Joint Development And Technology Transfer Agrmnt, Dated 7/10/01

Exhibit 10.28

JOINT DEVELOPMENT AND TECHNOLOGY TRANSFER AGREEMENT

This Joint Development and Technology Transfer Agreement ( Agreement ) is entered into as of July 10, 2001 ( Effective Date ) by and among BC International Corporation, a Delaware corporation ( Licensor ), Marubeni Corporation, a Japanese corporation ( Marubeni ), and Tsukishima Kikai Co., Ltd., a Japanese corporation ( TSK ) (each of Marubeni and TSK, a Licensee , and together, Licensees ). Background

Licensor has certain technology for developing biomass to ethanol production facilities. Licensor and the Licensees desire to enter into a collaborative agreement whereby the Licensees will utilize such technology to build ethanol production facilities in certain Asian markets. This Agreement sets forth the terms under which the parties will collaborate on the development and commercialization of such technology.

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and the Licensees agree as follows:

1. DEFINITIONS.

1.1 Defined Terms . Capitalized terms used in this Agreement and not otherwise defined herein will have the meaning set forth below.

Affiliate means with respect to either party, any Person that, directly or indirectly, is controlled by, controls or is under common control with such party. For purposes of this Agreement, " control" means, with respect to any Person, the direct or indirect ownership of more than fifty percent (50%) of the voting or income interest in such Person or the possession otherwise, directly or indirectly, of the power to direct the management or policies of such Person. Confidential Information means all (i) Information disclosed to the Recipient by the Discloser, or by any of its affiliates, suppliers, customers, employees, contractors or agents, orally, visually, in writing or by way of any other media; and (ii) all copies, digests, summaries of Information, as well as feedback, suggestions, improvements or other inventions, ideas or works of authorship derived from the Information, except (in either case) any portion thereof that the Recipient can demonstrate by clear and convincing evidence: (a) was known to Recipient before receipt thereof from or on behalf of the Discloser or any of its affiliates, suppliers, customers, employees, contractors or agents; (b) is disclosed to the Recipient by a third person who has a right to make such disclosure without any obligation of confidentiality to the Discloser; (c) is or becomes generally known in the trade without violation of this Agreement by the Recipient; or (d) is independently developed by the Recipient or Recipient' s employees or consultants to whom the Discloser' s information was not disclosed and without use of, or reference to, the Discloser' s information; provided that only the specific Information that meets the exclusion will be excluded and not any other Information that happens to appear in proximity to such excluded portion (for example, a portion of a document may be excluded without affecting the confidential nature of those portions that do not themselves qualify for exclusion). Ethanol Project means a project for constructing and operating, within the Territory, a Plant for which a Qualified Company or a Licensee is the Project Sponsor.

Excluded Companies means [***] and their respective Affiliates. *** CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FILED SEPARATELY WITH THE COMMISSION.

Force Majeure Event means, with respect to a party to this Agreement, any event beyond the control of such party, including, without limitation, fire, flood, riots, strikes, epidemics, civil unrest, war (declared or undeclared and including the continuance, expansion or new outbreak of any war or conflict now in existence), embargoes and governmental actions or decrees.

Gross Revenues means, as to any entity, receipts from the manufacture, use, sale or distribution of Licensor Technology or Licensed Products or any product generated by the use of the Licensor Technology at the Plant, plus all fees derived from the provider of the feedstock to be used with the Licensor Technology. Improvements means any additions, developments, enhancements, updates and other changes in the Licensor Technology, Licensor Non-Ethanol Technology or Selected Non-Ethanol Technology, as applicable, including, without limitation, any new or improved process, technology, design change, manufacturing or processing technique, or any other invention or creation derived from, relating to, based upon or developed through use of or reference to the Licensor Technology, Licensor Non-Ethanol Technology or Confidential Information of Licensor.

