-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NXefzMpcI5QHlI55nzvD7MMPqPcHmnto414PuuGT8HKsrvcBFq5xCNXsOUa/XNXC ggIlMfcTLHfpHe3Lix+0EA== 0000895345-06-000770.txt : 20060818 0000895345-06-000770.hdr.sgml : 20060818 20060818165320 ACCESSION NUMBER: 0000895345-06-000770 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 14 CONFORMED PERIOD OF REPORT: 20060814 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060818 DATE AS OF CHANGE: 20060818 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELTA & PINE LAND CO CENTRAL INDEX KEY: 0000902277 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 621040440 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-14136 FILM NUMBER: 061044090 BUSINESS ADDRESS: STREET 1: ONE COTTON ROW CITY: SCOTT STATE: MS ZIP: 38772 BUSINESS PHONE: 6017423351 MAIL ADDRESS: STREET 1: ONE COTTON ROW CITY: SCOTT STATE: MS ZIP: 38772 8-K 1 af8k.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 AUGUST 14, 2006 Date of Report (Date of earliest event reported) DELTA AND PINE LAND COMPANY (Exact name of registrant as specified in its charter) DELAWARE 000-21788 62-1040440 (State or other (Commission File Number) (IRS Employer jurisdiction of Identification No.) incorporation or organization) One Cotton Row, Scott, Mississippi 38772 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (662) 742-4000 NOT APPLICABLE (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |X| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) SECTION 1 - REGISTRANT'S BUSINESS AND OPERATIONS ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. Delta and Pine Land Company, a Delaware corporation ("D&PL" or the "Company"), has entered into an Agreement and Plan of Merger, dated as of August 14, 2006, by and among Monsanto Company, a Delaware corporation ("Monsanto"), Monsanto Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Monsanto (the "Merger Sub"), and the Company (the "Merger Agreement"), providing for the merger of the Merger Sub with and into the Company, with the Company continuing as the surviving corporation. Pursuant to the terms of the Merger Agreement, the Company's stockholders will receive, upon completion of the merger, $42.00 in cash, without interest, for each issued and outstanding share of common stock. The board of directors of D&PL has unanimously approved the Merger Agreement. D&PL, Monsanto and the Merger Sub have made customary representations, warranties and covenants in the Merger Agreement. Consummation of the merger is subject to customary closing conditions, including (i) approval of the Merger Agreement by the stockholders of the Company in accordance with the Delaware General Corporation Law and the Restated Certificate of Incorporation of the Company and (ii) expiration or termination of the Hart-Scott-Rodino waiting period. The Merger Agreement is not conditioned on the approval of the merger by Monsanto shareholders. The Merger Agreement does not permit the Company to solicit other acquisition proposals. The Company is permitted to respond to an unsolicited acquisition proposal from a credible third party that is not subject to material financing uncertainties and that the Company's board of directors determines in good faith, after consultation with its outside legal counsel and financial advisor, is, or could reasonably result in, a proposal that is more favorable to the stockholders of the Company than the merger (a "Superior Proposal"). Subject to the terms of the Merger Agreement, the board of directors of D&PL may terminate the Merger Agreement after furnishing to Monsanto three business days' notice of its intention to enter into a definitive agreement in respect of a Superior Proposal and furnishing Monsanto the opportunity to improve the terms of its offer. The Merger Agreement provides for the suspension of two litigations between the Company and Monsanto: (i) Delta and Pine Land Company v. Monsanto Company, et al, No. 05-M-00015-SCT consolidated with No. 05-M-00016-SCT (the "Supreme Court Case") and (ii) Delta and Pine Land Company v. Monsanto Company, et al, Civil Action No. 2000-1 (together with the Supreme Court Case, the "Litigation"). In the event the Merger Agreement is terminated (1) because it has not been consummated by the Outside Date (as defined in the Merger Agreement) and at such time the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act or the competition laws of Spain has not expired or been terminated or (2) due to any law, regulation, judgment, injunction or other order or legal restraint, in each case related to antitrust or competition matters, Monsanto will pay D&PL $600,000,000 (the "Antitrust Termination Payment"). The parties have agreed to dismiss the Litigation with prejudice in the event the Merger Agreement is terminated (1) in the circumstances described in the immediately preceding sentence; (2) by the Company due to a breach of a covenant by Monsanto and, in such circumstances, Monsanto will be required to pay to the Company $600,000,000, (3) by Monsanto for a breach of a covenant by D&PL; (4) by Monsanto upon the Company's board of directors approving, recommending or endorsing any Acquisition Transaction (as defined in the Merger Agreement) other than the merger contemplated by the Merger Agreement; or (5) by the Company to enter into an agreement for a transaction that constitutes a Superior Proposal, and, in the case of termination pursuant to clauses (4) and (5), no termination or similar fee will be payable by D&PL in connection therewith. The parties and their affiliates also entered into: Settlement Agreement I, among D&PL, D&M International LLC, D&PL International Technology Corp., and Monsanto; Settlement Agreement II, among D&PL, D&M Partners, and Monsanto; and the Arbitration Settlement Agreement, among D&PL, D&M Partners, and Monsanto (collectively, the "Settlement Agreements"). The purpose of the Settlement Agreements was to resolve or stay six arbitrations and litigations and numerous other commercial disputes between the parties. The foregoing summary of the Settlement Agreements and the Merger Agreement and the transactions contemplated thereby do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Merger Agreement and the Settlement Agreements attached as Exhibits 2.1, 10.1, 10.2 and 10.3 and incorporated herein by reference. ADDITIONAL INFORMATION ABOUT THE MERGER AND WHERE TO FIND IT IN CONNECTION WITH THE PROPOSED MERGER, D&PL WILL FILE A PROXY STATEMENT WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC"). INVESTORS ARE URGED TO READ THE PROXY STATEMENT (INCLUDING ALL AMENDMENTS AND SUPPLEMENTS TO IT) BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. Investors may obtain free copies of the proxy statement when it becomes available, as well as other filings containing information about D&PL, without charge, at the SEC's Internet site (www.sec.gov). These documents may also be obtained for free from D&PL's Investor Relations web site (www.deltaandpine.com) or by directing a request to D&PL at: Delta and Pine Land Company, Corporate Offices, P.O. Box 157, Scott, MS 38772. D&PL and its respective directors and executive officers and other members of management and employees are potential participants in the solicitation of proxies from D&PL's stockholders in respect of the proposed transaction. Information regarding D&PL's directors and executive officers is available in D&PL's proxy statement for its 2006 annual meeting of stockholders, filed with the SEC on November 29, 2005. Additional information regarding the interests of such potential participants in the proposed transaction will be included in the proxy statement to be filed with the SEC in connection with the proposed transaction. SECTION 8 - OTHER EVENTS ITEM 8.01 OTHER EVENTS. Employment and Severance Protection Agreements - ---------------------------------------------- On August 13, 2006, the Board of Directors of the Company approved an amended and restated employment agreement with W.T. Jagodinski, the Company's President and Chief Executive Officer (the "Amended Employment Agreement"). The Amended Employment Agreement will amend and restate the employment agreement between the Company and Mr. Jagodinski dated September 1, 1997, as modified by a letter agreement dated January 14, 1998 (the "Prior Employment Agreement"). The term of the Amended Employment Agreement, which is the same as that of the Prior Employment Agreement, is for a two year period that renews each day unless either party gives prior written notice of the intention to terminate the automatic extensions. Except as the result of a Change in Control or in anticipation of a Change in Control (as such terms are defined in the Amended Employment Agreement), either party can terminate the Amended Employment Agreement upon three months notice (the Company may also terminate the Amended Employment Agreement upon thirty days notice if Mr. Jagodinski is unable to perform his duties due to illness or incapacity for a continuous period of six months or for a total of eight months or more during any twelve month period). The Prior Employment Agreement provided for an annual base salary of $150,000, as may be increased by the Board of Directors of the Company and which may not be decreased, and eligibility to receive a bonus consistent with standard practices of the Company in paying bonuses to other executive officers. Under the Amended Employment Agreement, Mr. Jagodinski is subject to the same compensation provisions except that his base salary is listed at $400,000, which is the level to which the Board of Directors had previously increased his base salary. Mr. Jagodinski will also have the same entitlement to health and welfare, retirement and fringe benefits under the Amended Employment Agreement as provided in the Prior Employment Agreement, including use of a Company-provided vehicle. Pursuant to the Prior Employment Agreement, following a Change in Control or in Anticipation of a Change in Control, if Mr. Jagodinski terminated employment for any reason or if the Company terminates Mr. Jagodinski other than for cause or disability (as such terms are defined in the Prior Employment Agreement), he would be entitled to receive (1) an amount equal to the largest base salary and bonus paid over the previous five calendar years, (2) twelve monthly payments equal, in the aggregate, to one half of his largest base salary and bonus paid over the previous five calendar years, (3) an amount equal to twenty percent of his largest base salary and bonus paid over the previous five calendar years for purposes of obtaining outplacement services, (4) continuation of health and welfare benefits, at the Company's cost (in addition to the right to COBRA coverage) for twenty-four months following the date of the termination, (5) continued use of a Company-provided cellular phone, secretarial assistance, voice mailbox, mail drop service and vehicle for twenty-four months following the date of the termination, (6) continued coverage under directors and officers liability insurance policy for at least thirty-six months and (7) the right to a cash payment in lieu of receiving shares of Company stock for exercisable options that Mr. Jagodinski elects to surrender. Pursuant to the Amended Employment Agreement, if Mr. Jagodinski is employed by the Company at the time of a Change in Control or has been terminated by the Company in Anticipation of a Change in Control, then upon a Change in Control, Mr. Jagodinski will be entitled to receive (1) an amount equal to earned but unpaid base salary plus a pro rata portion of his highest bonus earned in any of the five prior fiscal years, (2) an amount equal to three times base salary (determined at the time of the Change in Control) plus his highest bonus earned in any of the five prior fiscal years, (3) an amount equal to twenty percent of the sum of base salary (determined at the time of the Change in Control) plus his highest bonus earned in any of the five prior fiscal years for purposes of obtaining accounting services, (4) the value of the excess of Mr. Jagodinski's benefit under the Company Retirement Plan if he were to be credited with an additional three years of service and his actual benefit at the time of the Change in Control, (5) continuation of health and welfare benefits at the Company's cost (in addition to the right to COBRA coverage) for thirty-six months following the date of the Change in Control, (6) continued use of a Company-provided cellular phone, secretarial assistance, voice mailbox, mail drop service, laptop computer, email account and vehicle and continued coverage under directors and officers liability insurance policy, for thirty-six months after the Change in Control and (7) the right to a cash payment in lieu of receiving shares of Company stock for exercisable options that Mr. Jagodinski is required to surrender. Under both the Prior Employment Agreement and the Amended Employment Agreement, Mr. Jagodinski is entitled to receive a gross-up payment for any income taxes owed with respect to any payments or benefits received upon a Change in Control such that the amount he retains after tax is equal to the amount he would have retained had no income tax applied. Under the Prior Employment Agreement, the income tax gross-up applied to all payments and benefits except for the payment of one year of base salary and bonus and the twelve monthly payments equal to one-half of base salary and bonus and, under the Amended Employment Agreement, the income tax gross-up applies to all payments and benefits except payment of earned but unpaid base salary and pro rata bonus and the payments of three times base salary plus his highest bonus earned in any of the five prior fiscal years. The Amended Employment Agreement provides that Mr. Jagodinski is also entitled to receive a gross-up payment with respect to any excise taxes under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), incurred with respect to any payments or benefits received from the Company such that the amount he retains after tax is equal to the after-tax amount he would have retained had no excise tax applied. In order to comply with Section 409A of the Code, all amounts payable under the Amended Employment Agreement before January 1, 2007 will not be paid earlier than the first business day after December 31, 2006. Upon his termination of employment for any reason on or following a Change in Control or in Anticipation of a Change in Control, the Prior Employment Agreement provided that Mr. Jagodinski would not compete against the Company for twelve months from the date of termination of employment. The Amended Employment Agreement contains the same provision except that it applies for an eighteen month period. For purposes of the non-competition covenant of the Amended Employment Agreement, Mr. Jagodinski may not engage or participate in, assist or have an interest in, whether as an officer, director, partner, owner, employee or otherwise, the operation, management or conduct of any business or enterprise that engages in the cotton seed breeding, production and marketing process in the same geographical area with any line of business in which the Company is now engaged. The Amended Employment Agreement, as approved by the Board of Directors of the Company, is attached as Exhibit 99.1 to this Current Report on Form 8-K and the information set forth therein is incorporated by reference into this Current Report. On August 13, 2006, the Board of Directors of the Company approved a Severance Protection Agreement to be entered into with each of Kenneth Avery and R.D. Greene that provides that, if the respective executive is employed by the Company at the time of a Change in Control (as such term is defined in the agreement) or has been terminated by the Company in anticipation of a Change in Control, then upon a Change in Control, the respective executive will be entitled to receive (1) a lump sum payment equal to (a) earned but unpaid base salary plus a pro rata portion of his highest bonus earned in any of the five prior fiscal years, (b) three times base salary (determined at the time of the Change in Control) plus his highest bonus earned in any of the five prior fiscal years, (c) with respect to Mr. Greene, thirty percent of the sum of base salary (determined at the time of the Change in Control) plus his highest bonus earned in any of the five prior fiscal years and, with respect to Mr. Avery, $30,000, for purposes of obtaining accounting services and (d) the value of the excess of the respective executive's benefit under the Company Retirement Plan if he were to be credited with an additional three years of service and his actual benefit at the time of the Change in Control, and (2) for thirty-six months following the date of the Change in Control, (a) continuation of health and welfare benefits, at the Company's cost (in addition to the right to COBRA coverage) and (b) continued use of Company-provided secretarial assistance, voice mailbox, laptop computer, email account, mail drop service and vehicle. Under the Severance Protection Agreement, Mr. Greene is entitled to receive a gross-up payment for any income taxes owed with respect to the payment made with respect to his obtaining accounting services such that the amount he retains after tax is equal to the amount he would have retained had no income tax applied. The Severance Protection Agreement provides that Messrs. Avery and Greene are each entitled to receive a gross-up payment on any excise taxes under Section 4999 of the Code, incurred with respect to any payments or benefits received from the Company such that the amount he retains after tax is equal to the after-tax amount he would have retained had no excise tax applied. Upon termination of employment for any reason on or following a Change in Control or in anticipation of a Change in Control, the Severance Protection Agreement provides that each respective executive agrees not to compete against the Company for eighteen months from the date of termination of employment. For purposes of the non-competition covenant of the Severance Protection Agreement, the respective executive may not engage or participate in, assist or have an interest in, whether as an officer, director, partner, owner, employee or otherwise, the operation, management or conduct of any business or enterprise that engages in the cotton seed breeding, production and marketing process in the same geographical area with any line of business in which the Company is now engaged. The Severance Protection Agreements of Messrs. Avery and Greene, as approved by the Board of Directors of the Company, are attached as Exhibits 99.2 and 99.3, respectively, to this Current Report on Form 8-K and the information set forth therein is incorporated by reference into this Current Report. On August 13, 2006, the Board of Directors of the Company approved a Severance Protection Agreement to be entered into with each of Charles Dismuke, Jr. and William Hugie that provides that, if within twenty-four months of a Change in Control, the respective executive's employment is terminated by the Company without Cause and other than due to Disability or death, or by the executive for Good Reason (as such capitalized terms are defined in the agreement) or during the thirty-day period following the first anniversary of the Change in Control, the respective executive will be entitled to receive (1) a lump sum payment equal to (a) earned but unpaid base salary plus a pro rata portion of his highest bonus earned in any of the five prior fiscal years, (b) three times base salary (determined at the time of the Change in Control or, if greater, the date of termination of employment) plus his highest bonus earned in any of the five prior fiscal years, (c) $30,000 for purposes of obtaining outplacement services and (d) the value of the excess of the respective executive's benefit under the Company Retirement Plan if he were to be credited with an additional three years of service and his actual benefit at the time of the termination, and (2) for thirty-six months following the date of termination of employment, (a) continuation of health and welfare benefits, at the Company's cost (in addition to the right to COBRA coverage) and (b) continued use of a Company-provided secretarial assistance, voice mailbox, laptop computer, email account, mail drop service and vehicle. The Severance Protection Agreement provides that Messrs. Dismuke and Hugie are each entitled to receive a gross-up payment with respect to any excise taxes under Section 4999 of the Code, incurred with respect to any payments or benefits received from the Company such that the amount he retains after tax is equal to the after-tax amount he would have retained had no excise tax applied. If Mr. Dismuke or Hugie qualifies as a "specified employee" under Section 409A of the Code, payments made to the respective executive under the Severance Protection Agreement may be delayed for six months from the date of termination of employment. If, during the term of the Severance Protection Agreement and within twenty-four months of a Change in Control, Mr. Dismuke's or Hugie's employment is terminated by the Company for Disability, due to death or by the executive for other than Good Reason and other than during the thirty-day period following the first anniversary of the Change in Control, the respective executive will receive earned but unpaid base salary plus a pro rata portion of his highest bonus earned in any of the five prior fiscal years. If either executive is terminated by the Company for Cause, such executive will only be entitled to earned but unpaid base salary. Upon termination of employment for any reason on or following a Change in Control or in anticipation of a Change in Control, the Severance Protection Agreement provides that each respective executive agrees not to compete against the Company for eighteen months from the date of termination of employment. For purposes of the non-competition covenant of the Severance Protection Agreement, the respective executive may not engage or participate in, assist or have an interest in, whether as an officer, director, partner, owner, employee or otherwise, the operation, management or conduct of any business or enterprise that engages in the cotton seed breeding, production and marketing process in the same geographical area with any line of business in which the Company is now engaged. The Severance Protection Agreements of Messrs. Dismuke and Hugie, as approved by the Board of Directors of the Company, are attached as Exhibits 99.4 and 99.5, respectively, to this Current Report on Form 8-K and the information set forth therein is incorporated by reference into this Current Report. On August 13, 2006, the Board of Directors of the company approved a Severance Protection Agreement to be entered into with each of James H. Willeke and certain other executive officers that provides that, if within twenty-four months of a Change in Control, the respective executive's employment is terminated by the Company without Cause and other than due to Disability or death, or by the executive for Good Reason (as such capitalized terms are defined in the agreement) or during the thirty-day period following the first anniversary of the Change in Control, the respective executive will be entitled to receive (1) a lump sum payment equal to (a) earned but unpaid base salary plus a pro rata portion of his or her highest bonus earned in any of the five prior fiscal years, (b) one and one-half times base salary (determined at the time of the Change in Control or, if greater, the date of termination of employment) plus his or her highest bonus earned in any of the five prior fiscal years, (c) $30,000 for purposes of obtaining accounting services and (d) the value of the excess of the respective executive's benefit under the Company Retirement Plan if he or she were to be credited with an additional one and one-half years of service and his or her actual benefit at the time of termination, and (2) continuation of health and welfare benefits, at the Company's cost for twenty-four months following the date of the termination (in addition to the right to COBRA coverage) and continued use of a Company-provided vehicle for eighteen months following the date of the termination. The Severance Protection Agreement provides that each respective executive is entitled to receive a gross-up payment with respect to any excise taxes under Section 4999 of the Code, incurred with respect to any payments or benefits received from the Company such that the amount he or she retains after tax is equal to the after-tax amount he or she would have retained had no excise tax applied. If any of the executives qualifies as a "specified employee" under Section 409A of the Code, payments made to the respective executive under the Severance Protection Agreement may be delayed for six months after the termination of employment. If, during the term of the Severance Protection Agreement and within twenty-four months of a Change in Control, the employment of Mr. Willeke or any one of the other executives that are parties to this agreement is terminated by the Company for Disability, due to death or by the executive for other than Good Reason and other than during the thirty-day period following the first anniversary of the Change in Control, the respective executive will receive earned but unpaid base salary plus a pro rata portion of his or her highest bonus earned in any of the five prior fiscal years. If any executive is terminated by the Company for Cause, such executive will only be entitled to earned but unpaid base salary. The Form of Severance Protection Agreement to be entered into by Mr. Willeke and certain other executives, as approved by the Board of Directors of the Company, is attached as Exhibit 99.6 to this Current Report on Form 8-K and the information set forth therein is incorporated by reference into this Current Report. The foregoing summary is qualified in its entirety by the text of the applicable grant agreements, copies of which are attached as exhibits to this report. Change in Control Payments - -------------------------- Under the Restated License Acquisition Agreement, Restated Vip3A Gene License Agreement, and Restated Cry1Ab Gene License Agreements between D&PL and Syngenta Crop Protection A.G. ("Syngenta") dated August 24, 2004 (the "Agreements") there are certain change of control provisions that may be triggered by the Merger Agreement between D&PL and Monsanto. These provisions are contained in the Agreements listed on Exhibits 99.7, 99.8 and 99.9. In addition, D&PL has certain other contracts with third parties that contain change of control provisions that may be triggered by transactions with certain parties, including Monsanto. In the event these provisions are triggered, the Company will be required to make payments of approximately $20-$25 million. SECTION 9 - FINANCIAL STATEMENTS AND EXHIBITS ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits 2.1 Agreement and Plan of Merger, dated as of August 14, 2006, among Monsanto Company, Monsanto Sub, Inc., and Delta and Pine Land Company 10.1 Settlement Agreement I, dated August 14, 2006, among Delta and Pine Land Company, D&M International LLC, D&PL International Technology Corp., and Monsanto Company 10.2 Settlement Agreement II, dated August 14, 2006, among Delta and Pine Land Company, D&M Partners, and Monsanto Company 10.3 Arbitration Settlement Agreement, dated August 14, 2006, among Delta and Pine Land Company, D&M Partners, and Monsanto Company 99.1 Form of Amended and Restated Employment Agreement, to be entered into by and between the Company and W.T. Jagodinski, as approved by the Board of Directors of the Company on August 13, 2006 99.2 Form of Severance Protection Agreement to be entered into by and between the Company and Kenneth M. Avery, as approved by the Board of Directors of the Company on August 13, 2006 99.3 Form of Severance Protection Agreement, to be entered into by and between the Company and R.D. Greene, as approved by the Board of Directors of the Company on August 13, 2006 99.4 Form of Severance Protection Agreement, to be entered into by and between the Company and Charles R. Dismuke, Jr., as approved by the Board of Directors of the Company on August 13, 2006 99.5 Form of Severance Protection Agreement, to be entered into by and between the Company and William V. Hugie, as approved by the Board of Directors of the Company on August 13, 2006 99.6 Form of Severance Protection Agreement, to be entered into by and between the Company and certain executives, as approved by the Board of Directors of the Company on August 13, 2006 99.7 Restated License Acquisition Agreement dated August 24, 2004 among Syngenta Crop Protection AG and Delta and Pine Land Company. 99.8 Restated VIP3A Gene License Agreement dated August 24, 2004 among Syngenta Crop Protection AG and Delta and Pine Land Company. (+) 99.9 Restated Cry1Ab Gene License Agreement dated August 24, 2004 among Syngenta Crop Protection AG and Delta and Pine Land Company. (+) (+) Pursuant to a confidential treatment request granted on June 23, 2005, portions of this agreement have been omitted and previously filed separately. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Delta and Pine Land Company Dated: August 18, 2006 By: /s/ Kenneth M. Avery Kenneth M. Avery Vice President of Finance, Treasurer and Assistant Secretary EXHIBIT INDEX EXHIBIT DESCRIPTION 2.1 Agreement and Plan of Merger, dated as of August 14, 2006, among Monsanto Company, Monsanto Sub, Inc., and Delta and Pine Land Company 10.1 Settlement Agreement I, dated August 14, 2006, among Delta and Pine Land Company, D&M International LLC, D&PL International Technology Corp., and Monsanto Company 10.2 Settlement Agreement II, dated August 14, 2006, among Delta and Pine Land Company, D&M Partners, and Monsanto Company 10.3 Arbitration Settlement Agreement, dated August 14, 2006, among Delta and Pine Land Company, D&M Partners, and Monsanto Company 99.1 Form of Amended and Restated Employment Agreement, to be entered into by and between the Company and W.T. Jagodinski, as approved by the Board of Directors of the Company on August 13, 2006 99.2 Form of Severance Protection Agreement to be entered into by and between the Company and Kenneth M. Avery, as approved by the Board of Directors of the Company on August 13, 2006 99.3 Form of Severance Protection Agreement, to be entered into by and between the Company and R.D. Greene, as approved by the Board of Directors of the Company on August 13, 2006 99.4 Form of Severance Protection Agreement, to be entered into by and between the Company and Charles R. Dismuke, Jr., as approved by the Board of Directors of the Company on August 13, 2006 99.5 Form of Severance Protection Agreement, to be entered into by and between the Company and William V. Hugie, as approved by the Board of Directors of the Company on August 13, 2006 99.6 Form of Severance Protection Agreement, to be entered into by and between the Company and certain executives, as approved by the Board of Directors of the Company on August 13, 2006 99.7 Restated License Acquisition Agreement dated August 24, 2004 among Syngenta Crop Protection AG and Delta and Pine Land Company. 99.8 Restated VIP3A Gene License Agreement dated August 24, 2004 among Syngenta Crop Protection AG and Delta and Pine Land Company. (+) 99.9 Restated Cry1Ab Gene License Agreement dated August 24, 2004 among Syngenta Crop Protection AG and Delta and Pine Land Company. (+) (+) Pursuant to a confidential treatment request granted on June 23, 2005, portions of this agreement have been omitted and previously filed separately. EX-2.1 2 ex2_1.txt Exhibit 2.1 EXECUTION COPY AGREEMENT AND PLAN OF MERGER dated as of August 14, 2006 by and among MONSANTO COMPANY MONSANTO SUB, INC. and DELTA AND PINE LAND COMPANY TABLE OF CONTENTS Page ---- ARTICLE 1. THE MERGER..................................................1 SECTION 1.01. The Merger..............................1 SECTION 1.02. Conversion of Shares....................2 SECTION 1.03. Payment for Shares......................3 SECTION 1.04. Certain Adjustments.....................5 SECTION 1.05. Stock Options and Company Awards........6 ARTICLE 2. THE SURVIVING CORPORATION...................................6 SECTION 2.01. Certificate of Incorporation............6 SECTION 2.02. Bylaws..................................6 SECTION 2.03. Directors and Officers..................7 ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...............7 SECTION 3.01. Corporate Organization..................7 SECTION 3.02. Authorization...........................9 SECTION 3.03. Capital Stock...........................9 SECTION 3.04. Subsidiaries............................9 SECTION 3.05. Consents and Approvals; No Violation...10 SECTION 3.06. SEC Reports and Financial Statements.............................11 SECTION 3.07. Absence of Undisclosed Liabilities.....12 SECTION 3.08. Changes................................12 SECTION 3.09. Investigations; Litigation.............14 SECTION 3.10. Contracts and Commitments..............15 SECTION 3.11. Environmental and Safety Matters.......16 SECTION 3.12. Taxes..................................18 SECTION 3.13. Employment Agreements..................19 SECTION 3.14. Change of Control Provisions...........19 SECTION 3.15. Employee Benefit Plans.................19 SECTION 3.16. Licenses...............................21 SECTION 3.17. Real Estate Leases.....................21 SECTION 3.18. Real Property..........................21 SECTION 3.19. Intellectual Property and Germplasm....22 SECTION 3.20. Compliance with Other Instruments and Laws...............................24 SECTION 3.21. Employees..............................24 SECTION 3.22. Information Supplied...................24 SECTION 3.23. Rights Agreement.......................25 SECTION 3.24. Certain Fees...........................25 SECTION 3.25. Opinion of Financial Advisor...........25 SECTION 3.26. Voting Requirements....................25 SECTION 3.27. State Takeover Statutes................25 SECTION 3.28. No Additional Representations and Warranties.............................26 ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB....26 SECTION 4.01. Corporate Organization.................26 SECTION 4.02. Authorization..........................26 SECTION 4.03. No Prior Activities; Ownership of Merger Sub Shares......................26 SECTION 4.04. Information Supplied...................27 SECTION 4.05. Consents and Approvals; No Violations.............................27 SECTION 4.06. Certain Fees...........................27 SECTION 4.07. Necessary Financing....................28 SECTION 4.08. No Buyer Stockholder Vote..............28 ARTICLE 5. COVENANTS OF THE COMPANY...................................28 SECTION 5.01. Conduct of Business by the Company and its Subsidiaries Pending the Merger.................................28 SECTION 5.02. Stockholders' Meeting..................30 SECTION 5.03. Access to Information; Cooperation; Related Matters........................31 SECTION 5.04. No Solicitation........................33 SECTION 5.05. Employment and Noncompetition Agreements.............................35 ARTICLE 6. COVENANTS OF PARENT AND MERGER SUB.........................36 SECTION 6.01. Confidentiality........................36 SECTION 6.02. Indemnification........................36 SECTION 6.03. Operations After the Effective Time....36 SECTION 6.04. Employee Benefits......................37 ARTICLE 7. COVENANTS OF BUYER AND THE COMPANY.........................37 SECTION 7.01. Best Efforts...........................37 SECTION 7.02. Certain Filings........................38 SECTION 7.03. Public Announcements...................38 SECTION 7.04. Further Assurances.....................38 SECTION 7.05. Notices of Certain Events..............38 SECTION 7.06. Preparation of the Company Proxy Statement..............................39 SECTION 7.07. Consents; Antitrust Matters............39 SECTION 7.08. Confidentiality........................42 SECTION 7.09. Litigation Stay........................42 ARTICLE 8. CONDITIONS TO THE MERGER...................................42 SECTION 8.01. Conditions to the Obligations of Each Party.............................42 SECTION 8.02. Burden of Proof........................44 ARTICLE 9. TERMINATION................................................44 SECTION 9.01. Termination............................44 SECTION 9.02. Waiver.................................46 SECTION 9.03. Closing................................46 SECTION 9.04. Effect of Termination..................46 ARTICLE 10. MISCELLANEOUS..............................................49 SECTION 10.01. Notices................................49 SECTION 10.02. Survival of Representations and Warranties.............................50 SECTION 10.03. Amendments; No Waivers.................50 SECTION 10.04. Expenses...............................50 SECTION 10.05. Successors and Assigns.................51 SECTION 10.06. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.....51 SECTION 10.07. Counterparts; Effectiveness............52 SECTION 10.08. Headings...............................52 SECTION 10.09. No Third Party Beneficiaries...........52 SECTION 10.10. Remedies...............................52 SECTION 10.11. Severability...........................52 SECTION 10.12. Rules of Construction..................53 SECTION 10.13. Entire Agreement.......................53 SECTION 10.14. Certain Defined Terms..................53 DEFINED TERMS Term Page Number - ---- ----------- Acquisition Transaction..........................................34 Agreement.........................................................1 Buyer Material Adverse Effect....................................28 CERCLA...........................................................18 Certificate of Merger.............................................2 Certificates......................................................4 Closing..........................................................46 Closing Date.....................................................46 Company...........................................................1 Company 10-K.....................................................11 Company 10-Qs....................................................11 Company Award.....................................................6 Company Common Stock..............................................2 Company Disclosure Document......................................25 Company Disclosure Letter.........................................7 Company Proxy Statement..........................................10 Company Reports..................................................11 Company Stock Option Plans........................................6 Company Stockholders Meeting.....................................31 Confidentiality Agreement........................................31 Delaware Law......................................................1 Effective Time....................................................2 Environmental and Safety Requirements............................17 Environmental Lien...............................................18 ERISA............................................................20 Exchange Act.....................................................10 Filed Company SEC Documents.......................................7 Governmental Entity..............................................10 Hazardous Materials..............................................17 HSR Act..........................................................10 Indemnified Parties..............................................36 Investigation....................................................14 knowledge of the Company.........................................15 Licenses.........................................................21 Lien.............................................................21 Material Adverse Change..........................................12 Material Adverse Effect...........................................7 Merger............................................................1 Merger Sub........................................................1 Parent............................................................1 Paying Agent......................................................3 Payment Fund......................................................3 Permitted Liens..................................................22 Plans............................................................20 Release..........................................................17 Rights............................................................2 Rights Agreement.................................................25 Securities Act...................................................11 Series M Preferred Stock..........................................2 Shares............................................................2 Superior Proposal................................................35 Surviving Corporation.............................................2 Tax Returns......................................................18 Transaction.......................................................2 AGREEMENT AND PLAN OF MERGER This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered into as of August 14, 2006, by and among MONSANTO COMPANY, a Delaware corporation ("Parent"), MONSANTO SUB, INC., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and DELTA AND PINE LAND COMPANY, a Delaware corporation (the "Company"). RECITALS WHEREAS, the Boards of Directors of Parent, Merger Sub and the Company deem it advisable and in the best interests of the stockholders of such corporations to effect the merger of Merger Sub with and into the Company pursuant to this Agreement; WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the Company have approved the acquisition of the Company by Parent through the merger of Merger Sub with and into the Company on the terms set forth in this Agreement, and the Board of Directors of the Company has unanimously resolved to recommend that this Agreement and the transactions contemplated hereby, including such merger, be approved and adopted by the stockholders of the Company; WHEREAS, contemporaneously with the execution and delivery of this Agreement, Parent, the Company and the other parties named therein are entering into several settlement agreements, dated as of the date hereof, copies of which are attached hereto as Exhibits A, B and C, respectively (collectively, the "Settlement Agreements"); and WHEREAS, the parties hereto desire to make certain representations, warranties, covenants and agreements in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. NOW, THEREFORE, in consideration of the foregoing and of the mutual representations, warranties, covenants and agreements set forth herein, the parties agree as follows: ARTICLE 1. THE MERGER SECTION 1.01. The Merger. (a) At the Effective Time (as defined in Section 1.01(b) hereof), Merger Sub shall be merged (the "Merger") with and into the Company in accordance with the Delaware General Corporation Law ("Delaware Law"), whereupon the separate existence of Merger Sub shall cease, and the Company shall be the surviving corporation (the "Surviving Corporation"). The Merger is sometimes hereinafter referred to as the "Transaction." (b) On the Closing Date (as defined in Section 9.03), the Company and Merger Sub will file a certificate of merger with the Secretary of State of the State of Delaware (the "Certificate of Merger") and make all other filings or recordings required by Delaware Law in connection with the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware and any additional requirements of Delaware Law are complied with or at such later time as is specified in the Certificate of Merger (the "Effective Time"). (c) From and after the Effective Time, the Surviving Corporation shall possess all the assets, rights, privileges, powers and franchises and be subject to all of the liabilities, restrictions, disabilities and duties of the Company and Merger Sub, all as provided under Delaware Law. SECTION 1.02. Conversion of Shares. (a) At the Effective Time and by virtue of the Merger and without any action on the part of the holders thereof or any other Person: (i) each share of common stock of the Company, $0.10 par value per share ("Company Common Stock"), and Series M Convertible Non-Voting Preferred Stock of the Company ("Series M Preferred Stock") held by the Company as treasury stock or owned by Parent or any subsidiary of Parent immediately prior to the Effective Time (collectively, the "Non-Converted Shares") shall be canceled, and no payment shall be made with respect thereto; (ii) subject to Section 1.02(b) and Section 1.03, each share of Company Common Stock, and the associated preferred stock purchase right (the "Rights"), and each share of Series M Preferred Stock (collectively, the "Shares") outstanding immediately prior to the Effective Time shall, except as otherwise provided in clause (i) of this subsection, be converted into the right to receive $42.00 in cash, without interest (the "Merger Consideration"). As of the Effective Time, all such Shares shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any such Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration upon surrender of such certificate in accordance with Section 1.03 hereof; and (iii) each share of common stock of Merger Sub, $0.01 par value per share, outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation, $0.01 par value per share. (b) Notwithstanding any provision of this Agreement to the contrary and to the extent available under Delaware Law, any Shares outstanding immediately prior to the Effective Time that are held by a stockholder (a "Dissenting Stockholder") who has neither voted in favor of the adoption of this Agreement nor consented thereto in writing and who has demanded properly in writing appraisal for such Shares and otherwise properly perfected and not withdrawn or lost his, her or its rights (the "Dissenting Shares" and, together with the Non-Converted Shares, the "Excluded Shares") in accordance with Section 262 of Delaware Law will not be converted into, or represent the right to receive, the Merger Consideration. Such Dissenting Stockholders will be entitled to receive payment of the appraised value of the Dissenting Shares held by them in accordance with the provisions of such Section 262, except that all Dissenting Shares held by stockholders who have failed to perfect or who effectively have withdrawn or lost their rights to appraisal of such Dissenting Shares pursuant to Section 262 of Delaware Law will thereupon be deemed to have been converted into, and represent the right to receive, the Merger Consideration in the manner provided in Section 1.02(a)(ii) hereof and will no longer be Dissenting Shares. The Company will give Parent prompt notice of any written demands for appraisal, attempted withdrawals of such demands, and any other instruments served pursuant to applicable law received by the Company relating to stockholders' rights of appraisal. The Company will give Parent the opportunity to participate in and direct all negotiations and proceedings with respect to demands for appraisal. The Company will not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisals of Dissenting Shares, offer to settle or settle any such demands or approve any withdrawal or other treatment of any such demands. SECTION 1.03. Payment for Shares. (a) As of the Effective Time, Parent and Merger Sub shall enter into an agreement with a bank or trust company selected by Parent (which is reasonably satisfactory to the Company) as paying agent for the Merger (the "Paying Agent "), which shall provide that Parent shall deposit with the Paying Agent as of the Effective Time, for the benefit of the holders of Shares (other than Excluded Shares), for exchange in accordance with this Article 1, through the Paying Agent, cash in an amount sufficient to make the payments to the holders of Shares (other than Excluded Shares) contemplated by Section 1.02(a)(ii) hereof (the "Payment Fund"). The Payment Fund shall not be used for any purpose other than as provided in the immediately preceding sentence. The Payment Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that such investments shall be in obligations of or guaranteed by the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moody's Investors Service, Inc. or Standard & Poor's Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker's acceptances of commercial banks with capital exceeding $1 billion (based on the most recent financial statements of such bank which are then publicly available). Any net profit resulting from, or interest or income produced by, such investments shall be property of and payable to Parent, provided in the event of any losses due to the investment of the Payment Fund, Parent shall be required to deposit such additional amounts as may be required to ensure that the Payment Fund is sufficient to make any and all payments contemplated by Section 1.02(a)(ii) hereof. (b) As soon as reasonably practicable after the Effective Time, the Paying Agent shall mail to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding Company Common Stock (the "Certificates") whose shares were converted into the right to receive the Merger Consideration pursuant to Section 1.02(a)(ii) hereof, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in surrendering the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor (subject to the terms of Section 1.03(g)) an amount in cash equal to the Merger Consideration with respect to each share of Company Common Stock represented by the Certificate so surrendered, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares which is not registered in the transfer records of the Company, the Merger Consideration payable in respect of the Shares represented by such Certificate may be paid to a Person other than the Person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the Person requesting such issuance pays any transfer or other taxes required by reason of the payment of such Merger Consideration to a Person other than the registered holder of such Certificate or establishes to the satisfaction of Parent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 1.03, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration which the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of this Article 1. No interest shall be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of this Article 1. (c) After the Effective Time, there will be no transfers on the stock transfer books of the Company of Shares that were outstanding immediately prior to the Effective Time other than to settle transfers of Shares that occurred prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Paying Agent, they will be cancelled and exchanged for the Merger Consideration as provided in this Section 1.03. (d) Any portion of the Payment Fund which remains undistributed to the holders of the Certificates for six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of the Certificates who have not theretofore complied with this Article 1 shall thereafter look only to Parent for payment of their claims for Merger Consideration. (e) Neither Parent, Merger Sub, the Company, the Surviving Corporation nor the Paying Agent shall be liable to any Person in respect of any amount delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificate shall not have been surrendered prior to two years after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Entity (as defined in Section 3.05 hereof)), any such Merger Consideration shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. (f) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration due to such person pursuant to this Agreement in respect thereof. (g) The Surviving Corporation and the Paying Agent shall deduct and withhold from amounts otherwise payable pursuant to this Agreement to any holder of Shares or holder of Stock Options or Company Awards any amounts required to be deducted and withheld with respect to such payments under the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), or any provision of state, local or foreign law. Any amounts so deducted and withheld will be timely paid to the applicable Governmental Entity and will be treated for all purposes of this Agreement as having been paid to the holder of the Shares or holders of Stock Options or Company Awards, as the case may be, in respect of which such deduction and withholding was made. SECTION 1.04. Certain Adjustments. If after the date hereof and on or prior to the Effective Time the outstanding shares of Company Common Stock shall be changed into a different number, class or series of shares or any other security by reason of any reclassification, recapitalization, reorganization, merger, business combination, split-up, stock split, combination or exchange of shares, or any dividend payable in stock or other securities shall be declared thereon with a record date within such period, or any similar event shall occur, the Merger Consideration shall be equitably adjusted to reflect such change; provided, however, that nothing contained herein shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement. SECTION 1.05. Stock Options and Company Awards. (a) As of the Effective Time, each outstanding stock option to purchase Company Common Stock (the "Stock Options"), whether granted under the Company's 1995 Amended and Restated Long-Term Incentive Plan or the Company's 2005 Omnibus Stock Plan (collectively, the "Company Stock Option Plans") or otherwise, shall be cancelled and terminated and the holder of such Stock Option will, in full settlement of such Stock Option and in exchange for the surrender to the Company of any certificate or other document evidencing such Stock Option, receive from the Surviving Corporation an amount (subject to Section 1.03(g)) in cash equal to the product of (i) the excess, if any, of the Merger Consideration over the exercise price per share of Company Common Stock of such Stock Option multiplied by (ii) the number of shares of Company Common Stock subject to such Stock Option (with the aggregate amount of such payment rounded down to the nearest whole cent). The holders of Stock Options will have no further rights in respect of any Stock Options from and after the Effective Time. (b) As of the Effective Time, each outstanding award (including restricted stock, deferred stock, phantom stock, stock equivalents and stock units), but excluding Stock Options (each a "Company Award"), under the Company Stock Option Plans shall be cancelled and terminated and the holder thereof shall be entitled to receive (subject to Section 1.03(g)) from the Surviving Corporation an amount in cash equal to the Merger Consideration in respect of each share of Company Common Stock represented thereby, without interest. The holders of Company Awards will have no further rights in respect of any such Company Award from and after the Effective Time. (c) Prior to the Effective Time, the Company will adopt such resolutions and will take such other actions as shall be required to effectuate the actions contemplated by this Section 1.05, without paying any consideration or incurring any debts or obligations on behalf of the Company or the Surviving Corporation, including, without limitation, accelerating and causing the complete vesting, as of the Effective Time, of all Stock Options and Company Awards. ARTICLE 2. THE SURVIVING CORPORATION SECTION 2.01. Certificate of Incorporation. The certificate of incorporation of Merger Sub in effect at the Effective Time shall be the certificate of incorporation of the Surviving Corporation until amended in accordance with applicable law, except that the name set forth in such certificate of incorporation shall be changed to Delta and Pine Land Company. SECTION 2.02. Bylaws. The bylaws of Merger Sub in effect at the Effective Time shall be the bylaws of the Surviving Corporation until amended in accordance with applicable law. SECTION 2.03. Directors and Officers. From and after the Effective Time, until successors are duly elected or appointed in accordance with applicable law, (a) the directors of Merger Sub at the Effective Time shall constitute the directors of the Surviving Corporation, and (b) the officers of the Company at the Effective Time shall be the officers of the Surviving Corporation. ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to Parent and Merger Sub that, except as set forth in (i) the disclosure letter (the "Company Disclosure Letter") delivered by the Company to Parent and Merger Sub contemporaneously with the execution of this Agreement or (ii) in (x) the Company 10-K or the Company 10-Qs (excluding any amendments to the foregoing documents filed after the date hereof), (y) any current report on Form 8-K (or any amendment thereto) that was filed by the Company with the Securities and Exchange Commission (the "SEC") following the date of the Company 10-K and prior to the date hereof (collectively, the "Current Reports") or (z) the Company's definitive proxy statement filed by the Company with the SEC on November 19, 2005 (excluding, in the case of clauses (x), (y) and (z) immediately above, (A) all exhibits (other than press releases filed as exhibits to any such Current Report) and (B) all disclosures in any "Risk Factors" section contained in any of the foregoing documents) (the "Filed Company SEC Documents"), it being agreed that all disclosures in the Company Disclosure Letter in any one or more sections referred to therein shall be deemed to have been disclosed in response to each relevant and/or applicable section of this Agreement, so long as the relevance of such disclosures to the representations made by the Company in each such section is reasonably apparent: SECTION 3.01. Corporate Organization. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to own, operate and lease its properties and assets and to carry on its business as it is now being conducted. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the character of its properties owned or held under lease or the nature of its activities makes such qualification necessary, except where the failure to be so qualified or to be in good standing would not, individually or in the aggregate, have a material adverse effect on the business, assets or financial condition of the Company and the Subsidiaries taken as a whole (after giving effect to the terms set forth in clauses (a)-(h) immediately below, a "Material Adverse Effect"), except for any effect resulting from or relating to: (a) conditions or circumstances generally affecting the cotton and soybean planting seed industries, including any conditions or circumstances resulting from reductions in planted acreage that affects the cotton and soybean industries generally (other than any such conditions or circumstances that affect the Company or its Subsidiaries in a materially disproportionate manner when compared to the effects of such conditions and circumstances on other Persons engaged in the cotton and soybean planting seed industries, provided that only the disproportionate amount shall be considered in determining whether such conditions or circumstances would have a material adverse effect on the business, assets or financial condition of the Company and the Subsidiaries taken as a whole); (b) the sale of seed containing technology licensed by the Company or any Subsidiary from Parent or any of Parent's Affiliates; (c) any of the litigation matters or investigations specifically described in the Company Disclosure Letter; (d) any change or effect relating to general political or economic conditions, or resulting from or arising out of developments or conditions in agricultural, credit, financial or securities markets in general, including, without limitation, any such change or effect caused by changes to government agricultural policies, acts of terrorism or war (whether or not declared) or any material worsening of such conditions existing as of the date of this Agreement, excluding, for all purposes of this clause (d), any such change or effect that affects the Company or its Subsidiaries in a materially disproportionate manner when compared to the effects of such changes and effects on other Persons engaged in the cotton and soybean planting seed industries (provided that only the disproportionate amount shall be considered in determining whether such change or effect would have a material adverse effect on the business, assets or financial condition of the Company and the Subsidiaries taken as a whole); (e) any weather condition or any hurricane, earthquake or other natural disaster; (f) any change or effect primarily attributable to the execution and public announcement of this Agreement, compliance by the Company and its Subsidiaries with the terms of this Agreement (other than any such change or effect that arises due to compliance by the Company and its Subsidiaries with the terms of Section 5.01(a) that require that the Company and its Subsidiaries to conduct their respective businesses in the ordinary and usual course) or the consummation of the transactions contemplated hereby, excluding any such change or effect resulting from any change of control or similar provision contained in any agreement to which the Company or any Subsidiary is a party or is otherwise bound (other than any such change or effect resulting from any change of control or similar provision contained in any agreement that is listed in Section 3.14 of the Company Disclosure Letter); (g) (i) actions taken by Parent or any of its Affiliates, (ii) insects or weeds developing resistance to the technologies of Parent or its Affiliates or (iii) actions of any Governmental Entity with respect to the technologies of Parent and its Affiliates or from the failure by Parent or any of its Affiliates to obtain or maintain regulatory approvals with respect to the technology of Parent or its Affiliates; or (h) any currency fluctuations. SECTION 3.02. Authorization. The Company has the necessary corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company's Board of Directors, have been unanimously approved by the Company's Board of Directors prior to Parent or Merger Sub becoming an "Interested Stockholder" as defined in Section 203 of Delaware Law and have been approved as otherwise required by the Company's certificate of incorporation and bylaws, each as amended. Except for the approval of this Agreement and the Merger by the Company's stockholders, no other corporate proceeding on the part of the Company is necessary for the execution and delivery of this Agreement by the Company, the performance of the Company's obligations hereunder or the consummation by the Company of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' rights generally or by the availability of equitable remedies generally. SECTION 3.03. Capital Stock. The authorized capital stock of the Company consists of: (a) 100,000,000 shares of Company Common Stock, of which, as of August 14, 2006, there were (i) 41,943,690 shares issued and outstanding, (ii) 1,066,667 shares reserved for issuance upon conversion of Series M Preferred Stock, and (iii) 5,637,600 shares held in the Company's treasury (all of which shares are included in the number of issued and outstanding shares in clause (i) immediately above); and (b) 2,000,000 shares of preferred stock, $0.10 par value per share, consisting of (i) 501,989 shares designated for issuance upon the exercise of the Rights as Series A Junior Participating Preferred Stock, of which no shares are issued or outstanding, and (ii) 1,066,667 shares designated as Series M Preferred Stock, all of which were issued and outstanding as of August 14, 2006. All of the outstanding shares of capital stock of the Company have been validly issued and are fully paid, nonassessable and free of preemptive rights with no personal liability attaching to the ownership thereof. As of August 14, 2006, except for the Rights, the Series M Preferred Stock and options to acquire not more than 2,829,110 shares of Company Common Stock pursuant to the Company Stock Option Plans, there are no outstanding subscriptions, options, warrants, rights, contracts or other arrangements or commitments obligating the Company or any Subsidiary to issue or sell any shares of the Company's or any Subsidiary's capital stock or other equity interests or any securities convertible into or exchangeable for shares of the Company's or any Subsidiary's capital stock or other equity interests. SECTION 3.04. Subsidiaries. The Company Disclosure Letter lists all direct and indirect Subsidiaries and, for purposes of Section 3.09(c) of this Agreement, Anhui An Dai Cotton Seed Technology Company, Ltd., DeltaMax Cotton, LLC and MDM Sementes De Algodao Limitada (collectively, the "Other Entities"), shall be deemed a Subsidiary. Each Subsidiary is a corporation or other form of business entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable, and has all requisite corporate or other power and authority to own, operate and lease its properties and assets and to carry on its business as it is now being conducted, and each Subsidiary is duly qualified to do business and is in good standing in each jurisdiction in which the character of its properties owned or held under lease or the nature of its activities makes such qualification necessary, in each case, except where the failure to be so qualified or to be in good standing would not, individually or in the aggregate, have a Material Adverse Effect. All outstanding shares of capital stock of each Subsidiary are validly issued, fully paid and nonassessable and are owned by the Company or another Subsidiary free and clear of any liens, claims or encumbrances, except for any director's qualifying shares. SECTION 3.05. Consents and Approvals; No Violation. Except for (a) applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the "Exchange Act"), including the filing with and clearing by the SEC of a proxy statement relating to the Company Stockholders Meeting, as amended or supplemented from time to time (the "Company Proxy Statement"), (b) the filing of a Pre-Merger Notification and Report Form by the Company and the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (c) applicable requirements of foreign and supranational laws relating to antitrust and anticompetition clearances, filings or notices, (d) the filing of the Certificate of Merger as required by Delaware Law, (e) such filings and consents as may be required under any environmental law pertaining to any notification, disclosure or required approval triggered by the Merger or the transactions contemplated by this Agreement, (f) filing with the NYSE and the SEC with respect to the delisting and deregistration of the shares of Company Common Stock and (g) such consents, approvals, orders, authorizations, notifications, registrations, declarations and filings as may be required under the corporation, takeover or blue sky laws of various states of the United States and jurisdictions outside the United States, no filing with or prior notice to, and no permit, authorization, consent or approval of, any Person, including any federal, state, local, foreign, supranational or other governmental department, court, commission, governmental body, board, bureau, agency, tribunal or instrumentality (each, a "Governmental Entity") is necessary for the consummation by the Company of the transactions contemplated by this Agreement. Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby nor compliance by the Company with any of the provisions hereof will (i) conflict with or result in any violation of any provision of the certificate of incorporation or bylaws of the Company, each as amended, or the certificate of incorporation, bylaws or analogous organizational documents (in the case of non-corporate entities) of any Subsidiary, each as amended, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which the Company or any Subsidiary is a party or by which any of them or any of their properties or assets may be bound, or (iii) violate any federal, state, local or foreign order, writ, injunction, decree, statute, rule or regulation applicable to the Company, any Subsidiary or any of their properties or assets, excluding from the foregoing clauses (ii) and (iii) violations, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect. SECTION 3.06. SEC Reports and Financial Statements. (a) Since August 31, 2002, the Company has filed all required forms, reports and documents with the SEC required to be filed by it pursuant to the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act") and the Exchange Act (hereinafter collectively referred to as the "Company Reports"), all of which have complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act as of the filing date thereof. The Company Reports included (i) all certificates required to be included therein pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder ("SOX"), and (ii) the internal control report --- and attestation of the Company's outside auditors required by Section 404 of SOX, to the extent such report and attestation was required to be included therein under SOX. (b) None of the Company Reports, including, without limitation, any financial statements or schedules included or incorporated by reference therein, at the time filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The consolidated balance sheets and the related consolidated statements of income, cash flow and stockholders' equity (including, without limitation, the related notes thereto) of the Company and its consolidated Subsidiaries included in the financial statements contained in the Company's Annual Report on Form 10-K for the year ended August 31, 2005 (the "Company 10-K") and in the Company's Quarterly Reports on Form 10-Q for the quarters ended November 30, 2005, February 28, 2006 and May 31, 2006 (collectively, the "Company 10-Qs"), present fairly the consolidated financial position of the Company and its consolidated Subsidiaries as of their respective dates, and the results of consolidated operations and cash flows for the periods then ended, all in conformity with United States generally accepted accounting principles ("GAAP") applied on a consistent ---- basis, except as otherwise noted therein, and in the case of unaudited interim financial statements subject to normal year-end audit adjustments and except for certain footnote disclosures required by generally accepted accounting principles. (d) The management of the Company has (i) implemented disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that are reasonably designed to ensure that material information relating to the Company and its consolidated Subsidiaries is made known to the chief executive officer and chief financial officer of the Company by others within those entities, and (ii) timely disclosed, based on its most recent evaluation, to the Company's outside auditors and the audit committee of the Company's Board of Directors (x) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect in any material respect the Company's ability to record, process, summarize and report financial data and (y) any fraud known to the Company, whether or not material, that involves management or other employees who have a significant role in the Company's internal controls over financial reporting. Since September 1, 2004, any material change in internal control over financial reporting or failure or inadequacy of disclosure controls required to be disclosed in any Company Report has been so disclosed. SECTION 3.07. Absence of Undisclosed Liabilities. Except as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Company nor any Subsidiary has any liabilities (whether absolute, accrued or contingent), except: (a) liabilities that are accrued and reserved against in the consolidated balance sheet of the Company and the Subsidiaries or reflected in the notes thereto, in each case included in the Filed Company SEC Documents; (b) liabilities incurred since May 31, 2006 in the ordinary course of business; (c) liabilities which, individually or in the aggregate, are not required under GAAP to be set forth on the consolidated balance sheet of the Company and its consolidated Subsidiaries; and (d) liabilities incurred after the date hereof as specifically permitted by this Agreement. SECTION 3.08. Changes. Since the date of the Company 10-K: (a) there has been no material adverse change in the business, assets or financial condition of the Company and its Subsidiaries taken as a whole, (after giving effect to the terms set forth in clauses (i)-(viii) immediately below, a "Material Adverse Change "), except for any effect resulting from or relating to: (i) conditions or circumstances generally affecting the cotton and soybean planting seed industries, including any conditions or circumstances resulting from reductions in planted acreage that affects the cotton and soybean industries generally (other than any such conditions or circumstances that affect the Company or its Subsidiaries in a materially disproportionate manner when compared to the effects of such conditions and circumstances on other Persons engaged in the cotton and soybean planting seed industries, provided that only the disproportionate amount shall be considered in determining whether such conditions or circumstances would have a material adverse effect on the business, assets or financial condition of the Company and the Subsidiaries taken as a whole); (ii) the sale of seed containing technology licensed by the Company or any Subsidiary from Parent or any of Parent's Affiliates; (iii) any of the litigation matters or investigations specifically described in the Company Disclosure Letter; (iv) any change or effect relating to general political or economic conditions, or resulting from or arising out of developments or conditions in agricultural, credit, financial or securities markets in general, including, without limitation, any such change or effect caused by changes to government agricultural policies, acts of terrorism or war (whether or not declared) or any material worsening of such conditions existing as of the date of this Agreement, excluding, for all purposes of this clause (iv), any such change or effect that affects the Company or its Subsidiaries in a materially disproportionate manner when compared to the effects of such changes and effects on other Persons engaged in the cotton and soybean planting seed industries (provided that only the disproportionate amount shall be considered in determining whether such change or effect would have a material adverse effect on the business, assets or financial condition of the Company and the Subsidiaries taken as a whole); (v) any weather condition or any hurricane, earthquake or other natural disaster; (vi) any change or effect primarily attributable to the execution and announcement of this Agreement, compliance by the Company and its Subsidiaries with the terms of this Agreement (other than any such change or effect that arises due to compliance by the Company and its Subsidiaries with the terms of Section 5.01(a) that require that the Company and its Subsidiaries to conduct their respective businesses in the ordinary and usual course) or the consummation of the transactions contemplated hereby, excluding any such change or effect resulting from any change of control or similar provision contained in any agreement to which the Company or any Subsidiary is a party or is otherwise bound (other than any such change or effect resulting from any change of control or similar provision contained in any agreement that is listed in Section 3.14 of the Company Disclosure Letter); (vii) (x) actions taken by Parent or any of its Affiliates, (y) insects or weeds developing resistance to the technologies of Parent or its Affiliates or (z) actions of any Governmental Entity with respect to the technologies of Parent and its Affiliates or from the failure by Parent or any of its Affiliates to obtain or maintain regulatory approvals with respect to the technology of Parent or its Affiliates; or (viii) any currency fluctuations. (b) there has been no direct or indirect redemption, purchase or other acquisition of any shares of the Company's capital stock, or any declaration, setting aside or payment of any dividend or other distribution by the Company in respect of the Company's capital stock, or any issuance of any shares of capital stock of the Company, or any granting to any person of any option to purchase or other right to acquire shares of capital stock of the Company or any stock split or other change in the Company's capitalization, other than equity awards in the ordinary course of business; (c) neither the Company nor any Subsidiary has entered into or agreed to enter into any new or amended contract with any works council or trade or labor unions representing employees of the Company or any Subsidiary; (d) neither the Company nor any Subsidiary has entered into or agreed to enter into any new or amended contract with any of the key employees, officers or directors thereof or otherwise increased the compensation payable to the key employees, officers or directors of any such entity; and (e) neither the Company nor any Subsidiary has (i) entered into or amended any bonus, incentive compensation, deferred compensation, profit sharing, retirement, pension, group insurance, severance or termination indemnity or other benefit plan except as required by law or regulations or (ii) made any contribution to any such plan except for contributions specifically required pursuant to the terms thereof. SECTION 3.09. Investigations; Litigation. (a) Other than reviews pursuant to the Antitrust Laws which may be commenced in connection with the execution and delivery of this Agreement, there are no pending investigations, reviews or inquiries by any Governmental Entity with respect to the Company or any Subsidiary or with respect to the activities of any officer, director or employee of the Company or any Subsidiary (an "Investigation"), nor, to the knowledge of the Company, is an Investigation threatened, nor has any Governmental Entity indicated, to the knowledge of the Company, an intention to conduct an Investigation, other than Investigations which would not, individually or in the aggregate, have a Material Adverse Effect. For the purpose of this Agreement, (i) "knowledge of the Company" and similar phrases means the actual knowledge of any executive officer of the Company included in the "Company Knowledge Group" set forth in the Company Disclosure Letter, in each case assuming the compliance with the internal reporting policies and procedures maintained by the Company and its Subsidiaries as of the date hereof and (ii) "Antitrust Laws" means the HSR Act or any other foreign or domestic antitrust, competition or premerger notification, trade regulation law, regulation or order. (b) (i) There are no actions or proceedings pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary by any Governmental Entity (other than actions or proceedings that may be commenced under the Antitrust Laws solely in connection with the transactions contemplated by this Agreement), which would, individually or in the aggregate, have a Material Adverse Effect, (ii) there are no outstanding domestic or foreign judgments, decrees or orders against the Company or any Subsidiary enjoining any of them in respect of, or the effect of which is to prohibit, any business practice or the acquisition of any property or the conduct of business in any area that, individually or in the aggregate, would have a Material Adverse Effect and (iii) neither the Company nor any Subsidiary is in violation of, and none of them has received any claim or notice that it is in violation of, any federal, state, local or foreign laws, statutes, rules, regulations or orders promulgated or judgments entered by any federal, state, local or foreign court or other Governmental Entity, which violations, individually or in the aggregate, would have a Material Adverse Effect. (c) Without limiting the foregoing, to the knowledge of the Company, neither the Company nor any of its Subsidiaries, nor any director, officer, agent or employee of the Company or any of its Subsidiaries, has, in the past five years, acting on behalf of the Company or any of its Subsidiaries, (i) made, authorized, offered or promised to make any unlawful payment or transfer of anything of value, directly or indirectly through a third party, to any officer, employee or representative of a foreign government or any department, agency or instrumentality thereof (including any state-owned enterprise), political party, political campaign or public international organization, in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the "FCPA"), or any applicable law of similar effect; (ii) otherwise taken any action which would cause the Company or any of its Subsidiaries to be in violation of the FCPA or any application law of similar effect; or (iii) violated any applicable law pertaining to export controls, antiboycott restrictions or trade sanctions. SECTION 3.10. Contracts and Commitments. (a) As of the date hereof, the Company is not, nor is any Subsidiary, a party to or bound by any oral or written contract: (i) which is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act) to be performed in full or in part after the date of this Agreement that has not been filed or incorporated by reference in the Company Reports; (ii) that is a partnership, joint venture, strategic alliance or cooperation agreement (or any agreement similar to any of the foregoing), in each case which is material to the Company and its Subsidiaries taken as a whole; (iii) that prohibits the Company or any of its Subsidiaries from freely engaging or competing in any line of business anywhere in the world; (iv) between the Company and any of its Affiliates (other than Subsidiaries), directors or officers that is not on arms length terms; (v) pursuant to which the Company or any Subsidiary licenses (as licensor or licensee) any cotton or soybean hybrids or any germplasm or any other Intellectual Property related to cotton or soybeans, in each case which is material to the Company and its Subsidiaries taken as a whole, except in each case any of the foregoing which is licensed to the Company or any Subsidiary by the Parent or any of its Affiliates; (vi) that involves an amount in excess of $1,500,000 and pursuant to which the Company or any of its Subsidiaries has incurred or accrued losses; (vii) that by its terms may be terminated upon a change in control of the Company or any of its Subsidiaries; (viii) that commits the Company or any of its Subsidiaries to purchase or sell any properties or assets outside of the ordinary course of business for consideration in excess of $1,500,000; or (ix) that involves an unfulfilled obligation, individually or in the aggregate, in excess of $1,500,000 and is incurred outside the ordinary course of business and is not terminable by the Company or any of its Subsidiaries upon less than 120 calendar days' notice for a cost of not less than $1,500,000. The foregoing contracts and agreements to which the Company or any Subsidiary are parties or are bound and that are listed in the Company Disclosure Letter, together with all contracts and agreements filed as exhibits to the Company Reports, are collectively referred to herein as the "Company Material Contracts." (b) (i) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, except where the failure to be valid, binding and in full force and effect would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the Company and each of its Subsidiaries has and, to the knowledge of the Company, all other parties thereto have, performed all obligations required to be performed by such Person under each Company Material Contract, except where such noncompliance would not, individually or in the aggregate, have a Material Adverse Effect, and (iii) neither the Company nor any of its Subsidiaries knows of, or has received written notice of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company, any of its Subsidiaries or any other party thereto under any Company Material Contract, except where such default would not, individually or in the aggregate, have a Material Adverse Effect. SECTION 3.11. Environmental and Safety Matters. Except as would not, individually or in the aggregate, have a Material Adverse Effect: (a) The Company and its Subsidiaries are in compliance with all applicable Environmental and Safety Requirements. "Environmental and Safety Requirements" means all federal, state, local and foreign statutes, regulations, permits, ordinances and other provisions having the force or effect of law, all judicial and administrative orders and determinations and all common law, in each case concerning public health and safety, worker health and safety, and pollution or protection of the environment (including without limitation, relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, Release or threatened Release (whether onsite or offsite), control, or cleanup of any Hazardous Materials. "Hazardous Materials" means any pollutant, contaminant, constituent, chemical, raw material, product or by-product, petroleum or any fraction thereof, asbestos or asbestos-containing material, polychlorinated biphenyls, any hazardous waste, and any toxic, radioactive, infectious or hazardous substance, material, or agent, including all substances, materials or wastes which are subject to regulation or give rise to liability under any Environmental and Safety Requirements. "Release" has the meaning set forth in CERCLA. (b) Without limiting the generality of the foregoing, the Company and its Subsidiaries are in compliance with all permits, licenses and other authorizations that are required pursuant to Environmental and Safety Requirements for the occupation of their facilities and the operation of their business. (c) To the knowledge of the Company, the Company and its Subsidiaries have not received any written notice, report or other information alleging any liabilities (whether accrued, absolute, contingent, unliquidated or otherwise) or investigatory, removal, remedial or corrective obligations, of the Company or its Subsidiaries, in each case arising under Environmental and Safety Requirements with respect to any of their respective current or former properties and facilities or any current or former offsite properties and facilities used in the business of the Company or its Subsidiaries. (d) The Company and its Subsidiaries have not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or Released, either onsite or offsite, any Hazardous Materials, in each case so as to give rise to liabilities of the Company or its Subsidiaries for response costs or natural resource damages pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, or similar state Environmental and Safety Requirements. (e) Neither the Company nor its Subsidiaries have, either expressly or by operation of law, assumed or undertaken any liability, including without limitation any obligation for removal, corrective or remedial action, of any other Person arising under any Environmental and Safety Requirements. (f) To the knowledge of the Company, no Environmental Lien has attached to any property currently owned, leased or operated by the Company or any Subsidiary. "Environmental Lien" means a lien, either recorded or unrecorded, in favor of any Governmental Entity, arising under Environmental and Safety Requirements. (g) No facts or conditions at the current or former facilities or properties of the Company or its Subsidiaries, or, to the knowledge of the Company, any predecessor thereof, will prevent continued compliance by the Company or any Subsidiary with applicable Environmental and Safety Requirements, give rise to any investigatory, removal, remedial or corrective obligations pursuant to Environmental and Safety Requirements, or give rise to any other liabilities (whether accrued, absolute, contingent, unliquidated or otherwise) pursuant to Environmental and Safety Requirements. SECTION 3.12. Taxes. (a) Except as would not have a Material Adverse Effect, (i) the Company and each of the Subsidiaries has timely filed or will timely file, taking into account extensions, (or has or will have had filed on its behalf) all federal, state, local and foreign income and other tax returns, reports and declarations ("Tax Returns")which are or were required by applicable law to have been filed at or before the Effective Time, (ii) each of the Company and the Subsidiaries has timely paid or will timely pay (or has or will have paid on its behalf), or where payment is not required to be made, has made or will make adequate provision in reserves established on its financial statements and accounts for the payment of, all taxes (including, without limitation, all taxes required to be withheld, or any interest and penalties on any taxes), in respect of the periods covered by said returns, reports and declarations or any other taxable period ending on or before the Effective Time, (iii) all Tax Returns, reports and declarations filed by the Company and Subsidiaries, including, without limitation, any amendments to date, have been prepared in good faith and are complete and accurate in all material respects, (iv) no deficiencies for any material tax, assessment or governmental charge have been asserted or assessed in writing against the Company or any of the Subsidiaries which have not been paid, settled or adequately provided for through reserves established in the financial statements and accounts of the Company and its Subsidiaries and, to the knowledge of the Company, no such deficiency, assessment or charge has been threatened. (b) Neither the Company nor any of its Subsidiaries is obligated to pay the taxes of any Person (other than the consolidated or similar group of which the Company is the common parent or its equivalent) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law). (c) Neither the Company nor any Subsidiary has constituted a "distributing corporation" or a "controlled corporation" within the meaning of Section 355(a)(1)(A) of the Code in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code. (d) Except as would not have a Material Adverse Effect, there are no Liens (other than Permitted Liens) upon any properties or assets of the Company or any of its subsidiaries arising from any failure or alleged failure to pay any tax. (e) Neither the Company nor any of its Subsidiaries is required to make any disclosure to the Internal Revenue Service with respect to a "listed transaction" within the meaning of Treasury Regulation Section 1.6011-4(b). SECTION 3.13. Employment Agreements. There are no written employment, consulting, severance, change of control or similar agreements between the Company or any Subsidiary, on the one hand, and any directors, officers, consultants or employees of the Company or any Subsidiary, on the other hand, which provide for annual remuneration, severance payments, termination indemnities or other payments in excess of $100,000. SECTION 3.14. Change of Control Provisions. (a) Except as disclosed in the Filed Company SEC Documents, as set forth in the Company Disclosure Letter or as required under the terms of Section 1.05 of this Agreement, none of the agreements described in Section 3.13 hereof and none of the Plans and no compensation plan maintained by the Company or any Subsidiary for the benefit of their respective current or former employees, officers, directors or consultants contains any provision that would entitle any such employee, officer, director or consultant to any additional or accelerated payments or benefits as a result of the consummation of the Merger or the transactions contemplated by this Agreement. (b) Neither the Company nor any Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code (or any corresponding provision of state, local or foreign law). SECTION 3.15. Employee Benefit Plans. All material employee benefit plans within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), maintained by the Company or any of the Subsidiaries (collectively, the "Plans") and any related trusts and funding vehicles are in compliance with, and have been administered and operated in accordance with, the terms of such Plans, related trusts and funding vehicles and applicable law, except for any failure to so comply, operate or administer such Plans and related trusts and funding vehicles that would not, individually or in the aggregate, have a Material Adverse Effect. The Internal Revenue Service has issued a determination letter to the effect that each such Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code is so qualified and that its related trust is tax exempt under Section 501(a) of the Code. No event which constitutes a "reportable event" as defined in Section 4043 of ERISA has occurred and is continuing with respect to any Plan subject to Title IV of ERISA which presents a material risk of the termination or partial termination of any such Plan or would, individually or in the aggregate, have a Material Adverse Effect. At any time in the past six years, no Plan and no plan maintained by an ERISA Affiliate that is subject to Title IV of ERISA has been terminated pursuant to Title IV of ERISA in connection with which any liability has been incurred by the Company or any Subsidiary which has not been satisfied in full. Full payment has been made, or provision has been made therefor, of all material amounts which the Company or any of the Subsidiaries were required under the terms of the Plans or applicable law to have paid as contributions to such Plans on or prior to the date hereof and at any time during the past six years no Plan which is subject to Part 3 of Subtitle B of Title I of ERISA has incurred any "accumulated funding deficiency" (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived. Neither the Company nor any of the Subsidiaries has engaged in any nonexempt prohibited transactions in connection with any Plan (or its related trust or funding vehicle) with respect to which the Company, any of the Subsidiaries, or any officer, director or employee of the Company or any of the Subsidiaries would be subject to either a penalty pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code nor, to the knowledge of the Company, will the consummation of the transactions contemplated by this Agreement constitute such a transaction which penalty or tax would, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries, nor any officer, director or employee of the Company or any of its Subsidiaries, has incurred any liability under the fiduciary provisions of ERISA, other than any liability that would not individually, or in the aggregate, have a Material