**Exhibit 10.7**

*****Text Omitted and Filed Separately with the Securities and Exchange Commission.**

**Confidential Treatment Requested Under**

**17 C.F.R. Sections 200.80(b)(4) and 240.24b-2**

**EXECUTION COPY**

VERENIUM LICENSE AGREEMENT 

by and between 

VERENIUM CORPORATION 

and 

BP BIOFUELSNORTH AMERICA LLC 

(Effective as of September 2, 2010) 

 

**LICENSE AGREEMENTINDEX**

 
      **Page** 
ARTICLE I
  
DEFINITIONS
   1  
ARTICLE II
  
LICENSE GRANT
   6  
ARTICLE III
  
LICENSEE IMPROVEMENTS; LICENSEE NON-ASSERT
   10  
ARTICLE IV
  
DISCLOSURE OF LICENSED RIGHTS AND MARKING
   11  
ARTICLE V
  
FULLY PAID LICENSE
   12  
ARTICLE VI
  
CONFIDENTIALITY
   12  
ARTICLE VII
  
REPRESENTATIONS AND WARRANTIES
   14  
ARTICLE VIII
  
RISK ALLOCATION
   15  
ARTICLE IX
  
INFRINGEMENT
   16  
ARTICLE X
  
TERM
   18  
ARTICLE XI
  
DISPUTE RESOLUTION
   18  
ARTICLE XII
  
GENERAL PROVISIONS
   20  
 
i 

 

VERENIUM LICENSEAGREEMENT 

**THIS VERENIUM LICENSE AGREEMENT (“Agreement”) is made as ofSeptember 2, 2010 (“Effective Date”), by and between Verenium Corporation, a Delaware corporation (“Verenium”), and BP Biofuels North America LLC, a Delaware limited liability company(“Licensee”).**

RECITALS 

Verenium and Licensee have entered into that certain Asset Purchase Agreement dated as of July 14, 2010(“Asset Purchase Agreement”), pursuant to, among other things, Verenium will sell to Licensee, and Licensee will purchase from Verenium, all of the assets, rights and properties of Verenium and its Non-Biofuels Subsidiaries (asdefined in the Asset Purchase Agreement) used in or related to Verenium’s lignocellulosic biofuels business and all of the capital stock of the Biofuels Subsidiaries (as defined in the Asset Purchase Agreement); 

Following the sale of the LC Business, Verenium plans to continue operating the Enzyme Business (as defined in the AssetPurchase Agreement); 

Licensee desires to obtain from Verenium certain rights and licenses to use the LicensedRights (as defined below) as provided herein; 

The Licensed Rights include rights to use the Retained EnzymeLibraries (as defined below), and Licensee will receive a copy of the Retained Enzyme Libraries for use pursuant to the terms and conditions set forth herein; and 

Verenium’s and Licensee’s execution and delivery of this Agreement, and the grant of such rights and licensesto the Licensed Rights, is required by the Asset Purchase Agreement. 

NOW, THEREFORE, for and in considerationof the premises and mutual covenants contained in this Agreement, to induce the Parties to enter into the Asset Purchase Agreement and consummate the transactions contemplated thereby, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged by the Parties, Verenium and Licensee agree as follows: 

**ARTICLE I**

**Definitions**

For the purposes of this Agreement, the following terms have the following meanings: 

1.1 “Affiliate” means any Person that directly, or indirectly through one or more intermediaries, (a) controls, (b) is controlled by, or (c) is under common control with, anyother Person referred to in this Agreement. As used in this Section 1.1, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of another Person, whetherthrough the ownership of voting securities, by contract, or otherwise. One Person is presumed to control another Person if the first Person possesses, directly or indirectly, fifty percent (50%) or more of the voting rights in the second Personentitled to vote at a meeting of shareholders, members, partners or other equity or ownership interest holders. 

 

1.2“Biofuels Affiliates” means, upon the consummation of the transaction contemplated by the Asset Purchase Agreement, the Biofuels Subsidiaries (as defined in the Asset Purchase Agreement), their successors and assigns, and any Affiliate ofLicensee which carries on or conducts the LC Business or owns any of the Licensed Rights. 

1.3 “BPLicense Agreement” means the BP License Agreement between Licensee and Verenium, dated as of the Effective Date, as may be amended in accordance with its terms. 

1.4 “BP Non-Competition Agreement” means the BP Non-Competition Agreement between Licensee and Verenium, datedas of the Effective Date, as may be amended in accordance with its terms. 

1.5 “Claim” has themeaning given such term in Section 8.1.1. 

1.6 “Confidential Information” means any and allinformation, data and technology disclosed and/or provided by or on behalf of one Party or any of its Affiliates to the other Party or any of its Affiliates including, without limitation, any and all methods and/or materials, technical information,technologies, systems, processes, procedures, know-how, data, trade secrets (as such are determined under applicable law), samples, inventions (whether patentable or unpatentable), improvements, compositions, devices, molecules, geneticallyengineered organisms, formulae, illustrations, patent applications, products, works of authorship, compilations, programs, schematics, designs, drawings, technical plans, prototypes, production and manufacturing processes and techniques, research,development activities and plans, specifications, computer programs, object and source code, databases, passwords, log on identifiers, algorithms, derivative works, reports, mask works, business and financial data, business plans, skills andcompensation of employees and consultants, pricing, financial and operational information, information regarding litigation or other regulatory actions or complaints, marketing plans, customer and supplier information (including, without limitation,actual or potential customers or suppliers, customer or supplier lists, and customer or supplier requirements), regardless of the form in which such information appears, or by which it is communicated whether in tangible or intangible form, whetheror not marked as confidential or otherwise identified as confidential, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically or in writing, as well as all documents and other information whichcontain or reflect or are generated from any of the foregoing. 

1.7 “Disclosing Party” means a Partyor its Affiliate that furnishes or provides access to Confidential Information of such Party or its Affiliate to another Party or its Affiliate. 

1.8 “Effective Date” means the date as of which this Agreement is made as set forth in the introductory paragraph. 

 
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1.9“Enzyme Libraries” means all collections of (i) live organisms, cell extracts, nucleic acid extracts, nucleic acids cloned into vectors, (ii) proteins, polypeptides and enzymes included in the SPEED collection, and(iii) other organic compositions, in each case of clauses (i), (ii) and (iii) contained in, or derived or manufactured from, samples of diverse biological materials, which collections are expressly listed and described onSchedule 1.9 and which were Purchased Assets (as defined in the Asset Purchase Agreement) or were assets of the Biofuels Subsidiaries, in each case existing at the Effective Date. 

1.10 “Extended Term Patent Rights” means (a) those Patent Rights expressly listed and identified onSchedule 1.10 and (b) Patent Rights arising from prosecution or maintenance of such Patent Rights expressly listed and identified on Schedule 1.10. 

1.11 “Field of Use” means the researching, development, manufacture and commercialization (including withoutlimitation to make or have made, use or have used, practice or have practiced, improve or have improved, import or have imported, export or have exported, market or have marketed, distribute or have distributed, license, sell, offer for sale or havesold) of lignocellulosic ethanol and other lignocellulosic biofuels and lignocellulosic bioproducts, lignocellulosic butanol and lignocellulosic diesel biofuels, including without limitation conversion of cell wall sugars and/or cell wall sugarcompounds into biofuels or bioproducts, and for the avoidance of doubt excludes starch to ethanol, starch to other biofuels and starch to bioproducts. 

