Exhibit 10.2
SETTLEMENT AGREEMENT II
This Settlement Agreement II ("Agreement") is made, as of August 14,
2006 (the "Effective Date"), among Delta and Pine Land Company, a Delaware
corporation with its principal offices at One Cotton Row, Scott,
Mississippi 38772 ("DPL"), D&M Partners, a Delaware partnership with its
principal offices at One Cotton Row, Scott, Mississippi 38772 ("D&M"), and
Monsanto Company, a Delaware corporation with its principal place of
business at 800 N. Lindbergh Blvd., St. Louis, Missouri 63167 ("Monsanto").
WHEREAS, DPL and Monsanto have on this date entered into an Agreement
and Plan of Merger ("Merger Agreement"); and
WHEREAS, over the course of their dealings the Parties have a number
of pending disputes, identified below, that have not become the subject of
arbitration or litigation proceedings (the "Subject Disputes"); and
WHEREAS, the Parties have come to certain agreements in connection
with the Subject Disputes on terms set forth in this Agreement; and
WHEREAS, the Parties may have other claims against each other, whether
asserted or as yet unasserted, which are intended to be preserved and not
released or affected by this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
and commitments set forth herein, the Parties understand the meaning and
legal effect of entering into this Agreement and hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply to the terms set forth below, and such terms may be
used either in the singular or plural context:
(a) "AFFILIATE" shall mean, with respect to a Party, any Person that
directly or indirectly, whether through one or more
intermediaries, Controls, is Controlled By, or is under Common
Control with a Party.
(b) "CLAIM" shall mean any and all claims, demands, actions, causes
of action, suits, damages, liabilities, judgments, debts, claims
over, accounts, warranties, liens, costs or expenses whatsoever,
wherever arising, and whether based in contract law, tort law,
equity, statute, or regulation, whether known or unknown. A Claim
shall include, but not be limited to, any and all actions or
claims for injunctive relief, patent infringement, violations of
the antitrust or competition laws, false advertising, unfair or
deceptive acts or practices, product disparagement, unfair
competition, restraint of trade, trade secret misappropriation,
breach of contract, conversion, fraud, deceit, contempt,
violations of court orders or injunctions, costs, and/or attorney
fees. A Claim shall not include any payments due or other
obligations owed under contracts or agreements between the
Parties or one or more of their Affiliates made prior to the
Effective Date of this Agreement that have not been terminated
herein or that were not otherwise at issue in the Subject
Disputes.
(c) "CONTROL," "CONTROLLED BY," or "UNDER COMMON CONTROL WITH" shall
mean (i) the ownership, directly or indirectly, of more than
fifty percent (50%) of the voting equity interest in a Person,
and (ii) the ability, directly or indirectly, to direct or cause
the direction of the management and policies of that entity,
whether through ownership of voting securities, by contract, or
otherwise.
(d) "DPL PARTIES" shall mean Delta and Pine Land Company and D&M
Partners.
(e) "MONSANTO PARTIES" shall mean Monsanto Company ("Monsanto").
(f) "PARTIES" shall mean the DPL Parties and the Monsanto Parties.
"PARTY" shall mean one of DPL, D&M Partners, or Monsanto.
(g) "PERSON" shall mean any individual, corporation, proprietorship,
firm, partnership, limited liability company, trust, association,
or other form of business entity, whether formed under the laws
of any state of the United States, the District of Columbia, or
the laws of any foreign country or any state or political
subdivision thereof.
(h) "SUBJECT DISPUTES" shall mean, collectively, the following
disputes that have not been asserted in litigation or arbitration
proceedings:
(i) Dispute Related to DPL Sensitive Information - this issue
was raised by DPL in a letter from DPL to Monsanto dated
February 20, 2006 ("DPL Sensitive Information");
(ii) Bollgard(R) re-registration process ("Bollgard
Re-Registration");
(iii)Potential Australian infringement action regarding VIP Cot,
as referred to in a letter from counsel to Monsanto or one
of its Affiliates to counsel for DPL or one of its
Affiliates dated August 10, 2006 ("Australia VIP Cot");
(iv) Monsanto's promotion of Stoneville varieties as first raised
in a letter from DPL to Monsanto, dated May 10, 2006
("Stoneville Marketing").
(v) Monsanto's compliance with Marketing Services Agreement with
respect to 2006 and 2007 Action Pact Programs, as set forth
in a letter from DPL to Monsanto, dated June 1, 2006
("Action Pact Issues").