Information means all forms and types of financial, business, marketing, operations, scientific, technical, economic and engineering information, whether tangible or intangible, including without limitation, patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, codes, know-how, computer software, databases, product names or marks, marketing materials or programs, plans, specifications, shop-practices, customer lists, supplier lists, engineering and manufacturing information, price lists, costing information, employee and consulting relationship information, accounting and financial data, profit margin, marketing and sales data, strategic plans, trade secrets and all other proprietary information (including all originals, copies, digests and summaries in any form) of the disclosing party or any of its affiliates, suppliers, customers, employees, contractors or agents.

Jennings Engineering Documents means the engineering documents for Licensor' s Jennings, Louisiana Plant which are commonly referred to as " Exhibit A" of the Shaw Group EPC Agreement, which documents are listed on Exhibit E .

License Agreement means a license agreement granting the right to use Licensor Technology in connection with the construction and operation of a Plant or Licensee Plant, or Selected Non-Ethanol Technology, as applicable, in substantially the form(s) set forth in Exhibit C , plus, (i) in the case of either Selected Non-Ethanol Technology or Licensor Technology where a Licensee is acting only as a sales representative, such changes as are determined by Licensor; or (ii) in the case of Licensor Technology where a Licensee is acting as sublicensor, such changes as are requested by Licensee and accepted by Licensor ( provided , that Licensor consent shall not be required for any change(s) so long as such change(s) do not decrease or limit the restrictions or obligations applicable to the sublicensee, or otherwise adversely affect Licensor' s rights as compared to the standard form, as set forth in the applicable form of license agreement set forth in Exhibit C ).

Licensed Product has the meaning set forth in the Master License Agreement.

Licensee Plant , with respect to a Licensee, means a facility capable of converting biomass to ethanol, by use of the Licensor Technology, which is located within the Territory in which such Licensee either owns, directly or indirectly, at least a [***] interest.

Licensee Sales Market means the world, excluding those countries set forth in Exhibit D , as modified from time to time by Licensor, which Licensor has established as the exclusive territory of a third party. *** CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FILED SEPARATELY WITH THE COMMISSION.

Licensor Non-Ethanol Technology means individually and collectively, and exclusive of the Licensor Technology, the intellectual property rights embodied or disclosed in (a) all patents, patent applications and rights to file patent applications owned by Licensor or its Subsidiaries and any Improvements thereto, including but not limited to (i) any patent application filed as a continuation, division, or continuation-in-part thereof, patents issuing therefrom and reissues, reexaminations and extensions of such patents; and (ii) any foreign counterpart to the patents, patent application(s), reissues, reexaminations and extensions described in clause (a)(i), patents issuing therefrom and extensions thereof; (b) all other Confidential Information, discoveries, inventions, know-how, techniques, methodologies, modifications, works of authorship, designs and data (whether or not protectable under patent, copyright, trade secrecy or similar laws) that are conceived, discovered, developed, created or reduced to practice or fixed in a tangible medium of expression by consultants or employees of Licensor or its Subsidiaries at any time prior to the Effective Date; and (c) all Improvements to the items in (a) and (b) now or hereafter owned by Licensor or its Affiliates, or to which Licensor or its Affiliates may acquire rights (subject to Section 2.6).

Licensor Technology means individually and collectively the intellectual property rights embodied or disclosed in: (a) all patents, patent applications and rights to file patent applications relating to the biomass to ethanol conversion process described in Exhibit A (the Process ) which are owned or controlled by Licensor or its Subsidiaries including but not limited to, (i) the patent application(s) and patents listed in Exhibit B , as it may be updated from time to time during the term of this Agreement by Licensor to reflect Improvements; (ii) any patent application owned by Licensor or its Subsidiaries which is filed as a continuation, division, or continuation-in-part of the patent application(s) described in clause (a)(i), patents issuing therefrom and reissues, reexaminations and extensions of such patents; and (iii) any foreign counterpart to the patents, patent application(s), reissues, reexaminations and extensions described in clauses (a)(i)-(iii), patents issuing therefrom and extensions thereof; (b) all other Confidential Information, discoveries, inventions, know-how, techniques, methodologies, modifications, works of authorship, designs and data (whether or not protectable under patent, copyright, trade secrecy or similar laws) that are conceived, discovered, developed, created or reduced to practice or fixed in a tangible medium of expression by consultants or employees of Licensor or its Subsidiaries at any time prior to the Effective Date, concurrent with or related to the Process; (c) the UFRFI Technology; and (d) all Improvements to the items in (a), (b) and (c) now or hereafter owned by Licensor or its Subsidiaries, or to which Licensor or its Subsidiaries may acquire rights (subject to Section 2.6).