1.12 “Intellectual Property” means any of the following: (i) (a) Patent Rights which are expressly listed and identified on Schedule 1.12 and (b) Patent Rights arisingfrom prosecution or maintenance of such Patent Rights expressly listed and identified on Schedule 1.12, (ii) registered and unregistered copyrights in both published and unpublished works and all moral rights, and all applications,registrations, renewals and extensions in connection therewith, together with all translations thereof which are expressly listed and identified on Schedule 1.12, (iii) any of the following which are expressly listed and identifiedon Schedule 1.12: methods and/or materials, technical information, technologies, systems, processes, procedures, know-how, data, trade secrets (as such are determined under applicable law), samples, inventions (whether patentable orunpatentable), compositions, devices, molecules, genetically engineered organisms, formulae, illustrations, works of authorship, compilations, programs, schematics, designs, drawings, technical plans, prototypes, production and manufacturingprocesses and techniques, research, development activities and plans, specifications, computer programs, object and source code, databases, passwords, log on identifiers, algorithms and mask works, and (iv) all of the foregoing contained orembodied in or with respect to any Software which are expressly listed and identified on Schedule 1.12, all of which were Excluded Assets existing at the Effective Date. 

1.13 “LC Business” means the researching, development, manufacture and commercialization (including withoutlimitation to make or have made, use or have used, practice or have practiced, improve or have improved, import or have imported, export or have exported, market or have marketed, distribute or have distributed, license, sell, offer for sale or havesold) of lignocellulosic ethanol and other lignocellulosic biofuels and lignocellulosic bioproducts, lignocellulosic butanol and lignocellulosic diesel biofuels, including without limitation conversion of cell wall sugars and/or cell wall sugarcompounds into biofuels or bioproducts (which for the avoidance of doubt excludes starch to ethanol, starch to other biofuels and starch to bioproducts), carried on or conducted by Licensee and/or any of its Affiliates. 

 
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1.14“Licensed Intellectual Property” means the intellectual property rights granted to Verenium or any Non-Biofuels Subsidiary pursuant to a license, sublicense or use right under or pursuant to any Third Party Licensor Agreement expresslylisted and identified on Schedule 1.14, which were Excluded Assets existing at the Effective Date. 

1.15 “Licensed Rights” means the Intellectual Property, the Licensed Intellectual Property and the RetainedEnzyme Libraries, subject to all Third Party Consents and the terms of all Third Party Licensor Agreements and all Third Party Licensee Agreements. 

1.16 “Licensee” means BP Biofuels North America LLC, a Delaware limited liability company, or any successor or assign pursuant to Section 12.3. 

1.17 “Licensee Improvements” means any improvements, additions, modifications, developments, enhancements,updates, derivative works, transformations, translations, adaptations and other changes in or to the Licensed Rights, including any new or improved process, application, method of use, method of manufacture, composition of matter, tool, system,technology, design change, manufacturing or processing technique, or any other invention, discovery or creation, arising or derived from or arising as a result of the practice of any of the Licensed Rights pursuant to this Agreement, including anyproduct derived from the Enzyme Libraries covered by any of the foregoing. 

1.18 “LicenseeIndemnitees” mean Licensee, each of Licensee’s Affiliates, and the officers, directors, independent contractors, partners, shareholders, members, managers, employees, agents, and successors and assigns of Licensee and Licensee’sAffiliates. 

1.19 “Losses” has the meaning given such term in Section 8.1.1. 

1.20 “Non-Competition Agreements” means the BP Non-Competition Agreement and the Verenium Non-CompetitionAgreement. 

1.21 “Party” means either Verenium or Licensee and they may be referred to collectivelyas “Parties.” A reference to a “Party” includes that Party’s successors in title and assigns or transferees permitted in accordance with the terms of this Agreement. 

1.22 “Patent Rights” means all issued patents and pending unpublished and published patent applications(including certificates of invention, applications for certificates of invention and priority rights) in any country or region, including all plant patents and design patents, provisional applications, substitutions, continuations,continuations-in-part, continued prosecution applications including requests for continued examination, divisional applications and renewals, and all letters patent or certificates of invention granted thereon, and all reissues, reexaminations,extensions, term restorations, renewals, substitutions, confirmations, registrations, revalidations, revisions and additions of or to any of the foregoing, and all counterparts of any of the foregoing, as well as the rights to file for, and to claimpriority to, such patent rights. 

1.23 “Person” means any individual, corporation, association,partnership (general or limited), joint venture, trust, estate, limited liability company, limited liability partnership, unincorporated organization, government (or any agency or political subdivision thereof) or other legal entity or organization.

 
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1.24“Receiving Party” means any Party or its Affiliate that receives or has access to Confidential Information of the other Party or its Affiliate. 

1.25 “Retained Enzyme Libraries” means all collections of (i) live organisms, cell extracts, nucleic acid extracts, nucleic acids cloned into vectors, (ii) proteins, polypeptides,enzymes and (iii) other organic compositions, in each case of clauses (i), (ii) and (iii) contained in, or derived or manufactured from, samples of diverse biological materials which collections were Excluded Assets (as defined in theAsset Purchase Agreement) existing at the Effective Date and expressly listed and described on Schedule 1.25 hereto. 

1.26 “Retained Enzyme Libraries License” has the meaning given to such term in Section 2.3. 

1.27 “Software” means all computer software, the tangible media on which it is recorded (in any form) and all supporting documentation, including, without limitation, input and output format,program listings, narrative descriptions, source code, object code, executable code, algorithms, logic and development tools, operating instructions, construction and design specifications, training materials and user manuals, and data anddatabases, including those pertaining to the design, operation, maintenance, support, development, performance, and configuration of such software, together with all translations, adaptations, modifications, derivations, combinations and derivativeworks thereof. 

1.28 “Software Contract” means any contract which conveys or grants Verenium or anyof its Affiliates rights to access or use Software. 

1.29 “Sublicense” means any grant by Licenseeof a written sublicense under the Licensed Rights pursuant to the terms of this Agreement. 

1.30“Sublicensee” means any Third Party to whom Licensee grants a Sublicense. 

1.31 “Term” hasthe meaning given such term in Section 10.1 of this Agreement. 

1.32 “Third Party” means aPerson other than the Parties to this Agreement and their respective Affiliates. 

1.33 “Third PartyLicensee Agreements” means any agreement pursuant to which Verenium or any of its Affiliates has granted a license or sublicense under the Licensed Rights to any Third Party as of the Effective Date. 

1.34 “Third Party Consents” means the applicable prior consent, sublicense and/or permission of any and allThird Parties, whether such Third Party is a licensor(s) of any of the Licensed Intellectual Property (“Third Party Licensor”) or otherwise, to the grant under any of the Intellectual Property or Licensed Intellectual Property ofany of the rights proposed to be granted to Licensee hereunder, in the form as may be required by any such Third Party from time to time. 

 
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1.35“Third Party Licensor Agreement” means an agreement pursuant to which a Third Party Licensor licenses or sublicenses to Verenium or an Affiliate rights with respect to intellectual property rights owned or controlled by such Third PartyLicensor, including without limitation any Software Contract. 

1.36 “Third Party Consent Payments”has the meaning given it in Section 2.5 of this Agreement. 

1.37 “Verenium” means VereniumCorporation, a Delaware corporation, or any successor or assign pursuant to Section 12.3. 

1.38“Verenium Activities” has the meaning given it in Section 3.2 of this Agreement. 

1.39“Verenium Indemnitees” mean Verenium, each of Verenium’s Affiliates, and the officers, directors, independent contractors, partners, shareholders, members, managers, employees, agents, and successors and assigns of Verenium andVerenium’s Affiliates. 

1.40 “Verenium “Non-Competition Agreement” means the VereniumNon-Competition Agreement between Verenium and Licensee, dated as of the Effective Date, as may be amended in accordance with its terms. 