(vi) Terminability of U.S. Bollgard(R) and Roundup Ready(R) Gene
License and Seed Services Agreements ("Termination Rights");
(vii)Limitations periods on ability to raise certain types of
disputes ("Time Limitations"); and
(viii) Revisions to alternative dispute resolutions ("ADR").
(i) "THIRD PARTY" shall mean any Person other than the Monsanto
Parties, the DPL Parties, and any of the Parties' Affiliates.
2. TREATMENT OF SUBJECT DISPUTES. Upon execution of the Merger
Agreement, the Parties agree that the Subject Disputes shall be addressed
or resolved as follows:
(a) With regard to DPL Sensitive Information, the DPL Parties and
their Affiliates shall refrain, until the expiration of the Outside Date
(as that term is used in the Merger Agreement), from asserting, directly or
indirectly, any Claim arising from or relating to DPL Sensitive
Information.
(b) With regard to Bollgard Re-Registration, the DPL Parties and their
Affiliates shall cease, desist, and refrain from disparaging, criticizing,
or otherwise commenting unfavorably upon, directly or indirectly, the
performance of the Bollgard(R) II or Roundup Ready(R) Flex traits or genes.
(c) With regard to Australian VIP Cot, Monsanto and its Affiliates
will refrain, until the expiration of the Outside Date, from taking any
further action against DPL and its Affiliates; provided, however, that
neither DPL nor its Affiliates shall assert that in refraining from such
further action that Monsanto or its Affiliates have been guilty of laches,
estoppel, or waiver of any right that they may possess; and provided
further that Monsanto and its Affiliates shall not be precluded from taking
further action in connection with any Third Party in connection with any
matter relating to Australian VIP Cot.
(d) With regard to Stoneville Marketing, the DPL Parties and their
Affiliates shall refrain, from asserting, directly or indirectly, any Claim
arising from or relating to the Stoneville Marketing dispute.
(e) With regard to Action Pact Issues, the DPL Parties and their
Affiliates shall refrain from challenging, either directly or indirectly,
under the Marketing Services Agreement, either the structure or
administration of the Monsanto Action Pact program.
(f) With regard to Termination Rights, Time Limitations, and ADR, the
Parties shall execute the amendments to the US Bollgard(R) and Roundup
Ready(R) Gene Licenses and Seed Services Agreements, as set forth in
Exhibits A and B, respectively.
(g) Each Party hereto represents and warrants that it has not prior to
the date hereof, and will not in the future, sell, transfer, assign or
othewise hypothecate to any Third Party that would not be bound hereby and
claim covered by this Agreement existing prior to the date hereof and each
Party will defend, indemnify and hold harmless the other Party from any
actions by any third Party asserting such claims.
3. MUTUAL RELEASES.
(a) By the Monsanto Parties: The Monsanto Parties and their Affiliates
hereby release and discharge each of the DPL Parties, their respective
Affiliates, assigns, predecessors, and successors, and any and all of those
Persons' past, present, and future officers, directors, employees, agents,
licensees and attorneys from all Claims that each of the Monsanto Parties
and their respective Affiliates, assigns, predecessors, and successors, and
all of those Persons' past, present, and future officers, directors,
employees, agents, and attorneys ever had, now have, or may have for, upon,
or by reason of, any matter whatsoever, through the date of this Agreement,
arising from, encompassed by, or related to any and all matters raised in
the Bollgard Re-Registration.
(b) By the DPL Parties: The DPL Parties and their Affiliates hereby
release and discharge each of the Monsanto Parties, their respective
Affiliates, assigns, predecessors, and successors, and any and all of those
Persons' past, present, and future officers, directors, employees, agents,
licensees and attorneys from all Claims that each of the DPL Parties and
their respective Affiliates, assigns, predecessors, and successors, and all
of those Persons' past, present, and future officers, directors, employees,
agents, and attorneys ever had, now have, or may have for, upon, or by
reason of, any matter whatsoever, through the date of this Agreement,
arising from, encompassed by, or related to any and all matters (i) raised
in the Action Pact Issues, and the Stoneville Marketing Issues.
(c) Parties Not Released: The releases set forth in paragraphs 3(a)
and 3(b) of this Agreement do not include any Claim by any Party or its
Affiliates against (and are expressly not for the benefit of) any Third
Party not specifically referred to or described in Paragraphs 3(a) or 3(b)
hereof.
