessary to allow the other Party (and its Affiliates) to perform its obligations under this Agreement and Work Plans.

5.1.2     Other licenses granted by Amyris . In each of the licenses granted by Amyris to Firmenich hereunder, Amyris and the Amyris Entities hereby grant the following licenses:

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(a) Amyris hereby grants to Firmenich an exclusive, perpetual (subject to the termination provisions of this Agreement), sublicenseable (through multiple tiers of sublicensees), worldwide, royalty-free license under its Background Intellectual Property and Amyris Collaboration Intellectual Property to make, have made, polish, blend and/or prepare the Intermediates and Ingredients for use in Firmenich Products sold in the F&F Market except for the Exclusions.

(b) Subject to Firmenich's exercise of its Second Source rights as set forth in this Agreement, Amyris hereby grants to Firmenich a non-exclusive, royalty-free license, sublicensable to any Alternate Supplier, under its Background Intellectual Property and Amyris Collaboration Intellectual Property, to make and have made the Intermediates and Ingredients solely at the approved location of the Alternate Supplier for use by Firmenich or its designees in Firmenich Products sold in the F&F Market except for the Exclusions.

(c) Amyris hereby grants to Firmenich an exclusive, perpetual (subject to the termination provisions in this Agreement), sublicensable (through multiple tiers of sublicensees), worldwide, royalty-free license under its Background Intellectual Property and Amyris Collaboration Intellectual Property to formulate Intermediates and Ingredients in order to make and have made Firmenich Products. Notwithstanding the foregoing, and without limitation, the license grant set forth in this subsection (c) will extend to the polishing, blending and preparing of the Intermediates and Ingredients for use in Firmenich Products.

(d) Amyris hereby grants to Firmenich an exclusive, perpetual (subject to the termination provisions in this Agreement), sublicensable (through multiple tiers of sublicensees), worldwide, royalty-free license under its Background Intellectual Property and Amyris Collaboration Intellectual Property to use, sell, offer for sale, commercialize, export and/or import Firmenich Products in the F&F Market except for the Exclusions.

(e) Upon written request by Firmenich, Amyris will, at its sole discretion, grant to Firmenich an option, exercisable at Firmenich's sole discretion on a case by case basis, to obtain an exclusive, royalty-bearing, sublicensable (through multiple tiers of sublicensees), worldwide (or at Firmenich's request, on a country-by-country basis) perpetual license under the Amyris Non-Project Intellectual Property that is not included in Amyris Collaboration Intellectual Property to use, make, have made, sell, offer for sale and/or import Ingredients and Intermediates for use in Firmenich Products solely for applications in the F&F Market except for the Exclusions. If such option is exercised, the Parties shall negotiate in good faith commercially reasonable terms and conditions, including a commercially reasonable royalty rate, during a 90-day period following notice of the exercise of such option. If the Parties cannot agree on such terms within such period, the Parties shall escalate such matter to the Chief Executive Officers for resolution in accordance with section 7.1 of this Agreement, and the terms and conditions agreed upon by the Chief Executive Officers (if any) shall be effective as of the date the option was exercised.

(f) In the case of all licenses granted by Amyris with respect to Non-Project Intellectual Property and Background Intellectual Property under this Agreement where such intellectual property is also applicable to the Exclusions, the Parties acknowledge and agree that Amyris will only grant licenses to Patents and Patent applications to Firmenich to the extent it Controls such Patents and Patents application under its collaborations with Third Parties.

The foregoing licenses are limited to applications except for the Exclusions in the F&F Market and Amyris shall retain all rights not specifically granted to Firmenich, including without limitation, all rights with respect to its Background Intellectual Property, Amyris Collaboration Intellectual Property and Amyris Non-Project Intellectual Property for all applications in the Exclusions or outside the F&F Market. For clarity, the foregoing licenses shall not include any right for Firmenich to practice any Strain Generation Technology Controlled by Amyris for the purpose of generating genetically modified microbial host cells expressing Ingredients for or any other purpose. All of the license grants above are subject to the other terms and conditions in this Agreement.
5.1.3     Other licenses granted by Firmenich .

(a) Firmenich hereby grants to Amyris an exclusive (except with respect to, and without in any way limiting, the rights of Firmenich to use a Second Source Option), royalty-free, worldwide, sublicensable (through multiple tiers of sublicensees) license under its Background Intellectual Property, Firmenich Collaboration Intellectual Property, and any Firmenich Non-Project Royalty- Bearing Intellectual Property solely to use, make, have made, sell, offer for sale and/or import the Ingredients and Intermediates for sale to Firmenich or its designees, in accordance with this Agreement and the Supply Agreement.

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(b) Firmenich hereby grants to Amyris an exclusive, perpetual (subject to the termination provisions in this Agreement), worldwide, royalty-free (except as set out in, and subject to, section 5.1.3(c)), sublicensable (through multiple tiers of sublicensees) license under the Firmenich Collaboration Intellectual Property to use, make, have made, sell, offer for sale and/or import the Ingredients and Intermediates solely for applications outside the F&F Market.

(c) If Firmenich Non-Project Royalty-Bearing Intellectual Property is used in connection with an Ingredient pursuant to section 3.11, Firmenich hereby grants to Amyris an option, exercisable at Amyris' sole discretion on a Firmenich case by case basis, to obtain an exclusive, royalty-bearing, sublicensable (through multiple tiers of sublicensees), worldwide (or on a country-by-country basis) perpetual license under such Firmenich Non-Project Royalty-Bearing Intellectual Property to use, make, have made, sell, offer for sale and/or import Ingredients and Intermediates for use in Amyris Products solely for applications outside the F&F Market, subject to provisions to be agreed to prevent any use of any such Ingredients or Intermediates for any purpose in the F&F Market. If such option is exercised, the Parties shall negotiate in good faith commercially reasonable terms and conditions, including a commercially reasonable royalty rate, during a 90-day period following notice of the exercise of such option. If the Parties cannot agree on such terms within such period, the Parties shall escalate such matter to the Chief Executive Officers for resolution in accordance with section 7.1 of this Agreement, and the terms and conditions agreed upon by the Chief Executive Officers (if any) shall be effective as of the date the option was exercised.

The foregoing licenses are limited to applications outside the F&F Market and Firmenich shall retain all rights not specifically granted to Amyris, including without limitation, all rights with respect to its Background Intellectual Property, Firmenich Collaboration Intellectual Property, and Firmenich Non-Project Intellectual Property, for all applications in the F&F Market. All of the license grants above are subject to the other terms and conditions in this Agreement.
5.1.4     Ownership .

(a) Amyris Collaboration Intellectual Property will be owned solely by Amyris. Firmenich Collaboration Intellectual Property will be owned solely by Firmenich. Each Party will retain all of its right, title and interest in and to its Background Intellectual Property and additionally in the case of Firmenich, Firmenich's Non-Project Intellectual Property.

(b) Amyris hereby assigns to Firmenich, without further consideration, such right, title and interest that Amyris or its Affiliates may have from time to time (other than by virtue of the license grants from Firmenich herein) in any and all Firmenich Collaboration Intellectual Property and Firmenich Non-Project Intellectual Property to reflect the ownership allocation set forth in this section 5.1.4, and will, at Firmenich's expense, execute all documents and take all actions reasonably requested by Firmenich from time to time to perfect Firmenich's title to and ownership thereof. Such rights are assigned to Firmenich without any restrictions worldwide.

(c) Firmenich hereby assigns to Amyris, without further consideration, such right, title and interest that Firmenich may have from time to time (other than by virtue of the license grants from Amyris herein) in any and all Amyris Collaboration Intellectual Property to reflect the ownership allocation set forth in this section 5.1.4, and will, at Amyris' expense, execute all documents and take all actions reasonably requested by Amyris from time to time to perfect Amyris' title to and ownership thereof. Such rights are assigned to Amyris without any restrictions worldwide.

5.2     Maintenance and Prosecution of Patents

5.2.1     Amyris Patents . Amyris shall have the sole right, but not the obligation (except as otherwise provided in the last sentence of this paragraph), at its sole expense, to prepare, file, prosecute and maintain Patents with respect to the Amyris Background Intellectual Property, the Amyris Non-Project Intellectual Property, and the Amyris Collaboration Intellectual Property (collectively, “ Amyris Patents ”), including with respect to any related interference, re-issuance, re-examination and opposition proceedings. Firmenich

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shall be permitted but not obligated to provide Amyris with input on the determination of whether and where to seek patent protection and shall assist Amyris, at the reasonable request of Amyris, from time to time in connection with such activities with respect to the Amyris Collaboration Intellectual Property. For any application for such a Patent that Amyris files with respect to the Amyris Collaboration Intellectual Property which application claims or covers any Strain, Intermediate, Ingredient, or method of making the Strains, Amyris shall (a) prosecute a PCT application for such Patent designating all countries and a national filing for such Patent in each of the following jurisdictions unless otherwise agreed by Firmenich: United States, Brazil, Canada, China, European Union (with subsequent validation in the United Kingdom, France, Germany, Italy, and Spain), Mexico and such other countries as the Parties may agree in writing and (b) for any Patent issuing thereon, maintain such Patent in such countries until such time as this Agreement and the Supply Agreement have been terminated. The Parties will discuss in good faith whether and when to file in India depending on the potential for a negative impact on the protection of other Amyris intellectual property. For each such Patent application subject to the preceding sentence, Amyris shall confer with Firmenich and provide it an opportunity to review and comment on the scope of the claims, any communications received from any patent office relating to any substantive matter and responses to any such communications, but Amyris shall have the final authority in such prosecution activities. Amyris shall not unreasonably refuse any request of Firmenich to seek Patent protection in any jurisdiction with respect to any invention hereunder, especially if Firmenich reasonably demonstrates that it is required or useful for optimization of the Profits.

5.2.2     Firmenich Patents . Firmenich shall have the sole right, but not the obligation, to prepare, file, prosecute and maintain Patents with respect to the Firmenich Background Intellectual Property, the Firmenich Non-Project Intellectual Property and Firmenich Collaboration Intellectual Property (collectively, “ Firmenich Patents ”), at its sole expense, including with respect to any related interference, re-issuance, re-examination and opposition proceedings. Amyris shall be permitted but not obligated to provide Firmenich with input on the determination of whether to seek patent protection and Amyris shall assist Firmenich, at the reasonable request of Firmenich from time to time in connection with such activities with respect to the Firmenich Patents. Firmenich shall not unreasonably refuse any request of Amyris to seek patent protection hereunder.

5.3     Enforcement of Patents .

5.3.1     Notice . If any Amyris Patent or Firmenich Patent is allegedly or actually infringed by a Third Party and such infringement involves an Intermediate or Ingredient and relates to the F&F Market except for the Exclusions (such infringement, an “ Infringement ”), the Party first having knowledge of such Infringement shall promptly notify the other Party in writing. The notice shall set forth the facts of such Infringement in reasonable detail.

5.3.2     Amyris Background Intellectual Property and Amyris Non-Project Intellectual Property . Amyris shall, at its sole cost, have the sole right, but not the obligation, through counsel of its choosing, to initiate and conduct (including settle) an infringement action with respect to any Infringement of any Patents within the Amyris Background Intellectual Property or Amyris Non-Project Intellectual Property.

5.3.3     Amyris Collaboration Intellectual Property/Intermediate or Ingredient Composition . Firmenich shall, at its sole cost, have the first right, but not the obligation, through counsel of its choosing, to initiate and conduct (including settle) an infringement action with respect to any Infringement of any Patent within the Amyris Collaboration Intellectual Property for any claim of infringement of a Patent claim covering the composition of matter of the Intermediate or Ingredient, or the use thereof. If Firmenich declines to exercise such first right, or fails to initiate such an action within 180 days of a request by Amyris that Firmenich commence such an action, then Amyris shall have the right to initiate and conduct such an infringement action, at its sole cost.

5.3.4     Amyris Collaboration Intellectual Property/Other Ingredient-Related Technology . Amyris shall, at its sole cost, have the first right, but not the obligation, through counsel of its choosing, to initiate and conduct (including settle) an infringement action with respect to Amyris Collaboration Intellectual Property relating solely to (i) the crude fermentation-derived composition used to produce the Ingredient and/or (ii) the process of converting such crude composition into the Ingredient, and/or (iii) the Strains, and/or (iv) the use of the Strains to make the Ingredients. If Amyris declines to exercise such first right, or fails to initiate such an action within 180 days of a request by Firmenich that Amyris commence such an action, then Firmenich shall have the right to pursue such an infringement action, at its sole cost; provided, however , with regard to (iii) and (iv) above, Firmenich shall have such right only if Firmenich reasonably demonstrates that the at-

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issue Infringement would be more probably than not to have a material adverse impact on its commercialization of the applicable Ingredient(s).

5.3.5     Amyris Collaboration Intellectual Property/Strain Generation Technology . Amyris shall, at its sole cost, have the sole right, but not the obligation, through counsel of its choosing, to initiate and conduct (including settle) an infringement action with respect to any Infringement of any Patents within the Amyris Collaboration Intellectual Property for any other claim of infringement, including any Strain Generation Technology.

5.3.6     Firmenich Patents . Firmenich shall, at its sole cost, have the sole right, but not the obligation, through counsel of its choosing, to initiate and conduct (including settle) an infringement action with respect to any Infringement of the Firmenich Patents.

5.3.7     Cooperation . In the event a Party is entitled to and brings an infringement action with respect to an Infringement in accordance with this section 5.3, the other Party shall cooperate fully, at the enforcing Party's cost, including being joined as a party plaintiff in such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours. If a Party pursues an action against such alleged Infringement, it shall consider in good faith any comments from the other Party and shall keep the other Party reasonably informed of any steps taken to preclude such Infringement.

5.3.8     Recoveries . Any recovery in any such action shall first be used to reimburse the Parties for their respective costs incurred in connection therewith, including without limitation, attorneys and expert fees and court costs. The Party bringing such action may retain any remaining amounts.

5.4     Invalidity or Unenforceability Defenses or Actions .

5.4.1     Third Party Defense or Counterclaim . If a Third Party asserts, as a defense or as a counterclaim in any infringement action under section 5.3, with respect to an Infringement, that any Amyris Patent or Firmenich Patent is invalid or unenforceable, then the Party pursuing such infringement action shall, at its sole cost, have the sole right, but not the obligation, through counsel of its choosing, to respond to such defense or defend against such counterclaim (as applicable). In a case in which Firmenich is so enforcing any Amyris Patent and declines or fails to respond to such defense or defend against such counterclaim, then Amyris shall have the right to do so, at its sole cost.

5.4.2     Third Party Declaratory Judgment or Similar Action . If a Third Party asserts, in a declaratory judgment action or similar action or claim filed by such Third Party, that any Amyris Patent or Firmenich Patent is invalid or unenforceable, then the Party first becoming aware of such action or claim shall promptly give written notice to the other Party. Each Party shall, at its sole cost, have the sole right, but not the obligation, through counsel of its choosing, to defend against such action or claim with respect to its Patents.

5.4.3     Assistance . Each Party shall, at the defending Party's cost, provide to the other Party all reasonable assistance requested by the other Party in connection with any action, claim or suit under this section 5.4, including allowing such other Party access to the assisting Party's files and documents and to the assisting Party's personnel who may have possession of relevant information. In particular, the assisting Party shall promptly make available to the other Party, free of charge, all information in its possession or control that it is aware would assist the other Party in responding to any such action, claim or suit; provided that neither Party shall be required to disclose legally privileged information unless and until procedures reasonably acceptable to such Party are in place to protect such privilege.

5.5     Rights in an Event of Insolvency . All rights and licenses granted under or pursuant to this Agreement by either Party are and will be deemed to be for purposes of Section 365(n) of the US Bankruptcy Code (the “ Code ”) or any same or similar provision in any jurisdiction other than the United States, licenses of rights to “intellectual property” as defined in Section 101 of the Code or any same or similar provision in any jurisdiction other than the United States. The Parties agree that in the event of an Event of Insolvency of either Party, the other Party, as licensee of such rights (as applicable) under this Agreement, will retain and may fully exercise all of its rights and elections under the Code or any same or similar provision in any jurisdiction other than the United States, subject to any payments due the licensor Party for applicable milestone payments and royalties or other amounts due to the licensor Party as a result of the exercise of such rights. The Parties further agree that, in any Event of Insolvency involving a Party, that the other Party will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property licensed to such Party under this Agreement and all tangible embodiments of such intellectual property (including, without limitation, all Escrowed Materials), and same, if not already in its

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possession, will be promptly delivered to the licensee Party (i) upon any such commencement of a bankruptcy proceeding upon such licensee's written request, or (ii) if not promptly delivered under (i) above, following any rejection of this Agreement by or on behalf of such Party (e.g. by a bankruptcy trustee), upon written request for such transfer by the licensee Party.

6. Representations and Warranties

6.1     Mutual . Each Party hereby represents and warrants to the other as of the Effective Date:

6.1.1    Such Party has the power and authority to enter into this Agreement and perform its obligations hereunder and this Agreement has been duly executed and delivered by such Party.

6.1.2    The execution and delivery of this Agreement and the performance of such Party's obligations under do not conflict with or violate any applicable law or such Party's incorporating documents, or conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any Third Party the right to accelerate, terminate, modify or cancel, or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which it is a party or by which it or any of its assets is bound.

6.2     Amyris . Amyris hereby represents, warrants and covenants to Firmenich:

6.2.1    Amyris is a corporation duly organized under the laws of Delaware and has full power and authority and right to own and operate its property and assets and to carry on its business now and as contemplated to be conducted under the Collaboration

6.2.2    Amyris is entitled to grant the licenses granted by Amyris to Firmenich hereunder.

6.2.3    Amyris has sufficient funds to perform its obligations (including payment obligations) under this Agreement.

6.2.4    To the knowledge of Amyris, there are no pending or issued Patent rights of any unaffiliated Third Party that limit or restrict in any manner the practice of any Amyris Background Intellectual Property to conduct activities in the Collaboration, including without limitation, to make the Strains or to use the Strains to make any of the Intermediates and Ingredients. Furthermore, during the term of this Agreement, Amyris will disclose to Firmenich in writing any known pending or issued Patent rights of any Third Party of which Amyris becomes aware or should reasonably become aware (other than unpublished pending Patents that are confidential) that may limit or restrict in any manner, practice of any Amyris Background Intellectual Property to make Strains, make Intermediates or Ingredients using the Strains, or otherwise limit the ability of Amyris to conduct activities in connection with the Collaboration.

6.2.5    As of the Effective Date, neither Amyris nor its Affiliates is in material violation of any statute, law, rule or regulation or any judgment, order, writ, injunction or decree of any court or governmental authority to which any Amyris Background Intellectual Property or Amyris are subject in a manner that relates to the Collaboration as anticipated by Amyris. Amyris and its Affiliates are and shall make Reasonable Efforts during the term of this Agreement to continue to be in material compliance with all applicable legal requirements to the extent applicable to the Collaboration.

6.2.6    Amyris holds all permits and licenses as are necessary to carry on its Collaboration activities or shall hold and maintain such permits and licenses prior to and during the performance of the applicable Collaboration activities during the term of this Agreement. Neither Amyris nor its Affiliates is in material violation of any such permit and has not received any written or oral notice of suspension, revocation or cancellation thereof.

6.2.7    As of the Effective Date, for its business as it is now conducted, Amyris and the operations of the Amyris laboratory facilities are in material compliance with all applicable limitations, restrictions, conditions, standards, prohibitions, requirements and obligations of environmental laws and related orders of any court or other governmental authority.

6.2.8    As of the Effective Date, there is no material suit, action, claim, investigation, litigation or proceeding pending or, to the knowledge of Amyris, currently threatened against Amyris or its Affiliates.


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6.2.9    Amyris has and shall make Reasonable Efforts at all times during the term of this Agreement to maintain sufficient qualified resources to competently perform its obligations under this Agreement.

6.2.10    The Exclusions are the only prohibitions with respect to the Collaboration in connection with the F&F Market.

6.2.11    Any and all funding of Collaboration Costs made by Firmenich for the activities to be conducted by Amyris pursuant to this Agreement shall be used by Amyris or its Affiliates in connection with the applicable Collaboration activities.

6.2.12    Unless otherwise agreed by the Parties, Amyris agrees that any Strains developed specifically for the Collaboration will be maintained as proprietary and confidential by Amyris. Amyris shall not disclose to any Third Party during the term of this Agreement any and all such Strains, except as otherwise expressly permitted under this Agreement or the Supply Agreement.

6.2.13    With respect to issues that could have a material adverse impact on the Collaboration, as of the Effective Date, (i) there are no known material facts that to the knowledge of Amyris that Amyris believes would render any of the Patents within the Amyris Background Intellectual Property invalid or unenforceable; (ii) to the knowledge of Amyris, no Third Party is infringing, misappropriating or otherwise violating any Patents within the Amyris Background Intellectual Property; (iii) Amyris has not received any credible written notice that the use of the Amyris Background Intellectual Property infringes on the rights of any other person or entity and, to the knowledge of Amyris, neither Amyris nor its Affiliates is infringing, misappropriating or otherwise violating the intellectual property rights of any Third Party; (iv) Amyris and its Affiliates have valid arrangements with all of its consultants and employees sufficient to assign all of their rights, title and interest in and to the Amyris Background Intellectual Property to Amyris, and (v) the Amyris Background Intellectual Property Patents that have been granted are in full force and effect in their respective jurisdictions and have been properly filed, maintained and prosecuted.

6.2.14    With respect to the farnesene-derivative contracts included in the Exclusions, Amyris' obligations under such contracts is to provide farnesene and not to engage in research and development activities.

6.3     Firmenich . Firmenich hereby represents, warrants and covenants to Amyris:

6.3.1    Firmenich is a corporation duly organized under the laws of Switzerland and has full power and authority and right to own and operate its property and assets and to carry on its business now and as contemplated to be conducted under the Collaboration.

6.3.2    Firmenich is entitled to grant the licenses granted by Firmenich to Amyris hereunder.

6.3.3    Firmenich has sufficient funds to perform its obligations (including payment obligations) under this Agreement.

6.3.4    During the term of this Agreement, Firmenich will disclose to Amyris in writing any known pending or issued Patent rights of any unaffiliated Third Party of which Firmenich becomes aware (other than unpublished pending Patents that are confidential) that foreclose practice of any Firmenich Background Intellectual Property or Firmenich Non-Project Intellectual Property to make Strains or to make, use or sell Intermediates or Ingredients produced by the Strains.

6.3.5    As of the Effective Date, neither Firmenich nor its Affiliates is in material violation of any statute, law, rule or regulation or any judgment, order, writ, injunction or decree of any court or governmental authority to which any Firmenich Background Intellectual Property or Firmenich are subject in a manner that relates to the Collaboration as anticipated by Firmenich. Firmenich and its Affiliates are and shall make Reasonable Efforts during the term of this Agreement to continue to be in material compliance with all applicable legal requirements to the extent applicable to the Collaboration.

6.3.6    As of the Effective Date, for its business as it is now conducted, Firmenich and the operations of the Firmenich laboratory facilities are in material compliance with all applicable limitations, restrictions, conditions, standards, prohibitions, requirements and obligations of environmental laws and related orders of any court or other governmental authority.


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6.3.7    As of the Effective Date, there is no material suit, action, claim, investigation, litigation or proceeding pending or, to the knowledge of Firmenich, currently threatened against Firmenich or its Affiliates.

6.3.8    Firmenich holds all permits and licenses as are necessary to carry on its Collaboration activities or shall hold and maintain such permits and licenses prior to and during the performance of the applicable Collaboration activities during the term of this Agreement. Neither Firmenich nor its Affiliates is in material violation of any such permit and has not received any written or oral notice of suspension, revocation or cancellation thereof.

6.3.9    Firmenich has and shall make Reasonable Efforts at all times during the term of this Agreement to maintain sufficient qualified resources to competently perform its obligations under this Agreement.

6.3.10    Any and all funding of Collaboration Costs made by Amyris for the activities to be conducted by Firmenich pursuant to this Agreement shall be used by Firmenich or its Affiliates in connection with the applicable Collaboration activities.

6.3.11    Unless otherwise agreed by the Parties, Firmenich agrees that any Strains developed specifically for the Collaboration will be maintained as proprietary and confidential by Firmenich. Firmenich shall not disclose to any Third Party during the term of this Agreement any and all such Strains, except as otherwise expressly permitted under this Agreement or the Supply Agreement.

6.3.12    With respect to issues that could have a material adverse impact on the Collaboration, as of the Effective Date, (i) there are no known material facts that to the knowledge of Firmenich that Firmenich believes would render any of the Patents within the Firmenich Background Intellectual Property invalid or unenforceable; (ii) to the knowledge of Firmenich, no Third Party is infringing, misappropriating or otherwise violating any Patents within the Firmenich Background Intellectual Property; (iii) Firmenich has not received any credible written notice that the use of the Firmenich Background Intellectual Property infringes on the rights of any other person or entity and, to the knowledge of Firmenich, neither Firmenich nor its Affiliates is infringing, misappropriating or otherwise violating the intellectual property rights of any Third Party; (iv) Firmenich and its Affiliates have valid arrangements with all of its consultants and employees sufficient to assign all of their rights, title and interest in and to the Firmenich Background Intellectual Property to Firmenich, and (v) the Firmenich Background Intellectual Property Patents that have been granted are in full force and effect in their respective jurisdictions and have been properly filed, maintained and prosecuted.

6.4     DISCLAIMER OF WARRANTY . EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 6.1, 6.2 AND 6.3 ABOVE, NEITHER PARTY MAKES ANY REPRESENTATIONS OR GRANTS ANY WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.

6.5     Insurance . Each Party will, and will cause its sublicensees and its and their respective Affiliates to, have and maintain such type and amounts of liability insurance covering its activities under this Agreement, as is normal and customary in each Party's respective industry for parties similarly situated, and will upon request provide the other Party with a copy of its policies of insurance in that regard, along with any amendments and revisions thereto. In compliance with the foregoing, Amyris will maintain commercial general liability insurance in the amount of US$5,000,000 per occurrence and US$10,000,000 in the aggregate and will name Firmenich as an additional insured in connection with the activities contemplated by the scope of this Agreement.

7. DISPUTE RESOLUTION

7.1     Internal Escalation . Except as otherwise provided in this Agreement as regards escalation of and resolution of issues by the Technical Committee and Steering Committee, the Parties will attempt to resolve in good faith any otherwise unresolved claim, controversy or dispute related to the Collaboration or this Agreement or the Supply Agreement (“ Dispute ”) by negotiation of their respective Chief Executive Officers. The Chief Executive Officers will meet (in person, by teleconference or as otherwise agreed) at a mutually agreeable time within 10 business days of written notice by one Party that there is an unresolved Dispute. If these persons fail to meet within the 10-business day period or cannot resolve the Dispute within 20-business day period from delivery of such written notice, then (i) if the Dispute is with respect to a matter to which a Party has the deciding vote as set forth in section 2.6.3, then such

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Party may cast the deciding vote, or (ii) if the Dispute is with respect to any matter other than a failure by the Parties to reach agreement where one or both Parties have discretion whether to agree, either Party may initiate arbitration. All negotiations conducted pursuant to this section 7.1, and all documents and information exchanged by the Parties and their respective Affiliates in furtherance of such negotiations, (a) for clarity, are the Confidential Information of the applicable Party(ies) as set forth therein and are subject to the confidentiality and non-use restrictions set forth in this Agreement and the Supply Agreement, (b) will not 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 (c) will be inadmissible in any arbitration conducted pursuant to section 7.3 or any judicial proceeding.

7.2     Mediation . Except as set forth in section 7.1 and 7.4, all Disputes that cannot be resolved by the Chief Executive Officers pursuant to section 7.1 will first be submitted to a sole mediator selected by the Parties for mediation under ICC ADR Rules. Each Party shall bear its own expenses and an equal share of the expenses of the mediator. The Parties, their representatives, other participants and the mediator shall hold the existence, content and result of the mediation in confidence, and the negotiations conducted pursuant to this section 7.2, and all documents and information exchanged by the Parties and their respective Affiliates in furtherance of such negotiations, (a) for clarity, are the Confidential Information of the applicable Party as set forth therein and are subject to the confidentiality and non-use restrictions set forth in this Agreement and the Supply Agreement, (b) will not 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 (c) will be inadmissible in any arbitration conducted pursuant to section 7.3 or any judicial proceeding. All defenses based on the passage of time shall be suspended pending the termination of any mediation.

7.3     Arbitration . Except as set forth in sections 7.1 and 7.4, all Disputes that cannot be resolved by mediation pursuant to section 7.2 within ninety (90) days of the appointment of the mediator, will 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.

(a) There will be three (3) arbitrators mutually selected by the Parties. In the event the Parties cannot agree, each Party shall pick one (1) arbitrator and the two so selected arbitrators shall select the third arbitrator and if they cannot agree the ICC shall appoint such arbitrator in accordance with the ICC Rules.

(b) At least one of the arbitrators will be a retired judge of a court of general jurisdiction in the United States.

(c) The place of arbitration will be New York, New York. The language of the arbitral proceedings and of all submissions and written evidence will be English; provided, however , that a Party, at its expense, may provide for translation or simultaneous interpretation into a language other than English.

(d) It is expressly understood and agreed by the Parties that the rulings and award of the tribunal will be conclusive on the Parties, their successors and permitted assigns. Judgment on the award rendered the tribunal may be entered in any court having jurisdiction thereof.

(e) Each Party will bear its own costs and expenses and attorneys' fees, and the Party that does not prevail in the arbitration proceeding will pay the arbitrator's fees and any administrative fees of arbitration. All proceedings and decisions of the tribunal will be deemed Confidential Information of each of the Parties.

7.4     Patent Disputes . In the event that a Dispute arises with respect to the inventorship, scope, ownership, validity, enforceability, revocation or infringement of a Patent, and such Dispute cannot be resolved by the Chief Executive Officers in accordance with section 7.1, unless otherwise agreed by the Parties in writing, such Dispute will not be submitted to arbitration and either Party may initiate litigation solely in a court or other tribunal of competent jurisdiction in the country of issuance of the Patent that is the subject of the Dispute.

8. CONFIDENTIALITY

8.1    In the performance of the Collaboration, the Parties and their respective Affiliates may communicate Confidential Information to one another, directly or indirectly, or provide access to Confidential Information when visiting one another's (or their respective Affiliates') premises. The Parties will not disclose or use the other Party's

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Confidential Information except to the extent such disclosure or use is expressly permitted by the terms of this Agreement or the Supply Agreement or such disclosure or use is reasonably necessary for the exercise of such Party's rights or the performance of such Party's obligations under this Agreement or the Supply Agreement. Each Party will protect the confidentiality of the other Party's Confidential Information with the same degree of care it uses to protect its own Confidential Information, which measures will, at a minimum, be in accordance with generally accepted business standards for protecting confidential and proprietary business information. Each Party will and will cause its Affiliates to limit the distribution and disclosure of such Confidential Information to only those of its (and its Affiliates') employees, officers, directors, subcontractors or agents (“ Representatives ”) who have a need to know for purposes of the Collaboration or performing their obligations and/or exercising their rights under this Agreement or the Supply Agreement. The Party disclosing Confidential Information to its Representatives will (i) ensure that such Representatives personally adhere to and comply with all terms and obligations of confidentiality, use and protection of the Confidential Information of the other Party set forth in this Agreement and the Supply Agreement and (ii) be liable if such Representatives do not adhere to such requirements.

8.2    The foregoing obligations do not apply to any information which the receiving Party can prove:

(a) was previously known by the receiving Party or its Affiliates free of any obligation to any Third Party to keep it confidential at the time of disclosure; or

(b) was received or is subsequently received from a Third Party not under an obligation of confidence to the disclosing Party or its Affiliates or Representatives; or

(c) is in the public domain at the time of disclosure hereunder, or subsequently enters the public domain without the fault of the receiving Party or its Affiliates or Representatives; or

(d) Is independently developed by the receiving Party without use of the disclosing Party's Confidential Information; or

(e) is required to be disclosed by a court or other governmental regulatory body or by law, provided however that receiving Party gives disclosing Party advance notice, to the extent permitted by law and to the extent such notice would not require the receiving Party to miss any disclosure deadline to comply with applicable law, so as to provide an opportunity to contest or obtain a protective order precluding or limiting the disclosure of its Confidential Information or, in the case of disclosure required to be made by applicable securities law or national securities exchange regulations, provided the receiving Party will (if requested by the disclosing Party, and at the disclosing Party's expense), in addition to providing such notice, seek confidential treatment with respect to any such disclosure to the extent available, and use good faith efforts to incorporate the comments of the disclosing Party in any such disclosure or request for confidential treatment; or
(f) is made by the receiving Party or its Affiliates as reasonably necessary to file or prosecute Patents covering Intermediates or Ingredients as permitted hereunder, prosecute or defend litigation or otherwise establish rights or enforce obligations under this Agreement or the Supply Agreement.

8.3    Without limiting the foregoing, (a) Amyris Background Intellectual Property, Amyris Non-Project Intellectual Property and Amyris Collaboration Intellectual Property may be used by Firmenich only to the extent provided in the license grants under this Agreement; and (b) Firmenich Background Intellectual Property, Firmenich Non-Project Intellectual Property and Firmenich Collaboration Intellectual Property may be used by Amyris only to the extent provided in the license grants under this Agreement.

8.4    Except as expressly provided in this Agreement, neither Party nor its Affiliates will mention or otherwise use the name, insignia, symbol, trademark or logotype of the other Party or its Affiliates (or any abbreviation or adaption thereof) in any publication, press release, marketing and promotional material or other form of publicity without the prior written approval of such other Party, in each instance which approval will not be unreasonably withheld or delayed.

8.5    The Parties intend to issue a mutually agreed press release upon execution of this Agreement.  Other than such press release, neither Party or its Affiliates will issue any press release or other similar public communication relating to this Agreement or the Supply Agreement, their subject matter or the transactions covered by them, or the activities of the Parties (or its Affiliates or subcontractors) under or in connection with this Agreement or the Supply Agreement, without the prior written approval of the other Party, except (a) for filings and other communications

22


required by applicable law, including without limitation the rules and regulations of the US Securities and Exchange Commission and any national securities exchange upon which a Party's shares are listed, as applicable, as reasonably advised by the issuing Party's counsel (provided that the other Party is given a reasonable opportunity to review and comment on any such press release or public communication in advance thereof to the extent legally permitted and the issuing Party will consider in good faith any comments provided by the other Party on such press release or public communication), (b) for information that has been previously disclosed publicly, or (c) as otherwise set forth in this Agreement.

8.6    Each Party shall, within sixty (60) days of the termination of this Agreement, return or destroy, at the other Party's option, all Confidential Information of such other Party other than any such Confidential Information that such first Party has rights of use following termination of this Agreement or requires such information in order to perform its obligations under the Supply Agreement that remains in effect; provided, however, that a Party may retain one (1) copy of any such returned or destroyed Confidential Information in the confidential files of its legal department.

9. EXCLUSIVITY

9.1    Firmenich will have the exclusive right to commercialize Intermediates and Ingredients developed under this Agreement. The right of commercialization includes both internal use and external sale of Intermediates and Ingredients. The term of commercial exclusivity shall be ten (10) years for each Intermediate or Ingredient, as the case may be, beginning on the date of first commercial sale of such Intermediate or Ingredient, with automatic renewals of ten (10) year periods, subject to the termination provisions of this Agreement. Except as otherwise set forth in the termination provisions of this Agreement, any Intermediate or Ingredient actually commercialized or used internally by Firmenich may continue to be used internally or commercialized exclusively by Firmenich in the F&F Market for as long as it wishes unless the Parties mutually agree otherwise in writing.

9.2    During the term of this Agreement, Amyris will not, whether by itself or through the Amyris Entities, nor will it grant any rights under Amyris Background Intellectual Property, Amyris Collaboration Intellectual Property and Amyris Non-Project Intellectual Property to any Third Party to, develop, make, have made, use or sell any intermediate or ingredient, including Intermediates and Ingredients, for use in the F&F Market except as specifically set out in the Exclusions. Subject to the terms of section 5.1.3(c), Amyris retains all rights to make, use and sell the Intermediates and Ingredients for all uses outside the F&F Market.

9.3    During the term of this Agreement, neither Amyris nor any Amyris Entity will supply or sell any intermediate or ingredient, including any Intermediate or Ingredient, to any Third Party other than Firmenich for use and commercialization in the F&F Market, subject to the Exclusions.

10. PAYMENT, REPORTS AND WITHHOLDING TAXES

10.1    All payments made by either Party under any of this Agreement will be made by wire transfer to an account designated by the receiving Party and will be made in US Dollars.

10.2    For each calendar quarter for which a Party owes the other Party a share of Profit hereunder, such Party will provide the other Party with the following reports with respect to the other Party's share of Profit for the applicable calendar quarter: (a) within fifteen (15) days after the end of the first and second months in each calendar quarter, the selling Party will deliver to the other Party a written report setting forth the other Party's share of Profit during each such month based on actual Profit; (b) within five (5) business days after the end of each calendar quarter, the selling Party will deliver to the other Party a written report setting forth the other Party's share of Profit during the third month of such calendar quarter and for such calendar quarter in the aggregate, in each case based on estimated Profit; and (c) within forty five (45) days after the end of each calendar quarter, the selling Party will deliver to the other Party a written report setting forth the other Party's share of Profit during the third month of such calendar quarter and for such calendar quarter in the aggregate, in each case based on actual Profit. Each of the foregoing reports will include (for the relevant period) (i) quantities of Ingredient and/or Finished Ingredient sold to Third Parties, (ii) the Average Selling Price for such sales, (iii) quantities of Ingredient or Finished Ingredient used by the selling Party or its Affiliates (as such use is described in Appendix E ), (iv) the Commercialization Costs, (v) in the case of Firmenich as the selling Party, (A) quantities of Ingredient Lost by Firmenich or its Affiliates (as described further in Appendix E ), (B) in the case of exercise of the Discretionary Second Source Option or exercise of a Second Source option in the event of a Change of Control, the price paid by Firmenich or its Affiliates to a Third Party for purchase of the Ingredient and (C) the Fully-Burdened Ingredient Finishing Costs, and (vi) any other information required to calculate and/or confirm amounts payable by one Party to the other hereunder. The term “Finished Ingredient” means any substance consisting of an Ingredient as refined, polished or modified (other than by chemical modification or biotransformation and other than by blending or formulating with anything other than the Ingredient itself produced by

23


a different method) by or on behalf of Firmenich or its Affiliates and, if applicable, as blended by or on behalf of Firmenich or its Affiliates with same Ingredient, whether sourced from plants or otherwise for purposes of preparing the Ingredient for sale in the F&F Market. For the avoidance of doubt this term shall not include any creation of a fragrance formulation or base using the Ingredient in combination with anything other than the Ingredient produced by a different method. Certain defined terms used in this section are defined in Appendix E hereto.

10.3    A Party may deduct from any amounts it is required to pay pursuant to this Agreement an amount equal to that withheld for or due on account of any taxes (other than taxes imposed on or measured by net income) or similar governmental charge imposed by a jurisdiction other than the United States (“ Withholding Taxes ”). At the receiving Party's request, the paying Party will provide the receiving Party a certificate evidencing payment of any Withholding Taxes hereunder and will reasonably assist the receiving Party, at the receiving Party's expense, to obtain the benefit of any applicable tax treaty.

10.4    In the event that any payment due under this Agreement is not made when due, the payment will accrue interest from the due date at an annual rate equal to one percent (1%). The payment of such interest will not limit either Party from exercising any other rights it may have as a consequence of lateness of payment.

11. GOVERNING LAW

This Agreement will be governed and construed in accordance with the laws of New York, without giving effect to any choice of law or conflict of law rules. The Parties agree to exclude the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
12. ASSIGNMENT

Without the prior written consent of the other Party, neither Party may assign this Agreement in whole or in part to any Third Party; provided, that either Party may assign its rights and delegate its obligations under this Agreement to Affiliates (but, in the case of Amyris, only to its wholly-owned subsidiary, Amyris Brasil S.A., or its successor if it is converted into a limitada or other corporate form) without the prior written consent of the other Party.
13. NOTICE

Notices, invoices, communications and payments hereunder will be deemed made if given by overnight courier or by registered or certified envelope, post prepaid, and addressed to the Party to receive such notice, invoice or communication at the address given below or such other address as may hereafter be designated by notice in writing:
To Firmenich:
Legal issues :
General Counsel
Corporate Legal Department
Firmenich SA
7, rue de la Bergère
CH - 1217 Meyrin
Switzerland
[*]
Technical issues :
[*]
Firmenich SA
7, rue de la Bergère
CH - 1217 Meyrin
Switzerland
To Amyris:
Legal issues :

[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


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Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, California 94608
Attention: General Counsel
[*]
Technical issues :
[*]
Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, California 94608
14.    SEVERABILITY

If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, said invalidity or non-enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect. In the circumstances referred to in this Article 14, the Parties agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
15.    INDEPENDENT CONTRACTORS

Neither Party is authorized or empowered to act as agent of the other Party for any purpose, and will not enter into any contract, warranty, or representation as to any matter on behalf of the other. Neither Party will be bound by the acts or conduct of the other Party.
16.    ENTIRE AGREEMENT; AGREEMENT MODIFICATION

This Agreement and any Appendixes attached hereto constitute the entire agreement between the Parties with respect to the Collaboration, excluding any arrangements with respect to supply of Ingredients or Intermediates. Any agreement to change the terms of this Agreement in any way will be valid only if the change is made in writing and approved by mutual agreement of authorized representatives of the Parties hereto. The Parties hereby terminate and supersede the Master Collaboration Agreement and the Joint Development Agreement in their entirety except as expressly incorporated herein. All activities on the Initial Ingredient commenced under the Master Collaboration Agreement shall continue and be governed by the terms of this Agreement. The Work Plan for the Initial Ingredient shall likewise continue. The Supply Agreement for the Initial Agreement shall continue in force until amended and replaced by the Supply Agreement.
17.    COUNTERPARTS

This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed by facsimile or other electronic signatures and such signatures will be deemed to bind each Party as if they were original signatures.
18.    INDEMNIFICATION

18.1     Indemnification of Amyris . In addition to any other remedy available to Amyris, Firmenich shall indemnify, defend and hold harmless Amyris, its Affiliates and its and their respective directors, officers, employees and agents (each, an “ Amyris Indemnitee ”) in full and on demand, from and against any and all losses, liabilities, damages, settlements, penalties, fines, costs and expenses (including reasonable attorneys' fees and other expenses of litigation) (“ Losses ”) incurred by them, to the extent resulting from or arising out of or in connection with any claims or allegations made, or suits, actions or proceedings brought, by a Third Party (collectively, “ Third Party Claims ”) against any Amyris Indemnitee:

18.1.1    to the extent arising or resulting from (i) any willful misconduct or gross negligence on the part of any Firmenich Indemnitee or any of their subcontractors in performing any activity contemplated hereunder or by the Supply Agreement or (ii) any breach of any provision of this Agreement or the Supply Agreement by Firmenich, including, without limitation, any representation, warranty or covenant of Firmenich;


[*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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18.1.2    to the extent claiming or alleging infringement (or that infringement will occur) of any Patent of any Third Party, which infringement (i) arises or results from the development (other than by or on behalf of Amyris or its Affiliates or its subcontractors or agents), manufacture (other than by or on behalf of Amyris or its Affiliates), or commercialization of any Firmenich Product by or on behalf of Firmenich or its Affiliates (including manufacture of the Ingredient by an Alternate Supplier) (but excluding any claims described in section 18.2.2) or (ii) arises or results from (A) any authorized practice by on behalf of Amyris or its Affiliates of any technology owned or Controlled by Firmenich or its Affiliates in connection with Amyris' activities under this Agreement or the Supply Agreement, or (B) any material covered by Patents owned or Controlled by Firmenich or its Affiliates in connection with the performance of any of Amyris' obligations under this Agreement or the Supply Agreement, other than any claim of infringement under any Patent set forth in Appendix G of this Agreement;

18.1.3    to the extent arising or resulting from any development (other than by or on behalf of Amyris or its Affiliates), manufacture (other than by or on behalf of Amyris or its Affiliates) or commercialization of any Firmenich Product in the F&F Market by or behalf of Firmenich or its Affiliates, but excluding any Third Party Claim or Losses (i) arising or resulting from any cause described in section 18.2.1, or (ii) that claims or alleges that a Firmenich Product infringes or will infringe any Third Party intellectual property (but without limitation of Firmenich's obligations under section 18.1.2);

except, in each case (18.1.1 through 18.1.3), to the extent that Amyris has an obligation to indemnify any Firmenich Indemnitee for the applicable Losses pursuant to section 18.2. As to any such Loss Amyris shall indemnify the Firmenich Indemnitees, and/or the Firmenich Third Party Indemnitees, as applicable, to the full extent of its responsibility under section 18.2 in view of the facts underlying the applicable Third Party Claim. The rights to indemnification under section 18.1.2 shall constitute Amyris' sole and exclusive remedy under this Agreement and the Supply Agreement with respect to any allegations of Patent infringement by a Third Party.
18.2     Indemnification of Firmenich . In addition to any other remedy available to Firmenich, Amyris shall indemnify, defend and hold harmless Firmenich, its Affiliates, and its and their respective directors, officers, employees and agents (each, a “ Firmenich Indemnitee ”) in full and on demand, from and against any and all Losses incurred by them, to the extent resulting from or arising out of or in connection with any Third Party Claims against any Firmenich Indemnitee:

18.2.1    to the extent arising or resulting from (i) any willful misconduct or gross negligence on the part of any Amyris Indemnitee or any of their subcontractors in performing any activity contemplated by this Agreement or the Supply Agreement or (ii) the breach of any provision of this Agreement or the Supply Agreement by Amyris, including, without limitation, any representation, warranty or covenant of Amyris;

18.2.2    to the extent claiming or alleging infringement (or that infringement will occur) of any Patent of any Third Party, which infringement (i) arises or results from the practice by Amyris or its Affiliates and/or its subcontractors and/or Amyris' or its Affiliates' manufacturer(s) of any of Amyris Background Intellectual Property, Amyris Collaboration Intellectual Property or Amyris Non-Project Intellectual Property in connection with the performance of Amyris' activities under this Agreement or the Supply Agreement; (ii) arises or results from the practice by Firmenich or its Affiliates or its sublicensees or its manufacturers that are authorized in this Agreement or the Supply Agreement in the manufacture of the Intermediate or Ingredient in accordance with the manufacturing process for the Intermediate or Ingredient transferred by Amyris, or (iii) arises or results from or is based on the inclusion of the Ingredient in a Firmenich Product or the use of the Ingredient or Intermediate to create a Firmenich Product, in each case by Firmenich or on behalf of Firmenich or its Affiliates, regardless of whether such Ingredient or Intermediate is combined, modified or processed by or on behalf of Firmenich or its Affiliates, except to the extent that the alleged infringement arises from the combination, modification or processing of the Intermediate or Ingredient by on behalf of Firmenich or other activities conducted by or on behalf of Firmenich or its Affiliates (other than by Amyris or on behalf of Amyris), or (iv) arises or results from (A) any authorized practice by on behalf of Firmenich or its Affiliates of any technology (including without limitation any compositions or methods) owned or Controlled by Amyris or its Affiliates in connection with Firmenich's activities under this Agreement or the Supply Agreement, or (B) any material that necessarily practices Patents owned or Controlled by Amyris or its Affiliates in connection with the performance of any of Firmenich's obligations under this Agreement or the Supply Agreement, and in all cases excluding any claims or allegations of infringement to the extent arising or resulting from (y) any authorized practice by or on behalf of Amyris or its Affiliates of any technology owned or Controlled by Firmenich or its Affiliates in connection with Amyris' activities under this Agreement or the Supply Agreement, or (z) any material covered by Patents owned or Controlled by Firmenich which material has been provided by Firmenich to Amyris for use in connection with the

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performance of any of Amyris' obligations under this Agreement or the Supply Agreement, but the exclusion in clause (z) shall not apply to any claims or allegations of infringement of any Patent set forth on Appendix G of this Agreement;

In addition, Amyris shall indemnify and hold harmless the Firmenich Third Party Indemnitees in full and on demand, from and against any and all Losses incurred by them (solely to the extent that Firmenich has an obligation to the applicable Firmenich Third Party Indemnitee to indemnify it or hold it harmless) pursuant to this section 18.2.2 as if it were a Firmenich Indemnitee (and solely to such extent), but only if the rights of Amyris under section 18.4 are afforded to Amyris. “ Firmenich Third Party Indemnitee ” means any Third Party that uses or sells any product containing any Firmenich Product purchased from Firmenich or its Affiliates;

18.2.3    to the extent arising or resulting from any development or manufacture of any Intermediates and Ingredients by or on behalf of Amyris under this Agreement or the Supply Agreement, but excluding any Third Party Claims or Losses arising or resulting from any cause described in section 18.1.1; or claiming or alleging that an Amyris Product infringes or will infringe any Third Party intellectual property (but without limitation of Amyris' obligations under section 18.2.2); and

18.2.4    to the extent arising or resulting from any commercialization of any Product(s) by or on behalf of Amyris or its Affiliates outside the F&F Market.

except, in each case (18.2.1 through 18.2.4), to the extent that Firmenich has an obligation to indemnify any Amyris Indemnitee for the applicable Losses pursuant to section 18.1. As to any such Loss, Firmenich shall indemnify each of the Amyris Indemnitees for the applicable Losses to the full extent of its responsibility under section 18.1 in view of the facts underlying the applicable Third Party Claim. The rights to indemnification under section 18.2.2 shall constitute Firmenich's sole and exclusive remedy under this Agreement or the Supply Agreement with respect to any allegations of patent infringement by a Third Party (other than for the breach of any representation made by Amyris in a Definitive Agreement).
18.3     Notice of Claim . All indemnification claims in respect of an Amyris Indemnitee or a Firmenich Indemnitee shall be made solely by Amyris or Firmenich, as applicable (each of Amyris or Firmenich in such capacity, the “ Indemnified Party ”). The Indemnified Party shall give the Indemnifying Party prompt written notice (an “ Indemnification Claim Notice ”) of any Losses or discovery of fact upon which such Indemnified Party intends to base a request for indemnification under section 18.1 or section 18.2, but in no event shall the Indemnifying Party be liable for any Losses that result from any delay in providing such notice. Each Indemnification Claim Notice must contain a description of the applicable Third Party Claim and the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known at such time). The Indemnified Party shall furnish promptly to the Indemnifying Party copies of all papers and official documents received in respect of any Losses and Third Party Claims.