**ARTICLE II**

**License Grant**

2.1 **License Grant**. Subject to the terms and conditions contained in this Agreement, Verenium for itself andits Affiliates hereby grants to Licensee and its Affiliates a nonexclusive, worldwide, royalty free and fully paid, nontransferable (except as provided in Section 12.3), perpetual and irrevocable right and license, with the right to sublicensesolely as set forth in Section 2.2 hereof, under and with respect to the Intellectual Property and Licensed Intellectual Property, to make or have made, use or have used, practice or have practiced, improve or have improved, research or haveresearched, develop or have developed, modify or have modified, enhance or have enhanced, create derivative works of or have derivative works created, market or have marketed, distribute or have distributed, import or have imported, export or haveexported, sell, offer for sale, have sold or otherwise dispose of, products or services in the Field of Use, in each case subject to all applicable Third Party Licensor Agreements and Third Party Consents and to all applicable Third Party LicenseeAgreements. Licensee for itself and its Affiliates agrees not to practice or use the Intellectual Property and Licensed Intellectual Property except as expressly permitted by this Agreement. 

Notwithstanding the foregoing, the term of the license grant set forth in this Section 2.1 with respect to theExtended Term Patent Rights shall initially be for ten (10) years from the Effective Date, and Licensee shall have the right at any time prior to the expiration of said ten (10) year term, upon written notice from Verenium, to elect to extend theterm with respect to those Extended Term Patent Rights that Licensee intends to use in the Field of Use to a perpetual license term by sending written notice of such election, identifying the relevant Extended Term Patent Rights for which Licenseeelects to so extend the term, within ninety (90) days of receipt of such notice from Verenium. In the event Verenium fails to give notice to Licensee as 

 
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aforesaid at least ninety (90) days prior to the expiration of such ten (10) year term, the term of the license grant set forth in this Section 2.1 with respect to the ExtendedTerm Patent Rights shall automatically convert to a perpetual license term without further action by or notice from Licensee. In the event Licensee gives written notice to Verenium as aforesaid within ninety (90) days of receipt of notice fromVerenium of those Extended Term Patent Rights for which Licensee elects to so extend the term, effective upon such written notice from Licensee, the term with respect to those Extended Term Patent Rights identified in such written notice fromLicensee shall become perpetual, and the term with respect to any Extended Term Patent Rights that are not identified in such written notice from Licensee shall end upon the date that is ten (10) years after the Effective Date. In the eventLicensee does not give written notice to Verenium as aforesaid within ninety (90) days of receipt of notice from Verenium, the term of the license grant set forth in this Section 2.1 with respect to the Extended Term Patent Rights shallend upon the date that is ten (10) years after the Effective Date. 

2.2 **Sublicenses**. Thelicense granted in Section 2.3 with respect to the Retained Enzyme Libraries is not sublicensable, or otherwise transferrable by Licensee or its Affiliates except as expressly set forth in Sections 2.3 and 12.3 hereof. Except as providedin the immediately preceding sentence, Licensee and its Affiliates may enter into Sublicenses for the Intellectual Property and Licensed Intellectual Property, as Licensee may determine in its sole discretion, provided that: (a) promptly uponexecution of a Sublicense, Licensee and its Affiliates shall furnish Verenium with the name and current mailing address of each Sublicensee and with a copy of each Sublicense (which such information, including such Sublicense, shall be treated asConfidential Information of Licensee pursuant to Article VI below and which by necessity may be redacted in part); and (b) the terms of any such Sublicense shall be consistent with the terms of this Agreement. 

2.3 **Retained Enzyme Libraries**. Subject to the terms and conditions contained in this Agreement, Vereniumfor itself and its Affiliates hereby grants to Licensee and its Biofuels Affiliates a non-exclusive, worldwide, royalty free and fully paid, nontransferable (except as provided in Section 12.3), non-assignable, non-sublicensable, perpetual andirrevocable right and license to Verenium’s and its Affiliates’ right, title and interest in and to the Retained Enzyme Libraries to use, improve, modify, enhance, create derivative works of, or accessions to, update, adopt, transform,translate or change any of the contents of the Retained Enzyme Libraries, subject to all applicable Third Party Licensor Agreements, Third Party Consents and Third Party Licensee Agreements (the “Retained Enzyme Libraries License”).Verenium shall deliver to Licensee a copy of the Retained Enzyme Libraries by delivering or allowing Licensee access to collect a clone or an aliquot of the culture from the Retained Enzyme Libraries, at Licensee’s sole cost and expense. TheRetained Enzyme Libraries are non-transferable and non-assignable by Licensee and its Affiliates except as expressly set forth in Section 12.3 hereof, and no right with respect to the Retained Enzyme Libraries shall be sublicensable, by Licensee orits Affiliates, without Vereniums’s prior written consent, provided, however, that to the extent the Retained Enzyme Libraries contain an isolated clone of a gene or its DNA sequence, a subclone thereof, or a purified enzymeproduced therefrom, Licensee and its Affiliates may transfer to any particular Third Party (including the Affiliates of such Third Party) up to one hundred (100) unique samples (such samples to be comprised of clones or DNA sequences, subclonesand/or enzymes totaling one hundred (100) in the aggregate) without the prior written consent of Verenium, subject to a written agreement with such Third Party that includes confidentiality and

 
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non-use obligations (such as through a material transfer agreement) consistent with the terms of this Agreement. For the avoidance of doubt, notwithstanding the limitations contained in thisSection 2.3, with respect to the Retained Enzymes Libraries License, Licensee and its Affiliates shall be permitted to sell any products derived from the Retained Enzymes Libraries in the Field of Use that are covered by any LicenseeImprovements. 

2.4 **Regulatory Submissions**. Licensee, in its discretion, shall have the right tosubmit any regulatory submissions with respect to the Field of Use. Licensee shall own all right, title and interest in and to such regulatory submissions and approvals, all information and data thereunder and all such government authorizations,registrations and approvals shall be in the name of Licensee. Verenium, at Licensee’s request, shall provide all requested assistance with respect to the regulatory submissions, approvals and/or any other communications arising fromLicensee’s actions under this Section 2.4. Licensee shall reimburse Verenium’s reasonable costs and expenses incurred with respect to such requested assistance based upon an agreed budget for such costs and expenses upon presentationby Verenium of invoices or receipts from a Third Party documenting the amount and payment of such reasonable costs and expenses. 

2.5 **Third Party Consents**. Notwithstanding any other provision of this Agreement, neither Verenium nor its Affiliates are required to make a disclosure of any Licensed Rights, including anyLicensed Intellectual Property (including any Software Contract), or procure any rights on Licensee’s behalf, or grant any right, license or sublicense under or to any of the foregoing, to the extent that such Licensed Rights were acquired froma Third Party Licensor under a Third Party Licensor Agreement that prevents or restricts disclosure of such Licensed Rights or the granting of rights, licenses or sublicenses under such Licensed Rights, or such disclosure is otherwise subject to aThird Party Consent requirement, except that (a) if the Third Party Licensor Agreement restricts disclosure of such Licensed Rights only to a sublicensee that is bound by confidentiality obligations, then Verenium shall disclose such LicensedRights to Licensee subject to the confidentiality obligations of Article VI, and (b) if the Third Party Licensor Agreement restricts disclosure of such Licensed Rights or the granting of rights, licenses or sublicenses under such LicensedRights by requiring the prior written consent of the Third Party Licensor, then Licensee may seek the Third Party Consent, and, if Licensee obtains such Third Party Consent, Verenium shall grant the license or sublicense under such Licensed Rightspursuant to Section 2.1. Verenium shall not be required to assist Licensee in any way or secure on Licensee’s behalf, any Third Party Consents. Licensee shall be solely responsible for the payment of any money or other consideration thatmay be required to be paid or given to such Third Party at any time to secure, provide or obtain any Third Party Consents (collectively, “Third Party Consent Payments”). At no time shall Verenium be obligated to pay any money or anyother consideration or to amend the terms of any Third Party Licensor Agreements, at any time to secure, provide or obtain any Third Party Consent. The disclosure, license, sublicense or use of the Licensed Rights hereunder shall be made subject toany confidentiality obligations or other restrictions required under the Third Party Licensor Agreement pursuant to which such Licensed Rights were acquired from such Third Party. If a Third Party Licensor Agreement provides a non-assert right orprotection with respect to Patent Rights to Verenium or any of its Affiliates, if and to the extent the express terms of such non-assert provide or extend the benefits or protections of such provision expressly to a sublicensee of Verenium or any ofits Affiliates, then subject to the terms of the Third Party Licensor Agreement, Licensee will be entitled to the benefits or protections of such provision to the extent expressly allowed by such Third Party Licensor Agreement and provided (x)Verenium and its Affiliates shall be under no obligation to pay any money or any other consideration or to amend the terms of any Third Party 

