Exhibit 99.7
RESTATED LICENSE ACQUISITION AGREEMENT
DATED AS OF THE 24TH DAY OF AUGUST 2004
AMONG
SYNGENTA CROP PROTECTION AG
AND
DELTA AND PINE LAND COMPANY
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS AND INTERPRETATIONS..................................1
1.1 DEFINITIONS.................................................1
1.2 INTERPRETATIONS.............................................1
ARTICLE 2 - ACQUISITION OF LICENSES..........................................1
2.1 SALE OF LICENSES BY SYNGENTA CROP PROTECTION AG TO DELTA AND
PINE LAND COMPANY...........................................1
2.2 LICENSE PURCHASE PRICE......................................1
2.3 CLOSING.....................................................1
2.4 PURPOSE OF PAYMENTS.........................................1
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES...................................1
3.1 SYNGENTA CROP PROTECTION AG.................................1
3.2 DELTA AND PINE LAND COMPANY.................................1
ARTICLE 4 - CONFIDENTIAL INFORMATION.........................................1
4.1 CONFIDENTIAL INFORMATION....................................1
4.2 PERIOD OF CONFIDENTIALITY...................................1
4.3 USES OF CONFIDENTIAL INFORMATION............................1
4.4 RIGHTS AND REMEDIES UPON BREACH.............................1
4.5 SEVERABILITY OF COVENANTS...................................1
4.6 PUBLIC ANNOUNCEMENT.........................................1
ARTICLE 5 - FORCE MAJEURE....................................................1
5.1 FORCE MAJEURE...............................................1
ARTICLE 6 - LIABILITY........................................................1
6.1 LIABILITY TO ANY OTHER PARTY................................1
ARTICLE 7 - TERMINATION......................................................1
7.1 TERM........................................................1
7.2 BREACH OF OBLIGATIONS.......................................1
7.3 DEFAULT ON PAYMENT..........................................1
7.4 ADDITIONAL REMEDIES.........................................1
7.5 SURVIVAL....................................................1
ARTICLE 8 - GENERAL..........................................................1
8.1 ASSIGNMENT OF DELTA AND PINE LAND COMPANY'S RIGHTS AND
OBLIGATIONS.................................................1
8.2 ASSIGNMENT OF SYNGENTA CROP PROTECTION AG'S RIGHTS AND
OBLIGATIONS.................................................1
8.3 RELATION OF PARTIES.........................................1
8.4 INTEGRATION OF CONTRACT.....................................1
8.5 WAIVERS AND AMENDMENTS......................................1
8.6 HEADINGS....................................................1
8.7 REFERENCES TO SECTIONS, SUBSECTIONS AND EXHIBITS............1
8.8 PARTIAL INVALIDITY..........................................1
8.9 GOVERNING CONTRACT LAW......................................1
8.10 GOVERNING PATENT LAW........................................1
8.11 NOTICES.....................................................1
8.12 DISPUTE RESOLUTION..........................................1
8.13 INCORPORATION OF EXHIBITS...................................1
8.14 PARTIES BOUND AND BENEFIT...................................1
8.15 EXPENSES....................................................1
8.16 COUNTERPARTS................................................1
SCHEDULE 1.1 .........................................................21
SCHEDULE 2.2..........................................................22
EXHIBITS
EXHIBIT A - VIP3A GENE LICENSE AGREEMENT
EXHIBIT B - CRY1AB GENE LICENSE AGREEMENT
EXHIBIT C - ENABLING TECHNOLOGY LICENSE AGREEMENT
RESTATED LICENSE ACQUISITION AGREEMENT
THIS RESTATED LICENSE ACQUISITION AGREEMENT (this "AGREEMENT"),
effective as of the 24th day of August 2004 by and between SYNGENTA CROP
PROTECTION AG, having a place of business at Schwarzwaldallee 215, CH - 4058,
Basel, Switzerland, and DELTA AND PINE LAND COMPANY, having a place of
business at One Cotton Row, Scott, Mississippi 38772.
WITNESSETH:
WHEREAS, SYNGENTA CROP PROTECTION AG has developed the VIP3A GENE and
the Cry1Ab GENE which are useful in the production of genetically-modified
cotton plants exhibiting traits that are of interest to DELTA AND PINE LAND
COMPANY and also possesses certain know-how and germplasm related to such
cotton plants; and
WHEREAS, DELTA AND PINE LAND COMPANY desires to acquire worldwide
licenses from SYNGENTA CROP PROTECTION AG, under certain patents to which
SYNGENTA CROP PROTECTION AG has rights, to produce and sell LICENSED
COMMERCIAL SEED containing the VIP3A GENE and/or the Cry1Ab GENE with the
right to sublicense cotton farmers the right to use LICENSED COMMERCIAL SEED
containing such LICENSED GENES to produce commercial cotton crops and to
sublicense third parties in countries outside the United States of America;
and
WHEREAS, SYNGENTA CROP PROTECTION AG has developed certain enabling
technology relevant to genetically-engineered plants; and
WHEREAS, DELTA AND PINE LAND COMPANY desires to acquire a worldwide
license from SYNGENTA CROP PROTECTION AG to such enabling technology; and
WHEREAS, SYNGENTA CROP PROTECTION AG desires to sell such licenses to
DELTA AND PINE LAND COMPANY in accordance with the terms set forth herein and
in the LICENSE AGREEMENTS entered into in conjunction herewith.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the other RELATED AGREEMENTS, the PARTIES agree as
follows:
ARTICLE 1 - DEFINITIONS AND INTERPRETATIONS
-------------------------------------------
1.1 Definitions. As used in this Agreement, the following terms have
the following meanings:
1.1.1 The term "AFFILIATE" means any corporation, firm, limited
liability company, partnership or other entity that directly or indirectly
CONTROLS or is CONTROLLED by or is under common CONTROL with another
corporation, firm, limited liability company, partnership or other entity;
provided that, any other provisions hereof notwithstanding, (a) a company
organized to operate a cotton seed business in a country where DELTA AND
PINE LAND COMPANY is prohibited by local laws or regulations from owning
fifty percent (50%) or more of the voting stock or equity interests of such
company, DELTA AND PINE LAND COMPANY owns, directly or indirectly, the
maximum amount of voting stock it is permitted to own in such company,
under local laws and regulations, shall be considered an AFFILIATE of DELTA
AND PINE LAND COMPANY and [Text in Schedule 1.1].