(d) Matters Not Released:
Solely for the avoidance of doubt, the Parties agree that only the
claims asserted within the Subject Disputes and specifically identified in
Paragraphs 3(a) or (b) above are the subject of the above releases set
forth in this Paragraph 3.
4. COVENANT NOT TO SUE. The DPL Parties and their respective
Affiliates on the one hand and the Monsanto Parties and their respective
Affiliates on the other expressly covenant never to institute or prosecute
against the other in any administrative proceeding, arbitration proceeding,
suit, or action of any kind or nature whatsoever, at law or in equity, any
Claim released in this Agreement; provided that nothing contained in this
paragraph shall release, remise, discharge or acquit a Party's claims,
regardless of the legal theory upon which they are based, against any other
Party for the alleged breach of or to seek the enforcement of this
Agreement. Provided, however, nothing in this Agreement shall affect any
Claim or counterclaim in Delta and Pine Land Company v. Monsanto Company,
2005-IA-00015-SCT, consolidated with Delta and Pine Land Company v.
Monsanto Company, 2005-IA-00016-SCT, Delta and Pine Land Company v.
Monsanto company, et al, Civil Action No. 2000-1, pending in the Circuit
Court of the First Judicial District of Bolivar County, State of
Mississippi, or in any other legal proceeding or arbitration not otherwise
specifically addressed herein.
5. DENIAL OF LIABILITY. Each Party hereto expressly denies any
liability with respect to the Claims made against it in the Subject
Disputes.
6. FUTURE DISCOVERY. Each Party acknowledges that it may hereafter
discover facts relating to the Subject Disputes that occurred prior to the
date of this Agreement that are different from, or in addition to, those
which it now knows or believes to be true, and each Party agrees that this
Agreement shall be and remain effective and applicable in all respects,
notwithstanding such different or additional facts, or the discovery
thereof.
7. BINDING NATURE. This Agreement shall be binding upon, impose
obligations upon, and inure to the benefit of each of the Parties, their
respective Affiliates, and their respective permitted successors and
assigns.
8. GOVERNING LAW. The internal laws of the State of Delaware
(excluding its choice of law or conflicts of law provisions) shall govern
the interpretation, performance and enforcement of this Agreement.
9. SUBMISSION TO JURISDICTION. Each of the Parties irrevocably agrees
that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and
enforcement of any judgment in respect of this Agreement and the rights and
obligations arising hereunder brought by the other Party hereto or its
successors or assigns shall be brought and determined exclusively in the
Delaware Court of Chancery, or in the event (but only in the event) that
such court does not have subject matter jurisdiction over such action or
proceeding, in the United States District Court for the District of
Delaware. Each of the Parties hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect of its property,
generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and agrees that it will not bring any action relating to
this Agreement or any of the transactions contemplated by this Agreement in
any court or tribunal other than the aforesaid courts. Each of the Parties
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with
respect to this Agreement and the rights and obligations arising hereunder,
or for recognition and enforcement of any judgment in respect of this
Agreement and the rights and obligations arising hereunder (i) any claim
that it is not personally subject to the jurisdiction of the above named
courts for any reason, (ii) any claim that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise) and (iii) to the fullest extent permitted by the
applicable law, any claim that (x) the suit, action or proceeding in such
court is brought in an inconvenient forum, (y) the venue of such suit,
action or proceeding is improper or (z) this Agreement, or the subject
matter hereof, may not be enforced in or by such courts.
10. WAIVER OF JURY TRIAL. Each Party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues and, therefore, each such Party
irrevocably and unconditionally waives any right it may have to a trial by
jury in respect of any legal action arising out of or relating to this
Agreement or the transactions contemplated by this Agreement. Each party to
this Agreement certifies and acknowledges that (i) no representative of any
other Party has represented, expressly or otherwise, that such other Party
would not seek to enforce the foregoing waiver in the event of a legal
action, (ii) such Party has considered the implications of this waiver,
(iii) such Party makes this waiver voluntarily, and (iv) such Party has
been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications contained in this paragraph.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof, and all prior
negotiations and understandings between the Parties relating to the subject
matter hereof shall be deemed merged into this Agreement.
12. VOLUNTARILY AND KNOWINGLY. The Parties each acknowledge that they
have read this Agreement and understand all of its terms, and that these
documents are being executed voluntarily, without duress, and with full
knowledge of their legal significance. The Parties each acknowledge that
they have received independent legal advice from their respective attorneys
with respect to the legal consequences of entering into these agreements.