 
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Licensor Agreements at any time to secure, provide or obtain the benefits of such non-assert provision to Licensee or its Affiliates, (y) Verenium and its Affiliates shall not be required tomake any claim or engage in any litigation or other proceeding to obtain the benefit of any such non-assert provision for Licensee and its Affiliates, and (z) Licensee and its Affiliates shall be required to adhere to the express terms of suchnon-assert provision and not cause Verenium or its Affiliates to be in breach of or default under such Third Party Licensor Agreement. 

2.6 **Third Party Licensee Agreement Restrictions**. If any Licensed Rights are subject to licenses or sublicenses granted to Third Parties as of the Effective Date under any Third PartyLicensee Agreement, to the extent that such Licensed Rights granted hereunder conflict with the terms of such Third Party Licensee Agreement, such Licensed Rights granted hereunder are granted subject to such terms of such Third Party LicenseeAgreement. 

2.7 **Audit of Licensed Rights**. Verenium shall have the right to inspect at itsexpense, through an independent auditing firm in the United States reasonably acceptable to Licensee, which acceptance will not be unreasonably delayed or denied by Licensee (“Technology Auditor”), Licensee’s and itsAffiliates’ use of the Licensed Rights limited to once per year (and additionally to the extent that an audit shows that Licensee and its Affiliates are not using the Licensed Rights in material conformance with the terms of this Agreement) toconfirm to Verenium Licensee’s and its Affiliates’ compliance with this Agreement. Any such inspections shall be conducted during normal business hours at reasonable times and upon reasonable prior written notice. If any such inspectionreveals that Licensee and its Affiliates are not using the Licensed Rights in material conformance with the terms of this Agreement, Licensee and its Affiliates shall promptly take corrective action as directed by Verenium, and Licensee and itsAffiliates shall, as soon as commercially possible using Licensee’s and its Affiliates reasonable commercial efforts, provide evidence of such corrective action to Verenium including (a) furnishing to Verenium a written certification froman officer of Licensee that the corrective action has been taken and completed in all material respects, and (b) allowing the Technology Auditor to reinspect the use of the Licensed Rights to verify the corrective action has been taken andcompleted in all material respects. If Licensee or its Affiliates do not take and complete the corrective action(s) as soon as commercially possible using Licensee’s and its Affiliates’ reasonable commercial efforts, Verenium may exerciseits rights and remedies under this Agreement, at law and in equity with respect thereto. 

2.8**Biodiversity Agreements**. If Verenium owes any payment under any biodiversity agreement referenced in Section 3.11 of the Disclosure Schedules to the Asset Purchase Agreement as a result of any sale, license or other transfer byLicensee or any of its Affiliates or their respective licensees to a Third Party of any product developed or produced through the use of the Retained Enzyme Libraries and/or the use of that portion of the Intellectual Property or the LicensedIntellectual Property that covers the Retained Enzyme Libraries, Verenium will invoice Licensee for the amount of such payment, and Licensee shall pay the invoice within thirty (30) days after the receipt of the invoice. Licensee shall have theright to negotiate with the other contracting party or parties under any such biodiversity agreement with respect to any such payments or other terms, including with respect to entering into a new biodiversity agreement to replace any existingagreement and Verenium shall cooperate with Licensee and use all commercially reasonable efforts to assist Licensee in obtaining a change in such terms or entering into a new biodiversity agreement. 

 
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**ARTICLE III**

**Licensee Improvements; Licensee Non-Assert**

3.1 **Licensee Improvements**. Subject to any applicable Third Party Licensor Agreement and Third Party Consentand Third Party Licensee Agreement, all right, title and interest in and to all Licensee Improvements derived from or arising as a result of the practice of the Licensed Rights by Licensee, its Biofuels Affiliates and Sublicensees, as permitted bythis Agreement, which Licensee, its Affiliates or Sublicensees may have or acquire (other than through Verenium), make or develop, or have made or developed, solely or jointly with any other Person or Persons, shall be owned by Licensee, itsAffiliates or Sublicensees, respectively. 

3.2 **Licensee Non-Assert**. In the event that the use orpractice (a) by Verenium or its Affiliates of the Enzyme Libraries pursuant to the BP License Agreement, or (b) by Verenium, its Affiliates or licensees of the Retained Enzyme Libraries, including without limitation in each case anymodification, enhancement, derivative, transformation, translation or change to any of the Enzyme Libraries or Retained Enzyme Libraries made by Verenium or its Affiliates or Sublicensees (collectively, “Verenium Activities”), wouldinfringe any (i) Patent Right of Licensee or its Affiliates that claims any Licensee Improvement or any modification, enhancement, derivative, transformation, translation or change to any of the Enzyme Libraries or Retained Enzyme Librariesmade by Licensee or its Affiliates or (as applicable) licensees or (ii) patent issuing from a patent application filed by Licensee pursuant to Section 4.3.4 (“Licensee Improvement Patent Rights”), then Licensee herebycovenants to Verenium and its Affiliates and (as applicable) licensees that Licensee and its Affiliates will not, and will cause the applicable Third Party that owns or has been granted a license or sublicense to any Licensee Improvement PatentRights not to, assert or enforce such Licensee Improvement Patent Rights against Verenium and (as applicable) licensees and its Affiliates solely with respect to the Verenium Activities. Upon a Verenium Change in Control (as defined in the BPLicense Agreement), this Section 3.2 shall be limited only to Verenium Activities in the Verenium Field of Use (as defined in the BP License Agreement) and shall terminate and be of no further force and effect with respect to VereniumActivities in the Field of Use. If Verenium or its successor entity enters into a BP Field of Use License (as defined in the BP License Agreement) with Licensee pursuant to Section 2.4 of the BP License Agreement, this Section 3.2 withrespect to Verenium Activities in the Field of Use shall be reinstated and become effective as of the effective date of such BP Field of Use License. 

 
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**ARTICLE IV**

**Disclosure of Licensed Rights and Marking**

4.1 **Disclosure**. All disclosures of Licensed Rights under this Agreement shall be made at locations in theUnited States of America designated by Verenium, except as otherwise provided for in this Agreement. 

4.2**Marking**. Licensee agrees to mark any Licensed Rights with the appropriate (a) Patent Rights patent number pursuant to the terms of 35 United States Code ¶ 287 and/or (b) any other Verenium registration number(s) orVerenium proprietary rights designations as applicable. 

4.3 **Assignment of Patent Rights Prior ToAbandonment and Patent Applications**. 