1.1.2 The term "AGREEMENT" means this License Acquisition
Agreement, as it may from time to time be amended or modified in accordance
with its terms.
1.1.3 The term "CLOSING" means closing of the license acquisition
transactions contemplated by this AGREEMENT.
1.1.4 The term "CLOSING DATE" means August 24, 2004 or such other
date as may be agreed upon between the PARTIES for the CLOSING of the
license acquisition transactions contemplated by this AGREEMENT.
1.1.5 The term "CONFIDENTIAL INFORMATION" shall have the meaning
ascribed to that term in Section 4.1.
1.1.6 The term "CONTROL," "CONTROLS," OR "CONTROLLED" means with
respect to any corporation, the ownership of fifty percent (50%) or more of
the voting stock of a corporation and with respect to any other legal
entity, ownership of fifty percent (50%) or more of total equity interests;
provided, however, that a person, partnership, corporation or other legal
entity that controls another person, partnership, corporation or other
legal entity shall be considered as having control over every person,
partnership, corporation or other legal entity that such controlled person,
partnership, corporation or other legal entity controls.
1.1.7 The term "Cry1Ab GENE" means a GENE(S) and/or gene
construct(s) inserted into the cotton genome that encode part or all of a
Cry1Ab protein.
1.1.8 The term "Cry1Ab GENE LICENSE AGREEMENT" means that certain
license agreement between SYNGENTA CROP PROTECTION AG and DELTA AND PINE
LAND COMPANY relating to Cry1Ab GENE(S) attached hereto as Appendix B.
1.1.9 The term "DELTA AND PINE LAND COMPANY" means Delta and Pine
Land Company, a company incorporated in the State of Delaware, USA, having
offices at One Cotton Row, Scott, Mississippi 38772, USA.
1.1.10 The term "DISPUTE" shall have the meaning ascribed to that
term in Section 8.12.
1.1.11 The term "ENABLING TECHNOLOGY LICENSE AGREEMENT" means
that certain license agreement between SYNGENTA CROP PROTECTION AG and
DELTA AND PINE LAND COMPANY relating to enabling technology attached hereto
as Appendix C.
1.1.12 The term "FORCE MAJEURE" shall have the meaning ascribed
to that term in Section 5.1 hereof.
1.1.13 The term "GENE" means a DNA sequence contained in the
genome of a sexually viable cotton plant.
1.1.14 The term "LICENSE AGREEMENTS" means the VIP3A GENE LICENSE
AGREEMENT, the Cry1Ab GENE LICENSE AGREEMENT and the ENABLING TECHNOLOGY
LICENSE AGREEMENT, as such LICENSE AGREEMENTS may be amended from time to
time in accordance with their respective terms.
1.1.15 The term "LICENSE PURCHASE PRICE" shall have the meaning
ascribed to that term in Section 2.2 of this AGREEMENT.
1.1.16 The term "LICENSES" means, collectively, the licenses
granted to DELTA AND PINE LAND COMPANY by SYNGENTA CROP PROTECTION AG under
each of the VIP3A GENE LICENSE AGREEMENT, the Cry1Ab GENE LICENSE AGREEMENT
and the ENABLING TECHNOLOGY LICENSE AGREEMENT.
1.1.17 [Text in Schedule 1.1]
1.1.18 [Text in Schedule 1.1]
1.1.19 The term "PARTY" means either SYNGENTA CROP PROTECTION AG
or DELTA AND PINE LAND COMPANY, and "PARTIES" means both SYNGENTA CROP
PROTECTION AG and DELTA AND PINE LAND COMPANY.
1.1.20 The term "RECIPIENT" means a PARTY which receives
CONFIDENTIAL INFORMATION of another PARTY as described in Section 4.
1.1.21 The term "RELATED AGREEMENTS" means this AGREEMENT, the
VIP3A GENE LICENSE AGREEMENT, the Cry1Ab GENE LICENSE AGREEMENT and the
ENABLING TECHNOLOGY LICENSE AGREEMENT.
1.1.22 The term "SYNGENTA CROP PROTECTION AG" means Syngenta Crop
Protection AG, a company organized under the laws of Switzerland, having a
place of business at Schwarzwaldallee 215, CH - 4058, Basel, Switzerland.
1.1.23 The term "TRADEMARK LICENSE AGREEMENTS" means those
certain Trademark License Agreements to be executed by the PARTIES pursuant
to certain of the LICENSE AGREEMENTS.
1.1.24 The term "VIP3A GENE" means a GENE(S) and/or gene
construct(s) inserted into the cotton genome that encode part or all of a
VIP3A protein.
1.1.25 The term "VIP3A GENE LICENSE AGREEMENT" means that certain
license agreement between SYNGENTA CROP PROTECTION AG and DELTA AND PINE
LAND COMPANY relating to VIP3A GENE(S) attached hereto as Appendix A.
1.2 INTERPRETATIONS.
(a) Terms. As used in this Agreement, terms denoting gender shall
be deemed to include male and female. In addition, the singular form of a
plural defined term shall mean one (1) of such plural defined term and the
plural form of a singular defined term shall mean more than one (1) of such
singular defined term.
(b) Headings. The Article and Section headings of this Agreement
are for reference purposes only and are to be given no effect in the
construction or interpretation of this Agreement.
ARTICLE 2 - ACQUISITION OF LICENSES
-----------------------------------
2.1 SALE OF LICENSES BY SYNGENTA CROP PROTECTION AG TO DELTA AND PINE
LAND COMPANY. DELTA AND PINE LAND COMPANY agrees to purchase the LICENSES
from SYNGENTA CROP PROTECTION AG, and SYNGENTA CROP PROTECTION AG agrees to
sell and deliver the LICENSES to DELTA AND PINE LAND COMPANY, for the
consideration specified below in this Section 2 and on and subject to the
terms and conditions of this AGREEMENT and the LICENSE AGREEMENTS.