18.4     Indemnification Procedures . The obligations of an Indemnifying Party under this Article 18 shall be governed by and contingent upon the following:

18.4.1    At its option, the Party from which indemnification is sought pursuant to section 18.1 or section 18.2 (the “ Indemnifying Party ”) may assume the defense of any Third Party Claim by giving written notice to the Indemnified Party within sixty (60) days after receipt of the applicable Indemnification Claim Notice. Such assumption shall not be construed as an acknowledgement of liability or a waiver of any defenses (and the Indemnifying Party shall be reimbursed by the Indemnified Party for its expenses if the Indemnified Party is subsequently determined to have no indemnification rights under this Article 18).

18.4.2    Upon the assumption of the defense of a Third Party Claim by the Indemnifying Party, the Indemnifying Party may appoint lead counsel in the defense of such Third Party Claim, which shall be reasonably acceptable to the Indemnified Party, and except as expressly provided in this section 18.4.2, the Indemnifying Party shall not be liable to the Indemnified Party or any Amyris Indemnitee or Firmenich Indemnitee, as applicable, for any legal expenses subsequently incurred by such Indemnified Party or Amyris Indemnitee or Firmenich Indemnitee, as applicable, in connection with the analysis, defense or settlement of such Third Party Claim. The Indemnified Party and the Amyris Indemnitee or Firmenich Indemnitee, as applicable, shall be entitled to participate in, but not control, the defense of a Third Party Claim and to retain counsel of their choice for such purpose at their expense unless the interests of the Indemnified Party, the Amyris Indemnitee or Firmenich Indemnitee, as applicable, and the Indemnifying Party with respect to such Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of all entities under applicable law, ethical rules or equitable principles, in which latter case

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such retention shall be at the expense of the Indemnifying Party. Notwithstanding the above, as to any claims subject to section 18.2.2 brought by Third Parties against any Firmenich Third Party Indemnitee, Firmenich shall have the right to defense and resolution of any such Claim, using counsel of its choice reasonably acceptable to Amyris; provided, however, that Firmenich shall afford Amyris a reasonable time to review and comment, in advance, on all filings made for the applicable proceeding relating to or likely to impact any intellectual property of Amyris or its Affiliates or relating to allegations of infringement by the Ingredient and Firmenich shall (i) use good faith efforts to conduct the applicable proceeding in accordance with any comments provided by Amyris with respect thereto, (ii) if Firmenich disagrees with any such comments, confer with Amyris and use good faith efforts to resolve the disagreement prior to the applicable filing, and (iii) in no event make any admission regarding the scope, validity or enforceability of (A) any Patents owned or Controlled by Amyris or its Affiliates or (B) any statements characterizing any prior art thereto. With respect to any such claims that Firmenich is so controlling, with respect to any settlement involving the payment of money damages for which Amyris would be obligated to indemnify hereunder or that would otherwise impose any obligation on Amyris (other than its indemnification obligation hereunder), Firmenich shall obtain Amyris' prior written consent to such settlement, consent not to be unreasonably withheld.

18.4.3    With respect to all Losses where the Indemnifying Party has assumed the defense of a Third Party Claim in accordance with section 18.4.1, (i) with respect to any Losses relating solely to the payment of money damages in connection with a Third Party Claim and that will not result in the Indemnified Party's or any Amyris Indemnitee's or Firmenich Indemnitee's, as applicable, becoming subject to injunctive or other relief or otherwise adversely affect the business of the Indemnified Party or any Amyris Indemnitee or Firmenich Indemnitee, as applicable, in any manner, and as to which the Indemnifying Party shall have acknowledged in writing the obligation to indemnify the Indemnified Party and any Amyris Indemnitee or Firmenich Indemnitee, as applicable, hereunder, the Indemnifying Party shall have the sole right (except as provided in 18.4.2 above) to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Loss, on such terms as the Indemnifying Party, in its sole discretion, shall deem appropriate, (ii) with respect to all other Losses, the Indemnifying Party shall have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Losses, provided that it obtains the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed and (iii) no Indemnified Party or any Amyris Indemnitee or Firmenich Indemnitee, as applicable, shall admit any liability with respect to, or settle, compromise or discharge, any such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.

18.4.4    With respect to all Losses where the Indemnifying Party has not assumed the defense of a Third Party Claim in accordance with section 18.4.1, the Indemnifying Party shall be responsible for all such Losses for which it has indemnity and hold harmless obligations under section 18.1 or section 18.2, as applicable, with respect to such Third Party Claim, provided that none of the Indemnified Party nor any Amyris Indemnitee or Firmenich Indemnitee, as applicable, shall consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Losses, without first obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.

18.4.5    If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, the Indemnified Party shall, and shall cause each of its Affiliates and each of their respective directors, officers, employees and agents to reasonably cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, provide such witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours by the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party Claim, and making the Indemnified Party, its Affiliates and its and their respective directors, officers, employees and agents available on a mutually convenient basis to provide additional information and explanation of any records or information provided, and the Indemnifying Party shall reimburse the Indemnified Party for all of its related reasonable out-of-pocket expenses.

18.4.6    Any reasonable and verifiable costs and expenses incurred by the Indemnified Party in connection with any claim and reimbursable as set forth above in this Article 18 shall be reimbursed on a calendar quarter basis by the Indemnifying Party, without prejudice to the Indemnifying Party's right to contest the Indemnified Party's right to indemnification and subject to refund in the event the Indemnifying Party is ultimately held not to be obligated to indemnify the Indemnified Party or any Amyris Indemnitee or Firmenich Indemnitee.


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19.    LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT CAUSED BY A PARTY'S OR ANY OF ITS AFFILIATES' WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY OR ANY OF THEIR RESPECTIVE AFFILIATES WILL BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, WHETHER IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF (a) THE DEVELOPMENT, MANUFACTURE, USE OR SALE OF THE INGREDIENTS UNDER THIS AGREEMENT, (b) THE USE OF OR REFERENCE TO THE EITHER PARTY'S BACKGROUND INTELLECTUAL PROPERTY, FIRMENICH NON-PROJECT INTELLECTUAL PROPERTY, OR COLLABORATION INTELLECTUAL PROPERTY, OR (c) ANY BREACH OF OR FAILURE TO PERFORM ANY OF THE PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 19 WILL NOT APPLY TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
20.    TERM AND TERMINATION

20.1     Term . Unless sooner terminated in accordance with the provisions of this Article 20, this Agreement will come into effect on the Effective Date, and will remain in effect, with respect to the research and development program under this Agreement (“R&D Program”), for ten (10) years from the Effective Date and will automatically renew at the end of such term (and at the end of any extension) for an additional three (3)-year term (the original term and any extended term each referred to as “R&D Term”) unless and until a Party provides the other Party written notice, at least twelve (12) months before the end of the then-current R&D Term, that it does not desire to extend the R&D Term, in which case the Parties' rights and obligations under this Agreement with respect to R&D Program will, except as otherwise expressly set out in this Agreement, expire at the end of the then-current R&D Term except for any Work Plans already in process but otherwise without prejudice to each Commercialization Program. Except as expressly agreed by the Parties herein, Firmenich will have exclusive commercialization rights as set forth herein in perpetuity to a particular Intermediate or Ingredient (each a “Commercialization Program”), unless the Parties mutually agree in writing to the contrary. Unless sooner terminated in accordance with the provisions of this Article 20, all rights and obligations governing each Commercialization Program will come into effect on the Effective Date and will expire, on an Intermediate-by-Intermediate basis, or Ingredient-by-Ingredient basis, as the case may be, only when the Parties mutually agree to terminate commercialization of that Intermediate or Ingredient (each a “Commercialization Term”). Unless sooner terminated in accordance with the provisions of this Article 20, all of the remaining rights and obligations under this Agreement will expire upon the expiration of the last-to-expire Commercialization Program.

20.2     Termination for Cause . The non-affected Party may terminate this Agreement for Cause immediately upon written notice to the affected Party (or at such other date specified in such notice) for any of the following reasons, each of which will be deemed for “ Cause ”: (a) an Event of Insolvency of the affected Party; (b) a Change in Control of the affected Party, or (c) a Material Breach of this Agreement by the affected Party. This Agreement will terminate in its entirety if a non-affected Party terminates for Cause.

20.3     Termination for Force Majeure . In the event that suspension of performance due to a Force Majeure Event lasts for more than ninety (90) continuous days and (i) if, in the absence of such Force Majeure Event, such suspension of performance would be a Material Breach of this Agreement, and (ii) such Force Majeure Event causes it to become commercially unreasonable for the Parties to proceed with the R&D Program and all Commercialization Programs, the Party not affected by such Force Majeure Event may terminate this Agreement upon thirty (30) days prior written notice to the affected Party. This Agreement will terminate in its entirety if a non-affected Party terminates for a Force Majeure Event.

20.4     Consequences of Expiration or Termination .

20.4.1    The other provisions of this section 20.4 notwithstanding, termination of this Agreement by either Party for any reason will not affect the rights and obligations of the Parties accrued prior to the date of said termination. Each Party will pay to the other Party any reimbursements due from the sharing of the costs of complying with the Regulatory Plan.

20.4.2     Expiration . Upon expiration of this Agreement pursuant to section 20.1, the following consequences of expiration shall apply:

(a)
All licenses and rights granted by Firmenich to Amyris (i) pursuant to section 5.1.1 of this Agreement shall terminate upon the Termination Date of the R&D Program, (ii) pursuant to section 5.1.3(b) of this Agreement shall survive the R&D Term, and (iii) pursuant to

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section 5.1.3(c) of this Agreement shall survive such termination until the effective date of expiration or termination of the Supply Agreement pursuant to its terms.

(b)
All licenses and rights granted by Amyris to Firmenich (i) pursuant to section 5.1.1 of this Agreement shall terminate upon the Termination Date of the R&D Program and (ii) pursuant to section 5.1.2 of this Agreement shall survive such termination, provided however, that such licenses will become non-exclusive upon termination of the applicable Commercialization Program.

(c)
All of Amyris' exclusivity obligations under this Agreement, including pursuant to Article 9, will terminate as of the Termination Date of the R&D Program, but without prejudice to any Commercialization Program, except if any such Commercialization Program has also been terminated.

20.4.3     Termination For Cause by Firmenich . In the event that Firmenich terminates this Agreement pursuant to section 20.2, then the following consequences of termination shall apply:

(a)
Amyris' exclusivity obligations under Article 9 of this Agreement shall survive until the fifth (5th) anniversary of the Termination Date.

(b)
As of the Termination Date and thereafter, Amyris shall not, and shall cause its Affiliates not to, use any Strain, Background Intellectual Property or any Collaboration Intellectual Property (excluding any Strain Generation Technology) solely in connection with the development of any Intermediate or Ingredient for use and commercialization in the F&F Market except for the Exclusions.

(c)
All licenses and rights granted by Firmenich to Amyris pursuant to sections 5.1.1, 5.1.3(a) and 5.1.3(b) of this Agreement shall terminate upon the Termination Date.

(d)
The option granted by Firmenich to Amyris pursuant to section 5.1.3(c) of this Agreement shall terminate upon the Termination Date.

(e)
All licenses and rights granted by Amyris to Firmenich pursuant to sections 5.1.2(a), (b), (c), (d) and (f) of this Agreement shall survive such termination.

(f)
The option granted by Amyris to Firmenich pursuant to section 5.1.2(e) of this Agreement shall survive such termination.

(g)
Amyris shall grant to Firmenich an exclusive, perpetual, sublicensable (through multiple tiers of sublicensees), worldwide, royalty-free license under its Background Intellectual Property, Amyris Collaboration Intellectual Property, and Amyris Non-Project Intellectual Property to improve the Strains using random mutagenesis and fermentation with respect to the supply and production of the Intermediate or Ingredient for commercialization and use in the F&F Market except for the Exclusions. If the reason for the termination for Cause is due to (i) an Event of Insolvency; (ii) Change in Control; (iii) Material Default attributable to Amyris' failure to deposit Escrowed Materials in accordance with section 3.4 and failure to remedy in a reasonable time after being provided with sufficient notice; or (iv) Material Default attributable to Amyris' repeated material failure to supply under the Supply Agreement (collectively “Significant Material Default”), then the grant of such license shall include a right to Firmenich to develop and improve the Strains, solely limited to the development and production of any Intermediate or Ingredient for commercialization and use in the F&F Market except for the Exclusions.

(h)
As soon as practicable after the Termination Date, Amyris shall transfer to Firmenich (by way of permitting release of the Escrowed Materials or directly, if an update of such materials is required) (i) at least 20 high-producing Strains for each Intermediate or Ingredient under development or commercialization at the time of the termination, (ii) a technical report (including Strain development history) describing the work to date under all Work Plans then in effect prior to the Termination Date, (iii) any applicable internal Amyris reports with respect to the work to date under all Work Plans in effect prior to the Termination Date, (iv) copies of all supporting SOPs and all other material development-related documentation with respect to each Intermediate and Ingredient developed by

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Amyris under all Work Plans in effect and (v) any available pilot and production data with respect to the production of the Intermediate(s) and Ingredient(s). In addition, Amyris shall conduct training necessary to enable Firmenich to complete the Projects.

(i)
Firmenich shall have the right to transfer a Strain to a Third Party that the Parties have agreed is an acceptable alternate supplier of the Ingredient pursuant to the Supply Agreement; provided, that, except in the case of termination due to a Significant Material Default, any agreement between Firmenich and such Third Party must be subject to certain agreed terms and conditions substantially similar to those set forth in the Supply Agreement with respect to a Second Source Option. Notwithstanding the foregoing, except in the case of a termination for Cause due to Significant Material Default of Amyris, in no event shall Firmenich or such Third Party modify, reverse engineer, engineer or analyze any Strain.

20.4.4     Termination For Cause by Amyris . In the event that Amyris terminates this Agreement pursuant to section 20.2, then the following consequences of termination shall apply.

(a)
All of Amyris' exclusivity obligations under this Agreement, including pursuant to Article 9, will terminate as of the Termination Date.

(b)
Firmenich shall, within thirty (30) days after the Termination Date, pay Amyris the actual capital expenditures approved by the Steering Committee prior to the Termination Date and reasonably incurred by Amyris in connection with its activities under any Start-Up Plan and any non-cancellable capital expenditures approved by the Steering Committee to which Amyris has reasonably committed prior to the Termination Date in connection with such activities.

(c)
All licenses and rights granted by Firmenich to Amyris pursuant to section 5.1.3(b) of this Agreement and the option granted by Firmenich to Amyris pursuant to section 5.1.3(c) of this Agreement shall survive such termination.

(d)
All licenses and rights granted by Amyris to Firmenich pursuant to sections 5.1.2(a) - (f) of this Agreement shall terminate upon the Termination Date.

(e)
Amyris' obligation to maintain the Escrowed Materials in escrow pursuant to section 3.4 shall terminate upon the Termination Date.

20.4.5     Termination For Force Majeure . In the event that the non-affected Party terminates this Agreement pursuant to section 20.3, then the following consequences of termination shall apply:

(a)
All licenses and rights granted by Firmenich to Amyris pursuant to section 5.1.3(b) of this Agreement shall survive until the fifth (5th) anniversary of the Termination Date.

(b)
All licenses and rights granted by Amyris to Firmenich pursuant to sections 5.1.2(a) - (f) of this Agreement shall survive until the fifth (5th) anniversary of the Termination Date. All of Amyris' exclusivity obligations under Article 9 of this Agreement shall survive until such date.

(c)
The option granted by Firmenich to Amyris pursuant to section 5.1.3(c) of this Agreement shall survive such termination.

(d)
After the Termination Date, prior to restarting the Collaboration with a Third Party, both Parties shall first discuss in good faith restarting the Collaboration together.

(e)
In the event that after the Termination Date, Firmenich desires to engage, on its own or with a Third Party, in the development, production or commercialization of an Intermediate or Ingredient in the F&F Market except for the Exclusions, then prior to doing so, Firmenich shall so notify Amyris and the Parties shall negotiate in good faith commercially reasonable terms pursuant to which Firmenich may use, or authorize a Third Party to use on its behalf, the Strains, which terms shall include terms substantially similar to those set forth in section 20.4.3(i).


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20.5     Firmenich Ceases Use of Strains . With respect to any Strains transferred to Firmenich pursuant to section 20.4.3(i), if any at time after such transfer Firmenich ceases to use such Strain with respect to the production of the each Intermediate or Ingredient, then Firmenich shall promptly notify Amyris and, at Amyris' election, either transfer such Strain back to Amyris or destroy such Strain at Amyris' cost.

20.6     Establishment of Second Supply Source.

20.6.1    Each of the following events will be deemed a “Failure to Perform”:

(a)
An Event of Insolvency has occurred with respect to Amyris;

(b)
A Change in Control of Amyris has occurred;

(c)
Amyris has committed a Material Breach of this Agreement or the Supply Agreement; or

(d)
Amyris is experiencing a Force Majeure Event that has lasted at least ninety (90) continuous days.

20.6.2
Amyris will promptly notify Firmenich in the event a Failure to Perform occurs under section 20.6.1 (a), (b) or (d) of which Firmenich is not aware. Firmenich will promptly notify Amyris in the event of a Failure to Perform occurring in any other circumstance. Following the occurrence of a Failure to Perform, Firmenich will, have the option to elect to exercise its rights under the license granted in section 5.1.2(b) (the “Manufacturing License”) and establish a second source for supply of that Intermediate or Ingredient, as the case may be, (an “Alternate Supplier”) to ensure its continued access to that Intermediate or Ingredient (“Second Source Option”). To exercise this option, Firmenich will send written notice of its election to Amyris and will immediately be permitted to exercise its rights under the Manufacturing License and to select an Alternate Supplier from the list of approved suppliers and approved locations set forth in Appendix D .

20.6.3
In addition, Firmenich will have the option, at any time during the period that begins on the second (2 nd ) anniversary of the date of the first sale of an Intermediate or Ingredient to Firmenich to establish an Alternate Supplier for supply of such Intermediate or Ingredient (“Discretionary Second Source Option”). To exercise this option, Firmenich will send written notice of its election to Amyris and, after a nine (9)-month period from the sending of such notice, Firmenich will be permitted to exercise its rights under the Manufacturing License and to select an Alternate Supplier from the list of approved suppliers and approved locations set forth in Appendix D . Upon Firmenich's exercise of its Discretionary Second Source Option for an Intermediate or Ingredient, Amyris will be released from all of its exclusivity obligations under this Agreement but only for such Intermediate or Ingredient and any exclusive rights or licenses granted to Firmenich under this Agreement will revert to non-exclusive to enable Amyris to make, have made, use, sell, offer for sale and/or import such Intermediate or Ingredient consistent with such lifting of exclusivity.

20.6.4
The Alternate Supplier's manufacture and supply of the Intermediate or Ingredient will be pursuant to a written agreement to be executed between the Alternate Supplier and Firmenich (“Alternate Supplier Agreement”), which agreement will include the provisions set forth in Appendix D . Firmenich will use its best efforts to ensure that the Alternate Supplier complies with such provisions. Firmenich will notify Amyris within two (2) business days in the event it becomes aware that the Alternate Supplier has breached any provisions of the Alternate Supplier Agreement set forth in Appendix D or in any other manner that might jeopardize Amyris' Background Intellectual Property, Amyris Collaboration Intellectual Property and Non-Project Intellectual Property licensed to Firmenich under the Manufacturing License (collectively, the “Manufacturing Intellectual Property”). Amyris will have the right to inspect and monitor the Alternate Supplier each quarter and, in the event Firmenich exercises its Discretionary Second Source Option, Firmenich will pay the actual costs of such visits, in an amount not to exceed US$50,000 per quarter.

20.6.5
Following selection of Alternate Suppliers to be identified in Appendix D upon exercise by Firmenich of either its Second Source Option or Discretionary Second Source Option, Amyris will conduct a one-time technology transfer to one mutually agreed Alternate Supplier as follows: (a) disclose and transfer to the Alternate Supplier all Manufacturing Intellectual Property that is necessary or used by Amyris to manufacture the Intermediate or Ingredient in accordance with the then-current manufacturing process used by Amyris to manufacture the Intermediate or Ingredient,


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(b) conduct up to ten (10) days of training for up to five (5) Alternate Supplier employees with respect to such Manufacturing Intellectual Property, (c) make reasonably available Amyris personnel with expertise in such Manufacturing Intellectual Property to answer Alternate Supplier's questions related to the use of such Manufacturing Intellectual Property for such purpose, and (d) otherwise reasonably cooperate with Firmenich to enable Firmenich to exercise its rights under the Manufacturing License (collectively, a “Transfer Protocol”); provided, however, that within forty five (45) days of receipt of an invoice from Amyris in case of a Discretionary Second Source Option (i) Firmenich will reimburse Amyris for any reasonable out-of pocket expenses incurred by Amyris to fulfill its obligations under this section 20.6.5 and (ii) its internal costs incurred to fulfill its obligations under this section 20.6.5 at the then current Amyris FTE Rate. The Parties may amend Appendix D in writing from time to time upon mutual agreement to add or remove additional approved Third Party suppliers of Intermediates and Ingredients; provided, however, that in the event that Amyris has reasonable evidence that a supplier listed in Appendix D has not abided by or will not abide by the terms and conditions set forth on Appendix D , Amyris may amend Appendix D to remove the name of such supplier without Firmenich's prior written consent; provided, however, Amyris will first promptly notify Firmenich of the same and if Firmenich is then using such Alternate Supplier to manufacture an Intermediate or Ingredient in accordance with this Agreement and subject to such Alternate Supplier taking prompt remedial measures to protect the Manufacturing Intellectual Property to Amyris' satisfaction, Amyris will provide reasonable notice to allow Firmenich to arrange for an alternate supplier, if applicable, in a manner so as to avoid disruption of supply of the Intermediate or Ingredient to Firmenich.

21.    PRICING AND SHARING OF VALUE

21.1     Pricing of Ingredients . The Parties will agree on the price for supply of an Ingredient to Firmenich (“Ingredient Price”) no later than nine (9) months prior to the beginning of manufacture of that Ingredient by Amyris. Quantities of Ingredient sold to Firmenich for its internal use shall be sold at the price set forth in the Supply Agreement if different from the Ingredient Price. Payment for the Ingredient supply shall be made within forty-five (45) days of the date of the invoice until January 1, 2015 and then made within sixty (60) days of the date of the invoice thereafter.

21.2     Sharing and Distribution of Value .

21.2.1    The Parties agree to share Profits from Firmenich's sale of Ingredients on the basis of 70% of such Profits to Firmenich and 30% of such Profits to Amyris until such time as Firmenich receives US$15 million more than Amyris from its share of Profits. After such time, the sharing of Profits will become 50% of Profits to each Party. Sharing of Profits will be based solely on the sale of the Ingredients themselves, and not any Fragrance or Flavor of which the Ingredient comprises. Profits will in all cases be paid within sixty (60) days after the end of each calendar quarter.

21.2.2    If Firmenich exercises its Discretionary Second Source Option or its Second Source Option, then the calculation of Firmenich's Profit will include the Intermediate or Ingredient, as the case may be, purchased from the Alternate Supplier and any Finished Ingredient made therefrom.

21.3     Success Bonus . Amyris shall pay to Firmenich a success bonus (the “Bonus”) for commercializing the Initial Ingredient, which shall be calculated as set forth in Appendix F.

21.4     Second Source Consequences . If Firmenich exercises its Discretionary Second Source Option, then thereafter within forty-five (45) days after the end of each calendar quarter during which Amyris sells an Intermediate or Ingredient in the F&F Market for which Firmenich has exercised its Discretionary Second Source Option for use in the F&F Market, Amyris will pay Firmenich an amount equal to fifty percent (50%) of Amyris' Profit with respect to such Intermediate or Ingredient sold to any Third Party in the F&F Market during such calendar quarter.

22.    SURVIVAL

The rights and obligations under sections 3.8, 4.1, 4.2, 4.3, 4.4, 5.1 (except as otherwise set out in Article 20), 5.5, 7.3 (with respect to the arbitration provisions, but without a requirement of prior consideration by the Chief Executive Officers), 7.4, 20.4 and 20.5 and Articles 8, 10 (with respect to any payment obligation due after expiration of this Agreement), 11, 12, 13, 14, 16, 17, 18, and 19 will survive expiration of this Agreement.



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IN WITNESS THEREOF, the Parties hereto have caused this Collaboration Agreement to be signed by their duly authorized representatives.
FIRMENICH SA    AMYRIS, INC.
Name: /s/ illegible         Name: /s/ John G. Melo    
Title: /s/ illegible         Title: CEO    
Place & Date: Woodside, CA 13.3.13    
Name: /s/ illegible    
Title: Corp VP R&D    
Place & Date: Geneva, 12.3.13    


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APPENDIX A
FORM OF WORK PLAN

Amyris - Firmenich [*] Development Program Work Plan Extension

Goal of program: Develop a strain and process to produce yeast-derived crude [*] oil that meets olfactive quality at commercial-scale for $[*].

Overview of the research approach:
Amyris has created farnesene producing yeast strains that have the sesquiterpene flux above the level needed to produce [*] oil at the yield and productivities to reach $[*]. The remaining research and development that needs to be performed to convert these high performing terpene producing strains to [*] producing strains are improving the enzymatic activity of the [*] synthase and stabilizing the [*] producing yeast strains to perform in large scale fermentations.

Improving the [*] synthase:
Since the inception of the project, the [*] synthase has been improved 8-fold above the original synthase with no effect on product profile. Recent combinatorial library screening has produced enzyme variants that are now over 12 fold improved in sesquiterpene flux from the wild type, but have changed the product profile to make less [*] alcohol. We project that an additional 3 fold improvement from the current best enzyme (current best that has the proper product profile) is necessary in order to achieve the yields and productivities for commercial scale production at $[*]. We expect that the necessary improvements in enzyme activity while maintaining appropriate product profile will likely be achieved by the end of [*].

Strain improvement:
For strain engineering, initial strains were producing less [*] in shake flasks and were too unstable to test in fermentors. Through a combination of enzyme improvements, strain selection, and strain engineering, the current strains make above [*] of [*] oil in 96-well shake plates and [*] oil is routinely measured to be above [*] in fermenters. Our current best strain that maintains the product profile of the wild type enzyme has a yield of [*]. These improvements were the result of integrating several copies of the improved [*] synthase (with wild type product profile) into a mid FPP-flux yeast strain using Amyris' swappable DNA technology. The increase in titer observed with increasing synthase activity suggested that it was enzyme activity and not product toxicity that was limiting titer, yield and productivity. However, strain health and production stability remained a challenge as was evident by the observation that the same strain has [*] in a fermentation process in which the same strain undergoes significantly less generations. Recent fermentation data with the [*] synthase variants mentioned above (which have a modified product profile) integrated into the same mid flux FPP strain produced [*] oil at an average of [*]. These results further support the hypothesis that synthase activity has been limiting performance in fermentors. As a result of these data, identifying improved synthase variants with the proper product profile while also testing the impact of the modified product profile on the olfactive quality of the product will be a high priority of the research plan. Moving forward, we expect that a combination of enzyme improvement, rapid integration of improved synthases into mid and high FPP flux strains and strain improvement will result in a strain capable [*].

Timeline to Goal:
[*]

[*] 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.


35


[*]


[*] 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.


36


[*]


[*] 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.



37


[*]


[*] 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.




38


[*]


[*] 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.





39


APPENDIX B
SUPPLY AGREEMENT
The Parties will, in establishing the Supply Agreement for all Ingredients, negotiate in good faith an amendment to the Supply and Commercialization Agreement for the Initial Ingredient as follows:

A)
Delete the following Articles:

1. Article 2.2

2. Article 3

3. Article 7.2 and 7.3

4. Article 8

5. Article 16

6. Article 17

7. Article 18

8. Appendix 5

9. Appendix 6

B)
Amend the following Articles to reflect deletions set out in section A) above and otherwise for consistency with the principles set out in this Agreement and the Supply and Commercialization Agreement for the Initial Ingredient as follows:

1. Definitions

2. Article 2

3. Article 4

4. Article 9

5. Article 13

6. Article 22

7. Article 24

8. Article 27

9. Appendix 3

To the extent not otherwise expressly mentioned above, the Parties intend to retain the remainder of the Articles in the Supply and Commercialization Agreement for the Initial Ingredient for the formation of the Supply Agreement.

The Parties also intend to negotiate in good faith those parts of the Supply and Commercialization Agreement for the Initial Ingredient which has yet to be finalized e.g. Appendix 2, Appendix 5, Appendix 7 etc.




40


[*]


[*] 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.



41


APPENDIX D
ALTERNATE SUPPLIERS

The Parties will in good faith agree upon the list of Alternate Suppliers and incorporate them into this Agreement by way of mutual amendment.


TERMS OF ALTERNATE SUPPLY

1. Alternate Supplier will confine its manufacturing of the Intermediates or Ingredients, as the case may be, to the following geographic territories: United States of America, Canada, China, India, Indonesia, Australia, the United Kingdom, Spain, France, Italy and Germany.
2. Amyris will have the right, upon reasonable prior notice and during normal business hours, to inspect Alternate Supplier's facilities at which the Intermediates or Ingredients, as the case may be, is manufactured at least once per quarter.
3. Amyris will have the right, upon reasonable prior notice and during normal business hours, to have a representative present from time to time during the manufacture of the Intermediates or Ingredients, as the case may be, by Alternate Supplier.
3. Amyris will be named as a third party beneficiary to the agreement between Firmenich and the Alternate Supplier.
4. As between Firmenich and Amyris, Amyris will have the primary right to pursue actions required to protect the Commercial Strain and related intellectual property vis a vis the Alternate Supplier.
5. Alternate Supplier will agree to (a) hold Amyris Confidential Information (including, but not limited to, process technology, confidential information related to the Commercial Strain, know-how and other confidential information and technology of Amyris) in confidence and take all reasonable precautions to protect such Confidential Information (subject to customary exceptions) and (b) subject to customary exceptions, not divulge any such Confidential Information or any information derived therefrom to any Third Party.
6. Alternate Supplier covenants not to reverse engineer the Commercial Strain, not to engineer any strains from the Commercial Strain, not to use the Commercial Strain except to supply the Intermediates or Ingredients, as the case may be, to Firmenich for use, commercialization and sale in the F&F Market except for the Exclusions and not to distribute, disclose or transfer the Commercial Strain or any related intellectual property to any Third Party or to any location other than a location in a permitted jurisdiction (as described above).
7. Alternate Supplier will represent and warrant that its manufacture and supply of the Intermediates or Ingredients, as the case may be, to Firmenich will be conducted in accordance with agreed commercial specifications and manufactured in accordance with the reasonable instructions provided by Amyris and applicable laws, rules and regulations.
8. Alternate Supplier will hold insurance analogous to that required to be held by Amyris pursuant to the Supply Agreement.
9. Alternate Supplier will grant Amyris a non-exclusive royalty-free license to use any process improvements with respect to the manufacture of the Intermediates or Ingredients, as the case may be, that are conceived, discovered, developed or otherwise made by Alternate Supplier.
10. Alternate Supplier will defend, indemnify and hold harmless Amyris for any direct losses incurred by Amyris or any Amyris Indemnitee arising from or as a result of its willful misconduct or gross negligence or a breach of any provision of that supply agreement, including any representation, warranty or covenant thereunder.





42


APPENDIX E

DEFINITIONS AND EXAMPLES FOR PROFIT SHARE


Definitions
Notwithstanding anything below, all costs set forth in this Appendix E shall be calculated on a standard cost basis using the applicable Party's standard cost methodology, consistently applied. For any such costs that are charged to the other Party or would constitute a deduction in the calculation of Profit, the Party incurring such costs shall notify the other Party of its applicable standard cost therefor annually, which standard cost shall be so notified no later than 60 days prior to the commencement of each Fiscal Year. If no such notification is made for Fiscal Year by such date, the corresponding standard cost from the prior Fiscal Year shall apply, subject to adjustment as provided below. If one Party has any questions or concerns regarding the other Party's standard costs, such Party may request that the Steering Committee review and discuss the matter in good faith, and, in any event, the Steering Committee will review any variances from standard costs on a quarterly basis, provided that in no event shall one Party's consent be required in order for the other Party to modify its standard costs prospectively in accordance with this Appendix E at any time in the event of a variance. If there has been a major variance in standard costs, the Parties will discuss equitable solutions in good faith. The Parties' intent is for standard costs track as close as possible to actual costs.
“Acceptable Losses” means that, with respect to a given kilogram of Finished Ingredient, the losses that the Steering Committee has agreed to be generally expected (ie for theft, spillage, etc), provided that losses may not be included in Acceptable Losses if they would cause the Acceptable Losses for a given Fiscal Year to exceed the “Acceptable Loss Rate”. The Acceptable Loss Rate, determined as a percentage of the Finished Ingredient produced after Finishing, shall be established by the Steering Committee prior to the start of commercialization of the Ingredient. The Steering Committee may adjust the Acceptable Loss Rate no more than once per calendar year and by unanimous consent by the Steering Committee only. Any changes to Acceptable Loss Rate shall only apply prospectively.
“Amyris Production and Commercialization Costs” means, for Crude Ingredient and Finished Ingredient sold by Amyris to Third Parties (a) its Fully-Burdened Ingredient Manufacturing Costs, (b) its Fully-Burdened Ingredient Finishing Costs and (c) its Commercialization Costs.
“Commercialization Costs” means the Fully Burdened Costs of distributing the Crude Ingredient or the Finished Ingredient, as applicable, to Affiliates or Third Parties, including without limitation actual out-of-pocket logistics costs in connection therewith, but excluding (i) any sales or marketing costs, (ii) any costs relating to the distribution of the Ingredient or Finished Ingredient after its delivery by Firmenich to Third Parties, (iii) costs associated with returns or recalls, (iv) any inventory write-offs, (v) any idle capacity costs and (vi) any costs associated with commission, bad debt or other payment to Third Party distributors or agents which exceed 1% of Net Sales of the applicable quarter, provided that the Parties will, in good faith, increase the percentage appropriately if Firmenich adjusts its commercialization model to pursue more sales with customers who only have a country specific or regional based network.
“Crude Ingredient” means the form of the Ingredient as supplied to Firmenich by Amyris.
“Crude Logistics Costs” means the Fully Burdened Costs of moving the Crude Ingredient from its place of manufacture to the finishing facility.
“Finishing” means the conversion of the Crude Ingredient into Finished Ingredient.
“Firmenich Production and Commercialization Costs” means (a) the Ingredient Price or, in the case of exercise of the Discretionary Second Source Option, the price paid by Firmenich or its Affiliate to a Third Party for purchase of the Ingredient (prior to Finishing), (b) its Fully-Burdened Ingredient Finishing Costs and (c) its Commercialization Costs.
“Fully-Burdened Ingredient Manufacturing Costs” means the Fully-Burdened Costs for the manufacture of the Crude Ingredient and all related activities, including without limitation process development, validation, qualification, handling, storage, testing, sampling of the Crude Ingredient and any raw materials therefor, packaging, facilities audits, in each case from the time of receipt of the raw materials until the delivery of the Crude Ingredient. Such Fully-Burdened Costs will include inventory write-offs and idle capacity costs at the manufacturing facility where the

43


Crude Ingredient is manufactured that arises from the fact that Purchase Orders for a given Fiscal Year, in the aggregate, are less than the then-current Maximum Annual Production Cap. For clarity, Amyris may not include in Fully-Burdened Ingredient Manufacturing Costs any costs for which it was reimbursed by Firmenich pursuant to the Joint Development Agreement for the Crude Ingredient.
“Fully-Burdened Ingredient Finishing Costs” means the Fully-Burdened Costs for converting the Crude Ingredient to a Finished Ingredient, but excluding (a) any inventory write-offs, (b) any idle capacity costs and (c) any costs of raw materials that expire, are damaged or are otherwise rendered unusable, including as a result of any failed Finishing batches, other than those raw materials that are consumed during Finishing or lost as a result of normal raw material yield loss.
“Fully-Burdened Costs” means (a) the direct labor costs (including salary and wages and fringe benefits) incurred by the applicable Party or its Affiliates in conducting the applicable activity; (b) the cost of materials used by the applicable Party or its Affiliates (including feedstock and raw materials, intermediates, components and packaging materials, and including shipping and handling costs, freight-in charges and any applicable sales taxes and/or customs duties therefor); (c) a reasonable allocation of overhead (including without limitation indirect labor costs, supplies and materials, plant insurance and property taxes) and facilities and equipment expense (including rent, utilities, repairs and maintenance costs, equipment rental, and depreciation expense over the expected life of the buildings and equipment), (d) costs for administration and for management of material procurement (including Crude Ingredient procurement, if applicable) and other manufacturing or other applicable activities, including quality control and quality assurance (QA), performed directly in support of the applicable activity, calculated in accordance with reasonable cost accounting methods in effect from time to time, consistently applied; (e) if applicable, amounts paid (net of rebates or discounts, if any) to non-Affiliate contract manufacturers or service providers in connection with their supply of the Crude Ingredient or subcontracting of the applicable activity (including shipping costs and any applicable taxes and/or duties therefor) and (f) any royalties payable to a Third Party attributable to the applicable activity; provided, however , that no cost may be counted more than once in such calculation and, for clarity, the payment of a share of the Profit to the other Party does not constitute a royalty under clause (f) of this definition.
“Crude Ingredient Price” means Amyris' Fully-Burdened Ingredient Manufacturing Costs with respect to the Crude Ingredient.
“Lost” means, with respect to a given kilogram of Crude or Finished Ingredient, the occurrence of an event that (a) occurs prior to the transfer of the Crude Ingredient or Finished Ingredient to a Third Party or its use by Firmenich to manufacture a Firmenich Product (other than the Crude Ingredient or Finished Ingredient) and (b) renders such Ingredient (whether in the form of Crude Ingredient or Finished Ingredient or during Finishing) expired, damaged or otherwise unusable, including as a result of any failed Finishing batches, but excluding Normal Finishing Loss and Acceptable Losses.
“Maximum Annual Production Cap” means the annual maximum production cap for a Fiscal Year established in connection with the Start-Up Plan, as such annual maximum production cap is updated from time to time by mutual agreement of the Parties.
“Net Sales” means, for a given calendar quarter, with respect to the Initial Ingredient or the Finished Ingredient, the gross amount invoiced by either Party or any of its Affiliates for sales of the Initial Ingredient or Finished Ingredient to a Third Party, less deductions for (i) transportation charges, and other charges, such as insurance, relating thereto; (ii) sales and excise taxes or customs duties paid by the selling party and any other governmental charges imposed upon the sale of the Initial Ingredient or the Finished Ingredient and actually paid; (iii) allowances actually granted or allowed; (iv) quantity discounts, cash or other discounts (e.g., early payment) actually granted, allowed or incurred in the ordinary course of business in connection with the sale of the Initial Ingredient or the Finished Ingredient; and (v) allowances or credits to customers actually given, to the extent not in excess of the selling price of the Initial Ingredient or the Finished Ingredient, on account of rejection or return of the Initial Ingredient or the Finished Ingredient. “Normal Finishing Losses” means, with respect to a given kilogram of Crude Ingredient, any losses that normally occurs during the ordinary course of Finishing the Crude Ingredient, provided that losses may not be included in Normal Finishing Losses if they would cause the Normal Finishing Losses for a given Fiscal Year to exceed the “Expected Finishing Loss Rate”, which rate shall be agreed by the Parties in the Start-Up Plan. The Steering Committee may adjust the Expected Finishing Loss Rate no more than once per calendar year and by unanimous consent by the Steering Committee only. Any changes to Expected Finishing Loss Rate shall only apply prospectively.
“Profit” of the applicable Party for a given calendar quarter shall mean:

44


(1) the product of (a) the weighted average selling price for a kilogram of Finished Ingredient sold to Third Parties in the applicable calendar quarter (the “Average Selling Price”) (where if there is more than one SKU sold, the Average Selling Price and related calculations shall be made on a SKU-by-SKU basis) and (b) the number of kilograms of Crude Ingredient and/or Finished Ingredient sold by the applicable Party or its Affiliates to Third Parties in the applicable calendar quarter, plus
(2) the product of (a) the Average Selling Price for the applicable calendar quarter less 10% and (b) the number of kilograms of the Crude Ingredient and Finished Ingredient used by the applicable Party or its Affiliates internally in the applicable calendar quarter (where Crude Ingredient that is subject to Finishing shall not be considered used until used in Finished Ingredient form) (where if there is no Average Selling Price, the Parties shall mutual agree in writing upon an external benchmark to be used as a proxy for the Average Selling Price, which proxy shall be used for purposes of the calculation in this paragraph (2) and paragraph (3) below), plus
(3) in the case of Profit to be paid by Firmenich to Amyris, for any quantities of Ingredient manufactured by Amyris for Firmenich, the product of (a) the Average Selling Price in the applicable calendar quarter and (b) the number of kilograms of the Crude or Finished Ingredient determined in such calendar quarter to be Lost,
Less
(1)
Fully-Burdened Ingredient Manufacturing Costs, or in the case of Firmenich's exercise of the Discretionary Second Source Option, the price paid by Firmenich or its Affiliate to a Third Party for purchase of the Ingredient (prior to Finishing);
(2)
Crude Logistics Costs;
(3)
Fully-Burdened Ingredient Finishing Costs; and
(4)
Commercialization Costs.