4.3.1 Verenium shall be under no obligation tofile or prosecute any patent application, secure any patent, or maintain any patent application or patent under the Licensed Rights. However in the event that Verenium decides not to continue prosecution of or not to pay any required taxes ormaintenance fees for any such patent application or patent within the Licensed Rights, then Verenium shall, at least ninety (90) days before the date which such action is required, send written notice to Licensee advising of such decision andshall maintain any such application or patent active up to such date. 

4.3.2 Upon receipt ofthe notice provided for in Section 4.3.1, Licensee shall have the right but not the obligation to take action at its own expense to maintain such patent application or patent active. If Licensee decides to maintain such patent application orpatent active, Licensee will provide written notice to Verenium of such decision and Verenium shall have no obligation to take any action or do anything other than the following upon receipt of written request from Licensee: 

(a) Promptly assign such patent application or patent or such invention to Licensee or its designee; and

(b) Provide Licensee or its designee with such information and documents necessary to maintainsuch patent application or patent active or in force. 

4.3.3 In the event of an assignmentpursuant to Section 4.3.2, Licensee agrees to grant and shall grant to Verenium and its Affiliates a fully paid up, irrevocable, non-exclusive, worldwide immunity from suit under the assigned patent application or patent or any patentapplication filed for any assigned invention. The immunity from suit granted in this Section 4.3.3 shall convey to Licensee and its Affiliates the right to exercise all rights of the new owner, or its designee as the case may be, except for theright to: 

(a) convey title; 

(b) grant exclusive licenses; and 

(c) sue for enforcement, 

under the BP License Agreement. 

 
11 

4.3.4 Following a written request by Licensee to Verenium toprepare and file a patent application on an invention, or file a patent application in an additional jurisdiction, within the Licensed Rights, if Verenium notifies Licensee in writing within ninety (90) days after receipt of such request thatit does not intend to prepare and file a patent application on such invention, Licensee shall have the right to prepare and file such patent application on such an invention or in such additional jurisdiction, at Licensee’s sole cost andexpense, and Licensee will provide written notice to Verenium of its exercise of such right. Verenium shall provide Licensee or its designee with such information and documents necessary to prepare and file such patent application. Verenium shallassign and hereby assigns to Licensee all Verenium’s right title and interest in and to such patent application. 

4.3.5 In the event Licensee does not choose to take action at its own expense to maintain such patent application or patent active or to file a patent application on such invention, and fails to give therequired notice under Section 4.3.2 or 4.3.4, as applicable, then Verenium shall be free to sell, assign or otherwise transfer said patent application or patent to any Third Party, including any competitor of either Licensee or Vereniumnotwithstanding any other restriction, but subject to the grant of Licensed Rights hereunder as subject to Section 4.3.3 above. 

**ARTICLE V**

**Fully Paid License**

5. **Royalty Free, Fully Paid Licenses**. The licenses and other rights granted pursuant to this Agreement byVerenium to Licensee and its Affiliates shall be royalty-free and deemed fully paid-up in consideration for the Parties entering into and consummating the transactions contemplated by the Asset Purchase Agreement. 

**ARTICLE VI**

**Confidentiality**

6.1 **Confidentiality**.During the Term, each Party in its capacity as a Receiving Party (on behalf of itself and its Affiliates) shall hold all Confidential Information of the Disclosing Party in confidence and shall not disclose, use, copy, publish, distribute, display,disseminate, provide access to or in any way disburse any Confidential Information, except: (a) as reasonably necessary to carry out its responsibilities under this Agreement; (b) as otherwise allowed under this Agreement; or (c) withwritten consent of the Disclosing Party. The Receiving Party will use at least the same standard of care as it uses to protect proprietary or confidential information of its own (but no less than reasonable care) to ensure that its and itsAffiliates’ employees, agents, consultants and other representatives do not disclose or make any unauthorized use of the Confidential Information of the Disclosing Party. 

6.2 **Exceptions**. The obligations set forth in Section 6.1 shall not apply to any portion ofConfidential Information which the Receiving Party can prove by competent evidence: 

6.2.1 isnow, or hereafter becomes, through no act or failure to act on the part of the Receiving Party or its Affiliates in breach of this Agreement, generally known or available; 

 
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6.2.2 is known by the Receiving Party or its Affiliates at the time of receiving such information as evidenced by documentation pre-dating disclosure to the Receiving Party or its Affiliates by theDisclosing Party; 

6.2.3 is furnished to the Receiving Party by a Third Party that is free todisclose to others without breach of any obligation of confidentiality or non-disclosure; or 

6.2.4 was independently developed by the Receiving Party or its Affiliates without reference toinformation provided by the Disclosing Party, as evidenced by clear documentation. 

6.3 **PermittedDisclosures**. The Receiving Party and its Affiliates are expressly authorized to disclose Confidential Information of the Disclosing Party as expressly permitted by this Agreement or if and to the extent such disclosure is reasonablynecessary in the following instances: 

6.3.1 exercising the rights and performing theobligations of the Receiving Party under this Agreement; 

6.3.2 prosecuting or defendinglitigation as permitted by this Agreement; 

6.3.3 complying with applicable laws andregulations; 

6.3.4 disclosure to FDA, DOE, USDA or EPA or any comparable or successorgovernment agencies worldwide; 

6.3.5 disclosure to employees, agents, consultants andindependent contractors of the Receiving Party and its Affiliates only on a need-to-know basis and solely as necessary in connection with the performance of this Agreement, provided that each disclosee must be bound by similar obligations ofconfidentiality and non-use at least as equivalent in scope as those set forth in this Article VI prior to any such disclosure; or 

6.3.6 disclosure to any bona fide potential investor, investment banker, acquirer, merger partner, or other potential financial partner; provided that in connection with such disclosure, the DisclosingParty shall inform each disclosee of the confidential nature of such Confidential Information and use reasonable efforts to cause each disclosee to treat such Confidential Information as confidential. 

In the event the Receiving Party or any of its Affiliates is required to make a disclosure of the Disclosing Party’sConfidential Information pursuant to Section 6.3.2 or 6.3.3, it will, except where impracticable, provide the Disclosing Party at least sufficient prior written notice of any such disclosure so that the Disclosing Party may seek a protectiveorder or other appropriate remedy. Notwithstanding the foregoing, the Receiving Party and its Affiliates shall take all reasonable action to preserve the confidentiality of the Confidential Information of the Disclosing Party, including, withoutlimitation, by cooperating with the Disclosing Party to obtain a protective order or other appropriate remedy. 

 
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6.4**Notice of Non-Permitted Disclosure**. If the Receiving Party becomes aware of any unauthorized use or disclosure of the Confidential Information of the Disclosing Party, the Receiving Party shall promptly notify the Disclosing Party inwriting. 

6.5 **Injunctive Relief**. Given the nature of the Confidential Information and thecompetitive damage that would result to the Disclosing Party upon unauthorized disclosure, use or transfer of its Confidential Information to any Third Party, the Parties agree that monetary damages may not be a sufficient remedy for any breach ofthis Article VI. In addition to all other remedies, the Disclosing Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any breach or threatened breach of this Article VI.

**ARTICLE VII**

**Representations and Warranties**

7.1**Representations and Warranties of Verenium**. Verenium represents and warrants to Licensee as of the Effective Date: 

7.1.1 Verenium (a) is a corporation duly organized, validly existing and in good standing under the laws of its incorporating jurisdiction, and (b) has all requisite power and authority to enterinto this Agreement. 

7.1.2 This Agreement is a valid and binding obligation of Vereniumenforceable in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate in any material respect any law or regulation of anycourt, governmental body or administrative or other agency having jurisdiction over it. 