Adverse Effect. At any time in the past six years, no claim, action or litigation has been made, commenced or, to the knowledge of the Company, threatened with respect to any Plan or its related trust or funding vehicle that would, if adversely determined, have (individually or in the aggregate) a Material Adverse Effect. Neither the Company nor any entity under "common control" with the Company within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (an "ERISA Affiliate") has participated in or contributed to any multiemployer plan as defined in Section 3(37) of ERISA at any time during the past six years, and none of the Company nor any ERISA Affiliate has incurred any "withdrawal liability" (as defined in Part I of Subtitle E of Title IV of ERISA) at any time in the past six years that has not been satisfied in full. With respect to each employee pension benefit plan (as defined in Section 3(2) of ERISA) which is a defined benefit plan and is not a multiemployer plan, the assets of such Plan available to meet the accrued liabilities of such Plan would exceed such liabilities, based on the actuarial assumptions used for plan termination. There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability of the Company or any of its Subsidiaries following the Closing that would, individually or in the aggregate, have a Material Adverse Effect. "Controlled Group Liability" means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code and (iv) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or the requirements of Section 701 et.seq. of ERISA, other than such liabilities that, in each case, arise solely out of, or relate solely to the Plans. SECTION 3.16. Licenses. The Company and its Subsidiaries have obtained all federal, state, local or foreign governmental and regulatory permits, concessions, grants, franchises, licenses, authorizations and approvals that are necessary or required in connection with the conduct of the business as now conducted of the Company and the Subsidiaries (collectively, "Licenses"), except where the failure to so obtain any such License would not, individually or in the aggregate, have a Material Adverse Effect. All of the Licenses are in full force and effect and, to the Company's knowledge, will not be impaired or adversely affected by the transactions contemplated by this Agreement in a manner or to a degree that, individually or in the aggregate, would have a Material Adverse Effect. SECTION 3.17. Real Estate Leases. The Company Disclosure Letter sets forth a list of all material leases and subleases existing as of the date hereof (together with all amendments, supplements, nondisturbance agreements and other agreements pertaining thereto) under which the Company or any Subsidiary is lessor or lessee of any real property located in the United States (the "U.S. Leases"). As to the U.S. Leases and the material leases and subleases existing as of the date hereof under which the Company or any Subsidiary is lessor or lessee of any real property that is not located in the United States (the "Non-U.S. Leases" and, together with the U.S. Leases, the "Company Leases"), except as would not, individually or in the aggregate, have a Material Adverse Effect, (a) there exists no breach or default, and no event has occurred which with notice or passage of time (or both) would constitute such a breach or default or permit termination, notification or acceleration, on the part of the Company or any Subsidiary, or on the part of any other party thereto, and (b) as of the Effective Time, no third party consents, approval or authorizations shall be required for the consummation of the Merger. To the Company's knowledge, there is no lien, claim, option, charge, security interest, limitation, encumbrance or restriction of any kind (any of the foregoing being a "Lien") on any of the leasehold interests covered by the Company Leases except for (a) Liens reflected in the balance sheet included in the Company 10-K or any Company 10-Q, (b) Liens of record consisting of zoning or planning restrictions, easements, permits and other restrictions or limitations on the use of real property which do not materially detract from the value of, or a materially impair the use of, such property by the Company and its Subsidiaries in the operation of their respective businesses, (c) Liens for current taxes, assessments or governmental charges or levies on property not yet delinquent or being contested in good faith and for which appropriate reserves have been established in accordance with GAAP (which contested levies are described in the Company Disclosure Letter), (d) Liens imposed by law, such as materialman's, mechanic's, carrier's, workers' and repairmen's Liens securing obligations not yet delinquent or being contested in good faith and for which appropriate reserves have been established in accordance with GAAP or securing obligations not being paid in the ordinary course of business in accordance with customary and commercially reasonable practice, and (e) Liens that do not materially adversely affect the use or enjoyment of the assets or properties of the Company or its Subsidiaries (collectively, "Permitted Liens"). SECTION 3.18. Real Property. The Company Disclosure Letter lists all material real property owned by the Company or a Subsidiary thereof as of the date hereof. Except as would not, individually or in the aggregate, have a Material Adverse Effect, each of the Company and its Subsidiaries has good title in fee simple to its respective real properties set forth in the Company Disclosure Letter, in each case free and clear of all Liens, except for Permitted Liens. SECTION 3.19. Intellectual Property and Germplasm. (a) The Company Disclosure Letter lists (i) all of the United States patents, certificates of plant variety protection, registered trademarks, registered service marks, registered copyrights or application for any of the foregoing, in each case that are owned by the Company or its Subsidiaries as of the date hereof (collectively, the "U.S. Intellectual Property" and, together with (x) all of the patents, certificates of plant variety protection, registered trademarks, registered service marks, registered copyrights or application for any of the foregoing that are owned by the Company or its Subsidiaries as of the date hereof (but excluding the US Intellectual Property) and (y) all of the patents, certificates of plant variety protection, registered trademarks, registered service marks, registered copyrights or application for any of the foregoing that are licensed to the Company or a Subsidiary as of the date hereof for use in the conduct of their respective businesses, the "Intellectual Property"), and (ii) all varieties and hybrids of cotton and soybeans which the Company or its Subsidiaries are presently selling in the United States or reasonably anticipates selling in the United States within two years of the date of this Agreement. The Company and its Subsidiaries own and possess all right, title and interest in and to, or are licensed to use, all of the Intellectual Property that is material to the Company and its Subsidiaries taken as a whole. In the case where the Company's or its Subsidiaries' use of the Intellectual Property is subject to a royalty payment in excess of $2,000,000 per annum (excluding royalty payments payable to Parent or any Affiliate thereof), the material terms of such royalty payment are set forth in the Company Disclosure Letter. To the knowledge of the Company, each item of material Intellectual Property owned by the Company or a Subsidiary is valid and enforceable, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' rights generally or by the availability of equitable remedies generally. (b) The Company and its Subsidiaries own and possess all right, title and interest in and to, or are licensed to use, in the manner currently used by the Company and its Subsidiaries, all germplasm (exclusive of transgenes and transgenic components) that the Company or any Subsidiary is presently selling or reasonably anticipates selling within two years of the date of this Agreement and that is material to the Company and its Subsidiaries taken as a whole. In the case where the Company's and its Subsidiaries' use of such germplasm is subject to a royalty payment in excess of $2,000,000 per annum (excluding royalty payments payable to Parent or any Affiliate thereof), the material terms of such royalty payment are set forth in the Company Disclosure Letter. (c) To the knowledge of the Company, except (i) for any claim that may be made by the Company or a Subsidiary against Parent or any Affiliate thereof and (ii) as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Company nor any of its Subsidiaries has received any notice of, and neither the Company nor any of its Subsidiaries has any knowledge of any potential claim that may be made by the Company or a Subsidiary against another Person with respect to any infringement of any patent or certificate of plant variety protection or misappropriation by a third party of the Intellectual Property or any germplasm in the Company's or any Subsidiary's breeding or research programs. (d) Except (i) for any possible infringement of the intellectual property rights of Parent or any of its Affiliates and (ii) as would not, individually or in the aggregate, have a Material Adverse Effect, to the knowledge of the Company, none of the operations and businesses conducted by the Company or any of its Subsidiaries are infringing and have not infringed any intellectual property rights of any other Person and the transactions contemplated by this Agreement will not impair any patent, trademark, trade name, copyright or other item of Intellectual Property owned or used by the Company or any Subsidiary in connection with the operation of their respective businesses. (e) Neither the Company nor any of its Subsidiaries have entered into or are bound by any agreement with any third party which would grant any third party access to the technology (including germplasm) of Parent or any of its Affiliates (excluding, after the Closing Date, the Company and its Subsidiaries), except with respect to intellectual property rights in improvements to technology licensed to the Company or its Subsidiaries under such applicable agreement that are made by Parent or any of its Affiliates as a result of access to such technology from the Company or its Subsidiaries, whether as a result of the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or otherwise, and neither the Company nor any of its Subsidiaries have entered into or are bound by any agreement with any third party which would obligate Parent or any of its Affiliates (excluding, after the Closing Date, the Company and its Subsidiaries), whether as a result of the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or otherwise, to grant to any such Person any access to any of the technology (including any germplasm) of Parent or any of its Affiliates (excluding, after the Closing Date, the Company and its Subsidiaries), except with respect to intellectual property rights in improvements to technology licensed to the Company or its Subsidiaries under such applicable agreement that are made by Parent or any of its Affiliates as a result of access to such technology from the Company or its Subsidiaries. (f) Any other provision of this Agreement notwithstanding (but subject to the next succeeding sentence), the Company makes no representation or warranty whatsoever with respect to whether the transgenes and transgenic components that are licensed by the Company or any Subsidiary from a third party and used by the Company or any Subsidiary in connection with the operation of their respective businesses, are infringing the intellectual property rights of any other Person. Notwithstanding the foregoing, to the knowledge of the Company, as of the date hereof, such transgenes and transgenic components do not infringe the intellectual property rights of any other Person (other than Parent or any Affiliate thereof). SECTION 3.20. Compliance with Other Instruments and Laws. Neither the Company nor any Subsidiary is (a) in violation of any term of its certificate of incorporation, bylaws or analogous organizational documents (in the case of non-corporate entities), each as amended, (b) in violation of any mortgage, indenture, instrument or agreement relating to indebtedness for borrowed money or of any judgment, decree or order which names the Company or any Subsidiary or (c) in violation of any term of any other material instrument, contract or agreement to which it is a party or by which it or any of its properties or assets is bound, except, in the case of clauses (b) and (c) immediately above, to the extent that any such violation would not, individually or in the aggregate, have a Material Adverse Effect. The Company's and each Subsidiary's businesses are in compliance with all federal, state, local or foreign statutes, laws, ordinances, rules, governmental regulations, permits, concessions, grants, franchises, licenses or other governmental authorizations or approvals applicable to the operation of such business, except to the extent that the failure of such compliance would not, individually or in the aggregate, have a Material Adverse Effect. SECTION 3.21. Employees. To the knowledge of the Company, as of the date of this Agreement, no officer or group of employees of the Company or any Subsidiary has any plans to terminate employment with the Company or such Subsidiary other than employees with plans to retire. Without limiting the generality of Section 3.20 hereof, the Company and its Subsidiaries have complied in all respects with all laws relating to hiring or the employment or cessation of employment of persons, including provisions thereof relating to wages, hours, equal opportunity and collective bargaining, and, to the knowledge of the Company, neither the Company nor any Subsidiary has any labor relations problems (including without limitation threatened or actual strikes or work stoppages or material grievances), except as would not, individually or in the aggregate, have a Material Adverse Effect. SECTION 3.22. Information Supplied. None of the information supplied or to be supplied by the Company specifically for inclusion or incorporation by reference in the Company Proxy Statement will, at the date it is first mailed to the Company's stockholders or at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act, except that no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Parent or Merger Sub specifically for inclusion or incorporation by reference in the Company Proxy Statement. At the time of the filing of any disclosure document filed after the date hereof pursuant to the Securities Act, the Exchange Act or any state securities law (each a "Company Disclosure Document") other than the Company Proxy Statement, each such Company Disclosure Document (as supplemented or amended) will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. SECTION 3.23. Rights Agreement. The Company's Board of Directors has taken any necessary action to provide that as a result of the execution and delivery of this Agreement or any amendment hereto or the consummation of the Merger and other transactions contemplated hereby, Parent and Merger Sub will not become an "Acquiring Person," and no "Shares Acquisition Date" or "Distribution Date" (as such terms are defined in the Rights Agreement, dated as of August 13, 1996, between the Company and Harris Trust and Savings Bank, as Rights Agent, as the same has been amended from time to time (the "Rights Agreement")) will occur, and the Rights Agreement will not be applicable to the execution and delivery of this Agreement or any amendment hereto or the consummation of the Merger and other transactions contemplated hereby. SECTION 3.24. Certain Fees. Except in connection with the engagement of UBS Securities LLC, neither the Company nor any Subsidiary has employed any broker or finder or incurred any liability for any financial advisory, brokerage or finders' fees or commissions in connection with the transactions contemplated hereby. SECTION 3.25. Opinion of Financial Advisor. The Board of Directors of the Company has received the opinion of UBS Securities LLC to the effect that, as of the date of such opinion, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock (other than Parent, Merger Sub and their respective Affiliates), a copy of which opinion will be delivered to Parent solely for informational purposes after receipt thereof by the Company. SECTION 3.26. Voting Requirements. The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock at the Company Stockholders Meeting to adopt this Agreement is the only vote of the holders of any class or series of Company's capital stock necessary to approve and adopt this Agreement and the transactions contemplated hereby. Parent agrees to vote any Shares held by it in favor of approval and adoption of this Agreement and the transactions contemplated hereby, to the extent any such Shares are entitled to vote with respect to such matter. The Board of Directors of the Company has duly and validly approved and has taken all corporate action required to be taken by the Company's Board of Directors for the consummation of the transactions contemplated by this Agreement, and no less than two-thirds of the members of the complete Board of Directors of the Company have approved this Agreement and declared its advisability in accordance with the terms of Delaware Law. SECTION 3.27. State Takeover Statutes. The Board of Directors of the Company has approved this Agreement and the consummation of the Merger and the other transactions contemplated hereby and such approval constitutes approval of the Merger and the other transactions contemplated by this Agreement by the Board of Directors of the Company under the provisions of Section 203 of Delaware Law such that Section 203 of Delaware Law does not apply to the Merger or the other transactions contemplated by this Agreement. To the knowledge of the Company, no other state takeover statute is applicable to the Merger or the other transactions contemplated by this Agreement. SECTION 3.28. No Additional Representations and Warranties. Parent and Merger Sub acknowledge that neither the Company nor any other Person advising or acting on behalf of the Company or any Affiliate of the Company (i) has made any representation or warranty, express or implied, including any implied representation or warranty, as to the condition, merchantability, suitability or fitness for a particular purpose of any of the assets used in the businesses of or held by the Company or any Subsidiary or (ii) has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Company or any Subsidiary or the business conducted by the Company or any Subsidiary, in each case except as expressly set forth in this Agreement. ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB Parent and Merger Sub jointly and severally represent and warrant to the Company as follows: SECTION 4.01. Corporate Organization. Each of Parent and Merger Sub is a corporation duly organized validly existing and in good standing under the laws of Delaware, with all requisite corporate power and authority to own, operate and lease its properties and assets and to carry on its businesses as now being conducted. SECTION 4.02. Authorization. Each of Parent and Merger Sub has the necessary corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement by each of Parent and Merger Sub, the performance by each of Parent and Merger Sub of its obligations hereunder and the consummation by each of Parent and Merger Sub of the transactions contemplated hereby have been duly and validly authorized by the Boards of Directors of Parent and Merger Sub and by Parent in its capacity as the sole stockholder of Merger Sub, and no other corporate proceeding on the part of Parent or Merger Sub is necessary for the execution and delivery of this Agreement by Parent or Merger Sub, the performance by either of them of their respective obligations hereunder and the consummation by Parent and Merger Sub of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of Parent and Merger Sub and constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' rights generally or by the availability of equitable remedies generally. SECTION 4.03. No Prior Activities; Ownership of Merger Sub Shares. Except for obligations or liabilities incurred in connection with its incorporation or the negotiation and consummation of this Agreement and the transactions contemplated hereby, Merger Sub has not incurred any obligations or liabilities, and has not engaged in any business or activities of any type or kind whatsoever or entered into any agreements or arrangements with any Person or entity. Parent owns all of the issued and outstanding shares of capital stock of Merger Sub. SECTION 4.04. Information Supplied. None of the information supplied or to be supplied by Parent or Merger Sub specifically for inclusion or incorporation by reference in the Company Proxy Statement will, at the date it is first mailed to the Company's stockholders or at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. SECTION 4.05. Consents and Approvals; No Violations. Except for (a) applicable requirements of the Exchange Act, (b) expiration or termination of the waiting period under the HSR Act, (c) applicable requirements of foreign and supranational laws relating to antitrust and anticompetition clearances, filings or notices, (d) the filing of the Certificate of Merger as required by Delaware Law (e) such filings and consents as may be required under any environmental law pertaining to any notification, disclosure or required approval triggered by the Merger or the transactions contemplated by this Agreement and (f) such consents, approvals, orders, authorizations, notifications, registrations, declarations and filings as may be required under the corporation, takeover or blue sky laws of various states of the United States and jurisdictions outside the United States, no filing with or prior notice to, and no permit, authorization, consent or approval of, any Person, including any Governmental Entity, is necessary for the consummation by Parent or Merger Sub of the transactions contemplated by this Agreement. Neither the execution and delivery of this Agreement by Parent or Merger Sub nor the consummation by Parent or Merger Sub of the transactions contemplated hereby nor compliance by Parent or Merger Sub with any of the provisions hereof will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Parent or Merger Sub, each as amended, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration or otherwise change the existing rights or obligations of any party thereto) under, any of the terms, conditions or provisions of any note, bond, mortgage indenture, license, agreement or other instrument or obligation to which Parent or Merger Sub is a party or by which Parent, Merger Sub or any of their respective properties or assets may be bound, or (iii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent or Merger Sub or any of their respective properties or assets, excluding from the foregoing clauses (ii) and (iii) violations, breaches or defaults which would not, individually or in the aggregate, have a material adverse effect on or materially delay the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement (a "Buyer Material Adverse Effect"). SECTION 4.06. Certain Fees. Except in connection with the engagement of J.P. Morgan Securities Inc., neither Parent nor Merger Sub has employed any broker or finder or incurred any liability for any financial advisory, brokerage or finders' fees or commissions in connection with the transactions contemplated hereby, and the fees of J.P. Morgan Securities Inc. will be paid solely by Parent. SECTION 4.07. Necessary Financing. Parent has available to it funds sufficient to consummate the transactions contemplated by this Agreement, including to pay the aggregate Merger Consideration to the stockholders of the Company and all fees and expenses it and Merger Sub will incur in connection therewith. SECTION 4.08. No Buyer Stockholder Vote. No vote of the stockholders of Parent is required under Delaware Law, the applicable rules and regulations of the NYSE or any other applicable law or regulation, or pursuant to the terms of Parent's certificate of incorporation or bylaws, in order to authorize the consummation by Parent of the transactions contemplated hereby. ARTICLE 5. COVENANTS OF THE COMPANY SECTION 5.01. Conduct of Business by the Company and its Subsidiaries Pending the Merger. The Company covenants and agrees that prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 9.01 hereof, unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed) or except as otherwise specifically contemplated by this Agreement: (a) the businesses of the Company and the Subsidiaries will be conducted only in the ordinary and usual course; the Company will use its reasonable best efforts to preserve intact its business organization and goodwill, keep available the services of its officers and employees and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it and the Subsidiaries; and the Company will reasonably promptly notify Parent of any event or occurrence or emergency not in the ordinary and usual course of the business of the Company or any Subsidiary or that is material to the business of the Company and the Subsidiaries, taken as a whole; (b) the Company will not (i) amend its certificate of incorporation or bylaws or the certificate of incorporation, bylaws or analogous organizational documents (in the case of non-corporate entities) of any Subsidiary or (ii) split, combine, reclassify, repurchase, redeem or otherwise acquire any of the outstanding Shares or declare, set aside or pay any dividend payable in cash, stock or property with respect to the Shares, provided that the Company may declare and pay to holders of the Shares, in a manner consistent with past practice as to timing, regular quarterly dividends of not more than $0.15 per share (or $0.17 per share commencing with quarters ending after August 31, 2006); (c) neither the Company nor any Subsidiary will issue or agree to issue any additional shares of, or rights of any kind to acquire shares of, its capital stock of any class other than (i) the issuance of shares of capital stock of a Subsidiary to the Company, (ii) with respect to the Company, shares of Company Common Stock issuable upon exercise of stock options outstanding as of the date hereof pursuant to the Company Stock Option Plans or (iii) the grant of shares of restricted Company Common Stock or restricted Company Common Stock units, in each case after the date hereof to employees, officers, consultants and directors of the Company or any Subsidiary in accordance with past practices and the terms of the Company Stock Option Plans, provided that the number of shares of restricted Company Common Stock together with the number of shares of Company Common Stock covered by any restricted stock unit, in each case granted after August 31, 2006 and on or prior to August 31, 2007 shall not, in the aggregate, exceed 154,762 shares of Company Common Stock and, for each whole fiscal year thereafter, the Company shall be permitted to grant up to 154,762 shares of restricted Company Common Stock or restricted Company Common Stock units, in each case on the terms set forth in this clause (iii); (d) neither the Company nor any Subsidiary will enter into or amend or agree to enter into or amend any contract or agreement with any works councils or trade or labor unions representing employees of the Company or any Subsidiary, except with respect to work councils or trade or labor unions representing employees of the Company or any Subsidiary in the People's Republic of China (provided that prior to entering into or amending any such agreement with any works council or trade or labor union, the Company shall consult with Parent); (e) except as expressly permitted by Sections 5.02 and 5.04 hereof, neither the Company nor any Subsidiary will authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle or an agreement with respect to any merger, consolidation or business combination (other than the Merger) or any acquisition or disposition of any assets (including, without limitation, any securities of any Subsidiary), except that in the case of the acquisition or disposition of assets, nothing contained herein shall limit the ability of the Company or any Subsidiary from (i) taking any of the foregoing actions so long as (x) the aggregate amount of assets to be acquired by the Company or any Subsidiary outside of the ordinary course of business consistent with past practice does not exceed $10,000,000 in the aggregate and (y) the aggregate amount of assets to be disposed of by the Company or any Subsidiary outside of the ordinary course of business consistent with past practice does not exceed $10,000,000 in the aggregate or (ii) acquiring or disposing of assets in the ordinary course of business consistent with past practice; (f) Except as set forth in Section 5.05, the Company will not and will not permit any Subsidiary to (i) enter into or amend (x) any employment, consulting, severance or termination indemnity agreement (1) with any "named executive officer" (as defined in the Exchange Act) or director of the Company or any Subsidiary or (2) other than in the ordinary course of business consistent with past practice, (y) any change of control agreement or (z) any bonus, incentive compensation, deferred compensation, profit sharing, retirement, supplemental retirement, pension, group insurance or other benefit plan, except as required by law or regulations, (ii) make any contribution to any such plan, except in the ordinary course of business consistent with past practice or for contributions specifically required pursuant to the terms thereof or (iii) grant any salary increase, except in the ordinary course of business consistent with past practice; (g) neither the Company nor any Subsidiary, which term for all purposes of this clause (g) shall include the Other Entities, will (i) except in the ordinary course of business consistent with past practice, including the renewal or replacement of existing debt, create, incur or assume any debt (including, without limitation, obligations in respect of capital leases) other than under existing lines of credit or to fund out-of-pocket costs incurred in connection with the transactions contemplated hereby; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except Subsidiaries in the ordinary course of business; or (iii) make any loans, advances or capital contributions to, or investments in, any other Person other than a Subsidiary (other than trade credit or customary advances to employees and short-term investments pursuant to customary cash management systems of the Company in the ordinary course and consistent with past practice); (h) the Company will neither amend the Rights Agreement nor redeem any of the rights granted under the Rights Agreement without the written consent of Parent; (i) except with respect to any litigation, proceeding, action, suit, arbitration, investigation or other claim between the Company and any of its Subsidiaries, on the one hand, and Parent and any of its Subsidiaries, on the other hand, neither the Company nor any Subsidiary will settle or compromise any material litigation, proceeding, action, suit, arbitration, investigation or other claim in a manner that will have a material effect on the Company; (j) grant or permit to be created any Lien on any of the material assets of the Company or any Subsidiary (other than Permitted Liens); and (k) neither the Company nor any Subsidiary shall agree in writing or otherwise to take (i) any action that it is prohibited from taking by this Section 5.01, or (ii) any action that would constitute a breach of any covenant or agreement set forth herein. SECTION 5.02. Stockholders' Meeting. (a) The Company shall cause a meeting of its stockholders (the "Company Stockholders Meeting") to be duly called and held as soon as reasonably practicable following the execution and delivery of this Agreement and the clearance of the Company Proxy Statement by the SEC for the purpose of voting on the approval and adoption of this Agreement and the Merger, notwithstanding any actions taken by the Board of Directors of the Company pursuant to the terms of this Section 5.02. Subject to Section 5.04 and to its fiduciary duties, the Board of Directors of the Company will (i) recommend approval and adoption of this Agreement by the Company's stockholders and (ii) use reasonable best efforts to obtain the necessary approval by the Company's stockholders of this Agreement and the transactions contemplated hereby. (b) Notwithstanding anything contained in Section 5.02(a) hereof to the contrary, the Board of Directors of the Company may, if it determines in good faith, after consultation with outside legal counsel, that the failure to do so would result in a breach of its fiduciary duties to the stockholders of the Company, (i) recommend the approval or adoption of any Acquisition Transaction, (ii) determine that this Agreement or the Merger is no longer advisable, (iii) withdraw (or modify in a manner adverse to Parent or Merger Sub) the approval of this Agreement, the Merger or any of the other transactions contemplated hereby, (iv) recommend that the stockholders of the Company reject this Agreement, the Merger or any of the other transactions contemplated hereby or thereby or (v) resolve, agree or publicly propose to take any such actions; provided, that the foregoing action may only be taken (x) as a result of the occurrence of a material unforeseen change in the business or financial condition of the Company (without giving effect to any actual or perceived changes in the Company's likelihood of success or any other matters pertaining to the Litigation) or the market price for the Company Common Stock or (y) in response to or related to an Acquisition Transaction (other than this Agreement) or a proposal or expression of interest in respect thereof, provided that if such action is in response to or related to an Acquisition Transaction (other than this Agreement) or a proposal or expression of interest in respect thereof, the foregoing actions shall only be taken in accordance with the terms of Section 5.04. SECTION 5.03. Access to Information; Cooperation; Related Matters. (a) Subject to the terms hereof and of the existing confidentiality agreement, dated August 9, 2006, between the Company and Parent (the "Confidentiality Agreement"), in compliance with applicable law and existing agreements between the parties, during normal business hours, upon reasonable notice and in a manner as shall not unreasonably interfere with the conduct of the business of the Company or any Subsidiary, the Company will give (or cause to be given) Parent, its counsel, financial advisors, auditors and other authorized representatives, in each case who are reasonably acceptable to the Company, reasonable access throughout the period prior to the Effective Time to all of the offices, properties, business plans, books, files and records of the Company and the Subsidiaries, will furnish to Parent, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information as such Persons may reasonably request and will instruct the Company's and its Subsidiaries' employees, counsel and financial advisors to cooperate with Parent in its investigation of the business of the Company and its Subsidiaries. Without limiting the foregoing, Company shall, and shall cause its Affiliates to, cooperate and provide Parent and its counsel, financial advisors, auditors and other authorized representatives with all relevant information required by Parent or any of the foregoing Persons for the purpose of ensuring that the business conducted by the Company and its Subsidiaries complies with, and does not raise material liability risks under, applicable laws and regulations, including, without limitation, the FCPA and other applicable anti-corruption laws, regulations, and policies. Notwithstanding any other provision of this Agreement, the Company and its Subsidiaries are not required to make available to Parent or its counsel, financial advisors, auditors and other authorized representatives (i) any information that is subject to confidentiality obligations to another Person, which obligations do not permit disclosure to Parent or any such other Persons (ii) any information related to the Company's or a Subsidiary's relationship with any of the Persons listed in Section 5.03(a) of the Company Disclosure Letter (including any contracts or agreements between any such Person, on the one hand, and the Company or any Subsidiary thereof, on the other hand) or (iii) any information that the Chief Executive Officer of the Company and the Chief Financial Officer of Parent agree (in good faith) constitutes competitively sensitive information, provided in the event that such Persons cannot so agree, such information shall be deemed competitively sensitive, and the Company shall not be required to provide access to (or cause to be provided access to) such information. (b) The Company will furnish reasonably promptly to Parent a copy of each report, schedule and other document filed or received by it pursuant to the requirements of Federal or state securities laws. Notwithstanding the foregoing, (i) no investigation made by Parent or its counsel, financial advisors, auditors or other authorized representatives, whether pursuant to this Section 5.03 or otherwise, shall affect any representation or warranty contained in this Agreement or the conditions to the obligations of Parent and Merger Sub to consummate the Merger and (ii) nothing in this Agreement shall require any Person to disclose any information in violation of any applicable law, regulation or administrative order or decree and nothing in this Agreement shall relieve any party of any existing contractual obligations with respect to the use and/or disclosure of such information. (c) All information provided by one party to the other pursuant to this Agreement shall be treated as "Evaluation Material" under the Confidentiality Agreement. (d) If, in connection with the performance by Parent and its Affiliates of their respective obligations under Section 7.07 hereof, including, without limitation, in the event that Parent determines to sell or otherwise dispose of the Company as contemplated by Section 7.07 hereof, the Company shall, and shall cause its Subsidiaries and their respective employees, counsel, financial advisors and other representatives to, provide all cooperation and assistance that is reasonably requested by Parent in connection therewith, including, without limitation, (i) subject to the terms of the last sentence of this Section 5.04(d), permitting the prospective buyer or buyers to conduct due diligence in respect of the Company and its Subsidiaries and to have access to all of the offices, properties, business plans, books, files and records of the Company and the Subsidiaries, and any other information regarding the Company and its Subsidiaries that any such prospective buyer or buyers may reasonably request and (ii) if applicable, in connection with the arrangement of any financing that any prospective buyer or buyer may seek in connection with the purchase of the Company, participation in meetings, due diligence sessions, road shows, the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents. The obligation of the Company to provide (or to cause to be provided) any information to any Person under this Section 5.03 shall be conditioned upon the entry by any such Person into an agreement with the Company similar to and no less favorable to the Company as the Confidentiality Agreement, and provided that the Company shall not be required to provide any such Person with any information the Company is not obligated to provide (or to cause to be provided) to Parent under Section 5.03, and provided further than any obligations of the Company under this Section 5.04(d) shall not unreasonably interfere with the conduct of the business of the Company or any Subsidiary. Parent shall reimburse Company for all reasonable expenses related to the performance of the Company's obligations in this Section 5.03(d). (e) As part of its investigation pursuant to Section 5.03(a), following the execution and delivery of this Agreement, Parent will continue to conduct due diligence with respect to the compliance by the Company and its Subsidiaries (which term for purposes of this Section 5.03(e) shall include the Other Entities) with the FCPA, and the Company hereby agrees to fully cooperate with such efforts (and to cause its Subsidiaries and their respective employees, counsel and other representatives to fully cooperate with such efforts). If Parent concludes that there is a possible violation of the FCPA by the Company or any Subsidiary, Parent will so inform the Company, and the Company will use its reasonable best efforts to resolve each such violation and any issues related thereto, including by disclosing to the applicable Governmental Entity the existence or occurrence of any such violation if, in the opinion of the Company's outside counsel, such disclosure should be made. In determining whether any non-compliance with the FCPA by the Company or any Subsidiary is material, or has caused a Material Adverse Change or Material Adverse Effect, the evaluation of such determination will be based solely on the effect of such non-compliance on the Company and its Subsidiaries and shall not be based upon the effect of such non-compliance on Parent and its Affiliates. Notwithstanding anything contained herein to the contrary, the Company's failure to resolve any violation or related issues in respect of the FCPA prior to the Closing Date shall not result in a breach of the terms set forth in this Section 5.03(e), it being understood and agreed that the foregoing shall not affect the conditions to the obligation of Parent and Merger Sub to effect the Closing, including, without limitation, the conditions to Closing set forth in Sections 8.01(d) and 8.01(f) hereof. SECTION 5.04. No Solicitation. (a) The Company agrees that, prior to the earlier of the Effective Time or the termination of this Agreement, it shall not, and shall not authorize or permit any of its Subsidiaries or any of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to solicit, initiate or encourage (including by way of furnishing or disclosing non-public information) any inquiries or the making of any proposal with respect to any merger, consolidation or other business combination involving the Company or any material Subsidiary or the acquisition of all or substantially all of the assets or capital stock of the Company or any material Subsidiary (an "Acquisition Transaction") or negotiate, explore or otherwise engage in discussions with any Person (other than Parent or its directors, officers, employees, agents and representatives), or enter into any agreement, with respect to any Acquisition Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided that the Company may, prior to the date of the Company Stockholders Meeting, in response to a bona fide unsolicited written proposal or written expression of interest with respect to an Acquisition Transaction from a credible third party that is not subject to any material financing uncertainties and that the Company's Board of Directors determines, in good faith, after consultation with its outside legal counsel and financial advisor, constitutes or could reasonably result in a Superior Proposal, furnish or disclose non-public information to, and negotiate, explore or otherwise engage in discussions with, such third party, provided that the Company concurrently discloses any material non-public information to Parent as it is disclosing to such third party if such non-public information has not previously been disclosed to Parent. Notwithstanding the foregoing, the Company may, prior to the date of the Company Stockholders Meeting, in response to a bona fide unsolicited written proposal or written expression of interest with respect to an Acquisition Transaction from a credible third party that is not subject to any material financing uncertainties and that the Company's Board of Directors determines, in good faith, after consultation with its outside legal counsel and financial advisor, and after giving effect to all of the adjustments which may be offered by Parent as contemplated by the immediately following proviso, constitutes a Superior Proposal, enter into a definitive agreement with a third party in respect of an Acquisition Transaction (provided that the Company shall concurrently with entering into such agreement terminate this Agreement with the consequences specified in Section 9.04(d) hereof); provided, however, that the Company shall only be permitted to enter into any such agreement (and terminate this Agreement as provided in Section 9.01(f) hereof in connection therewith) if: (i) the Company shall (x) have delivered written notice thereof to Parent, which written notice shall include the form of the agreement that is to be entered into with such third party or a written summary of all of the material provisions thereof and (y) have given Parent three business days after delivery of such written notice (together with the other documents required to be delivered in connection therewith) to propose revisions to the terms of this Agreement (or make another proposal); and (ii) at the end of such three business day period, the Company's Board of Directors shall have determined in good faith, after consultation with its outside legal counsel and financial advisor, and in the exercise of its fiduciary duties, and after giving effect to all of the adjustments which may be offered by Parent as contemplated hereby, if any, that such agreement with such third party constitutes a Superior Proposal. As used herein, the term "Superior Proposal" means any bona fide written offer in respect of an Acquisition Transaction that the Company's Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisor, is more favorable to the stockholders of the Company than the Merger. (b) The Company shall, and shall cause each of its Subsidiaries and its and its Subsidiaries' directors, officers, employees, agents or representatives, to immediately cease any solicitations, discussions or negotiations existing on the date of this Agreement with any Person (other than the parties hereto) that has made or indicated an intention to make a proposal in respect of an Acquisition Transaction. (c) After the date hereof, the Company shall reasonably promptly advise Parent in writing of the receipt, directly or indirectly, of any inquiries or proposals, and of its intention to enter into any agreement, relating to an Acquisition Transaction and any actions taken pursuant to Section 5.04(a) hereof and shall promptly furnish to Parent (and in any event within 24 hours following the receipt thereof) either a copy of such proposal or a written summary of all of the material terms of such proposal, and shall keep Parent reasonably informed on a current basis (and in any event within 24 hours) of the occurrence of any material changes, developments, discussions or negotiations in respect of any of the foregoing. SECTION 5.05. Employment and Noncompetition Agreements. (a) As soon as practicable after the date hereof, the Company shall (i) offer to the employees of the Company or its Subsidiaries whose names are included in the list of the "Key Employee Group" set forth in the Company Disclosure Letter, a Key Employee Employment Protection and Retention Agreement in the form attached as an exhibit to the Company Disclosure Letter and (ii) offer to the employees of the Company or its Subsidiaries whose names are included in the list of the "Management Key Employee Group" set forth in the Company Disclosure Letter, a Key Employee Employment Protection and Retention Agreement in the form attached as an exhibit to the Company Disclosure Letter. (b) As set forth in Section 3.07 and Section 3.08 of the Company Disclosure Letter, prior to the Effective Time, the Company may enter into employment, severance or change in control agreements with certain executives and may pay a special cash award to employees. ARTICLE 6. COVENANTS OF PARENT AND MERGER SUB Parent and Merger Sub agree that: SECTION 6.01. Confidentiality. Prior to the Effective Time, Parent and Merger Sub will hold, and will use their reasonable best efforts to cause their respective officers, directors, employees, consultants, advisors and agents to hold, in confidence all Evaluation Material (as defined in the Confidentiality Agreement) in accordance with the terms of the Confidentiality Agreement. SECTION 6.02. Indemnification. (a) Parent shall indemnify and shall cause the Surviving Corporation to indemnify, to the full extent permitted under Delaware Law, the present and former directors or officers of the Company and the Subsidiaries (the "Indemnified Parties") from and against all losses, obligations, expenses, claims, damages and liabilities arising in respect of actions taken prior to and including the Effective Time in connection with their duties as directors or officers of the Company (including the transactions contemplated hereby) for a period of not less than six years from the Effective Time; provided that (i) in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims and (ii) neither Parent nor the Surviving Corporation will be liable for any settlement effected without Parent's prior written consent (which consent shall not be unreasonably withheld or delayed). Without limitation of the foregoing, in the event any Indemnified Party becomes involved in such capacity in any action, proceeding or investigation in connection with any matter, including the transactions contemplated hereby, occurring prior to and including the Effective Time, Parent shall periodically reimburse and shall cause the Surviving Corporation to periodically reimburse such Indemnified Party for his reasonable legal and other reasonable out-of-pocket expenses (including the reasonable cost of any investigation and preparation) incurred in connection therewith. (b) For not less than six years after the Effective Time, Parent or the Surviving Corporation shall maintain in effect directors' and officers' liability insurance covering the Indemnified Parties who are currently covered by the Company's existing directors' and officers' liability insurance, on terms and conditions no less favorable to such directors and officers than those in effect on the date hereof with respect to Parent's officers and directors. SECTION 6.03. Operations After the Effective Time. Parent currently intends to maintain offices, facilities and operations of the Company at their current locations. Parent looks forward to continuing the strong relationship developed by the Company with the community in Scott, Mississippi. SECTION 6.04. Employee Benefits. From and after the Closing Date, Parent shall cause the Surviving Corporation to honor, pay and perform all obligations under all employment, severance, termination indemnity, retention and change of control agreements with or for employees of the Company or any Subsidiary in accordance with the terms thereof. Parent will cause the Surviving Corporation to maintain and fund in accordance with ERISA, the Code and any other applicable law for a period of two years after the Effective Time employee benefit and compensation plans and arrangements which, in the aggregate, provide benefits and compensation to employees of the Surviving Corporation and its Subsidiaries which are no less favorable in the aggregate than those provided pursuant to the employee benefit and compensation plans and arrangements in effect for such individuals on the date hereof. From and after the Effective Time, if any employees of the Surviving Corporation or any Subsidiary will participate in any employee benefit plan of Parent or any of its subsidiaries, Parent will, and will cause its subsidiaries to, cause such employee benefit plans to (i) recognize the service of the affected employees of the Company or its Subsidiaries completed prior to the Effective Time for participation, vesting and eligibility for early retirement under such plans of Parent or any of its subsidiaries, but not for purposes of (a) benefit accrual under any employee benefit plan (within the meaning of Section 3(2) of ERISA) or (b) eligibility for subsidized retiree medical benefits under any retiree medical plans maintained or sponsored by Parent or any of its Subsidiaries and (ii) with respect to group health plans, waive any pre-existing condition limitations or exclusions under such plans of Parent or its subsidiaries. If the Closing Date occurs more than three months after the end of the Company's last completed fiscal year, then the amount of bonuses payable, if any, to each employee of the Company or any of its Subsidiaries who is eligible to participate in a bonus plan or arrangement sponsored or maintained by the Company or any of its Subsidiaries for the fiscal year of the Company that includes the Closing Date shall be determined consistent with past practices of the Company and shall be payable no later than November 15 of the fiscal year of the Surviving Corporation next succeeding the fiscal year that includes the Closing Date. ARTICLE 7. COVENANTS OF BUYER AND THE COMPANY The parties hereto agree that: SECTION 7.01. Best Efforts. Subject to the terms and conditions of this Agreement, including, without limitation, the terms and conditions set forth in Section 7.07 hereof, each party will use its best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement. The Company, Parent and Merger Sub shall each furnish to one another and to one another's counsel all such information as may be required in order to accomplish the foregoing actions. If any state takeover statute or similar statute or regulation becomes applicable to the Merger, this Agreement or any of the other transactions contemplated hereby, the Company, Parent and Merger Sub will take all action necessary to ensure that the Merger and the other transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger and the other transactions contemplated by this Agreement. SECTION 7.02. Certain Filings. Subject to the terms and conditions of this Agreement, including, without limitation, the terms and conditions set forth in Section 7.07 hereof, the Company, Parent and Merger Sub shall cooperate with one another (a) in connection with the preparation of the Company Proxy Statement and the Company Disclosure Documents, (b) in determining whether any other action by or in respect of, or filing with, any Governmental Entity or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts in connection with the consummation of the transactions contemplated by this Agreement and (c) in seeking any such actions, consents, approvals or waivers or making any such filings, furnishing information required in connection therewith or with the Company Proxy Statement and the Company Disclosure Documents and seeking timely to obtain any such actions, consents, approvals or waivers. SECTION 7.03. Public Announcements. Parent, Merger Sub and the Company will consult with each other before issuing any press release or making any public statement with respect to this Agreement and the transactions contemplated hereby and, except as may be required by applicable law or any listing agreement with any national securities exchange, will not issue any such press release or make any such public statement prior to obtaining the other party's or parties' consent to any such public statement. SECTION 7.04. Further Assurances. At and after the Effective Time, the officers and directors of the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of the Company and Merger Sub, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf the Company and Merger Sub, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger. SECTION 7.05. Notices of Certain Events. The Company, Parent and Merger Sub shall promptly notify the other of: (a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; (b) any notice or other communication from any Governmental Entity in connection with the transactions contemplated by this Agreement; (c) any actions, suits, claims, investigations or proceedings commenced or, to the best of its knowledge threatened against, relating to or involving or otherwise affecting the Company or any Subsidiary, on the one hand, or Parent or Merger Sub, on the other hand, which relate to the consummation of the transactions contemplated by this Agreement; and (d) any action, event or occurrence that would constitute a breach of any representation, warranty, covenant or agreement of it set forth in this Agreement. SECTION 7.06. Preparation of the Company Proxy Statement. As soon as reasonably practicable following the date of this Agreement, the Company shall prepare and file the Company Proxy Statement with the SEC. The Company will use all reasonable efforts to cause the Company Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Company Proxy Statement is cleared by the SEC. No filing of, or amendment or supplement to, the Company Proxy Statement will be made by the Company without providing Parent with the opportunity to review and comment thereon, and the Company shall, promptly after its receipt thereof, advise the Company of any request by the SEC for amendment of the Company Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and the Company shall provide Parent with copies of all such materials promptly following receipt thereof and shall not respond thereto without providing Parent with an opportunity to review any such response. If at any time prior to the Effective Time any information relating to the Company, Parent or Merger Sub or any of their respective affiliates, officers or directors, should be discovered by the Company, Parent or Merger Sub which should be set forth in an amendment or supplement to the Company Proxy Statement, so that the Company Proxy Statement or any related documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company. SECTION 7.07. Consents; Antitrust Matters. (a) Subject to the terms and conditions set forth in this Section 7.07, Parent, Merger Sub and the Company shall use their commercially reasonable efforts to obtain all material consents of third parties (which, in any event, shall include consents in respect of the contracts listed under the heading "Consents" in the Company Disclosure Letter) and Governmental Entities (other than the Antitrust Authorities), and to make all governmental filings, necessary to the consummation of the transactions contemplated by this Agreement. The Company and Parent shall as soon as practicable following the execution and delivery of this Agreement (and, in any event, within ten business days following the execution and delivery of this Agreement) file the Pre-Merger Notification and Report Forms under the HSR Act with the Federal Trade Commission (the "FTC") and the Antitrust Division of the Department of Justice (the "Antitrust Division") (collectively the "Antitrust Authorities") and, subject to the terms and conditions set forth in this Section 7.07, shall use their best efforts to respond as fully and as promptly as practicable to all inquiries received from the FTC or the Antitrust Division for additional information or documentation prior to the issuance of a Request for Additional Information under the HSR Act (a "Second Request"). (b) In the event the Antitrust Division or the FTC issues a Second Request, the parties hereto shall use reasonable best efforts to substantially comply with the Second Request as promptly as practicable (and in any event, the Company shall substantially comply with a Second Request no later than Parent). (c) In furtherance and not in limitation of the foregoing, and subject to the terms set forth in this Section 7.07, each party shall cooperate and consult with the other party in connection with the actions referenced in this Section 7.07. In particular, each party shall, subject to applicable law and the limitations set forth in Section 5.03 and except as prohibited by any applicable representative of any applicable Governmental Entity, (i) furnish to the other such information and assistance as the other reasonably may request in connection with the preparation of any submissions to, or agency proceedings by, any Governmental Entity under the HSR Act or any comparable laws of foreign jurisdictions; (ii) promptly notify and apprise the other party of (and, if in writing, supply such party with) any communication (or other correspondence or other memoranda) to that party from the Antitrust Division, the FTC, any State Attorney General or any other Governmental Entity, and permit the other party to review in advance and accept all of the other party's reasonable comments, in connection with, any proposed written communication to any of the foregoing; (iii) to the extent practical, not participate in any substantive meeting or any material discussion or communication with any Governmental Entity in respect of any filings, investigation or inquiry concerning this Agreement or the Merger, unless it consults with the other party in advance and, as permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat, or to the extent prior consultation is not practical, shall promptly report to the other party the substance of the communication; (iv) furnish the other party with copies of all correspondence, filings, and written communications (and memoranda setting forth the substance thereof) between them and their Affiliates and their respective representatives on the one hand, and any Governmental Entities or their respective staffs on the other hand, with respect to this Agreement and the Merger; and (v) make available such party's respective counsel, experts, and advisors to (and have such persons participate with) the other party, and its respective counsel, experts, and advisors for the purpose of (and in connection with) the actions contemplated in this Section 7.07. (d) Other than as provided elsewhere in this Section 7.07, Parent shall take such reasonable best efforts to ensure that (x) no requirement for a waiver, consent or approval of the FTC, the Antitrust Division, any State Attorney General or other Governmental Entity, (y) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding, and (z) no other matter relating to any Antitrust Law, would preclude consummation of the Merger by the Outside Date, including promptly offering to divest: (i) the United States cotton seed business acquired by Parent in 2005, including the Stoneville(R) and NexGen(R) brands, along with substantially all the United States assets acquired in that transaction, or to the extent those assets no longer exist or exist in a different form, substantially equivalent assets; and (ii) a license to Parent's currently commercialized cotton traits (i.e., the traits marketed under the following trademarks: Roundup Ready(R), Roundup Ready(R) Flex, Bollgard(R) and Bollgard(R) II) on terms with respect to financial terms and stacking rights at least as favorable as contained in any existing commercial license to those traits. In an effort to ensure that no requirement for a waiver, consent or approval of the FTC, the Antitrust Division, any State Attorney General or other Governmental Entity, no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding, and no other matter relating to any Antitrust Law, would preclude consummation of the Merger by the Outside Date, Parent shall defend through litigation on the merits any claim asserted in any court by any Person, and in the event of such litigation, the Company shall use its reasonable best efforts to cooperate with Parent in such litigation. (e) If, on or before the date that is six (6) months following the date of the execution and delivery of this Agreement, the condition to Closing set forth in Section 8.01(b) hereof has not been satisfied, the Outside Date shall automatically be extended up to, but not beyond, six (6) months, solely for the purpose of Parent satisfying its obligations under Section 7.07(d). (f) Notwithstanding any other provision of this Agreement, including Section 7.07(d), in the event that this Agreement is terminated pursuant to (i) Section 9.01(b) and at such time the conditions to Closing set forth in Section 8.01(b) or 8.01(c) have not been satisfied (in the case of Section 8.01(c), due to any statute, rule, regulation, temporary restraining order, preliminary or permanent injunction or other order or legal restraint, in each case relating to antitrust or competition matters) or (ii) Section 9.01(c) due to any law, regulation, judgment, injunction, order or decree relating to antitrust or competition matters, and in either case, the Merger has not been consummated, then within five business days following such termination, Parent shall pay to the Company in cash via wire transfer of immediately available federal funds an aggregate amount equal to $600,000,000 (the "Antitrust Termination Payment") and upon making such payment, the Litigation shall be terminated and extinguished in all respects and the parties hereto shall promptly take (or, if applicable, cause to be taken) any and all actions as may be required to dismiss the Litigation with prejudice. Payment of the Antitrust Termination Payment shall be the sole and exclusive remedy of the Company for any breach by Parent of this Section 7.07. For the avoidance of doubt, upon the payment of the Antitrust Termination Payment pursuant to the first sentence of this paragraph, Parent shall not have any other obligation to the Company under this Agreement. SECTION 7.08. Confidentiality. The Confidentiality Agreement will remain in full force and effect until its expiration in accordance with the terms thereof. SECTION 7.09. Litigation Stay. Upon the execution and delivery of this Agreement by all of the parties hereto, and until the earlier to occur of the termination of this Agreement pursuant to the terms of Article 9 hereof and the Closing Date, and subject to the rights of the parties hereto in respect of the Litigation as further provided in Article 9 hereof, each party shall take all steps necessary to obtain (a) from the Mississippi Supreme Court a continuance of up to twelve months of any hearing on, or decision in, Delta and Pine Land Company v. Monsanto Company, et al, No. 05-M-00015-SCT consolidated with No. 05-M-00016-SCT (the "Supreme Court Case") and (b) to the extent necessary, from the Circuit Court of the First Judicial District of Bolivar County a stay of Delta and Pine Land Company v. Monsanto Company, et al, Civil Action No. 2000-1 (the "Lower Court Case" and, together with the Supreme Court Case, the "Litigation"). Without limiting the foregoing, prior to the earlier to occur of the termination of this Agreement in accordance with Article 9 hereof and the Closing Date, Parent and the Company shall not, and shall cause their respective Affiliates not to, prosecute any claims they may have in respect of or otherwise pursue the Litigation. Notwithstanding the foregoing, in the event the parties are unable to obtain (or attain the maintenance of) such stay or continuance from any court with jurisdiction to grant such stay or continuance, including the Mississippi Supreme Court and, to the extent applicable, the Circuit Court of the First Judicial District of Bolivar County, then the parties shall (i) take all steps necessary to obtain a dismissal of the Litigation without prejudice with leave to refile in (and only in) the same forum, (ii) consent to such refiling, (iii) waive, and not assert, any applicable statute of limitations or defense (whether in equity or otherwise) relating to the passage of time caused by any such dismissal or the non-pursuit of claims or counterclaims as of the date hereof through the termination of this Agreement or failure to prosecute caused by any such dismissal or the non-pursuit of claims or counterclaims as of the date hereof through the termination of this Agreement and (iv) waive, and not assert, any defense relating to or arising out of the parties' conduct in connection with negotiating or attempting to implement this Agreement. ARTICLE 8. CONDITIONS TO THE MERGER SECTION 8.01. Conditions to the Obligations of Each Party. The obligations of the Company, Parent and Merger Sub to consummate the Merger are subject to the satisfaction or written waiver of the following conditions: (a) this Agreement shall have been approved and adopted by the stockholders of the Company in accordance with Delaware Law and the Restated Certificate of Incorporation of the Company; (b) (i) any applicable waiting period under the HSR Act relating to the Merger shall have expired or been terminated, and (ii) any applicable waiting or similar period with respect to the competition laws of Spain shall have expired or terminated, provided that Parent may, at any time and in its sole discretion, waive the condition to Closing specified in this clause (ii); (c) no statute, rule, regulation, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition preventing the consummation of the Merger shall be in effect, but only if it is (i) any United States federal or state statute, rule or regulation or United States federal or state court order, injunction or other legal restraint or prohibition or (ii) except as otherwise expressly provided in Section 8.01(b) hereof, any other statute, rule, regulation, court order, injunction or other legal restraint or prohibition if the violation thereof would, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect (after giving effect to the Merger) or would subject any director, officer or other employee of Parent, Merger Sub, the Company or any of its Subsidiaries to any criminal liability; provided, -------- however, that prior to asserting this condition each of ------- the parties shall have used all reasonable best efforts to prevent the entry of any such injunction, court order, legal restraint or prohibition to have any such injunction, court order, legal restraint or prohibition lifted or withdrawn, and to appeal as promptly as possible any such injunction, court order, legal restraint or prohibition that may be entered; (d) with respect to the obligations of Parent and Merger Sub, (i) the representations and warranties of the Company as set forth in this Agreement (other than the representations and warranties set forth in Section 3.03, the first sentence of Section 3.19(b) and Section 3.19(e) of this Agreement) shall be true and correct as if made on and as of the Effective Time (other than those representations and warranties which address matters only as of a certain date, which shall be true and correct as of such certain date and other than the representations and warranties set forth Sections 3.08(b)-(e), which shall only need to be true and correct as of the date of this Agreement), except to the extent that the failures in the aggregate of such representations and warranties (disregarding any qualifications as to materiality contained therein) to be true and correct would not, individually or in the aggregate, have a Material Adverse Effect, and (ii) the representations and warranties of the Company set forth in Section 3.03, the first sentence of Section 3.19(b) and Section 3.19(e) of this Agreement shall be true and correct as if made on and as of the Effective Time, except to the extent that the failures in the aggregate of such representations and warranties (disregarding any qualifications as to materiality contained therein) to be true and correct would not, individually or in the aggregate, result in or be reasonably likely to result in aggregate liability to Parent or any Affiliate thereof (including, for these purposes, the Company and its Subsidiaries (including the Other Entities)) in excess of $4,000,000, and Parent shall have received a certificate of the chief executive officer, president or vice president/finance of the Company to such effect; (e) with respect to the obligations of the Company, the representations and warranties of Parent and Merger Sub as set forth in this Agreement shall be true and correct as if made on and as of the Effective Time (other than those representations and warranties which address matters only as of a certain date, which shall be true and correct as of such certain date), except to the extent that the failures in the aggregate of such representations and warranties (disregarding any qualifications as to materiality contained therein) to be true and correct would not, individually or in the aggregate, have a Buyer Material Adverse Effect, and the Company shall have received a certificate of the president, chief financial officer or any vice president of Parent to such effect; (f) with respect to the obligations of Parent and Merger Sub, there shall not have been any change that, individually or in the aggregate, would have a Material Adverse Change, and Parent shall have received a certificate of the chief executive officer, president or vice president/finance of the Company to such effect; and (g) with respect to the obligations of Parent and Merger Sub, the Company shall have performed in all material respects all obligations, and complied in all material respects with all agreements and covenants, in each case required to be performed by or complied with by it under this Agreement on or prior to the Effective Time, and Parent shall have received a certificate of the chief executive officer, president or vice president/finance of the Company to such effect; and, with respect to the obligations of the Company, Parent and Merger Sub shall have performed in all material respects all obligations, and complied in all material respects with all agreements and covenants, in each case required to be performed by or complied with by them under this Agreement on or prior to the Effective Time, and the Company shall have received a certificate of the president, chief financial officer or any vice president of Parent to such effect. SECTION 8.02. Burden of Proof. Any party seeking to claim that a condition to its obligation to effect the Merger has not been satisfied by reason of the fact that a Material Adverse Change or a Material Adverse Effect has occurred or would be reasonably expected to occur or result will have the burden of proof to establish that occurrence or likelihood. ARTICLE 9. TERMINATION SECTION 9.01. Termination. This Agreement may be terminated and the Transaction may be abandoned at any time prior to the Effective Time (notwithstanding any approval of this Agreement by the stockholders of the Company): (a) by mutual written consent of the Company and Parent; (b) by either the Company or Parent, if the Merger has not been consummated on or before February 14, 2007 (the "Outside Date"); provided, however, that the Outside Date shall be extended until August 14, 2007 pursuant to the terms set forth in Section 7.07(e) hereof and, in such circumstances, any and all references in this Agreement to the "Outside Date" shall mean and refer to such extended date; and provided, further however, that no party may terminate this Agreement pursuant to this subsection if such party's failure to fulfill any of its obligations under this Agreement shall have been the reason that the Effective Time shall not have occurred on or before said date; (c) by either the Company or Parent, if there shall be any law or regulation that makes consummation of the Transaction illegal or otherwise prohibited or if any judgment, injunction, order or decree enjoining Parent, Merger Sub or the Company from consummating the Transaction is entered and such judgment, injunction, order or decree shall become final and nonappealable; (d) by Parent, if (i) the Company's Board of Directors shall withdraw, modify or change its recommendation or approval in respect of this Agreement or the Merger in a manner adverse to Parent or Merger Sub, (ii) the Company Board approves, endorses or recommends any Acquisition Transaction other than the Merger or (iii) this Agreement has been submitted to the stockholders of the Company for adoption at a duly convened Company Stockholders Meeting (including any adjournment or postponement thereof) and the stockholders shall not have approved this Agreement in accordance with the terms hereof and Delaware Law and the Restated Certificate of Incorporation of the Company; (e) [Intentionally Omitted] (f) subject to the terms of Section 5.04(a), by the Company prior to the date of the Company Stockholders Meeting, to allow the Company to enter into an agreement in respect of an Acquisition Transaction which the Company's Board of Directors has determined, in good faith, after consultation with its outside legal counsel and financial advisor, and in the exercise of its fiduciary duties, and after giving effect to all of the adjustments that may be offered by Parent as contemplated by Section 5.04, constitutes a Superior Proposal; (g) by Parent, if the Company has breached any representation, warranty, covenant or agreement contained in this Agreement such that the conditions to the obligation of Parent and Merger Sub to effect the Closing that are set forth in Sections 8.01(d) or 8.01(g) hereof would not be satisfied as of any date following the date hereof; provided, however, that Parent may not terminate this Agreement pursuant to this subsection unless any such breach has not been cured within twenty (20) days after written notice thereof by Parent to the Company informing the Company of such breach, it being understood and agreed that no cure period shall be required for a breach which by its nature cannot be cured; provided, further however, that Parent may not terminate this Agreement pursuant to this subsection if it is then in material breach of the terms of this Agreement; or (h) by the Company, if Parent or Merger Sub has breached any representation, warranty, covenant or agreement contained in this Agreement such that the conditions to the obligation of the Company to effect the Closing that are set forth in Sections 8.01(e) or 8.01(g) hereof would not be satisfied as of any date following the date hereof; provided, however, that the Company may not terminate this Agreement pursuant to this subsection unless any such breach has not been cured within twenty (20) days after written notice thereof by the Company to Parent informing Parent of such breach, it being understood and agreed that no cure period shall be required for a breach which by its nature cannot be cured; provided, further however, that the Company may not terminate this Agreement pursuant to this subsection if it is then in material breach of the terms of this Agreement. Such right of termination shall be exercised by written notice of termination given by the terminating party to the other parties hereto in the manner hereinafter provided. SECTION 9.02. Waiver. At any time prior to the Effective Time, the parties hereto, by action taken by or pursuant to resolutions of their respective Boards of Directors, may (a) extend the time for the performance of any of the obligations or other acts of the parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto, and (c) except for approval of the holders of Shares and, in connection with all HSR Act filings, of the FTC and the Antitrust Division, waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid if set forth in an instrument in writing signed on behalf of such party. SECTION 9.03. Closing. Subject to the satisfaction or waiver of the conditions contained in Section 8.01 hereof, the closing of the Merger contemplated by this Agreement (the "Closing") shall take place at the offices of Willkie Farr & Gallagher LLP in New York, New York as soon as practicable (but in no event later than the third business day) after the satisfaction or waiver of all of the conditions to the Merger contained in Section 8.01 hereof (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, but subject to the satisfaction or waiver of those conditions) or at such other time and place as Parent and the Company shall agree in writing (the "Closing Date"). SECTION 9.04. Effect of Termination. (a) If this Agreement is terminated pursuant to Section 9.01 hereof, this Agreement shall terminate with no liability on the part of any party hereto, except that the agreements contained in Sections 6.01, 7.08, this Section 9.04 and Article 10 hereof shall survive the termination hereof. The parties acknowledge and agree that upon any such termination of this Agreement, the rights of the parties set forth in this Section 9.04 shall be the sole and exclusive remedy of the parties and the parties shall not have the right to pursue any other remedy at law, in equity or otherwise in respect of this Agreement and the transactions contemplated hereby, with all such rights being waived to the fullest extent permitted by applicable law. (b) In the event that this Agreement is terminated by the Company pursuant to Section 9.01(h) hereof due to the fact that Parent or Merger Sub has breached any of their respective covenants set forth in Article 6 or Article 7 hereof (a "Parent Covenant Termination Event"), then within five business days following the termination of this Agreement by the Company upon the occurrence of the Parent Covenant Termination Event, Parent shall pay to the Company in cash via wire transfer of immediately available federal funds an aggregate amount equal to $600,000,000 and upon making such payment, the Litigation shall be terminated and extinguished in all respects and the parties hereto shall promptly take (or, if applicable, cause to be taken) any and all actions as may be required to dismiss the Litigation with prejudice. (c) In the event that this Agreement is terminated by Parent pursuant to Section 9.01(d)(i) hereof, and (i) if the Company's Board of Directors withdrew, modified or changed its recommendation or approval in respect of this Agreement or the Merger in accordance with the terms set forth in Section 5.02(b) hereof and (ii) at the time the Company's Board of Directors withdrew, modified or changed its recommendation or approval in respect of this Agreement or the Merger, the Company's Board of Directors had not received a written proposal or written indication of interest (whether or not publicly announced) from any Person (other than Parent or any Affiliate thereof) with respect to an Acquisition Transaction (a "Stand-Alone Fiduciary Termination Event"), then (x) within five business days following the termination of this Agreement by Parent upon the occurrence of such Stand-Alone Fiduciary Termination Event, the Company shall pay to Parent in cash via wire transfer of immediately available federal funds an aggregate amount equal to $15,000,000, (y) the obligations of the parties under the terms of Section 7.09 hereof to obtain and maintain a continuance or stay, as applicable, in respect of the Litigation and otherwise not to prosecute or pursue any claims in respect of the Litigation shall terminate and (z) the parties hereto shall be permitted to pursue any and all rights and remedies that they may have in respect of the Litigation (including, if applicable, re-instituting all or any portion of the Litigation that was dismissed without prejudice in accordance with the terms of Section 7.09 hereof), which rights and remedies shall expressly survive any such termination. (d) In the event that this Agreement is terminated by (i) Parent pursuant to Section 9.01(d)(ii) hereof or (ii) by the Company pursuant to Section 9.01(f) hereof (each, a "Topping Offer Termination Event"), then contemporaneously with the termination of this Agreement by the Company or Parent, as applicable, upon the occurrence of such Topping Offer Termination Event, the Litigation shall be terminated and extinguished in all respects and the parties hereto shall promptly take (or, if applicable, cause to be taken) any and all actions as may be required to dismiss the Litigation with prejudice. (e) In the event that this Agreement is terminated by Parent pursuant to Section 9.01(g) hereof due to the fact that the Company has breached any of its covenants set forth in Article 5 or Article 7 hereof, including, without limitation, if the Company's Board of Directors withdrew, modified or changed its recommendation or approval in respect of this Agreement or the Merger in breach of the terms set forth in Section 5.02(b) hereof (a "Company Covenant Termination Event"), then contemporaneously with the termination of this Agreement by Parent upon the occurrence of such Company Covenant Termination Event, the Litigation shall be terminated and extinguished in all respects and the parties hereto shall promptly take (or, if applicable, cause to be taken) any and all actions as may be required to dismiss the Litigation with prejudice. (f) In the event that this Agreement is terminated by the Company or Parent other than in connection with a termination which would give rise to an obligation to make the Antitrust Termination Payment or a Parent Covenant Termination Event, a Stand-Alone Fiduciary Termination Event, a Topping Offer Termination Event or a Company Covenant Termination Event, then, effective upon the effective date of any such termination, (i) the obligations of the parties under the terms of Section 7.09 hereof to obtain and maintain a continuance or stay, as applicable, in respect of the Litigation and otherwise not to prosecute or pursue any claims in respect of the Litigation shall terminate and (ii) the parties hereto shall be permitted to pursue any and all rights and remedies that they may have in respect of the Litigation (including, if applicable, re-instituting all or any portion of the Litigation that was dismissed without prejudice in accordance with the terms of Section 7.09 hereof), which rights and remedies shall expressly survive any such termination; provided, however, that in the event that this Agreement is terminated by Parent pursuant to (x) Section 9.01(g) hereof due to the fact that the Company has breached any of its representations or warranties contained in this Agreement or (y) Section 9.01(b) hereof and the condition to closing set forth in Section 8.01(f) hereof is not satisfied on the effective date of any such termination, in addition to the consequences of such termination as set forth above in this clause (f), (A) Section 2.1.39 of that certain U.S. Bollgard Gene License and Seed Services Agreement, dated as of February 2, 1996, by and among Parent, the Company and D&M Partners, as amended, shall, effective upon the effective date of the termination of this Agreement as contemplated by clause (x) or clause (y) immediately above, be amended such that any and all references therein to "seventy-one percent (71%)" or ".71" therein shall be changed to "sixty percent (60%)" and ".60", respectively, and (B) Section 2.1.40 of that certain U.S. Roundup Ready Gene License and Seed Services Agreement, dated as of February 2, 1996, by and among Parent, the Company and D&M Partners, as amended, shall, effective upon the effective date of the termination of this Agreement as contemplated by clause (x) or clause (y) immediately above, be amended such that Section 2.1.40 thereof be deleted in its entirety and replaced with the following: "The term MONSANTO ROYALTY PERCENTAGE" means sixty percent (60%)." ARTICLE 10. MISCELLANEOUS SECTION 10.01. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile, telex or similar writing) and shall be given: If to Parent, Merger Sub or the Surviving Corporation (following the Effective Time), to: Monsanto Company 800 North Lindbergh Boulevard St. Louis, MO 63167 Facsimile: (314) 614-4832 Attention: Chief Financial Officer with a copy to: Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019 Attention: William H. Gump Facsimile: (212) 728-8111 if to the Company (prior to the Effective Time), to: Delta and Pine Land Company P.O. Box 157 One Cotton Row Scott, Mississippi 38772 Facsimile: (662) 742-3795 Attention: Chief Executive Officer with copies to: Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY 10014 Attention: Arthur Fleischer, Jr. Peter Golden Facsimile: (212) 859-4000 and Fried, Frank, Harris, Shriver & Jacobson LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Attention: Lawrence R. Bard Facsimile: (202) 639-7003 and Phelps Dunbar LLP 111 East Capitol Street, Suite 600 P.O. Box 23066 Jackson, MS 39225 Attention: Jerome C. Hafter Facsimile: (601) 360-9777 or such other address, facsimile or telex number as such party may hereafter specify for the purpose by notice to the other parties hereto delivered in accordance with the terms hereof. Each such notice, request or other communication shall be effective (a) if given by facsimile or telex, upon confirmation of receipt, or (b) if given by any other means, when delivered at the address specified in this Section 10.01. SECTION 10.02. Survival of Representations and Warranties. The representations and warranties contained herein shall not survive the Effective Time. SECTION 10.03. Amendments; No Waivers. (a) Any provision of this Agreement may be amended or waived prior to the Effective Time if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Company, Parent and Merger Sub or in the case of a waiver, by the party against whom the waiver is to be effective; provided that after the adoption of this Agreement by the stockholders of the Company, no such amendment or waiver shall be effective if it requires further stockholder approval under applicable law, unless the approval of the requisite stockholders under applicable law has been obtained. (b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. SECTION 10.04. Expenses. Except as provided in this Agreement, each party shall pay its own costs and expenses relating to this Agreement and the transactions contemplated hereby, except that each of Parent and the Company shall bear and pay one-half of the costs and expenses incurred in connection with the filing, printing and mailing of the Company Proxy Statement (including SEC filing fees, but excluding the fees and expenses of legal counsel and other advisors incurred in connection with the foregoing). SECTION 10.05. Successors and Assigns. This Agreement and the rights and obligations hereunder may not be assigned; provided that this Agreement may be assigned by Parent and/or Merger Sub to, and the rights and obligations hereunder shall be binding upon and inure to the benefit of, its legal successors and assigns through a reorganization, merger, business combination or similar transaction; provided further, however, that if Parent determines that there is a reasonable likelihood that there would be a termination event that would give rise to an obligation on the part of Parent to pay the Antitrust Termination Payment, with not less than one (1) business day's prior written notice to the Company, Parent and Merger Sub may enter into an agreement to jointly assign their respective rights and obligations under this Agreement, in whole but not in part, to any Person acceptable to the Company in its reasonable discretion pursuant to an instrument by which such Person assumes, effective immediately prior to Closing, all of the obligations of Parent and Merger Sub under this Agreement and, upon, but not prior to, the Closing, including without limitation, the deposit of the Payment Fund, each of Parent and Merger Sub shall be deemed fully released from all of their respective obligations hereunder. SECTION 10.06. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. (a) This Agreement shall be construed in accordance with and governed by the law of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. (b) Each of the parties hereto 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 permitted 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 hereto agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 10.01 or in such other manner as may be permitted by applicable laws, will be valid and sufficient service thereof. Each of the parties hereto 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 hereto 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 other than the failure to serve process in accordance with this Section 10.06(b), (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. (c) 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 in this Section 10.06(c). SECTION 10.07. Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts (including by means of telecopied signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto. SECTION 10.08. Headings. Section headings used in this Agreement are for convenience only and shall be ignored in the construction and interpretation hereof. SECTION 10.09. No Third Party Beneficiaries. Except for Section 6.02 hereof, no provision of this Agreement is intended to, or shall, confer any third party beneficiary or other rights or remedies upon any Person other than the parties hereto. SECTION 10.10. Remedies. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms. It is accordingly agreed that the parties hereto shall be entitled to specific performance of the terms hereof, this being in addition to any other remedy to which they are entitled at law or in equity. SECTION 10.11. Severability. The provisions of this Agreement are severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or the application of that provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision will be substituted for that provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (b) the remainder of this Agreement and the application of that provision to other Persons or circumstances will not be affected by such invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of that provision, or the application of that provision, in any other jurisdiction. SECTION 10.12. Rules of Construction. The parties to this Agreement have been represented by counsel during the negotiation and execution of this Agreement and waive the application of any laws or rule of construction providing that ambiguities in any agreement or other document will be construed against the party drafting such agreement or other document. SECTION 10.13. Entire Agreement. This Agreement, including the exhibits hereto, the Company Disclosure Letter, the Confidentiality Agreement and the Settlement Agreements, embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein and supersede all prior agreements and understandings, both written and oral, between the parties with respect to such subject matter. SECTION 10.14. Certain Defined Terms. As used herein, the term (a) "Person" means an individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, trust, association, organization or other entity, including any Governmental Entity, and including any successor, by merger or otherwise, of any of the foregoing, (b) "Affiliate" means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person and (c) "Subsidiary" means, with respect to any Person, another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such Person. Notwithstanding any other provision of this Agreement, the Company shall not be in breach of any provision hereof that requires the Company to cause any Subsidiary to do or take any action whatsoever if the Company and its Subsidiaries do not have the power, authority or ability to cause the Subsidiary to do or take such action under the organization documents of such Subsidiary, or any agreement between the Company or its Subsidiaries and any other Person that is in effect on the date hereof. Unless otherwise expressly specified in this Agreement, a reference to a "Subsidiary" or "Subsidiaries" are references to a Subsidiary or Subsidiaries of the Company. [Signature page follows.] IN WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan of Merger to be duly executed by their respective authorized officers as of the day and year first above written. MONSANTO COMPANY By: /s/ Terrell K. Crews ------------------------------- Name: Terrell K. Crews Title: Chief Financial Officer MONSANTO SUB, INC. By: /s/ Nancy E. Hamilton ------------------------------- Name: Nancy E. Hamilton Title: Secretary DELTA AND PINE LAND COMPANY By: /s/ W.T. Jagodinski ------------------------------- Name: W.T. Jagodinski Title: President and Chief Executive Officer EXHIBIT A EXHIBIT B EXHIBIT C EX-10.1 3 ex10_1.txt Exhibit 10.1 SETTLEMENT AGREEMENT I ---------------------- This Settlement Agreement I ("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 International LLC, a Missouri Limited Liability Company with its principal offices at One Cotton Row, Scott, Mississippi 38772 ("D&M"), D&PL International Technology Corp., a Delaware corporation with its principle offices at One Cotton Row, Scott, Mississippi 38772 ("DITC") 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, the Parties have instituted certain arbitration and litigation proceedings as set forth below (the "Subject Proceedings"); and WHEREAS, the Parties have come to certain agreements in connection with the disputes that have been raised in the Subject Proceedings 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, counterclaims, 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 Proceedings. (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 DPL, D&M and DITP. (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 PROCEEDINGS" shall mean, collectively, the following litigation and arbitration proceedings: (i) Delta and Pine Land Company, et al. v. Monsanto Company, No. 1970-N, filed in the Court of Chancery of the State of Delaware, New Castle County ("Delaware Litigation"); (ii) Delta and Pine Land Company; D&PL International Technology Corp.; and D&M International, LLC. v. Monsanto Company, No. 50133T0013106, an arbitration proceeding pending under the jurisdiction of the American Arbitration Association ("ICS Arbitration"); and (iii)Delta and Pine Land Company v. Monsanto Company, No. 50 181 T 00283 06, an arbitration proceeding pending under the jurisdiction of the American Arbitration Association ("May 2006 Arbitration"); and (iv) Delta and Pine Land Company v. Monsanto Company, No. 06 DU CC00022, filed in Dunklin County Circuit Court, Dunklin County, Missouri ("Missouri I Litigation"), and (v) Monsanto Company v. Delta and Pine Land Company, No. 06CC-000761, pending in the Circuit Court of St. Louis County, Missouri ("Missouri II Litigation"). (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 PROCEEDINGS. Upon execution of the Merger Agreement, the Parties shall take the following actions and agree to the following terms: (a) D&PL and Monsanto shall execute the Amendment to Roundup Ready Soybean License and Seed Services Agreement of September 1, 2001, as previously amended, in the form of Exhibit A. (b) Within 15 days of the execution of the Merger Agreement, Monsanto shall pay to DPL the amount of Two Million One Hundred Sixty-Seven Thousand Eight Hundred Seventy-Three Dollars and Eighty-Nine Cents (US $2,167,873.89) in readily available funds. (c) The Parties shall file with the appropriate court a Stipulation of Dismissal with Prejudice of the Delaware Litigation, with each Party to bear its own attorneys' fees and costs, in the form of Exhibit B. (d) The Parties shall file with the appropriate court a Stipulation of Dismissal with Prejudice of the Missouri I Litigation, with each Party to bear its own attorneys' fees and costs, in the form of Exhibit C. (e) The Parties shall file with the American Arbitration Association and the appropriate arbitration panel a Motion to Stay Proceedings in the ICS Arbitration, in the form of Exhibit D. The Parties further agree that they will take all reasonable efforts to have the ICS Arbitration proceedings stayed until expiration of the Outside Date (as that term is used in the Merger Agreement). In the event that the Merger Agreement is terminated by DPL under Section 9.04(d) thereof, DPL and its Affiliates shall use their best efforts, but consistent with their contractual duties to MDM Sementes de Algodao, Ltda. ("MDM"), to have the ICS Arbitration dismissed with prejudice by promptly filing a Stipulation of Dismissal with Prejudice, with each Party to bear its own attorneys' fees and costs, in the form of Exhibit E. In any event, however, DPL and its Affiliates shall assign to or otherwise transfer to Monsanto DPL's or its Affiliates' contractual share, as of the Effective Date of the Agreement, of any and all recovery entered against Monsanto or its Affiliates in connection with the ICS Arbitration. During the period in which the ICS Arbitration is stayed, (i) DPL agrees that none of the DPL Parties or their Affiliates shall, either directly or indirectly, assert or initiate any Claims, proceedings or other challenges (formal or informal) to the Indemnity Collection System of Monsanto or any of its Affiliates applicable to Brazil, and (ii) Monsanto agrees that technology fees, net of costs of collection (not including internal costs) collected through the ICS system in Brazil for Bollgard(R) seed shall be distributed 44% to DPL or its Affiliates and 56% to Monsanto or its Affiliates. In determining the percentage distributed to DPL or its Affiliates, Monsanto shall receive credit for any amounts paid to MDM. The Parties agree that the agreements and actions provided for in the preceding sentence shall be without prejudice to any position that may be taken either Party in the May 2006 Arbitration should the stay be lifted, and no evidence concerning these agreements and actions may be introduced into evidence or referenced to in the May 2006 Arbitration. (f) The Parties shall file with the American Arbitration Association and the appropriate arbitration panel a Motion to Stay Proceedings in the May 2006 Arbitration, in the form of Exhibit F, as it relates to DPL's claims therein regarding Egypt and Burkina Faso. The Parties further agree that they will take all reasonable efforts to have the proceedings regarding Egypt and Burkina Faso stayed until expiration of the Outside Date (as that term is used in the Merger Agreement). In addition, the Parties shall file with the American Arbitration Association and the appropriate arbitration panel a Stipulation of Dismissal with Prejudice in the May 2006 Arbitration, with each Party to bear its own attorneys' fees and costs, in the form of Exhibit G, as to all of DPL's Claims arising from or relating to its contention that any of the Monsanto Parties failed to satisfy its "most favored licensee" obligations in connection with its dealings with Stoneville Pedigreed Seeds ("Stoneville") or its Affiliates - regardless whether Stoneville was an Affiliate of any of the Monsanto Parties. (g) The Parties shall file with the appropriate court a Stipulation of Dismissal with Prejudice of the Missouri II Litigation, with each Party to bear its own attorneys' fees and costs, in the form of Exhibit G. 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 (i) alleged in the Missouri I and Missouri II Litigations, and/or (ii) relating to DPL's contention in the May 2006 Arbitration that any of the Monsanto Parties failed to satisfy its "most favored licensee" obligations in connection with its dealings with Stoneville Pedigreed Seeds ("Stoneville") or its Affiliates - regardless whether Stoneville was an Affiliate of any of the Monsanto Parties. (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) alleged in the Missouri I and Missouri II Litigations, and/or (ii) relating to DPL's contention in the May 2006 Arbitration that any of the Monsanto Parties failed to satisfy its "most favored licensee" obligations in connection with its dealings with Stoneville Pedigreed Seed Company ("Stoneville") or its Affiliates - regardless whether Stoneville was an Affiliate of any of the Monsanto Parties. In the event that the Merger Agreement is terminated by DPL under Section 9.04(d) thereof, the foregoing release shall also include, effective as of the date of such termination, all Claims arising from, encompassed by, or related to any and all matters asserted in the ICS Arbitration. (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 Proceedings and identified above are the subject of the above releases or other resolution of disputes set forth above 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, or 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 released herein. 5. NO TRANSFER OF RELEASED CLAIMS. Each Party hereto represents and warrants that it has not prior to the Effective Date, and will not in the future, sell, transfer, assign or othewise hypothecate to any Third Party that would not be bound hereby any Claim released 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 any such Claim. 6. DENIAL OF LIABILITY. Each Party hereto expressly denies any liability with respect to the Claims made against it in the Subject Proceedings. 7. FUTURE DISCOVERY. Each Party acknowledges that it may hereafter discover facts relating to the Subject Proceedings 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. ATTACHMENTS AND EXHIBITS. The Attachments and Exhibits form an integral part of this Agreement. Signature page to follow D&M INTERNATIONAL LLC DELTA AND PINE LAND COMPANY BY D&PL INTERNATIONAL TECHNOLOGY CORP. By /s/ R.D. Greene By /s/ R.D. Greene ---------------------------- --------------------------- Title Senior Vice President Title Senior Vice President ------------------------- ------------------------ Date August 14, 2006 Date August 14, 2006 -------------------------- ------------------------- MONSANTO COMPANY D&PL INTERNATIONAL TECHNOLOGY CORP. By /s/ Terrell K. Crews By /s/ RD Greene --------------------------- ---------------------------- Title Chief Financial Officer Title Senior Vice President ------------------------- ------------------------- Date August 14, 2006 Date August 14, 2006 ------------------------- -------------------------- EXHIBIT A AMENDMENT TO ROUNDUP READY(R) SOYBEAN LICENSE AND SEED SERVICES AGREEMENT OF SEPTEMBER 1, 2001 Delta and Pine Land Company, a Delaware corporation, and Monsanto Company, a Delaware corporation, are parties to a certain Roundup Ready(R) Soybean License and Seed Services Agreement of September 1, 2001 (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, effective as of the 2007 growing season, as follows: 1. In Subsection 3.10(b), delete the words in the first parenthetical "replants and." At the end of that Subsection, add the following sentence, "For the avoidance of doubt, the parties agree that the number of UNITS sold by LICENSEE less returns to LICENSEE from its direct customers shall be the "net number of UNITS transferred to growers" in calculating the ROYALTY. UNITS that are sold and later must be replanted as well as UNITS sold for replanting purposes are to be included in "net number of UNITS transferred to growers"." All other terms and conditions of the Agreement remain the same. DELTA AND PINE LAND COMPANY MONSANTO COMPANY By By ---------------------------- --------------------------- Title Title ------------------------- ------------------------ Date Date -------------------------- ------------------------- EX-10.2 4 ex10_2.txt 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_________________________ EX-10.3 5 ex10_3.txt Exhibit 10.3 ARBITRATION SETTLEMENT AGREEMENT -------------------------------- This Arbitration Settlement Agreement ("Agreement") is made, as of August 14, 2006 (the "Effective Date"), between 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, D&M, and Monsanto are each parties to the U.S. Bollgard(R) Gene License, the U.S. Roundup Ready(R) License, and the Marketing Services Agreement; and WHEREAS, disputes have arisen among the Parties pertaining to the above identified agreements; and WHEREAS, the Parties have instituted arbitration proceedings, styled Monsanto Company v. Delta & Pine Land, No. 30 Y 133 00564 04, pending under the jurisdiction of the American Arbitration Association ("Subject Arbitration"), under the provisions of certain of the above identified agreements in order to resolve certain disputes; and WHEREAS, the Parties have come to agreement on the settlement of the disputes that have been raised in the Subject Arbitration 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, counterclaims, 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 Arbitration. (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 ARBITRATION" shall mean the arbitration proceedings identified in the Preamble to this Agreement. (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 ARBITRATION. Upon execution of the Agreement and Plan of Merger ("Merger Agreement"), the following agreements shall be amended as follows: (a) The Parties shall execute the Amendment to Roundup Ready(R) Gene License and Seed Services Agreement of February 2, 1996, as previously amended, in the form of Exhibit B. (b) The Parties shall execute the Amendment to Bollgard(R) Gene License and Seed Services Agreement of February 2, 1996, as previously amended, in the form of Exhibit C. (c) The Parties shall execute the Amendment to Marketing Services Agreement of February 2, 1996, in the form of Exhibit D. 2. EXECUTION OF AGREEMENTS AND DISMISSAL OF SUBJECT LITIGATION AND SUBJECT ARBITRATION . Upon execution of the Merger Agreement and the Amendments, the DPL Parties and the Monsanto Parties shall cause the following documents to be filed with the American Arbitration Association and the arbitration panel in connection with the Subject Arbitration: (a) A Stipulation of Dismissal with prejudice, with each Party to bear its own attorneys' fees and costs, in the form of Exhibit A. 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 alleged in the Subject Arbitration . (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 (including, but not limited to, all Claims that any of the Monsanto Parties failed to satisfy its "most favored licensee" obligations in connection with their dealings with Stoneville Pedigreed Seed Company ("Stoneville") or its Affiliates - regardless of whether Stoneville was an Affiliate of any of the Monsanto Parties) 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 alleged in the Subject Arbitration . (c) Parties Not Released: The releases set forth in paragraphs 3(a) and 3(b) of this 2006 Settlement 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, counterclaims, and defenses asserted within the Subject Arbitration are the subject of the above releases or other resolution of disputes set forth above 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 hand 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, or in any other legal proceeding or arbitration not released herein. 5. NO TRANSFER OF RELEASED CLAIMS. Each Party hereto represents and warrants that it has not prior to the Effective Date, and will not in the future, sell, transfer, assign or othewise hypothecate to any Third Party that would not be bound hereby any Claim released 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 any such Claim. 6. DENIAL OF LIABILITY. Each Party hereto expressly denies any liability with respect to the Claims made against it in the Subject Arbitration. 7. FUTURE DISCOVERY. Each Party acknowledges that it may hereafter discover facts relating to the Subject Arbitration 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. ATTACHMENTS AND EXHIBITS. The Attachments and Exhibits form an integral part of this Agreement. Signature page to follow 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 August 14, 2006 Date August 14, 2006 -------------------------- ------------------------- MONSANTO COMPANY By /s/ Terrell K. Crews --------------------------- Title Chief Financial Officer ------------------------- Date August 14, 2006 ------------------------- EXHIBIT A AMERICAN ARBITRATION ASSOCIATION MONSANTO COMPANY, ) ) Claimant, ) ) v. ) No. 30 Y 133 00564 04 ) DELTA AND PINE LAND COMPANY, ) ) Respondent. ) STIPULATED DISMISSAL WITH PREJUDICE ----------------------------------- Having mutually agreed upon a settlement of the disputes to be resolved herein, the parties request that this matter, including all claims and counterclaims, be dismissed with prejudice, with each party to bear its own respective costs and attorney's fees. Respectfully submitted, ----------------------- Allen Kezsbom Michael B. deLeeuw FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, NY 10004-1980 Jerome C. Hafter E. Clifton Hodge, Jr. PHELPS DUNBAR LLP 111 East Capitol Street, Suite 600 Jackson, MS 39201 Attorneys for DPL HUSCH & EPPENBERGER, LLC By: --------------------------- Joseph P. Conran Dutro E. Campbell, II Greg G. Gutzler 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105 314-480-1500 314-480-1505 (facsimile) Attorneys for Monsanto Company EXHIBIT B 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, (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. Delete Section 2.1.56 in its entirety and substitute the following new Section 2.1.56: "2.1.56. The term "ROYALTY" means the compensation to be paid by D&M PARTNERS to MONSANTO in consideration for the LICENSES equal to the MONSANTO ROYALTY PERCENTAGE multiplied by the NET SUBLICENSE REVENUE." 2. Delete Section 2.1.57 in its entirety and substitute the following new Section 2.1.57: "2.1.57 The term "SUBLICENSE REVENUE" means the total number of UNITS of LICENSED COMMERCIAL SEED reported by D&PL as sold and delivered during the applicable period and confirmed by the named distributor customers as received, less any amounts reported as returned by D&PL or the named distributor customers, multiplied by the technology fees due from sublicensed growers for those UNITS, less any amounts paid or accrued for replant, crop loss or other price adjustments claimed by sublicensed growers, provided that the total number of UNITS used in the calculation may be as much as one percent (1%) less than the reported and confirmed total if the number of UNITS of LICENSED COMMERCIAL SEED reported as sold by retail distributors is less than the reported and confirmed total." 3. Add the following sentence to Section 3.8: "Notwithstanding any other provision of this Agreement, nothing herein shall give D&PL or D&M PARTNERS any right to license the use of any MONSANTO TECHNOLOGY, including any ROUNDUP READY(R) GENE to any third party for use in breeding cotton. In the event D&PL desires to have a third party conduct or participate in breeding of DELTAPINE ROUNDUP READY(R) CULTIVARS, such third party must have first been licensed by MONSANTO for that purpose. D&PL may request such a license for a third party to conduct breeding for it, which MONSANTO may not unreasonably withhold. MONSANTO agrees to give O&A Associates or James Olvey such a research-only license on standard terms except that a limitation may be included to prohibit transfer of any materials produced by or containing MONSANTO TECHNOLOGY to any entity except D&PL or an AFFILIATE of D&PL." 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 C 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. Delete Section 2.1.51 in its entirety and substitute the following new Section 2.1.51: "2.1.51. The term "ROYALTY" means the compensation to be paid by D&M PARTNERS to MONSANTO in consideration for the LICENSES equal to the MONSANTO ROYALTY PERCENTAGE multiplied by the NET SUBLICENSE REVENUE." 2. Delete Section 2.1.53 in its entirety and substitute the following new Section 2.1.53: "2.1.53 The term "SUBLICENSE REVENUE" means the total number of UNITS of LICENSED COMMERCIAL SEED reported by D&PL as sold and delivered during the applicable period and confirmed by the named distributor customers as received, less any amounts reported as returned by D&PL or the named distributor customers, multiplied by the technology fees due from sublicensed growers for those UNITS, less any amounts paid or accrued for replant, crop loss or other price adjustments claimed by sublicensed growers, provided that the total number of UNITS used in the calculation may be as much as one percent (1%) less than the reported and confirmed total if the number of UNITS of LICENSED COMMERCIAL SEED reported as sold by retail distributors is less than the reported and confirmed total. 3. Add the following sentence to Section 3.8: "Notwithstanding any other provision of this Agreement, nothing herein shall give D&PL or D&M PARTNERS any right to license the use of MONSANTO TECHNOLOGY, including LEPIDOPTERAN-ACTIVE GENE(S) to any third party for use in breeding cotton. In the event D&PL desires to have a third party conduct or participate in breeding of DELTAPINE ROUNDUP READY(R) CULTIVARS, such third party must have first been licensed by MONSANTO for that purpose. D&PL may request such a license for a third party to conduct breeding for it, which MONSANTO may not unreasonably withhold. MONSANTO agrees to give O&A Associates or James Olvey such a research-only license on standard terms except that a limitation may be included to prohibit transfer of any materials produced by or containing MONSANTO TECHNOLOGY to any entity except D&PL or an AFFILIATE of D&PL." 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 D AMENDMENT TO MARKETING 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 Marketing Services Agreement dated February 2, 1996, (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 new Section 3.5: "Notwithstanding any other provision of this Agreement, Marketing Services Fees for the 2007 season and all following seasons, shall not include any amount paid to distributors and/or retailers that is conditioned on activities by the distributors and/or retailers related to any product other than seed originally sold or transferred by D&PL or its Affiliates and containing the Licensed Technologies." 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 ------------------------- EX-99.1 6 ex99_1.txt EXHIBIT 99.1 AMENDED AND RESTATED AGREEMENT THIS AMENDED AND RESTATED AGREEMENT is made and entered into as of August ___, 2006, by and between Delta & Pine Land Company, a Delaware corporation, with offices at One Cotton Row, Scott, Mississippi 38772 (hereinafter called the "Corporation") and W. T. Jagodinksi, of 8836 Silverbark Dr., Germantown, Tennessee (hereinafter referred to as "Employee"). WHEREAS, the Corporation is engaged in the business of breeding, producing, conditioning and marketing cotton planting seed, and maintains its principal office in Scott, Mississippi; and WHEREAS, the Employee and the Corporation entered into an employment agreement dated as of September 1, 1997, as modified by the letter agreement, dated January 14, 1998, and the parties desire to amend and restate such agreement to reflect the Employee's current employment status with the Corporation and to provide other protections to the Employee; and WHEREAS, the Corporation desires to secure a non-competition covenant from Employee; and WHEREAS, the parties to this Agreement believe it is in their respective best interests to amend and restate this agreement and thereby provide certain additional benefits and considerations in favor of both the Corporation and the Employee. NOW, THEREFORE, in consideration of the mutual covenants contained therein, and other good and valuable considerations, the receipt and sufficiency of which is acknowledged by and between the parties, the parties agree as follows: I. PURPOSE OF AGREEMENT It is the specific intent of the parties to outline the agreed-upon terms of employment of the Employee. It is also the specific intent of the parties to protect the Employee from any adverse actions directed toward the Employee resulting from any Change in Control or in Anticipation of a Change in Control as the terms are utilized in this Agreement. The parties understand and acknowledge that a Change in Control may take place. Accordingly, this Agreement is entered into for the purpose of both providing for the continued employment of the Employee under current ownership circumstances, and further to protect the Employee in the event of a Change in Control or actions taken in Anticipation of a Change in Control. Nothing in this Agreement is intended to alter or affect stock options which have been granted or which may hereinafter be granted to the Employee. II. EMPLOYMENT 1. The Corporation hereby employs, engages and hires Employee as the Corporation's President and Chief Executive Officer. The Employee shall have and agrees to assume primary responsibility, subject at all times to the reasonable control of the Board of Directors, for supervising and overseeing all functions of the Corporation. 2. The Employee agrees to make available to the Corporation all of his professional and managerial knowledge and skill, and to provide such portion of his time as may be reasonably required for the proper fulfillment of his duties. 3. Employee shall perform such other duties as are customarily performed by one holding such position in other, same or similar businesses or enterprises as that engaged in by the Corporation. 4. Employee shall serve in such additional offices and capacities to which he may be appointed or elected, from time to time, by the Board of Directors of the Corporation. 5. Employee agrees that he will at all times faithfully, industriously and to the best of his reasonable ability, experience and talents perform all of the duties that may be required of and from him pursuant to the expressed terms of this Agreement. 6. The parties agree that the Employee will perform his duties in Scott, Mississippi or Shelby County, Tennessee, or in such other place or places as the Corporation and the Employee shall both agree upon, subject to reasonable business-related travel required by the Employer of the Employee consistent with travel required of other executive officers of the Corporation. III. TERM 1. The term of this Agreement shall be for a period of two (2) years from the date hereof. The Agreement shall automatically be extended each day so that at on any given date, the time remaining under this contract shall be for an additional two (2) year period, unless a party shall have given written notice to the other party of said party's intent to terminate the automatic extensions which otherwise take place daily. 2. The parties agree that, except as a result of a Change in Control or in Anticipation of a Change in Control, either party can provide for an early termination of this Agreement upon three (3) months written notice to the other. If the Employee gives such notice (except as a result of Change in Control or in Anticipation of a Change in Control), the Corporation may elect to immediately terminate the Employee without providing the employment benefits otherwise due to the Employee during the remainder of the three (3) month period. Otherwise, the Employee will continue to perform his duties as required under this Agreement during said three (3) month period. If the Corporation elects to make an early termination of employment (except as a result of Change in Control or in Anticipation of a Change in Control), then the Employee shall remain in the employ of the Corporation for a period of three (3) months and receive all benefits otherwise payable to him pursuant to this Agreement. 3. If, during the term of this Agreement but before a Change in Control, the Employee shall become unable to perform his duties by reason of illness or incapacity for a continuous period of six (6) months, or for a total of eight (8) months or more during any twelve (12) month period, then the Corporation may, at its option, terminate this Agreement upon 30 days written notice, and make payment to the Employee of the compensation payable to the Employee pursuant to the terms of this Agreement as though the Agreement were terminated by the Corporation as allowed in paragraph 2 of this Section. The Corporation shall thereafter have no further obligations to the Employee or liabilities under this Agreement. IV. COMPENSATION OF EMPLOYEE The Corporation shall pay the Employee for all services to be performed under this Agreement as follows: 1. Effective as of the date of this Agreement, the Corporation will pay Employee an annual base salary of $400,000.00. Compensation shall be payable in equal monthly installments or more frequently if compensation is generally paid more frequently to other executive officers of the Corporation. Increases in the annual base compensation shall be considered annually by the Board of Directors for the Corporation and the Employee's compensation shall be subject to upward adjustment from time to time as determined by the Board of Directors of the Corporation. Increases in the Employee's compensation will be paid in conformity with the Corporation's practice for payment of other executive officers of the Corporation as such practice may be established or modified from time to time. The Employee's compensation may not be reduced. 2. The Corporation will pay the Employee bonuses consistent with standard practices of the Corporation in paying bonuses to other executive officers of the Corporation. 3. The Corporation will provide Employee employee benefits, such as group health insurance, including employee medical plan benefits, long term disability, accidental death and dismemberment, life insurance, the use of a company provided vehicle, a company provided cellular telephone and all expenses associated therewith, participation in retirement plans, profit sharing plans, 401 K plans, savings plans and all other fringe benefits upon the same terms as are or shall be granted or made available by the Corporation to its other executive officers. 4. The Employee is expected and encouraged from time to time to incur expenses for the promotion of the business of the Corporation. The Corporation shall timely reimburse the Employee for all reasonable and necessary expenses and disbursements incurred by Employee in the performance of his duties in keeping with past practices. The Employee shall, from time to time, but not more frequently than weekly, submit a report to the Vice President- Finance and Treasurer (or his designee) of the Corporation in a form with such detail as will constitute a proper record for tax deductible expenses together with necessary vouchers and receipts therefore. Expenses of a type which are typically reimbursed to other executive officers of the Corporation shall be timely paid or reimbursed by the Corporation. V. CHANGE IN CONTROL 1. This Section is intended to provide the Employee with reasonable protections against possible adverse employment consequences resulting from a "Change in Control" or in Anticipation of a "Change in Control". 2. Immediately upon a Change in Control (the "CIC Date"), if the Employee is employed by the Company or if the employment of the Employee was terminated by the Corporation for any reason in Anticipation of a Change in Control, the Corporation shall pay the Employee the following: (a) The Corporation shall immediately upon the CIC Date pay the Employee a lump sum payment, in cash, equal to any salary payments earned but not paid through the CIC Date plus a pro-rata bonus equal to the product of (1) the Employee's highest annual bonus earned (whether paid or unpaid) during any one of the last five (5) fiscal years that ended prior to the CIC Date (or, in each case, such lesser period for which annual bonuses were paid or payable to the Employee) (the "Bonus Amount") multiplied by (2) a fraction, the numerator of which is the number of days elapsed from the start of the fiscal year in which the Change in Control occurs through the CIC Date and the denominator of which is 365; and (b) The Corporation shall immediately upon the CIC Date pay the Employee a lump sum payment, in cash, in an amount equal to three times the sum of (1) the Employee's annual base salary at the rate in effect immediately prior to the Change in Control (including all amounts of his base salary that are deferred under the qualified and non-qualified employee benefit plans of the Company or any other agreement or arrangement) (the "Base Amount") and (2) the Bonus Amount; and (c) The Corporation shall pay all premiums on behalf of, and at no additional cost to the Employee, for the benefit of the Employee and his spouse and any dependents, for 36 months from the CIC Date (regardless of whether the employment of the Employee is terminated for any reason), on all employee benefit programs and arrangements, including but not limited to health insurance, including employee medical plan benefits, group life insurance, individual life insurance coverage, accidental death and dismemberment coverage, long term disability coverage, and other fringe benefits or benefit plans generally afforded other executive officers of the Corporation. If any such coverage cannot be maintained because of requirements of the insurance or other companies providing such benefits, the Corporation shall provide and pay for alternative coverage providing essentially identical benefits at no additional cost to the Employee. In the event that the Employee's employment is terminated for any reason during the above period, the remaining portion of such period is to be in addition to that period of time that the Employee may elect COBRA coverage under such applicable benefit plans. In this regard, it is the specific agreement of the parties that, if the Employee's employment has terminated, those benefits which are typically available under COBRA coverage, at the expense of the Employee, will be available to the Employee at his expense for a period of 18 months following the expiration of the 36 months listed above, even though COBRA coverage might otherwise be unavailable as provided by law; and (d) For a period of at least 36 months following the CIC Date, the Corporation shall continue to make available, at its expense, a cellular telephone and a company vehicle of the make and model to which the Employee is entitled in accordance with the vehicle policy in effect as of the CIC Date; and (e) In lieu of shares of common stock of the Corporation issuable upon exercise of outstanding options granted to the Employee under the Corporation's stock option plans, the Employee shall surrender on the CIC Date to the Corporation his rights in all outstanding stock options then exercisable, which are held by him, and upon such surrender the Corporation shall pay the Employee an amount in cash equal to the aggregate difference, on a per share basis, between (i) the option prices of the shares subject to such surrendered options; and (ii) the higher of the average aggregate price per share paid (in cash or other consideration) in connection with any Change in Control or the then fair market value of the shares, whichever is greater; and (f) Employee will likely be required to employ a reputable national accounting firm to assist and advise him with respect to his finances following a Change in Control. To compensate Employee for the costs which he will likely incur, the Corporation will pay to Employee at the CIC Date an amount equal to 20% of the sum of the Base Amount and the Bonus Amount; and (g) The Corporation shall continue to cover the Employee under its Directors and Officers liability insurance policy in substantially the form of coverage as such policy may be in effect as to the Employee on the CIC Date, for the longer of thirty six (36) months following the CIC Date or such period as similar such coverage is maintained by the Corporation, its successors or assigns for the benefit of former directors and officers, whichever period is longer; and (h) For 36 months following the CIC Date, the Corporation shall continue to provide the Employee with a reasonable secretarial assistance, a voice mailbox, a laptop computer, an email account and a mail drop service. (i) The Corporation shall pay the Employee a lump sum payment in an amount equal to difference between the present values of (1) the Employee's retirement benefit under the Corporation Retirement Plan (the "Retirement Plan"), determined on the date of termination as if the Employee were credited with an additional three Years of Credited Service (as such term is defined in the Retirement Plan) and annual compensation continued at the same rate as in effect on the CIC Date under the Retirement Plan and (2) the Employee's retirement benefit under the Retirement Plan, determined on the date of termination based on the Employee's actual Years of Credited Service under the Retirement Plan. 3. The Corporation shall pay all legal fees and related expenses (including the costs of experts, evidence and counsel) incurred by the Employee as they become due as a result of the Employee seeking to obtain or enforce any right or benefit provided by this Agreement (including, but not limited to, any such fees and expenses incurred in connection with (i) the dispute and (ii) the Gross-Up Payment whether as a result of any applicable government taxing authority proceeding, audit or otherwise) or by any other plan or arrangement maintained by the Corporation under which the Employee is or may be entitled to receive benefits). 4. In the event that any benefits provided and/or payments made to or on behalf of Employee pursuant to this Section V (other than those payments pursuant to Section V paragraph 2 (a) and Section V paragraph 2 (b)) are deemed to be taxable to the Employee for federal or state income tax purposes, the Corporation agrees to tax protect such payments by grossing up said taxable amount, using the highest marginal Federal and State income tax rates in effect (including FICA and Medicare taxes) for that year and paying to the Employee such additional amounts. Said payment amounts shall be calculated quarterly (on a calendar-year basis) and paid to the Employee by the fifteenth day of the second month following the close of each quarter. Final adjustments, if any, will be made for each calendar year by March 15 of the following calendar year and paid to the Employee by that date. 5. (a) In the event it shall be determined that any payment (other than the payment provided for in this Section) or distribution of any type to or for the benefit of the Employee, by the Corporation, any of its affiliates, any person who acquires ownership or effective control of the Corporation or ownership of a substantial portion of the Corporation's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Employee shall be deemed to pay federal, state and local income taxes and employment taxes at the highest marginal rate of federal, state and local income taxation and employment taxation in the calendar year in which the Gross-Up Payment is to be made and/or the calendar year in which the CIC Date occurs, as applicable, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (b) All mathematical determinations, and all determinations as to whether any of the Total Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this subsection, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this subsection shall be made by an independent accounting firm selected by the Employee from among the four largest accounting firms in the United States (the "Accounting Firm"), which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Corporation and the Employee by no later than ten days following the CIC Date, if applicable, or such earlier time as is requested by the Corporation or the Employee. If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee and the Corporation with an opinion reasonably acceptable to the Employee and the Corporation that no Excise Tax is payable (including the reasons therefor) and that he has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Employee within ten (10) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Corporation or the Employee. Any determination by the Accounting Firm shall be binding upon the Corporation and the Employee, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Corporation should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Corporation which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by the Employee as a result of such Underpayment) shall be promptly paid by the Corporation to or for the benefit of the Employee. In the case of an Overpayment, the Employee shall, at the direction and expense of the Corporation, take such steps as are reasonably necessary (including, if reasonable, the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Corporation, and otherwise reasonably cooperate with the Corporation to correct such Overpayment, provided, however, that (i) Employee shall not in any event be obligated to return to the Corporation an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent to make the Employee whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Employee repaying to the Corporation an amount which is less than the Overpayment. The fees and expenses of the Accounting Firm shall be paid by the Corporation. 6. In the event that the Corporation determines that the payment of any amounts under this Agreement prior to January 1, 2007 would result in the imposition of an excise tax under Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and an independent accounting firm selected by the Employee from among the four largest accounting firms in the United States agrees with such determination by the Corporation, the payment of such amounts shall be delayed until the first business day after December 31, 2006 or the CIC Date, whichever is later. VI. NON-COMPETITION 1. Employer desires Employee to agree not to compete with the Corporation in the event of the termination of employment following a Change in Control or in Anticipation of a Change In Control. Employer is not willing to enter into this Agreement without such a covenant. As additional consideration for the agreement of Employer to make payments to or otherwise compensate Employee under this Agreement, Employer has required Employee to give a Non-Competition Covenant. Employer may not waive the non-competition obligations in this Section and be relieved of any of its other obligations under this Agreement. 2. In the event of a Change in Control or in Anticipation of a Change in Control, for the eighteen-month period following the termination of Employee's employment with the Corporation for any reason, Employee shall not, without the prior written consent of the Board of Directors of the Corporation, which consent may be withheld at the sole, absolute and uncontrolled discretion of such Board of Directors, engage or participate in, assist or have an interest in, whether as an officer, director, partner, owner, employee or otherwise, the operation, management or conduct of any business or enterprise that engages in the cotton seed breeding, production and marketing process in the same geographical area with any line of business in which the Corporation is now engaged. 3. Nothing in this Section shall prohibit Employee from acquiring or holding, for investment purposes only, securities or ownership interest of any entity which may compete directly or indirectly with the Corporation. 4. Nothing in this Section shall prohibit the Employee from seeking or securing employment with a corporation which has a subsidiary or affiliate whose business activities include cotton seed breeding, production and marketing so long as Employee's job duties and responsibilities do not require or allow the Employee to directly engage in any activities which would be in violation of this Section, and so long as he does not violate any of his confidentiality obligations to the Corporation as referred to in Section VIII. 5. In the event of a breach of this Agreement by Employee, Employer may seek injunctive relief to prohibit the Employee from engaging in prohibited competition and/or Employer may initiate legal proceedings to collect actual damages to Employer resulting from such breach. A breach by Employee shall not allow Employer to terminate its obligations to Employee under the other provisions of this Agreement. VII. VII. DEFINITIONS 1. As used herein the term "Change in Control" shall mean the occurrence of any of the following: (a) An acquisition (other than directly from the Company) by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the then outstanding common shares ("Shares") or the combined voting power of the Company's then outstanding voting securities; provided, however, in determining whether a Change in Control has occurred pursuant to this Section, Shares or voting securities which are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company (for purposes of this definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or (iii) any Person in connection with a "Non-Control Transaction" (as hereinafter defined); (b) The individuals who on August 1, 2006 are members of the Board (the "Incumbent Board"), cease for any reason to constitute at least two-thirds of the members of the Board; provided, however, that if the election, or nomination for election by the Company's common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan, be considered as a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened "Election Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a "Proxy Contest") including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or (c) The consummation of: (1) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued, unless such merger, consolidation or reorganization is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued where: (A) the stockholders of the Company, immediately before such merger, consolidation or reorganization, own directly or indirectly immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the "Surviving Corporation") in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation or reorganization, (B) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two-thirds of the members of the board of directors of the Surviving Corporation, or a corporation beneficially directly or indirectly owning a majority of the voting securities of the Surviving Corporation, and (C) no Person other than (1) the Company, (2) any Subsidiary, (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such merger, consolidation or reorganization, was maintained by the Company or any Subsidiary, or (4) any Person who, immediately prior to such merger, consolidation or reorganization had Beneficial Ownership of twenty percent (20%) or more of the then outstanding voting securities or Shares, has Beneficial Ownership of twenty percent (20%) or more of the combined voting power of the Surviving Corporation's then outstanding voting securities or its common stock. (2) A complete liquidation or dissolution of the Company; or (3) The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary or the distribution to the Company's stockholders of the stock of a Subsidiary or any other assets). Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the "Subject Person") acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or voting securities as a result of the acquisition of Shares or voting securities by the Company which, by reducing the number of Shares or voting securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or voting securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or voting securities which increases the percentage of the then outstanding Shares or voting securities Beneficially Owned by the Subject Person, then a Change in Control shall occur. 2. "Anticipation of a Change in Control" means any action taken during the twelve-month period prior to a Change in Control. Specifically, the termination of the Employee, other than for cause as defined below, during the twelve-month period prior to a Change in Control will be conclusively presumed to constitute a termination of the Employee in Anticipation of a Change in Control. 3. "Cause", as the term is used with respect to the termination of the Employee for cause, shall mean a conviction of the Employee of a felony involving moral turpitude. 4. "Confidential Information" means (a) all technical and business information of the Corporation, whether patentable or not, which is of a confidential, trade secret and/or proprietary character and that is either developed by the Employee (alone or with others) or to which the Employee has had access during his employment, (b) all confidential evaluations, and (c) the confidential use or non-use by the Corporation of technical or business information in the public domain. VIII. CONFIDENTIALITY 1. (a) The Employee shall use his best efforts and diligence both during and after employment by the Corporation to protect the confidential, trade secret and/or proprietary character of all Confidential Information. The Employee shall not, directly or indirectly, use (for the Employee or another) or disclose any Confidential Information, for so long as it shall remain proprietary or protectible as confidential or trade secret information, except as may be necessary for the performance of the Employee's duties with the Corporation. The Employee shall promptly deliver to the Corporation, at the termination of the Employee's employment, or at any other time at the Corporation's request, without retaining any copies, all documents and other material in the Employee's possession relating, directly or indirectly, to any Confidential Information. (b) Each of the Employee's obligations in this Section VIII shall also apply to the confidential, trade secret and proprietary information learned or acquired by the Employee during his employment from others with whom the Corporation has a business relationship. The Employee understands that he is not to disclose to the Corporation, or use for its benefit, any of the confidential, trade secret or proprietary information of others, including any of the Employee's former employers. (c) In no event shall an asserted violation of the provisions of this Section VIII constitute a basis for deferring or withholding any amounts otherwise payable to the Employee under this Agreement. IX. MISCELLANEOUS PROVISIONS 1. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representations of any kind preceding the date of this Agreement and shall not be binding upon either party, except to the extent incorporated in this Agreement. 2. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing and signed by the party to be charged. 3. It is agreed that this Agreement shall be governed by construed and enforced in accordance with the laws of the State of Delaware. 4. Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective addresses of the parties as set forth in the beginning of this Agreement. Either party may give written notice to the other that the addresses to be utilized for notice purposes have been altered. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. Delta & Pine Land Company a Delaware corporation --------------------------------- W.T. Jagodinski By: ------------------------------- Name: Kenneth Avery Title: Vice President - Finance, Treasurer and Assistant Secretary STATE OF _____________ COUNTY OF _____________ Personally appeared before me, W.T. Jagodinski, with whom I am personally acquainted and who acknowledged that he executed the within instrument for the purposes therein contained. Witness my hand, at office, this ___ day of _____________, 2006. (SEAL) --------------------------------- Notary Public My commission expires: - ---------------------------- STATE OF _____________ COUNTY OF _____________ Before me, a Notary Public in and for said state and county, duly commissioned and qualified, personally appeared ______________ with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who, upon oath, acknowledged himself to be _______________ of Delta & Pine Land Company, the within named bargainor, a Delaware corporation, and that he executed the foregoing instrument for the purpose therein. contained, by signing the name of the corporation by himself as ___________________. Witness my hand, at office this ______ day of _______________ 2006. (SEAL) --------------------------------- Notary Public My commission expires: - ---------------------------- EX-99.2 7 ex99_2.txt EXHIBIT 99.2 SEVERANCE PROTECTION AGREEMENT THIS AGREEMENT made as of the ____ day of August, 2006 (the "Effective Date"), by and between Delta & Pine Land Company (the "Company") and Kenneth Avery (the "Executive"). WHEREAS, the Board of Directors of the Company (the "Board") recognizes that the possibility of a Change in Control (as hereinafter defined) exists and that the threat or the occurrence of a Change in Control can result in significant distractions of its key management personnel because of the uncertainties inherent in such a situation; WHEREAS, the Board has determined that it is essential and in the best interest of the Company and its stockholders to retain the services of the Executive in the event of the possibility of a Change in Control and to ensure his continued dedication and efforts in such event without undue concern for his personal financial and employment security; and WHEREAS, in order to induce the Executive to remain in the employ of the Company, in light of a possible Change in Control, the Company desires to enter into this Agreement with the Executive to provide the Executive with certain benefits. NOW, THEREFORE, in consideration of the respective agreements of the parties contained herein, it is agreed as follows: 1. Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect until December 31, 2008; provided, however, that on December 31, 2008 and on each anniversary thereof, the term of this Agreement shall be automatically extended for one year unless either the Company or the Executive shall have given six months written notice to the other prior thereto that the term of this Agreement shall not be so extended. 2. Definitions. 2.1. Accrued Compensation. For purposes of this Agreement, "Accrued Compensation" shall mean an amount which shall include all amounts earned or accrued through the "CIC Date" (as hereinafter defined) but not paid as of the CIC Date including (a) base salary, (b) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company during the period ending on the CIC Date, (c) vacation and sick leave pay (to the extent provided by Company policy or applicable law), and (d) bonuses and incentive compensation (other than the "Pro Rata Bonus" (as hereinafter defined)). 2.2. Base Amount. For purposes of this Agreement, "Base Amount" shall mean the Executive's annual base salary at the rate in effect immediately prior to the Change in Control and shall include all amounts of his base salary that are deferred under the qualified and non-qualified employee benefit plans of the Company or any other agreement or arrangement. 2.3. Bonus Amount. For purposes of this Agreement, "Bonus Amount" shall mean the Executive's highest annual bonus earned (whether paid or unpaid) during any one of the last five fiscal years that ended prior to the CIC Date (or, in each case, such lesser period for which annual bonuses were paid or payable to the Executive). 2.4. Change in Control. For purposes of this Agreement, a "Change in Control" shall mean the occurrence of any of the following: (a) An acquisition (other than directly from the Company) by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the then outstanding common shares ("Shares") or the combined voting power of the Company's then outstanding voting securities; provided, however, in determining whether a Change in Control has occurred pursuant to this Section, Shares or voting securities which are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company (for purposes of this definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or (iii) any Person in connection with a "Non-Control Transaction" (as hereinafter defined); (b) The individuals who on August 1, 2006 are members of the Board (the "Incumbent Board"), cease for any reason to constitute at least two-thirds of the members of the Board; provided, however, that if the election, or nomination for election by the Company's common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan, be considered as a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened "Election Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a "Proxy Contest") including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or (c) The consummation of: (1) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued, unless such merger, consolidation or reorganization is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued where: (A) the stockholders of the Company, immediately before such merger, consolidation or reorganization, own directly or indirectly immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the "Surviving Corporation") in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation or reorganization, (B) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two-thirds of the members of the board of directors of the Surviving Corporation, or a corporation beneficially directly or indirectly owning a majority of the voting securities of the Surviving Corporation, and (C) no Person other than (1) the Company, (2) any Subsidiary, (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such merger, consolidation or reorganization, was maintained by the Company or any Subsidiary, or (4) any Person who, immediately prior to such merger, consolidation or reorganization had Beneficial Ownership of twenty percent (20%) or more of the then outstanding voting securities or Shares, has Beneficial Ownership of twenty percent (20%) or more of the combined voting power of the Surviving Corporation's then outstanding voting securities or its common stock. (2) A complete liquidation or dissolution of the Company; or (3) The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary or the distribution to the Company's stockholders of the stock of a Subsidiary or any other assets). Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the "Subject Person") acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or voting securities as a result of the acquisition of Shares or voting securities by the Company which, by reducing the number of Shares or voting securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or voting securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or voting securities which increases the percentage of the then outstanding Shares or voting securities Beneficially Owned by the Subject Person, then a Change in Control shall occur. 2.5. CIC Date. For purposes of this Agreement, "CIC Date" shall mean the date on which a Change in Control is consummated. 2.6. 2.7. Company. For purposes of this Agreement, the "Company" shall include the Company's "Successors and Assigns" (as hereinafter defined). 2.8. Confidential Information. For purposes of this Agreement means (a) all technical and business information of the Company, whether patentable or not, which is of a confidential, trade secret and/or proprietary character and that is either developed by the Executive (alone or with others) or to which the Executive has had access during his employment, (b) all confidential evaluations, and (c) the confidential use or non-use by the Company of technical or business information in the public domain. 2.9. Pro Rata Bonus. For purposes of this Agreement, "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount multiplied by a fraction the numerator of which is the number of days in the Company's fiscal year in which Executive's employment terminates through the CIC Date and the denominator of which is 365. 2.10. Successors and Assigns. For purposes of this Agreement, "Successors and Assigns" shall mean a corporation or other entity acquiring all or substantially all the assets and business of the Company whether by operation of law or otherwise, and any affiliate of such Successors and Assigns. 3. Change In Control. 3.1. If, during the term of this Agreement, a Change in Control occurs and (i) the Executive is employed on the CIC Date or (ii) the Executive's employment has been terminated prior to a Change in Control but the Executive reasonably demonstrates that the termination (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, the Executive shall be entitled to the following compensation and benefits: (a) the Company shall pay the Executive all Accrued Compensation and a Pro-Rata Bonus. (b) the Company shall pay the Executive, in lieu of any further compensation for periods subsequent to the CIC Date, in a single payment an amount in cash equal to three times the sum of (1) the Base Amount and (2) the Bonus Amount. (c) the Company shall pay all premiums on behalf of and at no additional cost to the Executive, for the benefit of the Executive and his spouse and any dependents, for 36 months from the CIC Date (regardless of whether the employment of the Executive is terminated for any reason), on all employee benefit programs and arrangements, including but not limited to health insurance, including employee medical plan benefits, group life insurance, individual life insurance coverage, accidental death and dismemberment coverage, long term disability coverage, and other fringe benefits or benefit plans generally afforded other executive officers of the Company. If any such coverage cannot be maintained because of requirements of the insurance or other companies providing such benefits, the Company shall provide and pay for alternative coverage providing essentially identical benefits at no additional cost to the Executive. In the event that the Executive's employment is terminated for any reason during the above period, the remaining portion of such period is to be in addition to that period of time that the Executive may elect COBRA coverage under such applicable benefit plans. In this regard, it is the specific agreement of the parties that, if the Executive's employment has terminated, those benefits which are typically available under COBRA coverage, at the expense of the Executive, will be available to the Executive at his expense for a period of 18 months following the expiration of the 36 months listed above, even though COBRA coverage might otherwise be unavailable as provided by law. (d) for a period of at least 36 months following the CIC Date, the Company shall continue to make available, at its expense, a company vehicle of the make and model to which the Executive is entitled in accordance with the vehicle policy in effect as of the date of the Change in Control. (e) The Company shall pay the Executive a lump sum payment in an amount equal to difference between the present values of (1) the Executive's retirement benefit under the Company Retirement Plan (the "Retirement Plan"), determined on the date of termination as if the Executive were credited with an additional three Years of Credited Service (as such term is defined in the Retirement Plan) and annual compensation continued at the same rate as in effect on the CIC Date under the Retirement Plan and (2) the Executive's retirement benefit under the Retirement Plan, determined on the date of termination based on the Executive's actual Years of Credited Service under the Retirement Plan. (f) The Executive will likely be required to employ a reputable national accounting firm to assist and advise him with respect to his finances following a Change in Control. To compensate the Executive for the costs which he will likely incur, the Company will pay to the Executive at the CIC Date an amount equal to $30,000. (g) the Company shall continue to provide the Executive with a reasonable secretarial assistance, a voice mailbox, a laptop computer, an email account and a mail drop service for 36 months following the CIC Date, so long as the Executive is not employed by any entity other than the Company and its affiliates. 3.2. The amounts provided for in Sections 3.1(a), (b), and (e) shall be paid in a single lump sum cash payment within five days after the CIC Date. 3.3. The Executive's entitlement to any other compensation or benefits or any indemnification shall be determined in accordance with the Company's employee benefit plans and other applicable programs, policies and practices or any indemnification agreement then in effect. 4. Treatment of Equity Awards. Nothing in this Agreement shall amend or modify the terms of any equity compensation award or grant document that the Executive holds or to which the Executive is a party. 5. Excise Tax Limitation. 5.1. Excise Tax Gross-Up Payment. In the event it shall be determined that any payment (other than the payment provided for in this Section) or distribution of any type to or for the benefit of the Executive, by the Company, any of its affiliates, any Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal, state and local income taxes and employment taxes at the highest marginal rate of federal, state and local income taxation and employment taxation in the calendar year in which the Gross-Up Payment is to be made and/or the calendar year in which the CIC Date occurs, as applicable, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. 5.2. Determination By Accountant. All mathematical determinations, and determinations as to whether any of the Total Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this Subsection, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this Subsection shall be made by an independent accounting firm selected by the Executive from among the four largest accounting firms in the United States (the "Accounting Firm"), which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Executive by no later than ten days following the CIC Date, if applicable, or such earlier time as is requested by the Company or the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive and the Company that no Excise Tax is payable (including the reasons therefor) and that he has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within ten (10) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company or the Executive. Any determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by the Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including, if reasonable, the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company an amount which is less than the Overpayment. The fees and expenses of the Accounting Firm shall be paid by the Company. 6. Non-Competition Covenant. 6.1. The Company desires the Executive to agree not to compete with the Company in the event of the Executive's termination of employment following a Change in Control. The Company is not willing to enter into this Agreement without such a covenant. As additional consideration for the agreement of the Company to make payments to or otherwise compensate the Executive under this Agreement, the Company has required the Executive to give a Non-Competition Covenant. The Company may not waive the non-competition obligations in this Section and be relieved of any of its other obligations under this Agreement. 6.2. In the event of a Change in Control, for the eighteen-month period following the termination of the Executive's employment with the Company for any reason, the Executive shall not, without the prior written consent of the Board, which consent may be withheld at the sole, absolute and uncontrolled discretion of such Board, engage or participate in, assist or have an interest in, whether as an officer, director, partner, owner, employee or otherwise, the operation, management or conduct of any business or enterprise that engages in the cotton seed breeding, production and marketing process in the same geographical area with any line of business in which the Company is now engaged. 6.3. Nothing in this Section shall prohibit the Executive from acquiring or holding, for investment purposes only, securities or ownership interest of any entity which may compete directly or indirectly with the Company. 6.4. Nothing in this Section shall prohibit the Executive from seeking or securing employment with a corporation which has a subsidiary or affiliate whose business activities include cotton seed breeding, production and marketing so long as the Executive's job duties and responsibilities do not require or allow the Executive to directly engage in any activities which would be in violation of this Section, and so long as he does not violate any of his confidentiality obligations to the Company. 6.5. In the event of a breach of this Agreement by the Executive, the Company may seek injunctive relief to prohibit the Executive from engaging in prohibited competition and/or the Company may initiate legal proceedings to collect actual damages to the Company resulting from such breach. A breach by the Executive shall not allow the Company to terminate its obligations to the Executive under the other provisions of this Agreement. 7. Confidentiality. 7.1. The Executive shall use his best efforts and diligence both during and after employment by the Company to protect the confidential, trade secret and/or proprietary character of all Confidential Information. The Executive shall not, directly or indirectly, use (for the Executive or another) or disclose any Confidential Information, for so long as it shall remain proprietary or protectible as confidential or trade secret information, except as may be necessary for the performance of the Executive's duties with the Company. The Executive shall promptly deliver to the Company, at the termination of the Executive's employment, or at any other time at the Company's request, without retaining any copies, all documents and other material in the Executive's possession relating, directly or indirectly, to any Confidential Information. 7.2. Each of the Executive's obligations in this Section 7 shall also apply to the confidential, trade secret and proprietary information learned or acquired by the Executive during his employment from others with whom the Company has a business relationship. The Executive understands that he is not to disclose to the Company, or use for its benefit, any of the confidential, trade secret or proprietary information of others, including any of the Executive's former employers. 7.3. In no event shall an asserted violation of the provisions of this Section 7 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement. 8. Successors; Binding Agreement. 8.1. This Agreement shall be binding upon and shall inure to the benefit of the Company, its Successors and Assigns, and the Company shall require any Successors and Assigns to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place. 8.2. Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Executive, his beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal personal representative. 9. Fees and Expenses. The Company shall pay all legal fees and related expenses (including the costs of experts, evidence and counsel) incurred by the Executive as they become due as a result of the Executive seeking to obtain or enforce any right or benefit provided by this Agreement (including, but not limited to, any such fees and expenses incurred in connection with (i) the dispute and (ii) the Gross-Up Payment whether as a result of any applicable government taxing authority proceeding, audit or otherwise) or by any other plan or arrangement maintained by the Company under which the Executive is or may be entitled to receive benefits). 10. Notice. For the purposes of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or sent by certified mail, return receipt requested, postage prepaid, by overnight courier or by facsimile, addressed to the respective addresses and facsimile numbers last given by each party to the other, provided that all notices to the Company shall be directed to the attention of the Board with a copy to the Secretary of the Company. All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt. 11. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive's continuing or future participation in any benefit, bonus, incentive or other plan or program provided by the Company (except for any severance or termination policies, plans, programs or practices) and for which the Executive may qualify, nor shall anything herein limit or reduce such rights as the Executive may have under any other agreements with the Company (except for any severance or termination agreement). Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan or program of the Company shall be payable in accordance with such plan or program, except as explicitly modified by this Agreement. 12. No Guaranteed Employment. The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is "at will" and may be terminated by either the Executive or the Company at any time. 13. Settlement of Claims. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against the Executive or others. 14. Mutual Non-Disparagement. The Executive agrees that it will not make or publish any statement critical of the Company, its affiliates and their respective executive officers and directors, or in any way adversely affecting or otherwise maligning the business or reputation of any member of the Company, its affiliates and subsidiaries and their respective officers, directors and employees. The Company, its affiliates and subsidiaries agree and the Company shall use its best efforts to cause their respective executive officers and directors to agree, that they will not make or publish any statement critical of the Executive, or in any way adversely affecting or otherwise maligning the Executive's reputation. 15. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. 16. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without giving effect to the conflict of laws principles thereof. Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of Delaware. 17. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. 18. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has executed this Agreement as of the day and year first above written. ATTEST: By: ------------------------------- Name: W.T. Jagodinski Title: President and Chief Executive Officer By: ------------------------------- Kenneth Avery EX-99.3 8 ex99_3.txt EXHIBIT 99.3 SEVERANCE PROTECTION AGREEMENT THIS AGREEMENT made as of the day of August, 2006 (the "Effective Date"), by and between Delta & Pine Land Company (the "Company") and R.D. Greene (the "Executive"). WHEREAS, the Board of Directors of the Company (the "Board") recognizes that the possibility of a Change in Control (as hereinafter defined) exists and that the threat or the occurrence of a Change in Control can result in significant distractions of its key management personnel because of the uncertainties inherent in such a situation; WHEREAS, the Board has determined that it is essential and in the best interest of the Company and its stockholders to retain the services of the Executive in the event of the possibility of a Change in Control and to ensure his continued dedication and efforts in such event without undue concern for his personal financial and employment security; and WHEREAS, in order to induce the Executive to remain in the employ of the Company, in light of a possible Change in Control, the Company desires to enter into this Agreement with the Executive to provide the Executive with certain benefits. NOW, THEREFORE, in consideration of the respective agreements of the parties contained herein, it is agreed as follows: 1. Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect until December 31, 2008; provided, however, that on December 31, 2008 and on each anniversary thereof, the term of this Agreement shall be automatically extended for one year unless either the Company or the Executive shall have given six months written notice to the other prior thereto that the term of this Agreement shall not be so extended. 2. Definitions. 2.1. Accrued Compensation. For purposes of this Agreement, "Accrued Compensation" shall mean an amount which shall include all amounts earned or accrued through the "CIC Date" (as hereinafter defined) but not paid as of the CIC Date including (a) base salary, (b) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company during the period ending on the CIC Date, (c) vacation and sick leave pay (to the extent provided by Company policy or applicable law), and (d) bonuses and incentive compensation (other than the "Pro Rata Bonus" (as hereinafter defined)). 2.2. Base Amount. For purposes of this Agreement, "Base Amount" shall mean the Executive's annual base salary at the rate in effect immediately prior to the Change in Control and shall include all amounts of his base salary that are deferred under the qualified and non-qualified employee benefit plans of the Company or any other agreement or arrangement. 2.3. Bonus Amount. For purposes of this Agreement, "Bonus Amount" shall mean the Executive's highest annual bonus earned (whether paid or unpaid) during any one of the last five fiscal years that ended prior to the CIC Date (or, in each case, such lesser period for which annual bonuses were paid or payable to the Executive). 2.4. Change in Control. For purposes of this Agreement, a "Change in Control" shall mean the occurrence of any of the following: (a) An acquisition (other than directly from the Company) by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the then outstanding common shares ("Shares") or the combined voting power of the Company's then outstanding voting securities; provided, however, in determining whether a Change in Control has occurred pursuant to this Section, Shares or voting securities which are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company (for purposes of this definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or (iii) any Person in connection with a "Non-Control Transaction" (as hereinafter defined); (b) The individuals who on August 1, 2006 are members of the Board (the "Incumbent Board"), cease for any reason to constitute at least two-thirds of the members of the Board; provided, however, that if the election, or nomination for election by the Company's common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan, be considered as a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened "Election Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a "Proxy Contest") including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or (c) The consummation of: (1) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued, unless such merger, consolidation or reorganization is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued where: (A) the stockholders of the Company, immediately before such merger, consolidation or reorganization, own directly or indirectly immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the "Surviving Corporation") in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation or reorganization, (B) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two-thirds of the members of the board of directors of the Surviving Corporation, or a corporation beneficially directly or indirectly owning a majority of the voting securities of the Surviving Corporation, and (C) no Person other than (1) the Company, (2) any Subsidiary, (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such merger, consolidation or reorganization, was maintained by the Company or any Subsidiary, or (4) any Person who, immediately prior to such merger, consolidation or reorganization had Beneficial Ownership of twenty percent (20%) or more of the then outstanding voting securities or Shares, has Beneficial Ownership of twenty percent (20%) or more of the combined voting power of the Surviving Corporation's then outstanding voting securities or its common stock. (2) A complete liquidation or dissolution of the Company; or (3) The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary or the distribution to the Company's stockholders of the stock of a Subsidiary or any other assets). Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the "Subject Person") acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or voting securities as a result of the acquisition of Shares or voting securities by the Company which, by reducing the number of Shares or voting securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or voting securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or voting securities which increases the percentage of the then outstanding Shares or voting securities Beneficially Owned by the Subject Person, then a Change in Control shall occur. 2.5. CIC Date. For purposes of this Agreement, "CIC Date" shall mean the date on which a Change in Control is consummated. 2.6. 2.7. Company. For purposes of this Agreement, the "Company" shall include the Company's "Successors and Assigns" (as hereinafter defined). 2.8. Confidential Information. For purposes of this Agreement means (a) all technical and business information of the Company, whether patentable or not, which is of a confidential, trade secret and/or proprietary character and that is either developed by the Executive (alone or with others) or to which the Executive has had access during his employment, (b) all confidential evaluations, and (c) the confidential use or non-use by the Company of technical or business information in the public domain. 2.9. Pro Rata Bonus. For purposes of this Agreement, "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount multiplied by a fraction the numerator of which is the number of days in the Company's fiscal year in which Executive's employment terminates through the CIC Date and the denominator of which is 365. 2.10. Successors and Assigns. For purposes of this Agreement, "Successors and Assigns" shall mean a corporation or other entity acquiring all or substantially all the assets and business of the Company whether by operation of law or otherwise, and any affiliate of such Successors and Assigns. 3. Change In Control. 3.1. If, during the term of this Agreement, a Change in Control occurs and (i) the Executive is employed on the CIC Date or (ii) the Executive's employment has been terminated prior to a Change in Control but the Executive reasonably demonstrates that the termination (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, the Executive shall be entitled to the following compensation and benefits: (a) the Company shall pay the Executive all Accrued Compensation and a Pro-Rata Bonus. (b) the Company shall pay the Executive, in lieu of any further compensation for periods subsequent to the CIC Date, in a single payment an amount in cash equal to three times the sum of (1) the Base Amount and (2) the Bonus Amount. (c) the Company shall pay all premiums on behalf of and at no additional cost to the Executive, for the benefit of the Executive and his spouse and any dependents, for 36 months from the CIC Date (regardless of whether the employment of the Executive is terminated for any reason), on all employee benefit programs and arrangements, including but not limited to health insurance, including employee medical plan benefits, group life insurance, individual life insurance coverage, accidental death and dismemberment coverage, long term disability coverage, and other fringe benefits or benefit plans generally afforded other executive officers of the Company. If any such coverage cannot be maintained because of requirements of the insurance or other companies providing such benefits, the Company shall provide and pay for alternative coverage providing essentially identical benefits at no additional cost to the Executive. In the event that the Executive's employment is terminated for any reason during the above period, the remaining portion of such period is to be in addition to that period of time that the Executive may elect COBRA coverage under such applicable benefit plans. In this regard, it is the specific agreement of the parties that, if the Executive's employment has terminated, those benefits which are typically available under COBRA coverage, at the expense of the Executive, will be available to the Executive at his expense for a period of 18 months following the expiration of the 36 months listed above, even though COBRA coverage might otherwise be unavailable as provided by law. (d) for a period of at least 36 months following the CIC Date, the Company shall continue to make available, at its expense, a company vehicle of the make and model to which the Executive is entitled in accordance with the vehicle policy in effect as of the date of the Change in Control. (e) The Company shall pay the Executive a lump sum payment in an amount equal to difference between the present values of (1) the Executive's retirement benefit under the Company Retirement Plan (the "Retirement Plan"), determined on the date of termination as if the Executive were credited with an additional three Years of Credited Service (as such term is defined in the Retirement Plan) and annual compensation continued at the same rate as in effect on the CIC Date under the Retirement Plan and (2) the Executive's retirement benefit under the Retirement Plan, determined on the date of termination based on the Executive's actual Years of Credited Service under the Retirement Plan. (f) The Executive will likely be required to employ a reputable national accounting firm to assist and advise him with respect to his finances following a Change in Control. To compensate the Executive for the costs which he will likely incur, the Company will pay to the Executive at the CIC Date an amount equal to 30% of the sum of the Base Amount and the Bonus Amount. (g) the Company shall continue to provide the Executive with a reasonable secretarial assistance, a voice mailbox, a laptop computer, an email account and a mail drop service for 36 months following the CIC Date, so long as the Executive is not employed by any entity other than the Company and its affiliates. 3.2. The amounts provided for in Sections 3.1(a), (b), and (e) shall be paid in a single lump sum cash payment within five days after the CIC Date. 3.3. The Executive's entitlement to any other compensation or benefits or any indemnification shall be determined in accordance with the Company's employee benefit plans and other applicable programs, policies and practices or any indemnification agreement then in effect. 4. Treatment of Equity Awards. Nothing in this Agreement shall amend or modify the terms of any equity compensation award or grant document that the Executive holds or to which the Executive is a party. 5. Income and Excise Tax Limitation. 5.1. Income Tax Gross-Up Payment. In the event that any payments made to the Executive pursuant to Section 3.1(f) are deemed to be taxable to the Executive for federal or state income tax purposes, the Company agrees to tax protect such payments by grossing up said taxable amount, using the highest marginal federal and state income tax rates in effect (including FICA and Medicare taxes) for that year and paying to the Executive such additional amounts. Said payment amounts shall be calculated quarterly (on a calendar-year basis) and paid to the Executive by the fifteenth day of the second month following the close of each quarter. 5.2. Excise Tax Gross-Up Payment. (a) In the event it shall be determined that any payment (other than the payment provided for in this Section) or distribution of any type to or for the benefit of the Executive, by the Company, any of its affiliates, any Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal, state and local income taxes and employment taxes at the highest marginal rate of federal, state and local income taxation and employment taxation in the calendar year in which the Gross-Up Payment is to be made and/or the calendar year in which the CIC Date occurs, as applicable, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (b) Determination By Accountant. All mathematical determinations, and determinations as to whether any of the Total Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this Subsection, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this Subsection shall be made by an independent accounting firm selected by the Executive from among the four largest accounting firms in the United States (the "Accounting Firm"), which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Executive by no later than ten days following the CIC Date, if applicable, or such earlier time as is requested by the Company or the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive and the Company that no Excise Tax is payable (including the reasons therefor) and that he has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within ten (10) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company or the Executive. Any determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by the Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including, if reasonable, the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company an amount which is less than the Overpayment. The fees and expenses of the Accounting Firm shall be paid by the Company. 6. Non-Competition Covenant. 6.1. The Company desires the Executive to agree not to compete with the Company in the event of the Executive's termination of employment following a Change in Control. The Company is not willing to enter into this Agreement without such a covenant. As additional consideration for the agreement of the Company to make payments to or otherwise compensate the Executive under this Agreement, the Company has required the Executive to give a Non-Competition Covenant. The Company may not waive the non-competition obligations in this Section and be relieved of any of its other obligations under this Agreement. 6.2. In the event of a Change in Control, for the eighteen-month period following the termination of the Executive's employment with the Company for any reason, the Executive shall not, without the prior written consent of the Board, which consent may be withheld at the sole, absolute and uncontrolled discretion of such Board, engage or participate in, assist or have an interest in, whether as an officer, director, partner, owner, employee or otherwise, the operation, management or conduct of any business or enterprise that engages in the cotton seed breeding, production and marketing process in the same geographical area with any line of business in which the Company is now engaged. 6.3. Nothing in this Section shall prohibit the Executive from acquiring or holding, for investment purposes only, securities or ownership interest of any entity which may compete directly or indirectly with the Company. 6.4. Nothing in this Section shall prohibit the Executive from seeking or securing employment with a corporation which has a subsidiary or affiliate whose business activities include cotton seed breeding, production and marketing so long as the Executive's job duties and responsibilities do not require or allow the Executive to directly engage in any activities which would be in violation of this Section, and so long as he does not violate any of his confidentiality obligations to the Company. 6.5. In the event of a breach of this Agreement by the Executive, the Company may seek injunctive relief to prohibit the Executive from engaging in prohibited competition and/or the Company may initiate legal proceedings to collect actual damages to the Company resulting from such breach. A breach by the Executive shall not allow the Company to terminate its obligations to the Executive under the other provisions of this Agreement. 7. Confidentiality. 7.1. The Executive shall use his best efforts and diligence both during and after employment by the Company to protect the confidential, trade secret and/or proprietary character of all Confidential Information. The Executive shall not, directly or indirectly, use (for the Executive or another) or disclose any Confidential Information, for so long as it shall remain proprietary or protectible as confidential or trade secret information, except as may be necessary for the performance of the Executive's duties with the Company. The Executive shall promptly deliver to the Company, at the termination of the Executive's employment, or at any other time at the Company's request, without retaining any copies, all documents and other material in the Executive's possession relating, directly or indirectly, to any Confidential Information. 7.2. Each of the Executive's obligations in this Section 7 shall also apply to the confidential, trade secret and proprietary information learned or acquired by the Executive during his employment from others with whom the Company has a business relationship. The Executive understands that he is not to disclose to the Company, or use for its benefit, any of the confidential, trade secret or proprietary information of others, including any of the Executive's former employers. 7.3. In no event shall an asserted violation of the provisions of this Section 7 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement. 8. Successors; Binding Agreement. 8.1. This Agreement shall be binding upon and shall inure to the benefit of the Company, its Successors and Assigns, and the Company shall require any Successors and Assigns to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place. 8.2. Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Executive, his beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal personal representative. 9. Fees and Expenses. The Company shall pay all legal fees and related expenses (including the costs of experts, evidence and counsel) incurred by the Executive as they become due as a result of the Executive seeking to obtain or enforce any right or benefit provided by this Agreement (including, but not limited to, any such fees and expenses incurred in connection with (i) the dispute and (ii) the Gross-Up Payment whether as a result of any applicable government taxing authority proceeding, audit or otherwise) or by any other plan or arrangement maintained by the Company under which the Executive is or may be entitled to receive benefits). 