EX-10.40



 Exhibit 10.40 
 **Text Omitted and Filed Separately 
 Confidential Treatment Requested

 Under 17 C.F.R. §§ 200.80(b)(4) 
 and 203.406 
 AMENDMENT ONE TO THE TECHNOLOGY LICENSE AGREEMENT

 This Amendment One to the Technology License Agreement with an effective date of September 25, 2010 (the
“Celexion License”) is made effective on the date of last signature below (“Amendment One Date”) and is entered into by and between BioAmber Inc. (formerly DNP Green Technology, Inc.) (“BioAmber” or “DNP
Green”) and Celexion, LLC (“Celexion”). 
 WHEREAS, BioAmber now intends to enter into: 

 

	(i)	a Development Agreement (the “Cargill Development Agreement”) with Cargill, Incorporated (“Cargill”) pursuant to which Cargill and/or BioAmber would
further develop or modify certain proprietary Cargill yeast strains (“CB1”) with the goal of fermenting dextrose and/or sucrose as the feedstock to produce free adipic acid and inorganic salts of adipic acid solely via the CoB-Adipic
Pathway (as defined below), and as more fully described in the Cargill Development Agreement; and 

  

	(ii)	in carrying out at least part of the work under the Cargill Development Agreement, Cargill will be a sub-contractor to BioAmber under the Celexion License (as defined
below) implementing portions of the CoB-Adipic Pathway within CB1 for the production of adipic acid and inorganic salts of adipic acid. The work carried out by Cargill as a sub-contractor to BioAmber will be subject to the terms and conditions of
the Celexion License, as amended hereby. Cargill will not be a sublicensee under the Celexion License, except to the extent that Cargill is performing the subcontractor work for BioAmber under the Cargill Development Agreement; and


  

	(iii)	a Commercial License Agreement (the “Cargill License”) with Cargill pursuant to which Cargill would grant and BioAmber would acquire certain rights to use
certain Cargill intellectual property rights, improvements made by Cargill and/or BioAmber under the Cargill Development Agreement and related know-how and patent rights, for the production of free adipic acid and inorganic salts of adipic acid, as
more fully described in the Cargill License; and 

 WHEREAS, Cargill, as a BioAmber sub-contractor, may, in
connection with the Cargill Development Agreement, create “DNP Green Improvements”, as defined in Section 7.1 of the Celexion License, as amended herein; and 
 WHEREAS, the undersigned wish to establish that “Cargill Intellectual Property” (as defined below) is not DNP Green Improvements. 
  
 * Confidential Treatment Requested 

  
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 ACCORDINGLY, the undersigned hereby agree as follows: 

A. ARTICLE VII IMPROVEMENTS of the Celexion License is hereby amended to replace Articles 7.1, 7.4 and 7.5 in their entirety with the
following: 
 7.1 During the term of this Agreement, DNP Green shall have [***], at its cost, to create “[***]” in the
Field of Use; provided that the Parties acknowledge that certain of such [***] may be useful both in the Field of Use and outside the Field of Use. “[***]. 
 For work carried out by Cargill and/or DNP Green under the Cargill Development Agreement (and any successor agreement, thereto directed to the production of Adipic Acid and/or inorganic salts of Adipic
Acid): 
 (i) “Cargill Intellectual Property” means all patent rights, know-how, trade secrets, systems, copyrighted
materials, software, database rights, technology, confidential information of Cargill not included in the foregoing and any other present or future intellectual property right, wherever in the world enjoyable, in each case that is controlled by
Cargill (or by its designee) by ownership or license and that in each case directly relates to [***] and any derivative works from the foregoing and developments, improvements and enhancements of the foregoing (including, but not limited to: [***].
Notwithstanding the above, but without otherwise limiting the rights of Celexion, for clarification Cargill Intellectual Property shall not include [***]; and 
 (ii) Cargill (or its designee) shall own and have unencumbered rights to utilize all Cargill Intellectual Property and Celexion shall obtain no rights to Cargill Intellectual Property as a result of this
Agreement. Without limiting the preceding and solely as a clarifying example: [***]. 
 7.4 DNP Green shall have the right at its
own discretion to secure intellectual property protection in any of the [***] initially in the name of DNP Green; provided that, without limiting the rights of DNP Green and Celexion and so long as Celexion’s rights are preserved and subject to
Section 7.5, and as an example, DNP Green may designate [***] to act on its behalf in securing such intellectual property protection for DNP Green. For clarification, Cargill shall have the right at its own discretion to secure intellectual
property protection in any of the Cargill Intellectual Property at its own expense in the name of Cargill or a designee. 
 7.5
Licensee shall promptly disclose to Celexion any [***]. Subject to the terms and conditions of this Agreement, Licensee hereby grants to Celexion and its Affiliates [***], with the right to grant and authorize the grant of sublicenses at any tier,
under Licensee’s or its designee’s (including without limitation, [***]) (directly or by assignment from [***] or other sub-contractors) [***], to make, have made, use, offer for sale, sell, import and otherwise dispose of products and
practice processes, and to practice processes and use, copy, modify and, if 
  
 * Confidential Treatment Requested 

  
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permitted under Article VI (Confidential Information), distribute information [***]. Licensee shall add a provision in each subcontract or other agreement (including without limitation [***] and
any successor agreement thereto) with a designee that Celexion shall be a third party beneficiary for purposes of any terms and conditions directly relating to [***]. 
  

	B.	All other terms of the Celexion License remain in full force and effect as amended hereby. 


This Amendment is made effective as of the Amendment One Date. 

 

									
	BIOAMBER INC.	 		 		 	
					
	Per:	 	 [illegible]
	 		 	Date:	 	 3/15/2012

		 	Name:	 		 		 	
		 	Title:  C.E.O.	 		 		 	
				
	CELEXION, LLC	 		 		 	
					
	Per:	 	 /s/ Brian M. Baynes
	 		 	Date:	 	 3/14/2012

		 	Name: Brian M. Baynes	 		 		 	
		 	Title:  CEO	 		 		 	

  
 * Confidential Treatment
Requested 

  
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