13. CONSTRUCTION. The Parties agree that in the event of any dispute
concerning the interpretation or construction of this Agreement, no
presumption shall exist with respect to the Party initially drafting the
Agreement. The Parties each agree they have had ample opportunity to
influence the choice of language and terms in this Agreement.
14. REPRESENTATIONS. The DPL Parties and Monsanto Parties each
represent and warrant that they have full capacity and authority to settle,
compromise, and release their Claims and the Claims of their respective
Affiliates as set forth herein, and that no other person or entity has, or
will in the future, acquire or have any right to assert against any person
or entity released by this Agreement any portion of that Party's or its
Affiliates' released Claims.
15. SUFFICIENCY OF CONSIDERATION. Other than the obligations set forth
in this Agreement, the Parties each acknowledge and agree that no
additional consideration is required or owing to the other, and that
sufficient consideration has passed between them to render the Agreement
valid and enforceable.
16. MODIFICATIONS. This Agreement may not be amended, altered, or
modified, in whole or in part, except by an instrument in writing executed
by the Parties thereto.
17. WAIVER. Any failure by any Party to this Agreement to insist upon
the strict performance by another Party of any of the provision of this
Agreement shall not be deemed a waiver of any of the provisions of this
Agreement and such Party, notwithstanding such failure, shall have the
right thereafter to insist upon the specific performance of any and all of
the provisions of this Agreement. There shall be no estoppel against the
enforcement of any provision of this Agreement, except by written
instruments signed by the Party charged with the waiver or estoppel; no
written waiver shall be deemed a continuing waiver unless specifically
stated therein, and the written waiver shall operate only as to the
specific term or condition waived, and not for the future or as to any
other act than that specifically waived.
18. SEVERABILITY. If any clause, provision, or section of this
Agreement shall, for any reason, be held illegal, invalid or unenforceable,
the Parties shall negotiate in good faith and in accordance with reasonable
standards of fair dealing, a valid, legal, and enforceable substitute
provision or provisions that most nearly reflect the original intent of the
Parties under this Agreement in a manner that is commensurate in magnitude
and degree with the changes arising as a result of any such substitute
provision or provisions. All other provisions in this Agreement shall
remain in full force and effect and shall be construed in order to carry
out the original intent of the Parties as nearly as possible (consistent
with the necessary reallocation of benefits) and as if such invalid,
illegal, or unenforceable provision had never been contained herein.
19. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be considered and shall have the force
and effect of an original and all of which together shall constitute one
and the same document.
20. HEADINGS. The various headings used in this Agreement are for
reference purposes only and are not to be used in interpreting the text of
the paragraph in which they appear or to which they relate.
21. NOTICES. Any notice required or permitted by this Agreement shall
be in writing and served either (1) by hand delivery or (2) by facsimile
and United States mail, first-class, postage prepaid, and addressed to the
facsimile and address set forth below:
If to the DPL Parties:
Delta and Pine Land Company
Office of the Chief Executive Officer
One Cotton Row
Scott, MS 38772
Fax: (662)742-3795
or such other person and/or address as DPL designates in writing.
If to the Monsanto Parties:
Monsanto Company
Office of the General Counsel
800 North Lindbergh Blvd.
Building A
St. Louis, MO 63167
Fax: (314) 694-6399
or such other person and/or address as Monsanto designates in
writing.
22. ATTACHMENTS AND EXHIBITS. The Attachments and
Exhibits form an integral part of this Agreement.
D&M PARTNERS DELTA AND PINE LAND COMPANY
By /s/ W.T. Jagodinski By /s/ R.D. Greene
---------------------------- ---------------------------
Title Managing Agent Title Senior Vice President
------------------------- ------------------------
Date August14, 2006 Date August 14, 2006
-------------------------- -------------------------
MONSANTO COMPANY
By /s/ Terrell K. Crews
---------------------------
Title Chief Financial Officer
-------------------------
Date August 14, 2006
-------------------------
EXHIBIT A
AMENDMENT TO ROUNDUP READY(R) GENE LICENSE AND SEED SERVICES
AGREEMENT
OF FEBRUARY 2, 1996
D&M Partners, a Delaware general partnership, Delta and Pine Land
Company, a Delaware corporation, and Monsanto Company, a Delaware
corporation, are parties to a certain Roundup Ready(R) Gene License
and Seed Services Agreement dated February 2, 1996, as amended
July 26, 1996, December 8, 1999, January 2, 2000, and March 26,
2003, and further amended by a separate agreement of even date
hereof (hereinafter referred to as the "Agreement").