Master License Agreement means the Amended and Restated License Agreement dated October 26, 1995 between Licensor and UFRFI, as amended from time to time (a copy of which is attached hereto for informational purposes as Exhibit G ). Milestone Requirements means the requirements set forth in Section 2.5. Nameplate Capacity means, with respect to a Plant or a Licensee Plant, the final, design-basis, annual production capacity of such Plant or Licensee Plant, as set forth in the final engineering package providing the specifications used for the construction of the Plant or Licensee Plant, as applicable, a copy of which must be provided to Licensor prior to construction of such Plant of Licensee Plant.

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. Plant means a facility capable of converting biomass to ethanol by use of the Licensor Technology. Project Sponsor means the lead project participant in terms of the organization and development of a Plant. Qualified Company means an entity (other than Marubeni and TSK and their respective Affiliates) which is organized and existing under the laws of Japan and has its principal executive offices located in Japan.

Selected Non-Ethanol Technology means that Licensor Non-Ethanol Technology which a Licensee has elected, pursuant to Section 5.2(b), to market in a sales representative capacity hereunder. Any reference herein to Selected Non-Ethanol Technology will apply to any Licensee only if and to the extent such Licensee has so elected.

Strategic Partner means those parties as set forth on Exhibit F as amended from time to time by the Licensees upon written notice to Licensor, but subject to Licensor' s prior written consent, which consent will not be unreasonably withheld or delayed.

Subsidiary means, with respect to either party, an Affiliate that is controlled by such party.

Sugar Company means any of (a) the companies within the [***]; (b) the companies listed on Exhibit I or (c) subject to Licensor' s reasonable consent, any successor of any of the foregoing. Sugar Projects means a project for which a Sugar Company is engaged in the organization and development of a Plant within Thailand.

Territory means Japan, Thailand, Malaysia and Indonesia. UFRFI Technology means the rights and licenses now or hereafter granted to Licensor under the Master License Agreement and subject to any terms, conditions and restrictions imposed by the Master License Agreement.

1.2 Other Defined Terms . Each of the following terms have the meanings ascribed to it in the section set forth opposite such term:

Agreement Recitals Control Section 1.1 Cost Section 6.3 Demonstration Plant Section 2.5(a) Discloser Section 12.1 EPC Contracts Section 2.4 Finder' s Fee Section 3.4(a) first right Section 2.4 Indemnifying Licensee Section 9.2(b) Indemnitee Section 9.4 Indemnitor Section 9.4 Initial Marketing Period Section 2.5(b) Inventions Section 7.1(b) Licensee(s) Recitals Licensee Indemnitees Section 9.2(a) Licensor Recitals Licensor/Licensee Indemnitees Section 9.2(b) *** CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FILED SEPARATELY WITH THE COMMISSION.