10. Notice. For the purposes of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or sent by certified mail, return receipt requested, postage prepaid, by overnight courier or by facsimile, addressed to the respective addresses and facsimile numbers last given by each party to the other, provided that all notices to the Company shall be directed to the attention of the Board with a copy to the Secretary of the Company. All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt. 11. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive's continuing or future participation in any benefit, bonus, incentive or other plan or program provided by the Company (except for any severance or termination policies, plans, programs or practices) and for which the Executive may qualify, nor shall anything herein limit or reduce such rights as the Executive may have under any other agreements with the Company (except for any severance or termination agreement). Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan or program of the Company shall be payable in accordance with such plan or program, except as explicitly modified by this Agreement. 12. No Guaranteed Employment. The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is "at will" and may be terminated by either the Executive or the Company at any time. 13. Settlement of Claims. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against the Executive or others. 14. Mutual Non-Disparagement. The Executive agrees that it will not make or publish any statement critical of the Company, its affiliates and their respective executive officers and directors, or in any way adversely affecting or otherwise maligning the business or reputation of any member of the Company, its affiliates and subsidiaries and their respective officers, directors and employees. The Company, its affiliates and subsidiaries agree and the Company shall use its best efforts to cause their respective executive officers and directors to agree, that they will not make or publish any statement critical of the Executive, or in any way adversely affecting or otherwise maligning the Executive's reputation. 15. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. 16. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without giving effect to the conflict of laws principles thereof. Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of Delaware. 17. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. 18. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has executed this Agreement as of the day and year first above written. ATTEST: By: ---------------------------------- Name: Kenneth Avery Title: Vice President - Finance, Treasurer and Assistant Secretary By: ---------------------------------- R.D. Greene EX-99.4 9 ex99_4.txt EXHIBIT 99.4 SEVERANCE PROTECTION AGREEMENT FOR EXECUTIVE OFFICERS THIS AGREEMENT made as of the day of August, 2006 (the "Effective Date"), by and between Delta & Pine Land Company (the "Company") and Charles R. Dismuke, Jr. (the "Executive"). WHEREAS, the Board of Directors of the Company (the "Board") recognizes that the possibility of a Change in Control (as hereinafter defined) exists and that the threat or the occurrence of a Change in Control can result in significant distractions of its key management personnel because of the uncertainties inherent in such a situation; WHEREAS, the Board has determined that it is essential and in the best interest of the Company and its stockholders to retain the services of the Executive in the event of the possibility of a Change in Control and to ensure his continued dedication and efforts in such event without undue concern for his personal financial and employment security; and WHEREAS, in order to induce the Executive to remain in the employ of the Company in light of a possible Change in Control, the Company desires to enter into this Agreement with the Executive to provide the Executive with certain benefits. NOW, THEREFORE, in consideration of the respective agreements of the parties contained herein, it is agreed as follows: 1. Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect until December 31, 2008; provided, however, that on December 31, 2008 and on each anniversary thereof, the term of this Agreement shall be automatically extended for one year unless either the Company or the Executive shall have given six months written notice to the other prior thereto that the term of this Agreement shall not be so extended; and provided, further, however, that notwithstanding any such notice by the Company not to extend, the term of this Agreement shall not expire prior to the expiration of 24 months after the occurrence of a Change in Control. 2. Definitions. 2.1. Accrued Compensation. For purposes of this Agreement, "Accrued Compensation" shall mean an amount which shall include all amounts earned or accrued through the "Termination Date" (as hereinafter defined) but not paid as of the Termination Date including (a) base salary, (b) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company during the period ending on the Termination Date, (c) vacation and sick leave pay (to the extent provided by Company policy or applicable law), and (d) bonuses and incentive compensation (other than the "Pro Rata Bonus" (as hereinafter defined)). 2.2. Base Amount. For purposes of this Agreement, "Base Amount" shall mean the greater of (a) the Executive's annual base salary at the rate in effect immediately prior to the Change in Control and (b) the Executive's annual base salary at the rate in effect on the Termination Date, and shall include all amounts of his base salary that are deferred under the qualified and non-qualified employee benefit plans of the Company or any other agreement or arrangement. 2.3. Bonus Amount. For purposes of this Agreement, "Bonus Amount" shall mean the Executive's highest annual bonus earned (whether paid or unpaid) during any one of the last five fiscal years that ended prior to the Change in Control (or, in each case, such lesser period for which annual bonuses were paid or payable to the Executive). 2.4. Cause. For purposes of this Agreement, a termination of employment is for "Cause" if the Executive has been convicted of a felony involving moral turpitude or the termination is evidenced by a resolution adopted in good faith by two-thirds of the Board that the Executive (a) intentionally and continually failed substantially to perform his reasonably assigned duties with the Company (other than a failure resulting from the Executive's incapacity due to physical or mental illness or from the Executive's assignment of duties that would constitute "Good Reason" as hereinafter defined) which failure continued for a period of at least thirty days after a written notice of demand for substantial performance has been delivered to the Executive specifying the manner in which the Executive has failed substantially to perform, or (b) intentionally engaged in conduct which is demonstrably and materially injurious to the Company; provided, however, that no termination of the Executive's employment shall be for Cause as set forth in clause (b) above until (x) there shall have been delivered to the Executive a copy of a written notice setting forth that the Executive was guilty of the conduct set forth in clause (b) and specifying the particulars thereof in detail, and (y) the Executive shall have been provided an opportunity to be heard in person by the Board (with the assistance of the Executive's counsel if the Executive so desires). Neither an act nor a failure to act, on the Executive's part shall be considered "intentional" unless the Executive has acted or failed to act with a lack of good faith and with a lack of reasonable belief that the Executive's action or failure to act was in the best interest of the Company. Notwithstanding anything contained in this Agreement to the contrary, no failure to perform by the Executive after a Notice of Termination is given by the Executive shall constitute Cause for purposes of this Agreement. 2.5. Change in Control. For purposes of this Agreement, a "Change in Control" shall mean the occurrence of any of the following: (a) An acquisition (other than directly from the Company) by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the then outstanding common shares ("Shares") or the combined voting power of the Company's then outstanding voting securities; provided, however, in determining whether a Change in Control has occurred pursuant to this Section, Shares or voting securities which are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company (for purposes of this definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or (iii) any Person in connection with a "Non-Control Transaction" (as hereinafter defined); (b) The individuals who on August 1, 2006 are members of the Board (the "Incumbent Board"), cease for any reason to constitute at least two-thirds of the members of the Board; provided, however, that if the election, or nomination for election by the Company's common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan, be considered as a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened "Election Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a "Proxy Contest") including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or (c) The consummation of: (1) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued, unless such merger, consolidation or reorganization is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued where: (A) the stockholders of the Company, immediately before such merger, consolidation or reorganization, own directly or indirectly immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the "Surviving Corporation") in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation or reorganization, (B) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two-thirds of the members of the board of directors of the Surviving Corporation, or a corporation beneficially directly or indirectly owning a majority of the voting securities of the Surviving Corporation, and (C) no Person other than (1) the Company, (2) any Subsidiary, (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such merger, consolidation or reorganization, was maintained by the Company or any Subsidiary, or (4) any Person who, immediately prior to such merger, consolidation or reorganization had Beneficial Ownership of twenty percent (20%) or more of the then outstanding voting securities or Shares, has Beneficial Ownership of twenty percent (20%) or more of the combined voting power of the Surviving Corporation's then outstanding voting securities or its common stock. (2) A complete liquidation or dissolution of the Company; or (3) The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary or the distribution to the Company's stockholders of the stock of a Subsidiary or any other assets). Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the "Subject Person") acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or voting securities as a result of the acquisition of Shares or voting securities by the Company which, by reducing the number of Shares or voting securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or voting securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or voting securities which increases the percentage of the then outstanding Shares or voting securities Beneficially Owned by the Subject Person, then a Change in Control shall occur. 2.6. Company. For purposes of this Agreement, the "Company" shall include the Company's "Successors and Assigns" (as hereinafter defined). 2.7. Confidential Information. For purposes of this Agreement means (a) all technical and business information of the Company, whether patentable or not, which is of a confidential, trade secret and/or proprietary character and that is either developed by the Executive (alone or with others) or to which the Executive has had access during his employment, (b) all confidential evaluations, and (c) the confidential use or non-use by the Company of technical or business information in the public domain. 2.8. Disability. For purposes of this Agreement, "Disability" shall mean a physical or mental infirmity which impairs the Executive's ability to substantially perform his duties with the Company for a period of one hundred eighty consecutive days and the Executive has not returned to his full time employment prior to the Termination Date as stated in the "Notice of Termination" (as hereinafter defined). 2.9. Good Reason. (a) For purposes of this Agreement, "Good Reason" shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (1) through (9) hereof: (1) a change in the Executive's status, title, position or responsibilities (including reporting responsibilities) which represents an adverse change from his status, title, position or responsibilities as in effect at any time within ninety days preceding the date of a Change in Control or at any time thereafter; the assignment to the Executive of any duties or responsibilities which are inconsistent with his status, title, position or responsibilities as in effect at any time within ninety days preceding the date of a Change in Control or at any time thereafter; or any removal of the Executive from or failure to reappoint or reelect him to any of such offices or positions, except in connection with the termination of his employment for Disability, Cause, as a result of his death or by the Executive other than for Good Reason; (2) a reduction in the Executive's base salary or any failure to pay the Executive any compensation or benefits to which he is entitled within five days of notice thereof; (3) a termination or reduction, without consent, of the facilities (including office space and general location) and staff reporting available to the Executive; (4) the Company's requiring the Executive to be based at any office or location more than 30 miles from that location at which he performed his services for the Company immediately prior to the Change in Control, except for (x) travel reasonably required in the performance of the Executive's responsibilities and (y) any relocation as to which the Executive has consented in writing; (5) the failure by the Company to provide the Executive with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Executive was participating at any time within ninety days preceding the date of a Change in Control or at any time thereafter; (6) the insolvency or the filing (by any party, including the Company) of a petition for bankruptcy of the Company, which petition is not dismissed within sixty days; (7) any material breach by the Company of any provision of this Agreement; (8) any purported termination of the Executive's employment for Cause by the Company which does not comply with the terms of Section 2.4; or (9) the failure of the Company to obtain an agreement, satisfactory to the Executive, from any Successors and Assigns to assume and agree to perform this Agreement, as contemplated in Section 9 hereof. (b) Any event or condition described in Section 2.8(a)(1) through (9) which occurs prior to a Change in Control but which the Executive reasonably demonstrates (1) was at the request of a third party, or (2) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement notwithstanding that it occurred prior to the Change in Control. (c) The Executive's right to terminate his employment pursuant to this Section 2.8 shall not be affected by his incapacity due to a Disability. 2.10. Notice of Termination. For purposes of this Agreement, following a Change in Control, "Notice of Termination" shall mean a written notice of termination from the Company of the Executive's employment which indicates the specific termination provision in this Agreement relied upon and which sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive's employment under the provision so indicated. 2.11. Pro Rata Bonus. For purposes of this Agreement, "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount multiplied by a fraction the numerator of which is the number of days in the Company's fiscal year in which Executive's employment terminates through the Termination Date and the denominator of which is 365. 2.12. Successors and Assigns. For purposes of this Agreement, "Successors and Assigns" shall mean a corporation or other entity acquiring all or substantially all the assets and business of the Company whether by operation of law or otherwise, and any affiliate of such Successors and Assigns. 2.13. Termination Date. For purposes of this Agreement, "Termination Date" shall mean (a) in the case of the Executive's death, his date of death, (b) in the case of Good Reason, the last day of his employment, and (b) in all other cases, the date specified in the Notice of Termination; provided, however, that if the Executive's employment is terminated by the Company for Cause or due to Disability, the date specified in the Notice of Termination shall be at least 30 days from the date the Notice of Termination is given to the Executive, provided that in the case of Disability the Executive shall not have returned to the full-time performance of his duties during such period of at least 30 days. 3. Termination of Employment. If, during the term of this Agreement, the Executive's employment with the Company shall be terminated within twenty-four months following a Change in Control, the Executive shall be entitled to the following compensation and benefits: 3.1. If the Executive's employment with the Company shall be terminated (a) by the Company for Cause or Disability, (b) by reason of the Executive's death, or (c) by the Executive other than for Good Reason and other than during the 30 day period commencing on the first anniversary of the date of the occurrence of a Change in Control (the "Window Period"), the Company shall pay to the Executive the Accrued Compensation and, if such termination is other than by the Company for Cause, the Pro Rata Bonus. 3.2. If the Executive's employment with the Company shall be terminated for any reason other than as specified in Section 3.1 or during the Window Period, the Executive shall be entitled to the following: (a) the Company shall pay the Executive all Accrued Compensation and a Pro-Rata Bonus. (b) the Company shall pay the Executive as severance pay and in lieu of any further compensation for periods subsequent to the Termination Date, in a single payment an amount in cash equal to three times the sum of (1) the Base Amount and (2) the Bonus Amount. (c) the Company shall maintain for the benefit of the Executive and his spouse and any dependents, at the expense of the Company and at no additional cost to the Executive, for 36 months from the Termination Date, all Executive benefit programs and arrangements, including but not limited to health insurance, including employee medical plan benefits, group life insurance, individual life insurance coverage, accidental death and dismemberment coverage, long term disability coverage, and other fringe benefits or benefit plans generally afforded other executive officers of the Company. If any such coverage cannot be maintained because of requirements of the insurance or other companies providing such benefits, the Company shall provide and pay for alternative coverage providing essentially identical benefits at no additional cost to the Executive. The above period is to be in addition to that period of time that the Executive may elect COBRA coverage under such applicable benefit plans. In this regard, it is the specific agreement of the parties that those benefits which are typically available under COBRA coverage, at the expense of the Executive, will be available to the Executive at his expense for a period of 18 months following the expiration of the 36 months listed above, even though COBRA coverage might otherwise be unavailable as provided by law. (d) the Company shall make available at its expense for the Executive's use for 36 months following the Termination Date, a company vehicle of a make and model in accordance with the vehicle policy in effect as of the date of the Change in Control. (e) the Executive will likely be required to employ a reputable national executive career transition agency to assist him in locating and securing suitable employment opportunities. To compensate the Executive for the costs which he will likely incur, the Company will pay to the Executive at the time of termination an amount equal to $30,000. The Executive will be responsible for any and all expenses in pursuing an executive level employment or job opportunity search and the Company shall have no other or further obligations to the Executive except as otherwise provided in this Agreement. (f) The Company shall pay the Executive a lump sum payment in an amount equal to difference between the present values of (1) the Executive's retirement benefit under the Company Retirement Plan (the "Retirement Plan"), determined on the date of termination as if the Executive were credited with an additional three Years of Credited Service (as such term is defined in the Retirement Plan) and annual compensation continued at the same rate as in effect on the CIC Date under the Retirement Plan and (2) the Executive's retirement benefit under the Retirement Plan, determined on the date of termination based on the Executive's actual Years of Credited Service under the Retirement Plan. (g) the Company shall provide the Executive with reasonable secretarial assistance, a voice mailbox, a laptop computer, an email account and a mail drop service for 36 months following the Termination Date to allow the Executive to initiate and continue his job search as though he were still actively employed by the Company, and actively handling Company matters. 3.3. (a) The amounts provided for in Sections 3.1 and 3.2(a), (b), (e) and (f) shall be paid in a single lump sum cash payment within five days after the Executive's Termination Date (or earlier, if required by applicable law). (b) In the event that the Executive is a "specified employee" for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") on the Executive's Termination Date, and if the Company determines that the delay is necessary in order to comply with Section 409A(a)(2)(B) of the Code and an Accounting Firm (as defined in Section 6.2) agrees with the Company's determination, payments of benefits upon termination of employment (other than under Section 3.1 and Accrued Compensation under Section 3.2(a)) shall be made (with interest) within ten (10) days following (i) the date that is six months after the Termination Date or (ii) the date of the Executive's death, if earlier. 3.4. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise and no such payment shall be offset or reduced by the amount of any compensation or benefits provided to the Executive in any subsequent employment except as provided in Section 3.2(c). 3.5. The Executive's entitlement to any other compensation or benefits or any indemnification shall be determined in accordance with the Company's employee benefit plans and other applicable programs, policies and practices or any indemnification agreement then in effect. 4. Notice of Termination. Following a Change in Control, any purported termination of the Executive's employment by the Company shall be communicated by Notice of Termination to the Executive. For purposes of this Agreement, no such purported termination shall be effective without such Notice of Termination. 5. Treatment of Equity Awards. Nothing in this Agreement shall amend or modify the terms of any equity compensation award or grant document that the Executive holds or to which the Executive is a party. 6. Excise Tax Limitation. 6.1. Gross-Up Payment. In the event it shall be determined that any payment (other than the payment provided for in this Section) or distribution of any type to or for the benefit of the Executive, by the Company, any of its affiliates, any Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal, state and local income taxes and employment taxes at the highest marginal rate of federal, state and local income taxation and employment taxation in the calendar year in which the Gross-Up Payment is to be made and/or the calendar year in which the Termination Date occurs, as applicable, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. 6.2. Determination By Accountant. All mathematical determinations, and determinations as to whether any of the Total Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this Subsection, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this Subsection shall be made by an independent accounting firm selected by the Executive from among the four largest accounting firms in the United States (the "Accounting Firm"), which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Executive by no later than ten days following the Termination Date, if applicable, or such earlier time as is requested by the Company or the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive and the Company that no Excise Tax is payable (including the reasons therefor) and that he has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within ten (10) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company or the Executive. Any determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by the Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including, if reasonable, the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company an amount which is less than the Overpayment. The fees and expenses of the Accounting Firm shall be paid by the Company. 7. Non-Competition Covenant. 7.1. The Company desires the Executive to agree not to compete with the Company in the event of the Executive's termination of employment following a Change in Control. The Company is not willing to enter into this Agreement without such a covenant. As additional consideration for the agreement of the Company to make payments to or otherwise compensate the Executive under this Agreement, the Company has required the Executive to give a Non-Competition Covenant. The Company may not waive the non-competition obligations in this Section and be relieved of any of its other obligations under this Agreement. 7.2. In the event of a Change in Control, for the eighteen-month period following the termination of the Executive's employment with the Company for any reason, the Executive shall not, without the prior written consent of the Board, which consent may be withheld at the sole, absolute and uncontrolled discretion of such Board, engage or participate in, assist or have an interest in, whether as an officer, director, partner, owner, employee or otherwise, the operation, management or conduct of any business or enterprise that engages in the cotton seed breeding, production and marketing process in the same geographical area with any line of business in which the Company is now engaged. 7.3. Nothing in this Section shall prohibit the Executive from acquiring or holding, for investment purposes only, securities or ownership interest of any entity which may compete directly or indirectly with the Company. 7.4. Nothing in this Section shall prohibit the Executive from seeking or securing employment with a corporation which has a subsidiary or affiliate whose business activities include cotton seed breeding, production and marketing so long as the Executive's job duties and responsibilities do not require or allow the Executive to directly engage in any activities which would be in violation of this Section, and so long as he does not violate any of his confidentiality obligations to the Company. 7.5. In the event of a breach of this Agreement by the Executive, the Company may seek injunctive relief to prohibit the Executive from engaging in prohibited competition and/or the Company may initiate legal proceedings to collect actual damages to the Company resulting from such breach. A breach by the Executive shall not allow the Company to terminate its obligations to the Executive under the other provisions of this Agreement. 8. Confidentiality. 8.1. The Executive shall use his best efforts and diligence both during and after employment by the Company to protect the confidential, trade secret and/or proprietary character of all Confidential Information. The Executive shall not, directly or indirectly, use (for the Executive or another) or disclose any Confidential Information, for so long as it shall remain proprietary or protectible as confidential or trade secret information, except as may be necessary for the performance of the Executive's duties with the Company. The Executive shall promptly deliver to the Company, at the termination of the Executive's employment, or at any other time at the Company's request, without retaining any copies, all documents and other material in the Executive's possession relating, directly or indirectly, to any Confidential Information. 8.2. Each of the Executive's obligations in this Section 8 shall also apply to the confidential, trade secret and proprietary information learned or acquired by the Executive during his employment from others with whom the Company has a business relationship. The Executive understands that he is not to disclose to the Company, or use for its benefit, any of the confidential, trade secret or proprietary information of others, including any of the Executive's former employers. 8.3. In no event shall an asserted violation of the provisions of this Section 8 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement. 9. Successors; Binding Agreement. 9.1. This Agreement shall be binding upon and shall inure to the benefit of the Company, its Successors and Assigns, and the Company shall require any Successors and Assigns to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place. 9.2. Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Executive, his beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal personal representative. 10. Fees and Expenses. The Company shall pay all legal fees and related expenses (including the costs of experts, evidence and counsel) incurred by the Executive as they become due as a result of (a) the Executive seeking to obtain or enforce any right or benefit provided by this Agreement (including, but not limited to, any such fees and expenses incurred in connection with (i) the dispute and (ii) the Gross-Up Payment whether as a result of any applicable government taxing authority proceeding, audit or otherwise) or by any other plan or arrangement maintained by the Company under which the Executive is or may be entitled to receive benefits), and (b) the Executive's hearing before the Board as contemplated in Section 2.4 of this Agreement; provided, however, that the circumstances set forth in clause (a) occurred on or after a Change in Control. 11. Notice. For the purposes of this Agreement, notices and all other communications provided for in the Agreement (including the Notice of Termination) shall be in writing and shall be deemed to have been duly given when personally delivered or sent by certified mail, return receipt requested, postage prepaid, by overnight courier or by facsimile, addressed to the respective addresses and facsimile numbers last given by each party to the other, provided that all notices to the Company shall be directed to the attention of the Board with a copy to the Secretary of the Company. All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt. 12. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive's continuing or future participation in any benefit, bonus, incentive or other plan or program provided by the Company (except for any severance or termination policies, plans, programs or practices) and for which the Executive may qualify, nor shall anything herein limit or reduce such rights as the Executive may have under any other agreements with the Company (except for any severance or termination agreement). Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan or program of the Company shall be payable in accordance with such plan or program, except as explicitly modified by this Agreement. 13. No Guaranteed Employment. The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is "at will" and may be terminated by either the Executive or the Company at any time. 14. Settlement of Claims. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against the Executive or others. 15. Mutual Non-Disparagement. The Executive agrees that it will not make or publish any statement critical of the Company, its affiliates and their respective executive officers and directors, or in any way adversely affecting or otherwise maligning the business or reputation of any member of the Company, its affiliates and subsidiaries and their respective officers, directors and employees. The Company, its affiliates and subsidiaries agree and the Company shall use its best efforts to cause their respective executive officers and directors to agree, that they will not make or publish any statement critical of the Executive, or in any way adversely affecting or otherwise maligning the Executive's reputation. 16. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. 17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without giving effect to the conflict of laws principles thereof. Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of Delaware. 18. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. 19. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has executed this Agreement as of the day and year first above written. ATTEST: By: ---------------------------------------- Name: Kenneth Avery Title: Vice President - Finance, Treasurer and Assistant Secretary By: ---------------------------------------- Charles R. Dismuke, Jr. EX-99.5 10 ex99_5.txt EXHIBIT 99.5 SEVERANCE PROTECTION AGREEMENT FOR EXECUTIVE OFFICERS THIS AGREEMENT made as of the day of August, 2006 (the "Effective Date"), by and between Delta & Pine Land Company (the "Company") and William V. Hugie (the "Executive"). WHEREAS, the Board of Directors of the Company (the "Board") recognizes that the possibility of a Change in Control (as hereinafter defined) exists and that the threat or the occurrence of a Change in Control can result in significant distractions of its key management personnel because of the uncertainties inherent in such a situation; WHEREAS, the Board has determined that it is essential and in the best interest of the Company and its stockholders to retain the services of the Executive in the event of the possibility of a Change in Control and to ensure his continued dedication and efforts in such event without undue concern for his personal financial and employment security; and WHEREAS, in order to induce the Executive to remain in the employ of the Company in light of a possible Change in Control, the Company desires to enter into this Agreement with the Executive to provide the Executive with certain benefits. NOW, THEREFORE, in consideration of the respective agreements of the parties contained herein, it is agreed as follows: 1. Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect until December 31, 2008; provided, however, that on December 31, 2008 and on each anniversary thereof, the term of this Agreement shall be automatically extended for one year unless either the Company or the Executive shall have given six months written notice to the other prior thereto that the term of this Agreement shall not be so extended; and provided, further, however, that notwithstanding any such notice by the Company not to extend, the term of this Agreement shall not expire prior to the expiration of 24 months after the occurrence of a Change in Control. 2. Definitions. 2.1. Accrued Compensation. For purposes of this Agreement, "Accrued Compensation" shall mean an amount which shall include all amounts earned or accrued through the "Termination Date" (as hereinafter defined) but not paid as of the Termination Date including (a) base salary, (b) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company during the period ending on the Termination Date, (c) vacation and sick leave pay (to the extent provided by Company policy or applicable law), and (d) bonuses and incentive compensation (other than the "Pro Rata Bonus" (as hereinafter defined)). 2.2. Base Amount. For purposes of this Agreement, "Base Amount" shall mean the greater of (a) the Executive's annual base salary at the rate in effect immediately prior to the Change in Control and (b) the Executive's annual base salary at the rate in effect on the Termination Date, and shall include all amounts of his base salary that are deferred under the qualified and non-qualified employee benefit plans of the Company or any other agreement or arrangement. 2.3. Bonus Amount. For purposes of this Agreement, "Bonus Amount" shall mean the Executive's highest annual bonus earned (whether paid or unpaid) during any one of the last five fiscal years that ended prior to the Change in Control (or, in each case, such lesser period for which annual bonuses were paid or payable to the Executive). 2.4. Cause. For purposes of this Agreement, a termination of employment is for "Cause" if the Executive has been convicted of a felony involving moral turpitude or the termination is evidenced by a resolution adopted in good faith by two-thirds of the Board that the Executive (a) intentionally and continually failed substantially to perform his reasonably assigned duties with the Company (other than a failure resulting from the Executive's incapacity due to physical or mental illness or from the Executive's assignment of duties that would constitute "Good Reason" as hereinafter defined) which failure continued for a period of at least thirty days after a written notice of demand for substantial performance has been delivered to the Executive specifying the manner in which the Executive has failed substantially to perform, or (b) intentionally engaged in conduct which is demonstrably and materially injurious to the Company; provided, however, that no termination of the Executive's employment shall be for Cause as set forth in clause (b) above until (x) there shall have been delivered to the Executive a copy of a written notice setting forth that the Executive was guilty of the conduct set forth in clause (b) and specifying the particulars thereof in detail, and (y) the Executive shall have been provided an opportunity to be heard in person by the Board (with the assistance of the Executive's counsel if the Executive so desires). Neither an act nor a failure to act, on the Executive's part shall be considered "intentional" unless the Executive has acted or failed to act with a lack of good faith and with a lack of reasonable belief that the Executive's action or failure to act was in the best interest of the Company. Notwithstanding anything contained in this Agreement to the contrary, no failure to perform by the Executive after a Notice of Termination is given by the Executive shall constitute Cause for purposes of this Agreement. 2.5. Change in Control. For purposes of this Agreement, a "Change in Control" shall mean the occurrence of any of the following: (a) An acquisition (other than directly from the Company) by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the then outstanding common shares ("Shares") or the combined voting power of the Company's then outstanding voting securities; provided, however, in determining whether a Change in Control has occurred pursuant to this Section, Shares or voting securities which are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company (for purposes of this definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or (iii) any Person in connection with a "Non-Control Transaction" (as hereinafter defined); (b) The individuals who on August 1, 2006 are members of the Board (the "Incumbent Board"), cease for any reason to constitute at least two-thirds of the members of the Board; provided, however, that if the election, or nomination for election by the Company's common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan, be considered as a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened "Election Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a "Proxy Contest") including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or (c) The consummation of: (1) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued, unless such merger, consolidation or reorganization is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued where: (A) the stockholders of the Company, immediately before such merger, consolidation or reorganization, own directly or indirectly immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the "Surviving Corporation") in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation or reorganization, (B) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two-thirds of the members of the board of directors of the Surviving Corporation, or a corporation beneficially directly or indirectly owning a majority of the voting securities of the Surviving Corporation, and (C) no Person other than (1) the Company, (2) any Subsidiary, (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such merger, consolidation or reorganization, was maintained by the Company or any Subsidiary, or (4) any Person who, immediately prior to such merger, consolidation or reorganization had Beneficial Ownership of twenty percent (20%) or more of the then outstanding voting securities or Shares, has Beneficial Ownership of twenty percent (20%) or more of the combined voting power of the Surviving Corporation's then outstanding voting securities or its common stock. (2) A complete liquidation or dissolution of the Company; or (3) The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary or the distribution to the Company's stockholders of the stock of a Subsidiary or any other assets). Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the "Subject Person") acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or voting securities as a result of the acquisition of Shares or voting securities by the Company which, by reducing the number of Shares or voting securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or voting securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or voting securities which increases the percentage of the then outstanding Shares or voting securities Beneficially Owned by the Subject Person, then a Change in Control shall occur. 2.6. Company. For purposes of this Agreement, the "Company" shall include the Company's "Successors and Assigns" (as hereinafter defined). 2.7. Confidential Information. For purposes of this Agreement means (a) all technical and business information of the Company, whether patentable or not, which is of a confidential, trade secret and/or proprietary character and that is either developed by the Executive (alone or with others) or to which the Executive has had access during his employment, (b) all confidential evaluations, and (c) the confidential use or non-use by the Company of technical or business information in the public domain. 2.8. Disability. For purposes of this Agreement, "Disability" shall mean a physical or mental infirmity which impairs the Executive's ability to substantially perform his duties with the Company for a period of one hundred eighty consecutive days and the Executive has not returned to his full time employment prior to the Termination Date as stated in the "Notice of Termination" (as hereinafter defined). 2.9. Good Reason. (a) For purposes of this Agreement, "Good Reason" shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (1) through (9) hereof: (1) a change in the Executive's status, title, position or responsibilities (including reporting responsibilities) which represents an adverse change from his status, title, position or responsibilities as in effect at any time within ninety days preceding the date of a Change in Control or at any time thereafter; the assignment to the Executive of any duties or responsibilities which are inconsistent with his status, title, position or responsibilities as in effect at any time within ninety days preceding the date of a Change in Control or at any time thereafter; or any removal of the Executive from or failure to reappoint or reelect him to any of such offices or positions, except in connection with the termination of his employment for Disability, Cause, as a result of his death or by the Executive other than for Good Reason; (2) a reduction in the Executive's base salary or any failure to pay the Executive any compensation or benefits to which he is entitled within five days of notice thereof; (3) a termination or reduction, without consent, of the facilities (including office space and general location) and staff reporting available to the Executive; (4) the Company's requiring the Executive to be based at any office or location more than 30 miles from that location at which he performed his services for the Company immediately prior to the Change in Control, except for (x) travel reasonably required in the performance of the Executive's responsibilities and (y) any relocation as to which the Executive has consented in writing; (5) the failure by the Company to provide the Executive with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Executive was participating at any time within ninety days preceding the date of a Change in Control or at any time thereafter; (6) the insolvency or the filing (by any party, including the Company) of a petition for bankruptcy of the Company, which petition is not dismissed within sixty days; (7) any material breach by the Company of any provision of this Agreement; (8) any purported termination of the Executive's employment for Cause by the Company which does not comply with the terms of Section 2.4; or (9) the failure of the Company to obtain an agreement, satisfactory to the Executive, from any Successors and Assigns to assume and agree to perform this Agreement, as contemplated in Section 9 hereof. (b) Any event or condition described in Section 2.8(a)(1) through (9) which occurs prior to a Change in Control but which the Executive reasonably demonstrates (1) was at the request of a third party, or (2) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement notwithstanding that it occurred prior to the Change in Control. (c) The Executive's right to terminate his employment pursuant to this Section 2.8 shall not be affected by his incapacity due to a Disability. 2.10. Notice of Termination. For purposes of this Agreement, following a Change in Control, "Notice of Termination" shall mean a written notice of termination from the Company of the Executive's employment which indicates the specific termination provision in this Agreement relied upon and which sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive's employment under the provision so indicated. 2.11. Pro Rata Bonus. For purposes of this Agreement, "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount multiplied by a fraction the numerator of which is the number of days in the Company's fiscal year in which Executive's employment terminates through the Termination Date and the denominator of which is 365. 2.12. Successors and Assigns. For purposes of this Agreement, "Successors and Assigns" shall mean a corporation or other entity acquiring all or substantially all the assets and business of the Company whether by operation of law or otherwise, and any affiliate of such Successors and Assigns. 2.13. Termination Date. For purposes of this Agreement, "Termination Date" shall mean (a) in the case of the Executive's death, his date of death, (b) in the case of Good Reason, the last day of his employment, and (b) in all other cases, the date specified in the Notice of Termination; provided, however, that if the Executive's employment is terminated by the Company for Cause or due to Disability, the date specified in the Notice of Termination shall be at least 30 days from the date the Notice of Termination is given to the Executive, provided that in the case of Disability the Executive shall not have returned to the full-time performance of his duties during such period of at least 30 days. 3. Termination of Employment. If, during the term of this Agreement, the Executive's employment with the Company shall be terminated within twenty-four months following a Change in Control, the Executive shall be entitled to the following compensation and benefits: 3.1. If the Executive's employment with the Company shall be terminated (a) by the Company for Cause or Disability, (b) by reason of the Executive's death, or (c) by the Executive other than for Good Reason and other than during the 30 day period commencing on the first anniversary of the date of the occurrence of a Change in Control (the "Window Period"), the Company shall pay to the Executive the Accrued Compensation and, if such termination is other than by the Company for Cause, the Pro Rata Bonus. 3.2. If the Executive's employment with the Company shall be terminated for any reason other than as specified in Section 3.1 or during the Window Period, the Executive shall be entitled to the following: (a) the Company shall pay the Executive all Accrued Compensation and a Pro-Rata Bonus. (b) the Company shall pay the Executive as severance pay and in lieu of any further compensation for periods subsequent to the Termination Date, in a single payment an amount in cash equal to three times the sum of (1) the Base Amount and (2) the Bonus Amount. (c) the Company shall maintain for the benefit of the Executive and his spouse and any dependents, at the expense of the Company and at no additional cost to the Executive, for 36 months from the Termination Date, all Executive benefit programs and arrangements, including but not limited to health insurance, including employee medical plan benefits, group life insurance, individual life insurance coverage, accidental death and dismemberment coverage, long term disability coverage, and other fringe benefits or benefit plans generally afforded other executive officers of the Company. If any such coverage cannot be maintained because of requirements of the insurance or other companies providing such benefits, the Company shall provide and pay for alternative coverage providing essentially identical benefits at no additional cost to the Executive. The above period is to be in addition to that period of time that the Executive may elect COBRA coverage under such applicable benefit plans. In this regard, it is the specific agreement of the parties that those benefits which are typically available under COBRA coverage, at the expense of the Executive, will be available to the Executive at his expense for a period of 18 months following the expiration of the 36 months listed above, even though COBRA coverage might otherwise be unavailable as provided by law. (d) the Company shall make available at its expense for the Executive's use for 36 months following the Termination Date, a company vehicle of a make and model in accordance with the vehicle policy in effect as of the date of the Change in Control. (e) the Executive will likely be required to employ a reputable national executive career transition agency to assist him in locating and securing suitable employment opportunities. To compensate the Executive for the costs which he will likely incur, the Company will pay to the Executive at the time of termination an amount equal to $30,000. The Executive will be responsible for any and all expenses in pursuing an executive level employment or job opportunity search and the Company shall have no other or further obligations to the Executive except as otherwise provided in this Agreement. (f) The Company shall pay the Executive a lump sum payment in an amount equal to difference between the present values of (1) the Executive's retirement benefit under the Company Retirement Plan (the "Retirement Plan"), determined on the date of termination as if the Executive were credited with an additional three Years of Credited Service (as such term is defined in the Retirement Plan) and annual compensation continued at the same rate as in effect on the CIC Date under the Retirement Plan and (2) the Executive's retirement benefit under the Retirement Plan, determined on the date of termination based on the Executive's actual Years of Credited Service under the Retirement Plan. (g) the Company shall provide the Executive with reasonable secretarial assistance, a voice mailbox, a laptop computer, an email account and a mail drop service for 36 months following the Termination Date to allow the Executive to initiate and continue his job search as though he were still actively employed by the Company, and actively handling Company matters. 3.3. (a) The amounts provided for in Sections 3.1 and 3.2(a), (b), (e) and (f) shall be paid in a single lump sum cash payment within five days after the Executive's Termination Date (or earlier, if required by applicable law). (b) In the event that the Executive is a "specified employee" for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") on the Executive's Termination Date, and if the Company determines that the delay is necessary in order to comply with Section 409A(a)(2)(B) of the Code and an Accounting Firm (as defined in Section 6.2) agrees with the Company's determination, payments of benefits upon termination of employment (other than under Section 3.1 and Accrued Compensation under Section 3.2(a)) shall be made (with interest) within ten (10) days following (i) the date that is six months after the Termination Date or (ii) the date of the Executive's death, if earlier. 3.4. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise and no such payment shall be offset or reduced by the amount of any compensation or benefits provided to the Executive in any subsequent employment except as provided in Section 3.2(c). 3.5. The Executive's entitlement to any other compensation or benefits or any indemnification shall be determined in accordance with the Company's employee benefit plans and other applicable programs, policies and practices or any indemnification agreement then in effect. 4. Notice of Termination. Following a Change in Control, any purported termination of the Executive's employment by the Company shall be communicated by Notice of Termination to the Executive. For purposes of this Agreement, no such purported termination shall be effective without such Notice of Termination. 5. Treatment of Equity Awards. Nothing in this Agreement shall amend or modify the terms of any equity compensation award or grant document that the Executive holds or to which the Executive is a party. 6. Excise Tax Limitation. 6.1. Gross-Up Payment. In the event it shall be determined that any payment (other than the payment provided for in this Section) or distribution of any type to or for the benefit of the Executive, by the Company, any of its affiliates, any Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal, state and local income taxes and employment taxes at the highest marginal rate of federal, state and local income taxation and employment taxation in the calendar year in which the Gross-Up Payment is to be made and/or the calendar year in which the Termination Date occurs, as applicable, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. 6.2. Determination By Accountant. All mathematical determinations, and determinations as to whether any of the Total Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this Subsection, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this Subsection shall be made by an independent accounting firm selected by the Executive from among the four largest accounting firms in the United States (the "Accounting Firm"), which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Executive by no later than ten days following the Termination Date, if applicable, or such earlier time as is requested by the Company or the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive and the Company that no Excise Tax is payable (including the reasons therefor) and that he has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within ten (10) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company or the Executive. Any determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by the Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including, if reasonable, the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company an amount which is less than the Overpayment. The fees and expenses of the Accounting Firm shall be paid by the Company. 7. Non-Competition Covenant. 7.1. The Company desires the Executive to agree not to compete with the Company in the event of the Executive's termination of employment following a Change in Control. The Company is not willing to enter into this Agreement without such a covenant. As additional consideration for the agreement of the Company to make payments to or otherwise compensate the Executive under this Agreement, the Company has required the Executive to give a Non-Competition Covenant. The Company may not waive the non-competition obligations in this Section and be relieved of any of its other obligations under this Agreement. 7.2. In the event of a Change in Control, for the eighteen-month period following the termination of the Executive's employment with the Company for any reason, the Executive shall not, without the prior written consent of the Board, which consent may be withheld at the sole, absolute and uncontrolled discretion of such Board, engage or participate in, assist or have an interest in, whether as an officer, director, partner, owner, employee or otherwise, the operation, management or conduct of any business or enterprise that engages in the cotton seed breeding, production and marketing process in the same geographical area with any line of business in which the Company is now engaged. 7.3. Nothing in this Section shall prohibit the Executive from acquiring or holding, for investment purposes only, securities or ownership interest of any entity which may compete directly or indirectly with the Company. 7.4. Nothing in this Section shall prohibit the Executive from seeking or securing employment with a corporation which has a subsidiary or affiliate whose business activities include cotton seed breeding, production and marketing so long as the Executive's job duties and responsibilities do not require or allow the Executive to directly engage in any activities which would be in violation of this Section, and so long as he does not violate any of his confidentiality obligations to the Company. 7.5. In the event of a breach of this Agreement by the Executive, the Company may seek injunctive relief to prohibit the Executive from engaging in prohibited competition and/or the Company may initiate legal proceedings to collect actual damages to the Company resulting from such breach. A breach by the Executive shall not allow the Company to terminate its obligations to the Executive under the other provisions of this Agreement. 8. Confidentiality. 8.1. The Executive shall use his best efforts and diligence both during and after employment by the Company to protect the confidential, trade secret and/or proprietary character of all Confidential Information. The Executive shall not, directly or indirectly, use (for the Executive or another) or disclose any Confidential Information, for so long as it shall remain proprietary or protectible as confidential or trade secret information, except as may be necessary for the performance of the Executive's duties with the Company. The Executive shall promptly deliver to the Company, at the termination of the Executive's employment, or at any other time at the Company's request, without retaining any copies, all documents and other material in the Executive's possession relating, directly or indirectly, to any Confidential Information. 8.2. Each of the Executive's obligations in this Section 8 shall also apply to the confidential, trade secret and proprietary information learned or acquired by the Executive during his employment from others with whom the Company has a business relationship. The Executive understands that he is not to disclose to the Company, or use for its benefit, any of the confidential, trade secret or proprietary information of others, including any of the Executive's former employers. 8.3. In no event shall an asserted violation of the provisions of this Section 8 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement. 9. Successors; Binding Agreement. 9.1. This Agreement shall be binding upon and shall inure to the benefit of the Company, its Successors and Assigns, and the Company shall require any Successors and Assigns to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place. 9.2. Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Executive, his beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal personal representative. 10. Fees and Expenses. The Company shall pay all legal fees and related expenses (including the costs of experts, evidence and counsel) incurred by the Executive as they become due as a result of (a) the Executive seeking to obtain or enforce any right or benefit provided by this Agreement (including, but not limited to, any such fees and expenses incurred in connection with (i) the dispute and (ii) the Gross-Up Payment whether as a result of any applicable government taxing authority proceeding, audit or otherwise) or by any other plan or arrangement maintained by the Company under which the Executive is or may be entitled to receive benefits), and (b) the Executive's hearing before the Board as contemplated in Section 2.4 of this Agreement; provided, however, that the circumstances set forth in clause (a) occurred on or after a Change in Control. 11. Notice. For the purposes of this Agreement, notices and all other communications provided for in the Agreement (including the Notice of Termination) shall be in writing and shall be deemed to have been duly given when personally delivered or sent by certified mail, return receipt requested, postage prepaid, by overnight courier or by facsimile, addressed to the respective addresses and facsimile numbers last given by each party to the other, provided that all notices to the Company shall be directed to the attention of the Board with a copy to the Secretary of the Company. All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt. 12. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive's continuing or future participation in any benefit, bonus, incentive or other plan or program provided by the Company (except for any severance or termination policies, plans, programs or practices) and for which the Executive may qualify, nor shall anything herein limit or reduce such rights as the Executive may have under any other agreements with the Company (except for any severance or termination agreement). Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan or program of the Company shall be payable in accordance with such plan or program, except as explicitly modified by this Agreement. 13. No Guaranteed Employment. The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is "at will" and may be terminated by either the Executive or the Company at any time. 14. Settlement of Claims. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against the Executive or others. 15. Mutual Non-Disparagement. The Executive agrees that it will not make or publish any statement critical of the Company, its affiliates and their respective executive officers and directors, or in any way adversely affecting or otherwise maligning the business or reputation of any member of the Company, its affiliates and subsidiaries and their respective officers, directors and employees. The Company, its affiliates and subsidiaries agree and the Company shall use its best efforts to cause their respective executive officers and directors to agree, that they will not make or publish any statement critical of the Executive, or in any way adversely affecting or otherwise maligning the Executive's reputation. 16. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. 17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without giving effect to the conflict of laws principles thereof. Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of Delaware. 18. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. 19. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has executed this Agreement as of the day and year first above written. ATTEST: By: ----------------------------------- Name: Kenneth Avery Title: Vice President - Finance, Treasurer and Assistant Secretary By: ----------------------------------- William V. Hugie EX-99.6 11 ex99_6.txt EXHIBIT 99.6 FORM OF SEVERANCE PROTECTION AGREEMENT FOR EXECUTIVE OFFICERS THIS AGREEMENT made as of the ___ day of August, 2006 (the "Effective Date"), by and between Delta & Pine Land Company (the "Company") and (the "Executive"). WHEREAS, the Board of Directors of the Company (the "Board") recognizes that the possibility of a Change in Control (as hereinafter defined) exists and that the threat or the occurrence of a Change in Control can result in significant distractions of its key management personnel because of the uncertainties inherent in such a situation; WHEREAS, the Board has determined that it is essential and in the best interest of the Company and its stockholders to retain the services of the Executive in the event of the possibility of a Change in Control and to ensure his continued dedication and efforts in such event without undue concern for his personal financial and employment security; and WHEREAS, in order to induce the Executive to remain in the employ of the Company in light of a possible Change in Control, the Company desires to enter into this Agreement with the Executive to provide the Executive with certain benefits. NOW, THEREFORE, in consideration of the respective agreements of the parties contained herein, it is agreed as follows: 1. Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect until December 31, 2008; provided, however, that on December 31, 2008 and on each anniversary thereof, the term of this Agreement shall be automatically extended for one year unless either the Company or the Executive shall have given six months written notice to the other prior thereto that the term of this Agreement shall not be so extended; and provided, further, however, that notwithstanding any such notice by the Company not to extend, the term of this Agreement shall not expire prior to the expiration of 24 months after the occurrence of a Change in Control. 2. Definitions. 2.1. Accrued Compensation. For purposes of this Agreement, "Accrued Compensation" shall mean an amount which shall include all amounts earned or accrued through the "Termination Date" (as hereinafter defined) but not paid as of the Termination Date including (a) base salary, (b) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company during the period ending on the Termination Date, (c) vacation and sick leave pay (to the extent provided by Company policy or applicable law), and (d) bonuses and incentive compensation (other than the "Pro Rata Bonus" (as hereinafter defined)). 2.2. Base Amount. For purposes of this Agreement, "Base Amount" shall mean the greater of (a) the Executive's annual base salary at the rate in effect immediately prior to the Change in Control and (b) the Executive's annual base salary at the rate in effect on the Termination Date, and shall include all amounts of his base salary that are deferred under the qualified and non-qualified employee benefit plans of the Company or any other agreement or arrangement. 2.3. Bonus Amount. For purposes of this Agreement, "Bonus Amount" shall mean the Executive's highest annual bonus earned (whether paid or unpaid) during any one of the last five fiscal years that ended prior to the Change in Control (or, in each case, such lesser period for which annual bonuses were paid or payable to the Executive). 2.4. Cause. For purposes of this Agreement, a termination of employment is for "Cause" if the Executive has been convicted of a felony involving moral turpitude or the termination is evidenced by a resolution adopted in good faith by two-thirds of the Board that the Executive (a) intentionally and continually failed substantially to perform his reasonably assigned duties with the Company (other than a failure resulting from the Executive's incapacity due to physical or mental illness or from the Executive's assignment of duties that would constitute "Good Reason" as hereinafter defined) which failure continued for a period of at least thirty days after a written notice of demand for substantial performance has been delivered to the Executive specifying the manner in which the Executive has failed substantially to perform, or (b) intentionally engaged in conduct which is demonstrably and materially injurious to the Company; provided, however, that no termination of the Executive's employment shall be for Cause as set forth in clause (b) above until (x) there shall have been delivered to the Executive a copy of a written notice setting forth that the Executive was guilty of the conduct set forth in clause (b) and specifying the particulars thereof in detail, and (y) the Executive shall have been provided an opportunity to be heard in person by the Board (with the assistance of the Executive's counsel if the Executive so desires). Neither an act nor a failure to act, on the Executive's part shall be considered "intentional" unless the Executive has acted or failed to act with a lack of good faith and with a lack of reasonable belief that the Executive's action or failure to act was in the best interest of the Company. Notwithstanding anything contained in this Agreement to the contrary, no failure to perform by the Executive after a Notice of Termination is given by the Executive shall constitute Cause for purposes of this Agreement. 2.5. Change in Control. For purposes of this Agreement, a "Change in Control" shall mean the occurrence of any of the following: (a) An acquisition (other than directly from the Company) by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the then outstanding common shares ("Shares") or the combined voting power of the Company's then outstanding voting securities; provided, however, in determining whether a Change in Control has occurred pursuant to this Section, Shares or voting securities which are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company (for purposes of this definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or (iii) any Person in connection with a "Non-Control Transaction" (as hereinafter defined); (b) The individuals who on August 1, 2006 are members of the Board (the "Incumbent Board"), cease for any reason to constitute at least two-thirds of the members of the Board; provided, however, that if the election, or nomination for election by the Company's common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan, be considered as a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened "Election Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a "Proxy Contest") including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or (c) The consummation of: (1) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued, unless such merger, consolidation or reorganization is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued where: (A) the stockholders of the Company, immediately before such merger, consolidation or reorganization, own directly or indirectly immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the "Surviving Corporation") in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation or reorganization, (B) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two-thirds of the members of the board of directors of the Surviving Corporation, or a corporation beneficially directly or indirectly owning a majority of the voting securities of the Surviving Corporation, and (C) no Person other than (1) the Company, (2) any Subsidiary, (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such merger, consolidation or reorganization, was maintained by the Company or any Subsidiary, or (4) any Person who, immediately prior to such merger, consolidation or reorganization had Beneficial Ownership of twenty percent (20%) or more of the then outstanding voting securities or Shares, has Beneficial Ownership of twenty percent (20%) or more of the combined voting power of the Surviving Corporation's then outstanding voting securities or its common stock. (2) A complete liquidation or dissolution of the Company; or (3) The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary or the distribution to the Company's stockholders of the stock of a Subsidiary or any other assets). Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the "Subject Person") acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or voting securities as a result of the acquisition of Shares or voting securities by the Company which, by reducing the number of Shares or voting securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or voting securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or voting securities which increases the percentage of the then outstanding Shares or voting securities Beneficially Owned by the Subject Person, then a Change in Control shall occur. 2.6. Company. For purposes of this Agreement, the "Company" shall include the Company's "Successors and Assigns" (as hereinafter defined). 2.7. Confidential Information. For purposes of this Agreement means (a) all technical and business information of the Company, whether patentable or not, which is of a confidential, trade secret and/or proprietary character and that is either developed by the Executive (alone or with others) or to which the Executive has had access during his employment, (b) all confidential evaluations, and (c) the confidential use or non-use by the Company of technical or business information in the public domain. 2.8. Disability. For purposes of this Agreement, "Disability" shall mean a physical or mental infirmity which impairs the Executive's ability to substantially perform his duties with the Company for a period of one hundred eighty consecutive days and the Executive has not returned to his full time employment prior to the Termination Date as stated in the "Notice of Termination" (as hereinafter defined). 2.9. Good Reason. (a) For purposes of this Agreement, "Good Reason" shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (1) through (9) hereof: (1) a change in the Executive's status, title, position or responsibilities (including reporting responsibilities) which represents an adverse change from his status, title, position or responsibilities as in effect at any time within ninety days preceding the date of a Change in Control or at any time thereafter; the assignment to the Executive of any duties or responsibilities which are inconsistent with his status, title, position or responsibilities as in effect at any time within ninety days preceding the date of a Change in Control or at any time thereafter; or any removal of the Executive from or failure to reappoint or reelect him to any of such offices or positions, except in connection with the termination of his employment for Disability, Cause, as a result of his death or by the Executive other than for Good Reason; (2) a reduction in the Executive's base salary or any failure to pay the Executive any compensation or benefits to which he is entitled within five days of notice thereof; (3) a termination or reduction, without consent, of the facilities (including office space and general location) and staff reporting available to the Executive; (4) the Company's requiring the Executive to be based at any office or location more than 30 miles from that location at which he performed his services for the Company immediately prior to the Change in Control, except for (x) travel reasonably required in the performance of the Executive's responsibilities and (y) any relocation as to which the Executive has consented in writing; (5) the failure by the Company to provide the Executive with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Executive was participating at any time within ninety days preceding the date of a Change in Control or at any time thereafter; (6) the insolvency or the filing (by any party, including the Company) of a petition for bankruptcy of the Company, which petition is not dismissed within sixty days; (7) any material breach by the Company of any provision of this Agreement; (8) any purported termination of the Executive's employment for Cause by the Company which does not comply with the terms of Section 2.4; or (9) the failure of the Company to obtain an agreement, satisfactory to the Executive, from any Successors and Assigns to assume and agree to perform this Agreement, as contemplated in Section 8 hereof. (b) Any event or condition described in Section 2.8(a)(1) through (9) which occurs prior to a Change in Control but which the Executive reasonably demonstrates (1) was at the request of a third party, or (2) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement notwithstanding that it occurred prior to the Change in Control. (c) The Executive's right to terminate his employment pursuant to this Section 2.8 shall not be affected by his incapacity due to a Disability. 2.10. Notice of Termination. For purposes of this Agreement, following a Change in Control, "Notice of Termination" shall mean a written notice of termination from the Company of the Executive's employment which indicates the specific termination provision in this Agreement relied upon and which sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive's employment under the provision so indicated. 2.11. Pro Rata Bonus. For purposes of this Agreement, "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount multiplied by a fraction the numerator of which is the number of days in the Company's fiscal year in which Executive's employment terminates through the Termination Date and the denominator of which is 365. 2.12. Successors and Assigns. For purposes of this Agreement, "Successors and Assigns" shall mean a corporation or other entity acquiring all or substantially all the assets and business of the Company whether by operation of law or otherwise, and any affiliate of such Successors and Assigns. 2.13. Termination Date. For purposes of this Agreement, "Termination Date" shall mean (a) in the case of the Executive's death, his date of death, (b) in the case of Good Reason, the last day of his employment, and (b) in all other cases, the date specified in the Notice of Termination; provided, however, that if the Executive's employment is terminated by the Company for Cause or due to Disability, the date specified in the Notice of Termination shall be at least 30 days from the date the Notice of Termination is given to the Executive, provided that in the case of Disability the Executive shall not have returned to the full-time performance of his duties during such period of at least 30 days. 3. Termination of Employment. If, during the term of this Agreement, the Executive's employment with the Company shall be terminated within twenty-four months following a Change in Control, the Executive shall be entitled to the following compensation and benefits: 3.1. If the Executive's employment with the Company shall be terminated (a) by the Company for Cause or Disability, (b) by reason of the Executive's death, or (c) by the Executive other than for Good Reason and other than during the 30 day period commencing on the first anniversary of the date of the occurrence of a Change in Control (the "Window Period"), the Company shall pay to the Executive the Accrued Compensation and, if such termination is other than by the Company for Cause, the Pro Rata Bonus. 3.2. If the Executive's employment with the Company shall be terminated for any reason other than as specified in Section 3.1 or during the Window Period, the Executive shall be entitled to the following: (a) the Company shall pay the Executive all Accrued Compensation and a Pro-Rata Bonus. (b) the Company shall pay the Executive as severance pay and in lieu of any further compensation for periods subsequent to the Termination Date, in a single payment, an amount in cash equal to one and one-half times the sum of (1) the Base Amount and (2) the Bonus Amount. (c) the Company shall maintain for the benefit of the Executive and his spouse and any dependents, at the expense of the Company and at no additional cost to the Executive, for 24 months from the Termination Date, all Executive benefit programs and arrangements, including but not limited to health insurance, including employee medical plan benefits, group life insurance, individual life insurance coverage, accidental death and dismemberment coverage, long term disability coverage, and other fringe benefits or benefit plans generally afforded other executive officers of the Company. If any such coverage cannot be maintained because of requirements of the insurance or other companies providing such benefits, the Company shall provide and pay for alternative coverage providing essentially identical benefits at no additional cost to the Executive. The above period is to be in addition to that period of time that the Executive may elect COBRA coverage under such applicable benefit plans. In this regard, it is the specific agreement of the parties that those benefits which are typically available under COBRA coverage, at the expense of the Executive, will be available to the Executive at his expense for a period of 18 months following the expiration of the 24 months listed above, even though COBRA coverage might otherwise be unavailable as provided by law. (d) the Company shall make available at its expense for the Executive's use for 18 months following the Termination Date, a company vehicle of a make and model in accordance with the vehicle policy in effect as of the date of the Change in Control. (e) the Executive will likely be required to employ a reputable national executive career transition agency to assist him in locating and securing suitable employment opportunities. To compensate the Executive for the costs which he will likely incur, the Company will pay to the Executive at the time of termination an amount equal to $30,000. The Executive will be responsible for any and all expenses in pursuing an executive level employment or job opportunity search and the Company shall have no other or further obligations to the Executive except as otherwise provided in this Agreement. (f) The Company shall pay the Executive a lump sum payment in an amount equal to difference between the present values of (1) the Executive's retirement benefit under the Company Retirement Plan (the "Retirement Plan"), determined on the date of termination as if the Executive were credited with an additional one and one-half Years of Credited Service (as such term is defined in the Retirement Plan) and annual compensation continued at the same rate as in effect on the CIC Date under the Retirement Plan and (2) the Executive's retirement benefit under the Retirement Plan, determined on the date of termination based on the Executive's actual Years of Credited Service under the Retirement Plan. 3.3. (a) The amounts provided for in Sections 3.1 and 3.2(a), (b), (e) and (f) shall be paid in a single lump sum cash payment within five days after the Executive's Termination Date (or earlier, if required by applicable law). (b) In the event that the Executive is a "specified employee" for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") on the Executive's Termination Date, and if the Company determines that the delay is necessary in order to comply with Section 409A(a)(2)(B) of the Code and an Accounting Firm (as defined in Section 6.2) agrees with the Company's determination, payments of benefits upon termination of employment (other than under Section 3.1 and Accrued Compensation under Section 3.2(a)) shall be made (with interest) within ten (10) days following (i) the date that is six months after the Termination Date or (ii) the date of the Executive's death, if earlier. 3.4. The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise and no such payment shall be offset or reduced by the amount of any compensation or benefits provided to the Executive in any subsequent employment except as provided in Section 3.2(c). 3.5. The Executive's entitlement to any other compensation or benefits or any indemnification shall be determined in accordance with the Company's employee benefit plans and other applicable programs, policies and practices or any indemnification agreement then in effect. 4. Notice of Termination. Following a Change in Control, any purported termination of the Executive's employment by the Company shall be communicated by Notice of Termination to the Executive. For purposes of this Agreement, no such purported termination shall be effective without such Notice of Termination. 5. Treatment of Equity Awards. Nothing in this Agreement shall amend or modify the terms of any equity compensation award or grant document that the Executive holds or to which the Executive is a party. 6. Excise Tax Limitation. 6.1. Gross-Up Payment. In the event it shall be determined that any payment (other than the payment provided for in this Section) or distribution of any type to or for the benefit of the Executive, by the Company, any of its affiliates, any Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal, state and local income taxes and employment taxes at the highest marginal rate of federal, state and local income taxation and employment taxation in the calendar year in which the Gross-Up Payment is to be made and/or the calendar year in which the Termination Date occurs, as applicable, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. 6.2. Determination By Accountant. All mathematical determinations, and determinations as to whether any of the Total Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this Subsection, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this Subsection shall be made by an independent accounting firm selected by the Executive from among the four largest accounting firms in the United States (the "Accounting Firm"), which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Executive by no later than ten days following the Termination Date, if applicable, or such earlier time as is requested by the Company or the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive and the Company that no Excise Tax is payable (including the reasons therefor) and that he has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within ten (10) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company or the Executive. Any determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by the Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including, if reasonable, the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company an amount which is less than the Overpayment. The fees and expenses of the Accounting Firm shall be paid by the Company. 7. Confidentiality. 7.1. The Executive shall use his best efforts and diligence both during and after employment by the Company to protect the confidential, trade secret and/or proprietary character of all Confidential Information. The Executive shall not, directly or indirectly, use (for the Executive or another) or disclose any Confidential Information, for so long as it shall remain proprietary or protectible as confidential or trade secret information, except as may be necessary for the performance of the Executive's duties with the Company. The Executive shall promptly deliver to the Company, at the termination of the Executive's employment, or at any other time at the Company's request, without retaining any copies, all documents and other material in the Executive's possession relating, directly or indirectly, to any Confidential Information. 7.2. Each of the Executive's obligations in this Section 8 shall also apply to the confidential, trade secret and proprietary information learned or acquired by the Executive during his employment from others with whom the Company has a business relationship. The Executive understands that he is not to disclose to the Company, or use for its benefit, any of the confidential, trade secret or proprietary information of others, including any of the Executive's former employers. 7.3. In no event shall an asserted violation of the provisions of this Section 8 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement. 8. Successors; Binding Agreement. 8.1. This Agreement shall be binding upon and shall inure to the benefit of the Company, its Successors and Assigns, and the Company shall require any Successors and Assigns to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place. 8.2. Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Executive, his beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal personal representative. 9. Fees and Expenses. The Company shall pay all legal fees and related expenses (including the costs of experts, evidence and counsel) incurred by the Executive as they become due as a result of (a) the Executive seeking to obtain or enforce any right or benefit provided by this Agreement (including, but not limited to, any such fees and expenses incurred in connection with (i) the dispute and (ii) the Gross-Up Payment whether as a result of any applicable government taxing authority proceeding, audit or otherwise) or by any other plan or arrangement maintained by the Company under which the Executive is or may be entitled to receive benefits), and (b) the Executive's hearing before the Board as contemplated in Section 2.4 of this Agreement; provided, however, that the circumstances set forth in clause (a) occurred on or after a Change in Control. 10. Notice. For the purposes of this Agreement, notices and all other communications provided for in the Agreement (including the Notice of Termination) shall be in writing and shall be deemed to have been duly given when personally delivered or sent by certified mail, return receipt requested, postage prepaid, by overnight courier or by facsimile, addressed to the respective addresses and facsimile numbers last given by each party to the other, provided that all notices to the Company shall be directed to the attention of the Board with a copy to the Secretary of the Company. All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt. 11. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive's continuing or future participation in any benefit, bonus, incentive or other plan or program provided by the Company (except for any severance or termination policies, plans, programs or practices) and for which the Executive may qualify, nor shall anything herein limit or reduce such rights as the Executive may have under any other agreements with the Company (except for any severance or termination agreement). Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan or program of the Company shall be payable in accordance with such plan or program, except as explicitly modified by this Agreement. 12. No Guaranteed Employment. The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is "at will" and may be terminated by either the Executive or the Company at any time. 13. Settlement of Claims. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against the Executive or others. 14. Mutual Non-Disparagement. The Executive agrees that it will not make or publish any statement critical of the Company, its affiliates and their respective executive officers and directors, or in any way adversely affecting or otherwise maligning the business or reputation of any member of the Company, its affiliates and subsidiaries and their respective officers, directors and employees. The Company, its affiliates and subsidiaries agree and the Company shall use its best efforts to cause their respective executive officers and directors to agree, that they will not make or publish any statement critical of the Executive, or in any way adversely affecting or otherwise maligning the Executive's reputation. 15. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement. 16. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without giving effect to the conflict of laws principles thereof. Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of Delaware. 17. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. 18. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has executed this Agreement as of the day and year first above written. ATTEST: By: -------------------- Name: Kenneth Avery Title: Vice President - Finance, Treasurer and Assistant Secretary By: ------------------------- EX-99.7 12 ex99_7.txt 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: ---------------------------------- --------------------------------- Title: Title: ------------------------------ ------------------------------ By: --------------------------------- Title: ------------------------------ 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 EX-99.8 13 ex99_8.txt Exhibit 99.8 **CONFIDENTIAL TREATMENT REQUESTED BY DELTA AND PINE LAND COMPANY** NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH ******. RESTATED VIP3A GENE LICENSE AGREEMENT EFFECTIVE AS OF THE 24TH DAY OF AUGUST 2004 BETWEEN SYNGENTA CROP PROTECTION AG AND DELTA AND PINE LAND COMPANY TABLE OF CONTENTS SECTION 1 -- BACKGROUND......................................................1 SECTION 2 -- INTERPRETATION..................................................1 2.1 DEFINITIONS..................................................1 2.2 STATUTORY REFERENCES........................................13 2.3 DEFINED TERMS...............................................13 SECTION 3 -- LICENSES.......................................................13 3.1 LICENSE TO VIP3A GENE.......................................13 3.2 LICENSE TO PRODUCE AND SELL LICENSED COMMERCIAL SEED........13 3.3 LICENSE TO MULTIPLY LICENSED COMMERCIAL SEED................13 3.4 EX-U.S. SUBLICENSES.........................................14 3.5 RIGHTS RETAINED BY SYNGENTA.................................14 3.6 COMBINED GENE COTTON SEED...................................18 3.7 CONDITIONS ON LICENSES......................................19 3.8 GENE TRADEMARK..............................................21 3.9 THIRD PARTY VIOLATIONS OR INVALIDITY OF RESTRICTIONS ON SUBLICENSE..................................................21 SECTION 4 -- COMMERCIAL DEVELOPMENT ACTIVITIES OF THE PARTIES...............22 4.1 COMMERCIAL DEVELOPMENT PLAN.................................22 4.2 CONSULTATION................................................22 4.3 GENE PROTECTION AND REGULATORY ACTIVITIES...................23 4.4 SEED DEVELOPMENT AND COMMERCIALIZATION RESPONSIBILITIES.....30 4.5 LICENSE MANAGEMENT COMMITTEE................................32 SECTION 5 -- OWNERSHIP OF TECHNOLOGY........................................38 5.1 SYNGENTA TECHNOLOGY AND LICENSED PATENT RIGHTS..............38 5.2 D&PL TECHNOLOGY.............................................38 5.3 SAFETY, TOXICOLOGY AND EFFICACY DATA........................38 5.4 USE OF DATA.................................................39 SECTION 6 -- TECHNOLOGY FEES AND ROYALTY....................................39 6.1 TECHNOLOGY FEE..............................................39 6.2 COMPENSATION TO SYNGENTA FOR LICENSE TO THE GENE............43 6.3 ROYALTY PERIOD..............................................43 SECTION 7 -- BUSINESS RECORDS/PAYMENTS......................................45 7.1 D&PL BUSINESS RECORDS.......................................45 7.2 D&PL REPORTS AND PAYMENTS...................................45 7.3 SYNGENTA BUSINESS RECORDS...................................46 7.4 SYNGENTA REPORTS AND PAYMENTS...............................46 7.5 PAYMENT ADDRESS.............................................47 7.6 PAYMENTS....................................................48 7.7 INTEREST ON OUTSTANDING BALANCES............................49 7.8 SYNGENTA PATENT RECORDS.....................................49 SECTION 8 -- CONFIDENTIALITY................................................49 8.1 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION..................49 8.2 PERIOD OF CONFIDENTIALITY...................................49 8.3 USES OF CONFIDENTIAL INFORMATION............................50 SECTION 9 -- FORCE MAJEURE..................................................51 9.1 FORCE MAJEURE...............................................51 SECTION 10 -- TERM AND TERMINATION..........................................52 10.1 TERM OF LICENSES............................................52 10.2 TERMINATION.................................................52 10.3 BREACH OF OBLIGATIONS.......................................52 10.4 DEFAULT ON PAYMENT..........................................53 10.5 EFFECT OF TERMINATION.......................................51 10.6 SURVIVAL OF COVENANTS.......................................53 SECTION 11 -- WARRANTIES AND WARRANTY LIMITATIONS...........................53 11.1 SYNGENTA WARRANTIES.........................................53 11.2 D&PL WARRANTIES.............................................55 11.3 MUTUAL WARRANTIES...........................................55 11.4 NO OTHER WARRANTIES.........................................55 11.5 EXCLUSIVE REMEDY............................................56 SECTION 12 -- PATENT INFRINGEMENT...........................................56 SECTION 13 -- CLAIMS BY VENDEES FOR FAILURE OF GENE PERFORMANCE.............57 SECTION 14 -- GENERAL.......................................................57 14.1 ASSIGNMENT OF D&PL'S RIGHTS AND OBLIGATIONS.................57 14.2 ASSIGNMENT OF SYNGENTA'S RIGHTS AND OBLIGATIONS.............57 14.3 RELATION OF PARTIES.........................................58 14.4 INTEGRATION OF CONTRACT.....................................58 14.5 WAIVERS AND AMENDMENTS......................................59 14.6 HEADINGS....................................................59 14.7 REFERENCES TO SECTIONS, SUBSECTIONS AND EXHIBITS............59 14.8 PARTIAL INVALIDITY..........................................59 14.9 GOVERNING CONTRACT LAW......................................60 14.10 GOVERNING PATENT LAW........................................60 14.11 NOTICES.....................................................60 14.12 DISPUTE RESOLUTION..........................................61 14.13 INCORPORATION OF EXHIBITS...................................62 EXHIBITS EXHIBIT A - LICENSED PATENT RIGHTS EXHIBIT B - VIP3A GENE TRADEMARK LICENSE AGREEMENT EXHIBIT C - ****** EXHIBIT D - AGRONOMIC CRITERIA EXHIBIT E - SEED PURITY STANDARDS EXHIBIT F - PRICING REGIONS IN THE UNITED STATES EXHIBIT G - SCHEDULE OF PAYMENTS UNDER SUBSECTION 10.2(D) EXHIBIT H - CERTAIN HERBICIDE TOLERANCE GENE(S) EXHIBIT I - ****** EXHIBIT J - PERFORMANCE REQUIREMENTS EXHIBIT K - PROVISIONS RELATED TO MONSANTO EXHIBIT L - TERMINATION EXHIBIT M - ****** RESTATED VIP3A GENE LICENSE AGREEMENT THIS RESTATED VIP3A GENE LICENSE AGREEMENT ("LICENSE AGREEMENT") is effective as of the 24th day of August 2004 (the "EFFECTIVE DATE") 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. SECTION 1 -- BACKGROUND 1.1 SYNGENTA has developed the VIP3A GENE which is useful in the production of genetically-modified cotton plants exhibiting INSECT RESISTANCE and also possesses certain know-how and germplasm relating to such cotton plants. 1.2 SYNGENTA and D&PL desire to enter into a license agreement under which D&PL would be granted a worldwide license under certain patents to which SYNGENTA has rights to produce and sell LICENSED COMMERCIAL SEED containing the VIP3A GENE and to sublicense cotton farmers the right to use LICENSED COMMERCIAL SEED exhibiting INSECT RESISTANCE to produce a single commercial cotton crop. SECTION 2 -- INTERPRETATION 2.1 DEFINITIONS. In this LICENSE AGREEMENT, unless the context otherwise requires: 2.1.1 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 Item 1 of Exhibit K] 2.1.2 The term "AGRONOMIC CRITERIA" means the standard for the agronomic and commercial acceptability as to yield, fiber quality and disease resistance which must be satisfied by cultivars of LICENSED COMMERCIAL SEED offered for COMMERCIAL SALE as set forth in Exhibit D to this LICENSE AGREEMENT, as the same may be amended in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT. 2.1.3 [Text In Exhibit I] 2.1.4 The term "COMBINED GENE COTTON SEED" means a LICENSED COMMERCIAL SEED which contains one or more NON-SYNGENTA GENE(S). 2.1.5 The term "COMMERCIAL DEVELOPMENT" means the evaluation of a particular VIP3A GENE EVENT (either alone or in combination with any other particular SYNGENTA GENE(S) and/or NON-SYNGENTA GENE(S)), (a) by D&PL in DELTAPINE CULTIVARS; (b) by D&PL'S sublicensees in DELTAPINE CULTIVARS or in SUBLICENSEE CULTIVARS; (c) if permitted under this LICENSE AGREEMENT, by or for SYNGENTA in cultivars other than DELTAPINE CULTIVARS; or (d) if permitted under this LICENSE AGREEMENT, by a third party licensed by SYNGENTA in such third party's cultivars, pursuant to the COMMERCIAL DEVELOPMENT PLAN after a determination is made in accordance with Subsection 4.4(b) of this LICENSE AGREEMENT that the particular VIP3A GENE EVENT has exhibited the criteria for COMMERCIAL INSECT RESISTANCE. 2.1.6 The term "COMMERCIAL DEVELOPMENT PLAN" means the plan for development of LICENSED COMMERCIAL SEED to be adopted in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT as the same may be amended from time to time in accordance with Section 4 of this LICENSE AGREEMENT. 2.1.7 The term "COMMERCIAL INSECT RESISTANCE" means LEPIDOPTERAN RESISTANCE meeting the criteria for LEPIDOPTERAN RESISTANCE in LICENSED COMMERCIAL SEED sold for planting in THE TERRITORY or in any particular part of THE TERRITORY as set forth in the COMMERCIAL DEVELOPMENT PLAN adopted in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT. 2.1.8 The term "COMMERCIAL SALE" with respect to a GENE means sale or other transfer for value of cotton seed containing such GENE for use by LICENSED GROWERS in producing a single commercial commodity cotton crop (other than sale or other transfer for testing or increase on behalf of the transferor). 2.1.9 [Text In Exhibit J] 2.1.10 The term "COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS" means the amounts established in accordance with Section 6 that D&PL may provide as adjustments to the TECHNOLOGY FEES to meet competitive conditions in the marketplace in a particular PRICING REGION. 2.1.11 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. 2.1.12 The term "D&PL" means, collectively, DELTA AND PINE LAND COMPANY and its AFFILIATES, provided that if a notice is required to be given by or to D&PL, or a document is to be executed by D&PL under Section 14.5, the term shall mean DELTA AND PINE LAND COMPANY. 2.1.13 [Text In Exhibit J] 2.1.14 The term "D&PL TECHNOLOGY" means any information, data, know-how, technology, and germplasm that D&PL now owns or licenses (other than from SYNGENTA) or hereafter develops, produces, makes, licenses in or obtains (other than from SYNGENTA), relating to the breeding and development of commercial varieties or hybrids of LICENSED COMMERCIAL SEED or other varieties or hybrids of cotton. D&PL TECHNOLOGY shall not include information, data, know-how, technology, or germplasm that has become part of the public domain through no fault of SYNGENTA or which has been provided to SYNGENTA, as evidenced by SYNGENTA'S written records, by a third party having no obligation of confidentiality to D&PL with respect thereto. 2.1.15 The term "DATE OF APPROVAL FOR COMMERCIAL SALE" with respect to a particular VIP3A GENE EVENT means the date on which D&PL or its sublicensee(s) commences COMMERCIAL SALE by D&PL (or its sublicensee(s) of LICENSED COMMERCIAL SEED containing that VIP3A GENE EVENT in a particular country in THE TERRITORY or SYNGENTA or its licensee(s) commences COMMERCIAL SALE of LICENSED COMMERCIAL SEED in a particular country pursuant to Subsection 4.3(k). 2.1.16 The term "DATE OF GOVERNMENT APPROVAL" with respect to any country in THE TERRITORY with respect to a VIP3A GENE EVENT means the date on which GOVERNMENT APPROVAL of such VIP3A GENE EVENT has been obtained in that country. 2.1.17 The term "DEADLOCK MATTER" shall have the meaning ascribed to that term in Section 4.5(d)(v). 2.1.18 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. 2.1.19 The term "DELTAPINE VIP3A CULTIVAR" means a DELTAPINE CULTIVAR which contains the VIP3A GENE. 2.1.20 The term "DELTAPINE CULTIVAR" means a cultivar of cotton produced from germplasm which D&PL has the right to use for plant-breeding purposes and/or which D&PL otherwise has the right to use for COMMERCIAL SALE. 2.1.21 The term "DISPUTE" shall have the meaning ascribed to the term in Section 14.12. 2.1.22 [Text In Exhibit I] 2.1.23 The term "EFFECTIVE DATE" means the date first above written. 2.1.24 The term "EXECUTIVE MANAGEMENT COMMITTEE" shall have the meaning ascribed to that term in Section 4.5(d)(v). 2.1.25 The term "EXPIRATION," with respect to any patent, means the earlier of the date upon which such patent expires or upon which an applicable claim is cancelled, or declared invalid or permanently unenforceable by any court or administrative agency of competent jurisdiction from which no appeal has or can be taken. 2.1.26 The term "FTE RATE" means cost of a full-time equivalent person-year, based on a total of one thousand eight hundred forty (1,840) hours of work per year by a person appropriately qualified for the tasks to be completed, and who holds a Ph.D. or Masters of Science (or is otherwise appropriately trained) in an appropriate discipline, which rate shall equal ****** in base year 2004, and which rate shall be adjusted annually beginning January 1, 2005, by any percentage change in the Consumer Price Index of All Urban Consumers (CPI-U) published by the United States Department of Labor. 2.1.27 The term "GENE" means a DNA sequence contained in the genome of a sexually viable cotton plant. 2.1.28 The term "GENE EQUIVALENCY STANDARDS" means standards, protocols, and processes for verification of insecticide protein expression in cultivars of LICENSED COMMERCIAL SEED proposed for COMMERCIAL SALE in accordance with standards set forth in the COMMERCIAL DEVELOPMENT PLAN adopted in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT. 2.1.29 The term "GOVERNMENT APPROVAL" with respect to a VIP3A GENE EVENT (or other GENE event) in a particular country means that official clearances or written approvals for COMMERCIAL SALE of seed to produce genetically-transformed cotton plants containing that VIP3A GENE EVENT (or other GENE event) have been obtained from all government agencies in that country which, as of that date, are required for the import, testing, development, production, use, and sale of such plants or seed produced therefrom under applicable laws as required for D&PL (or its sublicensees) activities under this LICENSE AGREEMENT, provided that, to constitute GOVERNMENT APPROVAL, such clearances or approvals shall not place materially greater regulatory restrictions or economic burdens that adversely affect the COMMERCIAL SALE or use of the subject VIP3A GENE EVENT than on any other LEPIDOPTERAN-ACTIVE GENE available for COMMERCIAL SALE in that country (unless this requirement is waived by notice from D&PL to SYNGENTA), provided, further, however, that nothing in this LICENSE AGREEMENT shall require SYNGENTA to obtain approval from any agency with respect to the issuance of seed certificates or phytosanitary certificates or certificates of plant variety protection under the U. S. Plant Variety Protection Act or any other laws relating to plant variety protection, which approvals, when appropriate or required, shall be the responsibility of D&PL (or its sublicensee). 2.1.30 The term "HERBICIDE TOLERANCE GENE" means a GENE which does not occur naturally in cotton that causes cotton plants not to sustain economically significant damage when exposed to a glyphosate-based herbicide. 2.1.31 The term "INSECT RESISTANCE" or "INSECT RESISTANCE TRAIT" means the property of cotton plants (a) to exhibit LEPIDOPTERAN RESISTANCE due to the presence of LEPIDOPTERAN-ACTIVE GENE(S) and/or (b) to be toxic to insect pests of cotton other than LEPIDOPTERAN INSECTS due to the presence of NON-LEPIDOPTERAN ACTIVE GENE(S). 2.1.32 [Text In Exhibit J] 2.1.33 [Text In Exhibit J] 2.1.34 The term "LEPIDOPTERAN-ACTIVE GENE" means a GENE containing one or more sequences encoding one or more toxins which do(es) not occur naturally in cotton, that provides LEPIDOPTERAN RESISTANCE. 2.1.35 The term "LEPIDOPTERAN INSECTS" means a group of cotton bollworms including: Helicoverpa zea (Cotton Bollworm), Heliothis virescens (Tobacco Budworm), and Pectinophora gossypiella (Pink Bollworm). 2.1.36 The term "LEPIDOPTERAN RESISTANCE" means the property of cotton plants to be toxic to LEPIDOPTERAN INSECTS due to the presence of a gene(s) that encodes a toxin which does not occur naturally in cotton. 2.1.37 The term "LICENSE ACQUISITION AGREEMENT" means the License Acquisition Agreement dated August 24, 2004, between SYNGENTA CROP PROTECTION AG and DELTA AND PINE LAND COMPANY whereby D&PL acquired the right to licenses to certain GENES, including the right to the LICENSES to the VIP3A GENE more particularly described herein. 2.1.38 The term "LICENSE MANAGEMENT COMMITTEE" means the committee established by D&PL and SYNGENTA pursuant to Subsection 4.5 of this LICENSE AGREEMENT. 2.1.39 The term "LICENSE PURCHASE PRICE" means all amounts payable by D&PL to SYNGENTA under the LICENSE ACQUISITION AGREEMENT and allocated to the acquisition of the LICENSES set forth in this LICENSE AGREEMENT. 2.1.40 The term "LICENSED COMMERCIAL SEED" means cotton seed which incorporates the VIP3A GENE. 2.1.41 The term "LICENSED GROWER(S)" means any person or entity which has been sublicensed by D&PL or its sublicensees (whether through a grower license agreement executed by such person or entity or by wording on container labels or sales documents used in lieu of execution of grower license agreement) under the LICENSED PATENT RIGHTS to use LICENSED COMMERCIAL SEED for production of a single commercial cotton crop. 2.1.42 The term "LICENSED PATENT RIGHTS" means the patents and patent applications listed in Exhibit A which are owned by SYNGENTA or licensed to SYNGENTA (including any patent applications and patents filed, granted or issued pursuant to any parent, extension, confirmation, continuation, registration, reexamination, continuation-in-part, reissue, or divisional thereof anywhere in the world), and any additional such patent rights of SYNGENTA or of others which may be added to said Exhibit A by SYNGENTA by written notice to D&PL. LICENSED PATENT RIGHTS shall include any patent rights which are acquired by SYNGENTA with the right to license or sublicense to D&PL during the term of this LICENSE AGREEMENT which, in the absence of the LICENSES, potentially would be infringed by D&PL'S performance hereunder or by D&PL'S making, using or selling LICENSED COMMERCIAL SEED or other activities hereunder. SYNGENTA shall periodically update Exhibit A with any such patent rights which have been newly acquired by SYNGENTA. It is the intention of the PARTIES that D&PL be licensed under all patents and applications owned or controlled by SYNGENTA (with the right to grant rights to D&PL) that D&PL requires for performance under this LICENSE AGREEMENT. The listing of a patent or patent application on Exhibit A shall not be an admission by either PARTY that such patent would, in the absence of license, be infringed. Similarly, the failure to list a patent or patent application on Exhibit A shall not necessarily be determinative of whether such patent or patent application is a LICENSED PATENT RIGHT. 2.1.43 The term "LICENSES" means the licenses granted to D&PL under Section 3. 2.1.44 [Text In Item 2 of Exhibit K] 2.1.45 [Text In Item 2 of Exhibit K] 2.1.46 [Text In Item 2 of Exhibit K] 2.1.47 [Text In Item 2 of Exhibit K] 2.1.48 [Text In Item 2 of Exhibit K] 2.1.49 [Text In Item 2 of Exhibit K] 2.1.50 The term "NET TECHNOLOGY FEE REVENUE" means the TECHNOLOGY FEES, as modified by COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS, collected for the license or use of the VIP3A GENE in LICENSED COMMERCIAL SEED, less amounts paid for (a) the reasonable costs of grower licensing and collection of TECHNOLOGY FEES, (b) payments, discounts and rebates to distributors and retailers, (c) payments, discounts and rebates to growers under crop destruct, crop replant, SEED DROP RATE exception, refugia refund (i.e. price adjustments or rebates based on the grower's choice among refugia options), trait investment, regional price adjustment (i.e. price adjustments or rebates targeted at encouraging growers in specific geographical areas to use LICENSED COMMERCIAL SEED containing VIP3A GENES) and other grower incentive programs, and (d) advertising (e.g., electronic media and print) which, as to (a) through (d), (i) are directly and exclusively attributable to the licensing or use of the VIP3A GENE (including the HERBICIDE TOLERANCE GENE as described in Exhibit H with which the VIP3A GENE is stacked, except to the extent paid or reimbursed by a party other than SYNGENTA or D&PL) or, if attributable in part to the licensing and use of the VIP3A GENE and in part to the licensing or use of another SYNGENTA GENE and/or NON-SYNGENTA GENE (other than the HERBICIDE TOLERANCE GENE as described in Exhibit H with which the VIP3A GENE is stacked), have been allocated based on the amounts charged for use of each of the respective GENES (provided that amounts deductible in determining NET TECHNOLOGY FEE REVENUE shall not include expenses for promoting the use of any particular glyphosate-based herbicide), and (ii) have been approved by the LICENSE MANAGEMENT COMMITTEE in accordance with Subsection 4.4(c) hereof and (iii) have been paid to distributors, retailers, and/or growers (or, in the case of advertising programs, expended) in accordance with their terms and conditions and in each case in connection with the license or use of the VIP3A GENE and/or such other GENE(S) in LICENSED COMMERCIAL SEED, and calculated in accordance with U.S. generally accepted accounting principles, consistently applied, during the applicable period for which a ROYALTY payment is being determined. There shall be no duplication of reimbursement or payment for such costs and expenses under this LICENSE AGREEMENT and under any RELATED AGREEMENT. For purposes of payments to be made under Section 7, the amounts to be deducted under Subparts (a)-(d) above to determine NET TECHNOLOGY FEE REVENUE may be estimated based on accruals made in good faith and in accordance with generally accepted accounting principles consistently applied by the applicable PARTY incurring such expense and then trued-up on the next December 31 based on the actual amounts paid for such items. 2.1.51 The term "NON-INSECT RESISTANCE GENE" means a GENE containing one or more DNA sequences which do(es) not occur naturally in cotton that cause(s) cotton plants to express a trait, other than INSECT RESISTANCE, not found in cotton. NON-INSECT RESISTANCE GENES shall include but are not limited to HERBICIDE TOLERANCE GENES. 2.1.52 The term "NON-LEPIDOPTERAN-ACTIVE GENE" means a GENE containing one or more DNA sequences encoding one or more toxins, which do(es) not occur naturally in cotton, that provide(s) resistance to insect pests of cotton other than LEPIDOPTERAN INSECTS and do(es) not qualify as a LEPIDOPTERAN-ACTIVE GENE. 2.1.53 The term "NON-SYNGENTA GENE" means a GENE not licensed to D&PL by SYNGENTA expressing a trait not naturally occurring in cotton or modulating expression of a characteristic naturally found in cotton. 2.1.54 The term "NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE" means a LEPIDOPTERAN-ACTIVE GENE (other than the VIP3A GENE) which is licensed to D&PL by SYNGENTA. 2.1.55 The term "NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE EVENT" means a transformation event by which a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE is inserted in the genome of a sexually viable cotton plant. 2.1.56 The "PANEL" shall have the meaning ascribed to that term in Section 14.12. 2.1.57 The term "PARTIES" shall mean SYNGENTA and D&PL, and "PARTY" shall mean either SYNGENTA or D&PL, provided with respect to the recipient of a notice or execution of documents under Subsection 14.5, "PARTY" shall mean either of (and "PARTIES" shall mean both of) SYNGENTA CROP PROTECTION AG and DELTA AND PINE LAND COMPANY. 2.1.58 [Text In Exhibit I] 2.1.59 [Text In Exhibit I] 2.1.60 The term "PRICING REGION" means (a) in the United States of America, each of the geographic regions described in attached Exhibit F (which Exhibit F may be amended by D&PL by notice to SYNGENTA on or before September 15 of the calendar year before the commencement of the cotton planting season in which such amended description of the PRICING REGIONS in the United States of America will take effect) and (b) outside the United States, each nation in which LICENSED COMMERCIAL SEED is marketed by D&PL or its AFFILIATES, by D&PL'S sublicensee(s), or if permitted under this LICENSE AGREEMENT, by or on behalf of SYNGENTA and/or by a third party licensed by SYNGENTA. 2.1.61 The term "RECIPIENT" means a party which receives confidential information of another party as described in Section 8. 2.1.62 The term "RELATED AGREEMENTS" means this LICENSE AGREEMENT, the RESTATED LICENSE ACQUISITION AGREEMENT, and all other license agreements entered into by D&PL and SYNGENTA pursuant to the RESTATED LICENSE ACQUISITION AGREEMENT, as such agreements may be amended from time to time in writing. 2.1.63 The term "RESPONSIBLE PARTY" shall have the meaning ascribed to that term in Subsection 4.5(d)(ii). 2.1.64 The term "ROYALTY" means the compensation to be paid by D&PL to SYNGENTA for the LICENSES equal to the SYNGENTA ROYALTY PERCENTAGE multiplied by the NET TECHNOLOGY FEE REVENUE. 2.1.65 The term "SEED DROP RATE" means the average number of cotton seeds, as reasonably determined by D&PL, which cotton growers in a particular PRICING REGION or in any distinct subdivision thereof typically plant on an acre of farm land to achieve an appropriate plant population for cotton production. 2.1.66 The term "SEED PURITY STANDARD" means the standard for genetic purity of LICENSED COMMERCIAL SEED as set forth in Exhibit E to this LICENSE AGREEMENT, as the same may be amended in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT. 2.1.67 The term "SPECIAL TECHNOLOGY FEE PANEL" shall have the meaning ascribed to that term in Subsection 6.1(d)(iv). 2.1.68 The term "SUBLICENSEE CULTIVAR" means a cultivar of cotton produced from germplasm which a third party that is sublicensed by D&PL under this LICENSE AGREEMENT has the right to use for plant-breeding purposes. 2.1.69 The term "SUBLICENSEE VIP3A CULTIVAR" means a SUBLICENSEE CULTIVAR which contains a VIP3A GENE. 2.1.70 The term "SYNGENTA" means collectively, SYNGENTA CROP PROTECTION AG and its AFFILIATES, including but not limited to SYNGENTA AG, provided that if a notice is required to be given to SYNGENTA, or a document is to be executed by SYNGENTA under Section 14.5, the term shall mean SYNGENTA CROP PROTECTION AG. 2.1.71 The term "SYNGENTA AG" means Syngenta AG, a company organized under the laws of Switzerland, having a place of business at Schwarzwaldallee 215, CH - 4058, Basel, Switzerland. 2.1.72 The term "SYNGENTA GENE" means a GENE owned by, or licensed to, SYNGENTA expressing a trait not naturally occurring in cotton or modulating expression of a characteristic naturally found in cotton. SYNGENTA GENES may consist of INSECT RESISTANCE GENES and NON-INSECT RESISTANCE GENES. 2.1.73 The term "SYNGENTA ROYALTY PERCENTAGE" means thirty percent (30%). 2.1.74 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. 2.1.75 The term "SYNGENTA TECHNOLOGY" means information, data, know-how and technology which are owned by SYNGENTA or licensed to SYNGENTA (other than by D&PL) that relates to the use of a VIP3A GENE in cotton including, but not limited to, information and technology relating to cells and seeds of cotton plants, DNA sequences and probes therefor, transformation methodology, tissue cultures, assays, residue analyses, regeneration and selection procedures, plant genetic constituents, vectors useful in transforming such genetic constituents, construction and use of such vectors in cotton. SYNGENTA TECHNOLOGY shall not include information, data, know-how, or technology that has become part of the public domain through no fault of D&PL or which is or has been provided to D&PL as evidenced by D&PL'S written records, by a third party having no obligation of confidentiality to SYNGENTA with respect thereto. 2.1.76 The term "TECHNOLOGY" means SYNGENTA TECHNOLOGY and/or D&PL TECHNOLOGY as appropriate. 2.1.77 The term "TECHNOLOGY FEE" means the consideration (in whatever form of value capture) received from LICENSED GROWERS for the rights to use the VIP3A GENE embodied in LICENSED COMMERCIAL SEED to produce a single commercial cotton crop, the amount of which shall be established as provided in Subsection 6.1. 2.1.78 [Text In Exhibit I] 2.1.79 The term "THE TERRITORY" means the world. 2.1.80 The term "UNIT" means a quantity of packaged delinted cotton seed containing 250,000 seed; provided that in all calculations involving UNITS, seed being processed or that is packaged in other size containers shall be converted to 250,000 seed UNITS. 2.1.81 The term "VARIETAL NAME" means a word or combination of words or other combination of letters or numbers which identifies a cotton variety. 2.1.82 The term "VIP3A GENE" means a GENE(S) and/or genetic construct(s) inserted into the cotton genome that encode part or all of a VIP3A protein. 2.1.83 The term "VIP3A GENE EVENT" means a transformation event by which a VIP3A GENE is inserted in the genome of a sexually viable cotton plant, including, but not limited to, the transformation events designated by SYNGENTA as the ****** series and the ****** series and any back-up or additional VIP3A GENE transformation events resulting from current or subsequent work by or on behalf of SYNGENTA. 2.1.84 The term "VIP3A GENE TRADEMARK" means a trademark owned by SYNGENTA relating to the VIP3A GENE. 2.1.85 The term "VIP3A GENE TRADEMARK LICENSE AGREEMENT" means an agreement in substantially the form attached hereto as Exhibit B, as the same may be completed and/or amended from time to time by written agreement of the PARTIES on a country by country basis. 2.2 STATUTORY REFERENCES. Each reference in this LICENSE AGREEMENT to a statute or a provision of a statute shall be construed as a reference to that statute or provision as it exists on the EFFECTIVE DATE, and any amended or successor statute. 2.3 DEFINED TERMS. Terms appearing in all upper-case letters, other than section headings and U.C.C.-related disclaimers of warranties, shall have the meanings set forth in Subsection 2.1. SECTION 3 -- LICENSES 3.1 LICENSE TO VIP3A GENE. SYNGENTA hereby grants to D&PL, and D&PL hereby accepts, on and subject to the terms and conditions of this LICENSE AGREEMENT, a license in THE TERRITORY, under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY, to sublicense LICENSED GROWERS to use LICENSED COMMERCIAL SEED containing the VIP3A GENE (alone or in combination with other SYNGENTA GENE(S) and/or NON-SYNGENTA GENE(S)) to produce a single commercial cotton crop. The terms and conditions of such sublicense to LICENSED GROWERS (whether in the form of grower license agreement executed by LICENSED GROWERS or wording on container labels or sales documents used in lieu of execution of grower license agreements) shall be recommended by D&PL and adopted by the LICENSE MANAGEMENT COMMITTEE in accordance with Subsection 3.7(e) and Subsection 4.4(c) of this LICENSE AGREEMENT. 3.2 LICENSE TO PRODUCE AND SELL LICENSED COMMERCIAL SEED. SYNGENTA hereby grants to D&PL, and D&PL hereby accepts, on and subject to the terms and conditions of this LICENSE AGREEMENT, a license in THE TERRITORY under LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY (a) to test, develop and produce (directly or through the services of third parties) LICENSED COMMERCIAL SEED, and (b) to sell (directly or through third party distributors and dealers, by sublicense or otherwise) LICENSED COMMERCIAL SEED to the LICENSED GROWERS sublicensed by D&PL under LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY to use the VIP3A GENE embodied in such LICENSED COMMERCIAL SEED. 3.3 LICENSE TO MULTIPLY LICENSED COMMERCIAL SEED. The rights granted to D&PL include the right to multiply LICENSED COMMERCIAL SEED (for subsequent sale to LICENSED GROWERS) directly or through third party contract growers selected by D&PL (in any country in THE TERRITORY where SYNGENTA and/or D&PL have obtained all necessary government approvals for such seed multiplication) and to carry out all other activities reasonably necessary for the production for sale of LICENSED COMMERCIAL SEED. 3.4 EX-U.S. SUBLICENSES. In addition to sublicenses to LICENSED GROWERS, distributors and dealers, in countries outside the United States of America D&PL may grant sublicenses to third parties under the LICENSES granted to D&PL in Subsections 3.1, 3.2 and 3.3. D&PL shall give notice to SYNGENTA of the grant of such sublicenses. D&PL shall require any such sublicensee to agree in writing to comply with the terms and conditions of this LICENSE AGREEMENT applicable to D&PL in its sublicensed territory. D&PL shall have no right to sublicense except as provided in Subsections 3.1, 3.2, 3.3 and 3.4. [Text In Item 3 of Exhibit K] 3.5 RIGHTS RETAINED BY SYNGENTA. (a) Except as provided in Subsections 3.5(b) and 3.5(c) and in Subsection 4.3(k), the LICENSES granted in Subsections 3.1, 3.2, 3.3 and 3.4 shall be the only licenses granted by SYNGENTA under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY in THE TERRITORY with respect to VIP3A GENE in cotton. (b) The provisions of Subsection 3.5(a) notwithstanding, except as provided in Subsection 3.5(c)(i) and/or Subsection 4.3(k), during the period prior to occurrence of one or more of the events expressly described in Subsection 3.5(c)(ii), SYNGENTA shall retain a right, without the right to grant licenses to third parties or to use the services of third parties engaged in the breeding or sale of cotton planting seed other than to provide (1) ordinary farming or harvesting services, (2) seed delinting and ginning services, (3) laboratory services and/or (4) testing in field trials conducted by United States Department of Agriculture and public university trialists in the United States of America, to test, develop, produce, and have produced, but not to sell or otherwise commercialize, cottonseed containing the VIP3A GENE in any germplasm and cotton cultivars owned by SYNGENTA or licensed by SYNGENTA from third parties. Use of the services of third parties described in items (1) through (4) in the preceding sentence shall be subject to an appropriate written confidentiality agreement being executed by each such third party and, in the case of the services described in items (2) and (3), receipt of D&PL's prior written consent, which will not be unreasonably withheld or delayed. SYNGENTA and its AFFILIATES shall not sell or otherwise commercialize cottonseed containing the VIP3A GENE EVENT except as expressly permitted in Subsection 3.5(c)(ii), and/or Subsection 4.3(k). Except [Text in Item 4 of Exhibit K] and, except pursuant to the COMMERCIAL DEVELOPMENT PLAN, during the period prior to occurrence of one or more of the events expressly described in Subsection 3.5(c)(ii), SYNGENTA shall not make and shall use commercially reasonable efforts not to permit others to make public comments concerning the performance of the VIP3A GENE in cotton cultivars owned by SYNGENTA or third parties. Except pursuant to the COMMERCIAL DEVELOPMENT PLAN, SYNGENTA shall not conduct and shall use commercially reasonable efforts not to permit third parties to conduct trials involving cultivars that incorporate a VIP3A GENE which utilize DELTAPINE VIP3A CULTIVARS and/or SUBLICENSEE VIP3A CULTIVARS for comparison or as checks or controls. SYNGENTA'S rights described in this Subsection 3.5(b) shall include the right to stack the VIP3A GENE with any other SYNGENTA GENE or NON-SYNGENTA GENE. Restrictions in this Subsection 3.5(b) on SYNGENTA'S rights to use and license the VIP3A GENE shall not apply (i) after the occurrence of one or more of the events expressly described in Subsection 3.5(c)(ii) or (ii) in any country in THE TERRITORY after the date on which SYNGENTA'S right to receive the ROYALTY for use of the VIP3A GENE expires in that country as provided in Subsection 6.3 or (iii) in any country as to which D&PL has notified SYNGENTA or is deemed to have notified SYNGENTA that it will not commercialize LICENSED COMMERCIAL SEED with the VIP3A GENE in that country in accordance with Subsection 4.3(k). (c) [Text In Exhibit J] (d) Any other provision of Subsection 3.5 notwithstanding, so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED, SYNGENTA shall use commercially reasonable efforts not to sell and shall use commercially reasonable efforts (which efforts shall include, but shall not be limited to, incorporating such requirements in all licenses with permitted licensees and using reasonable efforts to enforce such requirements) not to permit any of its permitted licensees to sell (i) any LICENSED COMMERCIAL SEED unless SYNGENTA or such licensee has confirmed to its reasonable satisfaction that the subject cultivar of LICENSED COMMERCIAL SEED meets the AGRONOMIC CRITERIA as reasonably determined by SYNGENTA or such licensee based on equivalent testing required by D&PL to verify compliance with AGRONOMIC CRITERIA, (ii) any LICENSED COMMERCIAL SEED that does not meet the SEED PURITY STANDARDS and GENE EQUIVALENCY STANDARDS applicable to LICENSED COMMERCIAL SEED sold by D&PL or its sublicensees, nor (iii) any LICENSED COMMERCIAL SEED in any country in THE TERRITORY in which GOVERNMENT APPROVAL has not been obtained; provided that SYNGENTA shall have no liability to D&PL under this LICENSE AGREEMENT or any RELATED AGREEMENT unless D&PL can prove that D&PL or its sublicensees have suffered losses of sales of LICENSED COMMERCIAL SEED as a result of SYNGENTA not having used such commercially reasonable efforts to prevent the marketing of LICENSED COMMERCIAL SEED not satisfying the requirements of this Subsection 3.5(d). (e) (i) Q THE TERRITORY under the LICENSED PATENT RIGHTS and the SYNGENTA TECHNOLOGY to a third party, when such licensing is permitted under this LICENSE AGREEMENT, for use of the VIP3A GENE, SYNGENTA shall notify D&PL within thirty (30) days after SYNGENTA grants such license (provided that SYNGENTA shall have the right not to identify the name of the third party licensee). Upon D&PL's request made within thirty (30) days after receipt of SYNGENTA'S notice and at D&PL's expense, D&PL shall have the right to have a third party reasonably acceptable to SYNGENTA conduct a confidential review of the third party license's terms and conditions to determine whether the third party license considered as a whole, is more favorable to the licensee than the terms and conditions of this LICENSE AGREEMENT (without giving effect to payments under the LICENSE ACQUISITION AGREEMENT). For the purpose of such review, SYNGENTA will promptly deliver to such third party, upon request, on a confidential basis a copy of the third party license with all references to the licensee deleted, certified as a true and correct copy of such license by an authorized representative of SYNGENTA. In the event the third party reviewer determines that the license considered as a whole is more favorable to the licensee than the terms and conditions of this LICENSE AGREEMENT, D&PL shall have the right to review said certified copy of the third party license. Within thirty (30) days after the reviewer notifies SYNGENTA and D&PL of such determination, SYNGENTA shall have the option either (a) to modify the license to third party licensee so that its terms and conditions are no longer more favorable to the licensee than the terms of this LICENSE AGREEMENT to D&PL or (b) to offer D&PL a revised license on the same terms and conditions as to the third party licensee. The third party reviewer shall examine either the modified third party license or the license offered to D&PL, as the case may be, to confirm to D&PL SYNGENTA'S compliance with the immediately preceding sentence. D&PL shall have the right to substitute the revised license for this LICENSE AGREEMENT, by notice to SYNGENTA within sixty (60) days after D&PL receives SYNGENTA'S offer of a revised license. All of the terms and conditions of such license, including the third party's ROYALTY terms, shall be effective from and after the date of the third party license was granted; provided that D&PL's obligations under the LICENSE ACQUISITION AGREEMENT and any RELATED AGREEMENT shall not be affected and all obligations arising out of this LICENSE AGREEMENT prior to the date of the substituted license become effective shall continue and be unaffected. SYNGENTA'S obligation to so notify D&PL shall remain in effect for so long as ROYALTIES are payable to SYNGENTA in the country or countries as to which the third party license pertains under the provisions of Subsection 6.3. (f) For a period of ten (10) years from and after the EFFECTIVE DATE, in the event SYNGENTA should decide to sell to a third party all or any part of its existing cottonseed breeding program or any expansion thereof or any cottonseed breeding program acquired hereafter, SYNGENTA shall give notice to D&PL, including the terms and conditions of the proposed sale, and D&PL shall have a right of first refusal to acquire the same on the same terms and conditions offered by the third party. This right of first refusal must be exercised by D&PL delivering written notice within thirty (30) days after receipt of written notice by SYNGENTA of its intent to sell such cottonseed breeding program to a third party, which notice from D&PL shall include D&PL's exercise of the right of first refusal and its binding commitment to purchase the cottonseed breeding program on the same terms and conditions offered by the third party. If D&PL does not exercise its right of first refusal, SYNGENTA may sell the cottonseed breeding program on the terms stated in SYNGENTA'S notice to D&PL. If the cottonseed breeding program is not sold on the stated terms, D&PL shall continue to have the rights of first refusal as to any further offers of sale as provided herein. Notwithstanding the foregoing, D&PL'S right of first refusal shall not apply to a sale or transfer of all or substantially all of the equity or assets of SYNGENTA CROP PROTECTION AG, SYNGENTA AG or of SYNGENTA'S total business in a particular country or countries involving substantial assets in fields other than cotton nor shall it apply to a sale or transfer to an AFFILIATE of SYNGENTA as part of a corporate restructuring or reorganization. Notwithstanding the foregoing, D&PL's rights under this Subsection 3.5(f) shall terminate if any of the events set forth in Subsection 3.5(i) occur or if this LICENSE AGREEMENT is terminated as provided in Subsection 10.2. 3.6 COMBINED GENE COTTON SEED. (a) D&PL may incorporate in LICENSED COMMERCIAL SEED any SYNGENTA GENE that is licensed to D&PL and/or any NON-SYNGENTA GENE; [Text In Item 5 of Exhibit K]. Upon request from D&PL, SYNGENTA shall provide commercially reasonable assistance to D&PL in obtaining any government clearances or approvals (in addition to GOVERNMENT APPROVAL for the VIP3A GENE and/or VIP3A GENE EVENT) required for sale by D&PL of COMBINED GENE COTTON SEED as follows: (i) SYNGENTA shall provide such commercially reasonable assistance at SYNGENTA'S cost (without reimbursement from D&PL) with respect to government approvals, clearances and GOVERNMENT APPROVAL for COMMERCIAL SALE of COMBINED GENE COTTON SEED incorporating a NON-SYNGENTA GENE that is a HERBICIDE TOLERANCE GENE as described in Exhibit H, which COMBINED GENE COTTON SEED has been developed by or on behalf of D&PL to satisfy the requirements of Subsection 3.6(b) and (ii) as to any COMBINED GENE COTTON SEED, other than that described in subpart (i) immediately above, (A) such commercially reasonable assistance shall consist of providing D&PL with access to relevant plant materials, purified VIP3A proteins and all regulatory applications, regulatory data and other data and information owned or developed by SYNGENTA prior to the EFFECTIVE DATE and/or during the term of this LICENSE AGREEMENT for registration of the VIP3A GENE or VIP3A GENE EVENTS with respect to which D&PL has rights to use in cotton, and such additional assistance SYNGENTA may agree to provide pursuant to mutual agreement between SYNGENTA and D&PL, and (B) D&PL shall reimburse SYNGENTA for the reasonable costs of such assistance provided by SYNGENTA at D&PL'S express request, which costs of assistance shall be based on the then current FTE RATE plus reimbursement of out of pocket third party expenses. In accordance with Subsection 4.3(h), the budget for such assistance shall be agreed upon in advance of the assistance being provided. SYNGENTA shall not be required to provide assistance under this Subsection 3.6(a) with respect to any country after the date on which the period in which SYNGENTA'S right to receive the ROYALTY for use of the VIP3A GENE has commenced and has subsequently expired in that country as provided in Subsection 6.3. Notwithstanding any other provision in this LICENSE AGREEMENT, SYNGENTA shall not be obligated to obtain or to provide assistance with respect to government clearances, approvals, or GOVERNMENT APPROVAL for any COMBINED GENE COTTON SEED that requires regulatory and other data with respect to a NON-SYNGENTA GENE contained therein or with respect to the combination of the VIP3A GENE and/or other SYNGENTA GENE(S) and the NON-SYNGENTA GENE(S) contained therein, unless D&PL at its cost and expense, if any, provides SYNGENTA with access and rights to use such regulatory and other data for purposes of obtaining or providing assistance with respect to such government clearances, approvals or GOVERNMENT APPROVAL of the COMBINED GENE COTTON SEED. Nothing in this LICENSE AGREEMENT shall require SYNGENTA to obtain or to provide assistance with respect to government clearances, approvals, or GOVERNMENT APPROVAL for a NON-SYNGENTA GENE except as may be necessary in connection with GOVERNMENT APPROVAL of a combination of such NON-SYNGENTA GENE with a SYNGENTA GENE. (b) D&PL shall use commercially reasonable efforts to incorporate in LICENSED COMMERCIAL SEED of DELTAPINE VIP3A CULTIVARS a NON-SYNGENTA GENE that is a HERBICIDE TOLERANCE GENE. 3.7 CONDITIONS ON LICENSES. In partial consideration for the above LICENSES: (a) D&PL shall choose VARIETAL NAMES to designate cotton seed of DELTAPINE VIP3A CULTIVARS. (b) At SYNGENTA'S written request, D&PL shall conspicuously display on packages and/or containers containing LICENSED COMMERCIAL SEED, covered by the LICENSED PATENT RIGHTS and/or on invoices relating to such LICENSED COMMERCIAL SEED to be sold or transferred to third parties, the following notice, or a notice having substantially the same meaning and effect, with the blanks appropriately filled in: THESE SEEDS ARE COVERED UNDER [APPLICABLE COUNTRY] PATENT(S) ___________. NO SUBLICENSE IS CONVEYED UNDER SAID PATENTS TO USE THESE SEEDS SOLELY BY THE PURCHASE OF SUCH SEEDS. A SUBLICENSE UNDER SAID PATENTS TO USE THESE SEEDS TO PRODUCE A SINGLE COTTON CROP MUST BE OBTAINED FROM [D&PL]. (c) D&PL shall use commercially reasonable efforts not to sell and shall use commercially reasonable efforts (which efforts shall include, but shall not be limited to, incorporating such requirements in all licenses with sublicensees and using commercially reasonable efforts to enforce such requirements) not to permit its sublicensees to sell LICENSED COMMERCIAL SEED that does not meet the AGRONOMIC CRITERIA, SEED PURITY STANDARDS and GENE EQUIVALENCY STANDARDS and which does not otherwise meet the warranties set forth in Subsection 11.2(a) of this LICENSE AGREEMENT; provided that D&PL shall have no liability to SYNGENTA under this LICENSE AGREEMENT or any RELATED AGREEMENT (except as provided in Section 13) unless SYNGENTA can prove that SYNGENTA has suffered losses as a result of D&PL'S not having used such commercially reasonable efforts to prevent the marketing of LICENSED COMMERCIAL SEED not satisfying the requirements of Subsection 3.7(c). D&PL shall require in any sublicense granted pursuant to Section 3.4 that the sublicensee shall not sell LICENSED COMMERCIAL SEED of DELTAPINE VIP3A CULTIVARS or SUBLICENSEE VIP3A CULTIVARS that does not meet the AGRONOMIC CRITERIA, SEED PURITY STANDARDS, and GENE EQUIVALENCY STANDARDS and which does not meet the warranties set forth in Subsection 11.2(a) of this LICENSE AGREEMENT. (d) D&PL shall not modify, use, isolate, analyze, sequence or characterize any DNA sequence contained in a VIP3A GENE that is physically isolated from a seed, plant or cell culture that has been transferred by SYNGENTA to D&PL, or progeny of such seed, plant or cell culture, for any purpose without the prior written consent of SYNGENTA; provided, however, that (i) D&PL may identify and utilize DNA sequences in furtherance of its activities under this LICENSE AGREEMENT and (ii) the prohibitions of this Subsection 3.7(d) shall not apply to modification or use of such DNA sequences that has become part of the public domain in the subject country through no fault of D&PL or which D&PL has received from a third party having no obligation of confidentiality to SYNGENTA. As used in this Subsection 3.7(d), material shall be deemed to have become part of the public domain if a member of the public in the subject country can lawfully sell or transfer the material without infringing a valid claim of a LICENSED PATENT. (e) D&PL and SYNGENTA, acting through the LICENSE MANAGEMENT COMMITTEE in accordance with Subsection 4.4(c), will approve the terms and conditions of any form of sublicense agreement to be executed by LICENSED GROWERS or the wording of container labels or sales documents used in lieu of execution of a grower license agreement, which may include provisions required to maintain the GOVERNMENT APPROVALS (such as the requirement for insect resistance management and stewardship), and restrictions on the licensee to grow only a single commercial crop from the LICENSED COMMERCIAL SEED purchased. D&PL will be responsible for enforcing the terms and conditions of this sublicense agreement. D&PL shall use commercially reasonable efforts to collect all TECHNOLOGY FEES due with respect to LICENSED COMMERCIAL SEED sold by D&PL. D&PL shall require in sublicenses with permitted sublicensees that such sublicensees use commercially reasonable efforts to collect all TECHNOLOGY FEES due with respect to LICENSED COMMERCIAL SEED sold by such sublicensees. SYNGENTA shall use commercially reasonable efforts to collect, and shall require that any permitted licensees (including but not limited to any third parties listed in Item 6 of Exhibit K) to use commercially reasonable efforts to collect, all TECHNOLOGY FEES due with respect to sales of LICENSED COMMERCIAL SEED on which D&PL is entitled to receive a portion of the TECHNOLOGY FEE. 3.8 GENE TRADEMARK. (a) D&PL shall conspicuously display the VIP3A GENE TRADEMARK and accompanying logo on all packages of LICENSED COMMERCIAL SEED in accordance with the VIP3A GENE TRADEMARK LICENSE AGREEMENT. SYNGENTA shall utilize, and require any other permitted licensees to utilize, the same VIP3A GENE TRADEMARK in the same manner prescribed in the VIP3A GENE TRADEMARK LICENSE AGREEMENT on all packages of LICENSED COMMERCIAL SEED. (b) It is agreed that the VIP3A GENE TRADEMARK shall be licensed to D&PL on a non-exclusive royalty-free basis pursuant to the VIP3A GENE TRADEMARK LICENSE AGREEMENT. The parties shall execute said VIP3A GENE TRADEMARK LICENSE AGREEMENT following identification of the final graphic form of the VIP3A GENE TRADEMARK by SYNGENTA. (c) The VIP3A GENE TRADEMARK shall be utilized in the manner specified in the VIP3A GENE TRADEMARK LICENSE AGREEMENT. SYNGENTA shall inform D&PL of the final graphic form of the VIP3A GENE TRADEMARK to be used on LICENSED COMMERCIAL SEED as soon as practicable, and in no event later than June 15 prior to the marketing year in which the VIP3A GENE TRADEMARK is to be used. 3.9 THIRD PARTY VIOLATIONS OR INVALIDITY OF RESTRICTIONS ON SUBLICENSE. The use of LICENSED COMMERCIAL SEED or its progeny by LICENSED GROWERS for purposes other than, or in addition to, production of a single commercial commodity crop, unless expressly authorized by D&PL, shall not be considered a breach of this LICENSE AGREEMENT by D&PL. The LICENSE granted to D&PL shall not be revoked, diminished, or otherwise affected in the event that the limitations and restrictions of the license or sublicense to purchasers are found to be unenforceable as a matter of law, in whole or in part, by any court or government agency. SECTION 4 -- COMMERCIAL DEVELOPMENT ACTIVITIES OF THE PARTIES 4.1 COMMERCIAL DEVELOPMENT PLAN. SYNGENTA and D&PL shall cooperate in the commercial development activities outlined in the COMMERCIAL DEVELOPMENT PLAN. The COMMERCIAL DEVELOPMENT PLAN will be adopted, and may be revised and amended as necessary, by SYNGENTA and D&PL, acting through the LICENSE MANAGEMENT COMMITTEE, in accordance with the procedures for decision making set forth in Subsection 4.5 of this LICENSE AGREEMENT. The COMMERCIAL DEVELOPMENT PLAN shall include: (a) Activities to obtain and maintain GOVERNMENT APPROVALS for commercialization of LICENSED COMMERCIAL SEED including activities to be undertaken by SYNGENTA at its expense (subject to reimbursement by D&PL to the extent provided in this LICENSE AGREEMENT) and the field evaluation and development of GENE EVENTS and field testing of LICENSED COMMERCIAL SEED to be undertaken by D&PL at its expense; and (b) Activities undertaken to provide LICENSED COMMERCIAL SEED for COMMERCIAL SALE by D&PL and its permitted sublicensees. The COMMERCIAL DEVELOPMENT PLAN shall also include specific activities and standards, targeted timelines and the responsibility of each PARTY with respect to each such activity. 4.2 CONSULTATION. SYNGENTA and D&PL shall consult regularly throughout the term of this LICENSE AGREEMENT relative to activities affecting the development and maintenance of sales of LICENSED COMMERCIAL SEED by D&PL and its sublicensees, including but not limited to, SYNGENTA'S creation and release of VIP3A GENE EVENTS for COMMERCIAL DEVELOPMENT, D&PL'S plans for and progress in production and field testing of such LICENSED COMMERCIAL SEED, intellectual property protection including activities to obtain and maintain intellectual property rights covering VIP3A GENES, VIP3A GENE EVENTS and related SYNGENTA TECHNOLOGY, freedom to operate, regulatory approvals and other matters of mutual interest to the PARTIES. The LICENSE MANAGEMENT COMMITTEE shall periodically meet as described in Section 4.5 to discuss such activities and progress hereunder. Subject to any obligations of confidentiality to third parties and subject to neither PARTY'S being required to waive attorney client privilege, SYNGENTA and D&PL shall provide each other with all data, reports, documents and information reasonably required for the LICENSE MANAGEMENT COMMITTEE to perform its responsibilities. 4.3 GENE PROTECTION AND REGULATORY ACTIVITIES. As owner and licensor of the LICENSED PATENT RIGHTS and the SYNGENTA TECHNOLOGY and in consideration for its share of the NET TECHNOLOGY FEE REVENUE, SYNGENTA shall be responsible for activities to support such licensing, including but not limited to the following: (a) Subject to Section 12, SYNGENTA shall use commercially reasonable efforts, necessary in its judgment, to obtain and maintain protection of VIP3A GENE, VIP3A GENE EVENTS and related SYNGENTA TECHNOLOGY and the VIP3A GENE TRADEMARK against unauthorized third party use in the United States of America and in each other country in THE TERRITORY designated by notice from D&PL to SYNGENTA as countries where D&PL and its sublicensees intend to commercialize LICENSED COMMERCIAL SEED, including payment of all expenses to prepare, file, prosecute, maintain and defend product and/or process patents and trademark registrations that cover the VIP3A GENE, VIP3A GENE EVENTS, and related SYNGENTA TECHNOLOGY and the VIP3A GENE TRADEMARK in each such country and to prosecute legal actions against infringement of such patent or trademark rights. SYNGENTA shall perform such activities at its sole expense, provided that SYNGENTA shall be entitled to reimbursement of its reasonable and necessary cost of patent and trademark infringement actions from recoveries from infringing third parties. Notwithstanding the above, any decision to prosecute infringement actions and the extent of such actions shall be at the sole discretion of SYNGENTA. (b) SYNGENTA shall support the development and commercialization of each VIP3A GENE EVENT approved for COMMERCIAL DEVELOPMENT by developing gene and event specific PCR primers and protocols for detection of the VIP3A GENE and each VIP3A GENE EVENT that is released for field testing, developing event specific PCR primers and protocols for detection and zygosity determination of each VIP3A GENE EVENT released to D&PL, developing ELISA strip and plate antibodies and protocols for detection of transgenic proteins produced by each VIP3A GENE released to D&PL and providing technical training and support for the proper utilization of the above tests by D&PL as D&PL may reasonably request. (c) SYNGENTA shall use commercially reasonable efforts to perform the regulatory and registration activities to obtain and maintain GOVERNMENT APPROVAL of the VIP3A GENE and the particular VIP3A GENE EVENT(S) designated for COMMERCIAL DEVELOPMENT in accordance with Section 4.4(b) hereof in the United States of America. SYNGENTA shall bear the expense of such activities for GOVERNMENT APPROVAL in the United States of America for the period from the EFFECTIVE DATE and ending six and one half (6.5) years from the EFFECTIVE DATE, and thereafter so long as an event set forth in Subsection 3.5(c)(ii) has not occurred, SYNGENTA shall bear such expense for such GOVERNMENT APPROVAL in the United States of America subject to reimbursement by D&PL for one hundred percent (100%) of such expenses. [Text in Item 7 of Exhibit K]. Subject to SYNGENTA'S providing D&PL with necessary information to determine the amount due for the subject twelve (12) month period, D&PL shall pay its portion of such expenses to SYNGENTA each year on the later of September 30 or thirty (30) days after D&PL receives the necessary information from SYNGENTA to determine the amount due. (d) Subject to Subsection 4.3(g), for countries outside the United States of America designated by D&PL in a written notice to SYNGENTA as being those countries in which D&PL and its sublicensees intend to commercialize the LICENSED COMMERCIAL SEED, SYNGENTA shall use commercially reasonable efforts to perform the regulatory and registration activities to obtain and maintain GOVERNMENT APPROVAL of the VIP3A GENE and the VIP3A GENE EVENT(S), designated for COMMERCIAL DEVELOPMENT. The expenses shall be borne by SYNGENTA subject to reimbursement by D&PL for one hundred percent (100%) of such expenses, subject to Subsection 4.3(g), provided that if an event set forth in Section 3.5(c)(ii) occurs, such expenses in each country outside the United States of America in each twelve (12) month period ending on August 31 shall be shared by D&PL and SYNGENTA on the basis of the formula set forth in Subsection 4.3(c) based on TECHNOLOGY FEES from sales of LICENSED COMMERCIAL SEED in the subject country during the subject twelve (12) month period. Upon thirty (30) days notice, D&PL may revoke a notice given to SYNGENTA under this Subsection 4.3(d) in which D&PL had asked SYNGENTA to obtain and maintain GOVERNMENT APPROVAL of the VIP3A GENE and VIP3A GENE EVENTS in a particular country provided that D&PL shall reimburse SYNGENTA for one-hundred (100%) percent of the reasonable costs of obtaining GOVERNMENT APPROVAL that have been incurred by or on behalf of SYNGENTA or cannot reasonably be avoided as of the date of receipt of such notice. (e) Subject to the other provisions in Sections 3 and 4, SYNGENTA'S activities under Subsections 4.3(c) and 4.3(d) will also include using commercially reasonable efforts to (i) obtain import, movement and release approvals and permits as may be necessary to permit D&PL or its sublicensees or D&PL'S contract growers to conduct development and increase activities prior to and after GOVERNMENT APPROVAL in the subject country and (ii) compliance with any post-registration and approval requirements imposed as a condition of GOVERNMENT APPROVAL in the subject country as to which SYNGENTA has the responsibility to maintain such registrations or approvals. SYNGENTA shall use commercially reasonable efforts to obtain such GOVERNMENT APPROVALS and/or such import, movement and release approvals and permits at the earliest practical date, provided, however, SYNGENTA makes no representations or warranties to D&PL that SYNGENTA will be able to obtain and/or maintain any such GOVERNMENT APPROVAL or such import, movement and release approvals and permits or that SYNGENTA will be able to obtain such GOVERNMENT APPROVAL or such import, movement and release approvals and permits by the targeted dates which may be set forth in the COMMERCIAL DEVELOPMENT PLAN or otherwise estimated. Subject to the other provisions in Sections 3 and 4, SYNGENTA shall also provide commercially reasonable assistance to D&PL with respect to import, movement and release approvals, clearances, and permits necessary for D&PL to conduct counterseason nurseries, trials and seed increases for DELTAPINE VIP3A CULTIVARS in Costa Rica and other countries reasonably designated by D&PL for counterseason nurseries, trials and seed increases whether or not SYNGENTA is seeking GOVERNMENT APPROVAL in such countries. (f) In consideration of SYNGENTA obtaining in any country outside the United States of America designated by D&PL for SYNGENTA to seek GOVERNMENT APPROVAL for the VIP3A GENE and VIP3A GENE EVENTS, D&PL shall pay to SYNGENTA a milestone payment of ****** per country payable not later than ninety (90) days after SYNGENTA obtains such GOVERNMENT APPROVAL, gives notice thereof to D&PL and delivers to D&PL documents, reasonably satisfactory to D&PL, evidencing that such GOVERNMENT APPROVAL has been obtained, provided, however, it is understood by the PARTIES that SYNGENTA may be requested by D&PL to obtain registration of other traits in the same country pursuant to the RELATED AGREEMENTS and that D&PL shall be obligated to pay SYNGENTA only one such milestone payment per country, regardless of the number of GENES or GENE events for which SYNGENTA obtains GOVERNMENT APPROVAL in such country under this LICENSE AGREEMENT and/or any of the RELATED AGREEMENT(S). If D&PL has notified SYNGENTA that SYNGENTA should seek to obtain the GOVERNMENT APPROVAL for the VIP3A GENE and VIP3A GENE EVENTS in a particular country outside the United States of America, and D&PL later revokes such notice after SYNGENTA has commenced performance and has made regulatory filings in that country, in the event that D&PL obtains GOVERNMENT APPROVAL in that country within eighteen (18) months after the date on which D&PL gave such notice to SYNGENTA, D&PL shall pay to SYNGENTA the milestone payment of ****** for each such country, payable not later than ninety (90) days after such GOVERNMENT APPROVAL has been obtained by or on behalf of D&PL. It is understood by the PARTIES that D&PL shall be obligated to pay SYNGENTA only one such milestone payment per country, regardless of the number of GENES or GENE events as to which GOVERNMENT APPROVALS in such country are obtained under this LICENSE AGREEMENT and/or any of the RELATED AGREEMENT(S). (g) D&PL may, at its expense, perform the regulatory and registration activities required to obtain and maintain GOVERNMENT APPROVAL of the VIP3A GENE and VIP3A GENE EVENTS in any country outside the United States of America, in which D&PL has not designated by notice to SYNGENTA for SYNGENTA to seek GOVERNMENT APPROVAL (or with respect to which D&PL has revoked a notice previously given under Subsection 4.3(d)), in which event Subsection 4.3(f) shall not apply with respect to the VIP3A GENE or VIP3A GENE EVENT(S) as to which D&PL obtains and maintains such GOVERNMENT APPROVAL except as expressly set forth therein in the case where D&PL has revoked a notice previously given to SYNGENTA to obtain such GOVERNMENT APPROVAL. In such countries, SYNGENTA shall provide reasonable assistance to D&PL with respect to import, movement and release approvals and clearances at D&PL's expense. Subject to Subsections 5.3 and 5.4, D&PL shall have a right to obtain from SYNGENTA and use for the purpose of obtaining and maintaining GOVERNMENT APPROVALS, as provided for in this LICENSE AGREEMENT, any relevant plant materials, purified VIP3A proteins and all regulatory applications, regulatory data and other data and information, owned or developed by SYNGENTA prior to the EFFECTIVE DATE or during the term of this LICENSE AGREEMENT for registration of the VIP3A GENE or VIP3A GENE EVENTS with respect to which D&PL has rights in cotton. D&PL at its expense shall obtain and maintain all permits, registrations, clearances or other government or regulatory approvals required under all applicable laws relating to seed varieties required for the testing, development, production and sale of LICENSED COMMERCIAL SEED of DELTAPINE VIP3A CULTIVARS and/or SUBLICENSEE VIP3A CULTIVARS. (h) D&PL's obligations to reimburse SYNGENTA for expenses of obtaining and maintaining GOVERNMENT APPROVALS outside the United States of America as provided in this Section 4.3 shall be limited to application and maintenance fees and similar administrative, regulatory or statutory fees or taxes payable to government regulatory agencies, incremental regulatory expenses incurred by or on behalf of SYNGENTA, and expenses for post-registration maintenance activities included but not limited to stewardship and insect resistance management activities (including personnel costs at the then current FTE RATE, and third party out of pocket expenses) specifically related to obtaining and maintaining such GOVERNMENT APPROVALS in such countries but shall not include reimbursement by D&PL of any of SYNGENTA'S general administrative or overhead expenses or of any expenses of activities required in any event for SYNGENTA to obtain and maintain, at its sole expense during such period, GOVERNMENT APPROVALS in the United States of America. There shall be no duplication of reimbursement of costs and expenses under this LICENSE AGREEMENT and under the RELATED AGREEMENT(S). D&PL and SYNGENTA must agree in advance on a budget for any activities and expenses for which SYNGENTA may request reimbursement from D&PL under this LICENSE AGREEMENT, including, but not limited to, activities (i) to obtain or maintain GOVERNMENT APPROVALS in countries outside the United States of America, (ii) to obtain or maintain GOVERNMENT APPROVALS in the United States of America after six and one half (6.5) years from the EFFECTIVE DATE, (iii) to assist D&PL with obtaining and maintaining GOVERNMENT APPROVALS, and (iv) to assist D&PL with obtaining GOVERNMENT APPROVALS for COMBINED GENE COTTON SEED where SYNGENTA is entitled to request reimbursement under Subsection 3.6(a). If after good faith negotiations SYNGENTA and D&PL do not, within one hundred twenty (120) days, agree upon a commercially reasonable budget for any specific activities requested by D&PL to be performed by SYNGENTA under Section 4.3(h), Subparts (i) through (iv), SYNGENTA shall not, on that occasion, be required to perform such specific activities requested by D&PL. SYNGENTA shall invoice D&PL quarterly, not later than thirty (30) days after the end of each calendar quarter, for all personnel costs or out-of-pocket expenses for which SYNGENTA is entitled to reimbursement under this LICENSE AGREEMENT during the preceding quarter. The invoice shall itemize the services and expenses for which reimbursement is sought. Payment of amounts due under such invoices shall be due thirty (30) days after receipt by D&PL. For a period of seven (7) years, SYNGENTA shall keep records supporting the amounts invoiced to D&PL and shall permit its books and records to be examined on a confidential basis from time to time by a national auditing firm, reasonably acceptable to SYNGENTA, appointed by and at the expense of D&PL, to the extent necessary to verify amounts invoiced. (i) Neither D&PL nor SYNGENTA (if otherwise permitted to do so under this LICENSE AGREEMENT) shall commence COMMERCIAL SALE (nor authorize any other party to commence COMMERCIAL SALE) in any particular country in THE TERRITORY of LICENSED COMMERCIAL SEED containing a particular VIP3A GENE EVENT with respect to which D&PL has rights in cotton, prior to the later of (i) the DATE OF GOVERNMENT APPROVAL or (ii) DATE OF APPROVAL FOR COMMERCIAL SALE of that VIP3A GENE EVENT in the subject country, provided that (ii) shall not apply if D&PL has notified or is deemed to have notified SYNGENTA that it or its sublicensees will not commercialize LICENSED COMMERCIAL SEED containing the VIP3A GENE as provided in Subsection 4.3(k). (j) All government approvals and any import, movement and release approvals and permits for the VIP3A GENE and VIP3A GENE EVENTS obtained by SYNGENTA shall be owned and held in the name of SYNGENTA or its AFFILIATES unless otherwise required by applicable law in the subject country, provided that D&PL shall have the right to use the same with respect to import, export, production, use and sale of LICENSED COMMERCIAL SEED under this LICENSE AGREEMENT. All government approvals and any import, movement, and release approvals and permits for the VIP3A GENE and the VIP3A GENE EVENTS obtained by D&PL pursuant to Subsection 4.3(g) shall be owned and held in the name of D&PL or its AFFILIATES unless otherwise required by the applicable law of the subject country, provided that SYNGENTA and its licensees shall have the right to use the same with respect to import, export, production, use and sale of cottonseed containing the VIP3A GENE when SYNGENTA and/or its licensees are permitted to engage in such activities under Subsection 3.5 of this LICENSE AGREEMENT. D&PL shall not assign or transfer and shall not permit a third party who may hold the governmental approvals in its name (if so required by applicable law) to assign or transfer such government approvals, except that D&PL may assign such government approvals under the same circumstances under which D&PL may assign this LICENSE AGREEMENT and its rights and obligations under Section 14.1(a). Upon termination of the LICENSE AGREEMENT, at SYNGENTA'S request and subject to SYNGENTA'S payment to D&PL of ****** , D&PL shall assign and transfer and shall cause any third party as applicable to assign or transfer to SYNGENTA, to the extent permitted under applicable law, all government approvals for the VIP3A GENE and the VIP3A GENE EVENTS obtained by D&PL pursuant to Subsection 4.3(g) and shall return all data and other information provided by SYNGENTA to D&PL under Subsection 4.3(g) (k) In the event that D&PL gives notice to SYNGENTA that D&PL or its sublicensees will not commercialize LICENSED COMMERCIAL SEED containing the VIP3A GENE in a particular country outside the United States of America, SYNGENTA shall have the right to commercialize the VIP3A GENE in that country in any cotton cultivars selected by SYNGENTA (other than in DELTAPINE VIP3A CULTIVARS or SUBLICENSEE VIP3A CULTIVARS unless such cultivars are licensed by D&PL to SYNGENTA for such purpose), including the right to test, develop, produce, have produced, multiply and sell cotton seed containing the VIP3A GENE, alone or in combination with other GENE(S), and to grant licenses under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY to any third party to develop, produce, have produced, multiply, and sell cottonseed containing the VIP3A GENE in their germplasm. If SYNGENTA elects to exercise this right, it shall promptly notify D&PL, in which event SYNGENTA may assume responsibility, at its expense, for regulatory and commercialization activities for that VIP3A GENE and VIP3A GENE EVENT in such country. After recovery by SYNGENTA of its regulatory and other expenses necessary for GOVERNMENT APPROVAL and introduction of the VIP3A GENE and VIP3A GENE EVENT into such country, and after deduction of any TECHNOLOGY FEES or other amounts due to or retained by SYNGENTA'S third party seed company licensees D&PL shall receive seventy percent (70%) of the net NET TECHNOLOGY FEE REVENUE and SYNGENTA shall receive thirty percent (30%) of the net NET TECHNOLOGY FEE REVENUE in that country; provided that if an event under Subsection 3.5(c)(ii) shall have occurred, then the sharing and allocation of NET TECHNOLOGY FEE REVENUE shall be governed by the provisions of Subsection 3.5(c)(ii). D&PL agrees that not later than two (2) years after GOVERNMENT APPROVAL of the VIP3A GENE has been obtained in the United States of America, D&PL shall with respect to each of the following countries: Australia, Brazil, India and the People's Republic of China, either (i) request that SYNGENTA obtain GOVERNMENT APPROVAL or (ii) notify SYNGENTA that D&PL will obtain GOVERNMENT APPROVAL and then proceed with commercially reasonable efforts to obtain GOVERNMENT APPROVAL. If D&PL does not take one of the actions set forth in the preceding sentence with respect to any one or more of such named countries, then with respect to that country(ies), D&PL shall be deemed to have notified SYNGENTA that it will not commercialize LICENSED COMMERCIAL SEED with the VIP3A GENE in that country and the provisions of this Subsection 4.3(k) shall apply to such country. 4.4 SEED DEVELOPMENT AND COMMERCIALIZATION RESPONSIBILITIES. SYNGENTA shall deliver to D&PL (in viable cotton seed) each VIP3A GENE EVENT developed by SYNGENTA before or during the term of this LICENSE AGREEMENT that SYNGENTA determines is a potential candidate for COMMERCIAL DEVELOPMENT. SYNGENTA'S obligation under the preceding sentence shall terminate upon occurrence of an event described in Subsection 3.5(c)(ii), Subparts (A), (B) and/or (C), and/or upon the occurrence of an event described in Subsection 3.5(c)(ii), Subpart (E), if D&PL gives SYNGENTA the notice described in the third sentence of Subsection 10.2(d), and/or upon the termination of this LICENSE AGREEMENT pursuant to Subsection 14.2(b)(ii)(B). D&PL shall be responsible for the commercialization of LICENSED COMMERCIAL SEED of DELTAPINE VIP3A CULTIVARS and SUBLICENSEE VIP3A CULTIVARS. In furtherance of the development and commercialization of such LICENSED COMMERCIAL SEED by D&PL and its permitted sublicensees: (a) D&PL shall determine, in its judgment reasonably exercised in good faith, the following provisions of the COMMERCIAL DEVELOPMENT PLAN pertaining to development and commercialization of VIP3A GENE EVENTS and LICENSED COMMERCIAL SEED: (i) The criteria for COMMERCIAL INSECT RESISTANCE for VIP3A GENE EVENTS; (ii) Criteria for selection of VIP3A GENE EVENTS for COMMERCIAL DEVELOPMENT; (iii) GENE EQUIVALENCY STANDARDS; (iv) Modifications, if necessary, to the procedure for determining satisfaction of AGRONOMIC CRITERIA (set forth in Exhibit D); and (v) Modifications, if necessary, to SEED PURITY STANDARDS (set forth in Exhibit E). D&PL shall give notice to the LICENSE MANAGEMENT COMMITTEE of its determination of foregoing provisions of the COMMERCIAL DEVELOPMENT PLAN, together with a written statement of the basis for D&PL'S determination and, where appropriate, supporting documents. Upon request from SYNGENTA, and subject to any obligations of confidentiality to which D&PL is subject in agreements with third parties that are in effect on the EFFECTIVE DATE and provided that D&PL shall not be required to waive attorney client privilege, representatives of D&PL shall discuss D&PL's determinations under Section 4.4(a) with the members of the LICENSE MANAGEMENT COMMITTEE. (b) D&PL shall determine, in its judgment reasonably exercised in good faith, and consistent with the COMMERCIAL DEVELOPMENT PLAN: (i) Whether particular VIP3A GENE EVENTS have exhibited the criteria for COMMERCIAL INSECT RESISTANCE; (ii) Which particular VIP3A GENE EVENTS shall be subject to COMMERCIAL DEVELOPMENT; (iii) Whether particular DELTAPINE VIP3A CULTIVARS and SUBLICENSEE VIP3A CULTIVARS meet the AGRONOMIC CRITERIA, GENE EQUIVALENCY STANDARDS and SEED PURITY STANDARDS; and (iv) Which particular DELTAPINE VIP3A CULTIVARS and SUBLICENSEE VIP3A CULTIVARS that meet the foregoing standards shall be commercialized in particular countries. D&PL shall give notice to the LICENSE MANAGEMENT COMMITTEE of its determinations with respect to the foregoing, together with a written statement of the basis for D&PL'S determination and, where appropriate, supporting documents. Upon request from SYNGENTA, and subject to obligations of confidentiality to which D&PL is subject in agreements with third parties that are in effect on the EFFECTIVE DATE and provided that D&PL shall not be required to waive attorney client privilege, representatives of D&PL shall discuss D&PL's determinations under Section 4.4(b) with the members of the LICENSE MANAGEMENT COMMITTEE. (c) D&PL shall make recommendations to the LICENSE MANAGEMENT COMMITTEE on the following matters: (i) The mode of collection of TECHNOLOGY FEES with respect to sales of LICENSED COMMERCIAL SEED in any particular country or geographical region, as provided for in Subsection 6.1(a); (ii) The terms and conditions of any form of sublicense agreements to be executed by LICENSED GROWERS or the wording of container labels or sales documents used in lieu of or in addition to the execution of grower license agreements, as provided for in Subsection 3.1 and Subsection 3.7(e); (iii) The strategy, format, and content of promotion and incentive programs relating to the use of VIP3A GENES to LICENSED COMMERCIAL SEED, including items which may be deducted from TECHNOLOGY FEES in determining NET TECHNOLOGY FEE REVENUE, as provided in Subsection 2.1.50; (iv) The dates by which D&PL shall make recommendations concerning appropriate TECHNOLOGY FEES in each PRICING REGION as provided for in Subsection 6.1(d)(i); (v) The content, scope, limitation and/or necessary conditions of performance warranties which may be made by the PARTIES concerning the VIP3A GENE and/or LICENSED COMMERCIAL SEED as provided in Section 13. D&PL shall give SYNGENTA not less than six (6) months advance notice of the date(s) by which D&PL will next make a recommendation on matters described in Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii). The LICENSE MANAGEMENT COMMITTEE shall make a determination on each of the matters described in Subsection 4.4(c) in accordance with the provisions in Subsection 4.5(d). 4.5 LICENSE MANAGEMENT COMMITTEE. (a) Formation of LICENSE MANAGEMENT COMMITTEE. SYNGENTA and D&PL hereby agree to form the LICENSE MANAGEMENT COMMITTEE, to be comprised of four (4) members, with two (2) members to be appointed by each of SYNGENTA and D&PL. The LICENSE MANAGEMENT COMMITTEE will be chaired on a rotating annual basis by a SYNGENTA member or a D&PL member designated by SYNGENTA or D&PL as the case may be. The LICENSE MANAGEMENT COMMITTEE shall be responsible for adopting, revising and amending (as necessary) and overseeing the COMMERCIAL DEVELOPMENT PLAN for the VIP3A GENE and other matters expressly delegated to the LICENSE MANAGEMENT COMMITTEE under this LICENSE AGREEMENT. (b) Meetings. The LICENSE MANAGEMENT COMMITTEE shall meet at least quarterly, alternating between the United States corporate offices of SYNGENTA and D&PL or at such other sites as the LICENSE MANAGEMENT COMMITTEE may agree upon. The first such meeting shall be held at the United States corporate offices of SYNGENTA within thirty (30) days after the EFFECTIVE DATE. Participation in any meeting of the LICENSE MANAGEMENT COMMITTEE may be in person, by telephone, by video conference or by other means of telecommunication that enables all members of the LICENSE MANAGEMENT COMMITTEE participating in the meeting to communicate simultaneously with each other. If personal participation in a meeting by a member of the LICENSE MANAGEMENT COMMITTEE is not practical, that member may, by written notice to each of the other members of the LICENSE MANAGEMENT COMMITTEE, designate a proxy with voting authority. In addition, the LICENSE MANAGEMENT COMMITTEE may act without a formal meeting by a written consent signed, in original or counterparts, by all the members of the LICENSE MANAGEMENT COMMITTEE. Subject to the obligations set forth in Article 8, representatives of either PARTY, in addition to the members of the LICENSE MANAGEMENT COMMITTEE, may attend LICENSE MANAGEMENT COMMITTEE meetings as nonvoting observers at the invitation of either PARTY. (c) Minutes. LICENSE MANAGEMENT COMMITTEE shall keep accurate minutes of its meetings and record all decisions and all actions recommended or taken. Draft minutes shall be delivered to the members of the LICENSE MANAGEMENT COMMITTEE within twenty (20) days after each meeting. The members of the LICENSE MANAGEMENT COMMITTEE shall elect or appoint a secretary for each meeting and such secretary shall be responsible for the preparation and circulation of the draft minutes. Draft minutes shall be edited by the members of the LICENSE MANAGEMENT COMMITTEE and shall be issued in final form only with their approval and agreement as evidenced by their signatures on the minutes. Minutes of LICENSE MANAGEMENT COMMITTEE meetings shall be Confidential Information. (d) Decision Making. (i) At each LICENSE MANAGEMENT COMMITTEE meeting, at least one (1) member appointed by each of SYNGENTA and D&PL shall constitute a quorum. Decisions shall be made by unanimous vote, with all the members representing SYNGENTA collectively having one vote and the members representing D&PL collectively having one vote. (ii) As to each matter coming before the LICENSE MANAGEMENT COMMITTEE one PARTY (the "RESPONSIBLE PARTY") shall be responsible for making a recommendation for action or decision. The designation of the RESPONSIBLE PARTY is based on its primary areas of responsibility under this LICENSE AGREEMENT, provided that: (A) SYNGENTA shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE relating to activities and decisions with respect to further development of the VIP3A GENE and VIP3A GENE EVENTS and technical support for development and commercialization activities, as described in Subsection 4.3(b). (B) SYNGENTA shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE with respect to activities and decisions relating to obtaining and maintaining GOVERNMENT APPROVAL of VIP3A GENE EVENTS designated by D&PL in the United States of America and other countries designated by D&PL as countries in which SYNGENTA is to seek government approval and D&PL shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE with respect to activities and decisions relating to obtaining and maintaining GOVERNMENT APPROVAL in other countries. (C) D&PL shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE relating to commercialization of LICENSED COMMERCIAL SEED on matters described in Subsections 4.4(c)(i) to (v). (D) D&PL shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE for activities relating to product performance including the content of product performance claims and advertising and the handling of product performance claims under Section 13. (iii) In any case where a PARTY is required or permitted under this LICENSE AGREEMENT to make a recommendation to the LICENSE MANAGEMENT COMMITTEE, that PARTY will provide with its recommendation to the LICENSE MANAGEMENT COMMITTEE documentation supporting such recommendation reasonably sufficient for the other PARTY and the LICENSE MANAGEMENT COMMITTEE to be able to assess and understand the basis for the recommendation. In the event SYNGENTA disagrees with any recommendation made by D&PL as the RESPONSIBLE PARTY under Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii), SYNGENTA shall within ten (10) business days after receipt of D&PL'S recommendation give written notice to D&PL and the LICENSE MANAGEMENT COMMITTEE of its disagreement with D&PL's recommendation, and any alternative recommendation, and documentation supporting such disagreement with D&PL'S recommendation and SYNGENTA'S alternative recommendation reasonably sufficient for D&PL and the LICENSE MANAGEMENT COMMITTEE to be able to assess and understand the basis for SYNGENTA'S disagreement and its alternative recommendation. The PARTY making any recommendation or response and counter-recommendation under this Subsection 4.4(d)(iii) shall not be required to provide information to the extent that to do so would breach such PARTY'S written contractual obligations to any third party or waive attorney client privilege. (iv) The LICENSE MANAGEMENT COMMITTEE shall not unreasonably withhold or delay approval of a recommendation from the RESPONSIBLE PARTY on matters within its areas of primary responsibility. Whether a decision of the LICENSE MANAGEMENT COMMITTEE on a recommendation from a RESPONSIBLE PARTY is consistent with the preceding sentence shall be subject to the dispute resolution provisions of Subsection 4.5(d)(v) and, as appropriate, to arbitration under Subsection 14.12 except as to any recommendation and alternative recommendation made with respect to Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii), as to which the procedures set forth in Subsection 4.5(d)(vi) shall apply with respect to arbitration before the SPECIAL TECHNOLOGY FEE PANEL selected, empanelled and reimbursed as provided in Subsection 6.1(d)(iv). (v) If the LICENSE MANAGEMENT COMMITTEE is unable to reach unanimous agreement on any matter (a "DEADLOCK MATTER"), upon written notice by any one or more members of the LICENSE MANAGEMENT COMMITTEE, the DEADLOCK MATTER shall be referred for resolution to an Executive Management Committee consisting of a member of senior management of SYNGENTA as designated by SYNGENTA and a member of the senior management of D&PL as designated by D&PL (the "EXECUTIVE MANAGEMENT COMMITTEE"). The LICENSE MANAGEMENT COMMITTEE shall endeavor to adopt a resolution referring the DEADLOCK MATTER setting forth the specifics of the issues to be resolved, which resolution, together with information and documentation relevant to the DEADLOCK MATTER, shall be forwarded to the members of the EXECUTIVE MANAGEMENT COMMITTEE; provided, however, that failure of the LICENSE MANAGEMENT COMMITTEE to agree upon the form of such resolution or assembling of documentation shall not delay the referral of the DEADLOCK MATTER to the EXECUTIVE MANAGEMENT COMMITTEE. Upon receipt of notice of a DEADLOCK MATTER, the EXECUTIVE MANAGEMENT COMMITTEE shall meet promptly in person, or by telephone, video conference or other means of telecommunication and endeavor to reach agreement. Decisions of the EXECUTIVE MANAGEMENT COMMITTEE shall be by unanimous vote and shall be binding on the PARTIES and the members of the LICENSE MANAGEMENT COMMITTEE. If the EXECUTIVE MANAGEMENT COMMITTEE is unable to unanimously resolve the DEADLOCK MATTER within thirty (30) days from the date of the deadlock necessitating referral to the EXECUTIVE MANAGEMENT COMMITTEE, such dispute may be submitted by either PARTY to arbitration pursuant to Subsection 14.12, provided that in the event the DEADLOCK MATTER is a recommendation made by D&PL as the RESPONSIBLE PARTY under Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii), such dispute, if submitted to arbitration by either PARTY, shall be submitted to arbitration before the SPECIAL TECHNOLOGY FEE PANEL for resolution in accordance with the procedure set forth in Subsection 4.5(d)(vi). (vi) Within ten (10) business days after either PARTY gives notice of submission to the SPECIAL TECHNOLOGY FEE PANEL of a DEADLOCK MATTER on a recommendation made by D&PL as the RESPONSIBLE PARTY under Subsections 4.49c)(i), 4.4(c)(ii) and/or 4.4(c)(iii), (A) D&PL shall submit to SYNGENTA and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL a written statement setting forth why the subject recommendation made by D&PL is consistent with the "Purpose" (the "Purpose" shall mean maximizing the NET TECHNOLOGY REVENUE to the PARTIES under this LICENSE AGREEMENT and/or any other goals to be served by the recommendation under this LICENSE AGREEMENT which have been agreed by the PARTIES in advance) (and is more consistent with that Purpose than the alternative recommendation by SYNGENTA to the LICENSE MANAGEMENT COMMITTEE) and (B) SYNGENTA shall submit to D&PL and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL a written statement setting forth why the subject recommendation made by D&PL is not consistent with the Purpose and/or why the alternative recommendation made by SYNGENTA to the LICENSE MANAGEMENT COMMITTEE is more consistent with the Purpose than the recommendation by D&PL. Within five (5) business days after submission of the foregoing statements, SYNGENTA and D&PL may submit to the other PARTY and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL further written statements supplementing their initial statements. The PARTIES' written statements may be accompanied by any supporting documents the submitting PARTY deems relevant. Within twenty (20) business days after the date of transmission of the notice under Subsection 4.5(d)(v), the SPECIAL TECHNOLOGY FEE PANEL shall meet, in person or by means of telecommunications, and shall decide, by majority vote, whether D&PL'S subject recommendation is more consistent with the Purpose than SYNGENTA'S alternative recommendation. In the event that the SPECIAL TECHNOLOGY FEE PANEL finds D&PL'S recommendation to be more consistent with the Purpose than SYNGENTA'S alternative recommendation, then D&PL'S recommendation shall be followed by the PARTIES for the period for which such recommendation was to be effective, unless the PARTIES otherwise mutually agree. In the event that the SPECIAL TECHNOLOGY FEE PANEL finds that SYNGENTA'S alternative recommendation to be more consistent with the Purpose than D&PL'S recommendation, then SYNGENTA'S alternative recommendation shall be followed by the PARTIES for the period for which such recommendation was to be effective, unless the PARTIES otherwise mutually agree. The SPECIAL TECHNOLOGY FEE PANEL shall make its decision based on the PARTIES' written submissions. No personal appearances or other communications with the members of the SPECIAL TECHNOLOGY FEE PANEL shall be permitted. The SPECIAL TECHNOLOGY FEE PANEL shall notify SYNGENTA and D&PL in writing of their decision. The decision of the SPECIAL TECHNOLOGY FEE PANEL shall be final and binding on SYNGENTA and D&PL. SECTION 5 -- OWNERSHIP OF TECHNOLOGY 5.1 SYNGENTA TECHNOLOGY AND LICENSED PATENT RIGHTS. (a) All SYNGENTA TECHNOLOGY shall remain the property of SYNGENTA, including all improvements thereto discovered and reduced to practice by SYNGENTA or by D&PL in the course of performance of activities pursuant to this LICENSE AGREEMENT, provided that SYNGENTA hereby grants D&PL licenses to any such improvements without payment of additional consideration and otherwise on the same terms as the LICENSES granted herein (unless any SYNGENTA TECHNOLOGY is in-licensed by SYNGENTA from any third party, and the license with such third party contains contrary terms with respect to improvements). (b) Each of the LICENSED PATENT RIGHTS shall remain the property of the owner thereof as of the EFFECTIVE DATE or as of the date on which such patent rights are added to the LICENSED PATENT RIGHTS. 5.2 D&PL TECHNOLOGY. All D&PL TECHNOLOGY shall remain the property of D&PL including all improvements thereto discovered and reduced to practice by SYNGENTA or by D&PL in the course of performance of activities pursuant to this LICENSE AGREEMENT (unless any D&PL TECHNOLOGY is in-licensed by D&PL from any third party, in which case D&PL will decide ownership in reference to the license terms with such third party). 5.3 SAFETY, TOXICOLOGY AND EFFICACY DATA. SYNGENTA shall own all data that relates solely to the safety, toxicology, efficacy, and performance of the GENE including the protein product and which does not relate to D&PL CULTIVARS or to a NON-SYNGENTA GENE. D&PL shall own all data that relates to the agronomic performance and fiber properties of D&PL CULTIVARS and/or NON-SYNGENTA GENE(S) and which does not relate to SYNGENTA GENE(S). SYNGENTA and D&PL shall jointly own all other safety, toxicological, and efficacy data generated jointly through activities undertaken pursuant to the COMMERCIAL DEVELOPMENT PLAN; provided that neither D&PL nor SYNGENTA shall grant any rights of access or use of such jointly owned data to any third party to obtain GOVERNMENT APPROVALS or clearances, unless expressly agreed by the other PARTY or as expressly permitted under this LICENSE AGREEMENT. The provisions of this LICENSE AGREEMENT shall not affect the rights of any third parties supplying NON-SYNGENTA GENE(S) to access or ownership of any safety, toxicological, and efficacy data relating to NON-SYNGENTA GENE(S) or COMBINED GENE COTTON SEED containing NON-SYNGENTA GENE(S) supplied by such third party. 