**CONFIDENTIAL TREATMENT REQUESTED BY DELTA AND PINE LAND COMPANY**
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.......................................................................2
1.1 Definitions..............................................................................2
1.2 Interpretations..........................................................................4
ARTICLE 2 - ACQUISITION OF LICENSES...............................................................................4
2.1 Sale of LICENSES by SYNGENTA CROP PROTECTION AG to DELTA AND
PINE LAND COMPANY........................................................................4
2.2 LICENSE Purchase PRICE...................................................................5
2.3 closing..................................................................................5
2.4 PURPOSE OF PAYMENTS......................................................................5
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES........................................................................6
3.1 SYNGENTA CROP PROTECTION AG..............................................................6
3.2 DELTA AND PINE LAND COMPANY..............................................................7
ARTICLE 4 - CONFIDENTIAL INFORMATION..............................................................................8
4.1 CONFIDENTIAL INFORMATION.................................................................8
4.2 PERIOD OF CONFIDENTIALITY................................................................8
4.3 USES OF CONFIDENTIAL INFORMATION.........................................................9
4.4 RIGHTS AND REMEDIES UPON BREACH.........................................................10
4.5 SEVERABILITY OF COVENANTS...............................................................10
4.6 PUBLIC ANNOUNCEMENT.....................................................................10
ARTICLE 5 - FORCE MAJEURE........................................................................................10
5.1 FORCE MAJEURE...........................................................................10
ARTICLE 6 - LIABILITY............................................................................................11
6.1 LIABILITY TO ANY OTHER PARTY............................................................11
ARTICLE 7 - TERMINATION..........................................................................................11
7.1 TERM....................................................................................11
7.2 BREACH OF OBLIGATIONS...................................................................11
7.3 DEFAULT ON PAYMENT......................................................................12
7.4 ADDITIONAL REMEDIES.....................................................................12
7.5 SURVIVAL................................................................................13
ARTICLE 8 - GENERAL..............................................................................................13
8.1 ASSIGNMENT OF DELTA AND PINE LAND COMPANY'S RIGHTS AND
OBLIGATIONS.............................................................................13
8.2 ASSIGNMENT OF SYNGENTA CROP PROTECTION AG'S RIGHTS AND
OBLIGATIONS.............................................................................13
8.3 RELATION OF PARTIES.....................................................................14
8.4 INTEGRATION OF CONTRACT.................................................................14
8.5 WAIVERS AND AMENDMENTS..................................................................15
8.6 HEADINGS................................................................................15
8.7 REFERENCES TO SECTIONS, SUBSECTIONS AND EXHIBITS........................................15
8.8 PARTIAL INVALIDITY......................................................................15
8.9 GOVERNING CONTRACT LAW..................................................................16
8.10 GOVERNING PATENT LAW....................................................................16
8.11 NOTICES.................................................................................16
8.12 DISPUTE RESOLUTION......................................................................17
8.13 INCORPORATION OF EXHIBITS...............................................................18
8.14 PARTIES BOUND AND BENEFIT...............................................................18
8.15 EXPENSES................................................................................19
8.16 COUNTERPARTS............................................................................19
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:
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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.
**CONFIDENTIAL TREATMENT REQUESTED BY DELTA AND PINE LAND COMPANY**
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 *****
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 *****
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
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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
**CONFIDENTIAL TREATMENT REQUESTED BY DELTA AND PINE LAND COMPANY**
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 *****
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: /s/ R. D. Greene By: /s/ D. J. Jones
--------------------------------- ----------------------------------
Title: Vice President - Finance Title: Head of Business Development
and Treasurer
----------------------------- --------------------------------
By: /s/ G. J. Walker
-----------------------------------
Title: Financial Controller
--------------------------------
**CONFIDENTIAL TREATMENT REQUESTED BY DELTA AND PINE LAND COMPANY**
SCHEDULE 1.1
*****
*****
SCHEDULE 2.2
SCHEDULED INSTALLMENT PAYMENTS OF
LICENSE PURCHASE PRICE OF LICENSE AGREEMENTS
PAYMENT VIP3A GENE Cry1Ab GENE ENABLING TOTAL OF
DATE LICENSE LICENSE TECHNOLOGY SCHEDULED PAYMENTS
AGREEMENT AGREEMENT LICENSE AGREEMENT 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