Licensor Trademarks Section 4.7

Losses Section 9.2

Marubeni Recitals

Payment Date Section 3.4(b)

PDP Section 6.3

Preferred Return Section 3.6

Process Section 1.1

Prospect Section 6.1

Recipient Section 12.1

Representative Section 11.1

Reviewed PDP Section 6.3

Royalty Section 3.5

Standard License Fee Section 3.4(b)

Target Market Section 3.7

Technical Liaison Section 5.1(b)

Technical Meeting Section 5.1(a)

Technology Development Payments Section 3.1

Thailand Plant Payment Section 3.2

Title 11 Section 2.7

Trademarks Section 4.7

TSK Recitals

UFRFI Section 7.3(c)

2. RIGHTS GRANTED.

2.1 Appointment . (a) Subject to the terms and conditions set forth in this Agreement, Licensor hereby appoints each Licensee, and each Licensee accepts such appointment, as Licensor' s sales representative to the extent of the following grant: Licensor grants to each Licensee (i) the exclusive right to market the use of the Licensor Technology in connection with the construction and operation of Ethanol Projects; (ii) the exclusive right to market use of the Licensor Technology in connection with the construction and operation of Sugar Projects; (iii) the exclusive right to market Selected Non-Ethanol Technology (as applicable to a Licensee pursuant to Section 5.2(b)) to Qualified Companies (excepting the Excluded Companies) within the Territory; and (iv) the non-exclusive right to market the Licensor Technology within the Licensee Sales Market (subject to Section 6.1). For clarification purposes, the exclusive rights granted in this Section 2.1(a) will be, with respect to Marubeni, exclusive of all parties other than TSK and, with respect to TSK, exclusive of all parties other than Marubeni.

(b) Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to each Licensee (and each Licensee accepts) the exclusive right to grant sublicenses in and to the Licensor Technology solely in connection with the construction and operation of Ethanol Projects and/or Sugar Projects; provided that such Licensee may not grant any sublicense except pursuant to a fully executed License Agreement; and further provided that notwithstanding the foregoing, (x) Licensor retains the right to grant sublicenses in and to the Licensor Technology to the Licensees or their Affiliates, and (y) neither Licensee may sublicense the Licensor Technology to itself or to any of its Affiliates. For clarification purposes, the exclusive rights granted in this Section 2.1(b) will be, with respect to Marubeni, exclusive of all parties other than TSK and Licensor (as a Licensee' s licensor) and, with respect to TSK, exclusive of all parties other than Marubeni and Licensor (as a Licensee' s licensor).

(c) The exclusive rights granted in Section 2.1 (a) and (b) as they pertain to the UFRFI Technology will become non-exclusive upon the termination of the Exclusive Period (as defined in the Master License Agreement). (d) Subject to the parties' obligations with respect to entering into applicable License Agreements under Section 6.2 of this Agreement, and excluding the grant of the right to sublicense as set forth in Section 2.1(b),

nothing in this Section 2.1 grants or is intended to grant to the Licensees any license or create a licensing relationship between either Licensee and Licensor or otherwise confer upon either Licensee any right to enter into sublicenses with third parties with respect to the Licensor Technology or the Licensor Non-Ethanol Technology. (e) This Agreement does not convey to the Licensees any ownership rights in any Licensor Technology or Licensor Non-Ethanol Technology by implication, estoppel or otherwise. As between the Licensor on the one hand and the Licensees on the other hand, and except as set forth in Section 7.1(b) with respect to Inventions, title to the Licensor Technology and Licensor Non-Ethanol Technology will at all times remain vested in Licensor, and Licensor retains the right to (i) appoint other sales agents or representatives or authorize other sublicensors with respect to the Licensor Technology and/or Selected Non-Ethanol Technology with respect to any geographic area, potential sublicensees, or field of use where the Licensees do not have exclusive rights pursuant to Section 2.1; and (ii) use the Licensor Technology and Selected Non-Ethanol Technology for its internal purposes or, subject to the exclusivity provisions of Section 2.1 (b), to license it to others. Each Licensee agrees that it will not claim or assert any right, title or interest in or to any such Licensor Technology or Licensor Non-Ethanol Technology as a result of or in connection with the relationships created under this Agreement or any License Agreement.