45


[*]


[*] 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.








46


[*]


[*] 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.

47


[*]


[*] 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.


48


APPENDIX F

MODEL FOR CALCULATION OF BONUS

Bonus Calculation
Bonus Intent: As Firmenich is solely responsible for the commercialization of Firmenich Product from the Collaboration, Amyris will pay a one-time bonus to Firmenich, conditional on achieving certain requirements, in order to incentivize those efforts
Bonus Schedule:
Year in Which Bonus Trigger Achieved
One-Time Commercialization Bonus Payment
Years 1 - 4
$2.5M
Year 5
$2.5M - $1.5M
Years 6 onwards
$1.5M

Year 1: Defined as the 12 month period immediately starting upon the date of the first sale of the first Firmenich Product
Bonus Trigger: trigger for the one-time payment of a commercialization bonus from Amyris to Firmenich is defined as achieving all of the following
•
Collaboration has generated a Cumulative Profit of $37.5M, with that profit split 70% to Firmenich, 30% to Amyris
•
Firmenich is making all Reasonable Efforts to commercialize Firmenich Products from the Collaboration pursuant to Article 2.5, including but not limited to such activities as conducting customer sampling, marketing and promotion, and providing customer service to support product sales
•
Firmenich has provided a 5-year business plan to the Steering Committee, which will be updated on an annual basis and which demonstrates their intentions for the growth of Firmenich Product sales commensurate with the market conditions for that product or products
Cumulative Profit means the sum of Profits beginning at the Effective Date through the current date, and determined on a monthly basis utilizing actual data when available
One-Time Commercialization Bonus Payment
•
Bonus will be paid as a one-time payment from Amyris to Firmenich within 60 days of Firmenich achieving the Bonus Trigger
•
If Bonus Trigger is achieved within Year 5, payment will be scaled down to $1.5M on a monthly basis ie, if Bonus Trigger is achieved 4 months into Year 5, payment will be $2.5M - ($1M*4/12)



49


APPENDIX G

EXCEPTION SCHEDULE TO SECTIONS 18.1.2 and 18.2.2 OF THIS AGREEMENT

All patents and pending patent applications, continuations, divisions and any other patent rights derived from [*].


[*] 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.

50


Total Gas & Power USA
24, place Jean Millier
92078 Courbevoie
France

March 24, 2013

Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, CA 94608
Attention: Mr. John Melo, President & CEO

Reference is made to that certain Master Framework Agreement (the “Framework Agreement”), dated as of July 30, 2012, by and between Amyris, Inc., a Delaware corporation (“Amyris”), and Total Gas & Power USA, SAS, a société par actions simplifiée organized under the laws of the Republic of France (“Total”), and that certain Securities Purchase Agreement, dated as of July 30, 2012 (the “Purchase Agreement”), by and between Amyris and Total. Capitalized terms used herein and not defined shall have the meanings given to such terms in the Framework Agreement or the Purchase Agreement.

The terms of the Framework Agreement and Purchase Agreement shall be amended as set forth below and, subject to the satisfaction of the conditions set forth below, Total hereby waives its right to not consummate the Second Closing if it makes a “No-Go Decision” (as defined in the Framework Agreement) pursuant to Section 2.2(a) of the Framework Agreement prior to June 30, 2013, and commits to consummate the Second Closing by no later than July 31, 2013, subject to the satisfaction of the conditions of such Second Closing set forth in Section 6.2 of the Purchase Agreement (other than (i) the condition set forth in Section 6.2(h) of the Purchase Agreement which is hereby expressly waived by Total upon the satisfaction of the Waiver Conditions (as defined below), and (ii) for purposes of determining satisfaction of Section 6.2(a) of the Purchase Agreement, Section 3.17 and Section 3.26 of the Purchase Agreement shall be deemed to be modified to give effect to the security interest contemplated herein):

1.
The Conversion Price (as defined in the Securities) for the Securities to be issued at the Second Closing pursuant to the Purchase Agreement shall be reduced to the greater of (1) the consolidated closing bid price of Amyris' common stock, par value $0.0001 per share, on the date the parties enter into this letter agreement plus $0.01 and (2) $3.08; provided that the Conversion Price shall not be reduced by more than the maximum possible amount permitted under the relevant listing rules of The NASDAQ Stock Market (the “NASDAQ Rules”) such that the New Conversion Price of the Securities would require Amyris to obtain stockholder approval with respect to such reduction of the Conversion Price; provided further that the “Make-Whole Interest Cap” for the relevant Securities shall be reset to an amount agreed to in writing by the parties; and





2.
Amyris shall grant and hereby grants to Total, to the extent it has the right to do so under applicable law and third-party contracts (including term sheets and final agreements effecting the respective content of such term sheets with (1) Novvi SA executed with Cosan S.A. and (2) International Flavors and Fragrances Inc.) existing as of the date of this letter agreement without resulting in a violation, breach or default thereunder, a first-priority security interest in all of its intellectual property to secure all outstanding Securities and all Securities to be issued under the Purchase Agreement after the date hereof and prior to the Security Release Date (as defined below), and at Total's request, shall cooperate in good faith with Total to establish the seniority of such security interest to any other outstanding senior security interests in Amyris intellectual property and promptly cooperate with Total at its request and expense to perfect and document such security interest, provided that Total agrees that it shall promptly release all such first-priority security interests, rights to such interests, and cooperate with Amyris in good faith to release any such interests and rights at such time that Total and Amyris have entered into final documentation regarding the establishment of a JVCO (including, without limitation, the Amyris License Agreement) and such documentation has become effective (the “Security Release Date”), and provided further that Total and Amyris both agree to use good faith efforts to establish the JVCO and enter all ancillary documentation (including without limitation the Amyris License Agreement) by no later than May 30, 2013.

Clauses (1) and (2) above are referred to herein as the “Waiver Conditions.”

Furthermore, Total and Amyris agree that the Securities to be issued pursuant to the Second Closing may be issued in several installments in the manner set forth below, subject to the following conditions:

•
Amyris shall also have the right prior to the Second Closing Date to request that the closing of the purchase and sale of up to $10 million in principal amount of Securities shall occur no later than May 15, 2013 if Amyris provides a certificate of its Chief Financial Officer to Total that Amyris' cash and cash equivalents and short-term investments (determined in accordance with GAAP) at the end of April 2013 is less than $10 million (the “First Installment Amount”).

•
Amyris shall also have the right prior to the Second Closing Date to request that the closing of the purchase and sale of up to $10 million in principal amount of Securities shall occur no later than June 15, 2013 if Amyris provides a certificate of its Chief Financial Officer to Total that Amyris' cash and cash equivalents and short-term investments (determined in accordance with GAAP) at the end of May 2013 is less than $10 million (the “Second Installment Amount” and along with the First Installment Amount, the “Installment Amounts”).

•
The Installment Amounts shall be deducted from the principal amount of Securities to be issued in the Second Closing to be closed no later than the Second Closing Date, as provided in the Purchase Agreement.

•
Following satisfaction by Amyris of the requirements set forth above to request either of the Installment Amounts, Total will proceed to fund the First Installment Amount or Second Installment Amount, as applicable, in each case, subject to the satisfaction of the conditions set




forth in Section 6.2 of the Purchase Agreement (other than (i) the conditions set forth in Section 6.2(h) of the Purchase Agreement which is hereby expressly waived by Total upon satisfaction of the Waiver Conditions and (ii) for purposes of determining satisfaction of Section 6.2(a) of the Purchase Agreement, Section 3.17 and Section 3.26 of the Purchase Agreement shall be deemed to be modified to give effect to the security interest contemplated herein).





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.

Very truly yours,

TOTAL GAS & POWER USA, SAS


By: /s/ Bernard Clement        
Name: Bernard Clement
Title: Managing Director

Agreed to and accepted as of
the date first written above:

AMYRIS, INC.


By:                 
Name: John Melo
Title: President & CEO




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.

Very truly yours,

TOTAL GAS & POWER USA, SAS


By:                 
Name: Bernard Clement
Title: Managing Director

Agreed to and accepted as of
the date first written above:

AMYRIS, INC.


By: /s/ John Melo        
Name: John Melo
Title: President & CEO





CONFIDENTIAL                                  EXECUTION COPY



AMENDED AND RESTATED OPERATING AGREEMENT OF
Novvi LLC
by and among
Amyris, Inc.,
Cosan US, Inc.
and
Novvi LLC
dated as of March 26, 2013





Table of Contents
Contents
ARTICLE I DEFINED TERMS    2
SECTION 1.01.
Certain Defined Terms    2
ARTICLE II FORMATION, TERM, PURPOSE AND POWERS    11
SECTION 2.01.
Formation    11
SECTION 2.02.
Name    12
SECTION 2.03.
Term    12
SECTION 2.04.
Principal Place of Business    12
SECTION 2.05.
Title to Company Property    12
SECTION 2.06.
Agent for Service of Process    12
SECTION 2.07.
Purpose    13
SECTION 2.08.
Powers of the Company    13
SECTION 2.09.
Maintenance of Separate Existence    13
SECTION 2.10.
Strategic Decisions    13
SECTION 2.11.
Related Party Transaction    13
SECTION 2.12.
Management Goals    14
SECTION 2.13.
Conduct of Company Business    14
SECTION 2.14.
No Personal Liability    14
SECTION 2.15.
Admission of New Members    14
SECTION 2.16.
Waiver of Fiduciary Duties; Corporate Opportunities    14
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE MEMBERS    15
SECTION 3.01.
Organization and Authority    15
SECTION 3.02.
No Conflict    16
SECTION 3.03.
Governmental Consents and Approvals    16
ARTICLE IV CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS    16
SECTION 4.01.
Initial Capital Contributions    16
SECTION 4.02.
Membership Units    17
SECTION 4.03.
Additional Membership Units    17
SECTION 4.04.
Funding Requirements; Additional Funding    17
SECTION 4.05.
Status of Capital Contributions    19
SECTION 4.06.
Capital Accounts    19
ARTICLE V BOARD OF MANAGERS; MANAGERS AND OFFICERS    20
SECTION 5.01.
Management of the Company    20
SECTION 5.02.
Board of Managers; Quorum Requirements    20


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SECTION 5.03.
Removal of Managers; Vacancies    21
SECTION 5.04.
Frequency of Meetings; Notice of Meetings; Agenda    21
SECTION 5.05.
Board of Managers Voting; Approval Matters    22
SECTION 5.07.
Action by Written Consent    26
SECTION 5.08.
Telephonic Meetings    27
SECTION 5.09.
Company Minutes    27
SECTION 5.10.
Manager Compensation and Reimbursement    27
SECTION 5.11.
Audit Committee    27
SECTION 5.12.
Officers    27
SECTION 5.13.
Language    29
SECTION 5.14.
D&O Insurance    30
SECTION 5.15.
Subsidiaries    30
SECTION 5.16.
Deadlock    30
ARTICLE VI CHANGE OF CONTROL EVENT    32
SECTION 6.01.
Change of Control Event    32
SECTION 6.02.
Change of Control Event Consequence.    32
ARTICLE VII ALLOCATIONS; TAX MATTERS    32
SECTION 7.01.
Allocations    32
SECTION 7.02.
Special Allocations    33
SECTION 7.03.
Curative Allocations    35
SECTION 7.04.
Tax Allocations    35
SECTION 7.05.
Tax Matters    36
ARTICLE VIII DISTRIBUTION    36
SECTION 8.01.
Distribution    36
SECTION 8.02.
Liquidation Distribution    37
SECTION 8.03.
Distribution Rules    37
SECTION 8.04.
Limitations on Distribution    37
ARTICLE IX BOOKS AND RECORDS; FINANCIAL STATEMENTS    38
SECTION 9.01.
Books and Records; Financial Statements    38
SECTION 9.02.
Reporting Requirements    39
SECTION 9.03.
Access; Due Diligence    40
SECTION 9.04.
Semi-Annual Updates to Members regarding Company BioFene Transformation Technology    40
ARTICLE X RESTRICTIONS ON TRANSFER    40
SECTION 10.01.
Legends    40
SECTION 10.02.
Restrictions on Transfer; Required Transfers    41
SECTION 10.03.
Improper Transfer or Encumbrance    44
SECTION 10.04.
Transferees to Execute Agreement    44

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ARTICLE XI PUT/CALL, DISSOLUTION, LIQUIDATION AND TERMINATION    45
SECTION 11.01.
Put/Call Option after Uncured Breach    45
SECTION 11.02.
No Dissolution    45
SECTION 11.03.
Events Causing Dissolution    45
SECTION 11.04.
Notice of Dissolution    46
SECTION 11.05.
Liquidation    46
SECTION 11.06.
Termination    47
SECTION 11.07.
Claims of the Members    48
ARTICLE XII LIABILITY AND INDEMNIFICATION    48
SECTION 12.01.
Liability of Members    48
SECTION 12.02.
Indemnification of Covered Person    48
SECTION 12.03.
Indemnification by the Company    48
SECTION 12.04.
Advancement of Expenses    50
ARTICLE XIII EXCLUSIVITY    50
SECTION 13.01.
Exclusivity    50
SECTION 13.02.
Non‑Solicitation    51
ARTICLE XIV MISCELLANEOUS    51
SECTION 14.01.
Confidential Information    51
SECTION 14.02.
Notices    53
SECTION 14.03.
Public Announcements    54
SECTION 14.04.
Interpretation    54
SECTION 14.05.
Severability    54
SECTION 14.06.
Counterparts    54
SECTION 14.07.
Entire Agreement    54
SECTION 14.08.
Governing Law; Submission to Jurisdiction; Arbitration    54
SECTION 14.09.
Specific Performance    58
SECTION 14.10.
Expenses    58
SECTION 14.11.
Amendments and Waivers; Assignment    58
SECTION 14.12.
No Third Party Beneficiaries    58
SECTION 14.13.
Headings    59
SECTION 14.14.
Construction    59
SECTION 14.15.
Former Amyris Employees, Officers and/or Contractors    59
SECTION 14.16.
Further Assurances    59
SECTION 14.17.
BioFene Supply Agreement    59


Schedule 2.01    List of Members and Addresses

Exhibit A    Form of Unit Certificate
Exhibit B    Fair Market Value Methodology


iii




AMENDED AND RESTATED OPERATING AGREEMENT
OF
NOVVI LLC
This AMENDED AND RESTATED OPERATING AGREEMENT of Novvi LLC, a Delaware limited liability company (the “ Company ”), is made and effective as of March 26, 2013 (the “ Effective Date ”), among Amyris, Inc., a Delaware corporation (“ Amyris ”), Cosan US, Inc., a Delaware corporation (“ Cosan US ”), (each, a “ Member ” as defined herein, and together the “Members”) and the Company (the “ Agreement ”).
W I T N E S S E T H :
WHEREAS, the Members formed the Company pursuant to and in accordance with the Delaware Limited Company Act, 6 Del. C. § 18‑101, et seq . (as the same may be amended from time to time, the “ Act ”) by filing the Certificate with the Office of the Secretary of State of the State of Delaware pursuant to the Act on September 6, 2011;
WHEREAS, Amyris and Cosan US have agreed to collaborate, though the Company, on the development, production, marketing and distribution of Base Oils, Additives, and Lubricants derived from BioFene (and possibly from other molecules and technologies) for use in the Lubricant Market (“ Company Business ”), all as further defined and described below;
WHEREAS, in pursuit of the Company Business, the Company and Amyris are parties to that certain IP License Agreement (as the same may be amended from time to time, the “ IP License Agreement ”), entered into on March 26, 2013 under which Amyris grants the Company certain rights under its intellectual property, including (i) the Expanded License and Rights under Amyris Base Technology and (ii) a right of first offer with regard to Amyris' Alternative Technology, to develop, make and sell Base Oils, Additives and Lubricants for the Lubricant Market, all as further described in the IP License Agreement;
WHEREAS, in pursuit of the Company Business, the Company and Cosan US are parties to that certain Cosan US Alternative Technology License Agreement, which shall be entered into promptly after the Effective Date (as the same may be amended from time to time, the “ Cosan US License Agreement ”), under which Cosan US grants the Company a right of first offer with regard to Cosan US's Alternative Technology to develop, make and sell Base Oils, Additives and Lubricants for the Lubricant Market, all as further described in the Cosan US License Agreement;
WHEREAS, on September 6, 2011, the Members entered into an Agreement of Limited Liability Company of Novvi LLC (the “ Original Operating Agreement ”); and
WHEREAS, by executing and delivering this Agreement, the Company and each of the Members hereby (i) agree to amend and restate the terms of the Original Operating Agreement as set forth herein, and that upon the effectiveness of this Agreement, the Original Operating Agreement shall be superseded entirely by this Agreement and (ii) declare this

1




Agreement to be the operating agreement of the Company for the purposes and upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members hereby agree as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01 Certain Defined Terms . (a) Each of the following terms shall have the following meanings:
“ Additive ” means any material added to a Base Oil to change its properties, characteristics, or performance (e.g., anti-foam, anti-wear, corrosion inhibitor, detergent, dispersant, pour point depressant, anti-oxidant, or friction modifier), but specifically excluding all viscosity index improvers.
“ Adjusted Capital Account ” means, with respect to each Member, the balance in such Member's Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:
(i)    Credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of each of Sections 1.704‑2(g)(1) and 1.704‑2(i)(5) of the Regulations); and
(ii)    Debit to such Capital Account the items described in Sections 1.704‑1(b)(2)(ii)(d)(4), 1.704‑1(b)(2)(ii)(d)(5) and 1.704‑1(b)(2)(ii)(d)(6) of the Regulations.
“ Adjusted Capital Account Deficit ” means, with respect to each Member, the deficit balance, if any, in such Member's Adjusted Capital Account as of the end of the relevant Fiscal Year.
“ Affiliate ” means, as regards to a certain Person (a “ First Person ”), any Person who, directly or indirectly, through one or more intermediates, Controls the First Person, is Controlled by the First Person, or is under common Control with the First Person. Notwithstanding the preceding definition, for purposes of this Agreement, the Company is not considered an Affiliate of Amyris or Cosan US (or their respective Affiliates) nor are Amyris and Cosan US (or their respective Affiliates) considered Affiliates of the Company.
“ Agreement ” means this Amended and Restated Operating Agreement of Novvi LLC, as amended, modified, supplemented or restated from time to time.
“ Alternative Technology ” means a technology (other than a BioFene-related technology) from a renewable source or a molecule (other than a BioFene-derived

2




molecule) from a renewable source from which Base Oils or Additives, in each case, for the Lubricants Market could reasonably be expected to be developed or made.
“ Amyris BioFene Manufacturing Technology ” means the Patents and Know-How that (i) are Controlled by Amyris and (ii) are necessary or reasonably useful for the development, making (and having made), offering for sale, sale, and importing of BioFene itself, including, but not limited to, BioFene Production Strains and any Patents and Know-How related to the genetic engineering of such BioFene Production Strains, the fermentation methods for making BioFene, the methods of recovery of BioFene from fermentation broth, the processes of isolating BioFene directly from fermentation broth, and the methods of purifying BioFene. The term “Amyris BioFene Manufacturing Technology” also includes any and all Joint BioFene Manufacturing Improvements (as defined in the IP License Agreement) and Novvi LLC BioFene Manufacturing Improvements (as defined in the IP License Agreement), but expressly excludes any Company BioFene Transformation Technology.
“ Asset Value ” means, with respect to any asset, the asset's adjusted basis for United States federal income tax purposes, except as follows:
(i)    The initial Asset Value of any asset (other than money) contributed by a Member to the Company shall be the gross fair market value of such asset (A) as set forth in Section 4.01(a)(i), or (B) if such asset is not listed in Section 4.01(a)(i), as agreed to by all of the Members;
(ii)    The Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values as determined by agreement among all of the Members as of the following times: (a) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (b) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for an interest in the Company; or (c) the liquidation of the Company within the meaning of Section 1.704‑1(b)(2)(ii)(g) of the Regulations, provided however , that adjustments pursuant to clauses (a) and (b) above shall be made only if all of the Members agree that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company; and
(iii)    The Asset Value of any Company asset distributed to any Member shall be the gross fair market value of such asset on the date of distribution, as determined by the agreement among all the Members.
If the Asset Value of an asset has been determined or adjusted pursuant to subparagraph (i) or (ii), such Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset.
“ Base Oil ” means a fluid base compound to which other oils, Additives, or components are added to produce a Lubricant.


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“ Beneficial Owner ” or “ Beneficially Own ” has the meaning given such term in Rule 13d‑3 (or any successor provision) under the United States Securities Exchange Act of 1934, as amended.
“ BioFene ” means farnesene produced through Amyris BioFene Manufacturing Technology.
“ Business Day ” means any day, except a Saturday, Sunday or other day on which commercial banking institutions in the State of California in the United States of America and in the State of São Paulo in Brazil are authorized or directed by applicable Law or executive order to close.
“ Capital Account ” means, with respect to any Member, the account maintained for such Member in accordance with the provisions of Section 4.06.
“ Capital Contribution ” means, with respect to any Member, the aggregate amount of money contributed to the Company and the Asset Value of any property (other than money) contributed to the Company pursuant to Article IV. In the case of a Member that acquires an interest in the Company by virtue of an assignment or transfer in accordance with the terms of this Agreement, “Capital Contribution” means the Capital Contribution of such Member's predecessor to the extent relating to the acquired interest.
“ Certificate ” means the Certificate of Formation of the Company and any and all amendments thereto and restatements thereof filed on behalf of the Company with the Office of the Secretary of State of the State of Delaware pursuant to the Act.
“ Change of Control of Amyris ” means any transaction (or a series of related transactions), as a result of which a Competitor of the Company becomes, direct or indirectly, the Controlling Person of Amyris.
“ Change of Control of Cosan US ” means any transaction (or a series of related transactions) as a result of which a Competitor of the Company becomes, direct or indirectly, the Controlling Person of Cosan US.
“ Code ” means the Internal Revenue Code of 1986, as amended from time to time, or any corresponding United States federal tax statute enacted after the date of this Agreement. The reference to a specific section of the Code refers not only to such specific section but also to any corresponding provision of any United States federal tax statute enacted after the date of this Agreement, as such specific section or corresponding provision is in effect on the date of application of the provisions of this Agreement containing such reference.

“ Company BioFene Transformation Technology ” means the Patents and Know-How in each case that (i) are Controlled by the Company as of the Effective Date or become Controlled by the Company during the term of Amyris's license under Section 2.2 of the IP License Agreement (in each case other than Patents and Know-How licensed from Amyris) and (ii) are related to the chemical transformation of BioFene or a BioFene-derivative into another compound. For clarity, the term “Company BioFene


4




Transformation Technology” does not include Novvi LLC Breach Inventions (as defined in the IP License Agreement).

“ Competitor of the Company ” means any Person that is engaged in the development, production, marketing and distribution of Base Oils, Additives or Lubricants for the Lubricants Market.
“ Control ” means, when used with respect to any Person (“ Controlled Person ”), (i) the power, held by another Person, alone or together with other Persons bound by a voting or similar agreement (each a “ Controlling Person ”), to elect, directly or indirectly, the majority of the senior management and to establish and conduct the policies and management of the relevant Controlled Person; or (ii) the direct or indirect ownership by a Controlling Person and its Affiliates, alone or together with another Controlling Person and its Affiliates, of at least fifty percent (50%) plus one (1) share/quota representing the voting stock of the Controlled Person. In the context of Patents and Know-How, Control means rights under and to such Patents and Know-How held by a party, whether by ownership or license, sufficient to grant the applicable license or rights under the IP License Agreement without violating the terms of any arrangement with any Third Party . T erms derived from Control, such as “ Controlled ”, “ Controlling ” and “ under common Control ” shall have a similar meaning to Control.
“ Controlled Group Liability ” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, (iv) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, or (v) under corresponding or similar provisions of foreign Laws under any employee benefit plan of Seller or its Affiliates.
“ Copyrights ” means all copyrights, whether in published or unpublished works; databases, data collections and rights therein, mask work rights, software, web site content; rights to compilations, collective works and derivative works of any of the foregoing and moral rights in any of the foregoing; registrations and applications for registration for any of the foregoing and any renewals or extensions thereof; and moral rights and economic rights of others in any of the foregoing.
“ Covered Person ” means a Member, any Affiliate of a Member, any officers, directors, Managers, shareholders, employees or partners or members of a Member, or its respective Affiliates or any Managers or Officers of the Company.
“ Deadlock Issue ” means an issue or a matter with respect to which a decision is required to be made in order to (a) prevent the occurrence of an event that would reasonably be expected to have a Material Adverse Effect on the Company, (b) alleviate the effect on the business, assets, operations, results of operations or financial condition of the Company caused by such event such as to, to the extent possible, restore the Company to the state of affairs enjoyed by the Company immediately prior to the occurrence of such event, (c) avoid a material change in the state of affairs, business, corporate governance, assets, operations, results of operations or financial condition of


5




the Company caused by such event, or (d) approve a Member Approval Matter, as set forth in Section 5.06(e) below, or a Board of Managers Approval Matter, as set forth in Section 5.05 below.
“ Depreciation ” means, for each Fiscal Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for United States federal income tax purposes with respect to an asset for such Fiscal Year or other period; provided however , that if the Asset Value of an asset differs from its adjusted basis for United States federal income tax purposes at the beginning of such Fiscal Year or other period, Depreciation shall be an amount that bears the same ratio to such beginning Asset Value as the United States federal income tax depreciation, amortization or other cost recovery deduction with respect to such asset for such Fiscal Year or other period bears to such beginning adjusted tax basis; and provided further that, if the United States federal income tax depreciation, amortization or other cost recovery deduction for such Fiscal Year or other period is zero, Depreciation shall be determined with reference to such beginning Asset Value using any reasonable method selected by the Members.
“ Encumbrance ” means any security interest, pledge, mortgage, lien, charge, adverse claim of ownership or use, or other encumbrance of any kind.
“ Expanded Licenses and Rights under Amyris Base Technology ” means the licenses and related rights granted by Amyris to the Company in the IP License Agreement.
“ Fair Market Value ” means the fair market value of the Company's Membership Units, as calculated using the methodology set forth in Exhibit B to this Agreement.
“ Fiscal Year ” means (i) the period commencing upon the formation of the Company and ending on December 31, 2011, (ii) any subsequent twelve‑month period commencing on January 1 and ending on December 31, or (iii) any portion of the period described in clause (ii) of this sentence for which the Company is required to allocate Net Profits, Net Losses and other items of Company income, gain, loss or deduction pursuant to Article VII hereof.
“ GAAP ” means United States generally accepted accounting principles as in effect from time to time.
“ Insolvency Event ” means (i) an involuntary petition under any bankruptcy or insolvency law or under the reorganization provisions of any such law is filed with respect to a Member or a receiver of, or for, the property of a Member is appointed without the consent of such Member, which petition or appointment remains undischarged or unstayed for an aggregate period of ninety (90) days (whether or not consecutive); or (ii) a Member consents to the entry of an order for relief against it in an involuntary case under any bankruptcy or insolvency law or under the reorganization provisions of any such law; or (iii) a voluntary petition under any bankruptcy or insolvency law or under the reorganization provisions of any such law is filed by a Member, a voluntary assignment of a Member's property for the benefit of creditors is


6




made, or a receiver of, or for, the property of a Member is appointed by, or consented to, by such Member.
“ Know-How ” means any non-patented information and tangible materials, including: (i) technical and non-technical data, specifications, formulae, compounds, formulations, assays, designs, results, information, conclusions, interpretations, inventions, developments, discoveries, ideas, improvements, and trade secrets, (ii) methods, databases, tests, procedures, processes, and techniques, (iii) Production Strains (if applicable), and (iv) other know-how and technology including Copyrights.
“ Law ” means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order issued or promulgated by any national, supranational, state, United States federal, provincial, local or municipal government or any administrative or regulatory body with authority therefrom with jurisdiction over Company or the Members, as the case may be.
“ Lubricant ” means all substances introduced between two moving surfaces to reduce the friction between them, improving efficiency and reducing wear, or dissolving or transporting foreign particles, or distributing heat, in each case comprising a formulation of at least one Base Oil combined or blended with Additives, sold as a finished product for automotive and industrial applications, for use in, by way of example only: automotive, 2-cycle, marine and other engines, ship lubrication, hydraulic equipment, food processing equipment and machinery, and wind turbines. However, the term “Lubricants” expressly excludes drilling oils, fluids and muds, in accordance with the standards set by American Petroleum Institute.
“ Lubricants Market ” means the worldwide market for automotive, commercial, and industrial Lubricants. For the avoidance of doubt, the following markets, but not limited to the following markets, are expressly excluded from the term “Lubricants Market”: the markets for flavors and fragrances, food additives, cosmetics and personal care, drilling oils, fluids and muds, fuels, cleaners, paints, coatings, ink, consumer-packaged goods, pesticides, and pharmaceuticals.

“ Majority Vote ” means, with respect to any matter to be voted on, the written approval of, or the affirmative vote by, a majority of the Managers serving on the Board of Managers.
“ Material Adverse Effect ” means any event, condition, change or effect that materially and adversely affect the business, assets, operations, results of operations or financial condition of the Company, taken as a whole.
“ Member ” means any Person named as a member of the Company on Schedule 2.01 hereto and any Person admitted as an additional Member pursuant to the provisions of this Agreement, in each case, in such Person's capacity as a member of the Company.


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“ Membership Unit ” means a limited liability company interest in the Company (not including any right to the return of Capital Contributions and any interest thereon) representing such fractional part of the interest of all unit holders pursuant to this Agreement as is equal to the quotient of one divided by the total number of Membership Units as evidenced by a certificate in the form of Exhibit A to this Agreement.
“ Net Profits ” and “ Net Losses ” mean, for each Fiscal Year, an amount equal to the Company's taxable income or loss for such Fiscal Year, determined in accordance with Section 703(a) of the Code (but including in taxable income or loss, for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code), with the following adjustments:
(i)    any income of the Company exempt from United States federal income tax and not otherwise taken into account in computing Net Profits or Net Losses pursuant to this definition shall be added to such taxable income or loss;
(ii)    any expenditures of the Company described in Section 705(a)(2)(B) of the Code (or treated as expenditures described in Section 705(a)(2)(B) of the Code pursuant to Regulation Section 1.704‑1(b)(2)(iv)(i)) and not otherwise taken into account in computing Net Profits or Net Losses pursuant to this definition shall be subtracted from such taxable income or loss;
(iii)    in the event the Asset Value of any asset of the Company is adjusted in accordance with paragraph (ii) or paragraph (iii) of the definition of “Asset Value” above, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Profits or Net Losses;
(iv)    gain or loss resulting from any disposition of any asset of the Company with respect to which gain or loss is recognized for United States federal income tax purposes shall be computed by reference to the Asset Value of the asset disposed of, notwithstanding that the adjusted tax basis of such asset differs from its Asset Value;
(v)    in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year or other period, computed in accordance with the definition of “Depreciation” above; and
(vi)    any items which are specially allocated pursuant to Sections 7.02 and 7.03 shall not be taken into account in computing Net Profits or Net Losses.
The amounts of the items of Company income, gain, loss or deduction available to be specially allocated pursuant to Sections 6.02 and 6.03 shall be determined by applying rules analogous to those set forth in subparagraphs (i) through (v) above.


8




“ Patents ” means any patents, patent applications, or certificates of invention, together with all additions, divisions, continuations, continuations-in-part, provisionals, converted provisionals, substitutions, reissues, re-examinations, revalidations, extensions, registrations, patent term extensions, supplemental protection certificates, renewals, and the like with respect to any of the foregoing.
“ Person ” means any individual, corporation, partnership, limited partnership, limited partnership with share capital, limited liability company, Brazilian limited liability company ( sociedade limitada ), association, joint-stock company ( sociedade por ações ), joint venture, other legal entity, trust, unincorporated or governmental organization or any agency or political subdivision thereof.
“ Production Strain ” means recombinant yeast or some other microbial agent that has been genetically engineered to make a desired compound or product by means of a fermentation process.

“ Regulations ” means the income tax regulations, including temporary regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
“ Related Party Transaction ” means any deal, operation, transaction and/or business relationship between, on one side, the Company or a Person Controlled by the Company and, on the other side, a Member or any Affiliate of such Member, or their respective officers, directors, managers or relatives up to three degrees of relationship separation.
“ Restricted Membership Units ” means all Membership Units other than (a) Membership Units that have been registered under a registration statement pursuant to the Securities Act, (b) Membership Units with respect to which a Transfer has been made in reliance on and in accordance with Rule 144 or (c) Membership Units with respect to which the holder thereof shall have delivered to the Company either (i) an opinion, in form and substance reasonably satisfactory to the Company, of counsel, who shall be reasonably satisfactory to the Company, or (ii) a “no action” letter from the staff of the United States Securities and Exchange Commission, to the effect that subsequent transfers of such Membership Units may be effected without registration under the Securities Act or compliance with Rule 144.
“ Rule 144 ” means Rule 144 (or any successor provision) under the Securities Act.
“ Securities Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated by thereunder.
“ Subsidiary ” or “ Subsidiaries ” of any Person means any corporation, partnership, limited partnership, limited partnership with share capital, limited liability company, Brazilian limited liability company ( sociedade limitada ), association, joint-stock company ( sociedade por ações ), joint venture or other legal entity of which such Person (either alone or through or together with any other Subsidiary), owns, directly or


9





indirectly, more than fifty percent (50%) of the stock or other equity interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.
“ Transfer ” means, in respect of any Membership Unit, property or other asset, any direct or indirect transfer, sale, assignment, exchange, donation, lease, abandonment or other disposition of any kind, voluntary or involuntary, contingent or non‑contingent, including any direct or indirect transfer, sale, assignment, exchange, donation, lease, abandonment or other disposition of any kind that results from the foreclosure of any Encumbrance.
“ Transferee ” means any Person that is a transferee of a Member's interest in the Company, or part thereof.
“ Third Party ” means any Person, except for the Company, the Members and their respective Affiliates or their respective permitted successors and assigns.
(b)    The following terms have the meanings set forth in the Section set forth opposite such term:
Term
Section
 
 
Act
Recitals
Amyris
Preamble
Amyris Managers
5.02(a)
Applicable Deadlock Issue
5.16(d)
Appraisers
Arbitration Chamber
Exhibit B
14.08(b)
Arbitration Rules
14.08(b)
Arbitration Tribunal
Assumed Tax Liability
14.08(c)
8.01(b)(i)
Auditors
9.01(a)
Board of Managers
5.01
Board of Managers Approval Matter
5.05
Breach Call Option
Breach Put Option
Breach Put/Call Option Notice
Capital Call
11.01(i)
11.01(ii)
11.01
4.04(b)
Chair
5.02(a)
Change of Control Event
6.01
Company
Preamble
Company Business
Recitals
Confidential Information
14.01(a)
Corporate Opportunities Group
2.16(a)(i)
Cosan US
Preamble
Cosan US License Agreement
Cosan US Managers
Recitals
5.02(a)
10




Term
Section
 
 
Deadlock
5.16(a)
Deadlock Mediation Period
5.16(e)
Deadlock Notice
5.16(a)
Deadlock Question
5.16(c)
Declaration
5.16(d)
Declaring Member
5.16(c)
Disclosing Party
14.01(a)
Effective Date
Former Member
Preamble
10.03
Initial Capital Contribution
4.01(a)
IP License Agreement
Recitals
Liquidating Trustee
11.04
Losses
12.02
Manager
5.02(a)
Mediator
5.16(e)
Member Approval Matter
5.06(e)
Negotiation Period
5.16(d)
Non Cash Consideration
Officers
10.02(c)(ii)
5.12(a)
Original Operating Agreement
Recitals
President
5.12(a)
Prospective Transferee
Receiving Party
Regulatory Allocations
10.04
14.01(a)
7.03
Representatives
14.01(a)
Right of First Refusal
Selling Member
10.02(c)
10.02(c)
Sole Appraiser
Tag Along Right
Tax Matters Partner
Third Appraiser
Exhibit B
10.02(c)
7.05(c)
Exhibit B

ARTICLE II
FORMATION, TERM, PURPOSE AND POWERS
SECTION 2.01. Formation . (a) The Members have formed, and hereby confirm the formation of, the Company as a limited liability company under and pursuant to the provisions of the Act and all other pertinent Laws of the State of Delaware for the purposes and upon the terms and conditions hereinafter set forth. The parties hereto agree that their rights, duties and liabilities and the rights duties and liabilities of any additional Member admitted to the Company in accordance with the terms hereof, shall be as provided in the Act, except as otherwise provided herein.

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(b)    The name and mailing address of each Member shall be listed on Schedule 2.01 attached hereto. Each of the Members is hereby admitted as a Member of the Company. Additional Members shall be admitted as Members of the Company in accordance with Section 2.11. The President, or a designee of the President, shall be required to update Schedule 2.01 from time to time, as necessary to reflect accurately the information therein as known by the President, but no such update shall modify Schedule 2.01 in any manner inconsistent with this Agreement or the Act. Any amendment or revision to Schedule 2.01 made in accordance with this Agreement shall not be deemed an amendment to this Agreement for purposes of Section 13.13. Any reference in this Agreement to Schedule 2.01 shall be deemed to be a reference to Schedule 2.01, as amended and in effect from time to time.
(c)    The President, together with at least one other Officer of the Company, shall be designated as authorized persons, within the meaning of the Act, to execute, deliver and file, or to cause the execution, delivery and filing of, any amendments or restatements of the Certificate and any other certificates, notices, statements or other instruments (and any amendments or restatements thereof) necessary or advisable for the formation of the Company or the operation of the Company in all jurisdictions where the Company may elect to do business, but no such amendment, restatement or other instrument may be executed, delivered or filed unless adopted by the Members in a manner authorized by Section 5.06(e) this Agreement.
SECTION 2.02. Name . The name of the Company is Novvi LLC. The Company Business may not be conducted under any other name unless the Members expressly agree in writing.
SECTION 2.03. Term . The term of the Company commenced, and the Certificate was filed in the Office of the Secretary of State of the State of Delaware on September 6, 2011, and the Company shall continue for any term set forth from time to time in the Certificate, subject to the provisions set forth in Article XI and applicable Law. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate in the manner required by the Act.
SECTION 2.04. Principal Place of Business . The principal place of business of the Company shall be located at 5885 Hollis Street, Emeryville, CA 94608, or such other place as the Board of Managers may determine from time to time per Section 5.05, and the Company shall have other regional offices and operations as the Board of Managers may determine from time to time per Section 5.05.
SECTION 2.05. Title to Company Property . Any property of the Company, whether real, personal or mixed, tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Member, individually, shall have any direct ownership interest in such property.
SECTION 2.06. Agent for Service of Process . The Company's registered agent for service of process in the State of Delaware shall be as set forth in the Certificate, as the same may be amended by the Members from time to time per Section 5.06(e).

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SECTION 2.07. Purpose . The purpose of the Company is to engage in the Company Business.
SECTION 2.08. Powers of the Company . Subject to the limitations set forth in this Agreement, the Company will possess and may exercise all of the powers and privileges granted to it by the Act, by any other applicable Law or this Agreement, together with all powers incidental thereto, so far as such powers are necessary or convenient to the conduct, promotion or attainment of the purpose of the Company set forth in Section 2.07.
SECTION 2.09. Maintenance of Separate Existence . The Company shall do all things necessary to maintain its limited liability company existence separate and apart from each Member and any Affiliate of any Member, including holding regular meetings of the Members and maintaining its books and records on a current basis separate from that of any Affiliate of the Company or any other Person, and shall not commingle the Company's assets with those of any Affiliate of the Company or any other Person. In furtherance, and not in limitation, of the foregoing, the Company shall not:
(i)    Authorize or permit any Person other than the Board of Managers and the Officers as provided herein, to act on its own behalf with respect to matters (other than matters customarily delegated to others under powers of attorney) for which a limited liability company's members or managing member would customarily be responsible;
(ii)    Fail (a) to maintain or cause to be maintained by an agent under the Company's control physical possession of all its books and records, (b) to maintain capitalization adequate for the conduct of its business, (c) to account for and manage all of its liabilities separately from those of any other Person, including payment by it of administrative expenses and taxes, other than income taxes, from its own assets, or (d) to identify or cause to be identified separately all of its assets from those of any other Person;
(iii)    Commingle, or permit the commingling of, its funds with the funds of any Member or any Affiliate of any Member or use its funds for other than the Company's uses; or
(iv)    Maintain, or permit the maintenance of, joint bank accounts or other depository accounts to which any Member would have independent access.
SECTION 2.10. Strategic Decisions . The Company's strategic decisions shall always take into account the Company's best interests, with the purpose of (i) providing the Members with the best possible sustainable return on their investments and (ii) achieving the goals and objectives set forth in any approved business plan.
SECTION 2.11. Related Party Transaction . Any Related Party Transaction shall be subject to Board of Managers approval under Section 5.05 and carried out on an arms' length basis under conditions consistent to those that such parties would be offered in case such transaction were carried out with Third Parties, without conflict of interest and in the best interests of the Company and its Subsidiaries.