7.2 **VereniumDisclaimer**. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, VERENIUM EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESSFOR A PARTICULAR PURPOSE AND WARRANTIES BASED UPON COURSE OF DEALING OR TRADE USAGE. 

7.3**Licensee’s Representations and Warranties**. Licensee represents and warrants to Verenium as of the Effective Date: 

7.3.1 Licensee (a) is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of formation, and (b) has all requisite power andauthority to enter into this Agreement. 

7.3.2 This Agreement is a valid and binding obligationof Licensee enforceable in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate in any material respect any law orregulation of any court, governmental body or administrative or other agency having jurisdiction over it. 

 
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7.4**Licensee Disclaimer**. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.3, LICENSEE EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY’ OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT,MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES BASED UPON COURSE OF DEALING OR TRADE USAGE. 

**ARTICLEVIII**

**Risk Allocation**

8.1 **Indemnification**. 

8.1.1 **By Verenium**. Subject to the provisions of Section 8.4 and Article IX below,Verenium hereby agrees to defend, indemnify and hold harmless the Licensee Indemnitees from and against any losses, damages, liabilities, expenses and costs, including reasonable attorneys’ fees and legal expenses (“Losses”)incurred by any of the Licensee Indemnitees as a result of any claim, demand, action or other proceeding by any Third Party (“Claim”) arising from or related to (a) any material breach of the representations, warranties,covenants or agreements of Verenium under this Agreement; and (b) any negligence or intentional misconduct by Verenium, its Affiliates or their respective employees, agents or representatives in performing its covenants, agreements orobligations under this Agreement. The foregoing indemnification, defense and hold harmless obligation will not apply to the Licensee Indemnitees, respectively, in the event and to the extent that a court of competent jurisdiction determines thatsuch Claims arose as a result of any Licensee Indemnitee’s respective negligence, intentional misconduct or breach of this Agreement, but only up to and to the extent of the respective Licensee Indemnitee’s proportional share of fault orresponsibility. 

8.1.2 **By Licensee**. Subject to the provisions of Section 8.4and Article IX below, Licensee hereby agrees to defend, indemnify and hold harmless the Verenium Indemnitees from and against any Losses incurred by any of the Verenium Indemnitees as a result of any Claim arising from or related to(a) any material breach of the representations, warranties, covenants or agreements of Licensee under this Agreement; and (b) any negligence or intentional misconduct by Licensee, its Affiliates or their respective employees, agents orrepresentatives in performing the covenants, agreements or obligations under this Agreement. The foregoing indemnification, defense and hold harmless obligation will not apply in the event and to the extent that a court of competent jurisdictiondetermines that such Claims arose as a result of any Verenium Indemnitee’s negligence, intentional misconduct or breach of this Agreement, but only up to and to the extent of the respective Verenium Indemnitee’s proportional share of faultor responsibility. 

8.2 **Procedure**. To receive the benefit of indemnification underSection 8.1, the Indemnitees must (a) promptly provide notification of the claim and reasonable cooperation to the Indemnitor; provided that failure to promptly notify Indemnitor will not limit the claim for indemnification hereunderexcept to the extent that such failure actually prejudices Indemnitor, (b) tender to Indemnitor complete control of the defense, settlement and compromise of the 

 
15 

claim; provided that Indemnitor will not settle any such claim without the consent of Indemnitee unless a full release of Indemnitee is obtained from all Third Party claimants; and (c) notmake any admissions to any Third Party regarding the claim or settle any indemnified claim except as approved by Indemnitor in writing or as required by applicable law. Any Indemnitee may participate in its defense at its own cost and expense andIndemnitor will consult with Indemnitee in connection with defense and settlement. The foregoing states the entire liability of the applicable Indemnitor in respect of any Claim. Nothing contained in this provision or this Agreement is, however,intended to require Indemnitor to pay to any Indemnitee any amount other than (i) for the costs of Indemnitee’s defense, if Indemnitor elects not to defend; and (ii) such amounts actually paid by Indemnitee to the Third Party claimantif Indemnitor fails to pay the Third Party claimant directly for any settlement approved by Indemnitor or any finally awarded judgment in favor of the Third Party claimant. 

8.3 **Insurance**. Unless self insured, each Party will procure and maintain insurance, including productliability insurance, adequate to cover its obligations hereunder and which are consistent with normal business practices of prudent companies similarly situated at all times during the Term. It is understood that such insurance will not be construedto create a limit of either party’s liability with respect to its indemnification, defense or hold harmless obligations under this Article VIII. 

8.4 **LIMITATION OF LIABILITY**. EXCEPT FOR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE VI OR AS OTHERWISE PROVIDED IN SECTION 8.1 WITH RESPECT TO THIRD PARTY CLAIMS, NO PARTYWILL BE LIABLE TO ANY OTHER PARTY FOR LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED, UNDER ANYTHEORY OF LIABILITY. 

**ARTICLE IX**

**Infringement**

9.1 **Notice**. Each Partyshall notify the other Party in writing of any known or suspected Third Party activity that may infringe, misuse or in any way misappropriate the Licensed Rights, which notice shall set forth available facts with respect to such infringing activity.

9.2 **Infringement Actions – Verenium Rights**. 

(a) For any known or suspected Third Party activity that may infringe, misuse or in any way misappropriatethe Licensed Rights, Verenium shall have the right, but not the obligation, to commence any action including, without limitation, notifying the infringer to cease and desist all such infringing activity, filing a complaint and/or instituting a lawsuit, for any known or suspected Third Party activity that may infringe any of the Licensed Rights or otherwise misuse or misappropriate any Licensed Rights (collectively, “Action”). In such instances in which Verenium commences anAction, Verenium shall have sole control of any such Action including, without limitation, any 

 
16 

settlement negotiations. Verenium shall be responsible for all costs and expenses for any Action that Verenium initiates. Licensee agrees to cooperate with and join as a necessary party in anyAction at the request of Verenium and at Verenium’s expense. Licensee may be represented by Licensee’s counsel in any such Action, at Licensee’s own expense, provided that Licensee’s counsel shall act in an advisory but notcontrolling capacity. 

(b) The prosecution, settlement, or abandonment of any Action broughtunder Section 9.2(a) shall be at Verenium’s discretion. 

(c) All recoveries by way ofroyalties, damages and claims (including penalties and interest) with respect to an Action instituted during the Term, excluding any prosecuted by Licensee under Section 9.3 below, shall belong to Verenium. 

9.3 **Infringement Actions – Licensee Rights**. 

(a) If a Third Party infringes, misuses or in any way misappropriates any of theLicensed Rights in the Field of Use, Licensee shall first make a written request that Verenium proceed in accordance with Section 9.2. If Verenium fails or declines to proceed within ninety (90) days after receipt of a written request byLicensee to do so, and Verenium does not have a reason based upon a reasonable commercial interest of Verenium for failing or declining to proceed in accordance with Section 9.2 hereof, then Licensee shall have the right, but not theobligation, to take any Action in defense of the Licensed Rights in the Field of Use, provided, that Licensee provides Verenium written notice of the Action, which notice shall include a description of the Action, promptly after Licenseetakes any Action. Any Action by Licensee pursuant to this Section 9.3 shall be at Licensee’s own expense, provided, that within thirty (30) days after receipt of the notice of the Action, Verenium shall have the right tojointly prosecute the Action and to fund up to one-half ( 1/2) the costs thereof. 