5.4 USE OF DATA. SYNGENTA and D&PL shall have a royalty-free license to use data owned by the other PARTY developed by activities undertaken pursuant to this LICENSE AGREEMENT for the purposes set forth in this LICENSE AGREEMENT. Subject to obligations of confidentiality and non-use in agreements with third parties, such data shall be delivered to the other PARTY upon request, which delivery will not be unreasonably delayed. SECTION 6 -- TECHNOLOGY FEES AND ROYALTY 6.1 TECHNOLOGY FEE. The TECHNOLOGY FEE shall be set based on the principles for establishing TECHNOLOGY FEES set forth in Section 6.1(c) through the procedure for establishing TECHNOLOGY FEES set forth in Section 6.1(d) (except as otherwise expressly provided in this LICENSE AGREEMENT). (a) Collection of TECHNOLOGY FEES. The TECHNOLOGY FEE may be either (i) a grower license fee charged directly to LICENSED GROWERS for a limited use sublicense under the LICENSED PATENTS, the purchase of which is required prior to the time of purchasing LICENSED COMMERCIAL SEED, or (ii) an amount allocated to the sublicense under the LICENSED PATENTS included in the sales price of LICENSED COMMERCIAL SEED or (iii) other forms of value capture. The mode of collection of the TECHNOLOGY FEE with respect to LICENSED COMMERCIAL SEED of DELTAPINE VIP3A CULTIVARS or SUBLICENSEE VIP3A CULTIVARS in any particular country or geographical region at any time will be determined in accordance with Section 4 based upon the market conditions and the mode of sale of other cotton seed products and related technology in that market. [Text in Item 8 of Exhibit K]. (b) Basis of Calculation of TECHNOLOGY FEES. Regardless of the form in which the TECHNOLOGY FEE is charged, the TECHNOLOGY FEE will be calculated based on the quantity of LICENSED COMMERCIAL SEED sold. In the United States, the TECHNOLOGY FEE will be established for each PRICING REGION, and, if charged on a per acre basis, the TECHNOLOGY FEE shall be converted from a fee per acre to a fee per UNIT of seed of the particular LICENSED COMMERCIAL SEED taking into consideration the applicable SEED DROP RATE. Establishment of appropriate mechanisms for application of the TECHNOLOGY FEES to LICENSED COMMERCIAL SEED sold in countries outside of the United States will be determined in accordance with Section 4. (c) [Text in Exhibit J] (d) Procedure For Establishing TECHNOLOGY FEES. The TECHNOLOGY FEE for use of the VIP3A GENE embodied in LICENSED COMMERCIAL SEED sold by D&PL for each PRICING REGION shall be set annually utilizing the following procedure ([Text in Item 9 of Exhibit K]): (i) D&PL shall make recommendations annually concerning the appropriate TECHNOLOGY FEE in each PRICING REGION. D&PL shall also make recommendations on COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS that D&PL, in its discretion, can provide as discounts from the TECHNOLOGY FEES as approved by SYNGENTA to meet competitive conditions in the marketplace in the particular PRICING REGION. For the United States of America, D&PL'S recommendations shall be made not later than September 15 of the calendar year before the commencement of the cotton planting season in which the TECHNOLOGY FEE and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS will be in effect. For other countries, D&PL will establish by notice to SYNGENTA a date by which D&PL'S recommendations shall be made prior the commencement of the marketing season in which the TECHNOLOGY FEE and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS will be in effect, which date shall be not less than six (6) months before the commencement of the cotton planting season in such country. D&PL will provide SYNGENTA with documentation supporting such recommendation sufficient for SYNGENTA to be able to assess and understand the basis for D&PL'S recommendation and its conformity with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c). Such documentation shall include factual support and specific information to the extent reasonably available, provided that D&PL shall not be required to provide information to the extent that to do so would breach D&PL'S written contractual obligations to any third party. (ii) Within ten (10) business days after receipt of D&PL recommendations, SYNGENTA shall give D&PL written notice of the TECHNOLOGY FEE and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for each of the subject PRICING REGIONS for the forthcoming marketing season. (iii) In the event that SYNGENTA'S notice of TECHNOLOGY FEES and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for any of the subject PRICING REGIONS is different from D&PL'S recommendation with respect thereto, D&PL may within ten (10) business days after receipt of SYNGENTA'S notice under Subsection 6.1(d)(ii) give notice to SYNGENTA of submission of the TECHNOLOGY FEE or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for such PRICING REGION to binding arbitration to as provided in Subsections 6.1(d)(iv) through 6.1(d)(vi). (iv) Arbitration concerning TECHNOLOGY FEES and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS shall be conducted before a special panel of three (3) arbitrators each of whom shall be a person with expertise and experience in the field of agribusiness and who has no current or previous employment nor any current ownership interest in SYNGENTA or D&PL (the "SPECIAL TECHNOLOGY FEE PANEL"), provided that either PARTY may request a waiver of the disqualification of any member or proposed member of the SPECIAL TECHNOLOGY PANEL on account of a current non-material ownership interest in a PARTY, which request for waiver shall not be unreasonably denied or delayed. The members of the SPECIAL TECHNOLOGY FEE PANEL shall be selected by mutual agreement between SYNGENTA and D&PL within ninety (90) days after execution of this LICENSE AGREEMENT. In the event that SYNGENTA and D&PL do not mutually agree on the members of the SPECIAL TECHNOLOGY FEE PANEL within ninety (90) days after execution of this LICENSE AGREEMENT, then within one hundred twenty (120) days after execution of this LICENSE AGREEMENT, SYNGENTA and D&PL shall each select one member of the SPECIAL TECHNOLOGY FEE PANEL and the two members thus selected shall select the third member. In the event of the death, disability or resignation of a member of the SPECIAL TECHNOLOGY FEE PANEL, if the subject member was appointed by SYNGENTA or D&PL, the resulting vacancy shall be filled by the appointing PARTY or, if the subject member was appointed by mutual agreement of SYNGENTA or D&PL, the resulting vacancy shall be filled by mutual agreement of SYNGENTA or D&PL, provide further that if SYNGENTA and D&PL do not fill such vacancy by mutual agreement within ten (10) business days after such a vacancy occurs or, in any event, if the member to be replaced was selected by the two members selected respectively by SYNGENTA and D&PL, the vacancy shall be filled by the two remaining members. Members of the SPECIAL TECHNOLOGY FEE PANEL shall receive reimbursement for the reasonable value of their service on the SPECIAL TECHNOLOGY FEE PANEL and their reasonable out of pocket expenses connected therewith. Such amounts shall be paid one-half by SYNGENTA and one-half by D&PL. (v) Within ten (10) business days after D&PL gives a notice to SYNGENTA under Subsection 6.1(d)(iii), (A) SYNGENTA shall submit to D&PL and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL a written statement setting forth why each of the TECHNOLOGY FEES and/or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS in SYNGENTA'S notice under Subsection 6.1(d)(ii) that has been submitted to arbitration is more consistent with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c) than was D&PL recommendation with respect thereto and (B) D&PL shall submit to SYNGENTA and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL a written statement setting forth why D&PL'S recommendation as to each of the TECHNOLOGY FEES and/or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS in SYNGENTA'S notice under Subsection 6.1(d)(ii) that is submitted to arbitration is more consistent with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c) than is the TECHNOLOGY FEE or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS in SYNGENTA'S notice under Subsection 6.1(d)(ii). Within five (5) business days after submission of the foregoing statements, SYNGENTA and D&PL may submit to the other PARTY and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL further written statements supplementing their initial statements. The PARTIES' written statements may be accompanied by any supporting documents the submitting PARTY deems relevant. (vi) Within twenty (20) business days after the date of transmission of D&PL'S notice under Subsection 6.1(d)(iii), the SPECIAL TECHNOLOGY FEE PANEL shall meet, in person or by means of telecommunications, and shall decide, by majority vote, based the principles for determining TECHNOLOGY FEES set forth in Subsection 6.1I, whether the TECHNOLOGY FEE and/or the COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS recommended by D&PL under Subsection 6.1(d)(i) or the TECHNOLOGY FEE and/or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS designated by SYNGENTA in its notice under Subsection 6.1(d)(ii) shall be the TECHNOLOGY FEE and/or the COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for the forthcoming marketing season in the subject PRICING REGION. The SPECIAL TECHNOLOGY FEE PANEL shall be limited to selecting only one or the other of these two amounts for the TECHNOLOGY FEE. The SPECIAL TECHNOLOGY FEE PANEL shall make its decision based on the PARTIES' written submissions. No personal appearances or other communications with the members of the SPECIAL TECHNOLOGY FEE PANEL shall be permitted. The SPECIAL TECHNOLOGY FEE PANEL shall notify SYNGENTA and D&PL in writing of their decision. The decision of the SPECIAL TECHNOLOGY FEE PANEL shall be final and binding on SYNGENTA and D&PL. (vii) In the event that D&PL fails to submit a recommendation to SYNGENTA under Subsection 6.1(d)(i) by the date specified for its recommendation, SYNGENTA shall determine TECHNOLOGY FEES and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS and give notice thereof to D&PL by the twentieth (20th) business day after D&PL'S recommendation had been due, and the procedures set forth in Subsections 6.1(d)(iii) through 6.1(d)(vi) shall not apply. (viii) In the event that D&PL submits its recommendations to SYNGENTA under Subsection 6.1(d)(i) by the date specified therein, and SYNGENTA does not give notice by the date specified in Subsection 6.1(d)(ii) of a TECHNOLOGY FEE or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for any of the subject PRICING REGIONS that is different from D&PL'S recommendation, D&PL'S recommendation shall be deemed to be the TECHNOLOGY FEE or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS set by SYNGENTA for the forthcoming marketing season in the subject PRICING REGION and the procedures set forth in Subsections 6.1(d)(iii) through 6.1(d)(vi) shall not apply. 6.2 COMPENSATION TO SYNGENTA FOR LICENSE TO THE GENE. In consideration of the rights under the LICENSE granted pursuant to Subsections 3.1, 3.2 and 3.3, and for SYNGENTA performing its responsibilities under Section 4, D&PL shall pay the ROYALTY to SYNGENTA. 6.3 ROYALTY PERIOD. SYNGENTA'S right to receive the ROYALTY shall begin on the date of the first COMMERCIAL SALE by D&PL or by its permitted sublicensee of LICENSED COMMERCIAL SEED containing the VIP3A GENE in a particular country in THE TERRITORY and shall end with regard to a particular country as follows: (a) where the LICENSED COMMERCIAL SEED contains the VIP3A GENE and no NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE, on the later of (i) EXPIRATION of the last-to-expire patent in that country of LICENSED PATENT RIGHTS with one or more valid and enforceable claim(s) which, in the absence of a license from SYNGENTA under this LICENSE AGREEMENT, would be infringed by the making, using, or selling of LICENSED COMMERCIAL SEED in that particular country or (ii) the tenth (10th) anniversary of the date of the first COMMERCIAL SALE of LICENSED COMMERCIAL SEED containing the VIP3A GENE by D&PL or by its ~ublicense in that country; and (b) where the LICENSED COMMERCIAL SEED contains the VIP3A GENE and a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE, then the later of (i) EXPIRATION of the last-to-expire patent in that country of LICENSED PATENT RIGHTS under this LICENSE AGREEMENT or under LICENSED PATENT RIGHTS under a RELATED AGREEMENT with respect to such NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE with one or more valid and enforceable claim(s) which, in the absence of a license from SYNGENTA under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT with respect to the license of the NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE, would be infringed by the making, using, or selling of LICENSED COMMERCIAL SEED in that particular country or (ii) the tenth (10th) anniversary of the date of the first COMMERCIAL SALE of LICENSED COMMERCIAL SEED containing both the VIP3A GENE and the NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE in combination, by D&PL or by its sublicensee in that country. Upon expiration of the applicable above-described period, D&PL shall have a permanent, paid-up license in that particular country (a) to sell LICENSED COMMERCIAL SEED, (b) to use said LICENSED COMMERCIAL SEED and the progeny thereof for any purpose, including to introduce the VIP3A GENE and related SYNGENTA TECHNOLOGY into other DELTAPINE CULTIVARS, and (c) to use the VIP3A GENE, markers, promoters, and other genetic material that were transferred into the specific DELTAPINE VIP3A CULTIVAR(S) with the VIP3A GENE and related SYNGENTA TECHNOLOGY, in other DELTAPINE CULTIVARS, provided that (1) SYNGENTA and D&PL shall each take necessary actions to maintain GOVERNMENT APPROVAL of the VIP3A GENE and any then approved VIP3A GENE EVENTS in all countries in THE TERRITORY where D&PL is selling LICENSED COMMERCIAL SEED upon expiration of the ROYALTY period; provided that SYNGENTA shall have the option to transfer responsibility for maintaining such GOVERNMENTAL APPROVALS to D&PL by giving written notice thereof to D&PL; (2) no license is provided either expressly or by implication under any patent which was not part of the LICENSED PATENT RIGHTS; and (3) SYNGENTA and D&PL and its sublicensees shall have no future responsibility to each other, in that particular country, under Sections 11, 12, and 13 of this LICENSE AGREEMENT with respect to the VIP3A GENE or LICENSED COMMERCIAL SEED containing the VIP3A GENE, or the markers, promoters, and other genetic material that were transferred to D&PL with the VIP3A GENE. Termination of such future responsibilities shall not affect obligations which accrued prior to the expiration of such period. SECTION 7 -- BUSINESS RECORDS/PAYMENTS 7.1 D&PL BUSINESS RECORDS. D&PL shall keep records (and require, in its sublicense agreements with permitted sublicensees, that its sublicensees keep records) and maintain such records for a period of seven (7) years showing the amount of LICENSED COMMERCIAL SEED sold or otherwise transferred to third parties by D&PL and its sublicensees, if any, and TECHNOLOGY FEES billed and collected in connection with such sales. D&PL further agrees to permit its books and records to be examined (and to use commercially reasonable efforts to cause its sublicensees to permit their books and records to be examined) from time to time to the extent necessary to verify the reports provided for in this Section 7, such confidential examination to be made on a confidential basis by a national auditing firm, reasonably acceptable to D&PL, appointed by and at the expense of SYNGENTA; provided that if the results of the audit show that the amount actually due SYNGENTA is 5% or more over and above the amount paid by D&PL, then D&PL shall reimburse SYNGENTA for such audit expenses. If the audit determines that there has been an underpayment or overpayment, the amount shall be remitted promptly within thirty (30) days with interest at the rate stated in Subsection 7.7. 7.2 D&PL REPORTS AND PAYMENTS. (a) On or before the 10th day of each month, D&PL shall submit to SYNGENTA a report that summarizes, by PRICING REGION to the extent then known by D&PL, (i) the gross TECHNOLOGY FEES associated with UNITS of particular cultivars of LICENSED COMMERCIAL SEED, if any, shipped by D&PL and its sublicensees during the immediately preceding month, and (ii) cash payments, discounts and any other adjustments to gross TECHNOLOGY FEES which were approved for payment or issuance during the immediately preceding month that are deductible in determining NET TECHNOLOGY FEE REVENUE. (b) On or before September 30 of each year, D&PL shall submit to SYNGENTA a report which summarizes, by PRICING REGION (i) the gross TECHNOLOGY FEES billed and collected, (ii) the UNITS of LICENSED COMMERCIAL SEED of particular DELTAPINE VIP3A CULTIVARS(S) purchased by the LICENSED GROWERS stated in total and, to the extent then known by D&PL, by LICENSED GROWER, (iii) cash payments, discounts, any other adjustments to the published gross TECHNOLOGY FEES and all other amounts deductible from TECHNOLOGY FEES to determine NET TECHNOLOGY FEE REVENUE in total and by each LICENSED GROWER, and (iv) the NET TECHNOLOGY FEE REVENUE received by D&PL for the twelve (12) months ending on August 31 of that year. With each such annual report, D&PL shall pay to SYNGENTA thirty percent (30%) of the NET TECHNOLOGY FEE REVENUE shown on such annual report, including NET TECHNOLOGY FEE REVENUE received by D&PL with respect to sales of LICENSED COMMERCIAL SEED by D&PL and its sublicensees. If no such payments are due for the subject reporting period the written report shall so state. 7.3 SYNGENTA BUSINESS RECORDS. SYNGENTA shall keep records (and, in its licenses to permitted licensees, require that its licensees keep records) and maintain such records for a period of seven (7) years showing the amount of LICENSED COMMERCIAL SEED sold or otherwise transferred to third parties by SYNGENTA (or its licensees, if any) and TECHNOLOGY FEES due in connection with such sales and shall use commercially reasonable efforts to require any permitted licensees on whose sales of LICENSED COMMERCIAL SEED D&PL is entitled to payment of a percentage of the NET TECHNOLOGY FEE REVENUE pursuant to Subsection 3.5 to keep records showing the amount of LICENSED COMMERCIAL SEED sold or otherwise transferred to third parties by such permitted licenses and the TECHNOLOGY FEES due in connection with such sales. SYNGENTA further agrees to permit its books and records to be examined and to use commercially reasonable efforts to cause its permitted licensees to permit their books and records to be examined on a confidential basis from time to time to the extent necessary to verify the reports provided for in this Section 7, such confidential examination to be made by a national auditing firm, reasonably acceptable to SYNGENTA, appointed by and at the expense of D&PL; provided that if the results of the audit show that the amount actually due D&PL is 5% or more over and above the amount paid by SYNGENTA, then SYNGENTA shall reimburse D&PL for such audit expenses. If the audit determines that there has been an underpayment or overpayment, the amount shall be remitted promptly within thirty (30) days with interest at the rate stated in Subsection 7.7. 7.4 SYNGENTA REPORTS AND PAYMENTS. (a) On or before the 10th day of each month, SYNGENTA shall submit to D&PL a report that summarizes, by PRICING REGION to the extent then known by SYNGENTA, (i) the UNITS of particular cultivars of LICENSED COMMERCIAL SEED, if any, shipped by SYNGENTA or its permitted licensee(s) during the immediately preceding month on which D&PL is entitled to payment of a percentage of the NET TECHNOLOGY FEE REVENUE pursuant to Subsection 3.5, (ii) the gross TECHNOLOGY FEES associated with the UNITS of particular cultivars of LICENSED COMMERCIAL SEED shipped during the immediately preceding month, and (iii) cash payments, discounts, and any other adjustments to gross TECHNOLOGY FEES which were approved for payment or issuance during the immediately preceding month that are deductible in determining NET TECHNOLOGY FEE REVENUE. (b) On or before September 30 of each year, SYNGENTA shall submit to D&PL a report which summarizes, by PRICING REGION (i) the gross TECHNOLOGY FEES billed and collected, (ii) the UNITS of particular CULTIVARS of LICENSED COMMERCIAL SEED purchased by the LICENSED GROWERS stated in total and, to the extent then known by SYNGENTA, by LICENSED GROWER, (iii) cash payments, discounts, and any other adjustments to the published gross TECHNOLOGY FEES deductible in determining NET TECHNOLOGY FEE REVENUE, and (iv) the NET TECHNOLOGY FEE REVENUE due with respect to LICENSED COMMERCIAL SEED sold by SYNGENTA or its permitted licensee(s) on whose sales of LICENSED COMMERCIAL SEED D&PL is entitled to payment of a percentage of the NET TECHNOLOGY FEE REVENUE for the twelve (12) months ending on August 31 of that year. With each such annual report, SYNGENTA shall pay to D&PL the applicable percentage of any NET TECHNOLOGY FEE REVENUE shown on such annual report received by SYNGENTA or its permitted licensees with respect to sales of LICENSED COMMERCIAL SEED by SYNGENTA'S permitted licensees. If no such payments are due for the subject reporting period the written report shall so state. 7.5 PAYMENT ADDRESS. Reports and payments due pursuant to this Section 7 shall be sent to: If to DELTA AND PINE LAND COMPANY: Delta and Pine Land Company One Cotton Row Scott, Mississippi 38772 Attention: President If to SYNGENTA: SYNGENTA CROP PROTECTION AG Schwardzwaldallee 215 CH- 4058, Basel, Switzerland Attention: Head of Finance or other such addresses as may be designated by the PARTIES from time to time. 7.6 PAYMENTS. (a) Payments due to SYNGENTA shall be paid by wire transfer as SYNGENTA shall from time to time direct. Except when such direction is for payment to be made in local currency or as otherwise provided herein, all amounts to be paid to SYNGENTA shall be calculated in U.S. dollars using the U.S. dollar buying exchange rate (if applicable) at D&PL's financial institution in effect on the date on which the payment is due. Payments due to D&PL shall be paid by wire transfer as D&PL shall from time to time direct. Except when such direction is for payment to be made in local currency or as otherwise provided herein, all amounts to be paid to D&PL shall be calculated in U.S. dollars using the U.S. dollar buying exchange rate (if applicable) at SYNGENTA'S financial institution in effect on the date on which the payment is due. Deductions of income and withholding taxes shall be made from payments as required by applicable laws and regulations. Deductions shall also be made from any amount owed under this LICENSE AGREEMENT of one half of the amount of any foreign exchange fees, fax fees, bank charges and like transactional costs. Appropriate documents evidencing and supporting any such deductions shall be provided at the time payment is made. (b) With respect to all payments due under this LICENSE AGREEMENT that are subject to approval by any government agency having regulatory authority over the transfer of payments and such other laws and regulations that may apply, the PARTY obligated to make such payments shall use commercially reasonable efforts to obtain such approval and the other PARTY shall, upon request, provide assistance and information needed to obtain such approval upon request. In the event of a lack of government approval to transmit payments hereunder, the PARTY obligated to make such payments shall use commercially reasonable efforts to place all sums constituting payments due to the other PARTY under this LICENSE AGREEMENT in an interest bearing account for the benefit of the PARTY entitled to the payment. Provided however, that in the event such payments are not, despite that PARTY'S commercially reasonable efforts, placed in such interest bearing account, no interest thereon shall accrue. 7.7 INTEREST ON OUTSTANDING BALANCES. If D&PL or SYNGENTA fails to pay on any due date any amount which is payable under this LICENSE AGREEMENT, then, without prejudice to other remedies, that amount shall bear interest at the "Prime Rate on Corporate Loans at Large U. S. Money Center Commercial Banks" as reported by the Wall Street Journal on said due date plus three percent (3%) per annum from the due date until payment is made in full, both before and after any judgment. 7.8 SYNGENTA PATENT RECORDS. [Text in Exhibit I] SECTION 8 -- CONFIDENTIALITY 8.1 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. (a) Neither D&PL nor SYNGENTA shall, at any time during the period specified by Subsection 8.2, disclose to any other person any confidential TECHNOLOGY or other confidential information which has been disclosed to it by the other PARTY or the terms of this LICENSE AGREEMENT or the RELATED AGREEMENTS except with the prior written consent of the other PARTY or as provided in Subsection 8.3; provided, however, (i) SYNGENTA shall be permitted to disclose information relating to performance of the VIP3A GENE to the extent such disclosure is necessary or desirable for the development and commercialization of cotton seed containing the VIP3A GENE, provided, further that, SYNGENTA shall not disclose information relating specifically only to DELTAPINE CULTIVARS, and (ii) D&PL shall be permitted to disclose any information relating to the performance of DELTAPINE VIP3A CULTIVAR(S) to the extent required under contracts with licensors of NON-SYNGENTA GENE(S) contained therein. (b) SYNGENTA shall not disclose confidential D&PL pricing, sales or other sensitive information to any competitor of D&PL. To the extent that such arrangements are commercially practical with SYNGENTA'S existing personnel staffing levels, SYNGENTA shall use separate personnel to handle D&PL sensitive commercial information from the personnel with access to commercial information from any competitor of D&PL. 8.2 PERIOD OF CONFIDENTIALITY. The period referred to in Subsection 8.1 shall be the period beginning with the date of receipt of the confidential TECHNOLOGY or other confidential information and ending, with respect to that TECHNOLOGY, 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 8.1 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. 8.3 USES OF CONFIDENTIAL INFORMATION. Subject to the overriding provisions of Subsections 5.3 and 5.4, any TECHNOLOGY or other confidential information which is disclosed by either D&PL or SYNGENTA to the other PARTY may be: (a) Disclosed by the RECIPIENT to any directors, officers, employees, agents or contractors of the RECIPIENT, to such extent only as is reasonably necessary for fulfillment of the RECIPIENT'S obligations under this LICENSE AGREEMENT or under the COMMERCIAL DEVELOPMENT PLAN or for the commercial exploitation of the cotton seed containing the GENE, 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 LICENSE 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 seek 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 TECHNOLOGY and/or other confidential information and permit said other PARTY, at its option, to contest said requirement and to seek confidential treatment of such TECHNOLOGY or 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 reasonable measures to seek 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 TECHNOLOGY and/or other confidential information and permit said other PARTY, at its option to contest said requirement and to seek confidential treatment of such TECHNOLOGY or 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 EFFECTIVE DATE 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 RECIPIENT prior to such disclosure. SECTION 9 -- FORCE MAJEURE 9.1 FORCE MAJEURE. Except with regard to any payments required pursuant to this LICENSE 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 government authority, including, but not limited to, government actions restricting or preventing the growing of LICENSED COMMERCIAL SEED in areas where D&PL has historically produced seed; provided, however, that the PARTY so affected shall, as promptly as reasonably possible under the circumstances, give written or oral notice to the other PARTY 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 9.1, it may suspend performance of this LICENSE 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 LICENSE AGREEMENT as soon as practicable after removal or cessation of the cause for the delay or reduction in performance. SECTION 10 -- TERM AND TERMINATION 10.1 TERM OF LICENSES. The term of the LICENSES granted pursuant to this LICENSE AGREEMENT shall begin on the EFFECTIVE DATE and shall continue in perpetuity so long as LICENSED COMMERCIAL SEED is sold, licensed or used in THE TERRITORY as provided herein, unless the LICENSES are terminated earlier pursuant to a provision of this Section 10 or otherwise under the terms of this LICENSE AGREEMENT. 10.2 TERMINATION. [Text in Exhibit L] 10.3 BREACH OF OBLIGATIONS. Breach by SYNGENTA of any of the material provisions of this LICENSE AGREEMENT (other than default upon any of the payment obligations provided herein) shall entitle D&PL to give SYNGENTA notice to cure such breach or default. Breach by D&PL of any of the material provisions of this LICENSE AGREEMENT (other than default upon any of the payment obligations provided herein) shall entitle SYNGENTA to give D&PL notice to cure such breach. If a breach is not cured within the ninety (90) day period, the materially-affected PARTY may terminate this LICENSE 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 14.12 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 14.12(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 10.3 to take effect immediately. 10.4 DEFAULT ON PAYMENT. In the event of default on any payment due by SYNGENTA to D&PL or by D&PL to SYNGENTA hereunder and failure to cure such default within sixty (60) days of notice, the non-defaulting PARTY shall have the right to terminate this LICENSE AGREEMENT 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 14.12 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 14.12(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 10.4 to take effect immediately. 10.5 EFFECT OF TERMINATION [Text in Exhibit L] 10.6 SURVIVAL OF COVENANTS. Notwithstanding the termination of this LICENSE AGREEMENT by notice or otherwise, the rights and obligations conferred by Sections 6, 7, 8 and 11, 12, 13, and 14 with respect to events which occurred prior to such termination shall survive termination. SECTION 11 -- WARRANTIES AND WARRANTY LIMITATIONS 11.1 SYNGENTA WARRANTIES. SYNGENTA hereby warrants and represents that: (a) As of the DATE OF APPROVAL FOR COMMERCIAL SALE of each VIP3A GENE EVENT in a particular country, SYNGENTA: (i) is the owner or licensee of the VIP3A GENE, the subject VIP3A GENE EVENT, and SYNGENTA TECHNOLOGY used in the development thereof; (ii) is owner or licensee of the LICENSED PATENT RIGHTS; and (iii) has the right to license (or sublicense) to D&PL the VIP3A GENE, the subject VIP3A GENE EVENT, and LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY used in the development thereof for use under the terms of this LICENSE AGREEMENT in the subject country; (b) As of the EFFECTIVE DATE, to the best of SYNGENTA'S knowledge there is no valid and enforceable third-party United States patent or foreign patent, not then a part of the LICENSED PATENT RIGHTS, that will preclude or restrict either SYNGENTA'S or D&PL'S lawful performance under this LICENSE AGREEMENT in the subject country; (c) As of the date on which SYNGENTA gives the notice described in Subsection 4.3(b) with respect to a VIP3A GENE EVENT in a particular country in which SYNGENTA is responsible for obtaining GOVERNMENT APPROVAL, GOVERNMENT APPROVAL has been obtained for that country; and (d) All material information that SYNGENTA has provided or hereafter provides to any government agency for the purpose of obtaining GOVERNMENT APPROVAL is, to the best of SYNGENTA'S knowledge and belief, true and correct in all material respects. Provided, however, that this warranty is not made to D&PL with respect to any such information which was supplied to SYNGENTA by D&PL and which was thereafter provided in the same or substantially the same form by SYNGENTA to a government agency nor information with respect to a NON-SYNGENTA GENE received by SYNGENTA from or through D&PL as to which information SYNGENTA makes no warranties, express or implied. (e) SYNGENTA'S utilization of the procedures and materials that SYNGENTA has employed or may hereafter employ in the development and evaluation of the VIP3A GENE and/or any VIP3A GENE EVENT does not contravene any provision of any agreement or contract binding upon SYNGENTA. (f) If on the EFFECTIVE DATE or thereafter, SYNGENTA is obligated to pay royalties to any third party for rights under the LICENSED PATENT RIGHTS, SYNGENTA shall pay, in full and by the date due, all such royalties (subject to any reimbursement as provided in Section 12.1(b) if applicable). As of the EFFECTIVE DATE, no uncured breach or default exists under any agreement or contract relating to SYNGENTA'S rights to practice and to sublicense D&PL under any third party patent or patent application which is part of the LICENSED PATENT RIGHTS, and, to the best of SYNGENTA'S knowledge, no condition exists which, if not cured, would result in such a breach or default. 11.2 D&PL WARRANTIES. D&PL hereby warrants and represents that: (a) D&PL shall not sell (and shall require in any sublicense granted pursuant to Section 3.4 that its sublicense shall not sell), without the written approval of SYNGENTA, LICENSED COMMERCIAL SEED that fails to meet the SEED PURITY STANDARD for the VIP3A GENE EVENT embodied therein and/or that fails to meet the GENE EQUIVALENCY STANDARD for the VIP3A GENE EVENT. D&PL shall keep lot samples of all LICENSE COMMERCIAL SEED sold by D&PL following the protocol set forth in the COMMERCIAL DEVELOPMENT PLAN for at least two (2) years following the date of creation of such lot of LICENSED COMMERCIAL SEED. (b) [Text in Item 10 of Exhibit K] (c) As of the date on which D&PL commences COMMERCIAL SALE of LICENSED COMMERCIAL SEED of any particular DELTAPINE VIP3A CULTIVAR in any particular country, the COMMERCIAL SALE of such LICENSED COMMERCIAL SEED does not contravene any provision of any agreement with any third party binding upon D&PL. D&PL shall have used commercially reasonable efforts to determine that, as of the date on which any sublicensee of D&PL commences COMMERCIAL SALE of LICENSED COMMERCIAL SEED of any particular sublicensee VIP3A CULTIVAR in any particular country, the COMMERCIAL SALE of such LICENSED COMMERCIAL SEED does not contravene any provision of any agreement with any third party binding upon such sublicensee. 11.3 MUTUAL WARRANTIES. (a) SYNGENTA warrants to D&PL that this LICENSE AGREEMENT does not and, performance by SYNGENTA of its obligations hereunder will not, contravene any provision of any agreement or contract binding upon SYNGENTA. (b) D&PL warrants to SYNGENTA that this LICENSE AGREEMENT does not, and performance by D&PL of its obligations hereunder will not, contravene any provision of any agreement or contract binding upon D&PL. 11.4 NO OTHER WARRANTIES. IT IS EXPRESSLY UNDERSTOOD THAT D&PL AND SYNGENTA MAKE NO REPRESENTATIONS, EXTEND NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ASSUME NO RESPONSIBILITIES, OTHER THAN EXPRESSLY PROVIDED FOR HEREIN, WITH RESPECT TO: (a) THE PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE GENE, RELATED SYNGENTA TECHNOLOGY, LICENSED COMMERCIAL SEED, DELTAPINE CULTIVARS, AND DELTAPINE VIP3A CULTIVARS; (b) THE SCOPE OR VALIDITY OF ANY PATENT OF THE LICENSED PATENT RIGHTS, OR (c) THE VIP3A GENE, RELATED SYNGENTA TECHNOLOGY, LICENSED COMMERCIAL SEED, DELTAPINE CULTIVARS, DELTAPINE VIP3A CULTIVARS, OR USE THEREOF BEING FREE FROM INFRINGEMENT OF PATENTS OTHER THAN LICENSED PATENT RIGHTS. 11.5 EXCLUSIVE REMEDY. Except to the extent that D&PL establishes that it was induced to enter this LICENSE AGREEMENT as a result of SYNGENTA'S fraud, intentional misrepresentation or misrepresentation due to gross negligence related to whether D&PL's and its sublicensees' activities under this LICENSE AGREEMENT infringe a claim of a third party patent or whether the LICENSED PATENTS and/or the SYNGENTA TECHNOLOGY are valid or enforceable, D&PL'S and its sublicensees' exclusive remedies for losses, damages, or liability, resulting from a claim that their activities under this LICENSE AGREEMENT infringe a claim of a third party patent or that the LICENSED PATENTS and/or the SYNGENTA TECHNOLOGY are not valid or enforceable, are the patent indemnification obligations expressly set forth in Section 12 of this LICENSE AGREEMENT. A dispute as to whether D&PL has established that it was so induced shall be subject to the dispute resolution process under Subsection 14.12 of this LICENSE AGREEMENT. Notwithstanding anything to the contrary in the LICENSE AGREEMENT or a RELATED AGREEMENT, including without limitation Section 12, SYNGENTA shall have no liability or obligations with respect to a claim that D&PL's and its sublicencees' activities under this LICENSE AGREEMENT or a RELATED AGREEMENT infringe a claim of a third party patent with respect to a GENE which has not been licensed by SYNGENTA to D&PL under this LICENSE AGREEMENT or under a RELATED AGREEMENT. SECTION 12 -- PATENT INFRINGEMENT [Text in Exhibit I] SECTION 13 -- CLAIMS BY VENDEES FOR FAILURE OF GENE PERFORMANCE [Text in Exhibit M] SECTION 14 -- GENERAL 14.1 ASSIGNMENT OF D&PL'S RIGHTS AND OBLIGATIONS. (a) The rights and obligations under this LICENSE AGREEMENT pertaining to D&PL are personal to D&PL and D&PL shall not (by operation of law or otherwise) assign, mortgage, pledge as security, or sublicense any of its rights hereunder, nor shall D&PL subcontract or delegate (other than in the ordinary course of business) any of its obligations hereunder (except as otherwise provided in this LICENSE AGREEMENT), except with the prior written consent of SYNGENTA, provided that, without the consent of SYNGENTA, (i) D&PL may, in the ordinary course of business, subcontract or delegate performance of its obligations under this LICENSE AGREEMENT (including, but not limited to, breeding, development, increase, testing, and marketing seed and collecting TECHNOLOGY FEES) to third parties under contract with D&PL, provided that D&PL shall remain liable to SYNGENTA with respect to performance of D&PL'S obligations under this LICENSE AGREEMENT by such third party(ies), and (ii) D&PL shall have the right to assign this LICENSE AGREEMENT and the rights and obligations hereunder (A) to an AFFILIATE of D&PL 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 D&PL'S cotton seed business, either alone or in conjunction with other D&PL business, provided that, as a condition of such assignment, the assignee shall agree in writing to be bound by the provisions hereof. (b) The provisions of Subsection 14.1(a) notwithstanding, in the event of a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION, the provisions of the LICENSE ACQUISITION AGREEMENT and this LICENSE AGREEMENT expressly relating to a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION shall apply. 14.2 ASSIGNMENT OF SYNGENTA'S RIGHTS AND OBLIGATIONS. (a) The rights and obligations under this LICENSE AGREEMENT pertaining to SYNGENTA are personal to SYNGENTA and SYNGENTA shall not (by operation of law or otherwise) assign, mortgage, or pledge as security any of its rights hereunder, nor shall SYNGENTA subcontract or otherwise delegate (other than in the ordinary course of business) any of its obligations hereunder (except as otherwise provided in this LICENSE AGREEMENT), except with the prior written consent of D&PL, provided that, without the consent of D&PL, (i) when expressly permitted to do so under other provisions of this LICENSE AGREEMENT, SYNGENTA may, in the ordinary course of business, subcontract or delegate performance of its obligations under this LICENSE AGREEMENT (including, but not limited to, breeding, development, increase, testing, and marketing seed and collecting TECHNOLOGY FEES) to third parties under contract with SYNGENTA, provided that SYNGENTA shall remain liable to D&PL with respect to performance of SYNGENTA'S obligations under this LICENSE AGREEMENT by such third party(ies), and (ii) SYNGENTA shall have the right to assign this LICENSE AGREEMENT and the rights and obligations hereunder (A) to an AFFILIATE of SYNGENTA 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 as may then be responsible for compliance with this LICENSE AGREEMENT, either alone or in conjunction with other SYNGENTA business, provided that, as a condition of such assignment, the assignee shall agree in writing to be bound by the provisions hereof. (b) [Text in Item 11 of Exhibit K] 14.3 RELATION OF PARTIES. Nothing in this LICENSE AGREEMENT shall create, or be deemed to create, a partnership, or the relationship of principal and agent among the parties. SYNGENTA CROP PROTECTION AG and DELTA AND PINE LAND COMPANY shall each be primarily liable for and shall guarantee the payment and performance of all of the obligations of their respective AFFILIATES hereunder. 14.4 INTEGRATION OF CONTRACT. This LICENSE AGREEMENT 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 LICENSE AGREEMENT and the LICENSE ACQUISITION AGREEMENT and the RELATED AGREEMENTS entered into by D&PL and SYNGENTA pursuant to the LICENSE ACQUISITION AGREEMENT, provided that ****** 14.5 WAIVERS AND AMENDMENTS. This LICENSE 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 LICENSE 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 LICENSE AGREEMENT. 14.6 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 LICENSE AGREEMENT or as a limitation of the scope of the particular Section or Subsection to which they refer. 14.7 REFERENCES TO SECTIONS, SUBSECTIONS AND EXHIBITS. Unless otherwise expressly stated, all Sections and Subsections referred to herein are Sections and Subsections of this LICENSE AGREEMENT, and all Exhibits referred to herein are Exhibits attached hereto. 14.8 PARTIAL INVALIDITY. If any provision of this LICENSE AGREEMENT is held by any competent authority to be invalid or unenforceable in whole or in part, this LICENSE 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 LICENSE 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). 14.9 GOVERNING CONTRACT LAW. THIS LICENSE AGREEMENT SHALL, EXCEPT AS PROVIDED IN SUBSECTION 14.10, 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. 14.10 GOVERNING PATENT LAW. Any question arising out of this LICENSE AGREEMENT 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. 14.11 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 D&PL: 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: 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 14.12 DISPUTE RESOLUTION. (a) Any claim, dispute, difference or controversy between the PARTIES arising out of, or relating to, this LICENSE AGREEMENT which has not been settled by mutual understanding between the PARTIES (a "DISPUTE") shall be submitted within thirty (30) days of the initial written notice of the existence 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 except as to those matters which are to be submitted to the SPECIAL TECHNOLOGY FEE PANEL as provided in this LICENSE AGREEMENT: (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 14.12. 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. Unless the period for consideration by the PANEL is extended by mutual written agreement, any demand for arbitration shall be made within ten (10) days after expiration of the thirty (30) day period for resolution of the DISPUTE in question by the PANEL 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 and one (1) of whom shall be appointed by D&PL. 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 do not 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. (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 reasonable efforts to minimize adverse economic consequences to the PARTIES under this LICENSE AGREEMENT and the other 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 14.12 shall serve to preclude any PARTY from its right to seek any judicial remedy at law or equity to enforce the award of the arbitrators or to exercise its other rights, if any, under this LICENSE AGREEMENT. (d) Anything in this Subsection 14.12 notwithstanding, this Subsection 14.12 shall not apply to the establishment of TECHNOLOGY FEES where Subsection 6.1(d) applies and shall not apply to any dispute with respect to matters under Subsection 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii) where such dispute has been submitted to the SPECIAL TECHNOLOGY FEE PANEL as provided in Subsections 4.5(d)(iv) and (v). 14.13 INCORPORATION OF EXHIBITS. Exhibits A-M, inclusive, are incorporated herein and made a part hereto. IN WITNESS WHEREOF, this LICENSE AGREEMENT has been executed by duly authorized representatives of the PARTIES herein. DELTA AND PINE LAND COMPANY By: --------------------------------- Title: ------------------------------ SYNGENTA CROP PROTECTION AG By: --------------------------------- Title: ------------------------------ By: --------------------------------- Title: ------------------------------ EXHIBIT A LICENSED PATENT RIGHTS ****** EXHIBIT B VIP3A GENE TRADEMARK LICENSE AGREEMENT This Agreement, made as of the _______ day of ___________, 20____, by and between SYNGENTA PARTICIPATIONS AG, a company organized under the laws of Switzerland, having a place of business at Schwarzwaldallee 215, CH-4058, Basel, Switzerland (hereinafter referred to as "SYNGENTA"), and Delta and Pine Land Company, a corporation organized and existing under the laws of the State of Delaware, having its principal place of business at One Cotton Row, Scott, Mississippi 38772 (hereinafter referred to as "LICENSEE"). SYNGENTA and LICENSEE each a "Party" and, jointly, the "Parties". WITNESSETH: WHEREAS, SYNGENTA is the owner of the trademark, which is the subject of [country] trademark application no. ________________ for VIP3A GENE(S) (as defined in the LICENSE AGREEMENT) (hereinafter referred to as the "VIP3A Gene Trademark"); and WHEREAS, SYNGENTA'S Affiliate Syngenta Crop Protection AG and LICENSEE are parties to the VIP3A Gene License Agreement effective ____________, 2004, directed to the licensing of certain SYNGENTA patent rights and technology relating to transgenic cotton plants containing insect resistance genes (hereinafter referred to as the "LICENSE AGREEMENT"); and WHEREAS, LICENSEE desires to obtain a license to use the VIP3A Gene Trademark in connection with the sale of transgenic cotton seed containing VIP3A insect resistance genes licensed to D&PL pursuant to the LICENSE AGREEMENT and the Parties wish to use the VIP3A GENE TRADEMARK in accordance with the LICENSE AGREEMENT; NOW, THEREFORE, in consideration of the mutual undertakings and obligations herein obtained, the parties agree as follows: 1. SYNGENTA hereby grants to LICENSEE, subject to all of the terms and conditions herein contained, a non-exclusive, royalty-free license to use the VIP3A Gene Trademark on or in relation to cottonseed which contains VIP3A GENE(S) and which has been produced pursuant to the LICENSE AGREEMENT (hereinafter referred to as "Goods"). This license shall be assignable to a third party only in the manner specified in Section 14.1 of the LICENSE AGREEMENT and only as part and parcel of an assignment of the LICENSE AGREEMENT. 2. LICENSEE agrees that to use the VIP3A Gene Trademark on all Goods, but only on Goods which meet the criteria for "COMMERCIAL INSECT RESISTANCE" as defined in the LICENSE AGREEMENT. 3. SYNGENTA shall have the right at all reasonable times to inspect and examine the methods, processes and containers used by LICENSEE in bagging, treating and storing the Goods on which the LICENSEE uses the VIP3A Gene Trademark and to request samples of such Goods and containers. LICENSEE agrees to permit such inspections and examinations and to furnish such samples. Such inspection and examination shall be for the sole purpose of confirming that the quality of the Goods meets the standards set forth in writing by SYNGENTA and shall not be used for any competitive purpose whatsoever. D&PL may at any time require that such inspections and evaluations be conducted on a confidential basis by a third-party inspector selected by SYNGENTA and acceptable by D&PL, which inspector shall report to SYNGENTA and D&PL only whether or not D&PL is in compliance with this VIP3A GENE TRADEMARK AGREEMENT, and if not in compliance, the areas of non-compliance without otherwise disclosing to SYNGENTA D&PL's methods and procedures. 4. LICENSEE shall have the right to use the VIP3A Gene Trademark in advertising and promotional literature and the like, as well as on labels, packaging, containers and the like, for the Goods sold pursuant to the LICENSE AGREEMENT. LICENSEE agrees that each such use of the VIP3A Gene Trademark shall be in accordance with the provisions of Section 3.8 of the LICENSE AGREEMENT and agrees that the VIP3A Gene Trademark shall be keyed by an asterisk to a footnote reading "Trademark of, and used under license from, a Syngenta Group Company". After the VIP3A Gene Trademark has been registered in [Country], SYNGENTA will notify the LICENSEE of the registration and thereafter LICENSEE shall change the asterisk to the (R) symbol which shall be keyed to the footnote "Registered trademark of, and used under license from, a Syngenta Group Company". 5. LICENSEE agrees to submit to SYNGENTA'S representatives upon reasonable request, samples of labels, packaging, containers, advertising, promotional materials and other materials to which the VIP3A Gene Trademark is applied. 6. The term of this Agreement shall be coextensive with the term of the LICENSE AGREEMENT unless sooner terminated in accordance with the terms of Section 7 hereof. 7. If at any time, LICENSEE should use the VIP3A Gene Trademark for Goods not produced in accordance with the terms of the LICENSE AGREEMENT, or if at any time LICENSEE breaches any other provision of this Agreement or fails to observe any of its obligations hereunder the license granted herein shall be terminable upon written notice from SYNGENTA to that effect. Provided, however, that LICENSEE shall have ninety (90) days from the receipt of such notice to cure any breach or default, and all provisions of the LICENSE AGREEMENT relating to notice of breach, cure and dispute resolution shall apply to this VIP3A GENE TRADEMARK LICENSE AGREEMENT. 8. To the extent that such reporting would not conflict with other obligations legally binding on D&PL, LICENSEE agrees to notify SYNGENTA promptly of any apparent infringement of the VIP3A Gene Trademark which comes to LICENSEE'S knowledge. SYNGENTA will take such action regarding such infringement as it deems, in its sole discretion, to be necessary or desirable, and LICENSEE agrees to cooperate therein. 9. SYNGENTA agrees to indemnify and hold LICENSEE harmless from and against all claims, suits, damages and costs arising out of a claim of trademark infringement or unfair competition on account of LICENSEE'S use of the VIP3A Gene Trademark. Provided however, that LICENSEE shall promptly notify SYNGENTA of such claim or suit and shall reasonably cooperate with SYNGENTA in the defense thereof. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate by their duly authorized representatives as of the date first set forth above. SYNGENTA PARTICIPATIONS AG By: --------------------------------- Title: ------------------------------ DELTA AND PINE LAND COMPANY By: --------------------------------- Title: ------------------------------ EXHIBIT C ****** EXHIBIT D AGRONOMIC CRITERIA FOR DELTAPINE CULTIVARS Agronomic performance and suitability of each DELTAPINE VIP3A CULTIVAR is the responsibility of D&PL. A new DELTAPINE VIP3A CULTIVAR (hereinafter "new variety") shall be deemed to have met the AGRONOMIC CRITERIA and shall be approved for commercial release in THE TERRITORY if D&PL confirms in writing to SYNGENTA that the new variety has been tested for agronomic and commercial acceptability as to yield, fiber quality, and disease resistance and, based on such testing, has been found acceptable for commercial release. D&PL will conduct at least four (4) agronomic trials in THE TERRITORY in each of two (2) years to determine acceptability. Data from these and other trials considered relevant by D&PL will be analyzed by D&PL and used to determine suitability of the new variety for COMMERCIAL SALE. EXHIBIT E SEED PURITY STANDARDS All multiplications of LICENSED COMMERCIAL SEED must meet the genetic purity standards set forth in this Exhibit E and comply with all applicable seed laws and regulations of the applicable country in THE TERRITORY. Breeder or pre-breeder seed lots will be sampled and tested for verification of the presence of the intended event(s) and the absence of unintended events. The term "unintended events" shall mean DNA molecules, vector, or constructs (or replicates thereof) not naturally occurring in cotton and not intended to be present in the variety according to the bag label. Section E.1. PURITY STANDARDS In the absence of more restrictive applicable government standards, the SEED PURITY STANDARDS shall be: (a) At least 98% of the seed in a lot of commercial seed will contain each GENE intended to be there. For clarity, LICENSED COMMERCIAL SEED which is intended to contain more than one GENE may be sold only if the testing indicates that each GENE is present in 98% of the seed. Every seed lot of LICENSED COMMERCIAL SEED (one seed lot shall not exceed 2,000 UNITS of seed) must have a sample taken and stored using the procedures set forth in Section E.2 below, and the presence of the VIP3A GENE and each other intended GENE verified. Verification shall be conducted by D&PL'S testing laboratory or an independent seed testing laboratory. SYNGENTA shall have the right to conduct DNA verification on any lot, including the retained samples, at SYNGENTA'S expense. Any seed samples obtained by SYNGENTA for DNA verification to check seed purity shall be used for that purpose only and any residue thereof shall be destroyed. (b) Adventitious amounts of commercially approved, unintended GENE(S) are allowed in commercial lots of seed to the extent permitted under applicable laws. It is D&PL'S responsibility to define acceptable adventitious amounts based on knowledge of the industry and compliance with applicable laws, and D&PL shall notify SYNGENTA of its determinations form time to time and on request. "Commercially approved" means accepted by all applicable government agencies for sale in the applicable country. (c) Breeder or pre-breeder seed lots will be tested for non-approved GENE at a 0.1% threshold at a 95% confidence level. History and knowledge of the presence of potential non-approved genes in D&PL'S research program and seed production fields will determine which seed lots are tested for which non-approved GENES. The testing program and breeding history will be documented by D&PL. Seed lots testing positive for a non-approved GENE will not be sold and SYNGENTA will be notified in writing. If the non-approved GENE is a SYNGENTA-produced gene, the identity of the GENE and the event will be included in the notification. "Non-approved" means not accepted by all applicable government agencies for sale in the applicable country. (d) D&PL shall maintain all testing records for each lot of LICENSED COMMERCIAL SEED for three years after sale of such LICENSED COMMERCIAL SEED. All test results, inspection records, and other quality assurance or quality control documentation shall be reasonably available to SYNGENTA upon request and SYNGENTA shall have a right to audit D&PL'S quality control program and to take and test subsamples from the samples retained by D&PL. Such inspections and evaluations shall be conducted on a confidential basis by an independent third-party inspector selected by SYNGENTA and acceptable by D&PL, which inspector shall report to SYNGENTA and D&PL only whether or not D&PL is in compliance with the SEED PURITY STANDARD and, if D&PL is not in compliance, the areas of non-compliance without otherwise disclosing to SYNGENTA D&PL's methods and procedures. Any such tests and inspections shall be subject to D&PL'S obligations to owners/licensors of NON-SYNGENTA GENE(S) contained in such LICENSED COMMERCIAL SEED. (e) All costs associated with the seed purity verification program shall be borne by D&PL, except for costs of any testing conducted by SYNGENTA under Section E.1(a) or audits conducted by SYNGENTA under Sections E.1(d) or E.2(c). Section E.2. PROCEDURE FOR ARCHIVING/STORAGE OF SAMPLES OF SEED LOTS (a) Purpose. This protocol focuses on the collection, storage, and security of file samples representing processed lots of LICENSED COMMERCIAL SEED. Storage of said samples is to satisfy applicable legal requirements, for the development of historical data, and for confirmation and evaluation in the event of customer inquiries and legal claims and to confirm SYNGENTA'S and D&PL'S legal rights and/or obligations under the LICENSE AGREEMENT. (b) Responsibility (1) D&PL'S Quality Assurance Department will obtain a representative sample from every finished seed lot during the conditioning process. The sample will be taken by the automatic sampling device at the bagging station (or probed by hand, whichever is appropriate) and divided into representative portions as per the Association of Official Seed Analysts Rules for Testing Seeds. The portion for storage will weigh approximately 1.5 pounds. (2) These samples will be labeled with lot number, variety, class, year grown, date, and number of bag per lot, then immediately sealed in a 4-mil linear low density polyethylene bag that is laminated with saran-coated 48 gauge polyester or comparable container, to provide a good moisture barrier. (3) In order to preserve seed quality, samples will be stored in either air-conditioned storage, or in dry, arid environments so that seed quality is reasonably preserved for testing purposes. (4) Access to these samples will be restricted to individuals approved by D&PL and will be kept in a physically secure location. (5) In order to safeguard samples from natural and other disasters, a portion of every retained sample may be kept in another location. (6) These samples will be stored for a period of three (3) years after the last sale of seed from the lot. If, prior to expiration of this period, claims or other legal proceedings have been commended which involve the specific lot, the sample will be retained until a matter is finally concluded. (c) SYNGENTA shall have the right to appoint a qualified third party, reasonably acceptable to D&PL, to conduct a confidential audit of D&PL'S quality assurance activities to assure trait purity is maintained. The third party auditor may not disclose D&PL'S methods for quality assurance but shall report to SYNGENTA whether D&PL is in compliance with the requirements of this Exhibit E and how they are not in compliance. EXHIBIT F PRICING REGIONS IN THE UNITED STATES REGION STATES COUNTIES - ------ ------ -------- A Missouri All Counties Tennessee Benton Houston Carroll Humphreys Chester Lake Crockett Lauderdale Decatur Madison Dyer McNary Fayette Obion Gibson Perry Hardeman Shelby Hardin Stewart Haywood Tipton Henderson Weakley Henry Northern Arkansas Baxter Lawrence Benton Logan Boone Madison Carroll Marion Clay Mississippi Cleburne Newton Conway Poinsett Craighead Pope Crawford Randolph Crittenden Saint Francis Cross Searcy Faulkner Sebastian Franklin Sharp Fulton Stone Greene Van Buren Independence Washington Izard White Jackson Woodruff Johnson B Georgia All Counties Except: Bartow Haralson Catoosa Murray Chattooga Paulding Dade Polk Floyd Walker Gordon Whitfield Florida All Counties Southern Alabama Autauga Geneva Baldwin Greene Barbour Hale Bibb Henry Bullock Houston Butler Lee Chambers Lowndes Chilton Macon Choctaw Marengo Clarke Mobile Coffee Monroe Conecuh Montgomery Coosa Perry Covington Pike Crenshaw Russell Dale Sumter Dallas Tallapoosa Elmore Washington Escambia Wilcox C Mississippi All Counties Louisiana All Parishes Southern Arkansas Arkansas Lincoln Ashley Little River Bradley Lonoke Calhoun Miller Central Monroe Chicot Montgomery Clark Nevada Cleveland Ouachita Dallas Perry Desha Phillips Drew Pike Garland Polk Grant Prairie Hempstead Pulaski Hot Spring Saline Howard Scott Jefferson Sevier Lafayette Union Lee Yell East Texas Bowie Newton Cass Panola Harrison Sabine Marion Shelby D East Texas Anderson Karnes Angelina Kaufman Aransas Kendall Atascosa Kenedy Austin Kerr Bandera Kimble Bastrop Kinney Bee Kleberg Bell Lamar Bexar Lampasas Blanco La Salle Bosque Lavaca Brazoria Lee Brazos Leon Brooks Liberty Burleson Limestone Burnet Live Oak Caldwell McLennan Calhoun McMullen Cameron Madison Camp Mason Chambers Matagorda Cherokee Maverick Clay Medina Collin Menard Colorado Milam Comal Montague Cooke Montgomery Coryell Morris Dallas Nacogdoches Delta Navarro Denton Nueces De Witt Orange Dimmit Palo Pinto Duval Parker Edwards Polk Ellis Rains Erath Real Falls Red River Fannin Refugio Fayette Robertson Fort Bend Rockwall Franklin Rusk Freestone San Augustine Frio San Jacinto Galveston San Patricio Gillespie Smith Goliad Somervell Gonzales Starr Grayson Tarrant Gregg Titus Grimes Travis Guadalupe Trinity Hamilton Tyler Hardin Upshur Harris Uvalde Hays Val Verde Henderson Van Zandt Hidalgo Victoria Hill Walker Hood Waller Hopkins Washington Houston Webb Hunt Wharton Jack Willacy Jackson Williamson Jasper Wilson Jefferson Wise Jim Hogg Wood Jim Wells Zapata Johnson Zavala E Oklahoma All Counties New Mexico All Counties West Texas Andrews Jones Archer Kent Armstrong King Bailey Knox Baylor Lamb Borden Lipscomb Brewster Llano Briscoe Loving Brown Lubbock Callahan Lynn Carson McCulloch Castro Martin Childress Midland Cochran Mills Coke Mitchell Coleman Moore Collingsworth Motley Comanche Nolan Concho Ochiltree Cottle Oldham Crane Parmer Crockett Pecos Crosby Potter Culberson Presidio Dallam Randall Dawson Reagan Deaf Smith Reeves Dickens Roberts Donley Runnels Eastland San Saba Ector Schleicher El Paso Scurry Fisher Shackelford Floyd Sherman Foard Stephens Gaines Sterling Garza Stonewall Glasscock Sutton Gray Swisher Hale Taylor Hall Terrell Hansford Terry Hardeman Throckmorton Hartley Tom Green Haskell Upton Hemphill Ward Hockley Wheeler Howard Wichita Hudspeth Wilbarger Hutchinson Winkler Irion Yoakum Jeff Davis Young F Arizona All Counties California Imperial San Diego Riverside San Bernadino G Northern Alabama Blount Lawrence Calhoun Limestone Cherokee Madison Clay Marion Cleburne Marshall Colbert Morgan Cullman Pickens De Kalb Randolph Etowah Saint Clair Fayette Shelby Franklin Talladega Jackson Tuscaloosa Jefferson Walker Lamar Winston Lauderdale Northwest Georgia Bartow Haralson Catoosa Murray Chattooga Paulding Dade Polk Floyd Walker Gordon Whitfield Middle Tennessee Bedford Lawrence Coffee Lincoln Franklin Moore Giles Wayne H San Joaquin/ Sacramento Valley California All Counties Except: Imperial San Diego Riverside San Bernadino I Virginia All Counties North Carolina All Counties South Carolina All Counties EXHIBIT G SCHEDULE OF PAYMENTS UNDER SECTION 10.2(d) Date of D&PL'S Notice of Termination SYNGENTA'S Payment to D&PL Under Subsection 10.2(d) (in United States Dollars) From and after payment of initial installment of LICENSE PURCHASE PRICE due on EFFECTIVE DATE to payment of 2nd installment of LICENSE PURCHASE PRICE due on July 15, 2005: US$3,500,000 From and after payment of 2nd installment of LICENSE PURCHASE PRICE due on July 15, 2005, to payment of 3rd installment of LICENSE PURCHASE PRICE due on October 15, 2005: US$4,375,000 From and after payment of 3rd installment of LICENSE PURCHASE PRICE due on October 15, 2005, to payment of 4th installment of LICENSE PURCHASE PRICE due on July 15, 2006: US$5,250,000 From and after payment of 4th installment of LICENSE PURCHASE PRICE due on July 15, 2006, to payment of 5th installment of LICENSE PURCHASE PRICE due on October 15, 2006: US$6,125,000 From and after payment of 5th installment of LICENSE PURCHASE PRICE due on October 15, 2006: US$7,000,000 EXHIBIT H CERTAIN HERBICIDE TOLERANCE GENE(S) The HERBICIDE TOLERANCE GENE referred to in this clause shall be a HERBICIDE TOLERANCE GENE owned or controlled by MONSANTO. EXHIBIT I ****** EXHIBIT J PERFORMANCE REQUIREMENTS 2.1.9 The term "COMMITMENT DATE" shall mean the date that is forty-two (42) months after the EFFECTIVE DATE. 2.1.13 The term "D&PL PERFORMANCE REQUIREMENT" shall mean that, for any period of three (3) consecutive years in the period beginning from and after, and inclusive of, the year in which D&PL achieves the element of INSECT RESISTANCE MARKET PENETRATION set forth in Subsection 2.1.32(c), the arithmetic average of the annual percentages of UNITS of cottonseed sold by D&PL in the United States of America that contain a VIP3A GENE and/or a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE(S) out of the total number of UNITS of cottonseed sold by D&PL in the United States of America that contain any LEPIDOPTERAN-ACTIVE GENE is not less than forty-five percent (45%); provided that, in no one of such years, the percentage of UNITS of cottonseed that contain a VIP3A GENE and/or a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE(S) out of the total number of UNITS of cottonseed sold by D&PL in the United States of America that contain any LEPIDOPTERAN-ACTIVE GENE is less than forty percent (40%). 2.1.32 The term "INSECT RESISTANCE MARKET PENETRATION" means that each of the following milestones in Subparts (a)-(c) below will be achieved on the dates provided therein: (a) D&PL shall have available an inventory of LICENSED COMMERCIAL SEED for sale in the United States of America which meets the warranties set forth in Section 11.2 of this LICENSE AGREEMENT and contains the VIP3A GENE stacked in combination with a HERBICIDE TOLERANCE GENE of not less than 200,000 UNITS by February 28 of the second calendar year after Date R1, and (b) D&PL shall have available an inventory of LICENSED COMMERCIAL SEED for sale in the United States of America which meets the warranties set forth in Section 11.2 of this LICENSE AGREEMENT and contains the VIP3A GENE stacked in combination with a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE and a HERBICIDE TOLERANCE GENE of not less than 300,000 UNITS by February 28 of the second calendar year after Date R2, and (c) Either (1) not less than forty percent (40%) of the UNITS of cottonseed containing a LEPIDOPTERAN-ACTIVE GENE sold by D&PL in the United States of America in the year ending December 31 of the fourth calendar year after Date R2 shall contain the VIP3A GENE and/or a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE(S) or (2) D&PL shall have available an inventory of LICENSED COMMERCIAL SEED for sale in the United States of America which meets the warranties set forth in Section 11.2 of this LICENSE AGREEMENT and contains the VIP3A GENE stacked in combination with a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE and a HERBICIDE TOLERANCE GENE of not less than 1,200,000 UNITS by February 28 of the fourth calendar year after Date R2; where, in the case of each of Subparts (a), (b), or (c): (i) "Date R1" means (A) February 28 of the calendar year during which GOVERNMENT APPROVAL of at least one VIP3A GENE EVENT (other than a VIP3A GENE EVENT in the COT 100 Series) has been obtained in the United States of America if GOVERNMENT APPROVAL is obtained on or before February 28 of that year or (B) if such GOVERNMENT APPROVAL is not obtained by February 28 of the year in which it is obtained, Date R1 will mean February 28 of the calendar year following the year in which such GOVERNMENT APPROVAL is obtained; provided that Date R1 cannot be earlier than the later of (x) January 1, 2007, or (y) twenty-four (24) months after approval for seed increase of DELTAPINE VIP3A CULTIVARS containing that same VIP3A GENE EVENT stacked in combination with a HERBICIDE TOLERANCE GENE as described in Exhibit H is issued by the government of Costa Rica (or another country reasonably accepted by D&PL as an equivalent winter nursery country), which approval both by SYNGENTA and D&PL shall use commercially reasonable efforts to obtain at the earliest practical date and, with respect to SYNGENTA, in accordance with Subsection 3.6, or (z) twelve (12) months after issuance of all approvals necessary for increase and COMMERCIAL SALE, in the United States of America, of unlimited quantities of LICENSED COMMERCIAL SEED containing that same VIP3A GENE EVENT stacked in combination with a HERBICIDE TOLERANCE GENE as described in Exhibit H, which approvals both SYNGENTA and D&PL shall use commercially reasonable efforts to obtain at the earliest practical date and, with respect to SYNGENTA, in accordance with Subsection 3.6, and provided, further, that the twenty-four (24) months immediately preceding Date R1 and from Date R1 to the date stated in Subsection 2.1.32(a) shall be extended by the period of time, if any, during such period, D&PL is subject to a "BLOCKING ORDER" or any other outstanding order of any administrative agency or court of competent jurisdiction which is binding on SYNGENTA and/or D&PL and which enjoins or prohibits D&PL'S development and multiplication of LICENSED COMMERCIAL SEED of such DELTAPINE VIP3A CULTIVARS in the United States of America, which order is not stayed, vacated or overturned within ninety (90) days of its entry. (ii) "Date R2" means (A) February 28 of the calendar year during which GOVERNMENT APPROVAL of both a VIP3A GENE EVENT (other than a VIP3A GENE EVENT in the COT 100 Series) and the event containing the NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE and, if required, the combination of that same VIP3A GENE EVENT and the NON-VIP3A SYNGENTA LEPIDOPTERAN ACTIVE GENE and a HERBICIDE TOLERANCE GENE, has been obtained in the United States of America on or before February 28 of that year or (B) if such GOVERNMENT APPROVAL is not obtained by February 28 of the year in which it is obtained, Date R2 shall mean February 28 of the calendar year following the year in which such GOVERNMENT APPROVAL is obtained; provided that Date R2 cannot be earlier than the later of (w) January 1, 2009, or (x) fifty-eight (58) months after SYNGENTA delivers to D&PL at a place in the United States of America designated by D&PL not less than twenty-five (25) viable cottonseed containing the NON-VIP3A SYNGENTA LEPIDOPTERAN ACTIVE GENE embodied in the specific gene event with respect to which the GOVERNMENT APPROVAL described in Clause (A) of this Subpart (ii) is obtained, together with testing materials capable of accurately identifying the presence of such NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE or (y) twenty-four (24) months after approval for seed increase of DELTAPINE VIP3A CULTIVARS containing that same VIP3A GENE EVENT stacked in combination with the NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE and a HERBICIDE TOLERANCE GENE is issued by the government of Costa Rica (or another country reasonably accepted by D&PL as an equivalent winter nursery country), which approval both by SYNGENTA and D&PL shall use commercially reasonable efforts to obtain at the earliest practical date and, with respect to SYNGENTA, in accordance with Subsection 3.6, or (z) twelve (12) months after issuance of all approvals necessary for increase and COMMERCIAL SALE, in the United States of America, of unlimited quantities of LICENSED COMMERCIAL SEED containing that same VIP3A GENE EVENT stacked in combination with the NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE EVENT and a HERBICIDE TOLERANCE GENE, which approvals both SYNGENTA and D&PL shall use commercially reasonable efforts to obtain at the earliest practical date and, with respect to SYNGENTA, in accordance with Subsection 3.6, and provided, further, that the twenty-four (24) months immediately preceding Date R2 and from Date R2 to the date stated in Subsection 2.1.32(b) and/or 2.1.32(c), as applicable, shall be extended by the period of time, if any, during such period D&PL is subject to a "BLOCKING ORDER" or any other outstanding order of any administrative agency or court of competent jurisdiction which is binding on SYNGENTA and/or D&PL and which enjoins or prohibits D&PL'S development and multiplication of LICENSED COMMERCIAL SEED of such DELTAPINE VIP3A CULTIVARS in the United States of America, which order is not stayed, vacated or overturned within ninety (90) days of its entry. Failure to achieve any milestone stated in Subsection 2.1.32 (a), (b), or (c) by the applicable date set forth above shall mean that INSECT RESISTANCE MARKET PENETRATION has not been achieved effective as of such date or year, as applicable, unless an extension of time is expressly granted by SYNGENTA to D&PL in writing. 2.1.33 The term "INSECT RESISTANCE MARKET PENETRATION COMMITMENT" means D&PL'S commitment by notice to SYNGENTA that D&PL will achieve INSECT RESISTANCE MARKET PENETRATION on the terms and conditions and by the dates specified in the definition thereof. 3.5 (c) The provisions of Subsection 3.5(a) notwithstanding, (i) SYNGENTA retains the right at its sole discretion to grant licenses to MONSANTO under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY to test, develop, produce, have produced, multiply, and sell in the United States of America (directly or through third party distributors and dealers by sublicense or otherwise) cottonseed containing the VIP3A GENE, alone or in combination with other GENE(S), in any germplasm and cotton cultivars. Such license granted to MONSANTO may also include, at SYNGENTA'S sole discretion, any rights that are also provided to D&PL under Subsections 3.1, 3.2 and/or 3.3. D&PL shall receive seventy percent (70%) of the NET TECHNOLOGY FEE REVENUE and other consideration received by SYNGENTA from such licensing to MONSANTO and SYNGENTA shall receive thirty percent (30%) thereof, provided that, SYNGENTA shall neither contract for nor accept non-monetary consideration from MONSANTO for licenses to the VIP3A GENE and/or any or all of the LICENSED PATENT RIGHTS for use in cotton, without D&PL's consent. Consideration received by SYNGENTA in any transaction or under any agreement with MONSANTO shall not be deemed to be non-monetary consideration from MONSANTO for licenses to the VIP3A GENE and/or LICENSED PATENT RIGHTS for use in cotton if (A) SYNGENTA certifies to D&PL in writing that the consideration was not in exchange, in whole or in part, for any grant to MONSANTO of a license(s) to the VIP3A GENE for use in cotton and/or any or all of the LICENSED PATENT RIGHTS for use in cotton with the VIP3A GENE, (B) the agreement or other documents executed in connection with the transaction do not recite or reflect that consideration has been or is being is given by MONSANTO for any license to the VIP3A GENE for use in cotton and/or any or all of the LICENSED PATENT RIGHTS for use in cotton with the VIP3A GENE, and (C) such transaction or agreement is not entered into nor does it become effective within a period beginning twelve (12) months before and ending twelve (12) months after the date on which SYNGENTA and MONSANTO have entered in any agreement pursuant to which SYNGENTA has granted or caused to be granted to MONSANTO and/or any party(ies) designated by MONSANTO any license (or option to license) to the VIP3A GENE for use in cotton and/or any or all of the LICENSED PATENT RIGHTS for use in cotton with the VIP3A GENE. The failure to follow or to meet the provisions set forth in the preceding sentence shall not be construed to mean that consideration received by SYNGENTA in any transaction or under any agreement with MONSANTO is necessarily non-monetary consideration from MONSANTO for licenses to the VIP3A GENE for use in cotton and/or any and all of the LICENSED PATENT RIGHTS for use in cotton with the VIP3A GENE. In the event that D&PL consents to SYNGENTA'S receiving non-monetary consideration from MONSANTO for a license(s) to the VIP3A GENE for use in cotton and/or related LICENSED PATENT RIGHTS for use in cotton with the VIP3A GENE, D&PL shall receive seventy percent (70%) of the fair market value of such non-monetary consideration and seventy percent (70%) of NET TECHNOLOGY FEE REVENUE on MONSANTO'S sales of LICENSED COMMERCIAL SEED (fair market value being measured as the value of such non-monetary consideration to SYNGENTA and net of the fair market value of any consideration paid by SYNGENTA to MONSANTO in exchange other than the license to the VIP3A GENE for use in cotton and/or any or all of the LICENSED PATENT RIGHTS for use in cotton with the VIP3A GENE). For marketing seasons after the occurrence of SYNGENTA'S licensing MONSANTO, as permitted under this Subsection 3.5(c)(i), so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED in a particular PRICING REGION in the United States of America, (1) all cotton growers purchasing or using LICENSED COMMERCIAL SEED in such PRICING REGION in the United States of America shall be required to pay a TECHNOLOGY FEE and (2) SYNGENTA shall establish TECHNOLOGY FEES for rights to use the VIP3A GENE embodied in LICENSED COMMERCIAL SEED sold by MONSANTO in accordance with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c), provided, however, that the procedures set forth in Subsection 6.1(d) shall not apply to establishing TECHNOLOGY FEES for rights to use the VIP3A GENE embodied in LICENSED COMMERCIAL SEED sold by MONSANTO. D&PL shall have the right to elect, at its option for each marketing season, whether cotton growers in each particular PRICING REGION in the United States of America purchasing or using LICENSED COMMERCIAL SEED sold by D&PL shall be required to pay (1) the TECHNOLOGY FEE established by SYNGENTA (as provided above) for cotton growers in that PRICING REGION purchasing or using LICENSED COMMERCIAL SEED sold by MONSANTO or (2) the TECHNOLOGY FEE established in accordance with Subsections 6.1(c) and 6.1(d) for cotton growers in that PRICING REGION purchasing or using LICENSED COMMERCIAL SEED sold by D&PL. SYNGENTA shall notify D&PL of such TECHNOLOGY FEES for each PRICING REGION in the United States of America applicable with respect to LICENSED COMMERCIAL SEED sold by MONSANTO not later than ten (10) business days after such TECHNOLOGY FEES are set for the next marketing season. D&PL shall notify SYNGENTA of its election within twenty (20) business days after the later of (1) the date on which D&PL receives SYNGENTA'S notice with respect to TECHNOLOGY FEE on MONSANTO'S sales of LICENSED COMMERCIAL SEED in that PRICING REGION or (2) the date on which the TECHNOLOGY FEE on D&PL'S sales of LICENSED COMMERCIAL SEED in that PRICING REGION is established under Subsection 6.1(d) for that PRICING REGION. (ii) In the event that (A) a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION occurs or (B) on or before the COMMITMENT DATE, D&PL does not give SYNGENTA notice that it commits to achieve the INSECT RESISTANCE MARKET PENETRATION COMMITMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE or (C) on or before the COMMITMENT DATE, D&PL gives SYNGENTA notice of the INSECT RESISTANCE MARKET PENETRATION COMMITMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE but D&PL does not achieve such INSECT RESISTANCE MARKET PENETRATION under this LICENSE AGREEMENT and under the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE by any one or more of the deadline(s) applicable for achieving such INSECT RESISTANCE MARKET PENETRATION or (D) D&PL achieves such INSECT RESISTANCE MARKET PENETRATION by the applicable deadlines, but thereafter, does not maintain the D&PL PERFORMANCE REQUIREMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE or (E) SYNGENTA gives to notice to D&PL in accordance with Section 10.2(d), then SYNGENTA shall have the right to test, develop, produce, have produced, multiply, and sell cotton seed containing the VIP3A GENE, alone or in combination with other GENE(S), in any germplasm and cotton cultivars selected by SYNGENTA and to grant licenses under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY to any third party to develop, produce, have produced, multiply, and sell cotton seed containing the VIP3A GENE in any germplasm that such third party has the right to use for such purpose (provided that SYNGENTA and any such third party shall not use for this purpose any DELTAPINE CULTIVAR or SUBLICENSEE CULTIVAR unless such cultivar is licensed to SYNGENTA or such third party for such purpose). For marketing seasons after the occurrence of any such event, so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED in a particular PRICING REGION in the United States of America, (1) all cotton growers purchasing LICENSED COMMERCIAL SEED in such PRICING REGION shall be required to pay a TECHNOLOGY FEE and (2) SYNGENTA shall establish the TECHNOLOGY FEES for rights to use the VIP3A GENE embodied in LICENSED COMMERCIAL SEED sold by SYNGENTA and/or by any third party in accordance with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c), provided, however, that the procedures set forth in Subsection 6.1(d) shall not apply. D&PL shall have the right to elect, at its option for each marketing season, whether cotton growers in each particular PRICING REGION in the United States of America purchasing or using LICENSED COMMERCIAL SEED sold by D&PL shall be required to pay (1) the TECHNOLOGY FEE established by SYNGENTA for cotton growers in that PRICING REGION purchasing or using LICENSED COMMERCIAL SEED sold by SYNGENTA or sold by any of the other licensees from SYNGENTA or (2) the TECHNOLOGY FEE established in accordance with Subsections 6.1(c) and 6.1(d) for cotton growers in that PRICING REGION purchasing or using LICENSED COMMERCIAL SEED sold by D&PL. SYNGENTA shall notify D&PL of the TECHNOLOGY FEES for each PRICING REGION applicable with respect to LICENSED COMMERCIAL SEED sold by SYNGENTA and/or each other licensee from SYNGENTA not later than ten (10) business days after such TECHNOLOGY FEES are set for the next marketing season. D&PL shall notify SYNGENTA of its election with respect to a particular PRICING REGION within twenty (20) days after the later of (1) the date on which D&PL receives SYNGENTA'S notice with respect to such TECHNOLOGY FEES for that PRICING REGION or (2) the date on which the TECHNOLOGY FEE on D&PL'S sales of LICENSED COMMERCIAL SEED in that PRICING REGION is established under Subsection 6.1(d). With respect to any PRICING REGION outside the United States of America, so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED, all cotton growers purchasing or using cottonseed containing the VIP3A GENE whether sold by SYNGENTA or by any of the other licensees from SYNGENTA or by D&PL and its sublicensees shall be required to pay the TECHNOLOGY FEES for the subject PRICING REGION established in accordance with Subsections 6.1(c) and 6.1(d), provided that, in the event this procedure violates the local law in any particular country, TECHNOLOGY FEES in that country shall be established using the procedures provided in this paragraph with respect to the United States of America. After the occurrence of one or more of the events described in Subsections 3.5(c)(ii)(A), (B), (C) or (E), SYNGENTA shall retain one hundred percent (100%) of the NET TECHNOLOGY FEE REVENUE from SYNGENTA'S licensing of cotton growers to use the VIP3A GENE in cotton planting seed and/or NET TECHNOLOGY FEE REVENUE and/or other consideration received by SYNGENTA from licensing of third party seed companies to use the VIP3A GENE. After the occurrence of the event described in Subsection 3.5(c)(ii)(D), after deduction of any TECHNOLOGY FEES or other amounts due to or retained by SYNGENTA'S third party seed company licensees, D&PL shall receive fifty percent (50%) of the remaining NET TECHNOLOGY FEE REVENUE or other consideration received by SYNGENTA from the licensing of cotton growers to use VIP3A GENE in cotton planting seed and/or NET TECHNOLOGY FEE REVENUE and/or other consideration received by SYNGENTA from licensing of third party seed companies to use the VIP3A GENE and SYNGENTA shall retain fifty percent (50%). The reductions in D&PL'S share of NET TECHNOLOGY FEE REVENUE set forth in this paragraph of Subsection 3.5(c)(ii) (and, in cases where applicable, the provisions of Subsection 10.2) and the other terms and conditions set forth in this LICENSE AGREEMENT shall be SYNGENTA'S exclusive remedies in the event that any one or more of the events described in Subsection 3.5(c)(ii)(A), (B), (C), (D) or (E) occur, except for claims based on fraud, intentional misrepresentation or gross negligence by D&PL. 6.1 (c) Principles for Establishing TECHNOLOGY FEES. The TECHNOLOGY FEE and the COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for each VIP3A GENE EVENT for each PRICING REGION in which LICENSED COMMERCIAL SEED containing such VIP3A GENE EVENT is to be sold in the United States and for each country outside the United States in which LICENSED COMMERCIAL SEED containing such VIP3A GENE EVENT is to be sold will be based on the following principles: (i) The TECHNOLOGY FEE shall permit the subject VIP3A GENE EVENT to be marketed to cotton growers on a competitive basis with other technologies for control of LEPIDOPTERAN INSECTS then available to cotton farmers in the subject PRICING REGION (whether collected as a royalty, grower license fee, seed premium, or other mode of value capture). (ii) The TECHNOLOGY FEE should bear a reasonable relationship to the identifiable alternate insect control costs (such as the cost of insecticides, labor, equipment and fuel and/or alternative transgenic technologies) displaced by the use of the VIP3A GENE. (iii) The TECHNOLOGY FEE shall be set based on the value of the VIP3A GENE EVENT and not on the potential revenues from sales of seed, chemicals or other products or services. EXHIBIT K PROVISIONS RELATED TO MONSANTO ITEM 1 [from Subsection 2.1.1]: (b) until and unless a MONSANTO/D&PL 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. ITEM 2 [from Subsections 2.1.44 to 2.1.49]: 2.1.44 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. 2.1.45 The term "MONSANTO/D&PL CHANGE OF CONTROL TERMINATION PAYMENT" means an amount of money equal to the installments of the LICENSE PURCHASE PRICE due to become payable under the LICENSE ACQUISITION AGREEMENT over the period of eighteen (18) months from and after the event giving rise to the obligation of D&PL or its successor to make such MONSANTO/D&PL CHANGE OF CONTROL TERMINATION PAYMENT under Subsection 10.2(b)(ii) and an amount equal to 100% of the reasonable costs to which SYNGENTA is entitled to reimbursement pursuant to Subsection 4.3(h), Subparts (i) through (iv), that have been incurred or cannot reasonably be avoided as of the date of SYNGENTA'S receipt of D&PL'S notice under Subsection 10.2(b)(ii). 2.1.46 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 or transfer of substantially all the equity or assets of D&PL, by which MONSANTO acquires CONTROL of D&PL or acquires all or substantially all of D&PL's assets or by which D&PL acquires CONTROL of MONSANTO or acquires all or substantially all of MONSANTO's assets. 2.1.47 The term "MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION FEE" shall mean Fifty Million United States Dollars (US $50,000,000). 2.1.48 The term "MONSANTO/SYNGENTA 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 or transfer of all or substantially all the equity or assets of SYNGENTA by which MONSANTO acquires CONTROL of SYNGENTA or acquires all or substantially all of SYNGENTA'S assets or by which SYNGENTA acquires CONTROL of MONSANTO or acquires all or substantially all of MONSANTO's assets. 2.1.49 The term "MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION FEE" shall mean Fifty Million United States Dollars (US $50,000,000). ITEM 3 [from Subsection 3.4]: The foregoing notwithstanding, unless and until a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION occurs, D&PL shall not grant a sublicense to MONSANTO or an AFFILIATE of MONSANTO or any entity in which MONSANTO or an AFFILIATE of MONSANTO owns an equity interest. ITEM 4 [from Subsection 3.5 (b)]: as to licenses to MONSANTO as provided in Subsection 3.5(c)(i) ITEM 5 [from Subsection 3.6 (a)]: provided that D&PL shall not incorporate in LICENSED COMMERCIAL SEED any LEPIDOPTERAN-ACTIVE GENE events licensed to D&PL, directly or indirectly, by MONSANTO without SYNGENTA'S prior written consent (which consent shall not be withheld if SYNGENTA has licensed MONSANTO under Subsection 3.5(c)(i) and has permitted MONSANTO to stack the same LEPIDOPTERAN-ACTIVE GENE events with the VIP3A GENE). ITEM 6 [from Subsection 3.7 (e)]: MONSANTO ITEM 7 [from Subsection 4.3 (c)]: If SYNGENTA licenses MONSANTO under Section 3.5(c)(i) or if an event set forth in Subsection 3.5(c)(ii) occurs, the expenses of obtaining and maintaining such GOVERNMENT APPROVAL in the United States of America in each year beginning with the later of (i) the earlier of year in which SYNGENTA licenses MONSANTO under Section 3.5(c)(i) or the year in which the event set forth in Subsection 3.5(c)(ii) occurs or (ii) six and one half (6.5) years from the EFFECTIVE DATE, D&PL shall bear the amount of such expenses incurred in each twelve (12) month period ending August 31, determined by multiplying the total of such expenses in that period by a fraction the numerator of which is the aggregate amount of revenue received and retained by D&PL in the subject period from (a) TECHNOLOGY FEES on D&PL'S sales of LICENSED COMMERCIAL SEED in the United States of America and (b) TECHNOLOGY FEES on sales of LICENSED COMMERCIAL SEED by MONSANTO and/or SYNGENTA and/or other SYNGENTA licensees in the United States of America and the denominator of which is the aggregate amount of revenue received and retained by D&PL and SYNGENTA, collectively, from TECHNOLOGY FEES on all sales of LICENSED COMMERCIAL SEED in the United States of America in the subject period, and SYNGENTA shall bear the remainder of such expenses. ITEM 8 [from Subsection 6.1 (a)]: If SYNGENTA exercises its right to license MONSANTO under Subsection 3.5(c)(i) and/or its right to sell or to license third parties to sell LICENSED COMMERCIAL SEED in the event of occurrences described in Subsection 3.5(c)(ii), then (A) with respect to the United States of America, SYNGENTA shall determine the mode of collection of the TECHNOLOGY FEES for the right to use the VIP3A GENE in LICENSED COMMERCIAL SEED sold by MONSANTO or by SYNGENTA or its other licensees in its sole discretion, provided that so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED in the United States of America, SYNGENTA shall not change the mode of collection of TECHNOLOGY FEES for the right to use the VIP3A GENE in LICENSED COMMERCIAL SEED sold by D&PL or its sublicensees that was in place in each PRICING REGION in the United States of America on the date of the occurrence of the event giving rise to application of Subsection 3.5(c)(i) and/or Subsection 3.5(c)(ii) without written consent of D&PL, and provided, further, D&PL may at its sole discretion elect to adopt as the mode of collection of TECHNOLOGY FEES for the right to use the VIP3A GENE in LICENSED COMMERCIAL SEED sold by D&PL or its sublicensees to any mode of collection of TECHNOLOGY FEES in effect in the same PRICING REGION in the United States of America with respect to TECHNOLOGY FEES for the right to use the VIP3A GENE in seed sold by MONSANTO or by SYNGENTA or its other licensees, and (B) with respect to each country outside the United States of America, SYNGENTA shall not change the mode of collection of TECHNOLOGY FEES for rights to use the VIP3A GENE in LICENSED COMMERCIAL SEED sold by D&PL or its sublicensees that was in place in that country on the date of occurrence of the event giving rise to application of Subsection 3.5(c)(ii) without the written consent of D&PL and shall require the same mode of collection of TECHNOLOGY FEES for rights to use the VIP3A GENE in LICENSED COMMERCIAL SEED sold by SYNGENTA or its other licensees in the subject country, provided that, in the event this procedure violates the local law of a particular country, the mode of collection of TECHNOLOGY FEES in that country shall be determined as provided in this Subsection 6.1(a) with respect in the United States of America. ITEM 9 [from Subsection 6.1 (d)]: (provided that the procedure set out in this Subsection 6.1(d) shall not apply to establish the TECHNOLOGY FEE for use of the VIP3A GENE in LICENSED COMMERCIAL SEED sold by MONSANTO in the United States of America if SYNGENTA exercises its right to license MONSANTO under Subsection 3.5(c)(i) or to establishment of the TECHNOLOGY FEES for use of the VIP3A GENE in LICENSED COMMERCIAL SEED sold by SYNGENTA or by other licensees of SYNGENTA in the United States of America if SYNGENTA exercises its right to sell or to license third parties to sell LICENSED COMMERCIAL SEED in the event of occurrences described in Subsection 3.5(c)(ii) of this LICENSE AGREEMENT) ITEM 10 [from Subsection 11.2 (b)]: (b) As of the EFFECTIVE DATE, D&PL has the right under the Roundup Ready(R) Gene License and Seed Services Agreement among Monsanto Company, D&M Partners, and Delta and Pine Land Company, dated as of February 2, 1996, amended as of July 26, 1996, and December 8, 1999, and clarified as of January 2, 2000, and further amended as of March 26, 2003 (the "Roundup Ready(R) Gene License and Seed Services Agreement"), to insert the VIP3A GENE in DELTAPINE CULTIVARS embodying MONSANTO'S Roundup Ready(R) Gene and related MONSANTO technology, subject to the terms and conditions of the Roundup Ready(R) Gene License and Seed Services Agreement and specifically subject to the terms of Section 3.6(a) of said agreement, as amended on December 8, 1999. D&PL warrants that it will not stack any NON-SYNGENTA GENE in combination with a SYNGENTA GENE as to which D&PL does not have full right and authority from the owner or licensor of the NON-SYNGENTA GENE to so stack. ITEM 11 [from Subsection 14.2 (b)]: (b) In the event of a MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION, the following events shall occur: (i) SYNGENTA shall pay to D&PL the MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION FEE within thirty (30) days after closing of the MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION, provided that SYNGENTA or its successor shall be obligated to pay D&PL only one MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION FEE under this LICENSE AGREEMENT and/or any of the RELATED AGREEMENTS. (ii) D&PL shall have the option, exercised by notice given within thirty (30) days after the later of (x) the closing of a MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION or (y) the closing of any divestiture of SYNGENTA'S rights to the VIP3A GENE or other assets related to SYNGENTA'S performance of this LICENSE AGREEMENT or any of the RELATED AGREEMENTS, pursuant to agreement of SYNGENTA and MONSANTO and/or as required by regulatory authorities as a condition to closing of a MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION, either (A) to continue this LICENSE AGREEMENT in full force and effect under the same terms and conditions, provided that thereafter (1) D&PL shall be responsible for making all decisions previously made by the LICENSE MANAGEMENT COMMITTEE, which decision-making shall be exercised by D&PL in good faith and in a commercially reasonable manner, and (2) D&PL may assume responsibility at its expense for obtaining GOVERNMENT APPROVAL for VIP3A GENE EVENTS in the United States of America and for controlling defense of patent infringement claims and SYNGENTA and/or its successor will, upon request, provide commercially reasonable assistance to D&PL with obtaining such GOVERNMENT APPROVAL in the United States of America and with defense of patent infringement claims, and (3) neither SYNGENTA nor MONSANTO or their respective AFFILIATES will assert any claims under patents that are issued on (or that thereafter issue from any patent application pending on) the date of closing of the MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION to enjoin or restrict sale of LICENSED COMMERCIAL SEED by D&PL or its sublicensees, or (B) to terminate this LICENSE AGREEMENT, in which event SYNGENTA shall refund to D&PL, within thirty (30) days after receipt of D&PL'S notice of its exercise of this option, all of the LICENSE PURCHASE PRICE paid by D&PL and D&PL and/or its sublicensees shall have the right for a period of three (3) years from and after the date of termination to sell LICENSED COMMERCIAL SEED then in their possession or which they are then obligated by contract to take delivery. D&PL and SYNGENTA shall each receive the portions of NET TECHNOLOGY FEE REVENUE related to such sales of LICENSED COMMERCIAL SEED as provided in Section 6.2. EXHIBIT L TERMINATION 10.2 TERMINATION (a) In the event that on or before the COMMITMENT DATE, D&PL does not give SYNGENTA notice that it commits to achieve the INSECT RESISTANCE MARKET PENETRATION COMMITMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE, (i) this LICENSE AGREEMENT shall terminate as of the COMMITMENT DATE (except with respect to any VIP3A GENE EVENT for which GOVERNMENT APPROVAL in the United States of America has been obtained as of the COMMITMENT DATE) and (ii) D&PL shall have no obligation to pay SYNGENTA further installments of the LICENSE PURCHASE PRICE with respect to this LICENSE AGREEMENT to become due after the COMMITMENT DATE and (iii) SYNGENTA shall pay D&PL within thirty (30) days after the COMMITMENT DATE the sum of Seven Million United States Dollars (US$7,000,000) with respect to this LICENSE AGREEMENT. In the event that on or before the COMMITMENT DATE, D&PL gives SYNGENTA notice of the INSECT RESISTANCE MARKET PENETRATION COMMITMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE but D&PL does not achieve such INSECT RESISTANCE MARKET PENETRATION under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE by any one or more of the deadline(s) applicable for achieving such INSECT RESISTANCE MARKET PENETRATION, this LICENSE AGREEMENT shall terminate as of the date of applicable deadline which D&PL fails to achieve (except with respect to any VIP3A GENE EVENT for which GOVERNMENT APPROVAL in the United States of America has been obtained as of such date). If this LICENSE AGREEMENT terminates under this Subsection 10.2(a), SYNGENTA shall have the rights specified in Subsection 3.5(c)(ii) with respect to all VIP3A GENE EVENTS. (b) In the event of a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION, D&PL or its successor shall pay SYNGENTA the MONSANTO CHANGE OF CONTROL TRANSACTION FEE within thirty (30) days after the closing of the MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION, provided that D&PL or its successor shall be obligated to pay SYNGENTA only one MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION FEE under this LICENSE AGREEMENT and/or any of the RELATED AGREEMENTS. D&PL or its successor shall also within such thirty (30) days either (i) give notice to SYNGENTA that D&PL or its successor will continue to make the installment payments of the LICENSE PURCHASE PRICE to SYNGENTA provided for under Subsection 2.2 of the LICENSE PURCHASE AGREEMENT as the same become due and payable or (ii) pay SYNGENTA the MONSANTO/D&PL CHANGE OF CONTROL TERMINATION PAYMENT. In the event D&PL gives the notice provided for in Subsection 10.2(b)(i), this LICENSE AGREEMENT shall continue in full force and effect. In the event that D&PL does not give the notice provided for in Subsection 10.2(b)(i), this LICENSE AGREEMENT shall terminate (except with respect to any VIP3A GENE EVENT for which GOVERNMENT APPROVAL in the United States has been obtained as of the date of closing of a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION), and, upon payment of the MONSANTO/D&PL CHANGE OF CONTROL TERMINATION PAYMENT, D&PL shall have no further obligation to pay SYNGENTA further installments of the LICENSE PURCHASE PRICE. In addition, in the event of a MONSANTO/D&PL CHANGE OF CONTROL, SYNGENTA shall have the rights specified in Subsection 3.5(c)(ii) with respect to all VIP3A GENE EVENTS and SYNGENTA'S obligations under Section 12 of this LICENSE AGREEMENT shall no longer apply to then pending or subsequently asserted patent infringement claims. (c) SYNGENTA and D&PL may terminate this LICENSE AGREEMENT by mutual written agreement. (d) In the event that the Roundup Ready(R) Gene License and Seed Services Agreement (as described in Subsection 11.2(b)), as the same may be amended from time to time in accordance with its terms, should cease to be in effect for a continuous period of six (6) months or longer or shall cease to contain provisions permitting D&PL to insert the VIP3A GENE in DELTAPINE CULTIVARS embodying a MONSANTO Roundup Ready(R) Gene (as defined in the Roundup Ready(R) Gene License and Seed Services Agreement, including the "First Roundup Ready(R) Gene" and any "Subsequent Roundup Ready(R) Gene"), as a result of agreement between MONSANTO and D&PL or as a result of a written order or award by court or arbitration panel that is effective and binding on D&PL, and such agreement, order or award is not stayed, lifted or vacated and/or D&PL has not entered into an agreement with MONSANTO or its successor and/or assigns for reinstatement, novation or replacement of the Roundup Ready(R) Gene License and Seed Services Agreement, containing provisions permitting D&PL to insert the VIP3A GENE in DELTAPINE CULTIVARS embodying MONSANTO'S Roundup Ready(R) Gene, SYNGENTA shall have the right, exercisable by written notice delivered to D&PL within sixty (60) days after the end of such six (6) month period, to elect to have the provisions of Section 3.5(c)(ii) apply. If SYNGENTA delivers such notice, SYNGENTA must deliver the same notice as to the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE if no event under Section 3.5(c)(ii) thereof has then occurred with respect to such RELATED AGREEMENT. In the event that SYNGENTA delivers a notice as described in the preceding sentence, D&PL shall have the right, exercisable by written notice delivered to SYNGENTA within sixty (60) days after receipt of such notice from SYNGENTA, to elect that (i) this LICENSE AGREEMENT shall terminate (except with respect to any VIP3A GENE EVENT for which GOVERNMENT APPROVAL in the United States of America has been obtained as of the date of D&PL'S notice) and (ii) D&PL shall have no obligations to pay SYNGENTA further installments of the LICENSE PURCHASE PRICE with respect to this LICENSE AGREEMENT and (iii) SYNGENTA shall pay D&PL, within thirty (30) days after the receipt of D&PL'S notice, an amount as set forth in the schedule attached as Exhibit G. If SYNGENTA delivers such notice, D&PL must deliver the same notice as to the RELATED AGREEMENT for the license of a NON-VIP3A SYNGENTA LEPIDOPTERAN-ACTIVE GENE if no event under Section 3.5(c)(ii) thereof has then occurred with respect to such RELATED AGREEMENT. If this LICENSE AGREEMENT terminates under this Subsection 10.2(d), SYNGENTA shall have the rights specified in Subsection 3.5(c)(ii) with respect to all VIP3A GENE EVENTS. Provided that anything in this LICENSE AGREEMENT notwithstanding, Subsection 10.2(d) shall not apply (a) in the event that the Roundup Ready(R) Gene License and Seed Services Agreement should cease to be in effect due to the expiration of the Licensed Patent Rights (as defined therein) and such expiration does not adversely affect D&PL'S right to insert the VIP3A GENE in DELTAPINE CULTIVARS embodying MONSANTO'S Roundup Ready(R) Gene and/or (b) in the event that, as of the time the Roundup Ready(R) Gene License and Seed Services Agreement should cease to be in effect or shall cease to contain provisions permitting D&PL to insert the VIP3A GENE in DELTAPINE CULTIVARS embodying MONSANTO'S Roundup Ready(R) Gene, D&PL has commenced COMMERCIAL SALE in the United States of America of DELTAPINE VIP3A CULTIVARS containing a HERBICIDE TOLERANCE GENE reasonably acceptable to SYNGENTA based on a good faith evaluation by SYNGENTA of such HERBICIDE TOLERANCE GENE, based on factors relating to HERBICIDE TOLERANCE GENE(S) and glyphosate-based herbicide(s). 