Exhibit 10.02


 





EXECUTION COPY


 







 





AMENDMENT #1 TO PILOT PLANT SERVICES
AGREEMENT 


 


THIS AMENDMENT #1 TO THE PILOT PLANT
SERVICES AGREEMENT (“First Amendment”) is made and entered into as of July 26, 2015 (the “First
Amendment Effective Date”) by and among Amyris, Inc., a corporation organized and existing under the laws of the state
of Delaware, United States of America, with its principal place of business at 5885 Hollis Street, Suite 100, Emeryville, California
94608 (“Amyris”), and Total New Energies USA, Inc. a corporation incorporated under the laws of the state of
Delaware, having its principal place of business located at 5858 Horton Street, Emeryville, CA 94608 (“Total”).


 


WHEREAS, Amyris and Total entered
into that certain Pilot Plant Services Agreement on April 4, 2014 (the “Agreement”) whereby Amyris agreed to
provide Total with pilot plant scale fermentation process development services, fermentation and downstream separations scale-up
services, and training for certain of its employees on the aforementioned technologies in order to support Total projects in the
field of industrial biotechnology;


 


WHEREAS, in connection with the
contemporaneous restructuring of Total Amyris BioSolutions B.V., a joint venture between Amyris and Total Energies Nouvelles Activités
USA, an affiliate of Total (the “JVCO Transactions”), Amyris is willing to restructure Total’s payment
obligations under the Agreement and provide Total with certain credits, all as further described herein.


 


NOW THEREFORE, in consideration
of the promises and the mutual covenants contained herein, the Parties agree as follows:


 


		1.	The following new Section 2(h) is hereby added to the Agreement:



 


“(h)Restructuring
of Payments. Effective as of the First Amendment Effective Date, the following shall apply and shall supersede Sections 2(a)-(c)
above.


 


		(i)	Services Prior to November 1, 2015. The Parties acknowledge that, as of the First Amendment
Effective Date, TOTAL still owes and will pay Amyris the July 2015 installment of the Annual Fee, after which payment all Services
through November 1, 2015 will have been paid for in full.



 


		(ii)	Services Following November 1, 2015. In partial consideration for the JVCO Transactions,
the Parties agree that:



 


		(A)	All further Annual Fees for the Remaining Contract Life (as defined below) are hereby waived; and



 


		(B)	Within thirty (30) days of the expiration of the Agreement, TOTAL shall pay to Amyris the amount
of $984,423.00 (“Final Payment”), provided that in the event that the total person-hours of Services
provided by OCT Personnel during the Remaining Contract Life is less than 10,741 person-hours, then the amount of the Final Payment
shall be adjusted by subtracting from such $984,423.00 amount an amount equal to: ($281.73) x (10,741 – Z), where Z is the
number of the total person-hours of Services actually provided by OCT Personnel during the Remaining Contract Life.



 


		(C)	As used in this Section 2(h)(ii), “Remaining Contract Life” means the period



 





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	 	 	commencing on November 1, 2015 and ending on April
4, 2019.






 


		2.	Section 6(b) of the Agreement is revised to provide in its entirety as follows:



 


			“(b) TOTAL may terminate this Agreement for convenience at any time upon ninety (90) days’
prior written notice, provided that in the event that the total person-hours of Services provided by OCT Personnel during the period
commencing on November 1, 2015 and continuing through the effective date of the termination is in excess of 7,099 person hours,
TOTAL will, as Amyris’ sole and exclusive remedy, pay to Amyris within thirty (30) days of the effective date of termination,
an amount equal to ($281.73) x (Y – 7,099), where Y is the number of the total person-hours of Services actually provided
by OCT Personnel through the effective date of termination.”



 


		3.	Section 6(c) of the Agreement is revised to provide in its entirety as follows:



 


			“(c) In addition to any other rights or remedies it may have, TOTAL may terminate this Agreement
upon sixty (60) days’ written notice (i) if Amyris materially breaches any of the terms or conditions of this Agreement,
and such breach is not cured within such sixty (60) day period, or (ii) upon the occurrence of any event that is a “Default”
under Sections 15.1.1, 15.1.2, 15.13 (but only if a default under that subsection results in termination of the Sublease), 15.1.4,
15.1.5, and 15.1.7 of the Sublease. Upon termination of this Agreement pursuant to this Section 6(c), in the event that the total
person-hours of Services provided by OCT Personnel during the period commencing on the First Amendment Effective Date and continuing
through the effective date of the termination is less than 7,099 person hours, Amyris shall pay to TOTAL as liquidated damages
within thirty days of the effective date of termination, an amount equal to ($281.73) x (7,099 -W), where W is the number of the
total person-hours of Services actually provided by OCT Personnel through the effective date of termination.”



 


		4.	Section 6(d) of the Agreement is revised to provide in its entirety as follows:



 


			“(d) Amyris may terminate this Agreement upon sixty (60) days’ prior written notice
if TOTAL materially breaches Sections 3 or 5(a) this Agreement, and such breach is not cured within such sixty (60) day period.
Upon a termination of this Agreement pursuant to this Section 6(d), in the event that total person-hours of Services provided by
OCT Personnel during the period commencing on the First Amendment Effective Date and continuing through the effective date of the
termination is in excess of 7,099 person hours, Total shall pay to Amyris as liquidated damages within thirty days of the effective
date of termination, an amount equal to ($281.73) x (Y – 7,099), where Y is the number of the total person-hours of Services
actually provided by OCT Personnel through the effective date of termination.”