2.2 LICENSE PURCHASE PRICE. Subject to the terms and conditions set
forth in the LICENSE AGREEMENTS, specifically including, but not limited
to, the provisions of Section 7 of the LICENSE AGREEMENTS concerning
payments, DELTA AND PINE LAND COMPANY agrees to pay to SYNGENTA CROP
PROTECTION AG a total of Forty Six Million Eight Hundred Thousand United
States Dollars (US$46,800,000) (the "LICENSE PURCHASE PRICE") for the
LICENSES, allocable among the LICENSES as follows:
(a) US$24,200,000 allocated to the VIP3A GENE LICENSE AGREEMENT
(US$22,200,000 for the U.S. rights and US$2,000,000 for the ex-U.S.
rights), payable US$7,600,000 on or within five (5) business days after
CLOSING DATE and the remainder in installments as set forth in Schedule
2.2;
(b) US$22,300,000 allocated to the Cry1Ab GENE LICENSE AGREEMENT
(US$20,300,000 for the U.S. rights and US$2,000,000 for the ex-U.S.
rights), payable US$6,200,000 on or within five (5) business days after
CLOSING DATE and the remainder in installments as set forth in Schedule
2.2;
(c) US$300,000 allocated to the ENABLING TECHNOLOGY LICENSE
AGREEMENT payable on or within five (5) business days after CLOSING DATE;
(d) No amount is being paid for the TRADEMARK LICENSE AGREEMENTS
or any trademarks licensed pursuant to the TRADEMARK LICENSE AGREEMENTS.
2.3 CLOSING. At CLOSING, the PARTIES shall execute and deliver the
VIP3A GENE LICENSE AGREEMENT, the Cry1Ab GENE LICENSE AGREEMENT and the
ENABLING TECHNOLOGY LICENSE AGREEMENT, and, subject to the execution and
delivery of each of the LICENSE AGREEMENTS, DELTA AND PINE LAND COMPANY
shall pay to SYNGENTA CROP PROTECTION AG by wire transfer to a bank account
designated by SYNGENTA CROP PROTECTION AG by written notice to DELTA AND
PINE LAND COMPANY the amounts of the LICENSE PURCHASE PRICE specified in
Section 2.2 as payable at CLOSING.
2.4 PURPOSE OF PAYMENTS. The payments made at CLOSING and the
installment payments to be made thereafter relate solely to the purchase of
the LICENSES and do not constitute the funding of on-going research and
development efforts by SYNGENTA CROP PROTECTION AG or its AFFILIATES or
reimbursement of costs related thereto.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
------------------------------------------
3.1 SYNGENTA CROP PROTECTION AG. SYNGENTA CROP PROTECTION AG
represents and warrants to DELTA AND PINE LAND COMPANY as follows:
(a) SYNGENTA CROP PROTECTION AG is a corporation duly organized,
validly existing and in good standing under the laws of Switzerland.
SYNGENTA CROP PROTECTION AG has all necessary corporate power and authority
to execute and deliver this AGREEMENT and the RELATED AGREEMENTS and to
perform its obligations thereunder. SYNGENTA CROP PROTECTION AG is duly
qualified and in good standing in each jurisdiction where the nature of its
activities make such qualification necessary.
(b) SYNGENTA CROP PROTECTION AG has all requisite corporate power
and authority, and each have taken all corporate action necessary, to
execute and deliver this AGREEMENT and the RELATED AGREEMENTS, to
consummate the transactions contemplated hereby and to perform its
obligations hereunder. This AGREEMENT and the RELATED AGREEMENTS have been
duly authorized, executed and delivered by SYNGENTA CROP PROTECTION AG and
constitute the legal, valid and binding obligations of SYNGENTA CROP
PROTECTION AG and its AFFILIATES enforceable against each of them in
accordance with their terms.
(c) The execution and delivery by SYNGENTA CROP PROTECTION AG of
this AGREEMENT and the RELATED AGREEMENTS, the performance by SYNGENTA CROP
PROTECTION AG and its AFFILIATES of its obligations hereunder and the
consummation by SYNGENTA CROP PROTECTION AG of the transactions
contemplated hereby do not require SYNGENTA CROP PROTECTION AG or its
AFFILIATES to obtain any consent, approval or action of, or make any filing
with or give any notice to, any corporation, partnership, person, firm or
other entity or any public, governmental or judicial authority, and this
AGREEMENT and the RELATED AGREEMENTS will be in full force and effect on
the CLOSING DATE.
(d) The execution, delivery and performance of this AGREEMENT and
the RELATED AGREEMENTS and the consummation of the transactions
contemplated hereby in accordance with the terms and conditions hereof will
not (i) violate any provision of the certificate of incorporation, bylaws,
or other charter or organizational documents of SYNGENTA CROP PROTECTION AG
or its AFFILIATES; (ii) violate, conflict with or result in the breach of
any of the terms of, result in any modification of the effect of, otherwise
give any other contracting party the right to terminate, or constitute (or
with notice or lapse of time or both constitute) a default under, any
contract or other agreement to which SYNGENTA CROP PROTECTION AG or its
AFFILIATES are a party or by or to which their assets or properties may be
bound or subject; (iii) violate (A) any order, judgment, injunction, award
or decree of a court, arbitrator or governmental or regulatory body, or (B)
any agreement with, or condition imposed by, any governmental or regulatory
body, foreign or domestic, against or binding upon SYNGENTA CROP PROTECTION
AG or its AFFILIATES or upon their securities, assets or business; or (C)
violate any statute, law or regulation of any jurisdiction as such statute,
law or regulation relates to SYNGENTA CROP PROTECTION AG or its AFFILIATES
or their respective property or businesses.
3.2 DELTA AND PINE LAND COMPANY. DELTA AND PINE LAND COMPANY
represents and warrants to SYNGENTA CROP PROTECTION AG as follows:
(a) DELTA AND PINE LAND COMPANY is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. DELTA AND PINE LAND COMPANY has all necessary corporate power and
authority to execute and deliver this AGREEMENT and the RELATED AGREEMENTS
and to perform its obligations thereunder. DELTA AND PINE LAND COMPANY is
duly qualified and in good standing in each jurisdiction where the nature
of its activities make such qualification necessary.
(b) DELTA AND PINE LAND COMPANY has all requisite corporate power
and authority, and has taken all corporate action necessary, to execute and
deliver this AGREEMENT and the RELATED AGREEMENTS, to consummate the
transactions contemplated hereby and to perform its obligations hereunder.