(b) In such instancesin which Licensee commences an Action, Licensee shall have sole control of any such Action including, without limitation, any settlement negotiations. Verenium may be represented by Verenium’s counsel in any such Action, at Verenium’s ownexpense (subject to reimbursement under this section), provided that, subject to Verenium’s right to jointly prosecute pursuant to Section 9.3(a) above, Verenium’s counsel shall act in an advisory but not controlling capacity.Verenium will cooperate with Licensee, at Licensee’s expense, and execute any documents reasonably necessary for Licensee to exercise Licensee’s rights under this Section. 

(c) All recoveries by way of royalties, damages and claims (including penalties and interest) with respectto an Action instituted by Licensee pursuant to Section 9.3(b) above, shall belong to Licensee. 

 
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**ARTICLE X**

**Term**

10.1 **Term**. The term of this Agreement (the “Term”) shall begin upon the Effective Date and continue in perpetuity, unless terminated by written agreement of Verenium andLicensee. 

10.2 **Rights in Bankruptcy**. The Parties agree and acknowledge that the rights grantedby this Agreement are licenses of rights to “intellectual property” as such term is defined under Section 101 of the Title 11 of the United States Code, 11 U. S. C. §§ 101-1330, as now in effect or hereafter amended(the “Bankruptcy Code”). The Parties further acknowledge and agree that Licensee shall retain and may fully exercise and enjoy all rights and elections available to it under the Bankruptcy Code including those rights underSection 365(n) of the Bankruptcy Code, as well as all other applicable laws and regulations. The Parties further agree that in the event of the commencement of a bankruptcy proceeding under the Bankruptcy Code by or against a licensor of rightsto intellectual property under this Agreement, Licensee shall be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, and same, if not alreadyin its possession, shall be promptly delivered to Licensee upon Licensee’s written request upon any such commencement of a bankruptcy proceeding, unless such licensor elects to continue to perform all of its obligations under this Agreement, or(ii) if not delivered under (i) above, upon rejection of this Agreement by or on behalf of such licensor. 

**ARTICLE XI**

**Dispute Resolution**

11.1 **Objective**.The Parties recognize that disputes as to certain matters may from time to time arise under this Agreement which relate to the rights or obligations of Verenium and/or Licensee under this Agreement. It is the objective of the Parties to establishprocedures to facilitate the resolution of disputes arising under this Agreement in an expedient manner by mutual cooperation and without resort to litigation. To accomplish this objective, the Parties agree to follow the procedures set forth inthis Article XI to resolve any controversy or claim arising out of, relating to or in connection with any provision of this Agreement, if and when a dispute arises under this Agreement. 

11.2 **Notice of Dispute**. If there is an unresolved dispute relating to the terms of this Agreement, or theperformance thereof, Licensee or Verenium may commence the dispute resolution process by giving the other party formal written notice of the dispute, including a description for the dispute in reasonably detail including the facts underlying thedispute, and the provision of this Agreement under which the dispute has arisen. 

11.3 **Resolution bySenior Executives**. If the dispute remains unresolved for 30 days after the dispute notice has been delivered, Licensee or Verenium may refer such dispute to the President of Licensee and the Chief Executive Officer of Verenium, who shallmeet in person or by telephone within 30 days after such referral to attempt in good faith to resolve such dispute. If such matter cannot be resolved by discussion of such officers within such 30-day period (as may be extended by mutual writtenagreement), such dispute shall be resolved in accordance with Section 11.4. 

 
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11.4**Arbitration**. Any dispute that is not resolved as provided in Section 11.3 may be referred to arbitration in accordance with this Section 11.4, by Licensee or Verenium. Such arbitration shall be conducted in New York, NewYork, or any other place selected by mutual agreement of Licensee and Verenium, in accordance with the Commercial Arbitration Rules of the AAA. Such arbitration shall be conducted by a single arbitrator with knowledge of and experience with thealternative energy industry appointed by mutual consent of Licensee and Verenium or appointed by the AAA if the Parties are unable to select an arbitrator within 30 days. The arbitrator shall apply the governing law set forth in Section 12.1hereof. The arbitrator shall determine what discovery shall be permitted, consistent with the goal of limiting the cost and time which the Parties must expend for discovery; provided the arbitrators shall permit such discovery as they deem necessaryto permit an equitable resolution of the dispute. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or a true copy thereof. The decision of the arbitrator shall befinal and binding and conclusive on the Parties, and the judgment thereon may be entered into any court having jurisdiction over the Parties and the subject matter thereof. The costs and expenses of the arbitration, but not the costs and expenses ofthe Parties, will be shared equally by the Licensee and Verenium; provided that if the arbitrator determines that one Party prevailed in the proceeding, then the other Party will bear the entire cost and expense of the arbitration. If a Party failsto proceed with arbitration, unsuccessfully challenges the arbitration award, or fails to comply with the arbitration award, the other Party is entitled to costs, including reasonable attorneys’ fees, for having to compel arbitration or defendor enforce the award. Except as otherwise required by law, the Parties and the arbitrator will maintain as confidential all information or documents obtained during the arbitration process, including the resolution of the dispute. 

11.5 **Decision**. The arbitrator shall, within 15 days after the conclusion of the arbitration hearingpursuant to Section 11.4, issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator shall be authorized toaward compensatory damages, but shall not be authorized (a) to award non-economic damages, such as for emotional distress, pain and suffering or loss of consortium, (b) to award punitive damages, or (c) to reform, modify or materiallychange this Agreement; provided, however, that the damage limitations described in clauses (a) and (b) of this sentence will not apply if such damages are statutorily imposed. 

11.6 **Court Actions**. Notwithstanding the foregoing, (a) any Party shall be permitted to seek apreliminary injunction or other equitable remedy in the courts to preserve rights, which may otherwise be lost or encumbered in the absence of injunctive relief, or to preserve the status quo, including but not limited to preserve confidentiality ofConfidential Information, and (b) any dispute, controversy or claim relating to the scope, validity, enforceability or infringement of any Licensed Rights or other intellectual property rights that are the subject of this Agreement shall besubmitted to a court of competent jurisdiction in which such Licensed Rights or other intellectual property rights were granted or arose. 

 
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11.7**Remedies Cumulative**. The remedies of the Parties are cumulative and not exclusive, and except as otherwise expressly provided in this Agreement to the contrary, each Party shall have all rights and remedies available under thisAgreement, at law or in equity. 

**ARTICLE XII**

**General Provisions**

12.1 **Governing Law**. This Agreement will be governed and construed in accordance with the laws of the State of New York, United States of America, to the exclusion of both its principles andrules on conflicts of laws and the provisions of the United Nations Convention on Contracts for the International Sale of Goods. 

12.2 **Independent Contractors**. The Parties shall perform their obligations under this Agreement as independent contractors, and nothing in this Agreement is intended or will be deemed toconstitute a partnership, agency or employer-employee relationship among the Parties. None of the Parties will have any right, power or authority to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of anyother Party. 