All capitalized terms, not otherwise defined in this Amendment,
shall have the meanings defined in the Agreement.
The parties agree to amend the Agreement as follows:
1. Add the following sentence to Section 10.3:
"If the breaching party disputes (i) the existence of the
breach or (ii) whether curative efforts have been effective,
within the ninety (90) days, then the aggrieved party may
not terminate this Agreement until such time as rights under
Section 15.16 have been exhausted. For the avoidance of
doubt, a notice of breach is the date from which the thirty
(30) days in subsection 15.16(a) is calculated. Failure to
perfect one's rights with the time periods specified in
subsections 15.16(a) and (b) exhausts the rights given
therein. Further, neither party may terminate this
agreement due to an alleged breach that occurred more than
two (2) years prior to the notice of breach, provided that
if the aggrieved party requested an audit or an examination
of records (when provided for under the Agreement) and such
was not completed through no fault of the aggrieved party
before the end of the two (2) year period, this sentence
shall have no effect with respect to a breach that would
have been discovered in such an audit or an examination of
records (when provided for under the Agreement)."
2. Amend Section 15.16 by deleting "and nothing contained in
this Subsection 15.16 shall serve to preclude any party from
its right to seek any other remedy at law." Add the
following sentence: "Neither party may first seek
resolution of disputes subject to this Subsection 15.16 in a
court of law or equity, but shall submit it to the binding
arbitration provisions of this Subsection."
The parties agree that in the event of a change of Control (as
defined in the Settlement Agreement of which this amendment is a
part) of Delta and Pine Land Company, following the effective
date of this amendment, the amendment of Section 10.3 shall cease
to have effect and the original language of that Sectionn 10.3
shall continue as if this amendment was never in effect.
All other terms and conditions of the Agreement remain the same.
D&M PARTNERS DELTA AND PINE LAND COMPANY
By____________________________ By___________________________
Title_________________________ Title________________________
Date__________________________ Date_________________________
MONSANTO COMPANY
By___________________________
Title_________________________
Date_________________________
EXHIBIT B
AMENDMENT TO BOLLGARD(R) GENE LICENSE AND SEED SERVICES AGREEMENT
OF FEBRUARY 2, 1996
D&M Partners, a Delaware general partnership, Delta and Pine Land
Company, a Delaware corporation, and Monsanto Company, a Delaware
corporation, are parties to a certain Roundup Ready(R) Gene License
and Seed Services Agreement dated February 2, 1996, as amended
December 8, 1999, January 2, 2000, and March 26, 2003,
(hereinafter referred to as the "Agreement").
All capitalized terms, not otherwise defined in this Amendment,
shall have the meanings defined in the Agreement.
The parties agree to amend the Agreement as follows:
1. Add the following sentence to Section 10.3:
"If the breaching party disputes (i) the existence of the
breach or (ii) whether curative efforts have been effective,
within the ninety (90) days, then the aggrieved party may
not terminate this Agreement until such time as rights under
Section 15.16 have been exhausted. For the avoidance of
doubt, a notice of breach is the date from which the thirty
(30) days in subsection 15.16(a) is calculated. Failure to
perfect one's rights with the time periods specified in
subsections 15.16(a) and (b) exhausts the rights given
therein. Further, neither party may terminate this
agreement due to an alleged breach that occurred more than
two (2) years prior to the notice of breach, provided that
if the aggrieved party requested an audit or an examination
of records (when provided for under the Agreement) and such
was not completed through no fault of the aggrieved party
before the end of the two (2) year period, this sentence
shall have no effect with respect to a breach that would
have been discovered in such an audit or an examination of
records (when provided for under the Agreement)."
2. Amend Section 15.16 by deleting "and nothing contained in
this Subsection 15.16 shall serve to preclude any party from
its right to seek any other remedy at law." Add the
following sentence: "Neither party may first seek
resolution of disputes subject to this Subsection 15.16 in a
court of law or equity, but shall submit it to the binding
arbitration provisions of this Subsection."
All other terms and conditions of the Agreement remain the same.
D&M PARTNERS DELTA AND PINE LAND COMPANY
By____________________________ By___________________________
Title_________________________ Title________________________
Date__________________________ Date_________________________
MONSANTO COMPANY
By___________________________
Title_________________________
Date_________________________