This AGREEMENT and the RELATED AGREEMENTS have been duly authorized,
executed and delivered by DELTA AND PINE LAND COMPANY and constitute the
legal, valid and binding obligations of DELTA AND PINE LAND COMPANY and its
AFFILIATES enforceable against each of them in accordance with their terms.
(c) The execution and delivery by DELTA AND PINE LAND COMPANY of
this AGREEMENT and the RELATED AGREEMENTS, the performance by DELTA AND
PINE LAND COMPANY or its AFFILIATES of its obligations hereunder and the
consummation by DELTA AND PINE LAND COMPANY of the transactions
contemplated hereby do not require DELTA AND PINE LAND COMPANY to obtain
any consent, approval or action of, or make any filing with or give any
notice to, any corporation, partnership, person, firm or other entity or
any public, governmental or judicial authority, and this AGREEMENT and the
RELATED AGREEMENTS will be in full force and effect on the CLOSING DATE.
(d) The execution, delivery and performance of this AGREEMENT and
the RELATED AGREEMENTS and the consummation of the transactions
contemplated hereby in accordance with the terms and conditions hereof will
not (i) violate any provision of the certificate of incorporation, bylaws,
or other charter or organizational documents of DELTA AND PINE LAND COMPANY
or its AFFILIATES; (ii) violate, conflict with or result in the breach of
any of the terms of, result in any modification of the effect of, otherwise
give any other contracting party the right to terminate, or constitute (or
with notice or lapse of time or both constitute) a default under, any
contract or other agreement to which DELTA AND PINE LAND COMPANY or its
AFFILIATES is a party or by or to which its assets or properties may be
bound or subject; (iii) violate (A) any order, judgment, injunction, award
or decree of a court, arbitrator or governmental or regulatory body, or (B)
any agreement with, or condition imposed by, any governmental or regulatory
body, foreign or domestic, against or binding upon DELTA AND PINE LAND
COMPANY or its AFFILIATES or upon their securities, assets or business; or
(C) violate any statute, law or regulation of any jurisdiction as such
statute, law or regulation relates to DELTA AND PINE LAND COMPANY or its
AFFILIATES or their properties or business.
ARTICLE 4 - CONFIDENTIAL INFORMATION
------------------------------------
4.1 CONFIDENTIAL INFORMATION. Neither DELTA AND PINE LAND COMPANY
and/or its AFFILIATES nor SYNGENTA CROP PROTECTION AG and/or its AFFILIATES
shall, during the period specified in Subsection 4.2, disclose to any other
person (a) any information received from the other PARTY hereunder which is
designated upon disclosure as "confidential" and/or (b) any information or
technology subject to confidential treatment under any of the LICENSE
AGREEMENTS (collectively, "CONFIDENTIAL INFORMATION") except with the prior
written consent of the other PARTY or as provided in Subsection 4.3,
provided that the disclosure of any CONFIDENTIAL INFORMATION covered by
Section 8 of any of the LICENSE AGREEMENTS shall be governed by the
provisions of the applicable LICENSE AGREEMENT(S) which shall control in
the event of conflict with this Article 4.
4.2 PERIOD OF CONFIDENTIALITY. The period referred to in Subsection
4.1 shall be the period beginning with the date of receipt of the
CONFIDENTIAL INFORMATION and ending, with respect to that information, as
long as such information is entitled to trade secret protection under
applicable law and such information is identified in writing by the
disclosing PARTY as entitled to such trade secret protection at the time of
disclosure, and as to other CONFIDENTIAL INFORMATION, ten (10) years after
receipt of such CONFIDENTIAL INFORMATION, provided that, to the extent
information submitted in support of applications for regulatory approvals
and clearance are subject to confidential treatment under applicable laws
and regulations for a longer period, the period of confidentiality under
Subsection 4.1 as to such information submitted in support for regulatory
approvals and clearance shall extend until the expiration of such longer
period for confidential treatment under such applicable laws and
regulations.
4.3 USES OF CONFIDENTIAL INFORMATION. CONFIDENTIAL INFORMATION may be:
(a) Disclosed by the RECIPIENT to any of its directors, officers,
employees, agents or contractors to such extent only as is reasonably
necessary for fulfillment of the RECIPIENT'S obligations under this
AGREEMENT or under the RELATED AGREEMENTS, and subject, in each case, to
the RECIPIENT'S obligating the person in question to hold the same
confidential by written agreement coincident in scope and term with the
confidentiality obligation of this AGREEMENT and that person further
agreeing not to use the same except for the purposes for which the
disclosure is made;
(b) Disclosed by the RECIPIENT to any governmental or other
authority or regulatory body to the extent required by law. Provided,
however, that the RECIPIENT shall take all reasonable measures to ensure
that such authority or body keeps the same confidential and does not use
the same except for the purpose for which such disclosure is made to the
extent that confidential treatment is available under applicable statutes
or regulations. Provided, further, that the PARTY proposing to so disclose
shall give prior notice of that intent to the PARTY which disclosed such
CONFIDENTIAL INFORMATION and permit said other PARTY, at its option, to
contest said requirement and to seek confidential treatment of such
information;
(c) Disclosed to a court or litigant, to the extent such
disclosure is ordered by a court or government agency of competent
jurisdiction. Provided, however, that the RECIPIENT shall take all
reasonable measures to ensure that the court, other litigants, or
government agency keep the same confidential and does not use the same
except for the purpose for which such disclosure is made. Provided,
further, that the PARTY proposing to so disclose shall give prior notice of
that intent to the PARTY which disclosed such CONFIDENTIAL INFORMATION and
permit said other PARTY, at its option to contest said requirement and to
seek confidential treatment of such information; and
(d) Used by the RECIPIENT for any purpose, or disclosed by the
RECIPIENT to any other person, to the extent only that it is on the date of
this AGREEMENT or thereafter becomes, public knowledge through no fault of
the RECIPIENT, or is disclosed to the RECIPIENT by a third party as a
matter of right, or can be shown by the RECIPIENT by written records to
have been known to the PARTY prior to such disclosure.