2.2 Licensee Plants; Demonstration Plant . (a) As of the Effective Date and subject to the terms and conditions set forth in this Agreement, including, without limitation, the procedures set forth in Section 6, from time to time, Licensor will, at each Licensee' s request, enter into License Agreements for the Licensor Technology for the construction and operation by such Licensee of a Licensee Plant. As also provided in the form of License Agreement, the up-front license fee payable to Licensor with respect to each Licensee Plant (other than the Demonstration Plant) will be an amount equal to [***] of Nameplate Capacity (as adjusted to reflect changes in the Nameplate Capacity from the date of the execution of the License Agreement to the commencement of operation of the Licensee Plant) for ethanol of such Licensee Plant or [***] Dollars ($[***]), which fee will be payable in [***] as follows: [***]. Nothing in this Section 2.2 grants or is intended to grant to either Licensee any license or create a licensing relationship between either Licensee and Licensor or otherwise confer upon either Licensee any right to enter into sublicenses with third parties with respect to the Licensor Technology or the Licensor Non-Ethanol Technology.

(b) Licensor will, at Licensees' request, enter into a License Agreement for the Licensor Technology for the construction and operation of a Demonstration Plant. The up-front engineering services fee payable to Licensor with respect to the Demonstration Plant will be an amount determined as follows: (i) if Licensees internally (or through Affiliates) finance more than [***]% of the construction of the Demonstration Plant, Licensees will pay to Licensor no up-front fee; provided that if Licensees request Licensor to provide preliminary development services, Licensor will provide such services on a Cost plus [***]% basis up to a maximum of $[***], as invoiced; and further provided that Licensor will not be obligated to perform such services to the extent that billings therefor exceed $[***]; or (ii) except in the case that Licensees internally (or through Affiliates) finance more than [***]% of the construction of the Demonstration Plant as described in clause (i) above, Licensees will pay or cause to be paid to Licensor upon execution of the underlying License Agreement $[***] (provided that in the event that any third parties are engaged in connection therewith by Licensor for engineering, testing or other services, Licensor will invoice Licensee therefor in the amount of Licensor' s cost for such third party services), in exchange for which, Licensor will provide a preliminary development package consisting of drawings and documents similar in scope and nature to those used for Licensor' s pilot Plant in Louisiana. Upon Licensee' s request, Licensor will deliver the master culture for the Demonstration Plant of KO11 or other micro-organism that constitutes Licensor' s most advanced, generally commercially available ethanol production micro-organism. *** CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FILED SEPARATELY WITH THE COMMISSION.

2.3 Jennings Engineering Documents . Promptly after the execution of this Agreement, but in no event more than 20 days after the Effective Date, Licensor will deliver to each Licensee a copy of the Jennings Engineering Documents. Upon receipt thereof, the Licensees will have the right, subject to the terms and conditions of this Agreement, to use the Jennings Engineering Documents and the know-how and other concepts and information contained therein only for its own internal training and reference purposes. The Jennings Engineering Documents will be (i) provided only for the purposes, and may not be used or relied upon for any purpose except as expressly set forth in this Section 2.3, and (ii) deemed to be Confidential Information of Licensor.

2.4 EPC Contractor Status . Subject to the terms and conditions of this Agreement: (a) with respect to any Plant or Licensee Plant construction project obtained by a Licensee in its capacity as sales representative under Section 2.1, such Licensee will have the first right to perform engineering, procurement and construction contracts ( EPC Contracts ) arising in connection therewith; and (b) with respect to any Licensee Plant or Plant construction project for which a Licensee is a sublicensor of the Licensor Technology, such Licensee will have the first right to perform EPC Contracts arising in connection therewith. As used herein, first right means that such Licensee may within 10 days after the execution of the applicable License Agreement, provide written notice to Licensor that Licensee opts not to provide such services (in which case, Licensor may provide such services if it so decides); provided that if no such notice is received by Licensor within such 10 day period, such Licensee will be deemed to have exercised its right to perform such services. Notwithstanding the foregoing, Licensor will have the right to review and approve, prior to commencement of construction, the design engineering package and detail engineering package (at Licensee' s cost and at Licensor' s then-standard rates) relating to or arising from each of the [***] (whether for Plants or Licensee Plants) commenced subsequent to the Effective Date that qualify as either an Ethanol Project or a Sugar Project. Licensor will include the Licensees on its customary list of qualified contractors. 2.5 Milestone Requirements . (a) The Licensees will use their commercially reasonable best efforts to construct, or to have constructed, a demonstration Licensee Plant (the Demonstration Plant ) in the Territory within [***] after the Effective Date. The Demonstration Plant, as completed, must (i) have a Nameplate Capacity (as adjusted to reflect changes in the Nameplate Capacity from the date of the execution of the License Agreement to the commencement of operation of the Licensee Plant) of no more than [***] US gallons of ethanol through use of the Licensor Technology; and (ii) be used for demonstration and research and development purposes only and may not otherwise use, sell or distribute any product therefrom, or manufacture any product for commercial use, sale or distribution. Licensees will be deemed to have satisfied their obligations under this Section 2.5(a) if, in lieu of a Demonstration Plant, they construct within [***] after the Effective Date a fully-functioning Licensee Plant.