10.5 EFFECT OF TERMINATION. In the event that, upon termination of this LICENSE AGREEMENT, D&PL retains rights to the VIP3A GENE EVENT(S) for which GOVERNMENT APPROVAL in the United States of America has then been obtained, SYNGENTA'S and D&PL'S respective rights and obligations with respect to such VIP3A GENE EVENT(S) for which GOVERNMENT APPROVAL in the United States of America has then been obtained shall continue on the same terms and conditions set forth herein, provided that, in cases where D&PL'S obligation to pay further installments of the LICENSE PURCHASE PRICE has terminated, SYNGENTA and D&PL shall share any costs of maintenance of government approvals and clearances with respect to VIP3A GENE EVENT(S) for which D&PL'S LICENSES survive in accordance with the formula for sharing of such expenses set forth in Subsections 4.3(c) and 4.3(d) based on TECHNOLOGY FEES from COMMERCIAL SALES of LICENSED COMMERCIAL SEED containing the subject VIP3A GENE EVENT(S) by D&PL and its sublicensees and by SYNGENTA and its licensees in each relevant country in the most recent twelve (12) month period ending August 31, provided that, if there are no such COMMERCIAL SALES in a particular country, such costs shall be borne equally by SYNGENTA and D&PL. In the event this LICENSE AGREEMENT is terminated pursuant to Subsections 10.2, 10.3, 10.4, or 14.2(b)(ii)(B), D&PL shall lose the rights and LICENSES granted to it pursuant to this LICENSE AGREEMENT including (except as provided in Subsections 10.2(a), (b) and (d) and this Subsection 10.5) losing the right to receive any portion of the NET TECHNOLOGY FEES on any LICENSED COMMERCIAL SEED, provided that if this LICENSE AGREEMENT is terminated pursuant to Subsections 10.3 or 10.4 by D&PL on account of a breach or default by SYNGENTA or pursuant to 10.2(c) by mutual agreement of D&PL and SYNGENTA or pursuant to Subsection 14.2(b)(ii)(B) upon a MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION, D&PL and/or its sublicensees shall have the right for a period of three (3) years from and after the date of termination to sell LICENSED COMMERCIAL SEED then in their possession or which they are then obligated by contract to take delivery. D&PL and SYNGENTA shall each receive the portions of NET TECHNOLOGY FEE REVENUE related to such sales of LICENSED COMMERCIAL SEED as provided in Subsection 6.2. EXHIBIT M ****** EX-99.9 14 ex99_9.txt Exhibit 99.9 **CONFIDENTIAL TREATMENT REQUESTED BY DELTA AND PINE LAND COMPANY** NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH ******. RESTATED CRY1AB GENE LICENSE AGREEMENT EFFECTIVE AS OF THE 24TH DAY OF AUGUST 2004 BETWEEN SYNGENTA CROP PROTECTION AG AND DELTA AND PINE LAND COMPANY TABLE OF CONTENTS SECTION 1 -- BACKGROUND.................................................1 SECTION 2 -- INTERPRETATION.............................................1 2.1 DEFINITIONS.................................................1 2.2 STATUTORY REFERENCES.......................................13 2.3 DEFINED TERMS..............................................14 SECTION 3 -- LICENSES..................................................14 3.1 LICENSE TO CRY1AB GENE.....................................14 3.2 LICENSE TO PRODUCE AND SELL LICENSED COMMERCIAL SEED.......14 3.3 LICENSE TO MULTIPLY LICENSED COMMERCIAL SEED...............14 3.4 EX-U.S. SUBLICENSES........................................15 3.5 RIGHTS RETAINED BY SYNGENTA................................15 3.6 COMBINED GENE COTTON SEED..................................19 3.7 CONDITIONS ON LICENSES.....................................20 3.8 GENE TRADEMARK.............................................22 3.9 THIRD PARTY VIOLATIONS OR INVALIDITY OF RESTRICTIONS ON SUBLICENSE..............................................23 SECTION 4 -- COMMERCIAL DEVELOPMENT ACTIVITIES OF THE PARTIES..........23 4.1 COMMERCIAL DEVELOPMENT PLAN................................23 4.2 CONSULTATION...............................................24 4.3 GENE PROTECTION AND REGULATORY ACTIVITIES..................24 4.4 SEED DEVELOPMENT AND COMMERCIALIZATION RESPONSIBILITIES....31 4.5 LICENSE MANAGEMENT COMMITTEE...............................34 SECTION 5 -- OWNERSHIP OF TECHNOLOGY...................................40 5.1 SYNGENTA TECHNOLOGY AND LICENSED PATENT RIGHTS.............40 5.2 D&PL TECHNOLOGY............................................40 5.3 SAFETY, TOXICOLOGY AND EFFICACY DATA.......................40 5.4 USE OF DATA................................................41 SECTION 6 -- TECHNOLOGY FEES AND ROYALTY...............................41 6.1 TECHNOLOGY FEE.............................................41 6.2 COMPENSATION TO SYNGENTA FOR LICENSE TO THE GENE...........46 6.3 ROYALTY PERIOD.............................................46 SECTION 7 -- BUSINESS RECORDS/PAYMENTS.................................47 7.1 D&PL BUSINESS RECORDS......................................47 7.2 D&PL REPORTS AND PAYMENTS..................................48 7.3 SYNGENTA BUSINESS RECORDS..................................48 7.4 SYNGENTA REPORTS AND PAYMENTS..............................49 7.5 PAYMENT ADDRESS............................................50 7.6 PAYMENTS...................................................50 7.7 INTEREST ON OUTSTANDING BALANCES...........................51 7.8 SYNGENTA PATENT RECORDS....................................51 SECTION 8 -- CONFIDENTIALITY...........................................52 8.1 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.................52 8.2 PERIOD OF CONFIDENTIALITY..................................52 8.3 USES OF CONFIDENTIAL INFORMATION...........................53 SECTION 9 -- FORCE MAJEURE.............................................54 9.1 FORCE MAJEURE..............................................54 SECTION 10 -- TERM AND TERMINATION.....................................55 10.1 TERM OF LICENSES...........................................55 10.2 TERMINATION................................................55 10.3 BREACH OF OBLIGATIONS......................................55 10.4 DEFAULT ON PAYMENT.........................................56 10.5 EFFECT OF TERMINATION......................................56 10.6 SURVIVAL OF COVENANTS......................................56 SECTION 11 -- WARRANTIES AND WARRANTY LIMITATIONS......................56 11.1 SYNGENTA WARRANTIES........................................56 11.2 D&PL WARRANTIES............................................58 11.3 MUTUAL WARRANTIES..........................................58 11.4 NO OTHER WARRANTIES........................................58 11.5 EXCLUSIVE REMEDY...........................................59 SECTION 12 -- PATENT INFRINGEMENT......................................60 SECTION 13 -- CLAIMS BY VENDEES FOR FAILURE OF GENE PERFORMANCE........60 SECTION 14 -- GENERAL..................................................60 14.1 ASSIGNMENT OF D&PL'S RIGHTS AND OBLIGATIONS................60 14.2 ASSIGNMENT OF SYNGENTA'S RIGHTS AND OBLIGATIONS............61 14.3 RELATION OF PARTIES........................................61 14.4 INTEGRATION OF CONTRACT....................................61 14.5 WAIVERS AND AMENDMENTS.....................................62 14.6 HEADINGS...................................................62 14.7 REFERENCES TO SECTIONS, SUBSECTIONS AND EXHIBITS...........62 14.8 PARTIAL INVALIDITY.........................................62 14.9 GOVERNING CONTRACT LAW.....................................63 14.10 GOVERNING PATENT LAW.......................................63 14.11 NOTICES....................................................63 14.12 DISPUTE RESOLUTION.........................................64 14.13 INCORPORATION OF EXHIBITS..................................66 EXHIBITS EXHIBIT A - LICENSED PATENT RIGHTS EXHIBIT B - CRY1AB GENE TRADEMARK LICENSE AGREEMENT EXHIBIT C - ****** EXHIBIT D - AGRONOMIC CRITERIA EXHIBIT E - SEED PURITY STANDARDS EXHIBIT F - PRICING REGIONS IN THE UNITED STATES EXHIBIT G - SCHEDULE OF PAYMENTS UNDER SUBSECTION 10.2(D) EXHIBIT H - CERTAIN HERBICIDE TOLERANCE GENE(S) EXHIBIT I - ****** EXHIBIT J - PERFORMANCE REQUIREMENTS EXHIBIT K - PROVISIONS RELATED TO MONSANTO EXHIBIT L - TERMINATION EXHIBIT M - ****** CRY1AB GENE LICENSE AGREEMENT THIS RESTATED Cry1Ab GENE LICENSE AGREEMENT ("LICENSE AGREEMENT") is effective as of the 24th day of August 2004 (the "EFFECTIVE DATE") 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. SECTION 1 -- BACKGROUND 1.1 SYNGENTA has developed the Cry1Ab GENE which is useful in the production of genetically-modified cotton plants exhibiting INSECT RESISTANCE and also possesses certain know-how and germplasm relating to such cotton plants. 1.2 SYNGENTA and D&PL desire to enter into a license agreement under which D&PL would be granted a worldwide license under certain patents to which SYNGENTA has rights to produce and sell LICENSED COMMERCIAL SEED containing the Cry1Ab GENE and to sublicense cotton farmers the right to use LICENSED COMMERCIAL SEED exhibiting INSECT RESISTANCE to produce a single commercial cotton crop. SECTION 2 -- INTERPRETATION 2.1 DEFINITIONS. In this LICENSE AGREEMENT, unless the context otherwise requires: 2.1.1 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 Item 1 of Exhibit K]. 2.1.2 The term "AGRONOMIC CRITERIA" means the standard for the agronomic and commercial acceptability as to yield, fiber quality and disease resistance which must be satisfied by cultivars of LICENSED COMMERCIAL SEED offered for COMMERCIAL SALE as set forth in Exhibit D to this LICENSE AGREEMENT, as the same may be amended in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT. 2.1.3 [Text in Exhibit I] 2.1.4 The term "COMBINED GENE COTTON SEED" means a LICENSED COMMERCIAL SEED which contains one or more NON-SYNGENTA GENE(S). 2.1.5 The term "COMMERCIAL DEVELOPMENT" means the evaluation of a particular Cry1Ab GENE EVENT (either alone or in combination with any other particular SYNGENTA GENE(S) and/or NON-SYNGENTA GENE(S)), (a) by D&PL in DELTAPINE CULTIVARS; (b) by D&PL'S sublicensees in DELTAPINE CULTIVARS or in SUBLICENSEE CULTIVARS; (c) if permitted under this LICENSE AGREEMENT, by or for SYNGENTA in cultivars other than DELTAPINE CULTIVARS; or (d) if permitted under this LICENSE AGREEMENT, by a third party licensed by SYNGENTA in such third party's cultivars, pursuant to the COMMERCIAL DEVELOPMENT PLAN after a determination is made in accordance with Subsection 4.4(b) of this LICENSE AGREEMENT that the particular Cry1Ab GENE EVENT has exhibited the criteria for COMMERCIAL INSECT RESISTANCE. 2.1.6 The term "COMMERCIAL DEVELOPMENT PLAN" means the plan for development of LICENSED COMMERCIAL SEED to be adopted in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT as the same may be amended from time to time in accordance with Section 4 of this LICENSE AGREEMENT. 2.1.7 The term "COMMERCIAL INSECT RESISTANCE" means LEPIDOPTERAN RESISTANCE meeting the criteria for LEPIDOPTERAN RESISTANCE in LICENSED COMMERCIAL SEED sold for planting in THE TERRITORY or in any particular part of THE TERRITORY as set forth in the COMMERCIAL DEVELOPMENT PLAN adopted in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT. 2.1.8 The term "COMMERCIAL SALE" with respect to a GENE means sale or other transfer for value of cotton seed containing such GENE for use by LICENSED GROWERS in producing a single commercial commodity cotton crop (other than sale or other transfer for testing or increase on behalf of the transferor). 2.1.9 [Text in Exhibit J] 2.1.10 The term "COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS" means the amounts established in accordance with Section 6 that D&PL may provide as adjustments to the TECHNOLOGY FEES to meet competitive conditions in the marketplace in a particular PRICING REGION. 2.1.11 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. 2.1.12 The term "Cry1Ab GENE" means a GENE(S) and/or genetic construct(s) inserted into the cotton genome that encode part or all of a Cry1Ab protein. 2.1.13 The term "Cry1Ab GENE EVENT" means a transformation event by which a Cry1Ab GENE is inserted in the genome of a sexually viable cotton plant, including, but not limited to, the transformation events designated by SYNGENTA as ****** and any back-up or additional Cry1Ab GENE transformation events resulting from current or subsequent work by or on behalf of SYNGENTA. 2.1.14 The term "Cry1Ab GENE TRADEMARK" means a trademark owned by SYNGENTA relating to the Cry1Ab GENE. 2.1.15 The term "Cry1Ab GENE TRADEMARK LICENSE AGREEMENT" means an agreement in substantially the form attached hereto as Exhibit B, as the same may be completed and/or amended from time to time by written agreement of the PARTIES on a country by country basis. 2.1.16 The term "D&PL" means, collectively, DELTA AND PINE LAND COMPANY and its AFFILIATES, provided that if a notice is required to be given by or to D&PL, or a document is to be executed by D&PL under Section 14.5, the term shall mean DELTA AND PINE LAND COMPANY. 2.1.17 [Text in Exhibit J] 2.1.18 The term "D&PL TECHNOLOGY" means any information, data, know-how, technology, and germplasm that D&PL now owns or licenses (other than from SYNGENTA) or hereafter develops, produces, makes, licenses in or obtains (other than from SYNGENTA), relating to the breeding and development of commercial varieties or hybrids of LICENSED COMMERCIAL SEED or other varieties or hybrids of cotton. D&PL TECHNOLOGY shall not include information, data, know-how, technology, or germplasm that has become part of the public domain through no fault of SYNGENTA or which has been provided to SYNGENTA, as evidenced by SYNGENTA'S written records, by a third party having no obligation of confidentiality to D&PL with respect thereto. 2.1.19 The term "DATE OF APPROVAL FOR COMMERCIAL SALE" with respect to a particular Cry1Ab GENE EVENT means the date on which D&PL or its ~ublicense(s) commences COMMERCIAL SALE by D&PL (or its ~ublicense(s) of LICENSED COMMERCIAL SEED containing that Cry1Ab GENE EVENT in a particular country in THE TERRITORY or SYNGENTA or its licensee(s) commences COMMERCIAL SALE of LICENSED COMMERCIAL SEED in a particular country pursuant to Subsection 4.3(k). 2.1.20 The term "DATE OF GOVERNMENT APPROVAL" with respect to any country in THE TERRITORY with respect to a Cry1Ab GENE EVENT means the date on which GOVERNMENT APPROVAL of such Cry1Ab GENE EVENT has been obtained in that country. 2.1.21 The term "DEADLOCK MATTER" shall have the meaning ascribed to that term in Section 4.5(d)(v). 2.1.22 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. 2.1.23 The term "DELTAPINE Cry1Ab CULTIVAR" means a DELTAPINE CULTIVAR which contains the Cry1Ab GENE. 2.1.24 The term "DELTAPINE CULTIVAR" means a cultivar of cotton produced from germplasm which D&PL has the right to use for plant-breeding purposes and/or which D&PL otherwise has the right to use for COMMERCIAL SALE. 2.1.25 The term "DISPUTE" shall have the meaning ascribed to the term in Section 14.12. 2.1.26 [Text in Exhibit I] 2.1.27 The term "EFFECTIVE DATE" means the date first above written. 2.1.28 The term "EXECUTIVE MANAGEMENT COMMITTEE" shall have the meaning ascribed to that term in Section 4.5(d)(v). 2.1.29 The term "EXPIRATION," with respect to any patent, means the earlier of the date upon which such patent expires or upon which an applicable claim is cancelled, or declared invalid or permanently unenforceable by any court or administrative agency of competent jurisdiction from which no appeal has or can be taken. 2.1.30 The term "FTE RATE" means cost of a full-time equivalent person-year, based on a total of one thousand eight hundred forty (1,840) hours of work per year by a person appropriately qualified for the tasks to be completed, and who holds a Ph.D. or Masters of Science (or is otherwise appropriately trained) in an appropriate discipline, which rate shall equal ****** in base year 2004, and which rate shall be adjusted annually beginning January 1, 2005, by any percentage change in the Consumer Price Index of All Urban Consumers (CPI-U) published by the United States Department of Labor. 2.1.31 The term "GENE" means a DNA sequence contained in the genome of a sexually viable cotton plant. 2.1.32 The term "GENE EQUIVALENCY STANDARDS" means standards, protocols, and processes for verification of insecticide protein expression in cultivars of LICENSED COMMERCIAL SEED proposed for COMMERCIAL SALE in accordance with standards set forth in the COMMERCIAL DEVELOPMENT PLAN adopted in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT. 2.1.33 The term "GOVERNMENT APPROVAL" with respect to a Cry1Ab GENE EVENT (or other GENE event) in a particular country means that official clearances or written approvals for COMMERCIAL SALE of seed to produce genetically-transformed cotton plants containing that Cry1Ab GENE EVENT (or other GENE event) have been obtained from all government agencies in that country which, as of that date, are required for the import, testing, development, production, use, and sale of such plants or seed produced therefrom under applicable laws as required for D&PL (or its sublicensees) activities under this LICENSE AGREEMENT, provided that, to constitute GOVERNMENT APPROVAL, such clearances or approvals shall not place materially greater regulatory restrictions or economic burdens that adversely affect the COMMERCIAL SALE or use of the subject Cry1Ab GENE EVENT than on any other LEPIDOPTERAN-ACTIVE GENE available for COMMERCIAL SALE in that country (unless this requirement is waived by notice from D&PL to SYNGENTA), provided, further, however, that nothing in this LICENSE AGREEMENT shall require SYNGENTA to obtain approval from any agency with respect to the issuance of seed certificates or phytosanitary certificates or certificates of plant variety protection under the U. S. Plant Variety Protection Act or any other laws relating to plant variety protection, which approvals, when appropriate or required, shall be the responsibility of D&PL (or its ~ublicense). 2.1.34 The term "HERBICIDE TOLERANCE GENE" means a GENE which does not occur naturally in cotton that causes cotton plants not to sustain economically significant damage when exposed to a glyphosate-based herbicide. 2.1.35 The term "INSECT RESISTANCE" or "INSECT RESISTANCE TRAIT" means the property of cotton plants (a) to exhibit LEPIDOPTERAN RESISTANCE due to the presence of LEPIDOPTERAN-ACTIVE GENE(S) and/or (b) to be toxic to insect pests of cotton other than LEPIDOPTERAN INSECTS due to the presence of NON-LEPIDOPTERAN ACTIVE GENE(S). 2.1.36 [Text in Exhibit J] 2.1.37 [Text in Exhibit J] 2.1.38 The term "LEPIDOPTERAN-ACTIVE GENE" means a GENE containing one or more sequences encoding one or more toxins which do(es) not occur naturally in cotton, that provides LEPIDOPTERAN RESISTANCE. 2.1.39 The term "LEPIDOPTERAN INSECTS" means a group of cotton bollworms including: Helicoverpa zea (Cotton Bollworm), Heliothis virescens (Tobacco Budworm), and Pectinophora gossypiella (Pink Bollworm). 2.1.40 The term "LEPIDOPTERAN RESISTANCE" means the property of cotton plants to be toxic to LEPIDOPTERAN INSECTS due to the presence of a gene(s) that encodes a toxin which does not occur naturally in cotton. 2.1.41 The term "LICENSE ACQUISITION AGREEMENT" means the Restated License Acquisition Agreement dated August 24, 2004, between SYNGENTA CROP PROTECTION AG and DELTA AND PINE LAND COMPANY whereby D&PL acquired the right to licenses to certain GENES, including the right to the LICENSES to the Cry1Ab GENE more particularly described herein. 2.1.42 The term "LICENSE MANAGEMENT COMMITTEE" means the committee established by D&PL and SYNGENTA pursuant to Subsection 4.5 of this LICENSE AGREEMENT. 2.1.43 The term "LICENSE PURCHASE PRICE" means all amounts payable by D&PL to SYNGENTA under the LICENSE ACQUISITION AGREEMENT and allocated to the acquisition of the LICENSES set forth in this LICENSE AGREEMENT. 2.1.44 The term "LICENSED COMMERCIAL SEED" means cotton seed which incorporates the Cry1Ab GENE. 2.1.45 The term "LICENSED GROWER(S)" means any person or entity which has been sublicensed by D&PL or its sublicensees (whether through a grower license agreement executed by such person or entity or by wording on container labels or sales documents used in lieu of execution of grower license agreement) under the LICENSED PATENT RIGHTS to use LICENSED COMMERCIAL SEED for production of a single commercial cotton crop. 2.1.46 The term "LICENSED PATENT RIGHTS" means the patents and patent applications listed in Exhibit A which are owned by SYNGENTA or licensed to SYNGENTA (including any patent applications and patents filed, granted or issued pursuant to any parent, extension, confirmation, continuation, registration, reexamination, continuation-in-part, reissue, or divisional thereof anywhere in the world), and any additional such patent rights of SYNGENTA or of others which may be added to said Exhibit A by SYNGENTA by written notice to D&PL. LICENSED PATENT RIGHTS shall include any patent rights which are acquired by SYNGENTA with the right to license or sublicense to D&PL during the term of this LICENSE AGREEMENT which, in the absence of the LICENSES, potentially would be infringed by D&PL'S performance hereunder or by D&PL'S making, using or selling LICENSED COMMERCIAL SEED or other activities hereunder. SYNGENTA shall periodically update Exhibit A with any such patent rights which have been newly acquired by SYNGENTA. It is the intention of the PARTIES that D&PL be licensed under all patents and applications owned or controlled by SYNGENTA (with the right to grant rights to D&PL) that D&PL requires for performance under this LICENSE AGREEMENT. The listing of a patent or patent application on Exhibit A shall not be an admission by either PARTY that such patent would, in the absence of license, be infringed. Similarly, the failure to list a patent or patent application on Exhibit A shall not necessarily be determinative of whether such patent or patent application is a LICENSED PATENT RIGHT. 2.1.47 The term "LICENSES" means the licenses granted to D&PL under Section 3. 2.1.48 [Text in Item 2 of Exhibit K] 2.1.49 [Text in Item 2 of Exhibit K] 2.1.50 [Text in Item 2 of Exhibit K] 2.1.51 [Text in Item 2 of Exhibit K] 2.1.52 [Text in Item 2 of Exhibit K] 2.1.53 [Text in Item 2 of Exhibit K] 2.1.54 The term "NET TECHNOLOGY FEE REVENUE" means the TECHNOLOGY FEES, as modified by COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS, collected for the license or use of the Cry1Ab GENE in LICENSED COMMERCIAL SEED, less amounts paid for (a) the reasonable costs of grower licensing and collection of TECHNOLOGY FEES, (b) payments, discounts and rebates to distributors and retailers, (c) payments, discounts and rebates to growers under crop destruct, crop replant, SEED DROP RATE exception, refugia refund (i.e. price adjustments or rebates based on the grower's choice among refugia options), trait investment, regional price adjustment (i.e. price adjustments or rebates targeted at encouraging growers in specific geographical areas to use LICENSED COMMERCIAL SEED containing Cry1Ab GENES) and other grower incentive programs, and (d) advertising (e.g., electronic media and print) which, as to (a) through (d), (i) are directly and exclusively attributable to the licensing or use of the Cry1Ab GENE (including the HERBICIDE TOLERANCE GENE as described in Exhibit H with which the Cry1Ab GENE is stacked, except to the extent paid or reimbursed by a party other than SYNGENTA or D&PL) or, if attributable in part to the licensing and use of the Cry1Ab GENE and in part to the licensing or use of another SYNGENTA GENE and/or NON-SYNGENTA GENE (other than the HERBICIDE TOLERANCE GENE as described in Exhibit H with which the Cry1Ab GENE is stacked), have been allocated based on the amounts charged for use of each of the respective GENES (provided that amounts deductible in determining NET TECHNOLOGY FEE REVENUE shall not include expenses for promoting the use of any particular glyphosate-based herbicide), and (ii) have been approved by the LICENSE MANAGEMENT COMMITTEE in accordance with Subsection 4.4(c) hereof and (iii) have been paid to distributors, retailers, and/or growers (or, in the case of advertising programs, expended) in accordance with their terms and conditions and in each case in connection with the license or use of the Cry1Ab GENE and/or such other GENE(S) in LICENSED COMMERCIAL SEED, and calculated in accordance with U.S. generally accepted accounting principles, consistently applied, during the applicable period for which a ROYALTY payment is being determined. There shall be no duplication of reimbursement or payment for such costs and expenses under this LICENSE AGREEMENT and under any RELATED AGREEMENT. For purposes of payments to be made under Section 7, the amounts to be deducted under Subparts (a)-(d) above to determine NET TECHNOLOGY FEE REVENUE may be estimated based on accruals made in good faith and in accordance with generally accepted accounting principles consistently applied by the applicable PARTY incurring such expense and then trued-up on the next December 31 based on the actual amounts paid for such items. 2.1.55 The term "NON-INSECT RESISTANCE GENE" means a GENE containing one or more DNA sequences which do(es) not occur naturally in cotton that cause(s) cotton plants to express a trait, other than INSECT RESISTANCE, not found in cotton. NON-INSECT RESISTANCE GENES shall include but are not limited to HERBICIDE TOLERANCE GENES. 2.1.56 The term "NON-LEPIDOPTERAN-ACTIVE GENE" means a GENE containing one or more DNA sequences encoding one or more toxins, which do(es) not occur naturally in cotton, that provide(s) resistance to insect pests of cotton other than LEPIDOPTERAN INSECTS and do(es) not qualify as a LEPIDOPTERAN-ACTIVE GENE. 2.1.57 The term "NON-SYNGENTA GENE" means a GENE not licensed to D&PL by SYNGENTA expressing a trait not naturally occurring in cotton or modulating expression of a characteristic naturally found in cotton. 2.1.58 The term "NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE" means a LEPIDOPTERAN-ACTIVE GENE (other than the Cry1Ab GENE) which is licensed to D&PL by SYNGENTA. 2.1.59 The term "NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE EVENT" means a transformation event by which a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE is inserted in the genome of a sexually viable cotton plant. 2.1.60 The "PANEL" shall have the meaning ascribed to that term in Section 14.12. 2.1.61 The term "PARTIES" shall mean SYNGENTA and D&PL, and "PARTY" shall mean either SYNGENTA or D&PL, provided with respect to the recipient of a notice or execution of documents under Subsection 14.5, "PARTY" shall mean either of (and "PARTIES" shall mean both of) SYNGENTA CROP PROTECTION AG and DELTA AND PINE LAND COMPANY. 2.1.62 [Text in Exhibit I] 2.1.63 [Text in Exhibit I] 2.1.64 The term "PRICING REGION" means (a) in the United States of America, each of the geographic regions described in attached Exhibit F (which Exhibit F may be amended by D&PL by notice to SYNGENTA on or before September 15 of the calendar year before the commencement of the cotton planting season in which such amended description of the PRICING REGIONS in the United States of America will take effect) and (b) outside the United States, each nation in which LICENSED COMMERCIAL SEED is marketed by D&PL or its AFFILIATES, by D&PL'S ~ublicense(s), or if permitted under this LICENSE AGREEMENT, by or on behalf of SYNGENTA and/or by a third party licensed by SYNGENTA. 2.1.65 The term "RECIPIENT" means a party which receives confidential information of another party as described in Section 8. 2.1.66 The term "RELATED AGREEMENTS" means this LICENSE AGREEMENT, the LICENSE ACQUISITION AGREEMENT, and all other license agreements entered into by D&PL and SYNGENTA pursuant to the LICENSE ACQUISITION AGREEMENT, as such agreements may be amended from time to time in writing. 2.1.67 The term "RESPONSIBLE PARTY" shall have the meaning ascribed to that term in Subsection 4.5(d)(ii). 2.1.68 The term "ROYALTY" means the compensation to be paid by D&PL to SYNGENTA for the LICENSES equal to the SYNGENTA ROYALTY PERCENTAGE multiplied by the NET TECHNOLOGY FEE REVENUE. 2.1.69 The term "SEED DROP RATE" means the average number of cotton seeds, as reasonably determined by D&PL, which cotton growers in a particular PRICING REGION or in any distinct subdivision thereof typically plant on an acre of farm land to achieve an appropriate plant population for cotton production. 2.1.70 The term "SEED PURITY STANDARD" means the standard for genetic purity of LICENSED COMMERCIAL SEED as set forth in Exhibit E to this LICENSE AGREEMENT, as the same may be amended in accordance with Subsection 4.4(a) of this LICENSE AGREEMENT. 2.1.71 The term "SPECIAL TECHNOLOGY FEE PANEL" shall have the meaning ascribed to that term in Subsection 6.1(d)(iv). 2.1.72 The term "SUBLICENSEE CULTIVAR" means a cultivar of cotton produced from germplasm which a third party that is sublicensed by D&PL under this LICENSE AGREEMENT has the right to use for plant-breeding purposes. 2.1.73 The term "SUBLICENSEE Cry1Ab CULTIVAR" means a SUBLICENSEE CULTIVAR which contains a Cry1Ab GENE. 2.1.74 The term "SYNGENTA" means collectively, SYNGENTA CROP PROTECTION AG and its AFFILIATES, including but not limited to SYNGENTA AG, provided that if a notice is required to be given to SYNGENTA, or a document is to be executed by SYNGENTA under Section 14.5, the term shall mean SYNGENTA CROP PROTECTION AG. 2.1.75 The term "SYNGENTA AG" means Syngenta AG, a company organized under the laws of Switzerland, having a place of business at Schwarzwaldallee 215, CH - 4058, Basel, Switzerland. 2.1.76 The term "SYNGENTA GENE" means a GENE owned by, or licensed to, SYNGENTA expressing a trait not naturally occurring in cotton or modulating expression of a characteristic naturally found in cotton. SYNGENTA GENES may consist of INSECT RESISTANCE GENES and NON-INSECT RESISTANCE GENES. 2.1.77 The term "SYNGENTA ROYALTY PERCENTAGE" means thirty percent (30%). 2.1.78 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. 2.1.79 The term "SYNGENTA TECHNOLOGY" means information, data, know-how and technology which are owned by SYNGENTA or licensed to SYNGENTA (other than by D&PL) that relates to the use of a Cry1Ab GENE in cotton including, but not limited to, information and technology relating to cells and seeds of cotton plants, DNA sequences and probes ~ublicens, transformation methodology, tissue cultures, assays, residue analyses, regeneration and selection procedures, plant genetic constituents, vectors useful in transforming such genetic constituents, construction and use of such vectors in cotton. SYNGENTA TECHNOLOGY shall not include information, data, know-how, or technology that has become part of the public domain through no fault of D&PL or which is or has been provided to D&PL as evidenced by D&PL'S written records, by a third party having no obligation of confidentiality to SYNGENTA with respect thereto. 2.1.80 The term "TECHNOLOGY" means SYNGENTA TECHNOLOGY and/or D&PL TECHNOLOGY as appropriate. 2.1.81 The term "TECHNOLOGY FEE" means the consideration (in whatever form of value capture) received from LICENSED GROWERS for the rights to use the Cry1Ab GENE embodied in LICENSED COMMERCIAL SEED to produce a single commercial cotton crop, the amount of which shall be established as provided in Subsection 6.1. 2.1.82 [Text in Exhibit I] 2.1.83 The term "THE TERRITORY" means the world. 2.1.84 The term "UNIT" means a quantity of packaged delinted cotton seed containing 250,000 seed; provided that in all calculations involving UNITS, seed being processed or that is packaged in other size containers shall be converted to 250,000 seed UNITS. 2.1.85 The term "VARIETAL NAME" means a word or combination of words or other combination of letters or numbers which identifies a cotton variety. 2.1.86 The term "VIP3A GENE" means a GENE(S) and/or genetic construct(s) inserted into the cotton genome that encode part or all of a VIP3A protein. 2.1.87 The term "VIP3A GENE EVENT" means a transformation event by which a VIP3A GENE is inserted in the genome of a sexually viable cotton plant. 2.2 STATUTORY REFERENCES. Each reference in this LICENSE AGREEMENT to a statute or a provision of a statute shall be construed as a reference to that statute or provision as it exists on the EFFECTIVE DATE, and any amended or successor statute. 2.3 DEFINED TERMS. Terms appearing in all upper-case letters, other than section headings and U.C.C.-related disclaimers of warranties, shall have the meanings set forth in Subsection 2.1. SECTION 3 -- LICENSES 3.1 LICENSE TO Cry1Ab GENE. SYNGENTA hereby grants to D&PL, and D&PL hereby accepts, on and subject to the terms and conditions of this LICENSE AGREEMENT, a license in THE TERRITORY, under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY, to sublicense LICENSED GROWERS to use LICENSED COMMERCIAL SEED containing the Cry1Ab GENE (alone or in combination with other SYNGENTA GENE(S) and/or NON-SYNGENTA GENE(S)) to produce a single commercial cotton crop. The terms and conditions of such sublicense to LICENSED GROWERS (whether in the form of grower license agreement executed by LICENSED GROWERS or wording on container labels or sales documents used in lieu of execution of grower license agreements) shall be recommended by D&PL and adopted by the LICENSE MANAGEMENT COMMITTEE in accordance with Subsection 3.7(e) and Subsection 4.4(c) of this LICENSE AGREEMENT. 3.2 LICENSE TO PRODUCE AND SELL LICENSED COMMERCIAL SEED. SYNGENTA hereby grants to D&PL, and D&PL hereby accepts, on and subject to the terms and conditions of this LICENSE AGREEMENT, a license in THE TERRITORY under LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY (a) to test, develop and produce (directly or through the services of third parties) LICENSED COMMERCIAL SEED, and (b) to sell (directly or through third party distributors and dealers, by sublicense or otherwise) LICENSED COMMERCIAL SEED to the LICENSED GROWERS sublicensed by D&PL under LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY to use the Cry1Ab GENE embodied in such LICENSED COMMERCIAL SEED. 3.3 LICENSE TO MULTIPLY LICENSED COMMERCIAL SEED. The rights granted to D&PL include the right to multiply LICENSED COMMERCIAL SEED (for subsequent sale to LICENSED GROWERS) directly or through third party contract growers selected by D&PL (in any country in THE TERRITORY where SYNGENTA and/or D&PL have obtained all necessary government approvals for such seed multiplication) and to carry out all other activities reasonably necessary for the production for sale of LICENSED COMMERCIAL SEED. 3.4 EX-U.S. SUBLICENSES. In addition to sublicenses to LICENSED GROWERS, distributors and dealers, in countries outside the United States of America D&PL may grant sublicenses to third parties under the LICENSES granted to D&PL in Subsections 3.1, 3.2 and 3.3. D&PL shall give notice to SYNGENTA of the grant of such sublicenses. D&PL shall require any such ~ublicense to agree in writing to comply with the terms and conditions of this LICENSE AGREEMENT applicable to D&PL in its sublicensed territory. D&PL shall have no right to sublicense except as provided in Subsections 3.1, 3.2, 3.3 and 3.4. [Text in Item 3 of Exhibit K]. 3.5 RIGHTS RETAINED BY SYNGENTA. (a) Except as provided in Subsections 3.5(b) and 3.5(c) and in Subsection 4.3(k), the LICENSES granted in Subsections 3.1, 3.2, 3.3 and 3.4 shall be the only licenses granted by SYNGENTA under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY in THE TERRITORY with respect to Cry1Ab GENE in cotton. (b) The provisions of Subsection 3.5(a) notwithstanding, except as provided in Subsection 3.5(c)(i) and/or Subsection 4.3(k), during the period prior to occurrence of one or more of the events expressly described in Subsection 3.5(c)(ii), SYNGENTA shall retain a right, without the right to grant licenses to third parties or to use the services of third parties engaged in the breeding or sale of cotton planting seed other than to provide (1) ordinary farming or harvesting services, (2) seed delinting and ginning services, (3) laboratory services and/or (4) testing in field trials conducted by United States Department of Agriculture and public university trialists in the United States of America, to test, develop, produce, and have produced, but not to sell or otherwise commercialize, cottonseed containing the Cry1Ab GENE in any germplasm and cotton cultivars owned by SYNGENTA or licensed by SYNGENTA from third parties. Use of the services of third parties described in items (1) through (4) in the preceding sentence shall be subject to an appropriate written confidentiality agreement being executed by each such third party and, in the case of the services described in items (2) and (3), receipt of D&PL's prior written consent, which will not be unreasonably withheld or delayed. SYNGENTA and its AFFILIATES shall not sell or otherwise commercialize cottonseed containing the Cry1Ab GENE EVENT except as expressly permitted in Subsection 3.5(c)(ii), and/or Subsection 4.3(k). Except [Text in Item 4 of Exhibit K] and, except pursuant to the COMMERCIAL DEVELOPMENT PLAN, during the period prior to occurrence of one or more of the events expressly described in Subsection 3.5(c)(ii), SYNGENTA shall not make and shall use commercially reasonable efforts not to permit others to make public comments concerning the performance of the Cry1Ab GENE in cotton cultivars owned by SYNGENTA or third parties. Except pursuant to the COMMERCIAL DEVELOPMENT PLAN, SYNGENTA shall not conduct and shall use commercially reasonable efforts not to permit third parties to conduct trials involving cultivars that incorporate a Cry1Ab GENE which utilize DELTAPINE Cry1Ab CULTIVARS and/or SUBLICENSEE Cry1Ab CULTIVARS for comparison or as checks or controls. SYNGENTA'S rights described in this Subsection 3.5(b) shall include the right to stack the Cry1Ab GENE with any other SYNGENTA GENE or NON-SYNGENTA GENE. Restrictions in this Subsection 3.5(b) on SYNGENTA'S rights to use and license the Cry1Ab GENE shall not apply (i) after the occurrence of one or more of the events expressly described in Subsection 3.5(c)(ii) or (ii) in any country in THE TERRITORY after the date on which SYNGENTA'S right to receive the ROYALTY for use of the Cry1Ab GENE expires in that country as provided in Subsection 6.3 or (iii) in any country as to which D&PL has notified SYNGENTA or is deemed to have notified SYNGENTA that it will that it will not commercialize LICENSED COMMERCIAL SEED with the Cry1Ab GENE in that country in accordance with Subsection 4.3(k). (c) [Text in Exhibit J] (d) Any other provision of Subsection 3.5 notwithstanding, so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED, SYNGENTA shall use commercially reasonable efforts not to sell and shall use commercially reasonable efforts (which efforts shall include, but shall not be limited to, incorporating such requirements in all licenses with permitted licensees and using reasonable efforts to enforce such requirements) not to permit any of its permitted licensees to sell (i) any LICENSED COMMERCIAL SEED unless SYNGENTA or such licensee has confirmed to its reasonable satisfaction that the subject cultivar of LICENSED COMMERCIAL SEED meets the AGRONOMIC CRITERIA as reasonably determined by SYNGENTA or such licensee based on equivalent testing required by D&PL to verify compliance with AGRONOMIC CRITERIA, (ii) any LICENSED COMMERCIAL SEED that does not meet the SEED PURITY STANDARDS and GENE EQUIVALENCY STANDARDS applicable to LICENSED COMMERCIAL SEED sold by D&PL or its sublicensees, nor (iii) any LICENSED COMMERCIAL SEED in any country in THE TERRITORY in which GOVERNMENT APPROVAL has not been obtained; provided that SYNGENTA shall have no liability to D&PL under this LICENSE AGREEMENT or any RELATED AGREEMENT unless D&PL can prove that D&PL or its sublicensees have suffered losses of sales of LICENSED COMMERCIAL SEED as a result of SYNGENTA not having used such commercially reasonable efforts to prevent the marketing of LICENSED COMMERCIAL SEED not satisfying the requirements of this Subsection 3.5(d). (e) If SYNGENTA has granted or hereinafter grants a commercial license in THE TERRITORY under the LICENSED PATENT RIGHTS and the SYNGENTA TECHNOLOGY to a third party, when such licensing is permitted under this LICENSE AGREEMENT, for use of the Cry1Ab GENE, SYNGENTA shall notify D&PL within thirty (30) days after SYNGENTA grants such license (provided that SYNGENTA shall have the right not to identify the name of the third party licensee). Upon D&PL's request made within thirty (30) days after receipt of SYNGENTA'S notice and at D&PL's expense, D&PL shall have the right to have a third party reasonably acceptable to SYNGENTA conduct a confidential review of the third party license's terms and conditions to determine whether the third party license considered as a whole, is more favorable to the licensee than the terms and conditions of this LICENSE AGREEMENT (without giving effect to payments under the LICENSE ACQUISITION AGREEMENT). For the purpose of such review, SYNGENTA will promptly deliver to such third party, upon request, on a confidential basis a copy of the third party license with all references to the licensee deleted, certified as a true and correct copy of such license by an authorized representative of SYNGENTA. In the event the third party reviewer determines that the license considered as a whole is more favorable to the licensee than the terms and conditions of this LICENSE AGREEMENT, D&PL shall have the right to review said certified copy of the third party license. Within thirty (30) days after the reviewer notifies SYNGENTA and D&PL of such determination, SYNGENTA shall have the option either (a) to modify the license to third party licensee so that its terms and conditions are no longer more favorable to the licensee than the terms of this LICENSE AGREEMENT to D&PL or (b) to offer D&PL a revised license on the same terms and conditions as to the third party licensee. The third party reviewer shall examine either the modified third party license or the license offered to D&PL, as the case may be, to confirm to D&PL SYNGENTA'S compliance with the immediately preceding sentence. D&PL shall have the right to substitute the revised license for this LICENSE AGREEMENT, by notice to SYNGENTA within sixty (60) days after D&PL receives SYNGENTA'S offer of a revised license. All of the terms and conditions of such license, including the third party's ROYALTY terms, shall be effective from and after the date of the third party license was granted; provided that D&PL's obligations under the LICENSE ACQUISITION AGREEMENT and any RELATED AGREEMENT shall not be affected and all obligations arising out of this LICENSE AGREEMENT prior to the date of the substituted license become effective shall continue and be unaffected. SYNGENTA'S obligation to so notify D&PL shall remain in effect for so long as ROYALTIES are payable to SYNGENTA in the country or countries as to which the third party license pertains under the provisions of Subsection 6.3. (f) For a period of ten (10) years from and after the EFFECTIVE DATE, in the event SYNGENTA should decide to sell to a third party all or any part of its existing cottonseed breeding program or any expansion thereof or any cottonseed breeding program acquired hereafter, SYNGENTA shall give notice to D&PL, including the terms and conditions of the proposed sale, and D&PL shall have a right of first refusal to acquire the same on the same terms and conditions offered by the third party. This right of first refusal must be exercised by D&PL delivering written notice within thirty (30) days after receipt of written notice by SYNGENTA of its intent to sell such cottonseed breeding program to a third party, which notice from D&PL shall include D&PL's exercise of the right of first refusal and its binding commitment to purchase the cottonseed breeding program on the same terms and conditions offered by the third party. If D&PL does not exercise its right of first refusal, SYNGENTA may sell the cottonseed breeding program on the terms stated in SYNGENTA'S notice to D&PL. If the cottonseed breeding program is not sold on the stated terms, D&PL shall continue to have the rights of first refusal as to any further offers of sale as provided herein. Notwithstanding the foregoing, D&PL'S right of first refusal shall not apply to a sale or transfer of all or substantially all of the equity or assets of SYNGENTA CROP PROTECTION AG, SYNGENTA AG or of SYNGENTA'S total business in a particular country or countries involving substantial assets in fields other than cotton nor shall it apply to a sale or transfer to an AFFILIATE of SYNGENTA as part of a corporate restructuring or reorganization. Notwithstanding the foregoing, D&PL's rights under this Subsection 3.5(f) shall terminate if any of the events set forth in Subsection 3.5(C)(ii) occur or if this LICENSE AGREEMENT is terminated as provided in Subsection 10.2. 3.6 COMBINED GENE COTTON SEED. (a) D&PL may incorporate in LICENSED COMMERCIAL SEED any SYNGENTA GENE that is licensed to D&PL and/or any NON-SYNGENTA GENE; [Text in Item 5 of Exhibit K]. Upon request from D&PL, SYNGENTA shall provide commercially reasonable assistance to D&PL in obtaining any government clearances or approvals (in addition to GOVERNMENT APPROVAL for the Cry1Ab GENE and/or Cry1Ab GENE EVENT) required for sale by D&PL of COMBINED GENE COTTON SEED as follows: (i) SYNGENTA shall provide such commercially reasonable assistance at SYNGENTA'S cost (without reimbursement from D&PL) with respect to government approvals, clearances and GOVERNMENT APPROVAL for COMMERCIAL SALE of COMBINED GENE COTTON SEED incorporating a NON-SYNGENTA GENE that is a HERBICIDE TOLERANCE GENE as described in Exhibit H, which COMBINED GENE COTTON SEED has been developed by or on behalf of D&PL to satisfy the requirements of Subsection 3.6(b) and (ii) as to any COMBINED GENE COTTON SEED, other than that described in subpart (i) immediately above, (A) such commercially reasonable assistance shall consist of providing D&PL with access to relevant plant materials, purified Cry1Ab proteins and all regulatory applications, regulatory data and other data and information owned or developed by SYNGENTA prior to the EFFECTIVE DATE and/or during the term of this LICENSE AGREEMENT for registration of the Cry1Ab GENE or Cry1Ab GENE EVENTS with respect to which D&PL has rights to use in cotton, and such additional assistance SYNGENTA may agree to provide pursuant to mutual agreement between SYNGENTA and D&PL, and (B) D&PL shall reimburse SYNGENTA for the reasonable costs of such assistance provided by SYNGENTA at D&PL'S express request, which costs of assistance shall be based on the then current FTE RATE plus reimbursement of out of pocket third party expenses. In accordance with Subsection 4.3(h), the budget for such assistance shall be agreed upon in advance of the assistance being provided. SYNGENTA shall not be required to provide assistance under this Subsection 3.6(a) with respect to any country after the date on which the period in which SYNGENTA'S right to receive the ROYALTY for use of the Cry1Ab GENE has commenced and has subsequently expired in that country as provided in Subsection 6.3. Notwithstanding any other provision in this LICENSE AGREEMENT, SYNGENTA shall not be obligated to obtain or to provide assistance with respect to government clearances, approvals, or GOVERNMENT APPROVAL for any COMBINED GENE COTTON SEED that requires regulatory and other data with respect to a NON-SYNGENTA GENE contained therein or with respect to the combination of the Cry1Ab GENE and/or other SYNGENTA GENE(S) and the NON-SYNGENTA GENE(S) contained therein, unless D&PL at its cost and expense, if any, provides SYNGENTA with access and rights to use such regulatory and other data for purposes of obtaining or providing assistance with respect to such government clearances, approvals or GOVERNMENT APPROVAL of the COMBINED GENE COTTON SEED. Nothing in this LICENSE AGREEMENT shall require SYNGENTA to obtain or to provide assistance with respect to government clearances, approvals, or GOVERNMENT APPROVAL for a NON-SYNGENTA GENE except as may be necessary in connection with GOVERNMENT APPROVAL of a combination of such NON-SYNGENTA GENE with a SYNGENTA GENE. (b) D&PL shall use commercially reasonable efforts to incorporate in LICENSED COMMERCIAL SEED of DELTAPINE Cry1Ab CULTIVARS a NON-SYNGENTA GENE that is a HERBICIDE TOLERANCE GENE. 3.7 CONDITIONS ON LICENSES. In partial consideration for the above LICENSES: (a) D&PL shall choose VARIETAL NAMES to designate cotton seed of DELTAPINE Cry1Ab CULTIVARS. (b) At SYNGENTA'S written request, D&PL shall conspicuously display on packages and/or containers containing LICENSED COMMERCIAL SEED, covered by the LICENSED PATENT RIGHTS and/or on invoices relating to such LICENSED COMMERCIAL SEED to be sold or transferred to third parties, the following notice, or a notice having substantially the same meaning and effect, with the blanks appropriately filled in: THESE SEEDS ARE COVERED UNDER [APPLICABLE COUNTRY] PATENT(S) ___________. NO SUBLICENSE IS CONVEYED UNDER SAID PATENTS TO USE THESE SEEDS SOLELY BY THE PURCHASE OF SUCH SEEDS. A SUBLICENSE UNDER SAID PATENTS TO USE THESE SEEDS TO PRODUCE A SINGLE COTTON CROP MUST BE OBTAINED FROM [D&PL]. (c) D&PL shall use commercially reasonable efforts not to sell and shall use commercially reasonable efforts (which efforts shall include, but shall not be limited to, incorporating such requirements in all licenses with sublicensees and using commercially reasonable efforts to enforce such requirements) not to permit its sublicensees to sell LICENSED COMMERCIAL SEED that does not meet the AGRONOMIC CRITERIA, SEED PURITY STANDARDS and GENE EQUIVALENCY STANDARDS and which does not otherwise meet the warranties set forth in Subsection 11.2(a) of this LICENSE AGREEMENT; provided that D&PL shall have no liability to SYNGENTA under this LICENSE AGREEMENT or any RELATED AGREEMENT (except as provided in Section 13) unless SYNGENTA can prove that SYNGENTA has suffered losses as a result of D&PL'S not having used such commercially reasonable efforts to prevent the marketing of LICENSED COMMERCIAL SEED not satisfying the requirements of Subsection 3.7(c). D&PL shall require in any sublicense granted pursuant to Section 3.4 that the ~ublicense shall not sell LICENSED COMMERCIAL SEED of DELTAPINE Cry1Ab CULTIVARS or SUBLICENSEE Cry1Ab CULTIVARS that does not meet the AGRONOMIC CRITERIA, SEED PURITY STANDARDS, and GENE EQUIVALENCY STANDARDS and which does not meet the warranties set forth in Subsection 11.2(a) of this LICENSE AGREEMENT. (d) D&PL shall not modify, use, isolate, analyze, sequence or characterize any DNA sequence contained in a Cry1Ab GENE that is physically isolated from a seed, plant or cell culture that has been transferred by SYNGENTA to D&PL, or progeny of such seed, plant or cell culture, for any purpose without the prior written consent of SYNGENTA; provided, however, that (i) D&PL may identify and utilize DNA sequences in furtherance of its activities under this LICENSE AGREEMENT and (ii) the prohibitions of this Subsection 3.7(d) shall not apply to modification or use of such DNA sequences that has become part of the public domain in the subject country through no fault of D&PL or which D&PL has received from a third party having no obligation of confidentiality to SYNGENTA. As used in this Subsection 3.7(d), material shall be deemed to have become part of the public domain if a member of the public in the subject country can lawfully sell or transfer the material without infringing a valid claim of a LICENSED PATENT. (e) D&PL and SYNGENTA, acting through the LICENSE MANAGEMENT COMMITTEE in accordance with Subsection 4.4(c), will approve the terms and conditions of any form of sublicense agreement to be executed by LICENSED GROWERS or the wording of container labels or sales documents used in lieu of execution of a grower license agreement, which may include provisions required to maintain the GOVERNMENT APPROVALS (such as the requirement for insect resistance management and stewardship), and restrictions on the licensee to grow only a single commercial crop from the LICENSED COMMERCIAL SEED purchased. D&PL will be responsible for enforcing the terms and conditions of this sublicense agreement. D&PL shall use commercially reasonable efforts to collect all TECHNOLOGY FEES due with respect to LICENSED COMMERCIAL SEED sold by D&PL. D&PL shall require in sublicenses with permitted sublicensees that such sublicensees use commercially reasonable efforts to collect all TECHNOLOGY FEES due with respect to LICENSED COMMERCIAL SEED sold by such sublicensees. SYNGENTA shall use commercially reasonable efforts to collect, and shall require that any permitted licensees (including but not limited to any third parties listed in Item 6 of Exhibit K) to use commercially reasonable efforts to collect, all TECHNOLOGY FEES due with respect to sales of LICENSED COMMERCIAL SEED on which D&PL is entitled to receive a portion of the TECHNOLOGY FEE. 3.8 GENE TRADEMARK: (a) D&PL shall conspicuously display the Cry1Ab GENE TRADEMARK and accompanying logo on all packages of LICENSED COMMERCIAL SEED in accordance with the Cry1Ab GENE TRADEMARK LICENSE AGREEMENT. SYNGENTA shall utilize, and require any other permitted licensees to utilize, the same Cry1Ab GENE TRADEMARK in the same manner prescribed in the Cry1Ab GENE TRADEMARK LICENSE AGREEMENT on all packages of LICENSED COMMERCIAL SEED. (b) It is agreed that the Cry1Ab GENE TRADEMARK shall be licensed to D&PL on a non-exclusive royalty-free basis pursuant to the Cry1Ab GENE TRADEMARK LICENSE AGREEMENT. The parties shall execute said Cry1Ab GENE TRADEMARK LICENSE AGREEMENT following identification of the final graphic form of the Cry1Ab GENE TRADEMARK by SYNGENTA. (c) The Cry1Ab GENE TRADEMARK shall be utilized in the manner specified in the Cry1Ab GENE TRADEMARK LICENSE AGREEMENT. SYNGENTA shall inform D&PL of the final graphic form of the Cry1Ab GENE TRADEMARK to be used on LICENSED COMMERCIAL SEED as soon as practicable, and in no event later than June 15 prior to the marketing year in which the Cry1Ab GENE TRADEMARK is to be used. 3.9 THIRD PARTY VIOLATIONS OR INVALIDITY OF RESTRICTIONS ON SUBLICENSE. The use of LICENSED COMMERCIAL SEED or its progeny by LICENSED GROWERS for purposes other than, or in addition to, production of a single commercial commodity crop, unless expressly authorized by D&PL, shall not be considered a breach of this LICENSE AGREEMENT by D&PL. The LICENSE granted to D&PL shall not be revoked, diminished, or otherwise affected in the event that the limitations and restrictions of the license or sublicense to purchasers are found to be unenforceable as a matter of law, in whole or in part, by any court or government agency. SECTION 4 -- COMMERCIAL DEVELOPMENT ACTIVITIES OF THE PARTIES 4.1 COMMERCIAL DEVELOPMENT PLAN. SYNGENTA and D&PL shall cooperate in the commercial development activities outlined in the COMMERCIAL DEVELOPMENT PLAN. The COMMERCIAL DEVELOPMENT PLAN will be adopted, and may be revised and amended as necessary, by SYNGENTA and D&PL, acting through the LICENSE MANAGEMENT COMMITTEE, in accordance with the procedures for decision making set forth in Subsection 4.5 of this LICENSE AGREEMENT. The COMMERCIAL DEVELOPMENT PLAN shall include: (a) Activities to obtain and maintain GOVERNMENT APPROVALS for commercialization of LICENSED COMMERCIAL SEED including activities to be undertaken by SYNGENTA at its expense (subject to reimbursement by D&PL to the extent provided in this LICENSE AGREEMENT) and the field evaluation and development of GENE EVENTS and field testing of LICENSED COMMERCIAL SEED to be undertaken by D&PL at its expense; and (b) Activities undertaken to provide LICENSED COMMERCIAL SEED for COMMERCIAL SALE by D&PL and its permitted sublicensees. The COMMERCIAL DEVELOPMENT PLAN shall also include specific activities and standards, targeted timelines and the responsibility of each PARTY with respect to each such activity. 4.2 CONSULTATION. SYNGENTA and D&PL shall consult regularly throughout the term of this LICENSE AGREEMENT relative to activities affecting the development and maintenance of sales of LICENSED COMMERCIAL SEED by D&PL and its sublicensees, including but not limited to, SYNGENTA'S creation and release of Cry1Ab GENE EVENTS for COMMERCIAL DEVELOPMENT, D&PL'S plans for and progress in production and field testing of such LICENSED COMMERCIAL SEED, intellectual property protection including activities to obtain and maintain intellectual property rights covering Cry1Ab GENES, Cry1Ab GENE EVENTS and related SYNGENTA TECHNOLOGY, freedom to operate, regulatory approvals and other matters of mutual interest to the PARTIES. The LICENSE MANAGEMENT COMMITTEE shall periodically meet as described in Section 4.5 to discuss such activities and progress hereunder. Subject to any obligations of confidentiality to third parties and subject to neither PARTY'S being required to waive attorney client privilege, SYNGENTA and D&PL shall provide each other with all data, reports, documents and information reasonably required for the LICENSE MANAGEMENT COMMITTEE to perform its responsibilities. 4.3 GENE PROTECTION AND REGULATORY ACTIVITIES. As owner and licensor of the LICENSED PATENT RIGHTS and the SYNGENTA TECHNOLOGY and in consideration for its share of the NET TECHNOLOGY FEE REVENUE, SYNGENTA shall be responsible for activities to support such licensing, including but not limited to the following: (a) Subject to Section 12, SYNGENTA shall use commercially reasonable efforts, necessary in its judgment, to obtain and maintain protection of Cry1Ab GENE, Cry1Ab GENE EVENTS and related SYNGENTA TECHNOLOGY and the Cry1Ab GENE TRADEMARK against unauthorized third party use in the United States of America and in each other country in THE TERRITORY designated by notice from D&PL to SYNGENTA as countries where D&PL and its sublicensees intend to commercialize LICENSED COMMERCIAL SEED, including payment of all expenses to prepare, file, prosecute, maintain and defend product and/or process patents and trademark registrations that cover the Cry1Ab GENE, Cry1Ab GENE EVENTS, and related SYNGENTA TECHNOLOGY and the Cry1Ab GENE TRADEMARK in each such country and to prosecute legal actions against infringement of such patent or trademark rights. SYNGENTA shall perform such activities at its sole expense, provided that SYNGENTA shall be entitled to reimbursement of its reasonable and necessary cost of patent and trademark infringement actions from recoveries from infringing third parties. Notwithstanding the above, any decision to prosecute infringement actions and the extent of such actions shall be at the sole discretion of SYNGENTA. (b) SYNGENTA shall support the development and commercialization of each Cry1Ab GENE EVENT approved for COMMERCIAL DEVELOPMENT by developing gene and event specific PCR primers and protocols for detection of the Cry1Ab GENE and each Cry1Ab GENE EVENT that is released for field testing, developing event specific PCR primers and protocols for detection and zygosity determination of each Cry1Ab GENE EVENT released to D&PL, developing ELISA strip and plate antibodies and protocols for detection of transgenic proteins produced by each Cry1Ab GENE released to D&PL and providing technical training and support for the proper utilization of the above tests by D&PL as D&PL may reasonably request. (c) SYNGENTA shall use commercially reasonable efforts to perform the regulatory and registration activities to obtain and maintain GOVERNMENT APPROVAL of the Cry1Ab GENE and the particular Cry1Ab GENE EVENT(S) designated for COMMERCIAL DEVELOPMENT in accordance with Section 4.4(b) hereof in the United States of America. SYNGENTA shall bear the expense of such activities for GOVERNMENT APPROVAL in the United States of America for the period from the EFFECTIVE DATE and ending six and one half (6.5) years from the EFFECTIVE DATE, and thereafter so long as an event set forth in Subsection 3.5(c)(ii) has not occurred, SYNGENTA shall bear such expense for such GOVERNMENT APPROVAL in the United States of America subject to reimbursement by D&PL for one hundred percent (100%) of such expenses. [Text in Item 7 of Exhibit K]. Subject to SYNGENTA'S providing D&PL with necessary information to determine the amount due for the subject twelve (12) month period, D&PL shall pay its portion of such expenses to SYNGENTA each year on the later of September 30 or thirty (30) days after D&PL receives the necessary information from SYNGENTA to determine the amount due. (d) Subject to Subsection 4.3(g), for countries outside the United States of America designated by D&PL in a written notice to SYNGENTA as being those countries in which D&PL and its sublicensees intend to commercialize the LICENSED COMMERCIAL SEED, SYNGENTA shall use commercially reasonable efforts to perform the regulatory and registration activities to obtain and maintain GOVERNMENT APPROVAL of the Cry1Ab GENE and the Cry1Ab GENE EVENT(S), designated for COMMERCIAL DEVELOPMENT. The expenses shall be borne by SYNGENTA subject to reimbursement by D&PL for one hundred percent (100%) of such expenses, subject to Subsection 4.3(g), provided that if an event set forth in Section 3.5(c)(ii) occurs, such expenses in each country outside the United States of America in each twelve (12) month period ending on August 31 shall be shared by D&PL and SYNGENTA on the basis of the formula set forth in Subsection 4.3(c) based on TECHNOLOGY FEES from sales of LICENSED COMMERCIAL SEED in the subject country during the subject twelve (12) month period. Upon thirty (30) days notice, D&PL may revoke a notice given to SYNGENTA under this Subsection 4.3(d) in which D&PL had asked SYNGENTA to obtain and maintain GOVERNMENT APPROVAL of the Cry1Ab GENE and Cry1Ab GENE EVENTS in a particular country provided that D&PL shall reimburse SYNGENTA for one-hundred (100%) percent of the reasonable costs of obtaining GOVERNMENT APPROVAL that have been incurred by or on behalf of SYNGENTA or cannot reasonably be avoided as of the date of receipt of such notice. (e) Subject to the other provisions in Sections 3 and 4, SYNGENTA'S activities under Subsections 4.3(c) and 4.3(d) will also include using commercially reasonable efforts to (i) obtain import, movement and release approvals and permits as may be necessary to permit D&PL or its sublicensees or D&PL'S contract growers to conduct development and increase activities prior to and after GOVERNMENT APPROVAL in the subject country and (ii) compliance with any post-registration and approval requirements imposed as a condition of GOVERNMENT APPROVAL in the subject country as to which SYNGENTA has the responsibility to maintain such registrations or approvals. SYNGENTA shall use commercially reasonable efforts to obtain such GOVERNMENT APPROVALS and/or such import, movement and release approvals and permits at the earliest practical date, provided, however, SYNGENTA makes no representations or warranties to D&PL that SYNGENTA will be able to obtain and/or maintain any such GOVERNMENT APPROVAL or such import, movement and release approvals and permits or that SYNGENTA will be able to obtain such GOVERNMENT APPROVAL or such import, movement and release approvals and permits by the targeted dates which may be set forth in the COMMERCIAL DEVELOPMENT PLAN or otherwise estimated. Subject to the other provisions in Sections 3 and 4, SYNGENTA shall also provide commercially reasonable assistance to D&PL with respect to import, movement and release approvals, clearances, and permits necessary for D&PL to conduct counterseason nurseries, trials and seed increases for DELTAPINE Cry1Ab CULTIVARS in Costa Rica and other countries reasonably designated by D&PL for counterseason nurseries, trials and seed increases whether or not SYNGENTA is seeking GOVERNMENT APPROVAL in such countries. (f) In consideration of SYNGENTA obtaining in any country outside the United States of America designated by D&PL for SYNGENTA to seek GOVERNMENT APPROVAL for the Cry1Ab GENE and Cry1Ab GENE EVENTS, D&PL shall pay to SYNGENTA a milestone payment of ****** per country payable not later than ninety (90) days after SYNGENTA obtains such GOVERNMENT APPROVAL, gives notice thereof to D&PL and delivers to D&PL documents, reasonably satisfactory to D&PL, evidencing that such GOVERNMENT APPROVAL has been obtained, provided, however, it is understood by the PARTIES that SYNGENTA may be requested by D&PL to obtain registration of other traits in the same country pursuant to the RELATED AGREEMENTS and that D&PL shall be obligated to pay SYNGENTA only one such milestone payment per country, regardless of the number of GENES or GENE events for which SYNGENTA obtains GOVERNMENT APPROVAL in such country under this LICENSE AGREEMENT and/or any of the RELATED AGREEMENT(S). If D&PL has notified SYNGENTA that SYNGENTA should seek to obtain the GOVERNMENT APPROVAL for the Cry1Ab GENE and Cry1Ab GENE EVENTS in a particular country outside the United States of America, and D&PL later revokes such notice after SYNGENTA has commenced performance and has made regulatory filings in that country, in the event that D&PL obtains GOVERNMENT APPROVAL in that country within eighteen (18) months after the date on which D&PL gave such notice to SYNGENTA, D&PL shall pay to SYNGENTA the milestone payment of ****** for each such country, payable not later than ninety (90) days after such GOVERNMENT APPROVAL has been obtained by or on behalf of D&PL. It is understood by the PARTIES that D&PL shall be obligated to pay SYNGENTA only one such milestone payment per country, regardless of the number of GENES or GENE events as to which GOVERNMENT APPROVALS in such country are obtained under this LICENSE AGREEMENT and/or any of the RELATED AGREEMENT(S). (g) D&PL may, at its expense, perform the regulatory and registration activities required to obtain and maintain GOVERNMENT APPROVAL of the Cry1Ab GENE and Cry1Ab GENE EVENTS in any country outside the United States of America, in which D&PL has not designated by notice to SYNGENTA for SYNGENTA to seek GOVERNMENT APPROVAL (or with respect to which D&PL has revoked a notice previously given under Subsection 4.3(d)), in which event Subsection 4.3(f) shall not apply with respect to the Cry1Ab GENE or Cry1Ab GENE EVENT(S) as to which D&PL obtains and maintains such GOVERNMENT APPROVAL except as expressly set forth therein in the case where D&PL has revoked a notice previously given to SYNGENTA to obtain such GOVERNMENT APPROVAL. In such countries, SYNGENTA shall provide reasonable assistance to D&PL with respect to import, movement and release approvals and clearances at D&PL's expense. Subject to Subsections 5.3 and 5.4, D&PL shall have a right to obtain from SYNGENTA and use for the purpose of obtaining and maintaining GOVERNMENT APPROVALS, as provided for in this LICENSE AGREEMENT, any relevant plant materials, purified Cry1Ab proteins and all regulatory applications, regulatory data and other data and information, owned or developed by SYNGENTA prior to the EFFECTIVE DATE or during the term of this LICENSE AGREEMENT for registration of the Cry1Ab GENE or Cry1Ab GENE EVENTS with respect to which D&PL has rights in cotton. D&PL at its expense shall obtain and maintain all permits, registrations, clearances or other government or regulatory approvals required under all applicable laws relating to seed varieties required for the testing, development, production and sale of LICENSED COMMERCIAL SEED of DELTAPINE Cry1Ab CULTIVARS and/or SUBLICENSEE Cry1Ab CULTIVARS. (h) D&PL's obligations to reimburse SYNGENTA for expenses of obtaining and maintaining GOVERNMENT APPROVALS outside the United States of America as provided in this Section 4.3 shall be limited to application and maintenance fees and similar administrative, regulatory or statutory fees or taxes payable to government regulatory agencies, incremental regulatory expenses incurred by or on behalf of SYNGENTA, and expenses for post-registration maintenance activities included but not limited to stewardship and insect resistance management activities (including personnel costs at the then current FTE RATE, and third party out of pocket expenses) specifically related to obtaining and maintaining such GOVERNMENT APPROVALS in such countries but shall not include reimbursement by D&PL of any of SYNGENTA'S general administrative or overhead expenses or of any expenses of activities required in any event for SYNGENTA to obtain and maintain, at its sole expense during such period, GOVERNMENT APPROVALS in the United States of America. There shall be no duplication of reimbursement of costs and expenses under this LICENSE AGREEMENT and under the RELATED AGREEMENT(S). D&PL and SYNGENTA must agree in advance on a budget for any activities and expenses for which SYNGENTA may request reimbursement from D&PL under this LICENSE AGREEMENT, including, but not limited to, activities (i) to obtain or maintain GOVERNMENT APPROVALS in countries outside the United States of America, (ii) to obtain or maintain GOVERNMENT APPROVALS in the United States of America after six and one half (6.5) years from the EFFECTIVE DATE, (iii) to assist D&PL with obtaining and maintaining GOVERNMENT APPROVALS, and (iv) to assist D&PL with obtaining GOVERNMENT APPROVALS for COMBINED GENE COTTON SEED where SYNGENTA is entitled to request reimbursement under Subsection 3.6(a). If after good faith negotiations SYNGENTA and D&PL do not, within one hundred twenty (120) days, agree upon a commercially reasonable budget for any specific activities requested by D&PL to be performed by SYNGENTA under Section 4.3(h), Subparts (i) through (iv), SYNGENTA shall not, on that occasion, be required to perform such specific activities requested by D&PL. SYNGENTA shall invoice D&PL quarterly, not later than thirty (30) days after the end of each calendar quarter, for all personnel costs or out-of-pocket expenses for which SYNGENTA is entitled to reimbursement under this LICENSE AGREEMENT during the preceding quarter. The invoice shall itemize the services and expenses for which reimbursement is sought. Payment of amounts due under such invoices shall be due thirty (30) days after receipt by D&PL. For a period of seven (7) years, SYNGENTA shall keep records supporting the amounts invoiced to D&PL and shall permit its books and records to be examined on a confidential basis from time to time by a national auditing firm, reasonably acceptable to SYNGENTA, appointed by and at the expense of D&PL, to the extent necessary to verify amounts invoiced. (i) Neither D&PL nor SYNGENTA (if otherwise permitted to do so under this LICENSE AGREEMENT) shall commence COMMERCIAL SALE (nor authorize any other party to commence COMMERCIAL SALE) in any particular country in THE TERRITORY of LICENSED COMMERCIAL SEED containing a particular Cry1Ab GENE EVENT with respect to which D&PL has rights in cotton, prior to the later of (i) the DATE OF GOVERNMENT APPROVAL or (ii) DATE OF APPROVAL FOR COMMERCIAL SALE of that Cry1Ab GENE EVENT in the subject country, provided that (ii) shall not apply if D&PL has notified or is deemed to have notified SYNGENTA that it or its sublicensees will not commercialize LICENSED COMMERCIAL SEED containing the Cry1Ab GENE as provided in Subsection 4.3(k). (j) All government approvals and any import, movement and release approvals and permits for the Cry1Ab GENE and Cry1Ab GENE EVENTS obtained by SYNGENTA shall be owned and held in the name of SYNGENTA or its AFFILIATES unless otherwise required by applicable law in the subject country, provided that D&PL shall have the right to use the same with respect to import, export, production, use and sale of LICENSED COMMERCIAL SEED under this LICENSE AGREEMENT. All government approvals and any import, movement, and release approvals and permits for the Cry1Ab GENE and the Cry1Ab GENE EVENTS obtained by D&PL pursuant to Subsection 4.3(g) shall be owned and held in the name of D&PL or its AFFILIATES unless otherwise required by the applicable law of the subject country, provided that SYNGENTA and its licensees shall have the right to use the same with respect to import, export, production, use and sale of cottonseed containing the Cry1Ab GENE when SYNGENTA and/or its licensees are permitted to engage in such activities under Subsection 3.5 of this LICENSE AGREEMENT. D&PL shall not assign or transfer and shall not permit a third party who may hold the governmental approvals in its name (if so required by applicable law) to assign or transfer such government approvals, except that D&PL may assign such government approvals under the same circumstances under which D&PL may assign this LICENSE AGREEMENT and its rights and obligations under Section 14.1(a). Upon termination of the LICENSE AGREEMENT, at SYNGENTA'S request and subject to SYNGENTA'S payment to D&PL of ****** , D&PL shall assign and transfer and shall cause any third party as applicable to assign or transfer to SYNGENTA, to the extent permitted under applicable law, all government approvals for the Cry1Ab GENE and the Cry1Ab GENE EVENTS obtained by D&PL pursuant to Subsection 4.3(g) and shall return all data and other information provided by SYNGENTA to D&PL under Subsection 4.3(g) (k) In the event that D&PL gives notice to SYNGENTA that D&PL or its sublicensees will not commercialize LICENSED COMMERCIAL SEED containing the Cry1Ab GENE in a particular country outside the United States of America, SYNGENTA shall have the right to commercialize the Cry1Ab GENE in that country in any cotton cultivars selected by SYNGENTA (other than in DELTAPINE Cry1Ab CULTIVARS or in SUBLICENSEE Cry1Ab CULTIVARS, unless such cultivars are licensed by D&PL to SYNGENTA for such purpose), including the right to test, develop, produce, have produced, multiply and sell cotton seed containing the Cry1Ab GENE, alone or in combination with other GENE(S), and to grant licenses under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY to any third party to develop, produce, have produced, multiply, and sell cottonseed containing the Cry1Ab GENE in their germplasm. If SYNGENTA elects to exercise this right, it shall promptly notify D&PL, in which event SYNGENTA may assume responsibility, at its expense, for regulatory and commercialization activities for that Cry1Ab GENE and Cry1Ab GENE EVENT in such country. After recovery by SYNGENTA of its regulatory and other expenses necessary for GOVERNMENT APPROVAL and introduction of the Cry1Ab GENE and Cry1Ab GENE EVENT into such country, and after deduction of any TECHNOLOGY FEES or other amounts due to or retained by SYNGENTA'S third party seed company licensees D&PL shall receive seventy percent (70%) of the net NET TECHNOLOGY FEE REVENUE and SYNGENTA shall receive thirty percent (30%) of the net NET TECHNOLOGY FEE REVENUE in that country; provided that if an event under Subsection 3.5(c)(ii) shall have occurred, then the sharing and allocation of NET TECHNOLOGY FEE REVENUE shall be governed by the provisions of Subsection 3.5(c)(ii). D&PL agrees that not later than two (2) years after GOVERNMENT APPROVAL of the Cry1Ab GENE has been obtained in the United States of America, D&PL shall with respect to each of the following countries: Australia, Brazil, India and the People's Republic of China, either (i) request that SYNGENTA obtain GOVERNMENT APPROVAL or (ii) notify SYNGENTA that D&PL will obtain GOVERNMENT APPROVAL and then proceed with commercially reasonable efforts to obtain GOVERNMENT APPROVAL. If D&PL does not take one of the actions set forth in the preceding sentence with respect to any one or more of such named countries, then with respect to that country(ies), D&PL shall be deemed to have notified SYNGENTA that it will not commercialize LICENSED COMMERCIAL SEED with the Cry1Ab GENE in that country and the provisions of this Subsection 4.3(k) shall apply to such country. 4.4 SEED DEVELOPMENT AND COMMERCIALIZATION RESPONSIBILITIES. SYNGENTA shall deliver to D&PL (in viable cotton seed) each Cry1Ab GENE EVENT developed by SYNGENTA before or during the term of this LICENSE AGREEMENT that SYNGENTA determines is a potential candidate for COMMERCIAL DEVELOPMENT. SYNGENTA'S obligation under the preceding sentence shall terminate upon occurrence of an event described in Subsection 3.5(c)(ii), Subparts (A), (B) and/or (C), and/or upon the occurrence of an event described in Subsection 3.5(c)(ii), Subpart (E), if D&PL gives SYNGENTA the notice described in the third sentence of Subsection 10.2(d), and/or upon termination of this LICENSE AGREEMENT pursuant to Subsection 14.2(b)(ii)(B). D&PL shall be responsible for the commercialization of LICENSED COMMERCIAL SEED of DELTAPINE Cry1Ab CULTIVARS and SUBLICENSEE Cry1Ab CULTIVARS. In furtherance of the development and commercialization of such LICENSED COMMERCIAL SEED by D&PL and its permitted sublicensees: (a) D&PL shall determine, in its judgment reasonably exercised in good faith, the following provisions of the COMMERCIAL DEVELOPMENT PLAN pertaining to development and commercialization of Cry1Ab GENE EVENTS and LICENSED COMMERCIAL SEED: (i) The criteria for COMMERCIAL INSECT RESISTANCE for Cry1Ab GENE EVENTS; (ii) Criteria for selection of Cry1Ab GENE EVENTS for COMMERCIAL DEVELOPMENT; (iii) GENE EQUIVALENCY STANDARDS; (iv) Modifications, if necessary, to the procedure for determining satisfaction of AGRONOMIC CRITERIA (set forth in Exhibit D); and (v) Modifications, if necessary, to SEED PURITY STANDARDS (set forth in Exhibit E). D&PL shall give notice to the LICENSE MANAGEMENT COMMITTEE of its determination of foregoing provisions of the COMMERCIAL DEVELOPMENT PLAN, together with a written statement of the basis for D&PL'S determination and, where appropriate, supporting documents. Upon request from SYNGENTA, and subject to any obligations of confidentiality to which D&PL is subject in agreements with third parties that are in effect on the EFFECTIVE DATE and provided that D&PL shall not be required to waive attorney client privilege, representatives of D&PL shall discuss D&PL's determinations under Section 4.4(a) with the members of the LICENSE MANAGEMENT COMMITTEE. (b) D&PL shall determine, in its judgment reasonably exercised in good faith, and consistent with the COMMERCIAL DEVELOPMENT PLAN: (i) Whether particular Cry1Ab GENE EVENTS have exhibited the criteria for COMMERCIAL INSECT RESISTANCE; (ii) Which particular Cry1Ab GENE EVENTS shall be subject to COMMERCIAL DEVELOPMENT; (iii) Whether particular DELTAPINE Cry1Ab CULTIVARS and SUBLICENSEE Cry1Ab CULTIVARS meet the AGRONOMIC CRITERIA, GENE EQUIVALENCY STANDARDS and SEED PURITY STANDARDS; and (iv) Which particular DELTAPINE Cry1Ab CULTIVARS and SUBLICENSEE Cry1Ab CULTIVARS that meet the foregoing standards shall be commercialized in particular countries. D&PL shall give notice to the LICENSE MANAGEMENT COMMITTEE of its determinations with respect to the foregoing, together with a written statement of the basis for D&PL'S determination and, where appropriate, supporting documents. Upon request from SYNGENTA, and subject to obligations of confidentiality to which D&PL is subject in agreements with third parties that are in effect on the EFFECTIVE DATE and provided that D&PL shall not be required to waive attorney client privilege, representatives of D&PL shall discuss D&PL's determinations under Section 4.4(b) with the members of the LICENSE MANAGEMENT COMMITTEE. (c) D&PL shall make recommendations to the LICENSE MANAGEMENT COMMITTEE on the following matters: (i) The mode of collection of TECHNOLOGY FEES with respect to sales of LICENSED COMMERCIAL SEED in any particular country or geographical region, as provided for in Subsection 6.1(a); (ii) The terms and conditions of any form of sublicense agreements to be executed by LICENSED GROWERS or the wording of container labels or sales documents used in lieu of or in addition to the execution of grower license agreements, as provided for in Subsection 3.1 and Subsection 3.7(e); (iii) The strategy, format, and content of promotion and incentive programs relating to the use of Cry1Ab GENES to LICENSED COMMERCIAL SEED, including items which may be deducted from TECHNOLOGY FEES in determining NET TECHNOLOGY FEE REVENUE, as provided in Subsection 2.1.54; (iv) The dates by which D&PL shall make recommendations concerning appropriate TECHNOLOGY FEES in each PRICING REGION as provided for in Subsection 6.1(d)(i); (v) The content, scope, limitation and/or necessary conditions of performance warranties which may be made by the PARTIES concerning the Cry1Ab GENE and/or LICENSED COMMERCIAL SEED as provided in Section 13. D&PL shall give SYNGENTA not less than six (6) months advance notice of the date(s) by which D&PL will next make a recommendation on matters described in Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii). The LICENSE MANAGEMENT COMMITTEE shall make a determination on each of the matters described in Subsection 4.4(c) in accordance with the provisions in Subsection 4.5(d). 4.5 LICENSE MANAGEMENT COMMITTEE. (a) Formation of LICENSE MANAGEMENT COMMITTEE. SYNGENTA and D&PL hereby agree to form the LICENSE MANAGEMENT COMMITTEE, to be comprised of four (4) members, with two (2) members to be appointed by each of SYNGENTA and D&PL. The LICENSE MANAGEMENT COMMITTEE will be chaired on a rotating annual basis by a SYNGENTA member or a D&PL member designated by SYNGENTA or D&PL as the case may be. The LICENSE MANAGEMENT COMMITTEE shall be responsible for adopting, revising and amending (as necessary) and overseeing the COMMERCIAL DEVELOPMENT PLAN for the Cry1Ab GENE and other matters expressly delegated to the LICENSE MANAGEMENT COMMITTEE under this LICENSE AGREEMENT. (b) Meetings. The LICENSE MANAGEMENT COMMITTEE shall meet at least quarterly, alternating between the United States corporate offices of SYNGENTA and D&PL or at such other sites as the LICENSE MANAGEMENT COMMITTEE may agree upon. The first such meeting shall be held at the United States corporate offices of SYNGENTA within thirty (30) days after the EFFECTIVE DATE. Participation in any meeting of the LICENSE MANAGEMENT COMMITTEE may be in person, by telephone, by video conference or by other means of telecommunication that enables all members of the LICENSE MANAGEMENT COMMITTEE participating in the meeting to communicate simultaneously with each other. If personal participation in a meeting by a member of the LICENSE MANAGEMENT COMMITTEE is not practical, that member may, by written notice to each of the other members of the LICENSE MANAGEMENT COMMITTEE, designate a proxy with voting authority. In addition, the LICENSE MANAGEMENT COMMITTEE may act without a formal meeting by a written consent signed, in original or counterparts, by all the members of the LICENSE MANAGEMENT COMMITTEE. Subject to the obligations set forth in Article 8, representatives of either PARTY, in addition to the members of the LICENSE MANAGEMENT COMMITTEE, may attend LICENSE MANAGEMENT COMMITTEE meetings as nonvoting observers at the invitation of either PARTY. (c) Minutes. LICENSE MANAGEMENT COMMITTEE shall keep accurate minutes of its meetings and record all decisions and all actions recommended or taken. Draft minutes shall be delivered to the members of the LICENSE MANAGEMENT COMMITTEE within twenty (20) days after each meeting. The members of the LICENSE MANAGEMENT COMMITTEE shall elect or appoint a secretary for each meeting and such secretary shall be responsible for the preparation and circulation of the draft minutes. Draft minutes shall be edited by the members of the LICENSE MANAGEMENT COMMITTEE and shall be issued in final form only with their approval and agreement as evidenced by their signatures on the minutes. Minutes of LICENSE MANAGEMENT COMMITTEE meetings shall be Confidential Information. (d) Decision Making. (i) At each LICENSE MANAGEMENT COMMITTEE meeting, at least one (1) member appointed by each of SYNGENTA and D&PL shall constitute a quorum. Decisions shall be made by unanimous vote, with all the members representing SYNGENTA collectively having one vote and the members representing D&PL collectively having one vote. (ii) As to each matter coming before the LICENSE MANAGEMENT COMMITTEE one PARTY (the "RESPONSIBLE PARTY") shall be responsible for making a recommendation for action or decision. The designation of the RESPONSIBLE PARTY is based on its primary areas of responsibility under this LICENSE AGREEMENT, provided that: (A) SYNGENTA shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE relating to activities and decisions with respect to further development of the Cry1Ab GENE and Cry1Ab GENE EVENTS and technical support for development and commercialization activities, as described in Subsection 4.3(b). (B) SYNGENTA shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE with respect to activities and decisions relating to obtaining and maintaining GOVERNMENT APPROVAL of Cry1Ab GENE EVENTS designated by D&PL in the United States of America and other countries designated by D&PL as countries in which SYNGENTA is to seek government approval and D&PL shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE with respect to activities and decisions relating to obtaining and maintaining GOVERNMENT APPROVAL in other countries. (C) D&PL shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE relating to commercialization of LICENSED COMMERCIAL SEED on matters described in Subsections 4.4(c)(i) to (v). (D) D&PL shall be the RESPONSIBLE PARTY having primary responsibility for making recommendations to the LICENSE MANAGEMENT COMMITTEE for activities relating to product performance including the content of product performance claims and advertising and the handling of product performance claims under Section 13. (iii) In any case where a PARTY is required or permitted under this LICENSE AGREEMENT to make a recommendation to the LICENSE MANAGEMENT COMMITTEE, that PARTY will provide with its recommendation to the LICENSE MANAGEMENT COMMITTEE documentation supporting such recommendation reasonably sufficient for the other PARTY and the LICENSE MANAGEMENT COMMITTEE to be able to assess and understand the basis for the recommendation. In the event SYNGENTA disagrees with any recommendation made by D&PL as the RESPONSIBLE PARTY under Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii), SYNGENTA shall within ten (10) business days after receipt of D&PL'S recommendation give written notice to D&PL and the LICENSE MANAGEMENT COMMITTEE of its disagreement with D&PL's recommendation, and any alternative recommendation, and documentation supporting such disagreement with D&PL'S recommendation and SYNGENTA'S alternative recommendation reasonably sufficient for D&PL and the LICENSE MANAGEMENT COMMITTEE to be able to assess and understand the basis for SYNGENTA'S disagreement and its alternative recommendation. The PARTY making any recommendation or response and counter-recommendation under this Subsection 4.4(d)(iii) shall not be required to provide information to the extent that to do so would breach such PARTY'S written contractual obligations to any third party or waive attorney client privilege. (iv) The LICENSE MANAGEMENT COMMITTEE shall not unreasonably withhold or delay approval of a recommendation from the RESPONSIBLE PARTY on matters within its areas of primary responsibility. Whether a decision of the LICENSE MANAGEMENT COMMITTEE on a recommendation from a RESPONSIBLE PARTY is consistent with the preceding sentence shall be subject to the dispute resolution provisions of Subsection 4.5(d)(v) and, as appropriate, to arbitration under Subsection 14.12 except as to any recommendation and alternative recommendation made with respect to Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii), as to which the procedures set forth in Subsection 4.5(d)(vi) shall apply with respect to arbitration before the SPECIAL TECHNOLOGY FEE PANEL selected, empanelled and reimbursed as provided in Subsection 6.1(d)(iv). (v) If the LICENSE MANAGEMENT COMMITTEE is unable to reach unanimous agreement on any matter (a "DEADLOCK MATTER"), upon written notice by any one or more members of the LICENSE MANAGEMENT COMMITTEE, the DEADLOCK MATTER shall be referred for resolution to an Executive Management Committee consisting of a member of senior management of SYNGENTA as designated by SYNGENTA and a member of the senior management of D&PL as designated by D&PL (the "EXECUTIVE MANAGEMENT COMMITTEE"). The LICENSE MANAGEMENT COMMITTEE shall endeavor to adopt a resolution referring the DEADLOCK MATTER setting forth the specifics of the issues to be resolved, which resolution, together with information and documentation relevant to the DEADLOCK MATTER, shall be forwarded to the members of the EXECUTIVE MANAGEMENT COMMITTEE; provided, however, that failure of the LICENSE MANAGEMENT COMMITTEE to agree upon the form of such resolution or assembling of documentation shall not delay the referral of the DEADLOCK MATTER to the EXECUTIVE MANAGEMENT COMMITTEE. Upon receipt of notice of a DEADLOCK MATTER, the EXECUTIVE MANAGEMENT COMMITTEE shall meet promptly in person, or by telephone, video conference or other means of telecommunication and endeavor to reach agreement. Decisions of the EXECUTIVE MANAGEMENT COMMITTEE shall be by unanimous vote and shall be binding on the PARTIES and the members of the LICENSE MANAGEMENT COMMITTEE. If the EXECUTIVE MANAGEMENT COMMITTEE is unable to unanimously resolve the DEADLOCK MATTER within thirty (30) days from the date of the deadlock necessitating referral to the EXECUTIVE MANAGEMENT COMMITTEE, such dispute may be submitted by either PARTY to arbitration pursuant to Subsection 14.12, provided that in the event the DEADLOCK MATTER is a recommendation made by D&PL as the RESPONSIBLE PARTY under Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii), such dispute, if submitted to arbitration by either PARTY, shall be submitted to arbitration before the SPECIAL TECHNOLOGY FEE PANEL for resolution in accordance with the procedure set forth in Subsection 4.5(d)(vi). (vi) Within ten (10) business days after either PARTY gives notice of submission to the SPECIAL TECHNOLOGY FEE PANEL of a DEADLOCK MATTER on a recommendation made by D&PL as the RESPONSIBLE PARTY under Subsections 4.4(c)(i), 4.4(c)(ii) and/or 4.4(c)(iii), (A) D&PL shall submit to SYNGENTA and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL a written statement setting forth why the subject recommendation made by D&PL is consistent with the "Purpose" (the "Purpose" shall mean maximizing the NET TECHNOLOGY REVENUE to the PARTIES under this LICENSE AGREEMENT and/or any other goals to be served by the recommendation under this LICENSE AGREEMENT which have been agreed by the PARTIES in advance) (and is more consistent with that Purpose than the alternative recommendation by SYNGENTA to the LICENSE MANAGEMENT COMMITTEE) and (B) SYNGENTA shall submit to D&PL and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL a written statement setting forth why the subject recommendation made by D&PL is not consistent with the Purpose and/or why the alternative recommendation made by SYNGENTA to the LICENSE MANAGEMENT COMMITTEE is more consistent with the Purpose than the recommendation by D&PL. Within five (5) business days after submission of the foregoing statements, SYNGENTA and D&PL may submit to the other PARTY and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL further written statements supplementing their initial statements. The PARTIES' written statements may be accompanied by any supporting documents the submitting PARTY deems relevant. Within twenty (20) business days after the date of transmission of the notice under Subsection 4.5(d)(v), the SPECIAL TECHNOLOGY FEE PANEL shall meet, in person or by means of telecommunications, and shall decide, by majority vote, whether D&PL'S subject recommendation is more consistent with the Purpose than SYNGENTA'S alternative recommendation. In the event that the SPECIAL TECHNOLOGY FEE PANEL finds D&PL'S recommendation to be more consistent with the Purpose than SYNGENTA'S alternative recommendation, then D&PL'S recommendation shall be followed by the PARTIES for the period for which such recommendation was to be effective, unless the PARTIES otherwise mutually agree. In the event that the SPECIAL TECHNOLOGY FEE PANEL finds that SYNGENTA'S alternative recommendation to be more consistent with the Purpose than D&PL'S recommendation, then SYNGENTA'S alternative recommendation shall be followed by the PARTIES for the period for which such recommendation was to be effective, unless the PARTIES otherwise mutually agree. The SPECIAL TECHNOLOGY FEE PANEL shall make its decision based on the PARTIES' written submissions. No personal appearances or other communications with the members of the SPECIAL TECHNOLOGY FEE PANEL shall be permitted. The SPECIAL TECHNOLOGY FEE PANEL shall notify SYNGENTA and D&PL in writing of their decision. The decision of the SPECIAL TECHNOLOGY FEE PANEL shall be final and binding on SYNGENTA and D&PL. SECTION 5 -- OWNERSHIP OF TECHNOLOGY 5.1 SYNGENTA TECHNOLOGY AND LICENSED PATENT RIGHTS. (a) All SYNGENTA TECHNOLOGY shall remain the property of SYNGENTA, including all improvements thereto discovered and reduced to practice by SYNGENTA or by D&PL in the course of performance of activities pursuant to this LICENSE AGREEMENT, provided that SYNGENTA hereby grants D&PL licenses to any such improvements without payment of additional consideration and otherwise on the same terms as the LICENSES granted herein (unless any SYNGENTA TECHNOLOGY is in-licensed by SYNGENTA from any third party, and the license with such third party contains contrary terms with respect to improvements). (b) Each of the LICENSED PATENT RIGHTS shall remain the property of the owner thereof as of the EFFECTIVE DATE or as of the date on which such patent rights are added to the LICENSED PATENT RIGHTS. 