4.4 RIGHTS AND REMEDIES UPON BREACH. If a PARTY or any of its
AFFILIATES breaches, or threatens to commit a breach of, any of the
provisions of this Article 4 or of Section 8 of any of the LICENSE
AGREEMENTS, the other PARTY shall have the right and, remedy to have such
provisions specifically enforced by any court of competent jurisdiction,
and appropriate injunctive relief granted in connection therewith, it being
acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to such other PARTY and that money damages will
not provide an adequate remedy to such other PARTY. Nothing in this Section
4.4 shall be construed to limit the right of any PARTY to collect money
damages in the event of a breach of such provisions.
4.5 SEVERABILITY OF COVENANTS. If any court determines that any of the
covenants of this Article 4 or of Section 8 of any of the LICENSE
AGREEMENTS, or any part thereof, is invalid or unenforceable, the remainder
of such covenants, to the extent enforceable under applicable law, shall
not be affected and shall be given full effect, without regard to the
portions which have been declared invalid or unenforceable.
4.6 PUBLIC ANNOUNCEMENT. Neither SYNGENTA CROP PROTECTION AG nor DELTA
AND PINE LAND COMPANY nor their respective AFFILIATES and/or successors or
assigns shall make any announcement or communication or press release
concerning this AGREEMENT and/or the LICENSE AGREEMENTS without the consent
of the other PARTY and mutual written approval of such announcement,
communication or press release, except as may be required by applicable
laws and regulations or a supervisory or regulatory authority.
ARTICLE 5 - FORCE MAJEURE
-------------------------
5.1 FORCE MAJEURE. Except with regard to any payments required
pursuant to this AGREEMENT, no PARTY shall be liable for delay or failure
to perform, in whole or in part, by reason of contingencies beyond its
reasonable control ("FORCE MAJEURE"), whether herein specifically
enumerated or not, including, among others, acts of God, war, acts of war,
revolution, civil commotion, riots, acts of public enemies, terrorism,
blockade or embargo, delays of carriers, car shortage, fire, explosion,
breakdown of equipment, strike, chemical reversal reactions, lockout, labor
dispute, casualty or accident, earthquake, epidemic, flood, cyclone,
tornado, hurricane or other windstorm, delays of vendors, or by reason of
any law, order, proclamation, regulation, ordinance, demand, requisition,
requirement or any other act of any governmental authority; provided,
however, that the PARTY so affected shall, as promptly as reasonably
possible under the circumstances, give written or oral notice to each other
parties whenever such a contingency appears likely to occur or has occurred
and shall use all reasonable efforts to overcome the effects of the
contingency as promptly as possible and shall allow each such PARTY such
access and information as may be necessary or desirable to evaluate such
contingency. No PARTY shall be required to resolve a strike, lockout or
other labor problem in a manner which it alone does not deem proper and
advisable. If any PARTY is affected by an event of the sort enumerated in
or contemplated by this Subsection 5.1, it may suspend performance of this
AGREEMENT for a period of time equal to the duration of the event excusing
such performance and the time required to overcome the consequences of such
event and resume performance. The affected PARTY shall complete performance
as required by this AGREEMENT as soon as practicable after removal or
cessation of the cause for the delay or reduction in performance.
ARTICLE 6 - LIABILITY
---------------------
6.1 LIABILITY TO ANY OTHER PARTY. Neither PARTY shall be liable to the
other PARTY under this AGREEMENT for indirect, incidental, consequential,
special or punitive damages. This provision shall not affect the remedies
and/or limitations of remedies available under any of the LICENSE
AGREEMENTS, which shall control in the event of conflict with this Article
6.
ARTICLE 7 - TERMINATION
-----------------------
7.1 TERM. This AGREEMENT shall be effective as of the date first above
written and shall continue in full force and effect unless and until
terminated as hereinafter provided.
7.2 BREACH OF OBLIGATIONS. Breach by SYNGENTA CROP PROTECTION AG of
any of the material provisions of this AGREEMENT (other than default upon
any of the payment obligations provided herein) shall entitle DELTA AND
PINE LAND COMPANY to give SYNGENTA CROP PROTECTION AG notice to cure such
breach or default. Breach by DELTA AND PINE LAND COMPANY of any of the
material provisions of this AGREEMENT (other than default upon any of the
payment obligations provided herein) shall entitle SYNGENTA CROP PROTECTION
AG to give DELTA AND PINE LAND COMPANY notice to cure such breach. If a
breach is not cured within ninety (90) days after such written notice, the
materially-affected PARTY may terminate this AGREEMENT by giving notice to
the other PARTY to take effect immediately, provided that the non-breaching
PARTY shall not have such right to terminate if existence of the alleged
breach is subject to dispute resolution under Subsection 8.12 on the date
on which a termination notice could otherwise have been given and is cured,
as necessary, within thirty (30) days after the conclusion of any dispute
resolution proceeding thereunder (including any arbitration proceedings),
provided that if the DISPUTE relating to the alleged default is referred to
arbitration under Subsection 8.12(b) and the arbitration panel has not
rendered a final decision on the DISPUTE within one hundred eighty (180)
days after the date on which the initial notice of referral of the subject
DISPUTE to arbitration was given, a non-breaching PARTY (if it has not
caused or materially contributed to the delay in rendition of the
arbitration panel's decision) may thereupon give notice of termination
based upon any then uncured material breach described in its original
notice under this Subsection 7.2 to take effect immediately.
7.3 DEFAULT ON PAYMENT. In the event of default on any payment due by
SYNGENTA CROP PROTECTION AG to DELTA AND PINE LAND COMPANY or by DELTA AND
PINE LAND COMPANY to SYNGENTA CROP PROTECTION AG hereunder and failure to
cure such default within sixty (60) days of notice, the non-defaulting
PARTY shall have the right to terminate this AGREEMENT, and to terminate
any or all of the LICENSE AGREEMENTS, by giving notice to the defaulting
PARTY to take effect immediately, provided that the non-defaulting PARTY
shall not have a right to terminate if the alleged default is then subject
to dispute resolution under Subsection 8.12 on the date on which a
termination notice could otherwise have been given and is cured, as
necessary, within thirty (30) days after the conclusion of any dispute
resolution proceeding thereunder (including any arbitration proceedings),
provided that if the DISPUTE relating to the alleged default is referred to
arbitration under Subsection 8.12(b) and the arbitration panel has not
rendered a final decision on the DISPUTE within one hundred eighty (180)
days after the date on which the initial notice of referral of the subject
DISPUTE to arbitration was given, a non-breaching PARTY (if it has not
caused or materially contributed to the delay in rendition of the
arbitration panel's decision) may thereupon give notice of termination
based upon any then uncured default in payment described in its original
notice under this Subsection 7.3 to take effect immediately.