(b) At least one License Agreement for the Licensor Technology must be executed by Licensor and a Licensee (with respect to a Licensee Plant or the Demonstration Plant), or by Licensee and a third party (with respect to a Plant for an Ethanol Project or a Sugar Project), within [***] after the Effective Date (the Initial Marketing Period ).

(c) During the term of this Agreement, at least one additional License Agreement for the Licensor Technology must be executed by Licensor and a Licensee (with respect to a Licensee Plant or the Demonstration Plant), or by a Licensee and a third party (with respect to a Plant for an Ethanol Project or a Sugar Project), during each [***] period following the Initial Marketing Period); provided that if neither Licensor nor any licensee of the Licensor Technology (other than the Licensees) has constructed, anywhere in the world, a Plant and commenced commercial production of ethanol therein prior to the expiration of the Initial Marketing Period, the Initial Marketing Period will be extended until the date of such commencement of commercial ethanol production at such a Plant. *** CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FILED SEPARATELY WITH THE COMMISSION.

(d) Failure to comply with Section 2.5(a), (b) or (c) will result in immediate conversion of all exclusive rights granted to Licensees in Section 2.1 to non-exclusive rights.

(e) Throughout the term of this Agreement, the Licensees will each provide Licensor with reasonably detailed, periodic summary reports on the progress and plans for meeting the Milestone Requirements, such reports to be provided no less frequently than once every 6 months. In addition, the Licensees will provide to Licensor commercially reasonable evidence of the Licensees having achieved each of the Milestone Requirements within 60 days after the corresponding due date for each Milestone Requirement as set forth above. 2.6 Third Party Limitations . (a) The rights granted by Licensor pursuant to this Section 2, insofar as they relate to technology, property or rights that are developed or acquired with or from any third party currently or in the future, may become subject to any applicable restrictions and consents relating to such technology, property or rights under any license or similar agreement to which Licensor may in the future become a party. As Licensor develops or obtains rights to new technology that would constitute an Improvement to the Licensor Technology, in the event that any such license or other agreement imposes restrictions that may apply to the transactions contemplated by this Agreement concerning the Licensor Technology, Licensor will make commercially reasonable efforts to obtain license rights to include such intellectual property in the Licensor Technology (i) for use, application and sublicensing, as applicable, as contemplated by this Agreement, or (ii), if the licensor will not grant such rights to the extent described in clause (i), then to the extent such third party is willing to so grant.

(b) Licensor will use good faith efforts not to reduce the functional scope of its current, sublicensable rights under the Master License Agreement to the extent such reduction would have a material adverse effect on the Licensees, unless Licensor provides Licensees with substantially equivalent technology.

2.7 Bankruptcy . The licenses to be granted under the License Agreements will be, for all purposes of Section 365(n) of Title 11 of the United States Code ( Title 11 ) and the equivalent provisions, if any, of the bankruptcy laws of the countries within the Territory, licenses of rights to " intellectual property" as defined in and for the purposes ...