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SECTION 2.12. Management Goals . The Managers and Officers of the Company and its Subsidiaries shall be instructed, subject to any applicable fiduciary duties of Officers under applicable Delaware Law, to use their best efforts in pursuing return over capital employed, efficiency, productivity, safety and competitiveness with respect to the activities of the Company and its Subsidiaries.
SECTION 2.13. Conduct of Company Business . The Company, its Subsidiaries, and its and their respective Managers, directors, Officers, agents, employees and any other Person acting on behalf of the Company or any of its Subsidiaries shall not, under any circumstances and for any reason whatsoever, engage in any illegal or unlawful business conduct, and the Company shall use its reasonable best efforts - and cause its Subsidiaries to use their reasonable best efforts - to maintain good labor, social and environmental standards, in the conduct of the Company Business.
SECTION 2.14. No Personal Liability . Except as provided by the Act, no Member or any Manager shall be personally liable for any obligations of the Company and except as specifically provided in Article IV, no Member shall have any obligation or be required to make any Capital Contribution or loan or otherwise advance any funds to the Company.
SECTION 2.15. Admission of New Members . (a) New Members shall be admitted to the Company only with the approval of Members representing at least sixty-five percent (65%) of the Membership Units and on terms and conditions which are consistent with this Agreement (including without limitation any applicable restrictions on transfer set forth in Article X), the Certificate, the Act and any applicable Law. Any such new Members shall obtain Membership Units and shall participate in the management, profits, losses, and distributions of the Company on such terms and with such amendments to this Agreement as are approved by the affirmative vote of the existing Members representing at least sixty-five percent (65%) of the Membership Units.
(b)    A Transferee will be admitted as a substitute Member only if the Transfer to the Transferee is made in compliance with all the requirements of Article X (including, but not limited to, the requirement that such Transferee becomes a party to this Agreement) and the Transferee complies with all of the terms of this Agreement applicable to it.
SECTION 2.16. Waiver of Fiduciary Duties; Corporate Opportunities . (a) This Agreement is not intended to, and does not, create or impose any fiduciary duty on any of the Members hereto or their respective Affiliates or designated Managers. Further, the Members hereby waive any and all fiduciary duties that, absent such waiver, may be implied by applicable Law, and in doing so, recognize, acknowledge and agree that their duties and obligations to one another and to the Company are only as expressly set forth in this Agreement. Additionally, each Member acknowledges that the other Members and the Affiliates of such Members own and/or manage other businesses, including businesses that may compete with the Company, the other Members or the Affiliates of such other Members. Without any accountability to the Company or any Member by virtue of this Agreement:
(i)    Each Member and its Affiliates, and their respective officers, directors, shareholders, partners, members, agents and employees, and each Manager

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designated by such Member (collectively, a “ Corporate Opportunities Group ”), shall not in any way be prohibited or restricted from engaging or investing in, independently or with others, any business opportunity of any type or description, including, without limitation, those business opportunities that might be the same or similar to the Company Business;
(ii)    Neither the Company nor any Member or such Member's Corporate Opportunities Group shall have any right in or to such other business opportunities of any other Member or such Member's Corporate Opportunities Group or to the income or proceeds derived therefrom;
(iii)    No Member or its Corporate Opportunities Group shall be obligated to present any business opportunity to the Company or any other Member or such other Member's Corporate Opportunities Group, even if the opportunity is of the character that, if presented to the Company, could be taken by the Company, or if presented to any other Member or other Member's Corporate Opportunities Group, could be taken by such Persons; and
(iv)    Each Member and its Corporate Opportunities Group shall have the right to hold any such business opportunity for its own account or to recommend such opportunity to Persons other than the Company, any other Member, or any Person in such other Member's Corporate Opportunities Group.
(b)    Notwithstanding the foregoing, nothing in Section 2.12(a) shall alter or amend the rights and obligations of the Company, Amyris and its Affiliates, or Cosan US and its Affiliates under Article 3 of the IP License Agreement ( i.e., ROFO re Alternative Technology), the Cosan US License Agreement ( i.e., ROFO re Alternative Technology), or in Section 13.1 of this Agreement ( i.e., Exclusivity).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE MEMBERS
Each Member severally, but not jointly, represents and warrants to the Company and each other Member as follows:
SECTION 3.01. Organization and Authority . To the extent such Member is not a natural person, it is duly incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to perform the actions contemplated hereby. Such Member is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the properties owned or leased by it or the operation of its business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed or qualified would not prevent or materially hinder the performance of the actions contemplated by this Agreement. The execution and delivery of this Agreement by such Member, the performance by it of its obligations hereunder and the performance by it of the actions contemplated hereby have been duly authorized by all requisite

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action on its part. This Agreement has been duly executed and delivered by such Member, and (assuming due authorization, execution and delivery by the other Persons signatory hereto) this Agreement constitutes a legal, valid and binding obligation of such Member enforceable against it in accordance with its terms.
SECTION 3.02. No Conflict . The execution, delivery and performance of this Agreement by such Member do not and will not (a) violate, conflict with or result in the breach of any provision of its charter or by‑laws (or similar organizational documents), to the extent it has such, (b) conflict with or violate any Law, governmental regulation or governmental order applicable to such party or any of its assets, properties or businesses or (c) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights pursuant to, any contract, agreement or arrangement, whether among the Members or otherwise, by which such party is bound, except to the extent that any conflict under (b) or (c) above would not prevent or materially hinder the performance of the actions contemplated by this Agreement.
SECTION 3.03. Governmental Consents and Approvals . The execution, delivery and performance of this Agreement by such party do not and will not require any consent, approval, authorization or other order of, action by, filing with or notification to, any governmental authority.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND
CAPITAL ACCOUNTS
SECTION 4.01. Initial Capital Contributions; Payment Schedule .
(a)    The initial capital contribution that both Amyris and Cosan US shall make to the Company upon the date of this Agreement shall be in the aggregate Twenty Million Two Hundred U.S. Dollars (US$20,000,200) (the “ Initial Capital Contribution ”). The Initial Capital Contribution shall be made by the Members as follows:
(i)    In return for one hundred thousand one (100,001) Membership Units of the Company, initially representing fifty percent (50%) of the issued and outstanding Membership Units, Amyris has contributed to the Company: (1) One Hundred U.S. Dollars (US$100) in cash in conjunction with the Original Operating Agreement and (2) the Expanded Licenses and Rights under Amyris Base Technology, which the Members hereby unanimously agree to be valued at Ten Million U.S. Dollars (US$10,000,000), such aggregate contribution having been unanimously agreed to be good and valuable consideration for Amyris' Membership Units by all Members of the Company.
(ii)    In return for one hundred thousand one (100,001) Membership Units of the Company, initially representing fifty percent (50%) of the issued and outstanding Membership Units, Cosan US has contributed to the Company (1) One Hundred U.S. Dollars (US$100) in cash in conjunction with the Original Operating Agreement and (2) Ten Million U.S. Dollars (US$10,000,000) in cash (payable per Subsection (b) below),

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such aggregate contribution having been unanimously agreed to be good and valuable consideration for Cosan US's Membership Units by all Members of the Company.
(b)    Upon execution of this Agreement, Cosan US will pay the Company the Ten Million U.S. Dollars (US$10,000,000) described in Clause 2 of Section 4.01(a)(ii) by wire transfer in immediately available funds to an account designated by the Company.
SECTION 4.02. Membership Units . All Membership Units shall have identical rights in all respects as all other Membership Units except as otherwise specified in this Agreement. Each Member hereby agrees that its interest in the Company and in its Membership Units shall for all purposes be personal property.
SECTION 4.03. Additional Membership Units . In the event (i) additional Membership Units shall be issued to a Member or to any other Person or (ii) Membership Units are sold or Transferred to another Member or any other Person (subject to the restrictions and provisions of this Agreement) and such Person shall be admitted as a Member in accordance with Section 2.15, the President shall amend Schedule 2.01 accordingly. Any Capital Contribution to be made by such Person in exchange for Membership Units shall be subject to the restrictions and provisions of this Agreement and in the form and amount determined by the Members per Section 5.06(e), and the amount of such Capital Contribution, if any, shall be credited to such Person's Capital Account.
SECTION 4.04. Funding Requirements; Additional Funding . (a) The Members agree that, no later than when the Company has only One Million U.S. Dollars (US$1,000,000) in cash remaining, the Board of Managers will meet and determine whether additional Capital Contributions to the Company are warranted. In the event that the Board of Managers determines, at any time, that additional capital is required to support the operations of the Company, such capital will be obtained through any one or a combination of the following means, at the election of the Board of Managers, in each case subject to any applicable approval requirement set forth in this Agreement including without limitation the approval of the Members required under Section 5.06(e)(i):
(i)    revolving credit or other loan facilities provided by unrelated Persons (such as banks);
(ii)    cash advances or other credit or loan facilities provided by the Members or their Affiliates; or
(iii)    additional cash Capital Contributions by the Members.
In the event that such capital is to be obtained in the form of revolving credit or other loan facilities, it shall be secured by the Company and guaranteed by the Members in proportion to their Membership Units, if requested by the relevant lender, provided that if Cosan US does not own assets to guarantee such credit or loan facility in the United States of America, its obligation to guarantee such credit or loan facility shall be satisfied with assets of its Affiliates located abroad, provided further that if the respective lender does not accept such guarantee, Cosan US will not be under any obligation to have funds being remitted to the United States for such purpose and in such case, then the other Members will also not be obligated to guarantee such

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credit or loan facility. In the event that such capital is to be obtained in the form of cash advances or other credit or loan facilities provided by a Member, the Company shall notify the other Members of the advances to be made or other credit or loan facilities to be provided pursuant to this Section 4.04 by delivering a written notice to the other Members in accordance with Section 14.02 specifying (i) the aggregate amount of cash advances or other credit or loan facilities required at such time and (ii) the amount of cash advances to be made or loan or credit facilities to be provided by the Member, which amount shall be the product of (A) the aggregate amount of cash advances or other credit or loan facilities to be made and (B) a fraction, the numerator of which shall be the aggregate number of Membership Units owned by such Member and the denominator of which shall be the total number of outstanding Membership Units. The cash advances to be made by each Member shall be made pro rata to their Membership Units in immediately available funds by wire transfer or other similar means to a bank account designated by the Company in such notice prior to the close of business on the tenth Business Day following the date of delivery of such notice. The Member shall be compensated for such advances on an annual basis for the duration of that support by the payment of an interest charge based upon the interest rate as shall be agreed to by such Member and the Board of Managers, provided that the Managers appointed by such Member shall not vote on such interest rate.
(b)    In the event that such additional funding is made in the form of additional Capital Contributions by the Members (a “ Capital Call ”), the Members satisfying such Capital Call shall receive additional Membership Units at a price per Membership Unit equal to the Fair Market Value of the Membership Units. The Company shall notify each Member of the Capital Call to be made pursuant to this Section 4.04(b) by delivering written notice to each Member in accordance with Section 14.02 specifying (i) the aggregate amount of the Capital Call required at such time and (ii) the amount of the Capital Call to be provided by such Member, which amount shall be the product of (A) the aggregate amount of the Capital Call to be made and (B) a fraction, the numerator of which shall be the aggregate number of Membership Units owned by such Member and the denominator of which shall be the total number of outstanding Membership Units. In the event a Member is authorized by the Capital Call to satisfy its share of such Capital Call in the form of assets (instead of cash), the value of such additional Capital Contribution shall be deemed to be the fair market value of such assets as determined per clause (i) of the definition of Asset Value.
(c)    Any written notice delivered by the Company to the Members pursuant to Section 4.04(a) or (b) shall specify, in addition to the information otherwise required, the date on which any advance, other credit support or Capital Call is due, account numbers for the wire transfer of cash amounts and any other information the Company determines.
(d)    Notwithstanding anything to the contrary set forth herein, any (i) cash advances or other credit or loan facilities provided by the Members or their Affiliates or (ii) additional cash or non-cash Capital Contributions by the Members contemplated herein in connection with the funding of the Company shall be made by each Member at the same time, on the same terms, in the same manner and in the same proportion as each other Member, based on the number of Membership Units owned by such Member in relation to the total number of outstanding Membership Units as contemplated in this Section 4.04.

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SECTION 4.05. Status of Capital Contributions . (a) No Member shall receive any interest, salary or drawing with respect to its Capital Contributions or its Capital Account or, except pursuant to Related Party Transaction between the Company and a Member that is in writing and approved by the Board of Managers as expressly provided herein, for services rendered on behalf of the Company or otherwise in its capacity as a Member. Except as otherwise expressly provided herein, no Member will be permitted to borrow, make an early withdrawal of, or demand or receive a return of any Capital Contributions. Under circumstances requiring a return of any Capital Contributions, except as otherwise expressly provided in this Agreement, no Member will have the right to receive property other than cash.
(b)    Except as otherwise provided herein, the Members shall be liable only to make their Capital Contributions pursuant to this Article IV, and no Member shall be required to lend any funds to the Company or, after a Member's Capital Contributions have been fully paid pursuant to this Article IV, to make any additional capital contributions to the Company. No Member shall have any personal liability for the repayment of any Capital Contribution of any other Member or Transferee. A Member's obligation to contribute capital to the Company is conditional; payable only to the extent, and only in such amounts, required to be paid to the Company pursuant to this Agreement. Notwithstanding any other provision in this Agreement, the obligations of the Members pursuant to this Section 4.05 shall not be, and shall not be deemed to be, a guaranty, maintenance agreement or other similar agreement, or under any circumstances utilized to satisfy the general obligations and liabilities of the Company.
SECTION 4.06. Capital Accounts . (a) An individual Capital Account shall be established and maintained for each Member.
(b)    The Capital Account of each Member shall be maintained in accordance with the following provisions:
(i)    to each Member's Capital Account there shall be credited all such Member's Capital Contributions, such Member's distributive share of Net Profits, any items in the nature of income or gain that are specially allocated to such Member pursuant to Article VII and the amount of any Company liabilities that are assumed by such Member or that are secured by any Company assets distributed to such Member;
(ii)    to such Member's Capital Account there shall be debited the amount of cash and the Asset Value of any Company assets distributed to such Member pursuant to any provision of this Agreement, such Member's distributive share of Net Losses, any items in the nature of deductions or losses that are specially allocated to such Member pursuant to Article VII and the amount of any liabilities of such Member that are assumed by the Company or that are secured by any property contributed by such Member to the Company;
(iii)    in the event all or some of a Member's interest in the Company is sold in accordance with Article X, the Transferee shall succeed to the Capital Account of the assignor to the extent it relates to the transferred interest; and

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(iv)    no Member shall be required to pay to the Company or to any other Member or Person any deficit in such Member's Capital Account upon dissolution of the Company or otherwise.
ARTICLE V
BOARD OF MANAGERS; MANAGERS
AND OFFICERS
SECTION 5.01. Management of the Company . The management of the Company shall be vested exclusively in the Board of Managers (the “ Board of Managers ”), which may from time to time by resolution delegate authority to the Officers pursuant to Section 5.12, to act on behalf of the Company. Except as otherwise agreed by the Members, no Member shall have any right or authority to take any action on behalf of the Company or to bind or commit the Company with respect to Third Parties or otherwise. Each Member hereby (i) specifically delegates to the Board of Managers its rights and powers to manage and control the business and affairs of the Company in accordance with the provisions in Section 18‑407 of the Act, and (ii) revokes its right to bind the Company, as contemplated by the provisions of Section 18‑402 of the Act.
SECTION 5.02. Board of Managers; Quorum Requirements . (a) So long as a Member owns at least thirty-five percent (35%) of the Membership Units of the Company, such Member shall have the right to appoint one individual, as set forth below, to act on its behalf at meetings of the Board of Managers (each a “ Manager ”). Initially, the Board of Managers of the Company shall be composed of six (6) Managers. So long as a Member owns at least fifty percent (50%) of the Membership Units of the Company, such Member shall have the right to appoint three (3) Managers, and so long as a Member owns less than fifty percent (50%) but at least thirty-five percent (35%) of the Membership Units of the Company, such Member shall be entitled to appoint one (1) Manager. Furthermore, as long as Cosan US and Amyris each hold fifty percent (50%) of the Membership Units of the Company, the Members shall alternate the appointment of the chairman of the Board of Managers (the “ Chair ”) from one of its appointed Managers. If one of the Members, at any time, becomes the Company's Controlling Member, then such Member shall always have the right to appoint the Chair while such Member remains the Company's Controlling Member. The Chair shall be appointed for a two 2‑year term and shall preside over meetings of the Board of Managers during his or her term of office. The first Chair shall be appointed by Amyris. Any Managers appointed by Amyris shall be designated as “ Amyris Managers ”, and any Managers appointed by Cosan US shall be designated as “ Cosan US Managers ”. The Amyris Managers shall be officers or employees of Amyris or its Affiliates; the Cosan US Managers shall be officers or employees of Cosan US or its Affiliates. The initial Cosan US Managers shall be Mr. Marcos Marinho Lutz, Mr. Lineu Paulo Moran Filho, and Mr. Nelson Roseira Gomes Neto, and the initial Amyris Managers shall be Mr. John Melo, Mr. Paulo Diniz, and Mr. Joel Velasco. The composition of the Board of Managers shall thereafter be determined by the Members pursuant to this Section 5.02.
(b)    A Manager appointed as provided herein shall serve for a two (2)-year term or until such Manager's successor is appointed by the Member who appointed such Manager, including in the event of any retirement, removal, resignation or death of a Manager.

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A Manager may be re-appointed to serve as a Manager of the Company, with no maximum number of consecutive terms.
(c)    In addition to the Amyris Managers and the Cosan US Managers, the officers, directors, employees or other professional representatives (including the accountants, attorneys and/or financial advisors) of Amyris and Cosan US and their Affiliates shall be permitted to attend Board of Managers meetings as observers upon unanimous approval of the Managers.
(d)    For as long as any of Cosan US or Amyris is entitled to appoint at least one (1) Manager to the Board of Managers, the presence of at least one Cosan US Manager and one Amyris Manager shall constitute a quorum for a meeting of the Board of Managers. A quorum must exist at all times of a meeting, including the reconvening of any meeting that has been adjourned, for any action taken at such meeting to be valid. If no Cosan US Manager or no Amyris Manager is present at such duly called meeting of the Board of Managers, the Managers present shall adjourn the meeting to a time not less than three (3) Business Days from the time of such adjournment (taking into account any circumstances that may prevent any Manager from attending or participating in such reconvened meeting), and shall promptly give written notice to the Managers of the time and place at which the meeting shall reconvene. The quorum for such reconvened meeting shall require the presence of at least one (1) Cosan US Manager and one (1) Amyris Manager. If no Cosan US Manager or no Amyris Manager is present at such reconvened meeting, the Managers present shall re‑adjourn the meeting to a time not less than three (3) Business Days from the time of such adjournment (taking into account any circumstances that may prevent any Manager from attending or participating in such reconvened meeting), and shall promptly give written notice to the Managers of the time and place at which the meeting shall reconvene. The presence of any two (2) Managers at the re‑adjourned meeting will constitute a quorum for such meeting, even if such two (2) Managers were appointed by the same Member.
SECTION 5.03. Removal of Managers; Vacancies . A Member may at any time remove any Manager appointed by such Member pursuant to Section 5.02, with or without cause. In the event a vacancy occurs on the Board of Managers as a result of the retirement, removal, resignation or death of a Manager designated pursuant to Section 5.02, such vacancy shall be filled by a person designated by the Member, the retirement, removal, resignation or death of whose designee or nominee created the vacancy.
SECTION 5.04. Frequency of Meetings; Notice of Meetings; Agenda . (a) The Board of Managers shall hold ordinary meetings at such time and place as shall be determined by the Board of Managers by Majority Vote. In the first month of every Fiscal Year, the Board of Managers shall meet and approve the schedule of meetings for the starting Fiscal Year. In the absence of an agreement, the Board of Managers shall hold ordinary meetings every quarter during each Fiscal Year. Special meetings of the Board of Managers, to be held at the offices of the Company as herein provided (or such other place as shall be agreed by Majority Vote), shall be called at the direction of the Chair. Per Section 5.08, a Manager may attend any meeting via phone or video conference, instead of attending a meeting in-person.

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(b)    The Chair shall call all meetings of the Board of Managers. The notice of meeting shall be delivered, either personally, by facsimile or by international mail, by his or her own initiative or at the written request of any Manager. Failure by the Chair to call any meeting requested by any Manager within five (5) calendar days from the date of receipt of the request by any Manager allows any other Manager to call the requested meeting. The meetings of the Board of Managers shall be called at least eight (8) calendar days prior to the date of each meeting. The notice of meeting shall specify the place, date and time of the meeting and shall inform the detailed agenda, subject to the provisions of Section 5.04(c) below, and attach any proposal of resolutions, any document prepared by the Company in advance of the meeting in order to support any resolution and all necessary documentation related thereto. Notice may be waived in writing or by the attendance of all Managers. The attendance of a Manager at a meeting shall constitute a waiver of notice of such meeting, except when the Manager attends the meeting for the express purpose of objecting at the beginning thereof to the transaction of any business because the meeting has not been properly called or convened. Unless otherwise agreed by Majority Vote, the Board of Managers' meetings shall be held at the Company's headquarters, but per Section 5.08, a Manager may attend any meeting via phone or video conference, instead of attending a meeting in-person.
(c)    With respect to quarterly meetings and non‑quarterly non‑emergency meetings, not later than five (5) Business Days before each such meeting, the Chair shall deliver to each Manager, together with the notice of each such meeting, an agenda specifying in reasonable detail the matters to be discussed at the applicable Board of Managers meeting, it being expressly forbidden the inclusion of generic items such as, for example, “general matters of interest of the Company”. Moreover, no resolutions shall be passed on any matters that are not expressly included in the agenda, as stated in the notice of such meeting, and any such resolutions shall be void and of no force and effect unless such resolutions are approved by the unanimous vote of all of the Managers representing one hundred percent (100%) of the Board of Managers.
SECTION 5.05. Board of Managers Voting; Approval Matters . Except with respect to Member Approval Matters pursuant to Section 5.06(e) and as delegated to the Officers pursuant to Section 5.12, the Board of Managers shall have the authority with respect to all aspects of the operation of the Company. All decisions of the Board of Managers shall be made by Majority Vote, except that resolutions on the following matters shall always require the approval of at least one (1) Manager appointed by each Member then-owning at least thirty-five percent (35%) of the Membership Units (each of the following enumerated matters being referred to as a “ Board of Managers Approval Matter ”):
(i)    establishment of the Company's general business guidelines for what constitutes Company Business; provided , however , that the Officers will be responsible for the decisions related to the Company's daily activities, as set forth in Section 5.12 below;
(ii)    approval of any annual business and R&D plans and annual operating and investment budgets of the Company, as prepared and recommended by the Officers, and material modifications thereto; provided , however , that the Officers will be

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responsible for the execution of the approved annual business and R&D plans and operational and investment budgets;
(iii)    the commencement of any research and development work by the Company on a BioFene-derived Additive;
(iv)    appointment and removal of the Company's Officers in accordance with this Agreement;
(v)    election or replacement of the independent auditing firm, who shall be chosen among the so called “Big Four” firms, currently comprised of PricewaterhouseCoopers; Ernst & Young; Deloitte and KPMG and their Affiliates;
(vi)    any decision to make distributions to the Members, to the extent not otherwise required pursuant to Section 7.01;
(vii)    any association or joint venture involving the Company or its Subsidiaries;
(viii)    incurrence, amending, modifying, refinancing or alteration of material terms by the Company of any indebtedness, which incurrence, amendment, modification, refinancing or alteration was not contemplated by the approved annual business or R&D plans or in the approved budget(s);
(ix)    granting of guarantees, sureties or indemnities by the Company, except for those guarantees related to Company indebtedness specified in the approved annual business plan or in the budget(s) and those indemnities required in connection with contracts entered into in the ordinary course of business consistent with the approved business or R&D plans or approved budget(s);
(x)    acquisition and/or disposal of or divestiture of any material assets outside of the ordinary course of business and not contemplated by the approved annual business or R&D plans or approved budget(s);
(xi)    any transaction that creates any non-capital expenditure by, or obligation of, the Company not contemplated by the approved annual business or R&D plans or approved budget(s);
(xii)    any capital expenditure not contemplated in the approved annual business plan, R&D plan, or budget(s) or which otherwise exceeds the amount of such expenditure in the approved annual business or R&D plans or approved budget(s);
(xiii)    any non‑compete or exclusivity obligation binding on the Company;
(xiv)    decision whether the Company (or any if its Subsidiaries) shall produce its own BioFene or purchase it from Amyris or Third Parties, based on a substantiated proposal to be prepared and recommended by the Officers;

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(xv)    execution or amendment by the Company of any supply agreement, off‑take agreement or any agreements related to the actual production and sale of the Company's products;
(xvi)    decision for the Company (or any if its Subsidiaries) to build a manufacturing facility for the production of the Company's products and the site for such facility, based on a substantiated proposal to be prepared and recommended by the Officers;
(xvii)    creation of Subsidiaries;
(xviii)    approval of the annual gross amounts to be paid to the Officers;
(xix)    entering into, engaging, amending any material term of or terminating any Related Party Transaction;
(xx)    changing the Company's principal place of business or opening other regional offices;
(xxi)    the sending of any notice requesting Capital Contributions to a Member pursuant to Section 4.04; and
(xxii)    the entering into of any contract, arrangement, understanding or other similar agreement with respect to any of the foregoing (i)‑(xxi).
SECTION 5.06. Members' Meetings; Notice; Agenda; Voting; Member Approval Matters . (a) Members' meetings shall be annual or special. The Members acknowledge that an annual Members' meeting shall be held within the four (4) months following the close of each Fiscal Year. Furthermore, special Members' meetings may be held whenever and insofar as the business of the Company so requires. The Members' meetings may be called at any time by the Chair, by his or her own initiative or at the written request of any Member or otherwise as contemplated by the Act. Failure by the Chair to call any such meeting requested by any Member within five (5) calendar days from the date of receipt of the pertinent request shall allow such Member to call the applicable meeting. Subject to the applicable Law, the call notices shall be delivered to each Member at least eight (8) calendar days in advance of the date scheduled for the holding of each Members' meeting and shall contain information on the place, date and time the relevant Members' meeting will be held and the detailed agenda, as well as any documentation that shall be used to support the matters to be discussed at such meeting, subject to the provisions of Subsection (b) below. Unless otherwise agreed by the Members, Members' meetings shall be held at the Company's headquarters, but per Section 5.08, a Member may attend any meeting via phone or video conference, instead of attending a meeting in-person.

(b)    The call notice to the Members' meeting shall set forth, in detail, the relevant agenda, it being expressly forbidden the inclusion of generic items such as, for example, “general matters of interest of the Company”. Moreover, no resolutions shall be passed on any matters that are not expressly included in the agenda set forth in the call notice, under penalty of being deemed void, except for (i) the resolutions that are approved by the unanimous vote of all

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of the Members representing one hundred percent (100%) of the Membership Units; or (ii) as provided in the Act.
(c)    At all meetings of Members, the presence of the holder(s) of at least a majority of the Membership Units (whether present in person or via phone or video conference) will be required for, and will constitute, a quorum for the transaction of business. However, for as long as Cosan US and Amyris each hold at least thirty-five percent (35%) of the Membership Units, the presence of both Cosan US and Amyris is required to constitute a quorum for a Members' meeting. A quorum must exist at all times of a Member meeting, including the reconvening of any Member meeting that has been adjourned, for any action taken at such meeting to be valid. If the required quorum is not present at a duly called Members' meeting, the meeting shall be adjourned to a time not less than three (3) Business Days from the time of such adjournment (taking into account any circumstances that may prevent a Member from attending or participating in such reconvened meeting) and written notice shall be promptly given to the Members of the time and place at which the meeting shall reconvene. If the required quorum is not met at such reconvened meeting, that meeting shall be re‑adjourned to a time not less than three (3) Business Days from the time of such adjournment (taking into account any circumstances that may prevent a Member from attending or participating in such reconvened meeting) and written notice shall be promptly given to the Members of the time and place at which the meeting shall reconvene. The presence of any Member at the re‑adjourned meeting will constitute a quorum.
(d)    Each Membership Unit shall have the right to one (1) vote on all matters to be decided by Members. Except for those special matters provided for by applicable Law or referred to in Subsection (e) below, resolutions at Members' meetings shall be passed by a majority vote of the Membership Units present at the meetings or, in lieu of a meeting, by written consent of at least that number of Members, as the case may be, required to approve the matter at a meeting.
(e)    Notwithstanding anything contained in this Agreement to the contrary, resolutions on the following matters shall always require the approval of at least sixty-five percent (65%) of the Membership Units (each of the following enumerated matters being referred to as a “ Member Approval Matter ”):
(i)    entering into any definitive agreement or arrangement for funding of the Company beyond the Initial Capital Contribution;
(ii)    admission of any new Member, except as expressly otherwise permitted in this Agreement;
(iii)    the authorization, issuance, sale, acquisition, repurchase or redemption by the Company of any Membership Units or other equity interest (or option, warrant, conversion or similar right with respect to any equity interest) in or of the Company, or any change in the characteristics, rights and privileges of the Membership Units;

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(iv)    redemption, amortization or repurchase of Membership Units or any convertible securities, or changes in the conditions applicable to redemption, amortization or repurchase of Membership Units or convertible securities;
(v)    any merger or other form of corporate reorganization, or any spin‑off or drop down of assets and liabilities, involving the Company;
(vi)    change in accounting or tax principles or policies with respect to the financial statements, except as required by GAAP or by applicable Law;
(vii)    change of corporate type or conversion into any other form of entity;
(viii)    the conduct by the Company of any business other than, or the engagement by the Company in any transaction not substantially related to, the Company Business;
(ix)    the dissolution, liquidation or winding up of the Company or the commencement of a voluntary proceeding seeking reorganization or other similar relief;
(x)    approval of any stock option, profit sharing or similar compensation plan and any amendments thereto;
(xi)    approval of the Company's initial public offering of any equity or convertible debt securities;
(xii)    the amendment or restatement of the Certificate or other constituent documents of the Company;
(xiii)    any change in the number of, or method of designating, Managers on the Board of Managers;
(xiv)    the continuing of the Company under the Laws of another jurisdiction; and
(xv)    the entering into of any contract, arrangement, understanding or other similar agreement with respect to any of the foregoing (i)-(xiv).
SECTION 5.07. Action by Written Consent . Except as expressly otherwise provided in Sections 5.05 or 5.06(e), any action required or permitted to be taken by the Members or the Board of Managers, either at a meeting or otherwise, may be taken without a meeting if the Members or the Managers, as the case may be, consent in writing to such action and the writing or writings are filed with the minutes of proceedings of the Members or the Managers, as the case may be. For such written consent to be effective, at least that number of Members or Managers, as the case may be, required to approve the matter shall also be required to execute such written consent. Written notice of the action to be taken by written consent will be given by the Chair to all Members or the Managers, as the case may be, at least five (5) Business Days prior to the effectiveness of any such action.

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SECTION 5.08. Telephonic Meetings . Members and Managers may participate in a meeting by means of a conference telephone or similar communications equipment through which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
SECTION 5.09. Company Minutes . The decisions and resolutions of the Members and the Board of Managers shall be reported in minutes, which shall state the date, time and place of the meeting (or the date of the written consent in lieu of meeting), the Members or Managers, as the case may be, present at the meeting, the resolutions put to a vote (or the subject of a written consent) and the results of such voting (or written consent). The minutes shall be entered in a minute book kept at the principal office of the Company, and a copy of the minutes shall be provided to each Member or Manager, as the case may be.
SECTION 5.10. Manager Compensation and Reimbursement . Only Managers that are neither (i) Officers nor (ii) employees or shareholders of Cosan US or Amyris or of their respective Affiliates, shall be entitled to receive any compensation for their service as a Manager. The compensation of any such Managers shall be based on market practices, not exceeding the annual gross amount approved by the Members. Moreover, all Managers shall be entitled to be reimbursed by the Company from any reasonable travel expenses arising from the performance of their activities and functions.
SECTION 5.11. Audit Committee . The Company shall establish and maintain an Audit Committee, which shall consist of two (2) Managers of the Board of Managers - one Manager nominated by Amyris and one Manager nominated by Cosan US.
SECTION 5.12. Officers . (a) The Company shall have certain employees or agents appointed by the Board of Managers, per Section 5.05, serve as the officers of the Company (the “Officers”). Such Officers will include a president (the “ President ”) and may include, at the Board of Managers' discretion, one or more vice presidents, a chief financial officer, a treasurer, one or more assistant treasurers, chief operations officer, chief technical officer, a secretary, and/or one or more assistant secretaries. All Officers must be professionals with proven qualification and experience in their respective areas of responsibility, as determined by the Board of Managers. The Board of Managers will establish the annual compensation for each Officer. The Officers shall operate under the supervision and direction of the Board of Managers and generally obtain the written approval of the Board of Managers prior to taking any actions relating to or on behalf of the Company; notwithstanding the foregoing, the Officers shall, subject to Subsection (b) below, maintain powers to perform the following tasks without prior written approval of the Board of Managers:
(i)    designate one or more banks or similar financial institutions as depositories of the funds of the Company;
(ii)    open, maintain and close general and special accounts with any such depositories;
(iii)    deposit in such accounts funds of the Company as the Officers deem necessary or advisable;

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(iv)    sign or countersign checks, drafts, or other orders (including authorizations of electronic transfers) for the payment of money of the Company against any funds deposited in any of such accounts, for amounts up to US$100,000;
(v)    approve the use of facsimile signatures for the signing or countersigning of checks, drafts or other orders for the payment of money, and to enter into such agreements as banks and similar financial institutions customarily require as a condition for permitting the use of facsimile signatures;
(vi)    make such general and special rules and regulations with respect to such accounts, respecting the funding limits mentioned in items (iii) and (iv) above as such Officers deem necessary or advisable for the Company and execute and certify any customary printed blank signature card forms in order to exercise conveniently the authority granted by this Section 5.12(a);
(vii)    negotiate and execute equipment or office lease agreements and related documents of up to US$100,000;
(viii)    negotiate and execute ordinary agreements and/or contracts, bids and proposals that do not exceed the amount of US$100,000 and that shall not last longer than twelve (12) months; and
(ix)    approve, sign, execute and implement any transaction contemplated by, or consistent with, the annual business or R&D plans or budget(s) approved by the Board of Managers, up to the amounts provided therein;
(x)    day-to-day management, administration and oversight of the Company's business and affairs and all decisions related to the Company's daily activities, including development, production, sales and distribution (except to the extent such decisions are the responsibility of a particular Member as set forth in this Agreement);
(xi)    preparation of the Company's annual business plan and operational and investment budgets and recommendation to the Board of Managers;
(xii)    implementation of the Company's annual business plan and operational and investment budgets that are approved by the Board of Managers;
(xiii)    preparation of the Company's R&D plan and amendments thereto under any R&D agreement;
(xiv)    preparation of an R&D and commercialization plan regarding any BioFene-derived Additive the Officers would like to the Company to pursue;
(xv)    preparation of a substantiated proposal regarding whether the Company (or any of its Subsidiaries) shall produce its own BioFene or purchase it from Amyris or Third Parties, and recommending a decision to the Board of Managers;

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(xvi)    negotiating any supply agreement, off‑take agreement or any agreements related to the actual production and sale of the Company's products;
(xvii)    preparation of a substantiated proposal regarding whether the Company (or any of its Subsidiaries) shall build a manufacturing facility for the production of the Company's products and the site for such facility, and recommending a decision to the Board of Managers;
(xviii)    determination of the products to be manufactured by or on behalf of Company as well as the volumes to be produced and the pricing thereof;
(xix)    compromise, waive, settle and sign commitments, assume obligations, invest funds, acquire, dispose, mortgage, pledge or otherwise create a lien on the Company's assets;
(xx)    approve all necessary measures and perform the ordinary acts of a management, financial and economic nature in accordance with the provisions set forth in this Agreement and the resolutions approved by the Members and the Board of Managers meetings; and
(xxi)    prepare the Company's financial statements and be responsible for the bookkeeping of the Company's corporate, tax and accounting books and records.
(b)    (A) In the event that the Company has an opportunity or an obligation to perform any of the acts listed in items (iv), (vii) and (viii) of Section 5.12(a) hereto involving an amount greater than US$100,000 and up to US$500,000, the Officers shall be authorized to perform such acts after receiving written authorization from two (2) Managers, one of which shall be appointed by Cosan US and the other appointed by Amyris, without the requirement to have a prior written approval of the Board of Managers or a meeting of the Board of Managers for such purpose. In this case, the two (2) Managers shall send a letter, fax or e-mail to the Officers of the Company confirming his or her approval for the performance of such act. A copy of such confirmations by the Managers will be kept with the Company records with regard to the relevant act. (B) (i) All checks, drafts, or other orders (including authorizations of electronic transfers) for the payment of money by the Company and (ii) any contract (other than a confidentiality agreement or a material transfer agreement) to which the Company will be a party shall require the signature of two (2) Officers to bind the Company, preferably one of which is always the President.
(c)    The Officers shall at all times be subject to the supervision and control of the Board of Managers and shall conform to policies and programs established by the Board of Managers, and the scope of the Officers' authority shall be limited to such policies and programs. Except as otherwise authorized by the Members, no other Person shall have authority to bind or act for, or assume any obligations or responsibilities on behalf of, the Company. The President shall keep the Board of Managers informed as to all matters of concern to the Company.
SECTION 5.13. Language . The meetings of the Board of Managers shall be held in English, with simultaneous translation to Portuguese if requested by any Member. All

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materials to be presented at such meeting, the minutes of such meetings, as well as any action of the Board of Managers taken by written consent, shall be drafted in English, together with a Portuguese translation, but the English version of such materials, minutes and written consents shall prevail between the parties.
SECTION 5.14. D&O Insurance . The Company shall contract, with a reputable insurer, at its own cost, in favor of the Managers and the Officers that shall so desire, directors and officers liability insurance, consistent with market terms and conditions.
SECTION 5.15. Subsidiaries . The Managers shall cause the Company to exercise its voting rights in its Subsidiaries in accordance with this Agreement. Therefore, any matter that would be deemed to be a Member Approval Matter or a Board of Managers Approval Matter, when it relates to a Subsidiary, shall be treated as a Board of Managers Approval Matter, and, therefore, before the Company exercises its voting rights in the Subsidiary in favor of any such matter, the matter shall be voted at a Company's Board of Managers' meeting and receive the necessary approval required for any Board of Managers Approval Matter.
SECTION 5.16. Deadlock of Members or Managers . (a) Declaration of a Deadlock . Subject to Subsection (c) below, at any time after the date hereof, a Member may declare a deadlock by delivering a written notice of the deadlock (“ Deadlock Notice ”) to the other Member (each such case, a “ Deadlock ”) if:
(i)    the Board of Managers is unable, at any two (2) consecutive meetings, within fifteen (15) days of one another and called in accordance with Section 5.04 above, to reach a decision concerning a Deadlock Issue (to the extent such Deadlock Issue is required to be acted on by the Board of Managers); or
(ii)    the Members are unable, for a period of more than thirty (30) days, to reach a decision concerning a Deadlock Issue (to the extent such Deadlock Issue constitutes a Member Approval Matter).
(b)     Non-Deadlock Matters . A Member may not declare a Deadlock (i) for failure to achieve a quorum at a duly convened Board of Managers meeting if such failure results from the failure of such Member's designated Managers to attend such meeting or if such failure results from the fact that such Member's designated Managers have refrained from voting either for or against the relevant matter; (ii) for failure to achieve approval for a Member Approval Matter if such failure results from the fact that such Member has refrained from voting either for or against the relevant matter; (iii) by virtue of its disapproval of any proposal by the other Member unless such disapproval of such proposal is made in good faith; or (iv) in respect of any proposal it has made unless such proposal is delivered in good faith.
(c)     Deadlock Question Arbitration . In the event a Deadlock is declared by a Member (the “ Declaring Member ”) and the other Member reasonably believes that such Member was not entitled to make such declaration pursuant to this Section 5.16, such other Member may deliver, within five (5) Business Days of such declaration, to the Declaring Member a detailed written request for an expedited arbitration, to be held pursuant to the provisions of

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Section 14.08 and this Section 5.16(c) to determine the question of whether the Declaring Member was entitled to make such declaration.
(i)    Within five (5) Business Days after delivery of such request, the Members will meet to select one arbitrator to decide and settle the question whether the Declaring Member was entitled to declare a Deadlock pursuant to this Section 5.16 (such question, the “ Deadlock Question ”). Except as provided herein or as otherwise agreed by the Members, such arbitrator shall decide no other question. The Members will select the arbitrator at random by a drawing from the list of available arbitrators provided by the Arbitration Chamber and shall immediately contact such nominee by telephone to confirm such nominee's acceptance as arbitrator. If such nominee declines to be the arbitrator, then immediately upon such notice (or, in the event that, by the close of business on the date of selection, such nominee either has not been contacted or has not accepted such appointment for whatever reason, then at the opening of business on the next succeeding Business Day), the Members shall, in accordance with the preceding sentence, select at random by drawing another arbitrator from the same list and shall proceed to confirm such nominee's acceptance as arbitrator and shall repeat such process until a nominee accepts the appointment.
(ii)    Within five (5) Business Days following the arbitrator's acceptance, the arbitrator shall convene the arbitral proceedings at the place of arbitration provided for in Section 14.08(d) hereunder and shall conduct such proceedings in such manner as such arbitrator considers appropriate, but in accordance with the rules of the Arbitration Chamber and any applicable Law, provided that the Members are treated with equality and that each Member is given a full and fair opportunity in accordance with the Arbitration Rules to present its case. The arbitrator shall use his/her best efforts to resolve the Deadlock Question within five (5) Business Days after the arbitration is first convened. The resolution shall be final (not subject to appeal of any nature whatsoever) and binding on the Members, shall state the reasons upon which it is based, shall be signed by the arbitrator and shall contain the date on which, and place where, it was made.
(iii)    The arbitrator shall be entitled to reasonable fees, taking into account the time spent by the arbitrator, the relative complexity of the issues considered and the scheduling conditions hereby imposed by the Members. Notwithstanding anything herein to the contrary, all of the costs and expenses of the arbitration (including the reasonable fees and expenses of counsel of the prevailing Member) in connection with such arbitration shall be borne by the non-prevailing Member. For the avoidance of doubt and notwithstanding anything herein to the contrary, any dispute, controversy or claim between or among the Members relating to a Deadlock Question shall be resolved exclusively in accordance with this Section 5.16(c).
(d)     Escalation . Each Member agrees that immediately following delivery of a Deadlock Notice (the “ Declaration ”) or, if such delivery is challenged pursuant to Section 5.16(c), immediately following the arbitrator's determination that a Deadlock was properly declared, representatives of the senior management of Amyris and Cosan US, or any of its Affiliates (which representatives shall in each case not be Managers or Officers of the

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Company or of any of its Subsidiaries) shall endeavor in good faith, for a period of thirty (30) days immediately following such delivery or decision (the “ Negotiation Period ”), to reach a mutually satisfactory resolution of the Deadlock Issue (the “ Applicable Deadlock Issue ”).
(e)     Deadlock Mediation . If by the end of the Negotiation Period the Members have been unable to reach a mutually satisfactory resolution of the Applicable Deadlock Issue, then the Members shall appoint an impartial Third Party (“ Mediator ”), for a period of thirty (30) days (the “ Deadlock Mediation Period ”), to assist the Members to reach a mutually satisfactory resolution of the Applicable Deadlock Issue. The Mediator shall be chosen upon mutual consent of the Members among trusted individuals and with no relations whatsoever to the Members or any of their Affiliates, and the costs and expenses for hiring such Mediator shall be shared equally by the Members.
(f)     Status Quo in Case of Deadlock . If by the end of the Deadlock Mediation Period the Members have been unable to reach a mutually satisfactory resolution of the Applicable Deadlock Issue, then the Members shall continue to discuss in good faith such Applicable Deadlock Issue until it is satisfactorily resolved but shall cause the Company to conduct its business during such time as if the matter that raised the Applicable Deadlock Issue had not been approved by the Managers or the Members, as the case may be.
ARTICLE VI
CHANGE OF CONTROL EVENT
SECTION 6.01. Change of Control Event . A “ Change of Control Event ” shall occur if, after the Effective Date:
(i)     with respect to Amyris, a Change of Control of Amyris occurs or with respect to Cosan US, a Change of Control of Cosan US occurs; and
(ii)    the Member which has not undergone the Change of Control described in clause (i) above is able to reasonably substantiate, within sixty (60) days afterwards, that the Change of Control will likely have a Material Adverse Effect on the Company Business.
SECTION 6.02. Change of Control Event Consequence . If a Change of Control Event occurs, then the Member that is the object of such Change of Control Event will no longer be entitled to the Right of First Refusal and/or the Tag Along Right, as set forth in Section 10.02(c), in which case the Member that is not the object of the Change of Control Event may at any time thereafter Transfer its Membership Units to any Third Party without complying with the provisions of Section 10.02(c) in connection therewith.
ARTICLE VII
ALLOCATIONS; TAX MATTERS
SECTION 7.01. Allocations . (a) The Company's Net Profits and Net Losses, subject to the special allocations pursuant to Sections 7.02 and 7.03, shall be allocated for each Fiscal Year to the Members as follows:
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(i)    Net Profits shall be allocated:
(A)    first, to offset previous allocations of Net Loss pursuant to Sections 7.01(a)(ii)(B) and (C)) hereof on a cumulative basis, in reverse order of the priorities described therein; and
(B)    second, the balance to the Members in proportion to their respective Membership Units;
(ii)    Net Losses shall be allocated:
(A)    first, to offset previous allocations of Net Income pursuant to Section 7.01(a)(i)(B), to the extent such Net Income has not been distributed;
(B)    second, to the Members in proportion to their positive Capital Account balances until such Capital Account balances have been reduced to zero; and
(C)    third, the balance to the Members in proportion to their respective Membership Units.
(b)    Notwithstanding anything to the contrary in Section 7.01(a), in the event of the winding up and termination of the Company pursuant to Section 11.05 hereof, Net Profit and Net Loss (and items of gross income, loss or deduction, if necessary), including gain or loss realized by the Company upon the sale (or deemed sale) of its property or assets, shall be allocated to the extent possible, subject to the special allocations of Sections 7.02 and 7.03, in a manner so as to cause the Capital Accounts of the Members to equal the amounts due the respective Members in accordance with the provisions of Section 11.05.
SECTION 7.02. Special Allocations . (a) Minimum Gain Chargeback . Except as otherwise provided in Section 1.704-2(f) of the Regulations, notwithstanding any other provision of this Article VII, if there is a net decrease in partnership minimum gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for the Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member's share of the net decrease in partnership minimum gain, determined in accordance with Regulations Section l.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Section 7.02(a) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith.
(b)     Minimum Gain Chargeback . Except as otherwise provided in Section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this Article VII, if there is a net decrease in partner nonrecourse debt minimum gain attributable to a partner nonrecourse debt during any Fiscal Year, each Member who has a share of the partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specifically allocated items of

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Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member's share of the net decrease in partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with Section 1.704-2(i)(4) of the Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This Section 7.02(b) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith.
(c)     Qualified Income Offset . In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or l.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section 7.02(c) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article VII have been tentatively made as if this Section 7.02(c) were not in the Agreement.
(d)     Gross Income Allocation . In the event any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to any provision of this Agreement, and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided that an allocation pursuant to this Section 7.02(d) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit in excess of such sum after all other allocations provided for in this Article VII have been made as if Section 7.02(c) and this Section 7.02(d) were not in the Agreement.
(e)     Nonrecourse Deductions . Nonrecourse deductions for any Fiscal Year shall be allocated to the Members pro rata in accordance with the number of Membership Units owned by such Member.
(f)     Partner Nonrecourse Deductions . Partner nonrecourse deductions for any Fiscal Year shall be specially allocated to the Member who bears the economic risk of loss, or to the Members in the proportions in which they bear the economic risk of loss, with respect to the partner nonrecourse debt to which such partner nonrecourse deductions are attributable in accordance with Section 1.704-2(i)(1) of the Regulations.
(g)     Net Loss Limitation . The Net Losses and items of deduction or loss allocated pursuant to Sections 7.01 and 7.02 shall not exceed the maximum amount of Net Losses and items of deduction and loss that can be so allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Fiscal Year. All Net Losses and items of deduction or loss in excess of the limitations set forth in this Section 7.02 shall be allocated to the Members who do not have Adjusted Capital Account Deficits in proportion to

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their Adjusted Capital Accounts. To the extent that Members have been allocated Net Losses pursuant to the previous sentence, prior to any allocation of Net Profits pursuant to Section 7.01(a) such Members shall be allocated Net Profits pro rata in proportion to such allocated Net Losses.
SECTION 7.03. Curative Allocations . The allocations set forth in Section 7.02 hereof (the “ Regulatory Allocations ”) are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 7.03. Therefore, notwithstanding any other provision of this Article VII (other than the Regulatory Allocations), the Members shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner they determine appropriate so that, after such offsetting allocations are made, each Member's Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement and all Company items were allocated pursuant to this Article VII without regard to the Regulatory Allocations. In exercising their discretion under this Section 7.03, the Members shall take into account future Regulatory Allocations under Section 7.02 that, although not yet made, are likely to offset other Regulatory Allocations previously made under Section 7.02.
SECTION 7.04. Tax Allocations . (a) In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for United States federal income tax purposes and its initial Asset Value (computed in accordance with the definition of Asset Value).
(b)    In the event the Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Asset Value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for United States federal income tax purposes and its Asset Value in the same manner as under Code Section 704(c) and the Regulations thereunder.
(c)    Any elections or other decisions relating to such allocations shall be made by the Tax Matters Partner in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 7.04 are solely for purposes of United States federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Member's Capital Account or share of Net Profit, Net Loss, other items, or distributions pursuant to any provision of this Agreement.
(d)    Except as otherwise provided in this Agreement, all items of Company gain, loss, deduction, and any other allocations not otherwise provided for shall be divided among the Members in the same proportions as they share Net Profit or Net Loss, or amounts specially allocated pursuant to Section 7.02 or 7.03 hereof, as the case may be, for the Fiscal Year.