7.4 ADDITIONAL REMEDIES. Termination of this AGREEMENT by any PARTY
under any circumstances shall in no way be deemed to be or construed as a
restriction, limitation or waiver of such PARTY'S rights to pursue any
additional remedy at law or in equity. This provision shall not affect the
remedies and/or limitations of remedies available under any of the LICENSE
AGREEMENTS, which shall control in the event of conflict with this
Subsection 7.4.
7.5 SURVIVAL. The rights and obligations set forth in Articles 4, 5,
6, 7 or 8 hereof shall survive the termination of this AGREEMENT. In
addition, termination of this AGREEMENT shall not affect any liability of
any PARTY accrued prior to the effective date of such termination.
ARTICLE 8 - GENERAL
-------------------
8.1 ASSIGNMENT OF DELTA AND PINE LAND COMPANY'S RIGHTS AND
OBLIGATIONS. The rights and obligations under this AGREEMENT pertaining to
DELTA AND PINE LAND COMPANY are personal to DELTA AND PINE LAND COMPANY and
DELTA AND PINE LAND COMPANY shall not (by operation of law or otherwise)
assign, mortgage, pledge as security, or sublicense any of its rights
hereunder, nor shall DELTA AND PINE LAND COMPANY subcontract or delegate
any of its obligations under this AGREEMENT except with the prior written
consent of SYNGENTA CROP PROTECTION AG (other than in the ordinary course
of business, in which case DELTA AND PINE LAND COMPANY shall remain liable
to SYNGENTA with respect to performance of DELTA AND PINE LAND COMPANY'S
obligations under this AGREEMENT), provided that, without the consent of
SYNGENTA CROP PROTECTION AG, DELTA AND PINE LAND COMPANY shall have the
right to assign this AGREEMENT and the rights and obligations hereunder (A)
to an AFFILIATE of DELTA AND PINE LAND COMPANY or (B) to a third party in
connection with the reorganization, consolidation, spin-off, sale, or
transfer of all or substantially all of its stock or the assets of DELTA
AND PINE LAND COMPANY'S cotton seed business, either alone or in
conjunction with other DELTA AND PINE LAND COMPANY business, provided that,
as a condition of such assignment, the assignee shall agree in writing to
be bound by the provisions hereof.
8.2 ASSIGNMENT OF SYNGENTA CROP PROTECTION AG'S RIGHTS AND
OBLIGATIONS. The rights and obligations under this AGREEMENT pertaining to
SYNGENTA CROP PROTECTION AG are personal to SYNGENTA CROP PROTECTION AG and
SYNGENTA CROP PROTECTION AG shall not (by operation of law or otherwise)
assign, mortgage, or pledge as security any of its rights hereunder, nor
shall SYNGENTA CROP PROTECTION AG subcontract or otherwise delegate any of
its obligations under this AGREEMENT except with the prior written consent
of DELTA AND PINE LAND COMPANY (other than in the ordinary course of
business, in which case SYNGENTA shall remain liable to DELTA AND PINE LAND
COMPANY with respect to performance of SYNGENTA'S obligations under this
AGREEMENT), provided, that, without the consent of DELTA AND PINE LAND
COMPANY, (i) when expressly permitted to do so under the provisions of a
LICENSE AGREEMENT, SYNGENTA CROP PROTECTION AG may, in the ordinary course
of business, subcontract or delegate performance of its obligations under
the LICENSE AGREEMENTS (including, but not limited to, breeding,
development, increase, testing, and marketing seed and collecting fees for
use of technology) to third parties under contract with SYNGENTA, and (ii)
SYNGENTA CROP PROTECTION AG shall have the right to assign this AGREEMENT
and the rights and obligations hereunder (A) to an AFFILIATE of SYNGENTA
CROP PROTECTION AG or (B) to a third party in connection with the
reorganization, consolidation, spin-off, sale, or transfer of all or
substantially all of its stock or its assets related to research and
development in the field of cotton, or such other business unit of SYNGENTA
CROP PROTECTION AG as may then be responsible for compliance with this
AGREEMENT, either alone or in conjunction with other SYNGENTA CROP
PROTECTION AG business, provided that, as a condition of such assignment,
the assignee shall agree in writing to be bound by the provisions hereof.
8.3 RELATION OF PARTIES. Nothing in this AGREEMENT shall create, or be
deemed to create, a partnership, or the relationship of principal and agent
among the parties.
8.4 INTEGRATION OF CONTRACT. This AGREEMENT and the LICENSE AGREEMENTS
constitutes the full understanding of the PARTIES, a complete allocation of
risks between them and a complete and exclusive statement of the terms and
conditions of their agreement relating to the subject matter hereof and
thereof and all prior agreements, negotiations, dealings and
understandings, whether oral or written, regarding the subject matter
hereof and thereof, are hereby superceded and merged into this AGREEMENT
and the RELATED AGREEMENTS entered into by DELTA AND PINE LAND COMPANY and
SYNGENTA CROP PROTECTION AG pursuant to this AGREEMENT, provided that this
AGREEMENT and the RELATED AGREEMENTS do not amend, modify, or supercede the
rights and obligations of DELTA AND PINE LAND COMPANY and SYNGENTA CROP
PROTECTION AG (a) under the Bilateral Confidentiality Agreement, dated
January 10, 2001; the Confidentiality Agreement, dated August 20, 2002; the
Confidentiality Agreement dated October 31, 2003: and any other written
confidentiality agreements heretofore executed between DELTA AND PINE LAND
COMPANY and SYNGENTA CROP PROTECTION AG and/or their respective AFFILIATES
nor (b) under the Development Agreement for Genetically Enhanced Cotton
Seed dated March 19, 2002, as amended (the "Development Agreement") unless
and until all obligations under the Development Agreement have been fully
performed and all payments accrued thereunder have been paid and provided,
further, that this shall not affect any provisions thereof that survive
termination of the Development Agreement.