 


		5.	Section 8(e) of the Agreement is revised to provide in its entirety as follows:



 


“(e) EXCEPT FOR VIOLATIONS
OF SECTION 3 AND LIQUIDATED DAMAGES OWING TO TOTAL UNDER SECTION 6(c) OR TO AMYRIS UNDER SECTION 6(d), IN NO EVENT WILL EITHER
PARTY BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY OF LIABILITY FOR ANY DIRECT DAMAGES, HOWEVER CAUSED, ARISING OUT OF THE SERVICES
OR ANY DIRECT DAMAGES, HOWEVER CAUSED ARISING OUT OF THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT IN EXCESS OF AMOUNT
EQUAL TO $895,327.”


 


		6.	Section III(b) of Exhibit A of the Agreement is revised to provide in its entirety as follows:



 


“b) Annual Maximum Number
of Hours of Services. In consideration for (i) the amounts to be paid by TOTAL under this Agreement and (ii) the JVCO Transactions,
the sufficiency of which


 


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consideration is hereby acknowledged
by Amyris, Amyris shall cause the OCT Personnel to perform up to three thousand one hundred seventy eight (3,178) person-hours
of Services each “Contract Year” (i.e., the twelve month period commencing on the Effective Date and then again
each anniversary of it thereafter during the Term; such amount being the “Annual Hours Commitment”). Each person-hour
of Service shall be valued at $281.73. In the event the Services agreed upon by the Parties in any Contract Year exceeds the Annual
Hours Commitment, then such “excess person-hours” will be taken into account when calculating the number of total person-hours
of Services actually provided for purposes of Sections 2(h)(ii)(B), 6(b), 6(c) and 6(d), as applicable. In addition, TOTAL may
request additional OCT Personnel person-hours be provided in any Contract Year. Amyris, in its discretion, can agree to accept
the request for additional OCT Personnel person-hours and such acceptance will be documented in the related SOW, in which case
such additional OCT Personnel person-hours shall be taken into account when calculating the number of the total person-hours of
Services actually provided for purposes of Sections 2(h)(ii)(B), 6(b), 6(c) and 6(d), as applicable. For clarity, “Services”
do not include, and no hours shall be attributed to, analytical work performed by Amyris unless such work is identified in a SOW,
maintenance of the equipment in the OCT Facilities or any management of OCT Personnel. The Annual Hours Commitment will be allocated
each Contract Year to the performance of the Services agreed upon by the Parties as set forth herein and for no other purpose.
The OCT Personnel will be required to record their time used to work on Services separately from their time spent on Amyris activities.
Within fifteen (15) days after the end of each Contract Year, the Joint Oversight Team will determine whether Amyris has completed
the Annual Hours Commitment during such Contract Year. In the event that the Joint Oversight Team cannot agree on the number of
OCT Personnel person-hours expended in such Contract Year, the Parties agree to escalate the matter as set forth in Section 7(a)
of the Agreement. If, in a Contract Year, TOTAL fails to use all of the Annual Hours Commitment, or if the Annual Hours Commitment
during any Contract Year is not met by Amyris as a result of Amyris’s failure to perform Services as requested by TOTAL in
accordance with the terms of the Agreement, including this Exhibit and any executed SOW’s, and such failure results in Amyris
failing to meet the Annual Hours Commitment, then in each case such unused OCT Personnel person-hours will “roll over”
to the following Contract Year. Any unused OCT Personnel person-hours remaining upon expiration shall be taken into account and
used to adjust the Final Payment. In addition, in the event the roll over OCT Personnel person-hours attributable to Amyris’s
failure to perform Services as requested by TOTAL in accordance with the terms of the Agreement exceed, in the aggregate, 1,500
hours at the end of any Contract Year after Contract Year 1, Amyris will be considered in material breach of the Agreement and
TOTAL may terminate in accordance with Section 6(c) of the Agreement.”


 


		7.	Capitalized terms used in this First Amendment shall have the same meaning as defined in the Agreement
unless otherwise defined herein. Except as specifically provided in this First Amendment, the terms and conditions of the Agreement
shall remain in full force and effect. Together, the Agreement and this First Amendment constitute the entire agreement between
the Parties with respect to the subject matter, and supersede any and all prior negotiations, representations, correspondence,
understandings and agreements with respect to the subject matter. To the extent of any conflict between the Agreement (including
any exhibits or schedules thereto) and this First Amendment, this First Amendment shall supersede and govern. This First Amendment
may be executed in counterparts, which together shall constitute one document and be binding on all of the Parties.



 


 


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IN WITNESS WHEREOF, and intending
to be bound by the provisions hereof, the Parties have caused this First Amendment to be executed personally or by their duly authorized
representatives, to be effective as of the First Amendment Effective Date.


 


 





	AMYRIS, INC.	 	TOTAL NEW ENERGIES USA, INC.
	 	 	 
	/s/ Nicholas Khadder	 	 
	 	 	 	 	 
	By	NICHOLAS KHADDER	 	By	 
	Title:	GENERAL COUNSEL	 	Title:	 
	 	 	 	 	 



 


 


 


 


 


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IN WITNESS WHEREOF, and intending
to be bound by the provisions hereof, the Parties have caused this First Amendment to be executed personally or by their duly authorized
representatives, to be effective as of the First Amendment Effective Date.


 


	AMYRIS, INC.	 	TOTAL NEW ENERGIES USA, INC.
	 	 	 
	 	 	/s/ Bernard Clement
	 	 	 	 	 
	By	 	 	By	BERNARD CLEMENT
	Title:	 	 	Title:	 
	 	 	 	 	 



 




 


 


 


 


 


 


 


 


 


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