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SECTION 7.05. Tax Matters . (a) The Company shall file as a partnership for United States federal and state income tax purposes.
(b)    All decisions with respect to Taxes of the Company shall be made by the Board of Managers in accordance with the provisions of Article V.
(c)     Amyris shall be the initial tax matters partner within the meaning of Section 6231 of the Code and any comparable provision of state or local income tax Law (the “ Tax Matters Partner ”). A different Tax Matters Partner may be selected at any time by Members representing at least sixty-five percent (65%) of the Membership Units.
(d)    Tax audits, controversies and litigations shall be conducted under the direction of the Tax Matters Partner, in consultation with the Company's attorneys and/or accountants, and if desired by a Member with the Member's attorneys and/or accountants. The Tax Matters Partner shall furnish promptly to the Company which shall furnish promptly to the other Members a copy of all notices or other written communications received by the Tax Matters Partner from the Internal Revenue Service or any state of local taxing authority. The Tax Matters Partner shall submit to the Board of Managers, for their review, comment, and approval, any settlement or compromise offer with respect to any disputed item, including any item of income, gain, loss, deduction or credit of the Company.
(e)    The Tax Matters Partner shall cause all tax returns of the Company to be timely prepared in consultation with the Company's attorneys and/or accountants, and if desired by a Member with the Member's attorneys and/or accountants, and timely filed. Copies of such returns shall be kept at the Company's principal place of business or at such other place as the Tax Matters Partner shall determine and shall be available for inspection by the Members or their duly authorized representatives during regular business hours. The Tax Matters Partner shall distribute to the Company which shall distribute to each of the Members, as soon as practicable after the end of the Fiscal Year of the Company, information with respect to the Company necessary for each Member to prepare its United States federal, state and local, or foreign, tax returns. All elections required or permitted to be made by the Company, and all other tax decisions and determinations relating to United States federal, state or local tax matters that may affect the Company or any Member shall be communicated to the relevant governmental taxing authorities on behalf of the Company by the Tax Matters Partner, in consultation with the Company's attorneys and/or accountants, and if desired by a Member with the Member's attorneys and/or accountants, but only after prior approval by the Board of Managers of such communication by the Tax Matters Partner.
ARTICLE VIII
DISTRIBUTION
SECTION 8.01. Distribution . (a) The Company, as determined by the Board of Managers in accordance with Article V, may make distributions to the Members, pro rata in accordance with their respective Membership Units.
(b)    (i) The Company shall make annual distributions, to the extent of available cash, to each Member, in an amount equal to such Member's share, pro rata in

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accordance with their respective Membership Units, of the Company's Assumed Tax Liability. For the purposes of this Section 8.01(b), “ Assumed Tax Liability ” means the product of the Company's taxable income through the payment date multiplied by the highest combined maximum effective United States federal, state and local income tax rate applicable to any Member. The Company will make a good faith estimate of the Assumed Tax Liability each quarter, and cash distributions will be made, the extent of available cash, to the Members in an amount equal to the appropriate percentage of such estimate adjusted for prior distributions on April 14, June 14, September 14 and December 14 of such year. A final determination of Assumed Tax Liability will be made no later than March 1 of the year succeeding the year with respect to which such Assumed Tax Liability is being calculated, with adjusting payments to be made to or from the Company by March 15 of such year.
(ii)    Distributions not made for any reason pursuant to this Section 8.01(b) shall accumulate without interest until paid. In addition, any distribution made by the Company in excess of the required distributions for a required distribution date shall be applied towards the next scheduled distribution.
SECTION 8.02. Liquidation Distribution . Distributions made upon liquidation of the Company shall be made as provided in Section 11.05.
SECTION 8.03. Distribution Rules . (a) All amounts withheld pursuant to the Code or any provision of any state or local tax Law with respect to any payment, distribution or allocation by the Company to the Members shall be treated as amounts distributed to the Members pursuant to this Article VIII for all purposes of this Agreement. The President is authorized and directed to withhold from distribution, or with respect to allocations, to the Members and to pay over to any United States federal, state or local government any amounts required to be so withheld pursuant to the Code or any provision of any other applicable United States federal, state or local Law and shall allocate such amounts to those Members with respect to which such amounts were withheld. Promptly upon learning of any requirement under any provision of the Code or any other applicable Law requiring the Company to withhold any sum from a distribution to a Member or to make any payment to any taxing authority in respect of such Member, the Company shall give written notice to such Member of such requirement and, if practicable and if requested by such Member, shall cooperate with such Member in all lawful respects to minimize or to eliminate any such withholding or payment.
(b)    A Member shall not have the status of, and is not entitled to the remedies available to, a creditor of the Company with regard to distributions that such Member becomes entitled to receive pursuant to this Agreement and the Act.
SECTION 8.04. Limitations on Distribution . Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member on account of its Membership Units if such distribution would violate Section 18-607 of the Act or other applicable Law.

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ARTICLE IX
BOOKS AND RECORDS; FINANCIAL STATEMENTS
SECTION 9.01. Books and Records; Financial Statements . (a) At all times during the continuance of the Company, the Company shall prepare and maintain separate books of account for the Company 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 the Company Business in accordance with GAAP consistently applied, and, to the extent inconsistent therewith, in accordance with this Agreement. Such books of account, together with a certified copy of this Agreement and of the Certificate, shall at all times be maintained at the principal place of business of the Company. The books of account and the records of the Company shall be examined by and reported upon as of the end of each Fiscal Year by a firm of independent certified public accountants that shall be selected by the Board of Managers per Section 5.05 (the “ Auditors ”).
(b)    The following financial information, prepared, in accordance with GAAP, together with an operating report in a form to be determined by the Board of Managers analyzing such information, shall be transmitted by the Company to each Member at the times hereinafter set forth:
(i)    Within sixty (60) days after the close of each Fiscal Year, the following financial statements, examined, and certified to, by the Auditors:
(A)    the balance sheet of the Company as of the close of such Fiscal Year;
(B)    a statement of Company Net Profits and Net Losses for such Fiscal Year;
(C)    a statement of the Company's cash flows for such Fiscal Year; and
(D)    a statement of such Member's Capital Account as of the close of such Fiscal Year, and changes therein during such Fiscal Year.
(ii)    Within sixty (60) days after the close of each Fiscal Year, a statement indicating such Member's share of each item of Company income, gain, loss, deduction or credit for such Fiscal Year for income tax purposes.
(iii)    As soon as available and in any event within forty (40) days after the end of each three‑month period ended March 31, June 30 and September 30 of each Fiscal Year, balance sheets of the Company as of the end of such three-month period and statements of income and Company Net Profits and Net Losses for the period commencing at the end of the previous Fiscal Year and ending with the end of such three-month period, certified by the chief financial officer or treasurer of the Company.

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(iv)    As soon as practicable and in any event within twenty (20) days following the end of each calendar month, a monthly operating summary of the Company's activities in a form to be established by the Board of Managers.
(c)    Each Member shall provide to the Company upon request tax basis information about contributed assets and other tax information reasonably requested by the Company.
(d)    The following financial information, prepared by the Company in accordance with International Financial Reporting Standards - IFRS, together with an operating report in a form to be determined by the Board of Managers analyzing such information, shall be transmitted by the Company to each Member at the times hereinafter set forth:
(i)    Within ten (10) Business Days after the end of each three-month period ended March 31, June 30, September 30 and December 31 of each Fiscal Year, the following financial statements:
(A)    the balance sheet of the Company as of the three-month period ended compared with the last Fiscal Year;
(B)    the income statement as of the three-month period ended and year-to-date compared with the relative three-month period and year-to-date;
(C)    the statement of cash flow as of the three-month period ended and year-to-date compared with the relative three-month period and year-to-date;
(D)    the statement of changes in equity as of the three-month period ended compared with the last Fiscal Year.
SECTION 9.02. Reporting Requirements . The President shall furnish or cause to be furnished to each Manager:
(i)    as soon as possible and in any event within ten (10) days after the Company has received notice of the occurrence of any default or event of default continuing on the date of such statement under any agreement relating to any material obligation of the Company, a statement of the Company setting forth details of such default or event of default and the action which the Company has taken and proposes to take with respect thereto;
(ii)    promptly after the sending or filing thereof, copies of all reports that the Company sends to any of its lenders or creditors, and copies of all tax returns that the Company files with any United States federal or state taxing authority;
(iii)    within fifteen (15) days of the filing by the Tax Matters Partner of the Company's United States federal tax return (United States federal Form 1065), a copy of Schedule K-1 of United States federal Form 1065 reporting the Member's allocable share of Net Profits, Net Losses and other items of income, gain, deductions or loss for such

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Fiscal Year, and, from time to time, such additional information as the Member may reasonably require for tax purposes; and
(iv)    such other information regarding the condition or operations, financial or otherwise, of the Company as any Member may from time to time reasonably request including any information that any Member determines to be necessary for such Member or its Affiliates to fulfill legal or statutory reporting and disclosure requirements.
SECTION 9.03. Access; Due Diligence . Any Member, along with its respective Affiliates and auditors, shall have access to the Company's financial records and personnel to enable such Member, along with its respective Affiliates and auditors, to undertake review and audit procedures in accordance with the auditing standards in force in the United States or in Brazil, as applicable. The Board of Managers shall cause the Company to keep accurate and complete records, books and accounts on the basis appropriate to the Company's business, as required by applicable Law. Each Member shall have the right (which it may exercise through any of its duly authorized employees or agents or its independent accountants or the duly authorized employees or agents or its independent accountants of its Affiliates, as applicable) to audit, examine and make copies of or extracts from any books, accounts and records of the Company, at such Member's own cost and expense, upon prior written notice to the Company and/or the other Members, during the regular business hours of the Company, on the premises of the Company or where such records, books and accounts are kept; provided , however that no Member shall have the right to have a private audit of the Company books and records conducted more than once in any Fiscal Year. If the Company incurs in any additional costs to produce and deliver such information to the requesting Member, such requesting Member shall bear the costs related thereto.
SECTION 9.04. Semi-Annual Updates to Members regarding Company BioFene Transformation Technology . Every January 15 and July 15 while Amyris's license under Section 2.2 of the IP License Agreement is in effect, Company will provide Members with a written update on Company BioFene Transformation Technology. Such semi-annual updates will include a list of any Patents in the Company BioFene Transformation Technology identified by their respective title, inventors, serial numbers, filing date, and status. Company also agrees to copy the Members on any official correspondence between Company (or Company's counsel) and any patent office regarding Patents in Company BioFene Transformation Technology.
ARTICLE X
RESTRICTIONS ON TRANSFER
SECTION 10.01. Legends . (a) The Company shall affix to each certificate evidencing Membership Units issued to Members a legend in substantially the following form:
“THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE UNITED STATES SECURITIES ACT OF 1933 OR AN EXEMPTION THEREFROM AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS.
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THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN AN AMENDED AND RESTATED OPERATING AGREEMENT DATED AS OF MARCH 26, 2013, AS IT MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY. NO REGISTRATION OF TRANSFER OF THESE MEMBERSHIP UNITS WILL BE MADE ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH.”
(b)    Any Member with Membership Units issued prior to the date hereof has delivered to the Company its certificates representing such Membership Units in exchange for certificates representing such Membership Units bearing the legend set forth in Section 10.01(a).
(c)    In the event that any Membership Units shall cease to be Restricted Membership Units, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate evidencing such Membership Units without the first paragraph of the legend required by Section 10.01(a) endorsed thereon. In the event that the Membership Units shall cease to be subject to the restrictions on transfer set forth in this Agreement, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate evidencing such Membership Units without the legend required by the second paragraph of Section 10.01(a). Before issuing a new certificate omitting part or all of the legend set forth in Section 10.01(a), the Company may request an opinion of counsel reasonably satisfactory to it to the effect that the restrictions discussed in the legend to be omitted no longer apply to the Membership Units represented by such certificate.
SECTION 10.02. Restrictions on Transfer; Required Transfers .
(a)      Restrictions on Transfer and Encumbrance . Each of the Members hereby agrees that it shall not be permitted to Transfer, or create, incur or assume any Encumbrance with respect to, any of its Membership Units, and the Company shall be prohibited from registering any such Transfer or Encumbrance any of its corporate documents and books, except (i) where otherwise agreed upon in writing by all of the Members or (ii) for any Transfer made in accordance with the provisions of this Agreement. Any voluntary or involuntary Transfer or Encumbrance of Membership Units or rights to subscribe for additional Membership Units by the Members shall be subject to the provisions of this Agreement. Notwithstanding any provision to the contrary, the Members hereby agree and covenant not to Transfer to any Third Party any of their Membership Units before December 31, 2016.


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(b)     Transfers to Affiliates . Irrespective of the restrictions on Transfer set forth in this Section 10.02, at any time a Member may, after giving prior written notice to the other Members, Transfer all or part of its Membership Units to an Affiliate, provided that:
(i)    the transferring Member jointly guarantees with such Affiliate all of the obligations of such Affiliate under this Agreement;
(ii)    the Membership Units are transferred back to the transferring Member prior to the Affiliate ceasing to be an Affiliate of such Member. The transferring Member shall provide to the other Members such information as may be reasonably requested to ascertain that the Affiliate has not ceased to be an Affiliate of the transferring Member; and
(iii)    the Affiliate unconditionally adheres to this Agreement and the corresponding instrument of adhesion is filed with the Company, together with this Agreement.
(c)     Right of First Refusal; Tag Along Right . Subject to the provisions of this Agreement, including Section 10.02(a) above, in case any Member (“ Selling Member ”) wishes to Transfer any of its Membership Units, directly or indirectly, to any Third Party, the other Member shall have the right of first refusal to acquire all-and not less than all-of such Membership Units (“ Right of First Refusal ”). As long as a Member owns Membership Units representing fifty percent (50%) or less of the Company's Membership Units, such Member shall also have the right to include in the offer of the Selling Member its own Membership Units together with the Membership Units of the Selling Member, as per the provisions below (“ Tag Along Right ”). Each such right shall be exercised in accordance with the terms set forth below.

(i)     Sale Notice . In case the Selling Member has received a good-faith binding purchase offer from a Third Party for its Membership Units (which is a condition precedent to any Transfer although such binding purchase offer may be made in response to an offer to sell by the Selling Member) and is willing to accept the terms of such purchase offer, then the Selling Member shall notify in writing the other Member of its intention to Transfer its Membership Units, indicating the purchase offer terms, which shall include the name (and, if a legal entity, the owners) of the purchaser, the number of Membership Units intended to be Transferred, and the price, payment terms, and any other commercial terms applicable to such transaction, and enclose a copy of the offer received from the relevant Third Party evidencing such terms and conditions (“ Sale Notice ”). The Sale Notice shall be delivered to the other Member within five (5) Business Days from the acceptance by the Selling Member of the Third Party offer, which acceptance shall be subject in all respects to the provisions of this Section 10.02. Such terms indicated in the Sale Notice shall be applicable to the Transfer of the Membership Units by the Selling Member, to the Right of First Refusal and to the exercise of the Tag Along Right, if applicable.
(ii)     Payment Terms on Sale Notice . The payment terms on the Sale Notice shall always provide for payment in cash or in shares. If payment would be made in shares, they must be freely tradable shares that are listed and publicly traded in the

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BM&FBOVESPA, New York Stock Exchange, or NASDAQ Global Select Market (“ Non Cash Consideration ”). In case of payment in shares, if the Right of First Refusal is exercised by the other Member, the purchase price under the Sale Notice shall be computed based on the market price of such Non Cash Consideration, as per the weighted average of the sale prices per share of the Non Cash Consideration (or if no closing sale price is reported, the weighted average of the bid and asked prices or, if more than one in either case, the average of the average bid and average asked prices) in the last sixty (60) trading days prior to the Sale Notice. Once such purchase price is computed, payment by the non-Selling Member, if it exercises its Right of First Refusal, shall be made in cash.
(iii)     Right of First Refusal . No later than thirty (30) days following the receipt of the Sale Notice, the non-Selling Member may send to the Selling Member a written notice expressing its intention to exercise its Right of First Refusal. In the case where the non-Selling Member exercises its Right of First Refusal, it shall be obliged to acquire all of the Selling Member's Membership Units set forth in the Sale Notice within sixty (60) days following the receipt of the Sale Notice, pursuant to its terms and conditions.

(iv)     Tag Along Right . If the non-Selling Member does not exercise its Right of First Refusal, the non-Selling Member (if it owns fifty percent (50%) or less of the Company's Membership Units) may instead send the Selling Member, no later than thirty (30) days following the receipt of the Sale Notice, a written notice expressing its intention to exercise its Tag Along Right. If the Selling Member is not selling all of its Membership Units, then the non-Selling Member would have the right to include in the object of the proposed acquisition referred to in the Sale Notice a pro rata number of Membership Units held by it. If the non-Selling Member exercises its Tag Along Right but the Third Party transferee is not interested in acquiring the totality of the Membership Units of the Selling Member and of the non-Selling Member being offered for sale, then the relevant Transfer cannot be validly completed. In any case, if the number of Membership Units the Selling Member is offering for sale in the Sale Notice represent more than thirty five percent (35%) of the total number of Membership Units, then the non-Selling Member will be entitled to exercise its Tag Along Right in relation to all, and not less than all, of its Membership Units, in which case the relevant transaction cannot be validly completed unless it includes the purchase and sale of all of the Membership Units held by the non-Selling Member, under the same terms and conditions accepted by the Selling Member.
(v)     Rights not Exercised; Transfer to Third Party . In the event the non-Selling Member does not exercise its Right of First Refusal or Tag Along Right within the above mentioned thirty (30)-day period, the Selling Member may, within one hundred and twenty (120) days from the expiry of such thirty (30)-day period, freely Transfer all of its Membership Units mentioned in the Sale Notice to the relevant Third Party, pursuant to the terms set forth in the Sale Notice. The transferee shall agree in writing, per Section 10.04, to be bound by the terms of this Agreement, as amended from time to time. Once the transferee formally adheres to this Agreement, it will inherit all rights and obligations of the Selling Member, except in case where the Third Party does

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not acquire all of the Membership Units owned by the Selling Member, in such case, all voting rights inherent to the acquired Membership Units under this Agreement shall be exercised by the Selling Member and the Third Party collectively, as a block.
(vi)     Failure to Complete Transfer . If the final terms and conditions for the Transfer under Section 10.02(c)(v) above have changed in any material respect in relation to those originally contained in the Sale Notice, or if at the end of the one hundred and twenty (120)-day period referred to in such Section, the Selling Member has not Transferred its Membership Units, but still intends to do so, then the procedures described above shall be resumed and repeated.
(vii)     Solicitation of Offers . The Members hereby agree that in the event any Selling Member wishes to solicit an offer for a part or all of its Membership Units from a Third Party, such Selling Member shall inform, in writing, the non-Selling Member of its intention to initiate a process to solicit offers for the Transfer of its Membership Units. The non-Selling Member has no right of first offer or right of first negotiation with regard to the Selling Member's solicitation for offers; however, if the Selling Member receives a good-faith binding purchase offer from any Third Party as a result of such solicitation, such offer will be subject to this Section 10.02(c) (as noted in Section 10.02(c)(i)).
(d)     Indemnification . In the case of a Transfer, Encumbrance, or attempted Transfer or Encumbrance of Membership Units or other interest in the Company contrary to the provisions of the Agreement, the parties engaging or attempting to engage in such Transfer shall indemnify and hold harmless the Company and each of the Members from all losses that such indemnified Persons may incur (including, without limitation, incremented tax liability and reasonable lawyers' fees and expenses) in enforcing the provisions of this Agreement.
SECTION 10.03. Improper Transfer or Encumbrance . Any attempt not in compliance with this Agreement to make any Transfer of, or create, incur or assume any Encumbrance with respect to, any Membership Units shall be null and void and of no force and effect, the purported transferee shall have no rights or privileges in or with respect to the Company, and the Company shall not give any effect in the Company's records to such attempted Transfer or Encumbrance.
SECTION 10.04. Transferees to Execute Agreement . Each Member agrees that it will not, during the term of this Agreement, directly or indirectly, make any Transfer of any Membership Units Beneficially Owned by such Member unless prior to the consummation of any such Transfer, the Person to whom such Transfer is proposed to be made (a “ Prospective Transferee ”) (i) executes and delivers this Agreement to the Company and each Member and (ii) unless such Prospective Transferee is a recognized institutional investor, delivers to the Company an opinion of counsel, satisfactory in form and substance to the Company, to the effect that the execution of this Agreement by such Prospective Transferee makes this Agreement a legal, valid and binding obligation of such Prospective Transferee enforceable against such Prospective Transferee in accordance with its terms. Upon the execution and delivery by such Prospective Transferee of this Agreement, compliance of the Transfer with the provisions of this Agreement (including Section 2.15), and, if required, the delivery of the opinion of counsel

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referred to in clause (ii) of the preceding sentence, such Prospective Transferee shall be deemed a “Member” for purposes of this Agreement and shall have the rights and be subject to the obligations of a Member under this Agreement with respect to the Membership Units owned by such Prospective Transferee.
ARTICLE XI
PUT/CALL, DISSOLUTION, LIQUIDATION AND TERMINATION
SECTION 11.01. Put/Call Option after Uncured Breach . If a Member breaches a material obligation under this Agreement and does not cure such breach within forty-five (45) days of written notice from the non-breaching Member, then the non-breaching Member may, in its sole discretion, exercise the following rights (in addition to any other rights and remedies under this Agreement, under applicable Law, or in equity that the non-breaching Member may have with regard to such breach):
(i)    the non-breaching Member may elect to purchase all, but not less than all, of the Membership Units held by the breaching Member at a price corresponding to their Fair Market Value minus fifteen percent (15%) (“ Breach Call Option ”); or
(ii)    the non-breaching Member may elect to sell all, but not less than all, of its Membership Units to the breaching Member at a price corresponding to their Fair Market Value plus fifteen percent (15%) (“ Breach Put Option ”).
The non-breaching Member must exercise its Breach Call Option or Breach Put Option, as applicable, by giving written notice to the breaching Member (“ Breach Put/Call Option Notice ”) within thirty (30) days after the expiration of the applicable forty-five (45) day cure period. Upon timely exercise of a Breach Call Option or Breach Put Option, the breaching Member shall be obligated to consummate such transaction within thirty (30) days from the final determination of the corresponding Fair Market Value. A Member's failure to exercise its rights under this section for a particular uncured breach of a material obligation does not waive such Member's ability to exercise such rights upon the occurrence of a subsequent uncured breach a material obligation by the other Member. Finally, exercise of the Breach Call Option or Breach Put Option does not result in dissolution of the Company.

SECTION 11.02. No Dissolution . The Company shall not be dissolved by the admission of additional Members in accordance with the terms of this Agreement.
SECTION 11.03. Events Causing Dissolution . The Company shall be dissolved and its affairs shall be wound up upon the occurrence of any of the following events:
(i)    the expiration of the term of the Company as provided in Section 2.03;
(ii)    the unanimous vote of the Members to dissolve, wind up and liquidate the Company;
(iii)    the Insolvency Event of a Member, unless, within one hundred twenty (120) days after the occurrence of such event, the other Member, in its sole discretion, agrees in writing to continue the business of the Company and to exercise the right to

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purchase all of the bankrupt or insolvent Member's Membership Units as described below;
(iv)    the entry of a decree of judicial dissolution under Section 18‑802 of the Act; or
(v)    the termination of the IP License Agreement.
If the Company is continued pursuant to clause (iii) above after the Insolvency Event of a Member (the “ Former Member ”), the remaining Member shall have the right to purchase all, but not less than all, of the Membership Units of such Former Member at the Fair Market Value of such Membership Units, and the Former Member shall, upon exercise of such right, sell to such Member all such Membership Units at such price. Any acquisition pursuant to this Section 11.03 shall be completed within thirty (30) days from the final determination of the Fair Market Value of the Membership Units. In case an Insolvency Event occurs and the non-insolvent Member exercises its right to purchase hereunder, then any and all actions pursuant to any meeting resolutions or written consents of the Members or the Board of Managers thereafter shall be decided by the non-insolvent Member, except if otherwise required under applicable Law.
SECTION 11.04. Notice of Dissolution . Upon the dissolution of the Company, the Person or Persons unanimously approved by the Members to carry out the winding up of the Company (the “ Liquidating Trustee ”) shall promptly notify the Members of such dissolution, except that, in the case of a dissolution pursuant to Section 11.03(iii), the Liquidating Trustee shall be the Person or Persons approved by the Member that is not bankrupt or insolvent.
SECTION 11.05. Liquidation .
(a)     Upon dissolution of the Company, the Liquidating Trustee shall immediately commence to wind up the Company's affairs; provided however , that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of liabilities to creditors so as to enable the Members to minimize the normal losses attendant upon a liquidation. The Members shall continue to share Net Profits and Net Losses during liquidation in the same proportions, as specified in Article VII hereof, as before liquidation. Each Member shall be furnished with a statement audited by the Auditors that shall set forth the assets and liabilities of the Company as of the date of dissolution. Each Member (and its Affiliates) shall pay to the Company all amounts then owing by it (and them) to the Company. The proceeds of liquidation shall be distributed, as realized, in the following order and priority:
(i)    to creditors of the Company (including holders of Membership Units that are creditors to the extent otherwise permitted by applicable Law), in satisfaction of the liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof), other than liabilities for distributions to holders of Membership Units; and

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(ii)    to the Members pro rata in accordance with their positive Capital Account balances to the extent thereof, after giving effect to all contributions, distributions and allocations for all periods.
To the extent that the Members determine that any or all of the assets of the Company shall be sold, such assets shall be sold as promptly as practicable, in a commercially reasonable manner. For purposes of making the liquidating distributions required by this Section 11.05, the Liquidating Trustee may determine, subject to the direction of the Members per Section 5.06(e), whether to distribute all or any portion of the assets of the Company in kind or to sell all or any portion of the assets of the Company and distribute the proceeds therefrom.
(b)    Notwithstanding any provision to the contrary in this Section 11.05, upon dissolution of the Company, the Liquidating Trustee shall, to the extent practicable and consistent with Sections 11.05(a)(i) and 11.05(a)(ii) and the direction of the Members in Subsection (a) above, (i) distribute in kind to each Member the respective assets contributed or transferred by such Member to the Company, (ii) distribute in kind to Amyris any assets primarily used in or related to the business of Amyris and its Affiliates, and (iii) distribute in kind to Cosan US any assets primarily used in or related to the business of the Cosan US and its Affiliates. To the extent the principles set forth in the preceding sentence would result in a Member receiving more than the portion of distributions it would otherwise be entitled to receive pursuant to Section 11.05(a) upon dissolution of the Company, such Member shall, at its election, pay an amount in cash to the other Member equal to such excess value received pursuant to the preceding sentence or direct the Company to sell assets otherwise distributable to such Member, for the benefit of the other Member, for a price equal to such excess value received pursuant to the preceding sentence. The value of each such asset at dissolution shall be determined using the same methodology that was used to determine the value of the assets to be contributed to the Company.
(c)    As soon as practicable, the Liquidating Trustee shall deliver a written notice to each Member setting forth the value assigned to each asset and the Member to which such asset will be distributed, in connection with the provisions of subsections (a) and (b) above. Each Member shall have fifteen (15) days to dispute such valuation, and if no written notice of dispute is delivered to the Liquidating Trustee and the other Member, the notice of valuation shall become final. If such notice of dispute is delivered, the matter shall be submitted to an internationally recognized investment banking firm, accounting firm or valuation firm selected by the Liquidating Trustee from a list of three such firms provided by the disputing Member. The banking, accounting or valuation firm shall make a decision within sixty (60) days of referral, which decision shall be final and binding, and the fees and expenses of such firm shall be borne by the Company.
SECTION 11.06. Termination of the Company . The Company shall terminate when all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company, shall have been distributed to the holders of Membership Units in the manner provided for in this Article XI, and the Certificate has been cancelled in the manner required by the Act.

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SECTION 11.07. Claims of the Members . The Members shall look solely to the Company's assets for the return of their Capital Contributions, and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company are insufficient to return such Capital Contributions, the Members shall have no recourse against the Company or the other Member or any other Person. No Member with a negative balance in such Member's Capital Account shall have any obligation to the Company or to the other Member or to any creditor or other Person to restore such negative balance upon dissolution or termination of the Company or otherwise
ARTICLE XII
LIABILITY AND INDEMNIFICATION
SECTION 12.01. Liability of Members . (a) Except as otherwise provided by the Act or this Agreement, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Covered Person shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Covered Person.
(b)    Except as otherwise expressly required by applicable Law, a Member, in its capacity as such, shall have no liability to the Company or to any other Member in respect of any distributions wrongfully distributed to it unless such Member had actual knowledge at the time of the distribution of facts indicating the impropriety of the distribution and if immediately after giving effect to such distribution all liabilities of the Company (other than liabilities to Members or assignees on account of their Membership Units and liabilities as to which recourse is limited to specific property of the Company) exceed the fair market value of the Company's assets; provided however , that a Member shall have no liability under this Section 12.01 in respect of any distribution on or after the fourth anniversary of the distribution unless an action to recover such distribution from such Member is commenced prior to such fourth anniversary and an adjudication of liability against such Member is made in such action.
SECTION 12.02. Indemnification of Covered Person . The Company shall indemnify each Covered Person against, and hold each Covered Person harmless from, all claims, suits, judgments, losses, damages, fines or costs (including reasonable legal fees and expenses) (“ Losses ”) arising out of or resulting from any breach of any representation or warranty made by the Company herein or the breach of or failure to perform any agreement or covenant made by the Company and contained herein.
SECTION 12.03. Indemnification by the Company . (a) To the fullest extent permitted by applicable Law, a Covered Person shall be entitled to indemnification from the Company for any Losses incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any Losses incurred by such Covered Person by reason of gross negligence, bad faith or willful misconduct with respect to such acts or omissions; provided however , that any indemnity under this Section 12.03 shall be provided out of and to the extent of Company assets only, and no other Covered Person shall have any personal liability on account thereof.

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(b)    (i)    In the event that any claim, demand, action, suit or proceeding shall be instituted or asserted or any Losses shall arise in respect of which indemnity may be sought by a Covered Person pursuant to Section 12.03(a), such Covered Person shall promptly notify the Company thereof in writing. Failure to provide notice shall not affect the Company's obligations hereunder except to the extent the Company is actually and materially prejudiced thereby.
(ii)    The Company shall have the right, exercisable subject to the approval of the disinterested Members, to participate in and control the defense of any such claim, demand, action, suit or proceeding and, in connection therewith, to retain counsel reasonably satisfactory to each Covered Person, at the Company's expense, to represent each Covered Person and any others the Company may designate in such claim, demand, action, suit or proceeding. The Company shall keep the Covered Person advised of the status of such claim, demand, action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Covered Person with respect thereto.
(iii)    In any such claim, demand, action, suit or proceeding, any Covered Person shall have the right to retain its own counsel at its own expense; provided however , that the fees and expenses of such Covered Person's counsel shall be at the expense of the Company if (A) each other Member and such Covered Person shall have mutually agreed to the retention of such counsel, (B) the Company shall have failed, within a reasonable time after having been notified of the existence of an indemnified claim, to assume the defense of such indemnified claim or (C) the named parties to any such claim, demand, action, suit or proceeding (including any impleaded parties) include both the Company and such Covered Person and representation of both parties by the same counsel would be inappropriate in the judgment of the Covered Person (as evidenced by an opinion of counsel) due to actual or potential differing interests between them and the Company shall have failed, within a reasonable time after having been notified of the Covered Person's objection under this Section 12.03(b)(iii)(C) to such joint representation, to retain counsel for such Covered Person reasonably satisfactory to such Covered Person. It is understood that the Company shall not, in respect of the legal expenses of any Covered Person, in connection with any claim, demand, action, suit or proceeding or related claims, demands, actions, suits or proceedings in the same jurisdiction, be liable for the fees and expense of more than one separate firm (in addition to any local counsel reasonably satisfactory to the Company) for all such Covered Persons and that all such fees and expenses shall be reimbursed as they are incurred; provided however , that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of a Covered Person (as evidenced by an opinion of counsel) for the same counsel to represent such Covered Person and any other Covered Person, then such Covered Person shall be entitled to retain its own counsel, in each jurisdiction for which the Covered Person reasonably determines counsel is required, at the expense of the Company.
(iv)    The Company shall not be liable for any settlement of any claim, demand, action, suit or proceeding effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with such consent or if there be a final judgment for the plaintiff, the Company agrees to indemnify each Covered Person, to the extent provided in Section 12.03(a), from and against all Losses by reason of such settlement or judgment. The Company shall not effect any settlement of any pending or threatened claim, demand, action, suit or proceeding in respect of which any Covered Person is seeking

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indemnification hereunder without the prior written consent of each such Covered Person (which consent shall not be unreasonably withheld or delayed by any such Covered Person), unless such settlement includes an unconditional release of each such Covered Person from all liability and claims that are the subject matter of such claim, demand, action, suit or proceeding.
(v)    As necessary or useful to the defending party in effecting the foregoing procedures, the parties shall cooperate in the execution and delivery of agreements, instruments and other documents and in the provision of access to witnesses, documents and property (including access to perform interviews, physical investigations or other activities).
(vi)    No amendment or repeat of any of the provisions of this Agreement shall limit or eliminate the benefits provided to the Members under this Section 12.03 or this Article XII.
SECTION 12.04. Advancement of Expenses . To the fullest extent permitted by applicable Law, expenses (including legal fees) actually and reasonably incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified therefor as authorized in this Article XII.
ARTICLE XIII
EXCLUSIVITY
SECTION 13.01. Exclusivity . Subject to the Exclusivity Exceptions as defined in the IP License Agreement, the Members agree that, effective as of the Effective Date, the Company shall be the exclusive vehicle through which they and their respective Affiliates (either individually, together, or with Third Parties) shall develop, make (have made), offer for sale, sell, and import Base Oils and Additives derived from BioFene for the Lubricant Market. To the extent that Cosan US or Amyris licenses or sells an Alternative Technology to the Company per the terms of the IP License Agreement or Cosan US License Agreement (as applicable), then the above exclusivity will also include Base Oils and Additives derived from such Alternative Technology for the Lubricants Market.
Each Member acknowledges and agrees that the covenant contained in this Section has been negotiated in good faith, is reasonable and not more restrictive or broader than is necessary to protect the interests of the Members, and would not achieve its intended purpose if it was on different terms or for a period of time shorter than the period provided for herein or was applied in more restrictive geographical areas than is provided herein. Each Member further acknowledges and agrees that it would not have entered into this Agreement, but for the covenant contained in this Section and that such covenant is essential to protect the value of the Company. Each Member acknowledges that the Company would be irreparably harmed by any breach or threatened breach of this Section and that there will be no adequate remedy at law or in damages to compensate the Company and the other Member for any such breach.

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SECTION 13.02. Non-Solicitation . Each of the Members shall, and shall cause its respective Affiliates, during the entire term of each relevant contract with the Company's employees, and for a period of (1) year after the date of his/her termination, not to, directly or indirectly:
(i)    employ or contract, attempt to employ or contract, or assist anyone in employing or contracting any person who is then, or at any time during the preceding twelve (12) months was, an employee of the Company; or
(ii)    persuade or attempt to persuade any employee of the Company to leave such employment or to become employed by anyone other than the Company.
Notwithstanding the foregoing, the provisions of this Section 13.02 shall not apply to (1) any advertisement or general solicitation (or hiring as a result thereof) that is not specifically targeted at the persons described in Section 13.02(i) or (ii) above; (2) any Member's hiring of any such person who has terminated employment with the Company prior to the commencement of the solicitation of such employee; (3) any Company employee or former employee who initiates such interest in employment; or (4) any employee of the Company that was an employee of a Member or its Affiliate immediately prior to being an employee of the Company, exclusively in relation to the respective Member that was the employer.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. Confidential Information . (a) As used herein, “ Confidential Information ” means any and all information provided by or on behalf of a party hereto (“ Disclosing Party ”) to another party (or parties) hereto (each a “ Receiving Party ”) or to their Representatives between the Effective Date and the termination of this Agreement, regardless of the form or medium of communication, that relates to the Company or a Member in each case which information is either proprietary to the Company or a Member, as applicable, or is otherwise not available to the general public including, but not limited to, information about properties, employees, finances, strategies, businesses and operations of the Company or of a Member or its Affiliates. In addition, those portions of any notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by a Receiving Party or its Representatives that contain, reflect or are based upon, in whole or in part, Confidential Information furnished to or acquired by such Receiving Party shall also be considered Confidential Information. As used herein, “ Representative ” means the officers, directors, employees, attorneys, accountants, advisors, consultants, auditors, agents, and actual or prospective investors, underwriters, or acquirers of the applicable party hereto and of its Affiliates.
(b)    Except with the prior written consent of the Disclosing Party or as specifically authorized in this Agreement, each Receiving Party shall, and shall cause its Representatives (to the extent such Persons receive any Confidential Information) to, (i) maintain in confidence any and all Confidential Information, (ii) take reasonable precautions to protect Confidential Information, (iii) not disclose Confidential Information to any Person, and (iv) not

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make any use of such Confidential Information except for the purposes specifically authorized herein.
(c)    A Receiving Party may disclose Confidential Information, without the Disclosing Party's consent, to those of its Representatives who (1) need to know such Confidential Information for the purpose of assisting such Receiving Party (i) fulfill its obligations or exercise its rights under this Agreement or (ii) evaluate or assist the Company and its business activities and (2) are bound by written obligations of confidentiality and non-use substantially similar to those herein. A Receiving Party may also disclose Confidential Information, without the Disclosing Party's consent, to the Company and to other Members, but such Receiving Party is not responsible for any breach of this Section 14.01 by the Company or other Members with such Confidential Information. Finally, a Receiving Party or its Affiliates may disclose the terms of this Agreement to actual or prospective investors, underwriters, or acquirers who need to know such Confidential Information to evaluate the Receiving Party's (or its Affiliates') business and who are bound by written obligations of confidentiality and non-use substantially similar to those herein.
(d)    In addition, a Receiving Party may disclose Confidential Information (including filing this Agreement and all necessary documents regarding this transaction), without the Disclosing Party's consent, to the extent such disclosure is required, on advice of counsel, by applicable Law (including pursuant to any listing agreement with, or the rules or regulations of, any national securities exchange on which any securities of such Receiving Party (or any Affiliate thereof) are listed or traded); provided, that the Receiving Party making such disclosure or whose Affiliates are making such disclosure shall so notify the other parties hereto as promptly as practicable (and if possible and legally allowed, prior to making such disclosure) and shall seek confidential treatment of such information to the extent available.
(e)    Notwithstanding Section 14.01(a), the provisions of Section 14.01 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 any Receiving Party or any Representative thereof in breach of any of the provisions of this Section 14.01;
(ii)    any information that has been independently developed by a Receiving Party (or any Affiliate thereof) without violating any of the provisions of this Agreement or any other similar contract to which such Receiving Party or any of its Representatives, is or are bound; or
(iii)    any information made available to such Receiving Party (or any Affiliate thereof), on a non‑confidential basis by any third party who is not prohibited from disclosing such information to such Person by a legal, contractual or fiduciary obligation to the Disclosing Party or any of its Representatives.
(f)    Except as otherwise provided for in this Section 14.01, Confidential Information received hereunder shall be used by each Receiving Party and its Representatives

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solely for use in connection with such Receiving Party fulfilling its obligations or exercising its rights under this Agreement or evaluating or assisting the Company and its business activities.
(g)    The obligations under this Section 14.01 shall survive for two (2) years after the termination of this Agreement, notwithstanding the possible earlier occurrence of a dissolution of the Company, a Member's Transfer of its Membership Units, a withdrawal by a Member from the Company and/or any Person ceasing to be an Affiliate of a Member.
(h)    Nothing in this Agreement shall be interpreted as vesting, in favor of any Receiving Party or any other Person, any right of ownership or other right in Confidential Information or other intellectual property of a Disclosing Party.
SECTION 14.02. Notices . All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by courier service, by fax or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specification notice given in accordance with this Section 14.02:
(i)    If to the Company:
Novvi LLC
5885 Hollis Street
Emeryville, CA 94608
Attention: Jeff Brown, President

(ii)    if to a Member, then to the address or fax number set forth opposite such Member's name on Schedule 2.01 hereto.

In addition, in case of any notice to Cosan US, with a copy to (which shall not constitute notice):
            
Cosan Lubrificantes e Especialidades S.A.
Rua Victor Civita nº 77, Bloco 1, 4º andar
Rio de Janeiro - RJ - Brazil
CEP: 22775-905
Attention: Departamento Jurídico

Jones Day
222 East 41st Street
New York, NY 10017-6702
Attention: S. Wade Angus

Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados
Alameda Joaquim Eugenio de Lima, 447,
São Paulo - SP - Brazil
Attention: Marcelo Sampaio Góes Ricupero
            

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SECTION 14.03. Public Announcements . Except per Section 14.01(d), no party to this Agreement (including the Company) shall (i) make, or cause to be made, any press release or public announcement in respect of this Agreement, (ii) use, or caused to be used, the names of any Member or any Affiliate of any Member in any press release or public announcement regarding this Agreement or the Company, or (iii) otherwise communicate with any news media about this Agreement or the Company without the prior written consent of the Members, not to be unreasonably withheld. The parties shall cooperate as to the timing and contents of any such press release or public announcement. Following the initial press release or other authorized public disclosure announcing the existence of this Agreement (if any), each party hereto shall be free to disclose, without the other parties' prior written consent, the existence of this Agreement, the identity of the other the other parties, and those terms of this Agreement, each to the extent they have already been publicly disclosed in accordance herewith.
SECTION 14.04. Interpretation . Throughout this Agreement, nouns, pronouns and verbs shall be construed as masculine, feminine, neuter, singular or plural, whichever shall be applicable. Unless otherwise specified, all references herein to “Articles,” “Sections” and paragraphs shall refer to corresponding provisions of this Agreement.
SECTION 14.05. Severability . If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by any rule of applicable Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions is not affected in any manner materially adverse to any party. Upon a determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto 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 mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
SECTION 14.06. Counterparts . This Agreement may be executed and delivered (including by facsimile or email transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Copies of executed counterparts transmitted by telecopy, email, or other electronic transmission service shall be considered original executed counterparts for purposes of this Section 14.06.
SECTION 14.07. Entire Agreement . This Agreement, together with the IP License Agreement and the Cosan US License Agreement, constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
SECTION 14.08. Governing Law; Submission to Jurisdiction; Arbitration . (a) This Agreement shall be governed by, and construed, interpreted and enforced in accordance with, the Laws of the State of Delaware, without giving effect to the principles or rules of conflicts of law or of choice of law thereof.

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(b)    In the event of any dispute between the Members and/or the Company involving any of this Agreement, the activities of the Company, or the Company Business, or any combination of the foregoing (other than a dispute subject to Section 5.16), such dispute shall be governed by and resolved subject to this Section 14.08. Notwithstanding anything contained in this Agreement, the Members undertake to use their reasonable efforts to amicably resolve by mutual negotiation of their chief executive officers (or their designees) any disputes between themselves and/or the Company arising from or in connection to this Agreement and/or related hereto, including but not limited to any issues relating to the existence, validity, effectiveness, contractual performance, interpretation, breach or termination hereof. In case such mutual agreement is not reached under this Section, within thirty (30) days after submission of the dispute to the Members' chief executive officers (or their designees), either Member may refer the dispute to binding arbitration under the then-existing rules (“ Arbitration Rules ”) of the American Arbitration Association (“ Arbitration Chamber ”), which will exclusively and finally settle such dispute. The Arbitration Rules are deemed to be incorporated by reference to this Agreement, except as such Arbitration Rules may be modified herein or by mutual agreement by the Members. The arbitration proceedings filed based on this Agreement shall be administered by the Arbitration Chamber. Any such arbitration shall be conducted in accordance with, and subject in all respect to, the following: For the avoidance of doubt, this Section 14.08 equally binds all parties hereto (including the Company) to this Agreement, and such parties hereby agree to submit to and comply with all the terms and conditions of this Section 14.08, which shall be in full force and effect irrevocably, and subject to specific performance. The Company expressly agrees to be bound to these arbitration provisions for all legal purposes. Unless otherwise agreed in writing, the Members shall continue to diligently perform their respective duties and obligations under this Agreement while an arbitral proceeding is pending.
(c)    Any arbitration under this Section 14.08 will be settled by a panel of three (3) arbitrators. If there are only two parties to the arbitration, each party shall nominate one arbitrator in accordance with the Arbitration Rules and the two arbitrators so nominated shall nominate jointly a third arbitrator, who shall serve as the chair of the arbitral tribunal (“ Arbitral Tribunal ”), within fifteen (15) days from the receipt of a communication from the Arbitration Chamber by the two previously nominated arbitrators. If there are multiple parties, whether as claimants or as respondents, the multiple claimants, jointly, and the multiple respondents, jointly, shall nominate an arbitrator within the time limits set forth in the Arbitration Rules. If any arbitrator has not been nominated within the time limits specified herein and/or in the Arbitration Rules, as applicable, such appointment shall be made by the Arbitration Chamber upon the written request of any party within fifteen (15) days of such request. If at any time a vacancy occurs in the Arbitral Tribunal, the vacancy shall be filled in the same manner and subject to the same requirements as provided for the original appointment to that position. The Company as an intervening party to this Agreement shall be a party to the arbitration proceeding only to the extent it may have to implement the award to be rendered, but it waives its right to appoint any arbitrator.
(d)    The place of arbitration shall be the city of New York, New York, U.S.A., where the award(s) shall be rendered, and all arbitration proceedings shall be conducted in English.