8.5 WAIVERS AND AMENDMENTS. This AGREEMENT may be amended, superceded,
canceled, renewed or extended, and the terms hereof may be waived, only by
a written instrument signed by both PARTIES, or, in the case of a waiver,
by the PARTY or PARTIES waiving compliance. Except where a specific period
for action or inaction is provided herein, no delay on the part of any
PARTY in exercising any right, power or privilege hereunder shall operate
as a waiver thereof. Nor shall any waiver on the part of any PARTY of any
such right, power or privilege, nor any single or partial exercise of any
such right, power or privilege, preclude any further exercise thereof or
the exercise of any subsequent or other such right, power or privilege.
Except as otherwise provided herein, no conditions, usage of trade, course
of dealing or performance, understanding or agreement purporting to modify,
vary, explain or supplement the terms or conditions of this AGREEMENT shall
be binding unless hereafter made in writing and signed by the PARTY to be
bound, or by a written amendment hereof executed by both PARTIES, and no
modification shall be effected by the acknowledgement or acceptance of any
forms or other documents containing terms or conditions at variance with or
in addition to those set forth in this AGREEMENT.
8.6 HEADINGS. Section and Subsection headings as to the contents of
particular Sections and Subsections are for convenience only and are in no
way to be construed as part of this AGREEMENT or as a limitation of the
scope of the particular Section or Subsection to which they refer.
8.7 REFERENCES TO SECTIONS, SUBSECTIONS AND EXHIBITS. Unless otherwise
expressly stated, all Sections and Subsections referred to herein are
Sections and Subsections of this AGREEMENT, and all Exhibits referred to
herein are Exhibits attached hereto.
8.8 PARTIAL INVALIDITY. If any provision of this AGREEMENT is held by
any competent authority to be invalid or unenforceable in whole or in part,
this AGREEMENT shall continue to be valid as to the other provisions
thereof and the remainder of the affected provision, provided that in the
event that the absence of such provision(s) causes a material adverse
change in either the risks or benefits of this AGREEMENT to any PARTY, the
PARTIES shall negotiate in good faith concerning a commercially reasonable
substitute or replacement for the invalid or unenforceable provision(s).
8.9 GOVERNING CONTRACT LAW. THIS AGREEMENT AND THE RELATED AGREEMENTS
SHALL, EXCEPT AS PROVIDED IN SUBSECTION 8.10, BE GOVERNED AND CONSTRUED IN
ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (OTHER
THAN ITS CONFLICTS OF LAW RULES), INCLUDING, BUT NOT LIMITED TO, ITS
STATUTES OF LIMITATION.
8.10 GOVERNING PATENT LAW. Any question arising out of this AGREEMENT
or RELATED AGREEMENTS as to the validity, construction or effect of any
United States patent shall be decided in accordance with Title 35 United
States Code, related provisions of the United States Code and applicable
judicial and U.S. Patent and Trademark Office precedents, and of any
foreign patent shall be decided in accordance with applicable patent laws.
8.11 NOTICES. Any notice or other information required or authorized
by this LICENSE AGREEMENT to be given by either PARTY to the other PARTY
shall be given in writing and shall be deemed sufficiently given when
delivered by hand, or transmitted by express mail or overnight courier
service, or transmitted by facsimile or other means of electronic data
transmission, confirmed by express mail or overnight courier service, to
the following addresses of the other PARTY or such other address(es) as is
(are) notified to such PARTY by the other PARTY from time to time.
If to DELTA AND PINE LAND COMPANY:
Delta and Pine Land Company
One Cotton Row
Scott, Mississippi 38772
USA
Attention: President
With copy to:
Jerome C. Hafter
Phelps Dunbar, LLP
111 East Capitol Street
Suite 600
Jackson, Mississippi 39201
USA
If to SYNGENTA CROP PROTECTION AG:
Syngenta Crop Protection AG
Schwarzwaldallee 215
CH - 4058, Basel
Switzerland
Attention: Chief Operating Officer, Syngenta Seeds
With copy to:
SYNGENTA INTERNATIONAL AG
Schwarzwaldallee 215
CH - 4058, Basel
Switzerland
Attention: General Counsel
8.12 DISPUTE RESOLUTION.
(a) Any claim, dispute, difference or controversy between the
PARTIES arising out of, or relating to, this AGREEMENT which has not been
settled by mutual understanding between the parties (a "DISPUTE") shall be
submitted within thirty (30) days of such DISPUTE to a panel consisting of
a senior executive nominated by each PARTY (the "PANEL"). Such PANEL shall
meet and use reasonable efforts to resolve said DISPUTE.
(b) If the DISPUTE has not been resolved within thirty (30) days
of submission to the Panel, then either PARTY may invoke the following
arbitration rights:
(i) The DISPUTE shall be referred to arbitration under the
rules of the American Arbitration Association (AAA) to the extent that
such rules are not inconsistent with the provisions of this Subsection
8.12. Judgment upon the award of the arbitrators may be entered in any
court having jurisdiction thereof or application may be made to such
court for a judicial confirmation of the award and an order of
enforcement, as the case may be. The demand for arbitration shall be
made within a reasonable time after the DISPUTE in question has arisen
and, in any event, shall not be made after the date when institution
of legal or equitable proceedings, based on such DISPUTE would be
barred by the applicable statute of limitations;
(ii) The independent arbitration panel shall consist of
three (3) independent arbitrators, one (1) of whom shall be appointed
by SYNGENTA CROP PROTECTION AG and one (1) of which shall be appointed
by DELTA AND PINE LAND COMPANY. In the event that one (1) PARTY does
not designate an arbitrator, the other PARTY may request the Executive
Secretary of the AAA to designate an arbitrator for such PARTY. The
two (2) arbitrators thus appointed shall choose a third (3rd)
arbitrator; provided, however, that, if the arbitrators selected by
the PARTIES involved in the Dispute are unable to agree on the
appointment of such additional arbitrator, any of the selected
arbitrators may petition the Executive Secretary of the AAA to make
the appointment of such additional arbitrator; and
(iii) The place of arbitration shall be Memphis, Tennessee,
USA.
(iv) The arbitrators shall be instructed to render their
final decision on the DISPUTE at the earliest practical date and, in
any event, not later than one hundred eighty (180) days from the date
on which the demand for arbitration of the subject DISPUTE was made by
a PARTY.