12.3 **Assignment**. Except as expressly provided hereunder, neither this Agreementnor any rights or obligations hereunder may be assigned or otherwise transferred directly or indirectly (including without limitation by merger including by or through merger of a subsidiary, sale of stock, sale of assets or otherwise) by any Partywithout the prior written consent of Licensee (in the case of any assignment or transfer by Verenium), or Verenium (in the case of any assignment or transfer by Licensee), which consent shall not be unreasonably withheld; provided, however, thateither Party may assign or otherwise transfer this Agreement and its rights and obligations under this Agreement without the other Party’s consent in connection with the transfer or sale of all or substantially all of the collective business orassets of the Party related to this Agreement to a Third Party, whether by merger (including by or through merger of a subsidiary), sale of stock, sale of assets or otherwise, provided that this Agreement and the BP Non-Competition Agreement (in thecase of any assignment or transfer by Licensee), must be assumed by the Third Party in writing, and the assigning Party shall remain secondarily liable and responsible to the non-assigning Party for the performance and observance of all such dutiesand obligations by such Third Party under this Agreement and under the BP Non-Competition Agreement (in the case of any assignment or transfer by Licensee), provided further that in the event of a transaction (whether this Agreement is actuallyassigned or is assumed by the acquiring party by operation of law (e.g., in the context of a reverse triangular merger)), intellectual property rights of the acquiring party in such transaction (if other than one of the Parties to this Agreement)shall not be included in the intellectual property rights licensed or assigned under this Agreement. Either Party can transfer its rights and obligations under this Agreement to an Affiliate without the consent of the other Party; however, theassigning party can only transfer its rights and obligations under this Agreement to an Affiliate if such assigning Party transfers this Agreement and the applicable Non-Competition Agreement together, and in whole but not in part, to an Affiliatethat is wholly owned directly or indirectly by the ultimate parent company of the assigning Party, without the other Party’s consent, and provided that the assigning Party shall remain secondarily liable and responsible to the other Party forthe performance and observance of all such duties and obligations by such Affiliate and such Affiliate assumes in writing this Agreement and the applicable Non-Competition Agreement. 

 
20 

 

ThisAgreement shall be binding upon successors and permitted assigns of the Parties. Any assignment or transfer by operation of law or Change in Control not in accordance with this Section 12.3 will be null and void. 

12.4 **Entire Agreement; Amendment; Waiver**. This Agreement, together with all schedules attached hereto whichare hereby incorporated by reference, the Asset Purchase Agreement, the BP Non-Competition Agreement, the BP License Agreement, the Verenium Non-Competition Agreement and the other agreements by or among the Parties expressly referred to herein orin the Asset Purchase Agreement, the terms and conditions of which are herby incorporated by reference, constitutes and contains the entire understanding and agreement of the parties respecting the subject matter hereof and cancels and supersedesany and all prior and contemporaneous negotiations, correspondence, understandings, and agreements between the Parties, whether oral or written, regarding the subject matter hereof. No waiver, modification, or amendment of any provision of thisAgreement will be valid or effective unless made in writing and signed by a duly authorized officer of each of the Parties. A waiver by a Party of any of the terms and conditions of this Agreement in any instance will not be deemed or construed tobe a waiver of such term or condition for the future, or of any subsequent breach hereof. 

12.5**Severability**. When possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable laws and regulations, but, if any provision of this Agreement is held to be prohibited by orinvalid under applicable laws and regulations, such provision will be ineffective but only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or of this Agreement. The Parties will make a good faitheffort to replace the invalid or unenforceable provision with a valid one which in its economic effect is most consistent with the invalid or unenforceable provision. 

12.6 **Further Assurances**. Each Party agrees that, subsequent to the execution and delivery of this Agreementand without any additional consideration, it will execute and deliver any further legal instruments and perform any acts which are or may become reasonably necessary to effectuate the purposes of this Agreement. 

12.7 **No Third Party Beneficiaries**. This Agreement is neither expressly or impliedly made for the benefit ofany Third Party except for the Indemnitees as provided in Section 8.1. 

12.8 **Force Majeure**.No Party shall be liable to any other Party for failure or delay in the performance of any of its obligations under this Agreement for the time and to the extent such failure or delay is caused by any Force Majeure Event. The Party affected by suchForce Majeure Event will provide the other Parties with full particulars thereof as soon as it becomes aware of the same (including its best estimate of the likely extent and duration of the interference with its activities), and will usecommercially reasonable efforts to overcome the difficulties created thereby and to resume performance of its obligations as soon as practicable. 

 
21 

 

12.9**Notices**. Any notice to be given under this Agreement shall be in writing and shall be considered to be given and received in all respects when hand delivered, upon written confirmation of delivery after being sent by prepaid express orcourier delivery service, upon confirmation of receipt when sent by facsimile transmission or three days after deposited in the United States mail, certified mail, postage prepaid, return receipt requested, in each case addressed as follows, or tosuch other address as shall be designated by notice duly given: 

 

**If to Verenium:**

 

Verenium Corporation

55 Cambridge Parkway

Cambridge, MA 02142

Attention: Chief Legal Officer and Chief

Financial Officer

Fax: (617) 674-5353
 
**If to Licensee:**

 

BP Biofuels North America LLC

Attention: Director of Business Development

150 West Warrenville Road

Naperville, IL 60563

Fax: (630) 836-5855

12.10 **No ImpliedLicenses**. Nothing herein shall be construed as granting, by implication, estoppel or otherwise, any license or other right to any intellectual property other than as expressly granted hereunder. 

12.11 **Interpretation**. 

12.11.1 **Captions, Headings and Recitals**. The captions and headings of clauses contained inthis Agreement preceding the text of the articles, sections, subsections and paragraphs hereof are inserted solely for convenience and ease of reference only and shall not constitute any part of this Agreement, or have any effect on itsinterpretation or construction. The recitals appearing at the beginning of this Agreement are incorporated into this terms and conditions in full by this reference thereto. 

12.11.2 **Singular and Plural**. All references in this Agreement to the singular shall includethe plural where applicable, and all references to gender shall include both genders. 

12.11.3**Articles, Sections and Subsections**. Unless otherwise specified, references in this Agreement to any article shall include all sections, subsections, and paragraphs in such article; references in this Agreement to any section shallinclude all subsections and paragraphs in such sections; and references in this Agreement to any subsection shall include all paragraphs in such subsection. 

12.11.4 **Days**. All references to days in this Agreement shall mean calendar days, unlessotherwise specified. 

12.11.5 **Ambiguities**. Ambiguities and uncertainties in thisAgreement, if any, shall not be interpreted against any Party, irrespective of which Party may be deemed to have caused the ambiguity or uncertainty to exist. 

 
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12.11.6 **English Language**. This Agreement has been prepared in the English language and the English language shall control its interpretation. In addition, all notices required or permittedto be given hereunder, and all written, electronic, oral or other communications between the parties regarding this Agreement shall be in the English language. 

12.12 **Counterparts**. This Agreement may be executed simultaneously in counterparts, including by transmission of facsimile or PDF copies of signature pages to the Parties or theirrepresentative legal counsel, any one of which need not contain the signature of more than one party but both such counterparts taken together will constitute one and the same agreement. 

*[Remainder of Page Intentionally Blank]*

 
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**INWITNESS WHEREOF**, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers, effective as of the Effective Date. 

 

**Verenium Corporation**
    
**BP Biofuels North America LLC**

By:
 
/s/ Carlos A. Riva
    
By:
 
/s/ Susan A. Ellerbusch
 
Name:
  
Carlos A. Riva
     
Name:
 
Susan A. Ellerbusch
 
Title:
  
President and Chief Executive Officer
     
Title:
 
President

*[Signature Page – Verenium License Agreement]*

 

**Schedule 1.9**

**To Verenium License Agreement**

**Enzyme Libraries**

**[**...*******...**]**

***** Confidential Treatment Requested**

 

**Schedule 1.10**

**To Verenium License Agreement**

**Extended Term Patent Rights**

**[**...*******...**]**

***** Confidential Treatment Requested**

 

**Schedule 1.12**

**To Verenium License Agreement**

**Intellectual Property**

**[**...*******...**]**

***** Confidential Treatment Requested**

 

**Schedule 1.14**

**To Verenium License Agreement**

**Licensed Intellectual Property**

**[**...*******...**]**

***** Confidential Treatment Requested**

 

**Schedule 1.25**

**To Verenium License Agreement**

**Retained Enzyme Libraries**

**[**...*******...**]**

***** Confidential Treatment Requested**