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(e)    An arbitration award shall be final, unappealable and binding on the parties, including the Company, their successors and assignees, who agree to comply with it and spontaneously and expressly waive any form of appeal, except for the request for fraud, correction of material error or clarification of uncertainty, doubt, contradiction or omission of the arbitration award. If necessary, an arbitration award may be enforced in any court that has jurisdiction or authority over the Members, the Company, or their assets. The arbitration award will include the distribution of costs, including reasonable attorney's fees and reasonable expenses as the Arbitral Tribunal sees fit.
(f)    The Members and the Company are fully aware of all terms and effects of the arbitration provisions herein agreed upon and irrevocably agree that arbitration hereunder is the only form of resolution of any disputes between any of the Members or any Member and the Company or among themselves arising from or in connection with this Agreement and/or related thereto (except those subject to Section 5.16). Without prejudice to the validity of these arbitration provisions, the Members and/or the Company may seek judicial assistance and/or relief, if and when necessary, for the sole purposes of:

(i)    executing obligations that admit, forthwith, specific performance;
(ii)    obtaining coercive or precautionary measures or procedures of a preventive, provisional or permanent nature, as security for the arbitration to be commenced or already in course between the Members and/or to ensure the existence and efficacy of the arbitration proceeding; or
(iii)    fraud, correction of material error or clarification of uncertainty, doubt, contradiction or omission of the arbitration award; or
(iv)    obtaining measures of a mandatory and specific nature;
it being understood that, upon accomplishment of the mandatory or specific enforcement procedures sought, the dispute shall be returned to the Arbitral Tribunal to be established or already established, as applicable, full and exclusive authority to decide on all and any issues, whether related to procedure or merit, which has caused the mandatory or specific enforcement claim, with the respective judicial proceeding being interrupted until the partial or final decision of the Arbitral Tribunal.
For the measures indicated in (i) through (iv) above, the Members and/or the Company elect any state or U.S. federal court located in the city of New York, New York, U.S.A., to the exclusion of any other courts, and the Members and/or the Company hereby irrevocably submit to the exclusive jurisdiction of any state or U.S. federal court located within the city of New York, New York, U.S.A. over any such action. The Members and/or the Company hereby irrevocably waive, to the fully extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such action brought in such court or any defence of inconvenient forum for the maintenance of such action. The filing of any measure under this Subsection (f) does not entail any waiver to the arbitration under this Section 14.08 or to the full jurisdiction of the Arbitral Tribunal.

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(g)    The Members, the Company, and their respective Representatives, the witnesses, the Arbitral Tribunal, the Arbitration Chamber and its secretariat agree to treat the existence, content, awards and decisions relating to an arbitration proceeding hereunder, together with all the materials, information and testimony used therein or created for the purposes thereof, as well as other documents produced or disclosed by the other Member or by the Company during the arbitration proceeding as Confidential Information of the other Member or the Company, subject to the obligations and exceptions in Section 14.01.
(h)    In order to facilitate the comprehensive resolution of related disputes under this Agreement, the IP License Agreement, and/or the Cosan US License Agreement, any or all such disputes may be brought in a single arbitration under the following circumstances and conditions: If one or more arbitrations are already pending between the Members and/or the Company hereunder or under the IP License Agreement or under the Cosan US License Agreement and a new dispute arises between the Members and/or the Company under any of said agreements or a subsequently filed arbitration is brought between the Members and/or the Company under any said agreements, then a Member or the Company may request that such new dispute or any subsequently filed arbitration be consolidated into any prior pending arbitration. Within twenty (20) days of a request to consolidate, the parties to the new dispute or the subsequently filed arbitration shall select one of the prior pending arbitrations into which the new dispute or subsequently filed arbitration may be consolidated (“ Selected Arbitration ”). If the parties to the new dispute or subsequently arbitration are unable to agree on the Selected Arbitration within such twenty (20) day period, then the Arbitration Chamber shall indicate the Selected Arbitration within twenty (20) days of a written request by a party to the new dispute or the subsequently filed arbitration. If the Arbitration Chamber fails to indicate the Selected Arbitration within the 20-day time limit indicated above, the arbitration first initiated shall be considered the Selected Arbitration. The new dispute or subsequently filed arbitration shall be so consolidated, provided that the Arbitral Tribunal for the Selected Arbitration determines that: (i) the new dispute or subsequently filed arbitration presents significant issues of law or fact common with those in the Selected Arbitration; (ii) no party to the new dispute or to the Selected Arbitration would be unduly harmed; and (iii) consolidation under these circumstances would not result in undue delay for the Selected Arbitration. Any such order of consolidation issued by the Arbitral Tribunal shall be final and binding upon the parties to the new dispute, the Selected Arbitration and subsequently filed arbitrations. The Members and the Company waive any right they may have to appeal or to seek interpretation, revision or annulment of such order of consolidation under the Arbitration Rules and/or the applicable Law in any court. The Arbitral Tribunal for the Selected Arbitration into which a new dispute or subsequently filed arbitration is consolidated shall serve as the Arbitral Tribunal for the consolidated arbitration.
(i)    Subject to applicable Law and this Section 14.08, process in any dispute, claim, action, suit or proceeding to enforce any arbitral award rendered pursuant to and as provided in this Agreement may be served on a Member or the Company anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Member and the Company agrees that service of process on a Member or the Company at the location, and as provided, in Section 14.02 shall be deemed effective service of process on such Member or the Company, as applicable. Nothing herein shall affect the right of any Member or the Company to serve legal process in any other manner permitted by applicable Law or at equity.

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(j)    WITH RESPECT TO ANY DISPUTE, CLAIM, ACTION, SUIT OR PROCEEDING BETWEEN THE PARTIES IN CONNECTION WITH THIS AGREEMENT THAT, PER THIS AGREEMENT OR APPLICABLE LAW MAY BE BROUGHT IN A COURT, EACH OF THE PARTIES IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH DISPUTE, CLAIM, ACTION, SUIT OR PROCEEDING.
SECTION 14.09. Specific Performance . Subject to compliance with Section 14.08 above, the parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties hereto shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.
SECTION 14.10. Expenses . Except as otherwise specified in this Agreement, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
SECTION 14.11. Amendments and Waivers; Assignment . (a) Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all parties hereto, or in the case of a waiver, by the party or parties against whom the waiver is to be effective; provided , however , that Schedule 2.01 to this Agreement shall be deemed amended from time to time to reflect the admission of a new Member, the withdrawal or resignation of a Member and the adjustment of the Membership Units resulting from any Transfer or other disposition of a Membership Unit, in each case that is made in accordance with the provisions hereof.
(b)    No failure or delay by any party in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable Law.
(c)    The respective rights and obligations of the Members under this Agreement may not be assigned without the prior written consent of the other Members. The consent of the other Members shall not be unreasonably withheld. In case of an assignment to a Controlled company, Controlling company or company under common Control, such consent shall not be withheld in any circumstance if the assigning party remains liable for the obligations of the assignee under this Agreement or guarantees the fulfillment of such obligations, as provided for in Section 10.02(b), except in the case in which Cosan US requests assignment to a joint venture company formed by Cosan US or any Affiliate thereof and Shell International Petroleum Company Limited or any Affiliate thereof, in which case the consent of Amyris may be withheld in its sole and absolute discretion.
SECTION 14.12. No Third Party Beneficiaries . This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their permitted assigns and

58




successors and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Without limiting the foregoing, any obligation of the Members to make Capital Contributions to the Company under this Agreement is an agreement only between the Members and no other person or entity, including the Company, shall have any rights to enforce such obligations.
SECTION 14.13. Headings . The headings and subheadings in this Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.
SECTION 14.14. Construction . Each party hereto acknowledges and agrees it has had the opportunity to draft, review and edit the language of this Agreement and that no presumption for or against any party arising out of drafting all or any part of this Agreement will be applied in any controversy, claim or dispute relating to, in connection with or involving this Agreement. Accordingly, the parties hereby waive the benefit of any rule of applicable Law, including California Civil Code Section 1654 and any successor or amended statute, or any legal decision which would require that in cases of uncertainty, the language of a contract should be interpreted most strongly against the party who drafted such language.
SECTION 14.15. Former Amyris Employees, Officers and/or Contractors . Notwithstanding anything to the contrary contained in this Agreement, with regard to any Company employee and/or Officer who, prior to the Effective Date, was an Amyris employee or contractor, Amyris will retain and be responsible for all liabilities, if any, arising in respect of such Person's prior employment with or for Amyris or the termination thereof (including, without limitation, any Controlled Group Liability or claims by such Person under any Amyris benefit plans, medical, life insurance and disability benefit plans and policies, workers compensation claims and similar claims).
SECTION 14.16. Further Assurances . Each of the Members hereto shall use reasonable 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 Law to consummate and make effective the transactions contemplated hereunder, including, without limitation, using reasonable efforts to obtain all licenses, permits, consents, approvals, authorizations, qualifications and orders of the competent governmental entities. Each of the Members shall cooperate with the other when required in order to effect the transactions contemplated hereunder. In case at any time after the date hereof, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each of the parties hereto shall use their reasonable efforts to take all such action. Each of the Members and the Company will use their best efforts to finalize and execute the Cosan US License Agreement, as soon as reasonably practicable following the Effective Date.
SECTION 14.17. BioFene Supply Agreement. The Members agree to negotiate in good faith, the key terms, including price (and/or a pricing formula), maximum quantities, and applicable delivery INCOTERM, with regard to Amyris' future supply, and Company's purchase, of BioFene for Company's Base Oils, Additives and Lubricants.

59




IN WITNESS WHEREOF, the parties hereto have entered into this Agreement or have caused this Agreement to be duly executed by their respective authorized officers, in each case as of the Effective Date.


AMYRIS, INC.
By: /s/ John Melo        
Name: John Melo
Title: C.E.O.

COSAN US, INC.
By: illegible            
Name:
Title:

NOVVI LLC
By: /s/ John Melo        
Name: John Melo
Title: Manager

By: /s/ Lineu Paulo Moran Filho    
Name: Lineu Paulo Moran Filho
Title: Manager





SCHEDULE 2.01
List of Members and Addresses


Amyris, Inc.
5885 Hollis Street, Suite 101
Emeryville, CA 94608
Attn: General Counsel


Cosan US, Inc.
2711 Centerville Road, Suite 400
Wilmington, Delaware 19808
Attn: President





EXHIBIT A
Member Certificate
Amended and Restated Operating Agreement of Novvi LLC
THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE UNITED STATES SECURITIES ACT OF 1933 OR AN EXEMPTION THEREFROM AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS.
THE MEMBERSHIP UNITS REPRESENTED BYTHIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN AN AMENDED AND RESTATED OPERATING AGREEMENT DATED AS OF [_], 2013, AS IT MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY. NO REGISTRATION OF TRANSFER OF THESE MEMBERSHIP UNITS WILL BE MADE ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH.
All capitalized terms used herein, and not otherwise defined, have the meaning set forth in the Amended and Restated Operating Agreement of Novvi LLC, dated as of [_], 2013, as amended from time to time (the “ Agreement ”).
The undersigned hereby acknowledges that [in exchange for a capital contribution with a value of US$____________,] the undersigned [has received/is the Transferee of] [__] Membership Units in Novvi LLC (the “ Company ”).
The undersigned further acknowledges that it has been given a copy of, and has reviewed carefully, the Agreement. The undersigned agrees to be bound by all terms and provisions of the Agreement [and to assume all obligations of the transferor of such Membership Units]. The undersigned hereby accepts, ratifies and agrees to be bound by all actions duly taken pursuant to the terms and provisions of the Agreement by the Company prior to the date hereof.
Dated ___________, ____.
                    
[Name of Member]








EXHIBIT B
Fair Market Value Methodology
“ Fair Market Value ”, for purposes of the Agreement, shall be calculated in accordance with the rules set forth below.
The Fair Market Value of the Company and its corresponding Membership Units shall be calculated according to the following procedure:
(i)    the Fair Market Value shall be determined by two (2) internationally recognized and reputable investment banks, with experience in the appraisal of assets in the lubricants (or similar market), being one (1) institution chosen by Cosan US and one (1) chosen by Amyris (“ Appraisers ”) within ten (10) Business Days as from the date the determination of a Fair Market Value is required, after which the Membership Unit holder who fails to choose an Appraiser shall be deemed to accept the Fair Market Value that is determined by the Appraiser duly chosen by the other Membership Unit holder. Notwithstanding the above, the Parties may mutually agree that the Fair Market Value shall be determined by only one (1) jointly chosen specialized investment bank, with the same qualifications mentioned above (“ Sole Appraiser ”). The Appraisers (or the Sole Appraiser, as the case may be) shall be engaged by the Company, but the costs arising in connection with the determination of the Fair Market Value shall be equally shared by the Members. The Company shall provide both Appraisers (or the Sole Appraiser, as the case may be) with the same information that may be required by any Appraiser (or the Sole Appraiser, as the case may be);
(ii)    with respect to the Membership Units, the Fair Market Value shall be determined by the Appraisers (or the Sole Appraiser, as the case may be) based on the following criteria: (a) such Membership Units shall be appraised as if the total number of Membership Units were available for purchase and were purchased by Third Parties on an arms' length basis, without any discount; (b) the then current status and the expected future results of the Company; and (c) the discounted projected future cash flows of the Company, based on the Company's applicable business plan and budget, or, if the Company has not started to conduct the business, the Fair Market Value shall be determined considering the capital employed by the Members;
(iii)    if any Appraiser (or the Sole Appraiser, as the case may be) presents a value range/band instead of a single value, the Fair Market Value provided by such Appraiser (or the Sole Appraiser, as the case may be) shall be the midpoint of such value range/band, provided that the Appraisers shall be aware that in no event such band, for the purposes of the assessment of the Fair Market Value, shall exceed twenty percent (20%) of either the minimum or the maximum value amongst the value range/bands presented;
(iv)    the Appraisers (or the Sole Appraiser, as the case may be) shall determine the Fair Market Value within thirty (30) days as from the date on which they were




engaged for such purpose, and the result of their work shall be submitted simultaneously to the Company and all Members in writing;
(v)    if the difference between the Fair Market Values assessed by each Appraiser-subject to the provisions of item (iii) above-is lower or equal to ten percent (10%), the Fair Market Value shall be the midpoint of both appraisals; if such difference exceeds such percentage, the Appraisers shall have five (5) Business Days as from the date on which the two (2) Fair Market Values were presented to the Company to select a third qualified investment bank that fulfills the same requirements set forth in item (i) above to determine the Fair Market Value (“ Third Appraiser ”);
(vi)    the Third Appraiser shall present its assessment of the Fair Market Value of the Membership Units within no later than thirty (30) days as from the date on which it was engaged by the Company, subject to the same rules and criteria applicable to the Appraisers and based on the estimates prepared by such Appraisers, and the result of the Third Appraiser's work shall be simultaneously submitted to the Company and the Members in writing;
(vii)    the Fair Market Value shall then be the midpoint between the two (2) closest amounts assessed by the three (3) Appraisers; and
(viii)    absent of a manifest error, the Fair Market Value assessed according to the terms hereof shall be final, binding and shall not be subject to any opposition from any Member, and shall remain valid for the purposes hereof for a period of one hundred and twenty (120) days from the date it was finally assessed.





CONFIDENTIAL
Execution Version


TERMINATION OF THE JOINT VENTURE IMPLEMENTATION AGREEMENT
This Termination of the Joint Venture Implementation Agreement (“ Termination Agreement ”) is made and entered into effective as of March 26, 2013 (the “ Termination Effective Date ”) by and between Amyris, Inc., a Delaware corporation, having its place of business at 5885 Hollis Street, Suite 100, Emeryville, California 94608 (“ Amyris ”), Amyris Brasil Ltda. (f/k/a Amyris Brasil S.A.), a Brazilian sociedade limitada , having a place of business at Rua James Clerk Maxwell, No. 315, Techno Park, Campinas, São Paulo, Brazil (“ AB ”), Cosan Lubrificantes e Especialidades S.A. (f/k/a Cosan Combustíveis E Lubrificantes S.A.), a Brazilian sociedade anônima , having a place of business at Rua Victor Civita, No. 77, Bloco 1, 4 andar, Barra da Tijuca, Rio de Janeiro, Rio de Janeiro, Brazil (“ CLE ”), and Cosan S.A. Indústria E Comércio, a Brazilian sociedade anônima , having a place of business at Avenida Presidente Juscelino Kubitschek, No. 1327, 4 andar, sala 1, São Paulo, São Paulo, Brazil (“ Cosan ”) and terminates the Joint Venture Implementation Agreement, dated June 3, 2011 (the “ Original JVI Agreement ”), by and between Amyris, AB, CLE, and Cosan. Amyris, AB, CLE, and Cosan are sometimes referred to herein individually as a “ Party ” and collectively as the “ Parties .”
WHEREAS , the Parties originally intended to establish and operate a joint venture regarding renewable base oils produced from Amyris' technology through a jointly owned, Brazilian sociedade anônima located at Avenida Presidente Juscelino Kubitschek, No. 1327, 4 andar, sala 5, São Paulo, São Paulo, Brazil (“ Novvi S.A. ”);
WHEREAS , the Parties entered into the Original JVI Agreement to document how their renewable base oils joint venture would operate through Novvi S.A.;
WHEREAS, as a result of additional strategic planning since executing the Original JVI Agreement, the Parties have decided not to operate their renewable base oils joint venture through Novvi S.A. and instead have agreed to operate it solely through a Delaware limited liability corporation (“ Novvi LLC ”), which is jointly owned by Amyris and Cosan U.S., Inc., a subsidiary of CLE (“ Cosan US ”);
WHEREAS , contemporaneously with the Parties' execution of this Termination Agreement, Amyris and Cosan US are implementing the renewable base oils joint venture (as its purpose was extended to include additives and lubricants) through Novvi LLC with the execution of an amended and restated operating agreement of Novvi LLC and related agreements;
WHEREAS , because Novvi S.A. is no longer the corporate vehicle for the Parties' renewable base oils joint venture nor has any currently contemplated role in such joint venture, the Original JVI Agreement is no longer necessary or desired, and the Parties now wish to terminate it; and
NOW, THEREFORE , in consideration of the foregoing premises and the mutual covenants contained in this Termination Agreement, the Parties hereby agree as follows:





Page 1 of 4




1.
Defined Terms . All capitalized terms used in this Termination Agreement have the same meaning as in the Original JVI Agreement except as otherwise noted.

2.
Termination of the Original JVI Agreement . Except as specifically set forth in Section 3 of this Termination Agreement, the Parties hereby mutually terminate the Original JVI Agreement pursuant to Section 9.3 of the Original JVI Agreement, a copy of which is attached hereto as Exhibit A, in its entirety, effective as of the Termination Effective Date. For clarity, despite terminating the Original JVI Agreement under such Section 9.3, the Parties agree that Section 9.3.1 will not apply or have any effect.

3.
Surviving Provisions of the Original JVI Agreement . The following are the only provisions, rights, and obligations under the Original JVI Agreement that survive this mutual termination of the Original JVI Agreement:

(i)
Article I - Definitions;
(ii)
Section 8.5 - Expenses;
(iii)
Section 8.6 - Disclosure;
(iv)
Sections 8.7 to 8.7.5 - Confidentiality;
(v)
Article XI - Governing Law and Dispute Resolution;
(vi)
Section 12.3 - Notices;
(vii)
Section 12.4 - Entire Agreement;
(viii)
Section 12.6 - Severability; and
(ix)
Section 12.7 - Assignment.

4.
Ancillary Agreements . Although the Original JVI Agreement contemplated the execution of several Ancillary Agreements between the Parties, only the Shareholders' Agreement was ever executed by the Parties. That document will be automatically terminated as per its terms upon the consummation of the Stock Purchase Agreement on the date hereof between AB and CLE, and the Bylaws of Novvi S.A. will be separately modified by the Parties outside of this Termination Agreement.

5.
Confidentiality . The Parties agree to treat this Termination Agreement and its contents as the Confidential Information of the other Party subject to the obligations and exceptions set forth in Sections 8.6 and 8.7 of the Original JVI Agreement.

6.
Governing Law; Disputes . This Termination Agreement shall be governed in accordance with the laws of Brazil, without regard to its conflicts of law principles. Any Disputes arising out of or relating to the Original JVI Agreement or this Termination Agreement and /or any instrument executed and delivered related hereto, including but not limited to any issues relating to the existence, validity, effectiveness, interpretation of this Termination Agreement or the related instruments will be referred to and exclusively and finally settled by binding arbitration administrated by the Arbitration and Mediation Center of the Brazil-Canada Chamber of Commerce in accordance with its rules and with the terms and provisions of the arbitration agreement set forth in Article XI of the Original JVI Agreement.





Page 2 of 4




7.
Counterparts . This Termination Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Termination Agreement may be executed by facsimile or other electronic signatures, and such signatures shall be deemed to bind each Party as if they were original signatures.

8.
Headings . The section headings contained in this Termination Agreement are for convenience only, will not be deemed a part of this Termination Agreement, and will not affect the meaning or interpretation of this Termination Agreement.

9.
Entire Agreement; Amendment . This Termination Agreement, along with the surviving Sections and Articles of the Original JVI Agreement (as set forth in Section 3 above and which are incorporated herein by reference), constitute the entire agreement between the Parties (and cancel and supersede any and all previous agreements between the Parties) with respect to the subject matter hereof, including the Original JVI Agreement, the Parties' proposed Base Oils IP License Agreement, and the Parties' proposed BioFene IP License Agreement, but excluding the Shareholders' Agreement. Any modification or amendment to this Termination Agreement must be in writing and signed by all Parties to be effective.






[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]










Page 3 of 4




THIS TERMINATION AGREEMENT is executed by the authorized representatives of the Parties as of the Termination Effective Date.

Amyris, Inc.    Amyris Brasil Ltda (f/k/a Amyris Brasil S.A.)
By: /s/ Steve R. Mills         By: /s/ Paulo Diniz /s/ Erica Baumgarten    
Name: Steve R. Mills         Name: Paulo Dinz Erica Baumgarten        
Title: C.F.O.         Title: Presidente Diretora Financeiro        


Cosan Lubrificantes e Especialidades S.A.
(f/k/a Cosan Combustíveis e Lubrificantes S.A.)
By: illegible         By: illegible        
Name:          Name: illegible        
Title:          Title: Officer        


Cosan S.A. Indústria E Comércio    
By: illegible         By: illegible        
Name:          Name: illegible        
Title:          Title:         














Page 4 of 4




IP License Agreement

This IP License Agreement (the “ License Agreement ”) is made and entered into effective as of March 26, 2013 (the “ Effective Date ”) by and between Amyris, Inc., a Delaware corporation, having its place of business at 5885 Hollis Street, Suite 100, Emeryville, California 94608 (“ 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 ”). Amyris and Novvi LLC are sometimes referred to herein individually as a “ Party ” and collectively as the “ Parties .”
WHEREAS , Amyris and Cosan US, Inc. formed Novvi LLC on September 6, 2011, and each presently owns fifty percent (50%) of the membership units of Novvi LLC;
WHEREAS , Amyris and Cosan US have decided to operate a joint venture through Novvi LLC involving the development, production, marketing and sale of Base Oils (as defined below), Additives (as defined below), and Lubricants (as defined below) for use in the Lubricants Markets (as defined below);
WHEREAS , contemporaneously with the execution of this License Agreement, Amyris and Cosan US executed an Amended and Restated Operating Agreement for Novvi LLC, as may be subsequently amended from time-to-time, (“ Amended and Restated Operating Agreement ”) to memorialize their respective initial capital contributions to Novvi LLC and to establish how they will operate Novvi LLC;
WHEREAS , in order to fulfill its initial capital contribution to Novvi LLC under the Amended and Restated Operating Agreement and to enable Novvi LLC to fulfill its intended purpose to develop, produce, market, and sell Base Oils, Additives, and Lubricants, Amyris agreed to license, on the terms and conditions set forth herein, Novvi LLC rights under certain of its intellectual property;
WHEREAS , contemporaneously with the execution of this License Agreement, Novvi LLC also executed a license agreement with Cosan US, under which Cosan US licensed to Novvi LLC certain rights under Cosan US's Alternative Technology (as defined below) to enable Novvi LLC to fulfill its intended purpose to develop, produce, market, and sell Base Oils, Additives, and Lubricants; and
NOW, THEREFORE , in consideration of the foregoing premises and the mutual covenants contained in this License Agreement, the Parties hereby agree as follows:

ARTICLE 1

DEFINITIONS

Terms defined in this Article 1 and parenthetically elsewhere, including the introductory paragraph and the recitals, will have the same meaning throughout this License Agreement unless otherwise specified.

“ Additive ” means any material added to a Base Oil to change its properties, characteristics, or performance ( e.g. , anti-foam, anti-wear, corrosion inhibitor, detergent, dispersant, pour point depressant, anti-oxidant, or friction modifier), but specifically excluding all viscosity index improvers.

“ Affiliate ” means, with regard to a particular entity (a “ First Person ”), any person or entity who, directly or indirectly, through one or more intermediates, Controls the First Person, is Controlled by the First Person, or is under common Control with the First Person. Notwithstanding the preceding definition, for

Page 1 of 33


purposes of this License Agreement, Novvi LLC is not considered an Affiliate of Amyris or Cosan US (or their respective Affiliates) nor are Amyris and Cosan US (or their respective Affiliates) considered Affiliates of Novvi LLC.

“ Alternative Technology ” means a technology (other than a BioFene-related technology) from a renewable source or a molecule (other than a BioFene-derived molecule) from a renewable source from which Base Oils or Additives, in each case, for the Lubricants Market could reasonably be expected to be developed or made.

“ Amyris Base Technology ” means the Patents and Know-How that (i) are Controlled by Amyris as of the Effective Date or become Controlled by Amyris during the term of Novvi LLC's licenses under Section 2.1 and (ii) are necessary or reasonably useful for the development, making (and having made), offering for sale, sale, and importing of Base Oils, Additives, and Lubricants derived from BioFene. For the avoidance of doubt, the term “Amyris Base Technology” expressly excludes any Amyris BioFene Manufacturing Technology.
“ Amyris BioFene Manufacturing Technology ” means the Patents and Know-How that (i) are Controlled by Amyris and (ii) are necessary or reasonably useful for the development, making (and having made), offering for sale, sale, and importing of BioFene itself, including, but not limited to, BioFene Production Strains and any Patents and Know-How related to the genetic engineering of such BioFene Production Strains, the fermentation methods for making BioFene, the methods of recovery of BioFene from fermentation broth, the processes of isolating BioFene directly from fermentation broth, and the methods of purifying BioFene. The term “Amyris BioFene Manufacturing Technology” also includes any and all Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements, but expressly excludes any Novvi LLC BioFene Transformation Technology

“ Amyris Breach Invention ” means 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 Amyris or its Affiliates or sublicensees, solely or jointly with others, in violation of the license granted to it in Section 2.2.

" Amyris Invention " means 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 Amyris, solely or jointly with others. The term “Amyris Invention” includes any improvement by or on behalf of Amyris, solely or jointly with others, during the term of Amyris's license under Section 2.2 to Novvi LLC BioFene Transformation Technology, but excludes Amyris Breach Inventions.

“ Amyris Pre-Signature Base Technology ” means Amyris Base Technology used by Amyris or an Amyris Affiliate to produce Base Oils or Lubricants offered for sale, sold, or sampled to Third Parties before the Effective Date.

“ Applicable Law ” means any law, rule, treaty, or regulation of any governmental authority or any judgment, order, write, decree, permit or license of any governmental authority of competent jurisdiction, in each case applicable to the Party or activity at issue.

“ Base Oil ” means a fluid base compound to which other oils, Additives, or components are added to produce a Lubricant.

“ BioFene ” means farnesene produced through Amyris BioFene Manufacturing Technology.


Page 2 of 33


“ By-Products ” means those by-products directly resulting from (1) Novvi LLC's manufacture, under its license in Section 2.1(a)(i), of Base Oils, Additives, or Lubricants derived from BioFene solely for the Lubricants Market or (2) the manufacture of Base Oils, Additives, or Lubricants derived from BioFene solely for the Lubricants Market by a permitted sublicensee of Novvi LLC per a sublicense under Sections 2.1(b) or (c). For clarity, Diesel By-Products are a subset of By-Products.

“ Copyrights ” means all copyrights, whether in published or unpublished works; databases, data collections and rights therein, mask work rights, software, web site content; rights to compilations, collective works and derivative works of any of the foregoing and moral rights in any of the foregoing; registrations and applications for registration for any of the foregoing and any renewals or extensions thereof; and moral rights and economic rights of others in any of the foregoing.

“ Control ” (including any variations such as “Controls, “Controlled” or “Controlling”) means:

(i)
in the context of Patents and Know-How, rights under and to such Patents and Know-How held by a Party, whether by ownership or license, sufficient to grant the applicable license or rights under this License Agreement without violating the terms of any arrangement with any Third Party; and

(ii)
in the definition of Affiliate, (1) possessing, directly or indirectly, the power to direct the management or policies, whether through the ownership of voting securities, by contract relating to voting rights or corporate governance, or otherwise, or (2) ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities or other ownership interest.

“ Exclusivity Exceptions ” means the rights retained by Amyris under Amyris Base Technology for (i) itself and its Affiliates working independently or together, (ii) Total working independently, and (iii) Total and Amyris (and/or Amyris Affiliates) working together, to develop, make (and have made), offer for sale, sell, and import Base Oils derived from BioFene for use in the Lubricants Market but only to the extent such Base Oils are used as a component in such entities' own Lubricants in such market. For clarity, Total, Amyris and/or Amyris Affiliates have no retained rights under Amyris Base Technology to develop, make (have made), offer for sale, sell, or import any Base Oil derived from BioFene for use in the Lubricants Market as a product separate and apart from a finished Lubricant.

“ Exploit ” means to make, have made, import, use, sell, have sold, distribute, dispose of or offer to dispose of, market, promote or offer for sale including to research and develop.

“ Insolvency Event ” means:

(i)
an involuntary petition under any bankruptcy or insolvency law or under the reorganization provisions of any such law is filed with respect to a Party or a receiver of, or for, the property of a Party is appointed without acquiescence or consent of such Party, which petition or appointment remains undischarged or unstayed for an aggregate period of ninety (90) days (whether or not consecutive); or

(ii)
a Party consents to the entry of an order for relief against it in an involuntary case under any bankruptcy or insolvency law or under the reorganization provisions of any such law; or

(iii)
a voluntary petition under any bankruptcy or insolvency law or under the reorganization provisions of any such law is filed by a Party, a voluntary assignment of a Party's

Page 3 of 33


property for the benefit of creditors is made, or a receiver of, or for, the property of a Party is appointed by, or acquiesced or consented to, by such Party.

“ Joint BioFene Manufacturing Improvements ” means 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) jointly by or on behalf of Amyris and Novvi LLC (or their respective Affiliates, employees, sublicensees, contractors, or agents) that are based upon, derived from, incorporating, in connection with or related to Amyris BioFene Manufacturing Technology, including in connection with the conversion or operation of a sugar/ethanol mill to include the manufacture of BioFene or the operation of such mill or facility in connection with Novvi LLC's manufacture of BioFene.

“ Joint Invention ” means 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) jointly by or on behalf of Amyris and Novvi LLC (or their respective Affiliates, employees, sublicensees, contractors, or agents) during the term of this License Agreement, other than Joint BioFene Manufacturing Improvements.

“ Know-How ” means any non-patented information and tangible materials, including: (i) technical and non-technical data, specifications, formulae, compounds, formulations, assays, designs, results, information, conclusions, interpretations, inventions, developments, discoveries, ideas, improvements, and trade secrets, (ii) methods, databases, tests, procedures, processes, and techniques, (iii) Production Strains (if applicable), and (iv) other know-how and technology including Copyrights.

“ Lubricant ” means all substances introduced between two moving surfaces to reduce the friction between them, improving efficiency and reducing wear, or dissolving or transporting foreign particles, or distributing heat, in each case comprising a formulation of at least one Base Oil combined or blended with Additives, sold as a finished product for automotive and industrial applications, for use in, by way of example only: automotive, 2-cycle, marine and other engines, ship lubrication, hydraulic equipment, food processing equipment and machinery, and wind turbines. However, the term “Lubricants” expressly excludes drilling oils, fluids and muds, in accordance with the standards set by American Petroleum Institute.

“ Lubricants Market ” means the worldwide market for automotive, commercial, and industrial Lubricants. For the avoidance of doubt, the following markets, but not limited to the following markets, are expressly excluded from the term “Lubricants Market”: the markets for flavors and fragrances, food additives, cosmetics and personal care, drilling oils, fluids and muds, fuels, cleaners, paints, coatings, ink, consumer-packaged goods, pesticides, and pharmaceuticals.

“ Novvi LLC BioFene Transformation Technology ” means the Patents and Know-How in each case that (i) are Controlled by Novvi LLC as of the Effective Date or become Controlled by Novvi LLC during the term of Amyris's license under Section 2.2 (in each case other than Patents and Know-How licensed from Amyris) and (ii) are related to the chemical transformation of BioFene or a BioFene-derivative into another compound. For clarity, the term “Novvi LLC BioFene Transformation Technology” does not include Novvi LLC Breach Inventions.

" Novvi LLC BioFene Manufacturing Improvement " means 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 LLC or its Affiliates or sublicensees, solely or jointly with others that are based upon, derived from, incorporating, in connection with or related to Amyris BioFene Manufacturing Technology.

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“ Novvi LLC Breach Invention ” means 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 LLC or its Affiliates or sublicensees, solely or jointly with others, in violation of the licenses granted to it in Sections 2.1 or 2.3.

" Novvi LLC Invention " means 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 LLC, solely or jointly with others. The term “Novvi LLC Invention” includes any improvement by or on behalf of Novvi LLC, solely or jointly with others, during the term of Novvi LLC's licenses under Section 2.1 to Amyris Base Technology, but excludes Novvi LLC Breach Inventions and any Novvi LLC BioFene Manufacturing Improvements or Joint BioFene Manufacturing Improvements.
“ Patents ” means any patents, patent applications, or certificates of invention, together with all additions, divisions, continuations, continuations-in-part, provisionals, converted provisionals, substitutions, reissues, re-examinations, revalidations, extensions, registrations, patent term extensions, supplemental protection certificates, renewals, and the like with respect to any of the foregoing.

“ Production Strain ” means recombinant yeast or some other microbial agent that has been genetically engineered to make a desired compound or product by means of a fermentation process.

“ Strain Restrictions ” means all of the following:
(i)
Novvi LLC may use the relevant Production Strain only at a manufacturing location approved in advance by Amyris in writing. To the extent Novvi LLC, in the exercise of its “have made” rights, engages an Affiliate or Third Party to produce BioFene or an Alternative Technology molecule, whichever is applicable, such Affiliate or Third Party shall be subject to written restrictions necessary to protect the applicable Production Strains and other intellectual property licensed from Amyris to Novvi LLC;
(ii)
The applicable license agreement with Novvi LLC will include other reasonable provisions, including without limitation, reporting, audit and inspection rights in order to protect the applicable Production Strains and other intellectual property licensed from Amyris by Novvi LLC; and
(iii)
Novvi LLC shall not, and shall not allow any other person or entity to, reverse engineer any Production Strain, engineer any other strain from the Production Strain, use the Production Strain for any purpose other than the licensed purpose, or distribute, disclose or transfer the Production Strain or any related intellectual property to any other Affiliate or Third Party.
“ Third Party ” means any person, corporation, joint venture or other entity, other than Novvi LLC, Amyris, Cosan US, their respective Affiliates, or their respective permitted successors and assigns.
 
“ Total ” means Total Gas & Power USA, SAS, a société par acions simplifiée organized under the laws of the Republic of France, and its Affiliates.

The following terms have the meanings set forth in the Section set forth opposite such term.

Term                                  Section


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Amended and Restated Operating Agreement                 Recitals
Amyris                                    Introductory paragraph
Amyris Designate                             5.9(a)
Amyris Indemnitees                             7.2
Amyris Third Party Claim                         7.2
Arbitral Tribunal                             8.2(c)
Arbitration Chamber                            8.2(b)
Arbitration Rules                            8.2(b)
Assumption Notice                             7.3(b)
Code                                    2.6
Confidential Information                             5.10(a)
Diesel By-Products                             4.1
Disclosing Party                                5.10(a)
Effective Date                                Introductory paragraph
Exercise Notice                                 3.3(a)
License Agreement                            Introductory paragraph
Losses                                    7.1
Indemnification Claim Notice                        7.3(a)
Indemnified Party                            7.3(a)
Indemnifying Party                            7.3(a)
Novvi LLC                                Introductory paragraph
Novvi LLC Designate                             5.9(b)
Novvi LLC Indemnitees                             7.1
Novvi LLC Third Party Claim                         7.1
Parties                                    Introductory paragraph
Party                                    Introductory paragraph
Receiving Party                                5.10(a)
Representative                                5.10(a)
ROFO                                    3.1
ROFO Notice                                3.2
Selected Arbitration                             8.2(h)
Third Party Claim                            7.3(a)

ARTICLE 2
LICENSE GRANTS
2.1     License to Novvi LLC under Amyris Base Technology .
(a)     License to Make Base Oils, Additives, and Lubricants from BioFene . Subject to the terms and conditions in this License Agreement, Amyris hereby grants Novvi LLC:
(i)
an exclusive (except as to the rights retained in the scope of the Exclusivity Exceptions), worldwide, royalty-free, non-sublicensable (except as set forth in Subsections (b) and (c) below), and non-assignable license under Amyris Base Technology to Exploit Base Oils, Additives, and Lubricants derived from BioFene solely for the Lubricants Market and, as described below in this Section 2.1(a), for such customers outside the Lubricants Market for whom Amyris grants a waiver; and
(ii)
subject to Section 4.1, a non-exclusive, worldwide, royalty-free, non-sublicensable, and

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non-assignable license under Amyris Base Technology to offer for sale, sell, and import any By-Products.
Consistent with the scope of its license in (a)(i), Novvi LLC and its Affiliates shall not sell any Base Oil, Additive, or Lubricant derived from BioFene to any Third Party that Novvi LLC or its Affiliates knows has previously resold or used, or intends to resell or use, such product outside of the Lubricants Market, and Amyris acknowledges that Novvi LLC and its Affiliates will not be responsible for any resale or use of a Novvi LLC or Novvi LLC Affiliate's Base Oil, Additive, or Lubricant derived from BioFene outside of the Lubricants Market by any Third Party whom Novvi LLC or its Affiliates did not know had previously resold or used, or intended to resell or use, such product outside of the Lubricants Market.
If Novvi LLC or its Affiliate identify an opportunity to sell Base Oil derived from BioFene outside of the Lubricants Market to a potential customer that is currently using a Base Oil composed of any combinations of Base Oil Groups I-IV as defined by the American Petroleum Institute, Novvi LLC will provide written notice to Amyris of the opportunity and state the rationale for seeking a waiver to the scope of the license in Section 2.1(a)(i) regarding such opportunity.  Amyris will promptly consider such waiver request in good faith and not unreasonably withhold its approval of such request. However, if Amyris has licensed such opportunity to a Third Party or has an ongoing business relationship with such prospective customer as of the date of such notice, then declining to grant such waiver will never be considered unreasonable. If Amyris approves a waiver, it must be in writing to be effective, and then the sale of Base Oil derived from BioFene by Novvi LLC to such potential customer for such approved use, and future sales to such potential customer for such approved use, will not be a breach of its license hereunder, subject to compliance with the preceding paragraph regarding knowledge of such customer's previous or intended use or resale of the products outside such approved use or the Lubricants Market.
(b)     Sublicense Rights to Affiliates . Novvi LLC may sublicense its rights under the license granted in Subsection (a)(i) to an Affiliate of Novvi LLC; provided, that,:
(i)
Novvi LLC shall grant such sublicense to an Affiliate only while such entity is and remains an Affiliate;
(ii)
such sublicense automatically and immediately terminates upon such entity no longer being an Affiliate of Novvi LLC;
(iii)
each such sublicense to an Affiliate shall be in writing and contain terms that are consistent in all material respects with this License Agreement including confidentiality terms regarding non-disclosure and non-use of Amyris Confidential Information and provisions governing intellectual property rights and obligations;
(iv)
Novvi LLC shall only grant such a sublicense subject to terms that prohibit the Affiliate from using the sublicensed Amyris Base Technology for any purpose other than to Exploit a Base Oil, Additive, or Lubricant derived from BioFene solely for the Lubricants Market;
(v)
Novvi LLC shall reasonably monitor such sublicensed Affiliate to ensure it is not violating the prohibition in clause (iv), its confidentiality obligations, or its intellectual property obligations in a manner consistent with the procedures Novvi LLC uses to monitor its own licensees and sublicensees to ensure proper use of Novvi LLC's

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intellectual property, but no less than commercially reasonable efforts;
(vi)
Novvi LLC shall retain the right to terminate any such sublicense in the event the applicable sublicensed Affiliate violates the prohibition in clause (iv), its confidentiality obligations, or its intellectual property obligations; and
(vii)
Novvi LLC shall immediately terminate any such sublicense in the event the applicable sublicensed Affiliate violates the prohibition in clause (iv), its confidentiality obligations, or its intellectual property obligations and fails to cure such breach within a reasonable period, which, in no event, shall exceed thirty (30) days after written notice.
(c)     Limited Sublicense to Third Party Manufacturing and R&D Subcontractors . Novvi LLC may not sublicense any of its rights under the license granted in Subsection (a)(i) to Third Parties, except to a Third Party that is (x) manufacturing for Novvi LLC or an Affiliate of Novvi LLC, in a subcontractor role, a Base Oil, Additive, and/or Lubricant derived from BioFene for the Lubricants Market or (y) performing research and development for Novvi LLC or an Affiliate of Novvi LLC, in a subcontractor role, on a Base Oil, Additive, and/or Lubricant derived from BioFene for the Lubricants Market; provided, that,:
(i)
Novvi LLC shall only grant such Third Party manufacturing subcontractor a sublicense to make, solely for Novvi LLC or its Affiliates, either a Base Oil, Additive, and/or Lubricant, as the case may be, derived from BioFene solely for the Lubricants Market; shall grant such Third Party R&D subcontractor a sublicense to perform research and development, solely for Novvi LLC or its Affiliates, of Base Oils, Additives, and/or Lubricants, as the case may be, derived from BioFene solely for the Lubricants Market; and, in each case, shall prohibit the Third Party sublicensee from using the sublicensed Amyris Base Technology for any other purpose;
(ii)
each such sublicense agreement shall be in writing and contain terms that are consistent in all material respects with this License Agreement including confidentiality terms regarding non-disclosure and non-use of Amyris Confidential Information and provisions governing intellectual property rights and obligations;
(iii)
Novvi LLC shall reasonably monitor such sublicensed Third Party subcontractors to ensure they are not violating such prohibition in clause (i), their confidentiality obligations, or their intellectual property obligations in a manner consistent with the procedures Novvi LLC uses to monitor its own licensees and sublicensees to ensure proper use of Novvi LLC's intellectual property, but no less than commercially reasonable efforts;
(iv)
Novvi LLC shall retain the right to terminate any such sublicense in the event the applicable sublicensed Third Party subcontractor violates such prohibition in clause (i), its confidentiality obligations, or its intellectual property obligations; and
(v)
Novvi LLC shall immediately terminate any such sublicense in the event the applicable sublicensed Third Party subcontractor violates such prohibition in clause (i), its confidentiality obligations, or its intellectual property obligations and fails to cure such breach within a reasonable period, which, in no event, shall exceed thirty (30) days after written notice.
(d)     Limitation with regard to BioFene-derived Additives . However, notwithstanding the

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breadth of the license granted in Subsection (a)(i) or sublicense rights under Subsection (b), Novvi LLC or an Affiliate may pursue an Additive derived from BioFene under such license only if Novvi LLC's Board of Managers has first approved, pursuant to the Amended and Restated Operating Agreement, a research, development, and commercialization plan regarding the desired Additive, which plan has been prepared by the officers of Novvi LLC.
(e)     No Right to Manufacture BioFene . For clarity, under the licenses granted in Subsection (a) above, Novvi LLC has no right to make or have made BioFene under any Amyris intellectual property. The rights of Novvi LLC to make or have made BioFene are set forth in Section 2.3.
2.2     License to Amyris under Novvi LLC BioFene Transformation Technology .
(a)     License . Subject to the terms and conditions in this License Agreement, Novvi LLC hereby grants Amyris an exclusive, worldwide, royalty-free, fully paid-up, and non-assignable license under Novvi LLC BioFene Transformation Technology for any use other than to Exploit Base Oils, Additives, or Lubricants derived from BioFene for the Lubricants Market.
(b)     Sublicense Rights . Amyris may sublicense any of its rights under the license granted in Subsection (a) through multiple tiers of sub-licensees; provided, that,:
(i)
Amyris shall only grant such sublicenses subject to terms that prohibit all such sublicensees, including direct sublicensees, any sublicensees of such sublicensees, or any other sublicensee pursuant to one of the multiple tiers of such sublicenses, from using the sublicensed Novvi LLC BioFene Transformation Technology to Exploit any Base Oil, Additive, or Lubricant derived from BioFene for the Lubricants Market;
(ii)
each such sublicense agreement shall be in writing and contain terms that are consistent in all material respects with this License Agreement including confidentiality terms regarding non-disclosure and non-use of Novvi LLC's Confidential Information and provisions governing intellectual property rights and obligations;
(iii)
Amyris shall reasonably monitor such sublicensees to ensure they are not violating such prohibition in clause (i), their confidentiality obligations, or their intellectual property obligations in a manner consistent with the procedures Amyris uses to monitor its own licensees and sub-licensees to ensure proper use of Amyris's intellectual property, but no less than commercially reasonable efforts;
(iv)
Amyris shall retain the right to terminate any such sublicense in the event the applicable sublicensee violates such prohibition in clause (i), its confidentiality obligations, or its intellectual property obligations; and
(v)
Amyris shall immediately terminate any such sublicense in the event the applicable sublicensee violates such prohibition in clause (i), its confidentiality obligations, or its intellectual property obligations and fails to cure such breach within a reasonable period, which, in no event, shall exceed thirty (30) days after written notice.
2.3     License to Novvi LLC to Manufacture BioFene under Amyris BioFene Manufacturing Technology .