(v) The arbitration filing fees and other costs of the
arbitration panel shall be paid by the PARTY that has submitted the
DISPUTE to arbitration; provided that the PARTY that does not prevail
based on the arbitrators' decision shall reimburse the prevailing
PARTY for such fees and expenses if they had been initially paid by
such prevailing PARTY. Otherwise each PARTY shall bear its own costs
and expenses of the arbitration including its own attorneys fees.
(c) Pending resolution of any DISPUTE, each PARTY involved in the
DISPUTE shall make every reasonable effort to minimize adverse economic
consequences to the PARTIES under the AGREEMENT and the RELATED AGREEMENTS
which would result from any delays caused by attempts to resolve the
DISPUTE. Such reasonable effort shall include, without limitation,
continued performance of relevant obligations under a reservation of rights
in lieu of termination and nonperformance, and nothing contained in this
Subsection 8.12 shall serve to preclude any party from its right to seek
any remedy at law to enforce the award of the arbitrators or to exercise
its other rights under this AGREEMENT.
8.13 INCORPORATION OF EXHIBITS. Schedules 1.1 and 2.2 and Exhibits
A-C, inclusive, are incorporated herein and made a part hereto.
8.14 PARTIES BOUND AND BENEFIT. Except as otherwise expressly provided
herein, all provisions of this AGREEMENT shall be binding on, inure to the
benefit of, and be enforceable by or against the successors and assigns and
AFFILIATES of each PARTY. None of the provisions of this AGREEMENT shall be
for the benefit of or enforceable by any third party, including, without
limitation, any creditor of any PARTY. No third party shall obtain any
right under any provision of this AGREEMENT or shall, by reason of any such
provision, make any claim in respect of any debt, liability, or obligation
(or otherwise) against any of the PARTIES.
8.15 EXPENSES. Except as otherwise provided in this AGREEMENT or in
any other RELATED AGREEMENT, each PARTY shall assume and pay its own
expenses related to the negotiation and execution of this AGREEMENT and the
RELATED AGREEMENTS, the preparation for carrying them into effect and the
consummation of the transactions contemplated thereby. Without limiting the
generality of the foregoing, but subject to the same exception, each PARTY
shall pay all legal and accounting fees, and other fees to consultants and
advisers incurred by it relating to this AGREEMENT and the RELATED
AGREEMENTS and such transactions and shall indemnify and hold the other
PARTIES free and harmless from any of such expenses and fees. No broker,
finder, agent or similar intermediary has acted for or on behalf of any
PARTY in connection with this agreement or the transactions contemplated
hereby.
8.16 COUNTERPARTS. This AGREEMENT may be executed in counterparts,
each of which shall be an original and all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the PARTIES have caused this AGREEMENT to be
executed by their respective representatives thereunto duly authorized, as
of the date first above written.
DELTA AND PINE LAND COMPANY SYNGENTA CROP PROTECTION AG
By By:
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Title: Title:
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By:
---------------------------------
Title:
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SCHEDULE 1.1
SCHEDULE OF PROVISIONS RELATED TO MONSANTO
[Text from Subsection 1.1.1.]:
(b) until and unless a MONSANTO/DELTA AND PINE LAND COMPANY CHANGE OF
CONTROL TRANSACTION occurs, neither MONSANTO nor any AFFILIATE of MONSANTO
nor any entity in which MONSANTO or any AFFILIATE of MONSANTO owns an
equity interest shall be considered an AFFILIATE of DELTA AND PINE LAND
COMPANY
1.1.17 The term "MONSANTO" means Monsanto Company, a company
incorporated in the State of Delaware, U.S.A., having a place of business
at 800 North Lindbergh Boulevard, St. Louis, Missouri 63162, or any
corporate successor and/or AFFILIATES of Monsanto Company.
1.1.18 The term "MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION" means
any transaction or related series of transactions, including, but not
limited to, a reorganization, restructuring, consolidation, stock purchase,
merger or acquisition of all or substantially all the equity or assets of
DELTA AND PINE LAND COMPANY and its AFFILIATES, by which MONSANTO and/or
its AFFILIATES acquire CONTROL of DELTA AND PINE LAND COMPANY and its
AFFILIATES or acquire all or substantially all of the assets of DELTA AND
PINE LAND COMPANY and its AFFILIATES or by which DELTA AND PINE LAND
COMPANY and/or its AFFILIATES acquire CONTROL of MONSANTO or acquire all or
substantially all of the assets of MONSANTO and its AFFILIATES.
SCHEDULE 2.2
SCHEDULED INSTALLMENT PAYMENTS OF
LICENSE PURCHASE PRICE OF LICENSE AGREEMENTS
PAYMENT VIP3A GENE Cry1Ab ENABLINGG TOTAL OF
DATE LICENSE LICENSENT TECHNOLOGY LICENSE SCHEDULED
AGREEMENT AGREEMENT AGREEMENT PAYMENTS ON STATED DATE
WITHIN 5 BUSINESS
DAYS OF CLOSING
DATE 2004 7,600,000.00 6,200,000.00 300,000.00 14,100,000.00
July 15 2005 3,200,000.00 2,600,000.00 0 5,800,000.00
October 15 2005 3,200,000.00 2,600,000.00 0 5,800,000.00
July 15 2006 2,200,000.00 2,150,000.00 0 4,350,000.00
October 15 2006 2,200,000.00 2,150,000.00 0 4,350,000.00
July 15 2007 700,000.00 900,000.00 0 1,600,000.00
October 15 2007 700,000.00 900,000.00 0 1,600,000.00
July 15 2008 700,000.00 900,000.00 0 1,600,000.00
October 15 2008 700,000.00 900,000.00 0 1,600,000.00
July 15 2009 750,000.00 750,000.00 0 1,500,000.00
October 15 2009 750,000.00 750,000.00 0 1,500,000.00
July 15 2010 750,000.00 750,000.00 0 1,500,000.00
October 15 2010 750,000.00 750,000.00 0 1,500,000.00
----------- ----------- ----------- ------------
TOTAL 24,200,000.00 22,300,000.00 300,000.00 46,800,000.00
ALL SCHEDULED PAYMENTS STATED IN UNITED STATES DOLLARS
EXHIBIT A
VIP3A GENE LICENSE AGREEMENT
EXHIBIT B
Cry1Ab GENE LICENSE AGREEMENT
EXHIBIT C
ENABLING TECHNOLOGY LICENSE AGREEMENT