(a)     Non-Exclusive License to Manufacture BioFene. Amyris grants, subject to the Strain Restrictions and the conditions described below, Novvi LLC a non-exclusive, non-assignable,

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royalty-free, and non-sublicensable (except as necessary to exercise its “have made” rights using Third Party subcontractor manufacturers or Affiliates) license under Amyris BioFene Manufacturing Technology to make and have made BioFene solely to produce Novvi LLC's (and, if applicable, Novvi LLC's Affiliates') Base Oils, Additives, and Lubricants derived from BioFene for the Lubricants Market.

Amyris will, upon receipt of (i) written notice from Novvi LLC's Board of Managers that it approved Novvi LLC producing its own BioFene and (ii) Novvi LLC's plans for such production, use commercially reasonable efforts to provide Novvi LLC a one-time, site specific transfer of all technical information necessary for Novvi LLC to make BioFene using the then-current Amyris BioFene Manufacturing Technology; provided, that, prior to any technical transfer, the Parties will in good faith determine and agree upon in writing what modifications need to be made to this License Agreement with regard to implementing such license including adjusting the scope of the then-existing Amyris BioFene Manufacturing Technology (including Amyris's then-existing manufacturing process), agreeing on the scope of the actual technical transfer that will need to occur, the timing of such technical transfer, and any representations, warranties and limitations regarding the then-existing Amyris BioFene Manufacturing Technology.

(b)     Sale of Excess BioFene by Novvi LLC to Amyris .   In the event Novvi LLC produces an amount of BioFene in excess of the amount needed to make its Base Oils, Additives, and Lubricants derived from BioFene for the Lubricants Market and desires to sell the excess produced, Amyris and its Affiliates have the right to purchase, prior to any Third Party, as much of such excess BioFene as Novvi LLC desires to sell and Amyris and its Affiliates desire to purchase. For the avoidance of doubt, Novvi LLC, at its sole discretion, will make available only such quantity of excess BioFene produced that it desires to sell. Each calendar quarter, Novvi LLC will provide written notice to Amyris of the quantity of such excess BioFene that it desires to sell that quarter. If Amyris is interested in purchasing some or all of that quantity, the Parties will negotiate, in good faith and using best efforts, for a period of fifteen (15) days from Amyris' receipt of such notice a commercially reasonable price and commercially reasonable terms for the sale of the desired quantity, but in each case no worse than the price and terms in a sale of such BioFene to a Third Party. If the Parties are unable to reach agreement with the fifteen (15) day period, despite their good faith efforts, Novvi LLC will be free to sell the applicable excess BioFene to any Third Party in that calendar quarter, provided, that, such sale will be at a price and on terms which are no more favorable to such Third Party than those offered by Novvi LLC to Amyris.

2.4     No Implied or Additional Rights or Licenses . Except as specified in this License Agreement, Amyris grants no rights to Novvi LLC to use any of Amyris's Confidential Information or intellectual property. Except as specified in this License Agreement, Novvi LLC grants no rights or licenses to Amyris to use any of Novvi LLC's Confidential Information or intellectual property.
2.5     Novvi LLC Efforts in Brazil . Novvi LLC agrees it will exert commercially reasonable efforts to use the licensed technology in order to try to maintain the validity of the Patents in the Amyris Base Technology and, if licensed to Novvi LLC, in the Amyris BioFene Manufacturing Technology and any Alternative Technology, in each case in the territory of Brazil.

2.6     Effect of Bankruptcy on the Licenses . All rights and licenses granted under this Article 2 by Amyris or Novvi LLC are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code (the “ Code ”), licenses of rights to “intellectual property” as defined under Section 101 of the Code. The Parties agree that, in the event of a Party's Insolvency Event, the other Party in its capacity as a licensee under this Article 2 will, to the extent that its license is still in effect at the time of such Insolvency Event, retain and may fully exercise all of its rights and elections under the Code (or any same or similar provision in any jurisdiction other than the United States) with regard to
such license and rights, subject to payments due the licensor Party (if any) as a result of the exercise of such rights and subject to the terms and conditions of such license and rights set forth in this License Agreement.


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The Parties further agree that, in any Insolvency Event involving a Party, that the other Party will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property licensed to such licensee Party under its continuing license and all tangible embodiments of such intellectual property, and same, if not already in its possession, will be promptly delivered to the licensee Party (i) upon any such commencement of a bankruptcy proceeding upon such licensee Party's written request or (ii) if not promptly delivered under (i) above, following any rejection of this License Agreement by or on behalf of such Party ( e.g . by a bankruptcy trustee), upon written request for such transfer by the licensee Party. For the avoidance of doubt, nothing in this clause may be construed as forcing a Party to act in breach of any mandatory bankruptcy laws and regulations applicable in its jurisdiction.


ARTICLE 3
RIGHT OF FIRST OFFER REGARDING ALTERNATIVE TECHNOLOGY
3.1     Right of First Offer to Amyris's Alternative Technology . Notwithstanding the exclusivity provisions in Section 13.01 of the Amended and Restated Operating Agreement , if while Novvi LLC's licenses under Section 2.1 are in effect, Amyris (i) develops, acquires, or in-licenses an Alternative Technology and (ii) wishes to exclusively license or sell to a Third Party the use or ownership of such Alternative Technology for purposes of developing, making (having made), offering for sale, selling, or importing Base Oils, Additives, or Lubricants for the Lubricants Market, then, prior to engaging in a discussion with any Third Party or soliciting an offer from any Third Party in this respect, Amyris shall first offer Novvi LLC the right to exclusively license or acquire (subject to the Exclusivity Exceptions) use or ownership of such Alternative Technology for the development, making (having made), offering for sale, sale, and importation of Base Oils, Additives, and Lubricants solely in the Lubricants Market (“ ROFO ”); provided such ROFO does not violate the terms of any arrangement with any Third Party from whom Amyris acquired or licensed such Alternative Technology, if applicable.

For the avoidance of doubt, the foregoing ROFO obligation shall not apply to an Alternative Technology developed by Amyris in connection with activities that fall within an Exclusivity Exception.

3.2     ROFO Notice . Amyris shall promptly notify Novvi LLC in writing when it has an Alternative Technology that is subject to the ROFO (a “ ROFO Notice ”). The ROFO Notice shall include a reasonable description of the applicable Alternative Technology and the fundamental license and/or sale terms and conditions proposed by Amyris.

3.3
Exercise of the ROFO .

(a)     Due Diligence Period . Novvi LLC shall have sixty (60) days from receipt of a ROFO Notice to (i) conduct an assessment of the applicable Alternative Technology (and, for such purpose, Amyris hereby undertakes to provide to Novvi LLC all information it believes in good faith is necessary for Novvi LLC's full and complete assessment) and (ii) deliver to Amyris a written notice expressing its intention to exercise its ROFO (an “ Exercise Notice ”).

(b)     Negotiation Period . In the event it delivers an Exercise Notice per Subsection (a) above,

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Novvi LLC shall be obligated, within sixty (60) days from Amyris's receipt of the Exercise Notice, to enter into a definitive agreement with Amyris (separate from this License Agreement) regarding either an exclusive license to, or acquisition of, (subject to the Exclusivity Exceptions) the use or ownership of such Alternative Technology for the development, making (having made), offering for sale, sale, and importation of Base Oils, Additives, and Lubricants solely in the Lubricants Market and on terms and conditions consistent with those referred to in the ROFO Notice. In addition, any license granted by Amyris to Novvi LLC with regard to Alternative Technology shall be terminable upon the expiration or earlier termination of Novvi LLC's licenses under Section 2.1.

(c)     Negotiate with Third Parties . If Novvi LLC does not deliver an Exercise Notice in compliance with Subsection (a) above or is not successful in executing a definitive agreement with Amyris within the sixty (60) days in Subsection (b) above, then Amyris shall be free to solicit and negotiate with any Third Party the exclusive license or sale of such Alternative Technology, provided that (i) the economic terms offered by such Third Party shall be no less favorable to Amyris than those offered by Novvi LLC under the ROFO Notice; (ii) the fundamental business terms, including the structure of the relevant transaction ( e.g., sale, license, formation of a joint venture and contribution of the Alternative Technology), are substantially the same as those offered to Novvi LLC under the ROFO Notice; and (iii) Amyris and the Third Party have entered into a definitive agreement within one hundred and twenty (120) days after the end of the sixty (60) day period in Subsections (a) or (b) above, whichever is applicable.

3.4     Repetition of ROFO . If Amyris and the Third Party have not entered into a definitive agreement in compliance with Section 3.3(c) above, then Amyris must again comply with the provisions of the ROFO before exclusively licensing or selling to a Third Party the use or ownership of such Alternative Technology for purposes of Base Oils, Additives, or Lubricants in the Lubricants Market.

3.5     Alternative Technology Strain Restrictions . If an Alternative Technology to be exclusively licensed to Novvi LLC by Amyris under this Article 3 includes a Production Strain, the Parties hereby agree that such license granted to Novvi LLC shall be conditioned on, among other things, compliance with the Strain Restrictions.
3.6     Termination of Article 3 . Upon the expiration or earlier termination of Novvi LLC's licenses under Section 2.1, all rights and obligations of the Parties under this Article 3 automatically terminate, and this Article 3 will be of no further effect.

ARTICLE 4

AMYRIS'S RIGHT TO PURCHASE DIESEL BY-PRODUCTS
4.1     Amyris's First Right to Purchase Diesel By-Products from Novvi LLC's Manufacture of Base Oils, Additives, and Lubricants . Novvi LLC agrees that, to the extent any farnesane or diesel-related By-Products are produced (“ Diesel By-Products ”), Amyris (for itself, its Affiliates, and/or Total) has a first right to purchase such Diesel By-Products as set forth in this Section.
  
Each calendar quarter, Novvi LLC will provide written notice to Amyris (on behalf of Amyris, its Affiliates, and Total) of the quantity of Diesel By-Products that it desires to sell that quarter and of its proposed price and terms for the sale of such Diesel By-Products, which shall be at a commercially reasonable price and on commercially reasonable terms to be negotiated at the time by the Parties but in each case no worse than those in a sale of such Diesel By-Products to a Third Party. After such notice, Amyris (on behalf of itself, its Affiliates, and Total) will have fifteen (15) days to accept such

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commercially reasonable price and terms. If Amyris (on behalf of itself, its Affiliates, and Total) rejects such commercially reasonable price and terms, Novvi LLC will be free to sell such quantity of Diesel By-Products to any Third Party that calendar quarter, provided, that, such sale will be at a price and on terms which are no more favorable to such Third Party than those offered by Novvi LLC to Amyris.

Other than as set forth in this Section, Amyris (and its Affiliates and Total) have no rights to purchase any other By-Products, and Novvi LLC may, pursuant to its license in Section 2.1(a)(ii), freely offer for sale, sell, and import such other By-Products.
ARTICLE 5
INTELLECTUAL PROPERTY
5.1     Inventorship . Inventorship of all inventions and discoveries conceived, reduced to practice, discovered or made pursuant to this License Agreement, whether or not patentable, shall be determined in accordance with U.S. patent laws. Other than as set forth below, as among the Parties, ownership of all inventions and discoveries conceived, reduced to practice, discovered or made or created during the Term of this License Agreement shall be determined consistent with inventorship.
5.2     Amyris's Ownership . Amyris's intellectual property ownership rights are as follows:
(a) Amyris Base Technology, Amyris BioFene Manufacturing Technology, Amyris Inventions, and Amyris Alternative Technology . As between the Parties, a ll rights, title, and interest in and to Amyris Base Technology, Amyris BioFene Manufacturing Technology, Amyris Inventions, and Amyris's Alternative Technology are exclusively owned solely by Amyris. Novvi LLC and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Amyris Base Technology, Amyris BioFene Manufacturing Technology, or Amyris Inventions, or Amyris's Alternative Technology except to the extent the licenses described in Sections 2.1 and 2.3 or Article 3 are in place between the Parties.

(b) Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements . All rights, title, and interest in and to Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements are exclusively owned solely by Amyris. Novvi LLC will promptly disclose Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements, if any, in writing to Amyris and, without further consideration, hereby assigns to Amyris any and all rights, title and interests of Novvi LLC (and, as applicable, its Affiliates, sublicensees, contractors, agents, and employees) in and to all Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements.

Upon Amyris's reasonable request and at Amyris's expense, Novvi LLC will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to perfect the delivery, assignment, and conveyance to Amyris, its successors, assigns, and nominees, of the entire right, title, and interest in and to all Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements.

For purposes of this License Agreement, Joint BioFene Manufacturing Improvements and Novvi LLC BioFene Manufacturing Improvements will be considered Amyris BioFene Manufacturing Technology, and Novvi LLC and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Joint BioFene Manufacturing Improvements or Novvi LLC BioFene

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Manufacturing Improvements except to the extent the license described in Section 2.3 is in place between the Parties.

(c) Novvi LLC Breach Inventions . All rights, title, and interest in and to Novvi LLC Breach Inventions are also exclusively owned solely by Amyris. Novvi LLC will promptly disclose Novvi LLC Breach Inventions, if any, in writing to Amyris and, without further consideration, hereby assigns to Amyris any and all rights, title and interests of Novvi LLC (and, as applicable, its Affiliates, sublicensees, contractors, agents, and employees) in and to Novvi LLC Breach Inventions.

Upon Amyris's reasonable request and at Amyris's expense, Novvi LLC will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to perfect the delivery, assignment, and conveyance to Amyris, its successors, assigns, and nominees, of the entire right, title, and interest in and to all Novvi LLC Breach Inventions.

For purposes of this License Agreement, Novvi LLC Breach Inventions will be considered Amyris Inventions, and Novvi LLC and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Novvi LLC Breach Inventions.

5.3     Novvi LLC's Ownership . Novvi LLC's intellectual property ownership rights are as follows:
(a)     Novvi LLC BioFene Transformation Technology and Novvi LLC Inventions . As between the Parties, all rights, title, and interest in and to Novvi LLC BioFene Transformation Technology and Novvi LLC Inventions are exclusively owned solely by Novvi LLC. Amyris and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Novvi LLC BioFene Transformation Technology or Novvi LLC Inventions except to the extent the license described in Section 2.2 is in place between the Parties.

(b)     Amyris Breach Inventions . All rights, title, and interest in and to Amyris Breach Inventions are also exclusively owned solely by Novvi LLC. Amyris will promptly disclose Amyris Breach Inventions, if any, in writing to Novvi LLC and, without further consideration, hereby assigns to Novvi LLC any and all rights, title and interests of Amyris (and, as applicable, its Affiliates, sublicensees, contractors, agents, and employees) in and to Amyris Breach Inventions.

Upon Novvi LLC's reasonable request and at Novvi LLC's expense, Amyris will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to perfect the delivery, assignment, and conveyance to Amyris, its successors, assigns, and nominees, of the entire right, title, and interest in and to all Amyris Breach Inventions.

For purposes of this License Agreement, Amyris Breach Inventions will be considered Novvi Inventions, and Amyris and its Affiliates, sublicensees, contractors, agents, and employees shall have no right, license or permission to practice Amyris Breach Inventions.

5.4     Joint Inventions . Joint Inventions will be jointly owned by Amyris and Novvi LLC, and the Parties will have co-exclusive rights to use and practice Joint Inventions ( i.e., neither Party can individually grant another person or entity any exclusive rights) and without accounting.


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5.5     Semi-Annual Updates to Amyris regarding Novvi LLC BioFene Transformation Technology . Every January 15 and July 15 while Amyris's license under Section 2.2 is in effect, Novvi LLC will provide Amyris with a written update on Novvi LLC BioFene Transformation Technology. Such semi-annual updates will include a list of any Patents in the Novvi LLC BioFene Transformation Technology identified by their respective title, inventors, serial numbers, filing date, and status. Novvi LLC also agrees to copy Amyris on any official correspondence between Novvi LLC (or Novvi LLC's counsel) and any patent office regarding Patents in Novvi LLC BioFene Transformation Technology.

5.6     Semi-Annual Updates to Novvi LLC regarding Amyris Base Technology . Every January 15 and July 15 while Novvi LLC's license under Section 2.1 is in effect, Amyris will provide Novvi LLC with a written update on Amryis Base Technology. Such semi-annual updates will include a list of any Patents in the Amyris Base Technology identified by their respective title, inventors, serial numbers, filing date, and status. Amyris also agrees to copy Novvi LLC on any official correspondence between Amyris (or Amyris' counsel) and any patent office regarding Patents in Amyris Base Technology.

5.7     Semi-Annual Updates to Novvi LLC regarding Amyris BioFene Manufacturing Technology . Following the technical transfer from Amyris to Novvi LLC described in Section 2.3, every January 15 and July 15 while Novvi LLC's license under Section 2.3 remains in effect, Amyris will provide Novvi LLC with a written update on Amryis BioFene Manufacturing Technology. Such semi-annual updates will include a list of any Patents in the Amyris BioFene Manufacturing Technology identified by their respective title, inventors, serial numbers, filing date, and status. Amyris also agrees to copy Novvi LLC on any official correspondence between Amyris (or Amyris' counsel) and any patent office regarding Patents in Amyris BioFene Manufacturing Technology.

5.8     Patent Strategy and Prosecution .
(a)     Amyris's Rights . As between the Parties, Amyris shall have the sole right and discretion to: (i) determine the process for protecting any Amyris Inventions (as well as any Amyris Base Technology and any Amyris BioFene Manufacturing Technology) worldwide, including whether or not to obtain Patent protection and in what countries and (ii) at its own expense, but without obligation, prepare, file, prosecute, maintain, and defend throughout the world any and all Patents claiming or relating to the Amyris Inventions, Amyris Base Technology and Amyris BioFene Manufacturing Technology or, at any time, abandon or discontinue such activities.

Upon Amyris's reasonable request and at Amyris's expense, Novvi LLC will promptly perform (or cause, as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to allow Amyris to apply for, register, obtain, maintain, defend, and enforce any Patent claiming or relating to any Joint BioFene Manufacturing Improvements, Novvi LLC BioFene Manufacturing Improvements, or Novvi LLC Breach Inventions and/or its rights therein.

(b)     Novvi LLC's Rights . As between the Parties, Novvi LLC shall have the sole right and discretion to (i) determine the process for protecting any Novvi LLC Inventions (as well as any Novvi LLC BioFene Transformation Technology) worldwide, including whether or not to obtain Patent protection and in what countries and (ii) at its own expense, but without obligation, prepare, file, prosecute, maintain, and defend throughout the world any and all Patents claiming or relating to the Novvi LLC Inventions and Novvi LLC BioFene Transformation Technology or, at any time, abandon or discontinue such activities.

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Upon Novvi LLC's reasonable request and at Novvi LLC's expense, Amyris will promptly perform (or cause , as applicable, its Affiliates, sublicensees, contractors, agents, and employees to promptly perform) any and all acts necessary, including the execution and delivery of any and all affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documentation as may be reasonably required, to allow Novvi LLC to apply for, register, obtain, maintain, defend, and enforce any Patent claiming or relating to any Amyris Breach Invention and/or its rights therein.

(c)     Joint Inventions Rights . For each Joint Invention, the Parties will mutually select which Party shall have the sole right and discretion to (i) determine the process for protecting such Joint Invention worldwide, including whether or not to obtain Patent protection and in what countries and (ii) at its own expense, but without obligation, prepare, file, prosecute, maintain, and defend throughout the world any and all Patents claiming or relating to such Joint Invention or, at any time, abandon or discontinue such activities.
5.9     Infringement by Third Parties .
(a)     Amyris Base Technology and Amyris BioFene Manufacturing Technology . In the event either Party becomes aware of any Third Party activity that infringes or misappropriates (or is likely to infringe or misappropriate) Amyris Base Technology or Amyris BioFene Manufacturing Technology, that Party will notify the other Party promptly in writing of the actual or threatened infringement or misappropriation. Whether or not to take action against such infringement or misappropriation will be the sole right, and at the sole discretion, of Amyris or its designated representative (“ Amyris Designate ”). However, at Amyris's expense, Novvi LLC will cooperate to the extent reasonably required by Amyris or the Amyris Designate to stop such infringement or misappropriation, and, if so requested by Amyris, will join with Amyris or the Amyris Designate as a party to any action brought by Amyris or the Amyris Designate for such purpose. Amyris or the Amyris Designate will have full control over any action taken, including, without limitation, the right to select counsel, to settle on any terms it deems advisable in its discretion, to appeal any adverse decision rendered in any court, to discontinue any action taken by it, and otherwise to make any decision in respect thereto as it in its discretion deems advisable.
(b)     Novvi LLC BioFene Transformation Technology . In the event either Party becomes aware of any Third Party activity that infringes or misappropriates (or is likely to infringe or misappropriate) Novvi LLC BioFene Transformation Technology, that Party will notify the other Party promptly in writing of the actual or threatened infringement or misappropriation. Whether or not to take action against such infringement or misappropriation will be the sole right, and at the sole discretion, of Novvi LLC or its designated representative (“ Novvi LLC Designate ”). However, Amyris will cooperate to the extent reasonably required by Novvi LLC or the Novvi LLC Designate to stop such infringement or misappropriation, and, if so requested by Novvi LLC, will join with Novvi LLC or the Novvi LLC Designate as a party to any action brought by Novvi LLC or the Novvi LLC Designate for such purpose. Novvi LLC or the Novvi LLC Designate will have full control over any action taken, including, without limitation, the right to select counsel, to settle on any terms it deems advisable in its discretion, to appeal any adverse decision rendered in any court, to discontinue any action taken by it, and otherwise to make any decision in respect thereto as it in its discretion deems advisable.

5.10     Confidentiality Obligations .

(a)     Confidential Information . As used herein, “ Confidential Information ” means any and all information provided by or on behalf of a Party (“ Disclosing Party ”) to the other Party (“ Receiving Party ”) or to its Representatives between the Effective Date and the termination of this License Agreement, regardless of the form or medium of communication, that relates to the Disclosing Party's intellectual property licensed or created under this License Agreement or its activities under this License

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Agreement, in each case which information is either proprietary to the Disclosing Party or is otherwise not available to the general public. The Parties agree to treat this License Agreement as the Confidential Information of the other Party. As used herein, “ Representative ” means the officers, directors, members, shareholders, employees, attorneys, accountants, advisors, consultants, auditors, agents, contractors, and sublicensees of the applicable Party and of its Affiliates.

(b)     Obligations . Except with the prior written consent of the Disclosing Party or as specifically authorized in this License Agreement, each Receiving Party shall, and shall cause its Representatives (to the extent such persons receive any Confidential Information) to,:

(i)
maintain in confidence any and all Confidential Information;

(ii)
take reasonable precautions to protect Confidential Information;

(iii)
not disclose Confidential Information to any person or entity; and

(iv)
not make any use of such Confidential Information except for the purposes specifically authorized herein.

(c)     Permitted Disclosures . A Receiving Party may disclose Confidential Information, without the Disclosing Party's written consent, to those of its Representatives who (i) need to know such Confidential Information for the purpose of assisting such Receiving Party fulfill its obligations or exercise its rights under this License Agreement and (ii) are bound by written obligations of confidentiality and non-use substantially similar to those herein. A Receiving Party or its Affiliates may also disclose the terms of this License Agreement to actual or prospective investors, underwriters, or acquirers who need to know such Confidential Information to evaluate the Receiving Party's (or its Affiliates') business and who are bound by written obligations of confidentiality and non-use substantially similar to those herein.

(d)     Legally Required Disclosures . In addition, a Receiving Party may disclose Confidential Information (including the terms of this License Agreement), without the Disclosing Party's written consent, to the extent such disclosure is required, on advice of counsel, by Applicable Law (including pursuant to any listing agreement with, or the rules or regulations of, any national securities exchange on which any securities of such Receiving Party or any Affiliate thereof are listed or traded); provided , that the Receiving Party making such disclosure, or whose Affiliates are making such disclosure, shall notify the other Party as promptly as practicable (and if possible and legally allowed, prior to making such disclosure) and shall minimize such disclosure as much as possible and reasonably seek confidential treatment of such Confidential Information to the extent available.

(e)     Exceptions to Confidential Information . The provisions of Subsection (b) above shall not apply to, and Confidential Information shall not include, any information of a Disclosing Party that:

(i)
is or has become generally available to the public other than as a result of a disclosure by a Receiving Party or any of its Representatives in breach of this Section 5.10;

(ii)
has been independently developed by a Receiving Party (or any Affiliate thereof) without violating any of the provisions of this License Agreement or any other similar contract to which such Receiving Party or any of its Representatives, is or are bound; or

(iii)
was made available to a Receiving Party (or any Affiliate thereof), on a non-confidential basis by a Third Party who is not prohibited from disclosing such information to such

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person or entity by a legal, contractual or fiduciary obligation to the Disclosing Party or any of its Representatives.

(f)     Public Announcements . Except as required by Applicable Law or by the requirements of any national securities exchange on which the securities of a Party (or its Affiliates) are listed or traded, no Party shall make, or cause to be made, any press release or public announcement in respect of this License Agreement or otherwise communicate with any news media without the prior written consent of the other Party, and the Parties shall cooperate as to the timing and contents of any such press release or public announcement.

(g)     Duration of Obligations . Except as otherwise provided for in this Section 5.10, Confidential Information received hereunder shall be used by each Receiving Party and its Representatives solely in connection with such Receiving Party fulfilling its obligations or exercising its rights under this License Agreement. Nothing in this License Agreement shall be interpreted as vesting, in favor of any Receiving Party or any other person or entity, any right of ownership or other right in the Confidential Information of a Disclosing Party. The obligations under this Section 5.10 shall survive for two (2) years after the termination of this License Agreement.

ARTICLE 6

REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS

6.1     Representations and Warranties by Amyris . Amyris hereby represents and warrants to Novvi LLC that, as of the Effective Date,:
(a)     Organization; Good Standing . Amyris is a corporation duly organized and in good standing under the laws of Delaware and has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as is contemplated to be conducted by this License Agreement.
(b)     Corporate Authority . Amyris has the power and authority and the legal right to enter into this License Agreement and perform its obligations hereunder and has taken all necessary action on its part required to authorize the execution and delivery of this License Agreement and the performance of its obligations hereunder.
(c)     Binding Obligation . This License Agreement has been duly executed and delivered by Amyris and constitutes a legal, valid, and binding obligation of Amyris and is enforceable against it in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity, whether enforceability is considered in a proceeding at law or equity.
(d)     Consents and Approvals . All necessary consents, approvals and authorizations of all regulatory and governmental authorities and other persons or entities required to be obtained by Amyris in connection with the execution and delivery of this License Agreement and the performance of its obligations hereunder have been obtained or will be obtained prior to such performance.
(e)     No Conflicts . The execution and delivery of this License Agreement and the performance of Amyris's obligations hereunder (i) do not conflict with or violate any provision of Amyris's articles of incorporation or bylaws, (ii) do not conflict with, violate, or constitute a default of

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any contractual obligation of Amyris, or (iii), to its knowledge, do not conflict with or violate any requirement of Applicable Law.
(f)     Amyris Base Technology . Amyris owns or otherwise has all necessary rights in and to the Amyris Base Technology to grant Novvi LLC the licenses described in Sections 2.1 and 2.3.

6.2     Representations and Warranties by Novvi LLC . Novvi LLC hereby represents and warrants to Amyris that, as of the Effective Date,:
(a)     Organization; Good Standing . Novvi LLC is a limited liability company duly organized and in good standing under the laws of Delaware and has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as it is contemplated to be conducted by this License Agreement.
(b)     Corporate Authority . Novvi LLC has the power and authority and the legal right to enter into this License Agreement and perform its obligations hereunder and has taken all necessary action on its part required to authorize the execution and delivery of this License Agreement and the performance of its obligations hereunder.
(c)     Binding Obligation . This License Agreement has been duly executed and delivered by Novvi LLC and constitutes a legal, valid, and binding obligation of Novvi LLC and is enforceable against it in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity, whether enforceability is considered in a proceeding at law or equity.
(d)     Consents and Approvals . All necessary consents, approvals and authorizations of all regulatory and governmental authorities and other persons or entities required to be obtained by Novvi LLC in connection with the execution and delivery of this License Agreement and the performance of its obligations hereunder have been obtained or will be obtained prior to such performance.
(e)     No Conflicts . The execution and delivery of this License Agreement and the performance of Novvi LLC's obligations hereunder (i) do not conflict with or violate any provision of Novvi LLC's certificate of incorporation or Amended and Restated Operating Agreement, (ii) do not conflict with, violate, or constitute a default of any contractual obligation of Novvi LLC, or (iii), to its knowledge, do not conflict with or violate any requirement of Applicable Law.
6.3     DISCLAIMER OF WARRANTIES . EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 6, NEITHER PARTY MAKES ANY REPRESENTATIONS OR GRANTS ANY WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR SAFETY, ANY WARRANTY AS TO THE ACCURACY, VALIDITY OR SCOPE OF ANY PATENTS OR KNOW-HOW LICENSED HEREUNDER, AND ANY WARRANTY AS TO THE NON-INFRINGEMENT OF ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS THROUGH THE PRACTICE OF ANY PATENTS OR KNOW-HOW LICENSED HEREUNDER.



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ARTICLE 7

INDEMNIFICATION
7.1     Amyris's Indemnification Obligations . Amyris will defend, indemnify, and hold harmless Novvi LLC, its Affiliates and its and their respective members, directors, officers, employees, and agents and their respective successors, heirs, and permitted assigns (collectively, “ Novvi LLC Indemnitees ”) from and against any and all losses, damages, liabilities, fines, costs, interest and expenses (including reasonable attorneys' fees and expenses) (collectively, “ Losses ”) arising from a Third Party's claim, action, suit, or demand (or judgments or settlements arising therefrom) against a Novvi LLC Indemnity, in each case to the extent resulting from:

(i)
any breach by Amyris of this License Agreement;

(ii)
the negligent, reckless, or intentionally wrongful acts or omissions on the part of any Amyris Indemnitee in performing any activity related to this License Agreement;

(iii)
Amyris's development, making, having made, offer for sale, sale, or import of any product for which it used Novvi LLC BioFene Transformation Technology licensed to it under Section 2.2, including any claims of product liability or claims of infringement or misappropriation of a Third Party's intellectual property;

(iv)
Novvi LLC's making (have made), offer for sale, sale, or importing, in each case between the Effective Date and June 1, 2013, of any Base Oil or Lubricant for the Lubricants Market derived from BioFene using Amyris Pre-Signature Base Technology allegedly infringing or misappropriating a Third Party's intellectual property but only to the extent such alleged infringement or misappropriation is directly attributable to Novvi LLC's adherence to the Amyris Pre-Signature Base Technology and not to any deviation or modification from such process made by or on behalf Novvi LLC or a permitted sublicensee of Novvi LLC, other than a deviation or modification made by Novvi LLC at the written direction of Amyris;

(v)
if Novvi LLC is licensed under Section 2.3 to make BioFene, Novvi LLC's manufacture of BioFene allegedly infringing or misappropriating a Third Party's intellectual property, but only to the extent such alleged infringement or misappropriation is directly attributable to Novvi LLC's adherence to Amyris's then-approved BioFene manufacturing process licensed from Amyris as part of the licensed Amyris BioFene Manufacturing Technology and not to any deviation or modification from such process made by or on behalf of Novvi LLC or a permitted sublicensee of Novvi LLC, other than a deviation or modification made by Novvi LLC at the written direction of Amyris; or

(vi)
Amyris' or its Affiliates' activities prior to the Effective Date with regard to its use of Base Oils, Additives or Lubricants for the Lubricants Market, including any sampling of such products by Amyris or its Affiliates to Third Parties prior to the Effective Date (collectively (i)-(vi), each a “ Novvi LLC Third Party Claim ”);

provided that Amyris will not defend, indemnify, or hold harmless Novvi LLC Indemnities under this Section to the extent such Losses and/or Novvi LLC Third Party Claim is determined to have resulted from the causes described in Section 7.2(i)-(iv).


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7.2     Novvi LLC's Indemnification Obligations . Novvi LLC will defend, indemnify, and hold harmless Amyris, its Affiliates and its and their respective shareholders, directors, officers, employees, and agents and their respective successors, heirs, and permitted assigns (collectively, “ Amyris Indemnitees ”) from and against any and all Losses arising from a Third Party's claim, action, suit, or demand (or judgments or settlements arising therefrom) against an Amyris Indemnity, in each case to the extent resulting from:
  
(i)
any breach by Novvi LLC of this License Agreement;

(ii)
the negligent, reckless, or intentionally wrongful acts or omissions on the part of any Novvi LLC Indemnitee in performing any activity related to this License Agreement;

(iii)
except as set forth in Section 7.1(iv), Novvi LLC's development, making (have made), offer for sale, sale, or import of any Base Oil, Additive, or Lubricant derived from BioFene, including any claims of product liability or claims of infringement or misappropriation of a Third Party's intellectual property; or

(iv)
except as set forth in Section 7.1(v), Novvi LLC's manufacture of BioFene allegedly infringing or misappropriating a Third Party's intellectual property (collectively (i)-(iv), each an “ Amyris Third Party Claim ”);

provided that Novvi LLC will not defend, indemnify, or hold harmless Amyris Indemnities under this Section to the extent such Losses and/or Amyris Third Party Claim is determined to have resulted from the causes described in Section 7.1(i)-(vi).

7.3     Indemnification Procedures . The Parties' obligations under Sections 7.1 and 7.2 shall be governed by and contingent upon the following:
(a)     Notice of Claim . All indemnification claims in respect of a Novvi LLC Indemnitee or Amyris Indemnitee shall be made solely by Novvi LLC or Amyris, as applicable (each of Novvi LLC or Amyris in such capacity, the “ Indemnified Party ”). Promptly after a Novvi LLC Indemnitee or an Amyris Indemnitee receives notice of a threatened, pending, or actual Novvi LLC Third Party Claim or Amyris Third Party Claim (a “ Third Party Claim ”), the applicable Indemnified Party shall give written notice of the Third Party Claim to the Party to whom that Indemnified Party is entitled to look for indemnification pursuant to this Article 7 (the “ Indemnifying Party ”). Such written notice (an “ Indemnification Claim Notice ”) shall contain a description of the claim, the nature and amount of such Loss (to the extent that the nature and amount of such Loss is known at such time), and the basis for indemnification under this Article 7. An Indemnified Party's delay in providing, or failure to provide, an Indemnification Claim Notice will not relieve the Indemnifying Party of its obligations under this Article 7 for the Third Party Claim, except to the extent it can demonstrate that such delay or failure materially adversely affects the ability of the Indemnifying Party to defend the Third Person Claim, to cure the breach (if applicable) giving rise to such Third Person Claim, or minimize the applicable Loss. The Indemnified Party shall also furnish promptly to the Indemnifying Party copies of all papers and official documents received in respect of the Third Party Claim.
(b)     Assumption of Defense . At its option, the Indemnifying Party may assume the defense of the Third Party Claim by giving written notice to the Indemnified Party within thirty (30) days after receipt of the Indemnification Claim Notice (an “ Assumption Notice ”). Such assumption shall not be construed as an acknowledgement of liability or a waiver of any defenses by the Indemnifying Party (and the Indemnifying Party shall be reimbursed by the Indemnified Party in the case in which the Indemnified Party is not liable under this Article 7).

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(c)     Control of Defense by the Indemnifying Party . Upon giving a timely Assumption Notice to the Indemnified Party, the Indemnifying Party:
(i)
has the exclusive right, at its own expense and by counsel of its choosing (but who is reasonably satisfactory to the Indemnified Party), conduct and control the defense and the disposition or, subject to Subsection (d) below, settlement of the Third Party Claim (including all decisions relative to litigation, appeal, and settlement);
(ii)
will conduct the defense and, if applicable, settlement of such Third Person Claim in a reasonable and diligent manner;
(iii)
will keep the Indemnified Party informed on a reasonable and timely basis as to the status of such Third Party Claim to the extent the Indemnified Party is not participating in the defense;
(iv)
is not liable for the fees or expenses of counsel hired by the Indemnified Party in connection with the defense of the Third Party Claim (except in the case where the interests of the Indemnified Party and Indemnifying Party are sufficiently adverse to prohibit the representation by the same counsel of both Parties under Applicable Law, ethical rules or equitable principles); and

(v)
is not liable for any other expenses subsequently incurred by the Indemnified Party in connection with such defense, other than the Indemnified Party's reasonable out-of-pocket costs incurred in cooperating with the Indemnifying Party per Subsection (e) below.

(d)     Settlement by the Indemnifying Party . If an Indemnifying Party has assumed the defense of a Third Party Claim under Subsection (b) above, the Indemnifying Party may not settle or compromise a Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned, or delayed) unless such settlement or compromise (i) involves no payment (whether by cash, securities or other instrument), assignment, obligation, granting of a license, or admission of fault or wrongdoing by, or injunctive or other equitable relief against, the Indemnified Party and (ii) the Indemnified Party receives a comprehensive general release of all claims from the applicable Third Party. In no event will an Indemnifying Party, without the written consent of the other Party, be entitled to settle any Third Party Claim by granting a license or covenant not to sue under or with respect to the Patents or other intellectual property rights owned by the other Party. Furthermore, in the case of a Novvi LLC Third Party Claim under Section 7.1(v), Novvi LLC agrees that, if Amyris has assumed the defense of such Third Party Claim under Subsection (b) above, Novvi LLC will work together with Amyris in good faith should Amyris reasonably determine that settling such matter and/or the Parties avoiding additional such Third Party Claims is to modify the BioFene manufacturing process that is both licensed to Novvi LLC and used by Amyris for its own BioFene manufacturing.

(e)     Indemnified Party's Cooperation . If an Indemnifying Party has assumed the defense of a Third Party Claim under Subsection (b), the Indemnified Party shall, and shall cause each of its Novvi LLC Indemnitees or Amyris Indemnitees (as applicable), to reasonably cooperate with the Indemnifying Party, mitigate potential Losses, and furnish such records, information and testimony, provide such witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours by the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party Claim and making the Indemnified Party and its Novvi LLC Indemnitees or Amyris Indemnitees (as applicable) available on a

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mutually convenient basis to provide additional information and explanation of any records or information provided. In addition, if an Indemnifying Party has assumed the defense of a Third Party Claim under Subsection (b), the Indemnified Party may employ separate counsel to participate in the defense of such Third Party Claim, but such counsel will be at the Indemnified Party's sole expense.     
(f)     Expenses . Any reasonable and verifiable costs and expenses incurred by the Indemnified Party in connection with a Third Party Claim and reimbursable as set forth this Article 7 shall be reimbursed on a calendar quarter basis by the Indemnifying Party, without prejudice to the Indemnifying Party's right to contest the Indemnified Party's right to indemnification and subject to refund in the event the Indemnifying Party is ultimately held not to be obligated to defend, indemnify, or hold harmless the Indemnified Party under this Article 7.
(g)      Breach by the Indemnifying Party of its Article 7 Obligations . If the Indemnifying Party denies its obligations under this Article 7, fails to timely provide an Assumption Notice with regard to a Third Party Claim, or fails to diligently defend, indemnify, and hold harmless such Third Party Claim throughout the period that such claim exists, then its right to defend that Third Party Claim shall immediately terminate upon written notice from the Indemnified Party, and the Indemnified Party may assume the defense of, and settle, such claim with counsel of its own choice and on such terms as it deems reasonably appropriate, with written notice to the Indemnifying Party but without any obligation to obtain the consent of the Indemnifying Party. The Indemnifying Party will be obligated to indemnify and hold harmless the Indemnified Party for the costs of such defense and settlement if it is determined that the Indemnifying Party breached its obligations under this Article 7 with regard to such Third Party Claim and that the Third Party Claim is subject to the indemnification provisions of this Article 7. 
7.4     Disclaimer of Consequential Damages . EXCEPT FOR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE OR SPECIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE), EVEN IF SUCH PARTY WAS ADVISED OR OTHERWISE AWARE OF THE LIKELIHOOD OF SUCH DAMAGES AND REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED , HOWEVER , THAT THE FOREGOING DISCLAIMER DOES NOT APPLY TO OR LIMIT EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS ARTICLE 7 WITH REGARD TO THIRD PERSON CLAIMS.
7.5     Insurance . While a Party's license(s) under this License Agreement are in effect and for three (3) years thereafter, such Party shall have and maintain such type and amounts of liability insurance covering its activities under this License Agreement as is normal and customary in such Party's industry for parties similarly situated, and such Party shall upon request provide the other Party a certificate confirming such insurance is in place.


ARTICLE 8

DISPUTE RESOLUTION

8.1     Governing Law . This License Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law or of choice of law thereof (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law, which shall apply to this License Agreement). The Parties

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agree to exclude the application to this License Agreement of the United Nations Convention on Contracts for the International Sale of Goods.

8.2     Binding Arbitration .

(a)     Informal Resolution . In the event of any dispute between the Parties involving this License Agreement, such dispute shall be governed by and resolved subject to this Article 8. Notwithstanding anything contained in this License Agreement, the Parties undertake to use their reasonable efforts to amicably resolve by mutual negotiation of their chief executive officers (or their designees) any disputes between themselves involving this License Agreement.

(b)     Submit to AAA Arbitration . In case such mutual agreement is not reached under Subsection (a) above within thirty (30) days after submission of the dispute to the Parties' chief executive officers (or their designees), either Party, subject to Subsection (i) below with regard to Patent disputes, may refer the dispute to binding arbitration under the then-existing rules (“ Arbitration Rules ”) of the American Arbitration Association (“ Arbitration Chamber ”), which will exclusively and finally settle such dispute. The Arbitration Rules are deemed to be incorporated by reference into this License Agreement, except as such Arbitration Rules may be modified herein or by subsequent mutual agreement by the Parties. The arbitration proceedings filed based on this License Agreement shall be administered by the Arbitration Chamber. Any such arbitration shall be conducted in accordance with, and subject in all respect to, the following: For the avoidance of doubt, this Article 8 equally binds all Parties to this License Agreement, and such Parties hereby agree to submit to and comply with all the terms and conditions of this Article 8, which shall be in full force and effect irrevocably, and subject to specific performance. Unless otherwise agreed in writing, the Parties shall continue to diligently perform their respective duties and obligations under this License Agreement while an arbitral proceeding is pending.

(c)     Selection of the Arbitral Tribunal . Each arbitration under this Article 8 will be settled by a panel of three (3) arbitrators. Each Party shall nominate one arbitrator in accordance with the Arbitration Rules, and the two arbitrators so nominated shall nominate jointly a third arbitrator, who shall serve as the chair of the arbitral tribunal (“ Arbitral Tribunal ”), within fifteen (15) days from the receipt of a communication from the Arbitration Chamber by the two previously nominated arbitrators. If any arbitrator has not been nominated within the time limits specified herein and/or in the Arbitration Rules, as applicable, such appointment shall be made by the Arbitration Chamber upon the written request of either Party within fifteen (15) days of such request. If at any time a vacancy occurs in the Arbitral Tribunal, the vacancy shall be filled in the same manner and subject to the same requirements as provided for the original appointment to that position.

(d)     Location of the Arbitration . The place of arbitrations shall be the city of New York, New York, U.S.A., where the award(s) shall be rendered, and all arbitrations shall be conducted in English.

(e)     Arbitration Decision . An arbitration award shall be final, unappealable and binding on the Parties, their successors and assignees, who agree to comply with it and spontaneously and expressly waive any form of appeal, except for the request for fraud, correction of material error or clarification of uncertainty, doubt, contradiction or omission of the arbitration award. If necessary, an arbitration award may be performed in any court that has jurisdiction or authority over a Party or its assets. The arbitration award will include the distribution of costs, including reasonable attorney's fees and reasonable expenses as the Arbitral Tribunal sees fit.


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(f)     Exclusive Dispute Resolution Process; Exceptions . The Parties are fully aware of all terms and effects of the arbitration provisions herein agreed upon and irrevocably agree that arbitration hereunder is the only form of resolution of any disputes arising between themselves involving this License Agreement, except as expressly set forth to the contrary in this Section 8.2. Without prejudice to the validity of these arbitration provisions, either Party may seek judicial assistance and/or relief, if and when necessary, for the sole purposes of:

(i)
executing obligations that admit, forthwith, specific performance;

(ii)
obtaining coercive or precautionary measures or procedures of a preventive, provisional or permanent nature, as security for the arbitration to be commenced or already in course between the Parties and/or to ensure the existence and efficacy of the arbitration proceeding; or

(iii)
fraud, correction of material error or clarification of uncertainty, doubt, contradiction or omission of the arbitration award; or

(iv)
obtaining measures of a mandatory and specific nature;

it being understood that, upon accomplishment of the mandatory or specific enforcement procedures sought, the dispute shall be returned to the Arbitral Tribunal to be established or already established, as applicable, full and exclusive authority to decide on all and any issues, whether related to procedure or merit, which has caused the mandatory or specific enforcement claim, with the respective judicial proceeding being interrupted until the partial or final decision of the Arbitral Tribunal. The Parties agree that irreparable damage would occur in the event any provision of this License Agreement was 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 in equity.

For the measures indicated in (i) through (iv) above, the Parties elect any state or U.S. federal court located in the city of New York, New York, U.S.A., to the exclusion of any other courts, and the Parties hereby irrevocably submit to the exclusive jurisdiction of any state or U.S. federal court located within the City of New York, New York, U.S.A. over any such action. The Parties hereby irrevocably waive, to the fullest extent permitted by Applicable Law, any objection which they may now or hereafter have to the laying of venue of any such action brought in such court or any defense of inconvenient forum for the maintenance of such action. The filing of any measure under this Subsection (f) does not entail any waiver to the arbitration under this Article 8 or to the full jurisdiction of the Arbitral Tribunal.

(g)     Confidentiality . The Parties and their respective Representatives, the witnesses, the Arbitral Tribunal, the Arbitration Chamber and its secretariat agree to treat the existence, content, awards and decisions relating to an arbitration proceeding hereunder, together with all the materials, information and testimony used therein or created for the purposes thereof, as well as other documents produced or disclosed by each Party during the arbitration proceeding, as Confidential Information of the other Party, subject to the obligations and exceptions in Section 5.10.

(h)     Consolidation with Amended and Restated Operating Agreement Arbitrations . In order to facilitate the comprehensive resolution of related disputes between the Parties under this License Agreement and the Amended and Restated Operating Agreement, any or all such disputes may be brought in a single arbitration under the following circumstances and conditions: If one or more arbitrations are already pending between the Parties hereunder or under the Amended and Restated Operating Agreement and a new dispute arises between the Parties under any of said agreements or a subsequently filed arbitration is brought between the Parties under any said agreements, then a Party

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may request that such new dispute or any subsequently filed arbitration be consolidated into any prior pending arbitration. Within twenty (20) days of a request to consolidate, the Parties shall select one of the prior pending arbitrations into which the new dispute or subsequently filed arbitration may be consolidated (“ Selected Arbitration ”). If the Parties are unable to agree on the Selected Arbitration within such twenty (20) day period, then the Arbitration Chamber shall indicate the Selected Arbitration within twenty (20) days of a written request by a Party. If the Arbitration Chamber fails to indicate the Selected Arbitration within the 20-day time limit indicated above, the arbitration first initiated shall be considered the Selected Arbitration. The new dispute or subsequently filed arbitration shall be so consolidated, provided that the Arbitral Tribunal for the Selected Arbitration determines that: (i) the new dispute or subsequently filed arbitration presents significant issues of law or fact common with those in the Selected Arbitration; (ii) neither Party would be unduly harmed in the new dispute or in the Selected Arbitration; and (iii) consolidation under these circumstances would not result in undue delay for the Selected Arbitration. Any such order of consolidation issued by the Arbitral Tribunal shall be final and binding upon the Parties. The Parties waive any right they may have to appeal or to seek interpretation, revision or annulment of such order of consolidation under the Arbitration Rules and/or the Applicable Law in any court. The Arbitral Tribunal for the Selected Arbitration into which a new dispute or subsequently filed arbitration is consolidated shall serve as the Arbitral Tribunal for the consolidated arbitration.

(i)     Exception for Patent-related Disputes . In the event that a dispute arises with respect to the inventorship, scope, ownership, validity, enforceability, revocation or infringement of a Patent and such dispute cannot be resolved by the Parties in accordance with Subsection (a) above, then, unless otherwise agreed by the Parties in writing, such dispute will not be submitted to arbitration under this Section 8.2, and either Party may initiate litigation solely in a court of competent jurisdiction in the country of issuance of the Patent that is the subject of the dispute.

8.3     Service of Process . Each Party agrees that, in any dispute, claim, action, suit or proceeding between the Parties in connection with this License Agreement that, per this License Agreement or Applicable Law, may be brought in a court, process may be served on a Party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that service of process on such Party at the location, and as provided, in Section 10.10 shall be deemed effective service of process on such Party. Nothing herein shall affect the right of either Party to serve legal process in any other manner permitted by Applicable Law or at equity.

8.4     Waiver of Jury Trial . WITH RESPECT TO ANY DISPUTE, CLAIM, ACTION, SUIT OR PROCEEDING BETWEEN THE PARTIES IN CONNECTION WITH THIS LICENSE AGREEMENT THAT, PER THIS LICENSE AGREEMENT OR APPLICABLE LAW, MAY BE BROUGHT IN A COURT, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY JURY AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH DISPUTE, CLAIM, ACTION, SUIT OR PROCEEDING.


ARTICLE 9

TERM AND TERMINATION

9.1     Term of the License Agreement . The term of this License Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all licenses granted pursuant to Sections 2.1, 2.2, and 2.3.


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9.2     Initial Term of the Licenses .

(a)     Novvi LLC's Licenses in Section 2.1 . The licenses granted to Novvi LLC in Section 2.1 will be effective as of the Effective Date and will continue, unless earlier terminated per this Article 9, until (i) with respect to any Know-How in the Amyris Base Technology, the twentieth (20 th ) anniversary of the Effective Date and (ii) with respect to each Patent in the Amyris Base Technology, the twentieth (20 th ) anniversary of the Effective Date or the expiration or invalidation of the applicable Patent, whichever is sooner.

(b)     Novvi LLC's License under Section 2.3 . If Amyris grants Novvi LLC a license under Section 2.3, then such license will be effective upon the date Amyris grants it per the terms of Section 2.3 and will continue, unless earlier terminated per this Article 9, until (i) with respect to any Know-How in the Amyris BioFene Manufacturing Technology, the twentieth (20 th ) anniversary of the Effective Date and (ii) with respect to each Patent in the Amyris BioFene Manufacturing Technology, the twentieth (20 th ) anniversary of the Effective Date or the expiration or invalidation of the applicable Patent, whichever is sooner.

(c)     Amyris's License in Section 2.2 . The license granted to Amyris in Section 2.2 will be effective as of the Effective Date and will continue, unless earlier terminated per this Article 9, until (i) with respect to any Know-How in the Novvi LLC BioFene Transformation Technology, the twentieth (20 th ) anniversary of the Effective Date and (ii) with respect to each Patent in the Novvi LLC BioFene Transformation Technology, the twentieth (20 th ) anniversary of the Effective Date or the expiration or invalidation of the applicable Patent, whichever is sooner.

9.3     Extend the Term of Licenses . If a license granted to Novvi LLC in Section 2.1 or under Section 2.3, or to Amyris under Section 2.2, has not been earlier terminated under this Article 9, the Parties agree to decide, no later than the eighteenth (18 th ) anniversary of the Effective Date, whether or not to extend the term of such license(s) set forth in Section 9.2(a)-(c) beyond the twentieth (20 th ) anniversary of the Effective Date. If the Parties agree to extend the term of such licenses to Novvi LLC and/or Amyris, such extension shall be set forth in writing signed by both Parties, but such licenses will still be subject to earlier termination under this Article 9.

9.4     Expiration of a Novvi LLC License . Upon the expiration of the term (as may be extended per Section 9.3) of a license granted to Novvi LLC in Section 2.1 or under Section 2.3 if such license was not earlier terminated,

(i)    such expired license will immediately cease;

(ii)
Novvi LLC will have no rights to or under any intellectual property or Confidential Information of Amyris, unless, at the time, it continues to have another unexpired and un-terminated license(s) under this License Agreement, in which case such unexpired and un-terminated license(s) of Novvi LLC will continue unaffected, as will this License Agreement with regard to such unexpired and un-terminated license(s);

(iii)
any sublicense Novvi LLC may have granted an Affiliate or Third Party under the expired license automatically terminates;

(iv)
Section 2.1 or 2.3 (whichever is applicable to the expired license) and Article 3 (if the expired license had been granted under Section 2.1) automatically terminate;

(v)
Novvi LLC, if upon such expiration it has no more licenses under this License

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Agreement, will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

(vi)
Amyris's license under Section 2.2 will continue unaffected, as will this License Agreement with regard to such license.

9.5     Expiration of Amyris License . Upon the expiration of the term (as may be extended per Section 9.3) of the license granted to Amyris in Section 2.2,

(i)    such expired license will immediately cease;

(ii)
Amyris will have no rights to or under any intellectual property or Confidential Information of Novvi LLC;

(iii)
any sublicense Amyris may have granted an Affiliate or Third Party under the expired license automatically terminates;

(iv)
Section 2.2 automatically terminates;

(v)
Amyris will remain obligated to perform its obligations pursuant to this License Agreement; and

(vi)
Novvi LLC's licenses under Sections 2.1 and 2.3 will continue unaffected, as will this License Agreement with regard to such licenses.

9.6     Uncured Material Breach by Novvi LLC . If Novvi LLC materially breaches this License Agreement and does not cure such breach within sixty (60) days after receiving written notice from Amyris of such breach, Amyris may, with another written notice to Novvi LLC, immediately terminate all of the licenses granted to Novvi LLC under this License Agreement. If, per this Section, Amyris terminates Novvi LLC's licenses under this License Agreement, then, upon such termination,:

(i)
Novvi LLC will have no rights to or under any intellectual property or Confidential Information of Amyris;

(ii)
any sublicense Novvi LLC may have granted an Affiliate or Third Party automatically terminates;

(iii)
Sections 2.1 and 2.3 and Article 3 automatically terminate;

(iv)
Novvi LLC will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

(v)
Amyris's license under Section 2.2 will continue unaffected, as will this License Agreement with regard to such license.

Termination under this Section is not Amyris's exclusive remedy for a Novvi LLC breach but is in addition to any other rights or remedies Amyris may have under this License Agreement or Applicable Law for such breach.

9.7     Uncured Material Breach by Amyris . If Amyris materially breaches this License

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Agreement and does not cure such breach within sixty (60) days after receiving written notice from Novvi LLC of such breach, Novvi LLC may, with another written notice to Amyris, immediately terminate the license granted to Amyris under this License Agreement. If, per this Section, Novvi LLC terminates Amyris's license under this License Agreement, then, upon such termination,:

(i)
Amyris will have no rights to or under any intellectual property or Confidential Information of Novvi LLC;

(ii)
any sublicense Amyris may have granted an Affiliate or Third Party under the license automatically terminates;

(iii)
Section 2.2 automatically terminates;

(iv)
Amyris will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

(v)
Novvi LLC's licenses under Sections 2.1 and 2.3 will continue unaffected, as will this License Agreement with regard to such licenses.

9.8     Event of Dissolution of Novvi LLC . Upon the occurrence of an event described in Section 11.03 of the Amended and Restated Operating Agreement that triggers dissolution of Novvi LLC and Novvi LLC is dissolved and wound up:

(i)
all of the licenses granted to Novvi LLC under this License Agreement, if not previously expired or terminated, will automatically terminate;

(ii)
Novvi LLC will have no rights to or under any intellectual property or Confidential Information of Amyris;

(iii)
any sublicense Novvi LLC may have granted an Affiliate or Third Party automatically terminates; and

(iv)
Sections 2.1 and 2.3 and Article 3 automatically terminate (if not previously terminated).

9.9     Insolvency Event for Novvi LLC . Upon the occurrence of an Insolvency Event for Novvi LLC:

(i)
all of the licenses granted to Novvi LLC under this License Agreement, if not previously expired or terminated, will automatically terminate;

(ii)
Novvi LLC will have no rights to or under any intellectual property or Confidential Information of Amyris;

(iii)
any sublicense Novvi LLC may have granted an Affiliate or Third Party automatically terminates;

(iv)
Sections 2.1 and 2.3 and Article 3 automatically terminate (if not previously terminated or expired);

(v)
Novvi LLC will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and


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(vi)
Amyris's license under Section 2.2 will continue unaffected per Section 2.6, as will this License Agreement with regard to such license.

9.10     Insolvency Event for Amyris . Upon the occurrence of an Insolvency Event for Amyris:

(i)
the license granted to Amyris under this License Agreement, if not previously expired or terminated, will automatically terminate;

(ii)
Amyris will have no rights to or under any intellectual property or Confidential Information of Novvi LLC;

(iii)
any sublicense Amyris may have granted an Affiliate or Third Party under the license automatically terminates;

(iv)
Section 2.2 automatically terminates (if not previously terminated or expired);

(v)
Amyris will remain obligated to perform its obligations in Articles 5, 7, 8, and 10; and

(vi)
Novvi LLC's licenses under Sections 2.1 and 2.3 will continue unaffected per Section 2.6, as will this License Agreement with regard to such licenses.

9.11     Surviving Provisions . Notwithstanding anything to the contrary, in the event that this License Agreement expires or is terminated, the following provisions, and the Parties' respective rights and obligations under them, will survive such circumstances: Article 1, Sections 5.1, 5.2, 5.3, 5.4, 5.8, and 5.10 (for the time period set forth in Section 5.10), Article 7, Article 8, and Article 10, and this Section.


ARTICLE 10

MISCELLANEOUS

10.1     Compliance with Law . With respect to the performance of this License Agreement and the activities contemplated by this License Agreement, each Party shall comply with all Applicable Laws.

10.2     No Conflicting Rights . Neither Party will grant any license, right, or encumbrance to any Affiliate or Third Party that would conflict with the licenses or rights granted hereunder or enter into any agreement that would impair such Party's ability to perform its obligations under this License Agreement.

10.3     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 License Agreement and to consummate all of the transactions contemplated by this License Agreement.

10.4     Expenses .  Each Party shall be responsible for and bear all of its own costs and expenses

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(including but not limited to any attorneys' fees, accountants' fees, or financial advisors' fees or any prior commitment in respect thereof) with regard to the negotiation and consummation of the transactions contemplated by this License Agreement. 

10.5     Relationship of the Parties.  Each Party is an independent contractor relative to the other Party under this License Agreement. This License Agreement is not a partnership agreement, and nothing in this License Agreement shall be construed to establish a relationship of co-partners or joint venturers between the Parties.  No employee or representative of a Party, per this License Agreement, shall have any authority to bind or obligate the other Party or to create or impose any contractual or other liability on the other Party.

10.6     No Third Party Beneficiaries. Except with regard to the Novvi LLC Indemnitees and Amyris Indemnitees under Article 7 and Total with regard to Section 4.1, all rights, benefits, and remedies under this Licensee Agreement are solely intended for the benefit of the Parties and their respective permitted successors and assigns. No Third Party (except Novvi LLC Indemnitees and Amyris Indemnitees with regard to their rights, benefits and remedies Article 7 and Total with regard to Section 4.1) shall have any rights whatsoever to enforce any obligation contained this License Agreement, seek a benefit or remedy for any breach, or take any other action relating to this License Agreement under any legal or equitable theory.

10.7     Amendments and Waivers. This License Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all Parties or, in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof; nor shall any waiver by a Party of any term or condition of this License Agreement in any one or more instances, be deemed to be or construed as a waiver of the same or any other term or condition of this License Agreement on any future occasion.

10.8     Assignment . Other than its sublicensing rights under Section 2.1 and potentially under Section 2.3, Novvi LLC may not assign or delegate, in whole or in part, this License Agreement or any of its rights or obligations under this License Agreement without the prior written consent of Amyris, such consent not to be unreasonably withheld. In addition to its sublicense rights under Section 2.2, Amyris may, without Novvi LLC's consent, assign or delegate, in whole or in part, this License Agreement or any of its rights or obligations under this License Agreement to (i) an Affiliate but only while such Affiliate remains an Affiliate and if Amyris remains responsible for such Affiliate's performance of the License Agreement, (ii) a buyer of all or substantially all of Amyris's assets as long as such buyer delivers a writing expressly agreeing to assume such performance, or (iii) a surviving entity with whom Amyris is merged as long as such surviving entity delivers a writing expressly agreeing to assume such performance. Any assignment or delegation or attempted assignment or delegation not in accordance with this Section 10.8 shall be null and void. This License Agreement shall be binding upon and inure solely to the benefit of the Parties and their permitted successors and assigns.

10.9    S everability .  If any provision of this License Agreement should be held invalid, illegal or unenforceable in any jurisdiction, the Parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. Nothing in this License Agreement shall be interpreted so as to require a Party to violate any Applicable Law.


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10.10     Notices .  All notices, consents, claims, waivers, requests and other communications hereunder shall be in writing and shall be delivered in person, sent by overnight courier (e.g., Federal Express), facsimile transmission or posted by registered or certified mail, return receipt requested, with postage prepaid, to the following address of each Party:

If to Amyris:

Amyris, Inc.
5885 Hollis Street, Suite 100
Emeryville, CA 94608
Attn: General Counsel
Fax: (510) 225-2645

If to Novvi LLC:

Novvi LLC
5885 Hollis Street
Emeryville, CA 94608
Attn: President

with a copy to, but only for such time as Cosan US remains a member of Novvi LLC, (but which shall not constitute notice):

Cosan US, Inc.
2711 Centerville Road, Suite 400
Wilmington, Delaware 19808
Attn: President
Fax: ______________________

Cosan Lubrificantes e Especialidades S.A.
Rua Victor Civita, 77 - Edifício 6 / Bloco 1 - 4º andar
Barra da Tijuca - Rio de Janeiro - RJ
CEP 22775-905 Brazil
Attn: Chief Executive Officer
Fax: ______________________

or to such other address or addresses as each Party may from time-to-time designate by notice as provided herein.  Any such notice shall be deemed given (i) when actually received when so delivered personally or by overnight courier or (ii) if mailed, other than during a period of general discontinuance or disruption of postal service due to strike, lockout or otherwise, on the fifth (5 th ) day after its postmarked date thereof or (iii) if sent by facsimile transmission on the date sent if such day is a business day or the next following business day if such day is not a business day. 

10.11     Entire Agreement .  This License Agreement sets forth all the covenants, promises, agreements, warranties, representations, conditions and understandings between the Parties and supersedes and terminates all prior agreements and understandings between the Parties relating to the subject matter hereof.  There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties other than as set forth in this License Agreement that relate to the subject matter hereof. 

10.12     Interpretation .  When a reference is made in this License Agreement to Articles,

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Sections, or Subsections, such reference shall be to an Article, Section, or Subsection to this License Agreement unless otherwise indicated.  The words “include,” “includes,” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.  The headings and captions in this License Agreement are for convenience and reference purposes only and shall not be considered a part of or affect the construction or interpretation of any provision of this License Agreement.  Words of any gender include the other gender, and words using the singular or plural number also include the plural or singular number, respectively.  Each Party acknowledges and agrees it has had the opportunity to draft, review and edit the language of this License Agreement and that no presumption for or against any Party arising out of drafting all or any part of this License Agreement will be applied in any controversy, claim or dispute relating to, in connection with or involving this License Agreement. Accordingly, the Parties hereby waive the benefit of any rule of Applicable Law, including California Civil Code Section 1654 and any successor or amended statute, or any legal decision that would require that in cases of uncertainty, the language of a contract should be interpreted most strongly against the party who drafted such language.

10.13     Counterparts .  This License Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This License Agreement may be executed by facsimile or other electronic signatures (including exchange of emailed pdf), and such signatures shall be deemed to bind each Party as if they were original signatures.

THIS LICENSE AGREEMENT is hereby executed as of the Effective Date by the authorized representatives of the Parties.

AMYRIS, INC.    NOVVI LLC

/s/ John Melo          /s/ John Melo    

By: John Melo         By: John Melo    

Title: C.E.O.         Title: Manager    

/s/ Lineu Paulo Moran Filho    

By: Lineu Paulo Moran Filho    

Title: Manager    

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March 30, 2011


Re: Offer of Employment with Amyris, Inc.

Dear Gary:

On behalf of Amyris, Inc. (“Amyris”), I am delighted to offer to you employment with Amyris. If you accept this offer and satisfy the conditions of acceptance set forth herein, your employment with Amyris will commence on May 16, 2011, under the following terms:

Position
You will be employed full-time by Amyris initially as a Senior Corporate Counsel reporting to Valerie Pierce, Vice President, Senior Transactional Counsel.

Salary
Your base salary will be $210,000 per year ($17,500 per month) payable in accordance with Amyris' regular payroll schedule which is currently semi-monthly. Your salary will be subject to adjustment from time to time pursuant to Amyris' employee compensation policies then in effect.

Bonus
You will be eligible for a performance based bonus. Subject to the approval of the Board of Directors or the relevant committee of the Board of Directors, your annual bonus target will be up to twenty percent (20%) of your earned base salary. Such bonus will be payable provided that (i) you achieve certain performance objectives which shall be established during the first month of your employment with Amyris, (ii) you are still employed by Amyris at year-end and when the bonus is paid out. Such bonus shall be paid no later than March 15 of the year following the year in which the bonus is earned.

Benefits
You will be eligible to participate in the employee benefits and benefit plans that are available to full-time employees of Amyris. Currently, these include (i) 12 paid holidays, (ii) 3 weeks of paid vacation (pro-rated by hiring date), (iii) up to 6 days of paid sick leave per year (pro-rated by hiring date), (iv) medical insurance, (v) dental insurance, (vi) supplemental health and flexible spending accounts, (vii) group term life insurance, (viii) accidental death & disability insurance, (ix) long-term disability insurance, and (x) 401K plan. You will also be eligible to receive paid access to gym facilities. The terms of your benefits will be governed by the applicable plan documents and Amyris' company policies. Enclosed is an Employee Benefit Overview.





Equity
Amyris will recommend to its Board of Directors or the relevant committee of the Board of Directors that you be granted an option to purchase 30,000 shares of common stock of Amyris at the fair market value of the common stock on the date of grant, which will be a date following approval determined in accordance with Amyris' then-current equity award granting policy. Such shares would vest as follows: (i) twenty-five percent (25%) upon completion of your twelfth (12 th ) month of employment, and (ii) the balance in a series of thirty-six (36) equal monthly installments upon completion of each additional month of employment with Amyris thereafter. Any option(s) granted to you will be subject to the then-current terms and conditions of Amyris' employee stock option plan and agreement.

Amyris' Company Policies
As an employee of Amyris, you will be subject to, and expected to comply with its policies and procedures, personnel and otherwise, as such policies are developed and communicated to you.

“At-Will” Employment
Employment with Amyris is “at-will”. This means that it is not for any specified period of time and can be terminated by you or by Amyris at any time, with or without advance notice, and for any or no particular reason or cause. It also means that your job duties, title and responsibility and reporting level, compensation and benefits, as well as Amyris' personnel policies and procedures, may be changed at any time in the sole discretion of Amyris. However, the “at-will” nature of your employment shall remain unchanged during your tenure as an employee of Amyris and may not be changed, except in an express writing signed by you and by an Amyris Executive.

Full-Time Service to Amyris
The Company requires that, as a full-time employee, you devote your full business time, attention, skills and efforts to the tasks and duties of your position as assigned by the Company. If you wish to request consent to provide services (for any or no form of compensation) to any other person or business entity while employed by Amyris, you must first receive permission from an Amyris Executive.

Conditions of Offer
In order to accept this offer, and for your acceptance to be effective, you must satisfy the following conditions:

•
You must provide satisfactory documentary proof of your identity and right to work in the United States of America on your first day of employment.

•
You must agree in writing to the terms of the enclosed Proprietary Information and Inventions Agreement (“ PIIA ”) without modification.

•
You must consent to, and Amyris must obtain satisfactory results from, reference and background checks. Until you have been informed in writing by the Company that such checks have been completed and the results satisfactory, you may wish to defer reliance on this offer.





•
You must agree in writing to the terms of the enclosed Mutual Agreement to Binding Arbitration (“ Arbitration Agreement ”) without modification.

By signing and accepting this offer, you represent and warrant that: (i) you are not subject to any pre-existing contractual or other legal obligation with any person, company or business enterprise which may be an impediment to your employment with, or your providing services to, Amyris as its employee; and (ii) you have not and shall not bring onto Amyris' premises, or use in the course of your employment with Amyris, any confidential or proprietary information of another person, company or business enterprise to whom you previously provided services.
Entire Agreement
Provided that the conditions of this offer and your acceptance are satisfied, this letter together with the enclosed PIIA and Arbitration Agreement (collectively, the “ Offer Documents ”) shall constitute the full and complete agreement between you and Amyris regarding the terms and conditions of your employment. The Offer Documents cancel, supersede and replace any and all prior negotiations, representations or agreements, written and oral, between you and Amyris or any representative or agent of Amyris regarding any aspect of your employment. Any change to the terms of your employment with Amyris, as set forth in this letter, must be in an individualized writing to you, signed by Amyris to be effective.

Please confirm your acceptance of this offer, by signing and returning the enclosed copy of this letter as well as the PIIA and Arbitration Agreement to Neevee Phamle, Human Resources Coordinator by April 6, 2011. If not accepted by you as of that date, this offer will expire. We look forward to having you join Amyris. If you have any questions, please do not hesitate to contact me at (510) 740-7413.

Sincerely,

/s/ Julia Tran
Julia Tran
Vice President of Human Resources



I HAVE READ AND ACCEPT THIS EMPLOYMENT OFFER:

/s/Gary Loeb          4/5, 2011    
GARY LOEB                    Date




Enclosures
Proprietary Information and Inventions Agreement
Mutual Agreement to Arbitrate
Employee Benefits Overview







May 31, 2012

Re: Amendment to Offer Letter

Dear Gary:

This letter amends the offer letter between you and Amyris, Inc. (“Amyris”) dated March 30, 2011 (the “Original Offer Letter”). The Original Offer Letter shall be amended by adding the following provisions (and, as amended, shall be referred to herein as this “Agreement”):

1.
Termination of Employment . If you resign your employment with Amyris or if Amyris terminates your employment for Cause (as defined below) at any time, you will receive your base salary as well as any accrued but unused vacation (if applicable) earned through the effective resignation or termination date and no additional compensation. If Amyris terminates your employment for any reason other than Cause, it will give you written notice of termination, any base salary and accrued but unused vacation that is earned through the effective termination date and, conditioned on your (i) signing and not revoking a release of any and all claims, in a form prescribed by Amyris and by no later than sixty (60) days after your termination date, and (ii) returning to Amyris all of its property and confidential information that is in your possession, you will receive the following

(A)
Continuation of your base salary for twelve (12) months beyond the effective termination date, payable in accordance with the regular payroll practices of Amyris, provided that these payments will be terminated as of the date you commence employment with another employer or engage or participate in any consulting or advisory arrangement or any other arrangement that involves any form of remuneration, including remuneration for services performed by you as an officer, director, employee, representative or agent of, or in any other capacity for, any other person or entity (each, an “Engagement”); and

(B)
If you elect to continue your health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) following the termination of your employment, then Amyris shall pay your monthly premium under COBRA until the earlier of (x) twelve (12) months following the effective termination date, or (y) the date upon which you commence employment with an entity other than Amyris or any other Engagement.

Amyris will commence payment of the salary continuation described in subparagraph (A) of this section and the COBRA benefits described in subparagraph (B) of this section on or before the first regular payroll date that is at least thirty (30) days (or where determined necessary by Amyris to make the release described above effective, sixty (60) days) following your termination of employment, provided that prior to such date the release described above becomes effective. The first payment thereof will have a catch-up payment covering the amount that would have otherwise been paid during the period between your termination of employment and the first




payment date but for the application of this provision, and the balance of the installments will be payable in accordance with the original schedule.

You will notify Amyris in writing within five (5) days of your receipt of an offer of employment with any entity other than Amyris or for any other type of Engagement, and will accordingly identify the date upon which you will commence such employment or Engagement in such writing. These salary and benefits continuance benefits are intended to be provided to you as you actively seek future employment or another Engagement, and therefore, as noted, will cease once you have secured such employment or Engagement.

For all purposes under this Agreement, a termination for “Cause” shall mean a determination that your employment be terminated for any of the following reasons: (i) failure or refusal to comply in any material respect with lawful policies, standards or regulations of Amyris, (ii) a violation of a federal or state law or regulation applicable to the business of Amyris, (iii) conviction or plea of no contest to a felony or to a misdemeanor involving moral turpitude under the laws of the United States or any State, (iv) fraud or misappropriation of property belonging to Amyris or its affiliates, (v) non-performance, non-compliance or interference with any third party's performance of the terms of any confidentiality, invention assignment or proprietary information agreement with Amyris or with a former employer, (vi) your failure to satisfactorily perform your duties as assigned from time to time by Amyris after having received written notice of such failure and at least thirty (30) days to cure such failure, or (vii) your misconduct or gross negligence in connection with the performance of your duties.

2.
Change of Control . If, during your employment with Amyris, there is a Change of Control event (as defined below), and Amyris terminates your employment without Cause or you are Constructively Terminated (as defined below) within six (6) months of that event, then you will be eligible to receive the benefits provided in Section 1 above, as well as immediate accelerated vesting of fifty percent (50%) of any of the unvested shares under your outstanding options as of the date of termination, conditioned on your complying with the requirements of Section 1 above.

“Change of Control” shall mean (i) a merger, reorganization, consolidation or other transaction (or series of related transactions of such nature) pursuant to which more than fifty percent (50%) of the voting power of all outstanding equity securities of Amyris is transferred by the holders of Amyris' outstanding shares (excluding a reincorporation to effect a change in domicile), (ii) a sale of all or substantially all of the assets of Amyris, or (iii) any other transaction or series of related transactions, in which Amyris' stockholders immediately prior to such transaction or transactions own immediately after such transaction less than fifty (50%) of the voting equity securities of the surviving corporation or its parent.

“Constructive Termination” shall mean a resignation of your employment based on the occurrence of any of the following events which occurs within six (6) months following a Change of Control: (i) a material reduction in your responsibilities, (ii) a material reduction in your base salary, unless such reduction in your base salary is comparable in percentage to, and is part of, a reduction in the base salary of all or substantially all executive officers of Amyris, or (iii) a relocation of your principal office to a location more than fifty (50) miles from the location of your principal office immediately preceding a Change of Control; provided, however, that (A) you shall provide notice to Amyris within thirty (30) days of occurrence of a condition listed above constituting a Constructive Termination and allow Amyris thirty (30) days in which to cure such condition; and (B) in the event that Amyris fails to cure such condition within the cure period provided, you must terminate employment with Amyris within thirty (30) days of the end of the cure period.





3.
Tax Compliance . For purposes of this Agreement, a termination of employment will be determined consistent with the rules relating to a “separation from service” as defined in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (“Section 409A”). Notwithstanding anything else provided herein, to the extent any payments provided under this Agreement in connection with your termination of employment constitute deferred compensation subject to Section 409A, and you are deemed at the time of such termination of employment to be a “specified employee” under Section 409A, then such payment shall not be made or commence until the earlier of (i) the expiration of the 6-month period measured from your separation from service from Amyris or (ii) the date of your death following such a separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you including, without limitation, the additional tax for which you would otherwise be liable under Section 409A(a)(1)(B) in the absence of such a deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been paid during the period between your termination of employment and the first payment date but for the application of this provision, and the balance of the installments (if any) will be payable in accordance with their original schedule. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder comply with Section 409A. To the extent any payment under this Agreement may be classified as a “short-term deferral” within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. Payments pursuant to this amendment are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.

Please confirm your acceptance of this amendment by signing and returning the enclosed copy of this letter.

Sincerely,


/s/ John G. Melo    
John G. Melo
Chief Executive Officer



I HAVE READ AND ACCEPT THIS AMENDMENT:

/s/ Gary Loeb                  , 2012
Gary Loeb                    Date





Mark Patel
1577 Campus Drive
Berkeley, CA, 94708

July 29, 2010

Re: Offer of Employment with Amyris Biotechnologies, Inc.


Dear Mark:

On behalf of Amyris Biotechnologies, Inc. (“Amyris”), I am delighted to offer to you employment with Amyris. If you accept this offer and satisfy the conditions of acceptance set forth herein, your employment with Amyris will commence on August 23, 2010 or a mutually agreeable date under the following terms:

1.
Position
You will be employed full-time by Amyris as Vice President of Strategy reporting to me, John Melo, CEO.

2.
Salary
Your base salary will be $280,000 per year ($23,333.33 per month) payable in accordance with Amyris' regular payroll schedule which is currently semi-monthly. Your salary will be subject to adjustment from time to time pursuant to Amyris' employee compensation policies then in effect.

3.
Bonus
You will be eligible for a performance based bonus. Subject to the approval of the Board, your annual bonus target will be up to thirty percent (30%) of your earned base salary. Such bonus will be payable provided that (i) you achieve certain performance objectives which shall be established during the first month of your employment with Amyris, (ii) you are still employed by Amyris at year-end and when the bonus is paid out.

4.
Equity
Amyris will recommend to its Board of Directors that you be granted an option to purchase 120,000 shares of common stock of Amyris at the fair market value of the common stock on the date of Board approval. Such shares would vest as follows: (i) twenty percent (20%) upon completion of your twelfth (12 th ) month of employment, and (ii) the balance in a series of forty-eight (48) equal monthly installments upon completion of each additional month of employment with Amyris thereafter.

5.
Benefits
You will be eligible to participate in the employee benefits and benefit plans that are available to full-time employees of Amyris subject to the terms of such plans. Currently, these include (i) 12 paid holidays, (ii) 3 weeks of paid vacation (pro-rated by hiring date), (iii) up to 6 days of paid sick leave per




year (pro-rated by hiring date), (iv) medical insurance, (v) dental insurance, (vi) supplemental health and flexible spending accounts, (vii) group term life insurance, (viii) accidental death & disability insurance, (ix) long-term disability insurance, and (x) 401K plan. You will also be eligible to receive paid access to gym facilities. The terms of your benefits will be governed by the applicable plan documents and Amyris' policies. Enclosed is an Employee Benefit Overview.

6.
Termination of Employment
If you resign your employment with Amyris or if Amyris terminates your employment for Cause (as defined below) at any time, you will receive your base salary as well as any accrued but unused vacation (if applicable) earned through the effective resignation or termination date and no additional compensation. If Amyris terminates your employment for any reason other than Cause, it will give you written notice of termination, any base salary and accrued but unused vacation that is earned through the effective termination date and, conditioned on your (i) signing and not revoking a release of any and all claims, in a form prescribed by Amyris, and (ii) returning to Amyris all of its property and confidential information that is in your possession, you will receive the following:

(A) If you elect to continue your health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) following the termination of your employment, then Amyris shall pay your monthly premium under COBRA until the earlier of (x) twelve (12) months following the effective termination date, or (y) the date upon which you commence employment with an entity other than Amyris or any other Engagement; and

(B) If your employment is terminated by Amyris for any reason other than for Cause within your first year of employment, a portion of your options granted under Section 4 above for 120,000 shares that has a time based vesting schedule will vest as follows: the number of shares that shall vest shall be equal to the number obtained by multiplying the number of shares of common stock subject to the option granted pursuant to Section 4 by a fraction, the numerator of which shall be the number of complete months you have been employed by Amyris up to the date of termination and the denominator of which shall be 60.

You will notify Amyris in writing within five (5) days of your receipt of an offer of employment with any entity other than Amyris or for any other type of Engagement, and will accordingly identify the date upon which you will commence such employment or Engagement in such writing. These salary and benefits continuance benefits are intended to be provided to you as you actively seek future employment or another Engagement, and therefore, as noted, will cease once you have secured such employment or Engagement. 1
 
For all purposes under this Agreement, a termination for “Cause” shall mean a determination that your employment be terminated for any of the following reasons: (i) failure or refusal to comply in any material respect with lawful policies, standards or regulations of Amyris, (ii) a violation of a federal or state law or regulation applicable to the business of Amyris, (iii) conviction or plea of no contest to a felony or to a misdemeanour involving moral turpitude under the laws of the United States or any State, (iv) fraud or misappropriation of property belonging to Amyris or its affiliates, (v) non-performance,

________________    
1.
Depending on the size of the option grant and the value of the shares at termination, the severance payments may become subject to IRC Section 280G.




non-compliance or interference with any third party's performance of the terms of any confidentiality, invention assignment or proprietary information agreement with Amyris or with a former employer, (vi) your failure to satisfactorily perform your duties as assigned from time to time by Amyris after having received written notice of such failure and at least thirty (30) days to cure such failure, or (vii) your misconduct or gross negligence in connection with the performance of your duties.

7.
Change of Control
If, during your employment with Amyris, there is a Change of Control event (as defined below), and Amyris terminates your employment without Cause or you are Constructively Terminated (as defined below) within six (6) months of that event, then you will be eligible to receive the benefits provided in Section 6, as well as immediate accelerated vesting of fifty percent (50%) of any of the unvested shares under your outstanding options as of the date of termination, conditioned on your complying with the requirements of Section 6 above.

“Change of Control” shall mean (i) a merger, reorganization, consolidation or other transaction (or series of related transactions of such nature) pursuant to which more than fifty percent (50%) of the voting power of all outstanding equity securities of Amyris is transferred by the holders of Amyris's outstanding shares (excluding a reincorporation to effect a change in domicile), (ii) a sale of all or substantially all of the assets of Amyris, or (iii) any other transaction or series of related transactions, in which Amyris' stockholders immediately prior to such transaction or transactions own immediately after such transaction less than fifty (50%) of the voting equity securities of the surviving corporation or its parent.
“Constructive Termination” shall mean a resignation of your employment because of the occurrence of any of the following events which occurs within six (6) months following a Change of Control: (i) a material reduction in your responsibilities, (ii) a material reduction in your base salary, unless such reduction in your base salary is comparable in percentage to, and is part of, a reduction in the base salary of all or substantially all executive officers of Amyris, or (iii) a relocation of your principal office to a location more than fifty (50) miles from the location of your principal office immediately preceding a Change of Control. Notwithstanding anything else contained herein, in the event of the occurrence of a condition listed above you must provide notice to Amyris within thirty (30) days of the occurrence of a condition listed above and allow the Amyris thirty (30) day in which to cure such condition. Additionally, in the event that Amyris fails to cure the condition within the cure period provided, you must terminate employment with Amyris within thirty (30) days of the end of the cure period.

8.
Amyris' Policies
As an employee of Amyris, you will be subject to, and expected to comply with its policies and procedures, personnel and otherwise, as such policies are developed and communicated to you.

9.
“At-Will” Employment
Employment with Amyris is “at-will”. This means that it is not for any specified period of time and can be terminated by you or by Amyris at any time, with or without advance notice, and for any or no particular reason or cause. It also means that your job duties, title and responsibility and reporting level, compensation and benefits, as well as Amyris' personnel policies and procedures, may be changed at any time in the sole discretion of Amyris. However, the “at-will” nature of your employment shall remain unchanged during your tenure as an employee of Amyris and may not be changed, except in an




express writing signed by you and by Amyris' Chief Executive Officer.

10.
Full-Time Service to Amyris
Amyris requires that, as a full-time employee, you devote your full business time, attention, skills and efforts to the tasks and duties of your position as assigned by Amyris. If you wish to request consent to provide services (for any or no form of compensation) to any other person or business entity while employed by Amyris, you must first receive permission from the Chief Executive Officer of Amyris.

11.
Conditions of Offer
In order to accept this offer, and for your acceptance to be effective, you must satisfy the following conditions:

•
You must provide satisfactory documentary proof of your identity and right to work in the United States of America on your first day of employment.

•
You must agree in writing to the terms of the enclosed Proprietary Information and Inventions Agreement (“ PIIA ”) without modification.

•
You must consent to, and Amyris must obtain satisfactory results from, reference and background checks. Until you have been informed in writing by Amyris that such checks have been completed and the results satisfactory, you may wish to defer reliance on this offer.

•
You must agree in writing to the terms of the enclosed Mutual Agreement to Binding Arbitration (“ Arbitration Agreement ”) without modification.

By signing and accepting this offer, you represent and warrant that: (i) you are not subject to any pre-existing contractual or other legal obligation with any person or entity that may be an impediment to your employment with, or your providing services to, Amyris as its employee; and (ii) you have not and shall not bring onto Amyris' premises, or use in the course of your employment with Amyris, any confidential or proprietary information of another person or entity to whom you previously provided services.
12.
Tax Compliance
For purposes of this Agreement, a termination of employment will be determined consistent with the rules relating to a “separation from service” as defined in Section 409A of the Code and the regulations there under (“Section 409A”). Notwithstanding anything else provided herein, to the extent any payments provided under this Agreement in connection with your termination of employment constitute deferred compensation subject to Section 409A, and you are deemed at the time of such termination of employment to be a “specified employee” under Section 409A, then such payment shall not be made or commence until the earlier of (i) the expiration of the 6-month period measured from your separation from service from Amyris or (ii) the date of your death following such a separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you including, without limitation, the additional tax for which you would otherwise be liable under Section 409A(a)(1)(B) in the absence of such a deferral. The first payment thereof will include a catch-up payment covering the amount that would have otherwise been paid during the period between your termination of employment and the first payment date but for the application of this




provision, and the balance of the installments (if any) will be payable in accordance with their original schedule. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder comply with Section 409A. To the extent any payment under this Agreement may be classified as a “short-term deferral” within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. Payments pursuant to this section are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
13.
Entire Agreement
Provided that the conditions of this offer and your acceptance are satisfied, this letter together with the enclosed PIIA and Arbitration Agreement (collectively, the “ Offer Documents ”) shall constitute the full and complete agreement between you and Amyris regarding the terms and conditions of your employment. The Offer Documents cancel, supersede and replace any and all prior negotiations, representations or agreements, written and oral, between you and Amyris or any representative or agent of Amyris regarding any aspect of your employment. Any change to the terms of your employment with Amyris, as set forth in this letter, must be in an individualized writing to you, signed by the Chief Executive Officer of Amyris to be effective.

Please confirm your acceptance of this offer by signing and returning the enclosed copy of this letter as well as the PIIA and Arbitration Agreement to me by July 2, 2010. If not accepted by you as of that date, this offer will expire. We look forward to having you join Amyris. If you have any questions, please do not hesitate to contact me at (510) 740-7440.

Sincerely,

/s/ John G. Melo
John G. Melo
Chief Executive Officer



I HAVE READ AND ACCEPT THIS EMPLOYMENT OFFER:

/s/ Mark Patel          July 30, 2010        
Mark Patel              Date



Enclosures







 
 
Exhibit 31.01
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
 
PURSUANT TO RULE 13a-14(c) and 15d-(14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
 
I, John Melo, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of Amyris, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
 
 
 
 
 
Date: May 8, 2013
 
 
/s/ JOHN MELO
 
 
 
John Melo
 
 
 
President and Chief Executive Officer




  

Exhibit 31.02
CERTIFICATION OF CHIEF FINANCIAL OFFICER
 
PURSUANT TO RULE 13a-14(c) and 15d-(14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
 
I, Steven R. Mills, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of Amyris, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
 
 
 
 
 
Date: May 8, 2013
 
 
/s/   STEVEN R. MILLS
 
 
 
 
Steven R. Mills
 
 
 
Chief Financial Officer




 

 
Exhibit 32.01
Certification of CEO Furnished Pursuant to 18 U.S.C. Section 1350,
As Adopted Pursuant To
Section 906 of The Sarbanes-Oxley Act of 2002
 
In connection with the Quarterly Report of Amyris, Inc. (the “Company”) on Form 10-Q for the quarterly ended March 31, 2013, as filed with the Securities and Exchange Commission on the date hereof, I, John Melo, Chief Executive Officer of the Company, certify for the purposes of section 1350 of chapter 63 of title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge,
(i) the Quarterly Report of the Company on Form 10-Q for the quarterly period ended March 31, 2013 (the “Report”), fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
 
 
 
 
 
Date: May 8, 2013
 
 
/s/    JOHN MELO
 
 
 
 
John Melo
 
 
 
President and Chief Executive Officer
 
 
 
(Principal Executive Officer)
 





 

 
Exhibit 32.02
Certification of CFO Furnished Pursuant to 18 U.S.C. Section 1350,
As Adopted Pursuant To
Section 906 of The Sarbanes-Oxley Act of 2002
 
In connection with the Quarterly Report of Amyris, Inc. (the “Company”) on Form 10-Q for the quarterly period ended March 31, 2013, as filed with the Securities and Exchange Commission on the date hereof, I, Steven R. Mills, Chief Financial Officer of the Company, certify for the purposes of section 1350 of chapter 63 of title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge,
(i) the Quarterly Report of the Company on Form 10-Q for the quarterly period ended March 31, 2013 (the “Report”), fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
 
 
 
 
 
Date: May 8, 2013
 
 
/s/   STEVEN R. MILLS  
 
 
 
Steven R. Mills
 
 
 
Chief Financial Officer
 
 
 
(Principal Financial Officer)