5.2 D&PL TECHNOLOGY. All D&PL TECHNOLOGY shall remain the property of D&PL including all improvements thereto discovered and reduced to practice by SYNGENTA or by D&PL in the course of performance of activities pursuant to this LICENSE AGREEMENT (unless any D&PL TECHNOLOGY is in-licensed by D&PL from any third party, in which case D&PL will decide ownership in reference to the license terms with such third party). 5.3 SAFETY, TOXICOLOGY AND EFFICACY DATA. SYNGENTA shall own all data that relates solely to the safety, toxicology, efficacy, and performance of the GENE including the protein product and which does not relate to D&PL CULTIVARS or to a NON-SYNGENTA GENE. D&PL shall own all data that relates to the agronomic performance and fiber properties of D&PL CULTIVARS and/or NON-SYNGENTA GENE(S) and which does not relate to SYNGENTA GENE(S). SYNGENTA and D&PL shall jointly own all other safety, toxicological, and efficacy data generated jointly through activities undertaken pursuant to the COMMERCIAL DEVELOPMENT PLAN; provided that neither D&PL nor SYNGENTA shall grant any rights of access or use of such jointly owned data to any third party to obtain GOVERNMENT APPROVALS or clearances, unless expressly agreed by the other PARTY or as expressly permitted under this LICENSE AGREEMENT. The provisions of this LICENSE AGREEMENT shall not affect the rights of any third parties supplying NON-SYNGENTA GENE(S) to access or ownership of any safety, toxicological, and efficacy data relating to NON-SYNGENTA GENE(S) or COMBINED GENE COTTON SEED containing NON-SYNGENTA GENE(S) supplied by such third party. 5.4 USE OF DATA. SYNGENTA and D&PL shall have a royalty-free license to use data owned by the other PARTY developed by activities undertaken pursuant to this LICENSE AGREEMENT for the purposes set forth in this LICENSE AGREEMENT. Subject to obligations of confidentiality and non-use in agreements with third parties, such data shall be delivered to the other PARTY upon request, which delivery will not be unreasonably delayed. SECTION 6 -- TECHNOLOGY FEES AND ROYALTY 6.1 TECHNOLOGY FEE. The TECHNOLOGY FEE shall be set based on the principles for establishing TECHNOLOGY FEES set forth in Section 6.1(C) through the procedure for establishing TECHNOLOGY FEES set forth in Section 6.1(d) (except as otherwise expressly provided in this LICENSE AGREEMENT). (a) Collection of TECHNOLOGY FEES. The TECHNOLOGY FEE may be either (i) a grower license fee charged directly to LICENSED GROWERS for a limited use sublicense under the LICENSED PATENTS, the purchase of which is required prior to the time of purchasing LICENSED COMMERCIAL SEED, or (ii) an amount allocated to the sublicense under the LICENSED PATENTS included in the sales price of LICENSED COMMERCIAL SEED or (iii) other forms of value capture. The mode of collection of the TECHNOLOGY FEE with respect to LICENSED COMMERCIAL SEED of DELTAPINE Cry1Ab CULTIVARS or SUBLICENSEE Cry1Ab CULTIVARS in any particular country or geographical region at any time will be determined in accordance with Section 4 based upon the market conditions and the mode of sale of other cotton seed products and related technology in that market. [Text in Item 8 of Exhibit K]. (b) Basis of Calculation of TECHNOLOGY FEES. Regardless of the form in which the TECHNOLOGY FEE is charged, the TECHNOLOGY FEE will be calculated based on the quantity of LICENSED COMMERCIAL SEED sold. In the United States, the TECHNOLOGY FEE will be established for each PRICING REGION, and, if charged on a per acre basis, the TECHNOLOGY FEE shall be converted from a fee per acre to a fee per UNIT of seed of the particular LICENSED COMMERCIAL SEED taking into consideration the applicable SEED DROP RATE. Establishment of appropriate mechanisms for application of the TECHNOLOGY FEES to LICENSED COMMERCIAL SEED sold in countries outside of the United States will be determined in accordance with Section 4. (c) [Text in Exhibit J] (d) Procedure For Establishing TECHNOLOGY FEES. The TECHNOLOGY FEE for use of the Cry1Ab GENE embodied in LICENSED COMMERCIAL SEED sold by D&PL for each PRICING REGION shall be set annually utilizing the following procedure [Text in Item 9 of Exhibit K]: (i) D&PL shall make recommendations annually concerning the appropriate TECHNOLOGY FEE in each PRICING REGION. D&PL shall also make recommendations on COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS that D&PL, in its discretion, can provide as discounts from the TECHNOLOGY FEES as approved by SYNGENTA to meet competitive conditions in the marketplace in the particular PRICING REGION. For the United States of America, D&PL'S recommendations shall be made not later than September 15 of the calendar year before the commencement of the cotton planting season in which the TECHNOLOGY FEE and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS will be in effect. For other countries, D&PL will establish by notice to SYNGENTA a date by which D&PL'S recommendations shall be made prior the commencement of the marketing season in which the TECHNOLOGY FEE and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS will be in effect, which date shall be not less than six (6) months before the commencement of the cotton planting season in such country. D&PL will provide SYNGENTA with documentation supporting such recommendation sufficient for SYNGENTA to be able to assess and understand the basis for D&PL'S recommendation and its conformity with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c). Such documentation shall include factual support and specific information to the extent reasonably available, provided that D&PL shall not be required to provide information to the extent that to do so would breach D&PL'S written contractual obligations to any third party. (ii) Within ten (10) business days after receipt of D&PL recommendations, SYNGENTA shall give D&PL written notice of the TECHNOLOGY FEE and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for each of the subject PRICING REGIONS for the forthcoming marketing season. (iii) In the event that SYNGENTA'S notice of TECHNOLOGY FEES and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for any of the subject PRICING REGIONS is different from D&PL'S recommendation with respect thereto, D&PL may within ten (10) business days after receipt of SYNGENTA'S notice under Subsection 6.1(d)(ii) give notice to SYNGENTA of submission of the TECHNOLOGY FEE or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for such PRICING REGION to binding arbitration to as provided in Subsections 6.1(d)(iv) through 6.1(d)(vi). (iv) Arbitration concerning TECHNOLOGY FEES and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS shall be conducted before a special panel of three (3) arbitrators each of whom shall be a person with expertise and experience in the field of agribusiness and who has no current or previous employment nor any current ownership interest in SYNGENTA or D&PL (the "SPECIAL TECHNOLOGY FEE PANEL"), provided that either PARTY may request a waiver of the disqualification of any member or proposed member of the SPECIAL TECHNOLOGY PANEL on account of a current non-material ownership interest in a PARTY, which request for waiver shall not be unreasonably denied or delayed. The members of the SPECIAL TECHNOLOGY FEE PANEL shall be selected by mutual agreement between SYNGENTA and D&PL within ninety (90) days after execution of this LICENSE AGREEMENT. In the event that SYNGENTA and D&PL do not mutually agree on the members of the SPECIAL TECHNOLOGY FEE PANEL within ninety (90) days after execution of this LICENSE AGREEMENT, then within one hundred twenty (120) days after execution of this LICENSE AGREEMENT, SYNGENTA and D&PL shall each select one member of the SPECIAL TECHNOLOGY FEE PANEL and the two members thus selected shall select the third member. In the event of the death, disability or resignation of a member of the SPECIAL TECHNOLOGY FEE PANEL, if the subject member was appointed by SYNGENTA or D&PL, the resulting vacancy shall be filled by the appointing PARTY or, if the subject member was appointed by mutual agreement of SYNGENTA or D&PL, the resulting vacancy shall be filled by mutual agreement of SYNGENTA or D&PL, provide further that if SYNGENTA and D&PL do not fill such vacancy by mutual agreement within ten (10) business days after such a vacancy occurs or, in any event, if the member to be replaced was selected by the two members selected respectively by SYNGENTA and D&PL, the vacancy shall be filled by the two remaining members. Members of the SPECIAL TECHNOLOGY FEE PANEL shall receive reimbursement for the reasonable value of their service on the SPECIAL TECHNOLOGY FEE PANEL and their reasonable out of pocket expenses connected therewith. Such amounts shall be paid one-half by SYNGENTA and one-half by D&PL. (v) Within ten (10) business days after D&PL gives a notice to SYNGENTA under Subsection 6.1(d)(iii), (A) SYNGENTA shall submit to D&PL and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL a written statement setting forth why each of the TECHNOLOGY FEES and/or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS in SYNGENTA'S notice under Subsection 6.1(d)(ii) that has been submitted to arbitration is more consistent with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c) than was D&PL recommendation with respect thereto and (B) D&PL shall submit to SYNGENTA and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL a written statement setting forth why D&PL'S recommendation as to each of the TECHNOLOGY FEES and/or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS in SYNGENTA'S notice under Subsection 6.1(d)(ii) that is submitted to arbitration is more consistent with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c) than is the TECHNOLOGY FEE or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS in SYNGENTA'S notice under Subsection 6.1(d)(ii). Within five (5) business days after submission of the foregoing statements, SYNGENTA and D&PL may submit to the other PARTY and to each of the members of the SPECIAL TECHNOLOGY FEE PANEL further written statements supplementing their initial statements. The PARTIES' written statements may be accompanied by any supporting documents the submitting PARTY deems relevant. (vi) Within twenty (20) business days after the date of transmission of D&PL'S notice under Subsection 6.1(d)(iii), the SPECIAL TECHNOLOGY FEE PANEL shall meet, in person or by means of telecommunications, and shall decide, by majority vote, based the principles for determining TECHNOLOGY FEES set forth in Subsection 6.1(C), whether the TECHNOLOGY FEE and/or the COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS recommended by D&PL under Subsection 6.1(d)(i) or the TECHNOLOGY FEE and/or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS designated by SYNGENTA in its notice under Subsection 6.1(d)(ii) shall be the TECHNOLOGY FEE and/or the COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for the forthcoming marketing season in the subject PRICING REGION. The SPECIAL TECHNOLOGY FEE PANEL shall be limited to selecting only one or the other of these two amounts for the TECHNOLOGY FEE. The SPECIAL TECHNOLOGY FEE PANEL shall make its decision based on the PARTIES' written submissions. No personal appearances or other communications with the members of the SPECIAL TECHNOLOGY FEE PANEL shall be permitted. The SPECIAL TECHNOLOGY FEE PANEL shall notify SYNGENTA and D&PL in writing of their decision. The decision of the SPECIAL TECHNOLOGY FEE PANEL shall be final and binding on SYNGENTA and D&PL. (vii) In the event that D&PL fails to submit a recommendation to SYNGENTA under Subsection 6.1(d)(i) by the date specified for its recommendation, SYNGENTA shall determine TECHNOLOGY FEES and COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS and give notice thereof to D&PL by the twentieth (20th) business day after D&PL'S recommendation had been due, and the procedures set forth in Subsections 6.1(d)(iii) through 6.1(d)(vi) shall not apply. (viii) In the event that D&PL submits its recommendations to SYNGENTA under Subsection 6.1(d)(i) by the date specified therein, and SYNGENTA does not give notice by the date specified in Subsection 6.1(d)(ii) of a TECHNOLOGY FEE or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for any of the subject PRICING REGIONS that is different from D&PL'S recommendation, D&PL'S recommendation shall be deemed to be the TECHNOLOGY FEE or COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS set by SYNGENTA for the forthcoming marketing season in the subject PRICING REGION and the procedures set forth in Subsections 6.1(d)(iii) through 6.1(d)(vi) shall not apply. 6.2 COMPENSATION TO SYNGENTA FOR LICENSE TO THE GENE. In consideration of the rights under the LICENSE granted pursuant to Subsections 3.1, 3.2 and 3.3, and for SYNGENTA performing its responsibilities under Section 4, D&PL shall pay the ROYALTY to SYNGENTA. 6.3 ROYALTY PERIOD. SYNGENTA'S right to receive the ROYALTY shall begin on the date of the first COMMERCIAL SALE by D&PL or by its permitted ~ublicense of LICENSED COMMERCIAL SEED containing the Cry1Ab GENE in a particular country in THE TERRITORY and shall end with regard to a particular country as follows: (a) where the LICENSED COMMERCIAL SEED contains the Cry1Ab GENE and no NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE, on the later of (i) EXPIRATION of the last-to-expire patent in that country of LICENSED PATENT RIGHTS with one or more valid and enforceable claim(s) which, in the absence of a license from SYNGENTA under this LICENSE AGREEMENT, would be infringed by the making, using, or selling of LICENSED COMMERCIAL SEED in that particular country or (ii) the tenth (10th) anniversary of the date of the first COMMERCIAL SALE of LICENSED COMMERCIAL SEED containing the Cry1Ab GENE by D&PL or by its ~ublicense in that country; and (b) where the LICENSED COMMERCIAL SEED contains the Cry1Ab GENE and a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE, then the later of (i) EXPIRATION of the last-to-expire patent in that country of LICENSED PATENT RIGHTS under this LICENSE AGREEMENT or under LICENSED PATENT RIGHTS under a RELATED AGREEMENT with respect to such NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE with one or more valid and enforceable claim(s) which, in the absence of a license from SYNGENTA under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT with respect to the license of the NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE, would be infringed by the making, using, or selling of LICENSED COMMERCIAL SEED in that particular country or (ii) the tenth (10th) anniversary of the date of the first COMMERCIAL SALE of LICENSED COMMERCIAL SEED containing both the Cry1Ab GENE and the NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE in combination, by D&PL or by its ~ublicense in that country. Upon expiration of the applicable above-described period, D&PL shall have a permanent, paid-up license in that particular country (a) to sell LICENSED COMMERCIAL SEED, (b) to use said LICENSED COMMERCIAL SEED and the progeny thereof for any purpose, including to introduce the Cry1Ab GENE and related SYNGENTA TECHNOLOGY into other DELTAPINE CULTIVARS, and (c) to use the Cry1Ab GENE, markers, promoters, and other genetic material that were transferred into the specific DELTAPINE Cry1Ab CULTIVAR(S) with the Cry1Ab GENE and related SYNGENTA TECHNOLOGY, in other DELTAPINE CULTIVARS, provided that (1) SYNGENTA and D&PL shall each take necessary actions to maintain GOVERNMENT APPROVAL of the Cry1Ab GENE and any then approved Cry1Ab GENE EVENTS in all countries in THE TERRITORY where D&PL is selling LICENSED COMMERCIAL SEED upon expiration of the ROYALTY period; provided that SYNGENTA shall have the option to transfer responsibility for maintaining such GOVERNMENTAL APPROVALS to D&PL by giving written notice thereof to D&PL; (2) no license is provided either expressly or by implication under any patent which was not part of the LICENSED PATENT RIGHTS; and (3) SYNGENTA and D&PL and its sublicensees shall have no future responsibility to each other, in that particular country, under Sections 11, 12, and 13 of this LICENSE AGREEMENT with respect to the Cry1Ab GENE or LICENSED COMMERCIAL SEED containing the Cry1Ab GENE, or the markers, promoters, and other genetic material that were transferred to D&PL with the Cry1Ab GENE. Termination of such future responsibilities shall not affect obligations which accrued prior to the expiration of such period. SECTION 7 -- BUSINESS RECORDS/PAYMENTS 7.1 D&PL BUSINESS RECORDS. D&PL shall keep records (and require, in its sublicense agreements with permitted sublicensees, that its sublicensees keep records) and maintain such records for a period of seven (7) years showing the amount of LICENSED COMMERCIAL SEED sold or otherwise transferred to third parties by D&PL and its sublicensees, if any, and TECHNOLOGY FEES billed and collected in connection with such sales. D&PL further agrees to permit its books and records to be examined (and to use commercially reasonable efforts to cause its sublicensees to permit their books and records to be examined) from time to time to the extent necessary to verify the reports provided for in this Section 7, such confidential examination to be made on a confidential basis by a national auditing firm, reasonably acceptable to D&PL, appointed by and at the expense of SYNGENTA; provided that if the results of the audit show that the amount actually due SYNGENTA is 5% or more over and above the amount paid by D&PL, then D&PL shall reimburse SYNGENTA for such audit expenses. If the audit determines that there has been an underpayment or overpayment, the amount shall be remitted promptly within thirty (30) days with interest at the rate stated in Subsection 7.7. 7.2 D&PL REPORTS AND PAYMENTS. (a) On or before the 10th day of each month, D&PL shall submit to SYNGENTA a report that summarizes, by PRICING REGION to the extent then known by D&PL, (i) the gross TECHNOLOGY FEES associated with UNITS of particular cultivars of LICENSED COMMERCIAL SEED, if any, shipped by D&PL and its sublicensees during the immediately preceding month, and (ii) cash payments, discounts and any other adjustments to gross TECHNOLOGY FEES which were approved for payment or issuance during the immediately preceding month that are deductible in determining NET TECHNOLOGY FEE REVENUE. (b) On or before September 30 of each year, D&PL shall submit to SYNGENTA a report which summarizes, by PRICING REGION (i) the gross TECHNOLOGY FEES billed and collected, (ii) the UNITS of LICENSED COMMERCIAL SEED of particular DELTAPINE Cry1Ab CULTIVARS(S) purchased by the LICENSED GROWERS stated in total and, to the extent then known by D&PL, by LICENSED GROWER, (iii) cash payments, discounts, any other adjustments to the published gross TECHNOLOGY FEES and all other amounts deductible from TECHNOLOGY FEES to determine NET TECHNOLOGY FEE REVENUE in total and by each LICENSED GROWER, and (iv) the NET TECHNOLOGY FEE REVENUE received by D&PL for the twelve (12) months ending on August 31 of that year. With each such annual report, D&PL shall pay to SYNGENTA thirty percent (30%) of the NET TECHNOLOGY FEE REVENUE shown on such annual report, including NET TECHNOLOGY FEE REVENUE received by D&PL with respect to sales of LICENSED COMMERCIAL SEED by D&PL and its sublicensees. If no such payments are due for the subject reporting period the written report shall so state. 7.3 SYNGENTA BUSINESS RECORDS. SYNGENTA shall keep records (and, in its licenses to permitted licensees, require that its licensees keep records) and maintain such records for a period of seven (7) years showing the amount of LICENSED COMMERCIAL SEED sold or otherwise transferred to third parties by SYNGENTA (or its licensees, if any) and TECHNOLOGY FEES due in connection with such sales and shall use commercially reasonable efforts to require any permitted licensees on whose sales of LICENSED COMMERCIAL SEED D&PL is entitled to payment of a percentage of the NET TECHNOLOGY FEE REVENUE pursuant to Subsection 3.5 to keep records showing the amount of LICENSED COMMERCIAL SEED sold or otherwise transferred to third parties by such permitted licenses and the TECHNOLOGY FEES due in connection with such sales. SYNGENTA further agrees to permit its books and records to be examined and to use commercially reasonable efforts to cause its permitted licensees to permit their books and records to be examined on a confidential basis from time to time to the extent necessary to verify the reports provided for in this Section 7, such confidential examination to be made by a national auditing firm, reasonably acceptable to SYNGENTA, appointed by and at the expense of D&PL; provided that if the results of the audit show that the amount actually due D&PL is 5% or more over and above the amount paid by SYNGENTA, then SYNGENTA shall reimburse D&PL for such audit expenses. If the audit determines that there has been an underpayment or overpayment, the amount shall be remitted promptly within thirty (30) days with interest at the rate stated in Subsection 7.7. 7.4 SYNGENTA REPORTS AND PAYMENTS. (a) On or before the 10th day of each month, SYNGENTA shall submit to D&PL a report that summarizes, by PRICING REGION to the extent then known by SYNGENTA, (i) the UNITS of particular cultivars of LICENSED COMMERCIAL SEED, if any, shipped by SYNGENTA or its permitted licensee(s) during the immediately preceding month on which D&PL is entitled to payment of a percentage of the NET TECHNOLOGY FEE REVENUE pursuant to Subsection 3.5, (ii) the gross TECHNOLOGY FEES associated with the UNITS of particular cultivars of LICENSED COMMERCIAL SEED shipped during the immediately preceding month, and (iii) cash payments, discounts, and any other adjustments to gross TECHNOLOGY FEES which were approved for payment or issuance during the immediately preceding month that are deductible in determining NET TECHNOLOGY FEE REVENUE. (b) On or before September 30 of each year, SYNGENTA shall submit to D&PL a report which summarizes, by PRICING REGION (i) the gross TECHNOLOGY FEES billed and collected, (ii) the UNITS of particular CULTIVARS of LICENSED COMMERCIAL SEED purchased by the LICENSED GROWERS stated in total and, to the extent then known by SYNGENTA, by LICENSED GROWER, (iii) cash payments, discounts, and any other adjustments to the published gross TECHNOLOGY FEES deductible in determining NET TECHNOLOGY FEE REVENUE, and (iv) the NET TECHNOLOGY FEE REVENUE due with respect to LICENSED COMMERCIAL SEED sold by SYNGENTA or its permitted licensee(s) on whose sales of LICENSED COMMERCIAL SEED D&PL is entitled to payment of a percentage of the NET TECHNOLOGY FEE REVENUE for the twelve (12) months ending on August 31 of that year. With each such annual report, SYNGENTA shall pay to D&PL the applicable percentage of any NET TECHNOLOGY FEE REVENUE shown on such annual report received by SYNGENTA or its permitted licensees with respect to sales of LICENSED COMMERCIAL SEED by SYNGENTA'S permitted licensees. If no such payments are due for the subject reporting period the written report shall so state. 7.5 PAYMENT ADDRESS. Reports and payments due pursuant to this Section 7 shall be sent to: If to DELTA AND PINE LAND COMPANY: Delta and Pine Land Company One Cotton Row Scott, Mississippi 38772 Attention: President If to SYNGENTA: SYNGENTA CROP PROTECTION AG Schwardzwaldallee 215 CH- 4058, Basel, Switzerland Attention: Head of Finance or other such addresses as may be designated by the PARTIES from time to time. 7.6 PAYMENTS. (a) Payments due to SYNGENTA shall be paid by wire transfer as SYNGENTA shall from time to time direct. Except when such direction is for payment to be made in local currency or as otherwise provided herein, all amounts to be paid to SYNGENTA shall be calculated in U.S. dollars using the U.S. dollar buying exchange rate (if applicable) at D&PL's financial institution in effect on the date on which the payment is due. Payments due to D&PL shall be paid by wire transfer as D&PL shall from time to time direct. Except when such direction is for payment to be made in local currency or as otherwise provided herein, all amounts to be paid to D&PL shall be calculated in U.S. dollars using the U.S. dollar buying exchange rate (if applicable) at SYNGENTA'S financial institution in effect on the date on which the payment is due. Deductions of income and withholding taxes shall be made from payments as required by applicable laws and regulations. Deductions shall also be made from any amount owed under this LICENSE AGREEMENT of one half of the amount of any foreign exchange fees, fax fees, bank charges and like transactional costs. Appropriate documents evidencing and supporting any such deductions shall be provided at the time payment is made. (b) With respect to all payments due under this LICENSE AGREEMENT that are subject to approval by any government agency having regulatory authority over the transfer of payments and such other laws and regulations that may apply, the PARTY obligated to make such payments shall use commercially reasonable efforts to obtain such approval and the other PARTY shall, upon request, provide assistance and information needed to obtain such approval upon request. In the event of a lack of government approval to transmit payments hereunder, the PARTY obligated to make such payments shall use commercially reasonable efforts to place all sums constituting payments due to the other PARTY under this LICENSE AGREEMENT in an interest bearing account for the benefit of the PARTY entitled to the payment. Provided however, that in the event such payments are not, despite that PARTY'S commercially reasonable efforts, placed in such interest bearing account, no interest thereon shall accrue. 7.7 INTEREST ON OUTSTANDING BALANCES. If D&PL or SYNGENTA fails to pay on any due date any amount which is payable under this LICENSE AGREEMENT, then, without prejudice to other remedies, that amount shall bear interest at the "Prime Rate on Corporate Loans at Large U. S. Money Center Commercial Banks" as reported by the Wall Street Journal on said due date plus three percent (3%) per annum from the due date until payment is made in full, both before and after any judgment. 7.8 SYNGENTA PATENT RECORDS. [Text in Exhibit I] SECTION 8 -- CONFIDENTIALITY 8.1 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. (a) Neither D&PL nor SYNGENTA shall, at any time during the period specified by Subsection 8.2, disclose to any other person any confidential TECHNOLOGY or other confidential information which has been disclosed to it by the other PARTY or the terms of this LICENSE AGREEMENT or the RELATED AGREEMENTS except with the prior written consent of the other PARTY or as provided in Subsection 8.3; provided, however, (i) SYNGENTA shall be permitted to disclose information relating to performance of the Cry1Ab GENE to the extent such disclosure is necessary or desirable for the development and commercialization of cotton seed containing the Cry1Ab GENE, provided, further that, SYNGENTA shall not disclose information relating specifically only to DELTAPINE CULTIVARS, and (ii) D&PL shall be permitted to disclose any information relating to the performance of DELTAPINE Cry1Ab CULTIVAR(S) to the extent required under contracts with licensors of NON-SYNGENTA GENE(S) contained therein. (b) SYNGENTA shall not disclose confidential D&PL pricing, sales or other sensitive information to any competitor of D&PL. To the extent that such arrangements are commercially practical with SYNGENTA'S existing personnel staffing levels, SYNGENTA shall use separate personnel to handle D&PL sensitive commercial information from the personnel with access to commercial information from any competitor of D&PL. 8.2 PERIOD OF CONFIDENTIALITY. The period referred to in Subsection 8.1 shall be the period beginning with the date of receipt of the confidential TECHNOLOGY or other confidential information and ending, with respect to that TECHNOLOGY, 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 8.1 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. 8.3 USES OF CONFIDENTIAL INFORMATION. Subject to the overriding provisions of Subsections 5.3 and 5.4, any TECHNOLOGY or other confidential information which is disclosed by either D&PL or SYNGENTA to the other PARTY may be: (a) Disclosed by the RECIPIENT to any directors, officers, employees, agents or contractors of the RECIPIENT, to such extent only as is reasonably necessary for fulfillment of the RECIPIENT'S obligations under this LICENSE AGREEMENT or under the COMMERCIAL DEVELOPMENT PLAN or for the commercial exploitation of the cotton seed containing the GENE, 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 LICENSE 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 seek 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 TECHNOLOGY and/or other confidential information and permit said other PARTY, at its option, to contest said requirement and to seek confidential treatment of such TECHNOLOGY or 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 reasonable measures to seek 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 TECHNOLOGY and/or other confidential information and permit said other PARTY, at its option to contest said requirement and to seek confidential treatment of such TECHNOLOGY or 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 EFFECTIVE DATE 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 RECIPIENT prior to such disclosure. SECTION 9 -- FORCE MAJEURE 9.1 FORCE MAJEURE. Except with regard to any payments required pursuant to this LICENSE 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 government authority, including, but not limited to, government actions restricting or preventing the growing of LICENSED COMMERCIAL SEED in areas where D&PL has historically produced seed; provided, however, that the PARTY so affected shall, as promptly as reasonably possible under the circumstances, give written or oral notice to the other PARTY 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 9.1, it may suspend performance of this LICENSE 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 LICENSE AGREEMENT as soon as practicable after removal or cessation of the cause for the delay or reduction in performance. SECTION 10 -- TERM AND TERMINATION 10.1 TERM OF LICENSES. The term of the LICENSES granted pursuant to this LICENSE AGREEMENT shall begin on the EFFECTIVE DATE and shall continue in perpetuity so long as LICENSED COMMERCIAL SEED is sold, licensed or used in THE TERRITORY as provided herein, unless the LICENSES are terminated earlier pursuant to a provision of this Section 10 or otherwise under the terms of this LICENSE AGREEMENT. 10.2 TERMINATION. [Text in Exhibit L] 10.3 BREACH OF OBLIGATIONS. Breach by SYNGENTA of any of the material provisions of this LICENSE AGREEMENT (other than default upon any of the payment obligations provided herein) shall entitle D&PL to give SYNGENTA notice to cure such breach or default. Breach by D&PL of any of the material provisions of this LICENSE AGREEMENT (other than default upon any of the payment obligations provided herein) shall entitle SYNGENTA to give D&PL notice to cure such breach. If a breach is not cured within the ninety (90) day period, the materially-affected PARTY may terminate this LICENSE 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 14.12 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 14.12(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 10.3 to take effect immediately. 10.4 DEFAULT ON PAYMENT. In the event of default on any payment due by SYNGENTA to D&PL or by D&PL to SYNGENTA hereunder and failure to cure such default within sixty (60) days of notice, the non-defaulting PARTY shall have the right to terminate this LICENSE AGREEMENT 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 14.12 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 14.12(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 10.4 to take effect immediately. 10.5 EFFECT OF TERMINATION. [Text in Exhibit L] 10.6 SURVIVAL OF COVENANTS. Notwithstanding the termination of this LICENSE AGREEMENT by notice or otherwise, the rights and obligations conferred by Sections 6, 7, 8 and 11, 12, 13, and 14 with respect to events which occurred prior to such termination shall survive termination. SECTION 11 -- WARRANTIES AND WARRANTY LIMITATIONS 11.1 SYNGENTA WARRANTIES. SYNGENTA hereby warrants and represents that: (a) As of the DATE OF APPROVAL FOR COMMERCIAL SALE of each Cry1Ab GENE EVENT in a particular country, SYNGENTA: (i) is the owner or licensee of the Cry1Ab GENE, the subject Cry1Ab GENE EVENT, and SYNGENTA TECHNOLOGY used in the development thereof; (ii) is owner or licensee of the LICENSED PATENT RIGHTS; and (iii) has the right to license (or sublicense) to D&PL the Cry1Ab GENE, the subject Cry1Ab GENE EVENT, and LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY used in the development thereof for use under the terms of this LICENSE AGREEMENT in the subject country; (b) As of the EFFECTIVE DATE, to the best of SYNGENTA'S knowledge there is no valid and enforceable third-party United States patent or foreign patent, not then a part of the LICENSED PATENT RIGHTS, that will preclude or restrict either SYNGENTA'S or D&PL'S lawful performance under this LICENSE AGREEMENT in the subject country; (c) As of the date on which SYNGENTA gives the notice described in Subsection 4.3(b) with respect to a Cry1Ab GENE EVENT in a particular country in which SYNGENTA is responsible for obtaining GOVERNMENT APPROVAL, GOVERNMENT APPROVAL has been obtained for that country; and (d) All material information that SYNGENTA has provided or hereafter provides to any government agency for the purpose of obtaining GOVERNMENT APPROVAL is, to the best of SYNGENTA'S knowledge and belief, true and correct in all material respects. Provided, however, that this warranty is not made to D&PL with respect to any such information which was supplied to SYNGENTA by D&PL and which was thereafter provided in the same or substantially the same form by SYNGENTA to a government agency nor information with respect to a NON-SYNGENTA GENE received by SYNGENTA from or through D&PL as to which information SYNGENTA makes no warranties, express or implied. (e) SYNGENTA'S utilization of the procedures and materials that SYNGENTA has employed or may hereafter employ in the development and evaluation of the Cry1Ab GENE and/or any Cry1Ab GENE EVENT does not contravene any provision of any agreement or contract binding upon SYNGENTA. (f) If on the EFFECTIVE DATE or thereafter, SYNGENTA is obligated to pay royalties to any third party for rights under the LICENSED PATENT RIGHTS, SYNGENTA shall pay, in full and by the date due, all such royalties (subject to any reimbursement as provided in Section 12.1(b) if applicable). As of the EFFECTIVE DATE, no uncured breach or default exists under any agreement or contract relating to SYNGENTA'S rights to practice and to sublicense D&PL under any third party patent or patent application which is part of the LICENSED PATENT RIGHTS, and, to the best of SYNGENTA'S knowledge, no condition exists which, if not cured, would result in such a breach or default. 11.2 D&PL WARRANTIES. D&PL hereby warrants and represents that: (a) D&PL shall not sell (and shall require in any sublicense granted pursuant to Section 3.4 that its ~ublicense shall not sell), without the written approval of SYNGENTA, LICENSED COMMERCIAL SEED that fails to meet the SEED PURITY STANDARD for the Cry1Ab GENE EVENT embodied therein and/or that fails to meet the GENE EQUIVALENCY STANDARD for the Cry1Ab GENE EVENT. D&PL shall keep lot samples of all LICENSE COMMERCIAL SEED sold by D&PL following the protocol set forth in the COMMERCIAL DEVELOPMENT PLAN for at least two (2) years following the date of creation of such lot of LICENSED COMMERCIAL SEED. (b) [Text in Item 10 of Exhibit K] (c) As of the date on which D&PL commences COMMERCIAL SALE of LICENSED COMMERCIAL SEED of any particular DELTAPINE Cry1Ab CULTIVAR in any particular country, the COMMERCIAL SALE of such LICENSED COMMERCIAL SEED does not contravene any provision of any agreement with any third party binding upon D&PL. D&PL shall have used commercially reasonable efforts to determine that, as of the date on which any ~ublicense of D&PL commences COMMERCIAL SALE of LICENSED COMMERCIAL SEED of any particular ~ublicense Cry1Ab CULTIVAR in any particular country, the COMMERCIAL SALE of such LICENSED COMMERCIAL SEED does not contravene any provision of any agreement with any third party binding upon such ~ublicense. 11.3 MUTUAL WARRANTIES. (a) SYNGENTA warrants to D&PL that this LICENSE AGREEMENT does not and, performance by SYNGENTA of its obligations hereunder will not, contravene any provision of any agreement or contract binding upon SYNGENTA. (b) D&PL warrants to SYNGENTA that this LICENSE AGREEMENT does not, and performance by D&PL of its obligations hereunder will not, contravene any provision of any agreement or contract binding upon D&PL. 11.4 NO OTHER WARRANTIES. IT IS EXPRESSLY UNDERSTOOD THAT D&PL AND SYNGENTA MAKE NO REPRESENTATIONS, EXTEND NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ASSUME NO RESPONSIBILITIES, OTHER THAN EXPRESSLY PROVIDED FOR HEREIN, WITH RESPECT TO: (a) THE PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE GENE, RELATED SYNGENTA TECHNOLOGY, LICENSED COMMERCIAL SEED, DELTAPINE CULTIVARS, AND DELTAPINE Cry1Ab CULTIVARS; (b) THE SCOPE OR VALIDITY OF ANY PATENT OF THE LICENSED PATENT RIGHTS, OR (c) THE Cry1Ab GENE, RELATED SYNGENTA TECHNOLOGY, LICENSED COMMERCIAL SEED, DELTAPINE CULTIVARS, DELTAPINE Cry1Ab CULTIVARS, OR USE THEREOF BEING FREE FROM INFRINGEMENT OF PATENTS OTHER THAN LICENSED PATENT RIGHTS. 11.5 EXCLUSIVE REMEDY. Except to the extent that D&PL establishes that it was induced to enter this LICENSE AGREEMENT as a result of SYNGENTA'S fraud, intentional misrepresentation or misrepresentation due to gross negligence related to whether D&PL's and its sublicensees' activities under this LICENSE AGREEMENT infringe a claim of a third party patent or whether the LICENSED PATENTS and/or the SYNGENTA TECHNOLOGY are valid or enforceable, D&PL'S and its sublicensees' exclusive remedies for losses, damages, or liability, resulting from a claim that their activities under this LICENSE AGREEMENT infringe a claim of a third party patent or that the LICENSED PATENTS and/or the SYNGENTA TECHNOLOGY are not valid or enforceable, are the patent indemnification obligations expressly set forth in Section 12 of this LICENSE AGREEMENT. A dispute as to whether D&PL has established that it was so induced shall be subject to the dispute resolution process under Subsection 14.12 of this LICENSE AGREEMENT. Notwithstanding anything to the contrary in this LICENSE AGREEMENT or a RELATED AGREEMENT, including without limitation Section 12, SYNGENTA shall have no liability or obligations with respect to a claim that D&PL's and its sublicensees' activities under this LICENSE AGREEMENT or a RELATED AGREEMENT infringe a claim of third party patent with respect to a GENE which has not been licensed by SYNGENTA to D&PL under this LICENSE AGREEMENT or under a RELATED AGREEMENT. SECTION 12 -- PATENT INFRINGEMENT [Text in Exhibit I] SECTION 13 -- CLAIMS BY VENDEES FOR FAILURE OF GENE PERFORMANCE [Text in Exhibit M] SECTION 14-- GENERAL 14.1 ASSIGNMENT OF D&PL'S RIGHTS AND OBLIGATIONS. (a) The rights and obligations under this LICENSE AGREEMENT pertaining to D&PL are personal to D&PL and D&PL shall not (by operation of law or otherwise) assign, mortgage, pledge as security, or sublicense any of its rights hereunder, nor shall D&PL subcontract or delegate (other than in the ordinary course of business) any of its obligations hereunder (except as otherwise provided in this LICENSE AGREEMENT), except with the prior written consent of SYNGENTA, provided that, without the consent of SYNGENTA, (i) D&PL may, in the ordinary course of business, subcontract or delegate performance of its obligations under this LICENSE AGREEMENT (including, but not limited to, breeding, development, increase, testing, and marketing seed and collecting TECHNOLOGY FEES) to third parties under contract with D&PL, provided that D&PL shall remain liable to SYNGENTA with respect to performance of D&PL'S obligations under this LICENSE AGREEMENT by such third party(ies), and (ii) D&PL shall have the right to assign this LICENSE AGREEMENT and the rights and obligations hereunder (A) to an AFFILIATE of D&PL 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 D&PL'S cotton seed business, either alone or in conjunction with other D&PL business, provided that, as a condition of such assignment, the assignee shall agree in writing to be bound by the provisions hereof. (b) The provisions of Subsection 14.1(a) notwithstanding, in the event of a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION, the provisions of the LICENSE ACQUISITION AGREEMENT and this LICENSE AGREEMENT expressly relating to a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION shall apply. 14.2 ASSIGNMENT OF SYNGENTA'S RIGHTS AND OBLIGATIONS. (a) The rights and obligations under this LICENSE AGREEMENT pertaining to SYNGENTA are personal to SYNGENTA and SYNGENTA shall not (by operation of law or otherwise) assign, mortgage, or pledge as security any of its rights hereunder, nor shall SYNGENTA subcontract or otherwise delegate (other than in the ordinary course of business) any of its obligations hereunder (except as otherwise provided in this LICENSE AGREEMENT), except with the prior written consent of D&PL, provided that, without the consent of D&PL, (i) when expressly permitted to do so under other provisions of this LICENSE AGREEMENT, SYNGENTA may, in the ordinary course of business, subcontract or delegate performance of its obligations under this LICENSE AGREEMENT (including, but not limited to, breeding, development, increase, testing, and marketing seed and collecting TECHNOLOGY FEES) to third parties under contract with SYNGENTA, provided that SYNGENTA shall remain liable to D&PL with respect to performance of SYNGENTA'S obligations under this LICENSE AGREEMENT by such third party(ies), and (ii) SYNGENTA shall have the right to assign this LICENSE AGREEMENT and the rights and obligations hereunder (A) to an AFFILIATE of SYNGENTA 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 as may then be responsible for compliance with this LICENSE AGREEMENT, either alone or in conjunction with other SYNGENTA business, provided that, as a condition of such assignment, the assignee shall agree in writing to be bound by the provisions hereof. (b) [Text in Item 11 of Exhibit K] 14.3 RELATION OF PARTIES. Nothing in this LICENSE AGREEMENT shall create, or be deemed to create, a partnership, or the relationship of principal and agent among the parties. SYNGENTA CROP PROTECTION AG and DELTA AND PINE LAND COMPANY shall each be primarily liable for and shall guarantee the payment and performance of all of the obligations of their respective AFFILIATES hereunder. 14.4 INTEGRATION OF CONTRACT. This LICENSE AGREEMENT 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 LICENSE AGREEMENT and the LICENSE ACQUISITION AGREEMENT and the RELATED AGREEMENTS entered into by D&PL and SYNGENTA pursuant to the LICENSE ACQUISITION AGREEMENT, provided that ****** 14.5 WAIVERS AND AMENDMENTS. This LICENSE 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 LICENSE 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 LICENSE AGREEMENT. 14.6 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 LICENSE AGREEMENT or as a limitation of the scope of the particular Section or Subsection to which they refer. 14.7 REFERENCES TO SECTIONS, SUBSECTIONS AND EXHIBITS. Unless otherwise expressly stated, all Sections and Subsections referred to herein are Sections and Subsections of this LICENSE AGREEMENT, and all Exhibits referred to herein are Exhibits attached hereto. 14.8 PARTIAL INVALIDITY. If any provision of this LICENSE AGREEMENT is held by any competent authority to be invalid or unenforceable in whole or in part, this LICENSE 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 LICENSE 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). 14.9 GOVERNING CONTRACT LAW. THIS LICENSE AGREEMENT SHALL, EXCEPT AS PROVIDED IN SUBSECTION 14.10, 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. 14.10 GOVERNING PATENT LAW. Any question arising out of this LICENSE AGREEMENT 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. 14.11 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 D&PL: 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: 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 14.12 DISPUTE RESOLUTION. (a) Any claim, dispute, difference or controversy between the PARTIES arising out of, or relating to, this LICENSE AGREEMENT which has not been settled by mutual understanding between the PARTIES (a "DISPUTE") shall be submitted within thirty (30) days of the initial written notice of the existence 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 except as to those matters which are to be submitted to the SPECIAL TECHNOLOGY FEE PANEL as provided in this LICENSE AGREEMENT: (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 14.12. 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. Unless the period for consideration by the PANEL is extended by mutual written agreement, any demand for arbitration shall be made within ten (10) days after expiration of the thirty (30) day period for resolution of the DISPUTE in question by the PANEL 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 and one (1) of whom shall be appointed by D&PL. 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 do not 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. (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 reasonable efforts to minimize adverse economic consequences to the PARTIES under this LICENSE AGREEMENT and the other 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 14.12 shall serve to preclude any PARTY from its right to seek any judicial remedy at law or equity to enforce the award of the arbitrators or to exercise its other rights, if any, under this LICENSE AGREEMENT. (d) Anything in this Subsection 14.12 notwithstanding, this Subsection 14.12 shall not apply to the establishment of TECHNOLOGY FEES where Subsection 6.1(d) applies and shall not apply to any dispute with respect to matters under Subsection 4.4(C)(i), 4.4(C)(ii) and/or 4.4(C)(iii) where such dispute has been submitted to the SPECIAL TECHNOLOGY FEE PANEL as provided in Subsections 4.5(d)(iv) and (v). 14.13 INCORPORATION OF EXHIBITS. Exhibits A-H, inclusive, are incorporated herein and made a part hereto. IN WITNESS WHEREOF, this LICENSE AGREEMENT has been executed by duly authorized representatives of the PARTIES herein. DELTA AND PINE LAND COMPANY By: --------------------------------- Title: ------------------------------ SYNGENTA CROP PROTECTION AG By: --------------------------------- Title: ------------------------------ By: --------------------------------- Title: ------------------------------ EXHIBIT A LICENSED PATENT RIGHTS ****** EXHIBIT B Cry1Ab GENE TRADEMARK LICENSE AGREEMENT This Agreement, made as of the _______ day of ___________, 20____, by and between SYNGENTA PARTICIPATIONS AG, a company organized under the laws of Switzerland, having a place of business at Schwarzwaldallee 215, CH-4058, Basel, Switzerland (hereinafter referred to as "SYNGENTA"), and Delta and Pine Land Company, a corporation organized and existing under the laws of the State of Delaware, having its principal place of business at One Cotton Row, Scott, Mississippi 38772 (hereinafter referred to as "LICENSEE"). SYNGENTA and LICENSEE each a "Party" and, jointly, the "Parties". WITNESSETH: WHEREAS, SYNGENTA is the owner of the trademark, which is the subject of [country] trademark application no. ________________ for Cry1Ab GENE(S) (as defined in the LICENSE AGREEMENT) (hereinafter referred to as the "Cry1Ab Gene Trademark"); and WHEREAS, SYNGENTA'S Affiliate Syngenta Crop Protection AG and LICENSEE are parties to the Cry1Ab Gene License Agreement effective ____________, 2004, directed to the licensing of certain SYNGENTA patent rights and technology relating to transgenic cotton plants containing insect resistance genes (hereinafter referred to as the "LICENSE AGREEMENT"); and WHEREAS, LICENSEE desires to obtain a license to use the Cry1Ab Gene Trademark in connection with the sale of transgenic cotton seed containing Cry1Ab insect resistance genes licensed to D&PL pursuant to the LICENSE AGREEMENT and the Parties wish to use the Cry1Ab GENE TRADEMARK in accordance with the LICENSE AGREEMENT; NOW, THEREFORE, in consideration of the mutual undertakings and obligations herein obtained, the parties agree as follows: 1. SYNGENTA hereby grants to LICENSEE, subject to all of the terms and conditions herein contained, a non-exclusive, royalty-free license to use the Cry1Ab Gene Trademark on or in relation to cottonseed which contains Cry1Ab GENE(S) and which has been produced pursuant to the LICENSE AGREEMENT (hereinafter referred to as "Goods"). This license shall be assignable to a third party only in the manner specified in Section 14.1 of the LICENSE AGREEMENT and only as part and parcel of an assignment of the LICENSE AGREEMENT. 2. LICENSEE agrees that to use the Cry1Ab Gene Trademark on all Goods, but only on Goods which meet the criteria for "COMMERCIAL INSECT RESISTANCE" as defined in the LICENSE AGREEMENT. 3. SYNGENTA shall have the right at all reasonable times to inspect and examine the methods, processes and containers used by LICENSEE in bagging, treating and storing the Goods on which the LICENSEE uses the Cry1Ab Gene Trademark and to request samples of such Goods and containers. LICENSEE agrees to permit such inspections and examinations and to furnish such samples. Such inspection and examination shall be for the sole purpose of confirming that the quality of the Goods meets the standards set forth in writing by SYNGENTA and shall not be used for any competitive purpose whatsoever. D&PL may at any time require that such inspections and evaluations be conducted on a confidential basis by a third-party inspector selected by SYNGENTA and acceptable by D&PL, which inspector shall report to SYNGENTA and D&PL only whether or not D&PL is in compliance with this Cry1Ab GENE TRADEMARK AGREEMENT, and if not in compliance, the areas of non-compliance without otherwise disclosing to SYNGENTA D&PL's methods and procedures. 4. LICENSEE shall have the right to use the Cry1Ab Gene Trademark in advertising and promotional literature and the like, as well as on labels, packaging, containers and the like, for the Goods sold pursuant to the LICENSE AGREEMENT. LICENSEE agrees that each such use of the Cry1Ab Gene Trademark shall be in accordance with the provisions of Section 3.8 of the LICENSE AGREEMENT and agrees that the Cry1Ab Gene Trademark shall be keyed by an asterisk to a footnote reading "Trademark of, and used under license from, a Syngenta Group Company". After the Cry1Ab Gene Trademark has been registered in [Country], SYNGENTA will notify the LICENSEE of the registration and thereafter LICENSEE shall change the asterisk to the (R) symbol which shall be keyed to the footnote "Registered trademark of, and used under license from, a Syngenta Group Company". 5. LICENSEE agrees to submit to SYNGENTA'S representatives upon reasonable request, samples of labels, packaging, containers, advertising, promotional materials and other materials to which the Cry1Ab Gene Trademark is applied. 6. The term of this Agreement shall be coextensive with the term of the LICENSE AGREEMENT unless sooner terminated in accordance with the terms of Section 7 hereof. 7. If at any time, LICENSEE should use the Cry1Ab Gene Trademark for Goods not produced in accordance with the terms of the LICENSE AGREEMENT, or if at any time LICENSEE breaches any other provision of this Agreement or fails to observe any of its obligations hereunder the license granted herein shall be terminable upon written notice from SYNGENTA to that effect. Provided, however, that LICENSEE shall have ninety (90) days from the receipt of such notice to cure any breach or default, and all provisions of the LICENSE AGREEMENT relating to notice of breach, cure and dispute resolution shall apply to this Cry1Ab GENE TRADEMARK LICENSE AGREEMENT. 8. To the extent that such reporting would not conflict with other obligations legally binding on D&PL, LICENSEE agrees to notify SYNGENTA promptly of any apparent infringement of the Cry1Ab Gene Trademark which comes to LICENSEE'S knowledge. SYNGENTA will take such action regarding such infringement as it deems, in its sole discretion, to be necessary or desirable, and LICENSEE agrees to cooperate therein. 9. SYNGENTA agrees to indemnify and hold LICENSEE harmless from and against all claims, suits, damages and costs arising out of a claim of trademark infringement or unfair competition on account of LICENSEE'S use of the Cry1Ab Gene Trademark. Provided however, that LICENSEE shall promptly notify SYNGENTA of such claim or suit and shall reasonably cooperate with SYNGENTA in the defense thereof. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate by their duly authorized representatives as of the date first set forth above. SYNGENTA PARTICIPATIONS AG By: --------------------------------- Title: ------------------------------ DELTA AND PINE LAND COMPANY By: --------------------------------- Title: ------------------------------ EXHIBIT C ****** EXHIBIT D AGRONOMIC CRITERIA FOR DELTAPINE CULTIVARS Agronomic performance and suitability of each DELTAPINE Cry1Ab CULTIVAR is the responsibility of D&PL. A new DELTAPINE Cry1Ab CULTIVAR (hereinafter "new variety") shall be deemed to have met the AGRONOMIC CRITERIA and shall be approved for commercial release in THE TERRITORY if D&PL confirms in writing to SYNGENTA that the new variety has been tested for agronomic and commercial acceptability as to yield, fiber quality, and disease resistance and, based on such testing, has been found acceptable for commercial release. D&PL will conduct at least four (4) agronomic trials in THE TERRITORY in each of two (2) years to determine acceptability. Data from these and other trials considered relevant by D&PL will be analyzed by D&PL and used to determine suitability of the new variety for COMMERCIAL SALE. EXHIBIT E SEED PURITY STANDARDS All multiplications of LICENSED COMMERCIAL SEED must meet the genetic purity standards set forth in this Exhibit E and comply with all applicable seed laws and regulations of the applicable country in THE TERRITORY. Breeder or pre-breeder seed lots will be sampled and tested for verification of the presence of the intended event(s) and the absence of unintended events. The term "unintended events" shall mean DNA molecules, vector, or constructs (or replicates thereof) not naturally occurring in cotton and not intended to be present in the variety according to the bag label. Section E.1. PURITY STANDARDS In the absence of more restrictive applicable government standards, the SEED PURITY STANDARDS shall be: (a) At least 98% of the seed in a lot of commercial seed will contain each GENE intended to be there. For clarity, LICENSED COMMERCIAL SEED which is intended to contain more than one GENE may be sold only if the testing indicates that each GENE is present in 98% of the seed. Every seed lot of LICENSED COMMERCIAL SEED (one seed lot shall not exceed 2,000 UNITS of seed) must have a sample taken and stored using the procedures set forth in Section E.2 below, and the presence of the Cry1Ab GENE and each other intended GENE verified. Verification shall be conducted by D&PL'S testing laboratory or an independent seed testing laboratory. SYNGENTA shall have the right to conduct DNA verification on any lot, including the retained samples, at SYNGENTA'S expense. Any seed samples obtained by SYNGENTA for DNA verification to check seed purity shall be used for that purpose only and any residue thereof shall be destroyed. (b) Adventitious amounts of commercially approved, unintended GENE(S) are allowed in commercial lots of seed to the extent permitted under applicable laws. It is D&PL'S responsibility to define acceptable adventitious amounts based on knowledge of the industry and compliance with applicable laws, and D&PL shall notify SYNGENTA of its determinations form time to time and on request. "Commercially approved" means accepted by all applicable government agencies for sale in the applicable country. (c) Breeder or pre-breeder seed lots will be tested for non-approved GENE at a 0.1% threshold at a 95% confidence level. History and knowledge of the presence of potential non-approved genes in D&PL'S research program and seed production fields will determine which seed lots are tested for which non-approved GENES. The testing program and breeding history will be documented by D&PL. Seed lots testing positive for a non-approved GENE will not be sold and SYNGENTA will be notified in writing. If the non-approved GENE is a SYNGENTA-produced gene, the identity of the GENE and the event will be included in the notification. "Non-approved" means not accepted by all applicable government agencies for sale in the applicable country. (d) D&PL shall maintain all testing records for each lot of LICENSED COMMERCIAL SEED for three years after sale of such LICENSED COMMERCIAL SEED. All test results, inspection records, and other quality assurance or quality control documentation shall be reasonably available to SYNGENTA upon request and SYNGENTA shall have a right to audit D&PL'S quality control program and to take and test subsamples from the samples retained by D&PL. Such inspections and evaluations shall be conducted on a confidential basis by an independent third-party inspector selected by SYNGENTA and acceptable by D&PL, which inspector shall report to SYNGENTA and D&PL only whether or not D&PL is in compliance with the SEED PURITY STANDARD and, if D&PL is not in compliance, the areas of non-compliance without otherwise disclosing to SYNGENTA D&PL's methods and procedures. Any such tests and inspections shall be subject to D&PL'S obligations to owners/licensors of NON-SYNGENTA GENE(S) contained in such LICENSED COMMERCIAL SEED. (e) All costs associated with the seed purity verification program shall be borne by D&PL, except for costs of any testing conducted by SYNGENTA under Section E.1(a) or audits conducted by SYNGENTA under Sections E.1(d) or E.2(c). Section E.2. PROCEDURE FOR ARCHIVING/STORAGE OF SAMPLES OF SEED LOTS (a) Purpose. This protocol focuses on the collection, storage, and security of file samples representing processed lots of LICENSED COMMERCIAL SEED. Storage of said samples is to satisfy applicable legal requirements, for the development of historical data, and for confirmation and evaluation in the event of customer inquiries and legal claims and to confirm SYNGENTA'S and D&PL'S legal rights and/or obligations under the LICENSE AGREEMENT. (b) Responsibility (1) D&PL'S Quality Assurance Department will obtain a representative sample from every finished seed lot during the conditioning process. The sample will be taken by the automatic sampling device at the bagging station (or probed by hand, whichever is appropriate) and divided into representative portions as per the Association of Official Seed Analysts Rules for Testing Seeds. The portion for storage will weigh approximately 1.5 pounds. (2) These samples will be labeled with lot number, variety, class, year grown, date, and number of bag per lot, then immediately sealed in a 4-mil linear low density polyethylene bag that is laminated with saran-coated 48 gauge polyester or comparable container, to provide a good moisture barrier. (3) In order to preserve seed quality, samples will be stored in either air-conditioned storage, or in dry, arid environments so that seed quality is reasonably preserved for testing purposes. (4) Access to these samples will be restricted to individuals approved by D&PL and will be kept in a physically secure location. (5) In order to safeguard samples from natural and other disasters, a portion of every retained sample may be kept in another location. (6) These samples will be stored for a period of three (3) years after the last sale of seed from the lot. If, prior to expiration of this period, claims or other legal proceedings have been commended which involve the specific lot, the sample will be retained until a matter is finally concluded. (c) SYNGENTA shall have the right to appoint a qualified third party, reasonably acceptable to D&PL, to conduct a confidential audit of D&PL'S quality assurance activities to assure trait purity is maintained. The third party auditor may not disclose D&PL'S methods for quality assurance but shall report to SYNGENTA whether D&PL is in compliance with the requirements of this Exhibit E and how they are not in compliance. EXHIBIT F PRICING REGIONS IN THE UNITED STATES REGION STATES COUNTIES - ------ ------ -------- A Missouri All Counties Tennessee Benton Houston Carroll Humphreys Chester Lake Crockett Lauderdale Decatur Madison Dyer McNary Fayette Obion Gibson Perry Hardeman Shelby Hardin Stewart Haywood Tipton Henderson Weakley Henry Northern Arkansas Baxter Lawrence Benton Logan Boone Madison Carroll Marion Clay Mississippi Cleburne Newton Conway Poinsett Craighead Pope Crawford Randolph Crittenden Saint Francis Cross Searcy Faulkner Sebastian Franklin Sharp Fulton Stone Greene Van Buren Independence Washington Izard White Jackson Woodruff Johnson B Georgia All Counties Except: Bartow Haralson Catoosa Murray Chattooga Paulding Dade Polk Floyd Walker s Gordon Whitfield Florida All Counties Southern Alabama Autauga Geneva Baldwin Greene Barbour Hale Bibb Henry Bullock Houston Butler Lee Chambers Lowndes Chilton Macon Choctaw Marengo Clarke Mobile Coffee Monroe Conecuh Montgomery Coosa Perry Covington Pike Crenshaw Russell Dale Sumter Dallas Tallapoosa Elmore Washington Escambia Wilcox C Mississippi All Counties Louisiana All Parishes Southern Arkansas Arkansas Lincoln Ashley Little River Bradley Lonoke Calhoun Miller Central Monroe Chicot Montgomery Clark Nevada Cleveland Ouachita Dallas Perry Desha Phillips Drew Pike Garland Polk Grant Prairie Hempstead Pulaski Hot Spring Saline Howard Scott Jefferson Sevier Lafayette Union Lee Yell East Texas Bowie Newton Cass Panola Harrison Sabine Marion Shelby D East Texas Anderson Karnes Angelina Kaufman Aransas Kendall Atascosa Kenedy Austin Kerr Bandera Kimble Bastrop Kinney Bee Kleberg Bell Lamar Bexar Lampasas Blanco La Salle Bosque Lavaca Brazoria Lee Brazos Leon Brooks Liberty Burleson Limestone Burnet Live Oak Caldwell McLennan Calhoun McMullen Cameron Madison Camp Mason Chambers Matagorda Cherokee Maverick Clay Medina Collin Menard Colorado Milam Comal Montague Cooke Montgomery Coryell Morris Dallas Nacogdoches Delta Navarro Denton Nueces De Witt Orange Dimmit Palo Pinto Duval Parker Edwards Polk Ellis Rains Erath Real Falls Red River Fannin Refugio Fayette Robertson Fort Bend Rockwall Franklin Rusk Freestone San Augustine Frio San Jacinto Galveston San Patricio Gillespie Smith Goliad Somervell Gonzales Starr Grayson Tarrant Gregg Titus Grimes Travis Guadalupe Trinity Hamilton Tyler Hardin Upshur Harris Uvalde Hays Val Verde Henderson Van Zandt Hidalgo Victoria Hill Walker Hood Waller Hopkins Washington Houston Webb Hunt Wharton Jack Willacy Jackson Williamson Jasper Wilson Jefferson Wise Jim Hogg Wood Jim Wells Zapata Johnson Zavala E Oklahoma All Counties New Mexico All Counties West Texas Andrews Jones Archer Kent Armstrong King Bailey Knox Baylor Lamb Borden Lipscomb Brewster Llano Briscoe Loving Brown Lubbock Callahan Lynn Carson McCulloch Castro Martin Childress Midland Cochran Mills Coke Mitchell Coleman Moore Collingsworth Motley Comanche Nolan Concho Ochiltree Cottle Oldham Crane Parmer Crockett Pecos Crosby Potter Culberson Presidio Dallam Randall Dawson Reagan Deaf Smith Reeves Dickens Roberts Donley Runnels Eastland San Saba Ector Schleicher El Paso Scurry Fisher Shackelford Floyd Sherman Foard Stephens Gaines Sterling Garza Stonewall Glasscock Sutton Gray Swisher Hale Taylor Hall Terrell Hansford Terry Hardeman Throckmorton Hartley Tom Green Haskell Upton Hemphill Ward Hockley Wheeler Howard Wichita Hudspeth Wilbarger Hutchinson Winkler Irion Yoakum Jeff Davis Young F Arizona All Counties California Imperial San Diego Riverside San Bernadino G Northern Alabama Blount Lawrence Calhoun Limestone Cherokee Madison Clay Marion Cleburne Marshall Colbert Morgan Cullman Pickens De Kalb Randolph Etowah Saint Clair Fayette Shelby Franklin Talladega Jackson Tuscaloosa Jefferson Walker Lamar Winston Lauderdale Northwest Georgia Bartow Haralson Catoosa Murray Chattooga Paulding Dade Polk Floyd Walker Gordon Whitfield Middle Tennessee Bedford Lawrence Coffee Lincoln Franklin Moore Giles Wayne H San Joaquin/ Sacramento Valley California All Counties Except: Imperial San Diego Riverside San Bernadino I Virginia All Counties North Carolina All Counties South Carolina All Counties EXHIBIT G SCHEDULE OF PAYMENTS UNDER SUBSECTION 10.2(d) Date of D&PL'S Notice of Termination SYNGENTA'S Payment to D&PL Under Subsection 10.2(d) (in United States Dollars) From and after payment of initial installment of LICENSE PURCHASE PRICE due on EFFECTIVE DATE to payment of 2nd installment of LICENSE PURCHASE PRICE due on July 15, 2005: US$3,500,000 From and after payment of 2nd installment of LICENSE PURCHASE PRICE due on July 15, 2005, to payment of 3rd installment of LICENSE PURCHASE PRICE due on October 15, 2005: US$4,375,000 From and after payment of 3rd installment of LICENSE PURCHASE PRICE due on October 15, 2005, to payment of 4th installment of LICENSE PURCHASE PRICE due on July 15, 2006: US$5,250,000 From and after payment of 4th installment of LICENSE PURCHASE PRICE due on July 15, 2006, to payment of 5th installment of LICENSE PURCHASE PRICE due on October 15, 2006: US$6,125,000 From and after payment of 5th installment of LICENSE PURCHASE PRICE due on October 15, 2006: US$7,000,000 EXHIBIT H CERTAIN HERBICIDE TOLERANCE GENE(S) The HERBICIDE TOLERANCE GENE referred to in this clause shall be a HERBICIDE TOLERANCE GENE owned or controlled by MONSANTO. EXHIBIT I ****** EXHIBIT J PERFORMANCE REQUIREMENTS 2.1.9 The term "COMMITMENT DATE" shall mean the date that is forty-two (42) months after the EFFECTIVE DATE. 2.1.17 The term "D&PL PERFORMANCE REQUIREMENT" shall mean that, for any period of three (3) consecutive years in the period beginning from and after, and inclusive of, the year in which D&PL achieves the element of INSECT RESISTANCE MARKET PENETRATION set forth in Subsection 2.1.36(c), the arithmetic average of the annual percentages of UNITS of cottonseed sold by D&PL in the United States of America that contain a Cry1Ab GENE and/or a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE(S) out of the total number of UNITS of cottonseed sold by D&PL in the United States of America that contain any LEPIDOPTERAN-ACTIVE GENE is not less than forty-five percent (45%); provided that, in no one of such years, the percentage of UNITS of cottonseed that contain a Cry1Ab GENE and/or a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE(S) out of the total number of UNITS of cottonseed sold by D&PL in the United States of America that contain any LEPIDOPTERAN-ACTIVE GENE is less than forty percent (40%). 2.1.36 The term "INSECT RESISTANCE MARKET PENETRATION" means that each of the following milestones in Subparts (b) and (c) below will be achieved on the dates provided therein: (a) [Intentionally omitted] (b) D&PL shall have available an inventory of LICENSED COMMERCIAL SEED for sale in the United States of America which meets the warranties set forth in Section 11.2 of this LICENSE AGREEMENT and contains the Cry1Ab GENE stacked in combination with a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE and a HERBICIDE TOLERANCE GENE of not less than 300,000 UNITS by February 28 of the second calendar year after Date R2, and (c) Either (1) not less than forty percent (40%) of the UNITS of cottonseed containing a LEPIDOPTERAN-ACTIVE GENE sold by D&PL in the United States of America in the year ending December 31 of the fourth calendar year after Date R2 shall contain the Cry1Ab GENE and/or a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE(S) or (2) D&PL shall have available an inventory of LICENSED COMMERCIAL SEED for sale in the United States of America which meets the warranties set forth in Section 11.2 of this LICENSE AGREEMENT and contains the Cry1Ab GENE stacked in combination with a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE and a HERBICIDE TOLERANCE GENE of not less than 1,200,000 UNITS by February 28 of the fourth calendar year after Date R2; where, in the case of each of Subparts (b) and (c): (i) [Intentionally omitted] (ii) "Date R2" means (A) February 28 of the calendar year during which GOVERNMENT APPROVAL of both a Cry1Ab GENE EVENT and an event containing the NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE (other than a VIP3A GENE EVENT in the COT 100 Series) and, if required, the combination of that same Cry1Ab GENE EVENT and the NON-Cry1Ab SYNGENTA LEPIDOPTERAN ACTIVE GENE and a HERBICIDE TOLERANCE GENE, has been obtained in the United States of America on or before February 28 of that year or (B) if such GOVERNMENT APPROVAL is not obtained by February 28 of the year in which it is obtained, Date R2 shall mean February 28 of the calendar year following the year in which such GOVERNMENT APPROVAL is obtained; provided that Date R2 cannot be earlier than the later of (w) January 1, 2009, or (x) fifty-eight (58) months after SYNGENTA delivers to D&PL at a place in the United States of America designated by D&PL not less than twenty-five (25) viable cottonseed containing the Cry1Ab GENE embodied in the specific gene event with respect to which the GOVERNMENT APPROVAL described in Clause (A) of this Subpart (ii) is obtained, together with testing materials capable of accurately identifying the presence of such Cry1Ab GENE or (y) twenty-four (24) months after approval for seed increase of DELTAPINE Cry1Ab CULTIVARS containing that same Cry1Ab GENE EVENT stacked in combination with the NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE and a HERBICIDE TOLERANCE GENE is issued by the government of Costa Rica (or another country reasonably accepted by D&PL as an equivalent winter nursery country), which approval both by SYNGENTA and D&PL shall use commercially reasonable efforts to obtain at the earliest practical date and, with respect to SYNGENTA, in accordance with Subsection 3.6, or (z) twelve (12) months after issuance of all approvals necessary for increase and COMMERCIAL SALE, in the United States of America, of unlimited quantities of LICENSED COMMERCIAL SEED containing that same Cry1Ab GENE EVENT stacked in combination with the NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE EVENT and a HERBICIDE TOLERANCE GENE, which approvals both SYNGENTA and D&PL shall use commercially reasonable efforts to obtain at the earliest practical date and, with respect to SYNGENTA, in accordance with Subsection 3.6, and provided, further, that the twenty-four (24) months immediately preceding Date R2 and from Date R2 to the date stated in Subsection 2.1.36(b) and/or 2.1.36(c), as applicable, shall be extended by the period of time, if any, during such period D&PL is subject to a "BLOCKING ORDER" or any other outstanding order of any administrative agency or court of competent jurisdiction which is binding on SYNGENTA and/or D&PL and which enjoins or prohibits D&PL'S development and multiplication of LICENSED COMMERCIAL SEED of such DELTAPINE Cry1Ab CULTIVARS in the United States of America, which order is not stayed, vacated or overturned within ninety (90) days of its entry. Failure to achieve any milestone stated in Subsection 2.1.36(b) or (c) by the applicable date set forth above shall mean that INSECT RESISTANCE MARKET PENETRATION has not been achieved effective as of such date or year, as applicable, unless an extension of time is expressly granted by SYNGENTA to D&PL in writing. 2.1.37 The term "INSECT RESISTANCE MARKET PENETRATION COMMITMENT" means D&PL'S commitment by notice to SYNGENTA that D&PL will achieve INSECT RESISTANCE MARKET PENETRATION on the terms and conditions and by the dates specified in the definition thereof. 3.5 (c) The provisions of Subsection 3.5(a) notwithstanding, (i) SYNGENTA retains the right at its sole discretion to grant licenses to MONSANTO under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY to test, develop, produce, have produced, multiply, and sell in the United States of America (directly or through third party distributors and dealers by sublicense or otherwise) cottonseed containing the Cry1Ab GENE, alone or in combination with other GENE(S), in any germplasm and cotton cultivars. Such license granted to MONSANTO may also include, at SYNGENTA'S sole discretion, any rights that are also provided to D&PL under Subsections 3.1, 3.2 and/or 3.3. D&PL shall receive seventy percent (70%) of the NET TECHNOLOGY FEE REVENUE and other consideration received by SYNGENTA from such licensing to MONSANTO and SYNGENTA shall receive thirty percent (30%) thereof, provided that, SYNGENTA shall neither contract for nor accept non-monetary consideration from MONSANTO for licenses to the Cry1Ab GENE and/or any or all of the LICENSED PATENT RIGHTS for use in cotton, without D&PL's consent. Consideration received by SYNGENTA in any transaction or under any agreement with MONSANTO shall not be deemed to be non-monetary consideration from MONSANTO for licenses to the Cry1Ab GENE and/or LICENSED PATENT RIGHTS for use in cotton if (A) SYNGENTA certifies to D&PL in writing that the consideration was not in exchange, in whole or in part, for any grant to MONSANTO of a license(s) to the Cry1Ab GENE for use in cotton and/or any or all of the LICENSED PATENT RIGHTS for use in cotton with the Cry1Ab GENE, (B) the agreement or other documents executed in connection with the transaction do not recite or reflect that consideration has been or is being is given by MONSANTO for any license to the Cry1Ab GENE for use in cotton and/or any or all of the LICENSED PATENT RIGHTS for use in cotton with the Cry1Ab GENE, and (C) such transaction or agreement is not entered into nor does it become effective within a period beginning twelve (12) months before and ending twelve (12) months after the date on which SYNGENTA and MONSANTO have entered in any agreement pursuant to which SYNGENTA has granted or caused to be granted to MONSANTO and/or any party(ies) designated by MONSANTO any license (or option to license) to the Cry1Ab GENE for use in cotton and/or any or all of the LICENSED PATENT RIGHTS for use in cotton with the Cry1Ab GENE. The failure to follow or to meet the provisions set forth in the preceding sentence shall not be construed to mean that consideration received by SYNGENTA in any transaction or under any agreement with MONSANTO is necessarily non-monetary consideration from MONSANTO for licenses to the Cry1Ab GENE for use in cotton and/or any and all of the LICENSED PATENT RIGHTS for use in cotton with the Cry1Ab GENE. In the event that D&PL consents to SYNGENTA'S receiving non-monetary consideration from MONSANTO for a license(s) to the Cry1Ab GENE for use in cotton and/or related LICENSED PATENT RIGHTS for use in cotton with the Cry1Ab GENE, D&PL shall receive seventy percent (70%) of the fair market value of such non-monetary consideration and seventy percent (70%) of NET TECHNOLOGY FEE REVENUE on MONSANTO'S sales of LICENSED COMMERCIAL SEED (fair market value being measured as the value of such non-monetary consideration to SYNGENTA and net of the fair market value of any consideration paid by SYNGENTA to MONSANTO in exchange other than the license to the Cry1Ab GENE for use in cotton and/or any or all of the LICENSED PATENT RIGHTS for use in cotton with the Cry1Ab GENE). For marketing seasons after the occurrence of SYNGENTA'S licensing MONSANTO, as permitted under this Subsection 3.5(c)(i), so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED in a particular PRICING REGION in the United States of America, (1) all cotton growers purchasing or using LICENSED COMMERCIAL SEED in such PRICING REGION in the United States of America shall be required to pay a TECHNOLOGY FEE and (2) SYNGENTA shall establish TECHNOLOGY FEES for rights to use the Cry1Ab GENE embodied in LICENSED COMMERCIAL SEED sold by MONSANTO in accordance with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c), provided, however, that the procedures set forth in Subsection 6.1(d) shall not apply to establishing TECHNOLOGY FEES for rights to use the Cry1Ab GENE embodied in LICENSED COMMERCIAL SEED sold by MONSANTO. D&PL shall have the right to elect, at its option for each marketing season, whether cotton growers in each particular PRICING REGION in the United States of America purchasing or using LICENSED COMMERCIAL SEED sold by D&PL shall be required to pay (1) the TECHNOLOGY FEE established by SYNGENTA (as provided above) for cotton growers in that PRICING REGION purchasing or using LICENSED COMMERCIAL SEED sold by MONSANTO or (2) the TECHNOLOGY FEE established in accordance with Subsections 6.1(c) and 6.1(d) for cotton growers in that PRICING REGION purchasing or using LICENSED COMMERCIAL SEED sold by D&PL. SYNGENTA shall notify D&PL of such TECHNOLOGY FEES for each PRICING REGION in the United States of America applicable with respect to LICENSED COMMERCIAL SEED sold by MONSANTO not later than ten (10) business days after such TECHNOLOGY FEES are set for the next marketing season. D&PL shall notify SYNGENTA of its election within twenty (20) business days after the later of (1) the date on which D&PL receives SYNGENTA'S notice with respect to TECHNOLOGY FEE on MONSANTO'S sales of LICENSED COMMERCIAL SEED in that PRICING REGION or (2) the date on which the TECHNOLOGY FEE on D&PL'S sales of LICENSED COMMERCIAL SEED in that PRICING REGION is established under Subsection 6.1(d) for that PRICING REGION. (ii) In the event that (A) a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION occurs or (B) on or before the COMMITMENT DATE, D&PL does not give SYNGENTA notice that it commits to achieve the INSECT RESISTANCE MARKET PENETRATION COMMITMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE or (C) on or before the COMMITMENT DATE, D&PL gives SYNGENTA notice of the INSECT RESISTANCE MARKET PENETRATION COMMITMENT under this LICENSE AGREEMENT and under the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE but D&PL does not achieve such INSECT RESISTANCE MARKET PENETRATION under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE by any one or more of the deadline(s) applicable for achieving such INSECT RESISTANCE MARKET PENETRATION or (D) D&PL achieves such INSECT RESISTANCE MARKET PENETRATION by the applicable deadlines, but thereafter, does not maintain the D&PL PERFORMANCE REQUIREMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE or (E) SYNGENTA gives to notice to D&PL in accordance with Section 10.2(d), then SYNGENTA shall have the right to test, develop, produce, have produced, multiply, and sell cotton seed containing the Cry1Ab GENE, alone or in combination with other GENE(S), in any germplasm and cotton cultivars selected by SYNGENTA and to grant licenses under the LICENSED PATENT RIGHTS and SYNGENTA TECHNOLOGY to any third party to develop, produce, have produced, multiply, and sell cotton seed containing the Cry1Ab GENE in any germplasm that such third party has a right to use for such purpose (provided that SYNGENTA and any such third party shall not use for this purpose any DELTAPINE CULTIVAR or SUBLICENSEE CULTIVAR unless such cultivar is licensed to SYNGENTA or such third party for such purpose). For marketing seasons after the occurrence of any such event, so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED in a particular PRICING REGION in the United States of America, (1) all cotton growers purchasing LICENSED COMMERCIAL SEED in such PRICING REGION shall be required to pay a TECHNOLOGY FEE and (2) SYNGENTA shall establish the TECHNOLOGY FEES for rights to use the Cry1Ab GENE embodied in LICENSED COMMERCIAL SEED sold by SYNGENTA and/or by any third party in accordance with the principles for establishing TECHNOLOGY FEES set forth in Subsection 6.1(c), provided, however, that the procedures set forth in Subsection 6.1(d) shall not apply. D&PL shall have the right to elect, at its option for each marketing season, whether cotton growers in each particular PRICING REGION in the United States of America purchasing or using LICENSED COMMERCIAL SEED sold by D&PL shall be required to pay (1) the TECHNOLOGY FEE established by SYNGENTA for cotton growers in that PRICING REGION purchasing or using LICENSED COMMERCIAL SEED sold by SYNGENTA or sold by any of the other licensees from SYNGENTA or (2) the TECHNOLOGY FEE established in accordance with Subsections 6.1(c) and 6.1(d) for cotton growers in that PRICING REGION purchasing or using LICENSED COMMERCIAL SEED sold by D&PL. SYNGENTA shall notify D&PL of the TECHNOLOGY FEES for each PRICING REGION applicable with respect to LICENSED COMMERCIAL SEED sold by SYNGENTA and/or each other licensee from SYNGENTA not later than ten (10) business days after such TECHNOLOGY FEES are set for the next marketing season. D&PL shall notify SYNGENTA of its election with respect to a particular PRICING REGION within twenty (20) days after the later of (1) the date on which D&PL receives SYNGENTA'S notice with respect to such TECHNOLOGY FEES for that PRICING REGION or (2) the date on which the TECHNOLOGY FEE on D&PL'S sales of LICENSED COMMERCIAL SEED in that PRICING REGION is established under Subsection 6.1(d). With respect to any PRICING REGION outside the United States of America, so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED, all cotton growers purchasing or using cottonseed containing the Cry1Ab GENE whether sold by SYNGENTA or by any of the other licensees from SYNGENTA or by D&PL and its sublicensees shall be required to pay the TECHNOLOGY FEES for the subject PRICING REGION established in accordance with Subsections 6.1(c) and 6.1(d), provided that, in the event this procedure violates the local law in any particular country, TECHNOLOGY FEES in that country shall be established using the procedures provided in this paragraph with respect to the United States of America. After the occurrence of one or more of the events described in Subsections 3.5(c)(ii)(A), (B), (C) or (E), SYNGENTA shall retain one hundred percent (100%) of the NET TECHNOLOGY FEE REVENUE from SYNGENTA'S licensing of cotton growers to use the Cry1Ab GENE in cotton planting seed and/or NET TECHNOLOGY FEE REVENUE and/or other consideration received by SYNGENTA from licensing of third party seed companies to use the Cry1Ab GENE. After the occurrence of the event described in Subsection 3.5(c)(ii)(D), after deduction of any TECHNOLOGY FEES or other amounts due to or retained by SYNGENTA'S third party seed company licensees, D&PL shall receive fifty percent (50%) of the remaining NET TECHNOLOGY FEE REVENUE or other consideration received by SYNGENTA from the licensing of cotton growers to use Cry1Ab GENE in cotton planting seed and/or NET TECHNOLOGY FEE REVENUE and/or other consideration received by SYNGENTA from licensing of third party seed companies to use the Cry1Ab GENE and SYNGENTA shall retain fifty percent (50%). The reductions in D&PL'S share of NET TECHNOLOGY FEE REVENUE set forth in this paragraph of Subsection 3.5(c)(ii) (and, in cases where applicable, the provisions of Subsection 10.2) and the other terms and conditions set forth in this LICENSE AGREEMENT shall be SYNGENTA'S exclusive remedies in the event that any one or more of the events described in Subsection 3.5(c)(ii)(A), (B), (C), (D) or (E) occur, except for claims based on fraud, intentional misrepresentation or gross negligence by D&PL. 6.1 (c) Principles for Establishing TECHNOLOGY FEES. The TECHNOLOGY FEE and the COMPETITIVE TECHNOLOGY FEE ADJUSTMENTS for each Cry1Ab GENE EVENT for each PRICING REGION in which LICENSED COMMERCIAL SEED containing such Cry1Ab GENE EVENT is to be sold in the United States and for each country outside the United States in which LICENSED COMMERCIAL SEED containing such Cry1Ab GENE EVENT is to be sold will be based on the following principles: (i) The TECHNOLOGY FEE shall permit the subject Cry1Ab GENE EVENT to be marketed to cotton growers on a competitive basis with other technologies for control of LEPIDOPTERAN INSECTS then available to cotton farmers in the subject PRICING REGION (whether collected as a royalty, grower license fee, seed premium, or other mode of value capture). (ii) The TECHNOLOGY FEE should bear a reasonable relationship to the identifiable alternate insect control costs (such as the cost of insecticides, labor, equipment and fuel and/or alternative transgenic technologies) displaced by the use of the Cry1Ab GENE. (iii) The TECHNOLOGY FEE shall be set based on the value of the Cry1Ab GENE EVENT and not on the potential revenues from sales of seed, chemicals or other products or services. EXHIBIT K PROVISIONS RELATED TO MONSANTO ITEM 1 [from Subsection 2.1.1]: (b) until and unless a MONSANTO/D&PL 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 ITEM 2 [from Subsections 2.1.44 to 2.1.49]: 2.1.48 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. 2.1.49 The term "MONSANTO/D&PL CHANGE OF CONTROL TERMINATION PAYMENT" means an amount of money equal to the installments of the LICENSE PURCHASE PRICE due to become payable under the LICENSE ACQUISITION AGREEMENT over the period of eighteen (18) months from and after the event giving rise to the obligation of D&PL or its successor to make such MONSANTO/D&PL CHANGE OF CONTROL TERMINATION PAYMENT under Subsection 10.2(b)(ii) and an amount equal to 100% of the reasonable costs to which SYNGENTA is entitled to reimbursement pursuant to Subsection 4.3(h), Subparts (i) through (iv), that have been incurred or cannot reasonably be avoided as of the date of SYNGENTA'S receipt of D&PL'S notice under Subsection 10.2(b)(ii). 2.1.50 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 or transfer of substantially all the equity or assets of D&PL, by which MONSANTO acquires CONTROL of D&PL or acquires all or substantially all of D&PL's assets, or by which D&PL acquires CONTROL of MONSANTO or acquires all or substantially all of MONSANTO'S assets. 2.1.51 The term "MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION FEE" shall mean Fifty Million United States Dollars (US $50,000,000). 2.1.52 The term "MONSANTO/SYNGENTA 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 or transfer of all or substantially all the equity or assets of SYNGENTA by which MONSANTO acquires CONTROL of SYNGENTA or acquires all or substantially all of SYNGENTA's assets, or by which SYNGENTA acquires CONTROL of MONSANTO or acquires all or substantially all of MONSANTO's assets. 2.1.53 The term "MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION FEE" shall mean Fifty Million United States Dollars (US $50,000,000). ITEM 3 [from Subsection 3.4]: The foregoing notwithstanding, unless and until a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION occurs, D&PL shall not grant a sublicense to MONSANTO or an AFFILIATE of MONSANTO or any entity in which MONSANTO or an AFFILIATE of MONSANTO owns an equity interest. ITEM 4 [from Subsection 3.5 (b)]: as to licenses to MONSANTO as provided in Subsection 3.5(c)(i) ITEM 5 [from Subsection 3.6 (a)]: provided that D&PL shall not incorporate in LICENSED COMMERCIAL SEED any LEPIDOPTERAN-ACTIVE GENE events licensed to D&PL, directly or indirectly, by MONSANTO without SYNGENTA'S prior written consent (which consent shall not be withheld if SYNGENTA has licensed MONSANTO under Subsection 3.5(c)(i) and has permitted MONSANTO to stack the same LEPIDOPTERAN-ACTIVE GENE events with the Cry1Ab GENE). ITEM 6 [from Subsection 3.7 (e)]: MONSANTO ITEM 7 [from Subsection 4.3 (c)]: If SYNGENTA licenses MONSANTO under Section 3.5(c)(i) or if an event set forth in Subsection 3.5(c)(ii) occurs, the expenses of obtaining and maintaining such GOVERNMENT APPROVAL in the United States of America in each year beginning with the later of (i) the earlier of year in which SYNGENTA licenses MONSANTO under Section 3.5(c)(i) or the year in which the event set forth in Subsection 3.5(c)(ii) occurs or (ii) six and one half (6.5) years from the EFFECTIVE DATE, D&PL shall bear the amount of such expenses incurred in each twelve (12) month period ending August 31, determined by multiplying the total of such expenses in that period by a fraction the numerator of which is the aggregate amount of revenue received and retained by D&PL in the subject period from (a) TECHNOLOGY FEES on D&PL'S sales of LICENSED COMMERCIAL SEED in the United States of America and (b) TECHNOLOGY FEES on sales of LICENSED COMMERCIAL SEED by MONSANTO and/or SYNGENTA and/or other SYNGENTA licensees in the United States of America and the denominator of which is the aggregate amount of revenue received and retained by D&PL and SYNGENTA, collectively, from TECHNOLOGY FEES on all sales of LICENSED COMMERCIAL SEED in the United States of America in the subject period, and SYNGENTA shall bear the remainder of such expenses. ITEM 8 [from Subsection 6.1 (a)]: If SYNGENTA exercises its right to license MONSANTO under Subsection 3.5(c)(i) and/or its right to sell or to license third parties to sell LICENSED COMMERCIAL SEED in the event of occurrences described in Subsection 3.5(c)(ii), then (A) with respect to the United States of America, SYNGENTA shall determine the mode of collection of the TECHNOLOGY FEES for the right to use the Cry1Ab GENE in LICENSED COMMERCIAL SEED sold by MONSANTO or by SYNGENTA or its other licensees in its sole discretion, provided that so long as D&PL or its corporate successor is selling LICENSED COMMERCIAL SEED in the United States of America, SYNGENTA shall not change the mode of collection of TECHNOLOGY FEES for the right to use the Cry1Ab GENE in LICENSED COMMERCIAL SEED sold by D&PL or its sublicensees that was in place in each PRICING REGION in the United States of America on the date of the occurrence of the event giving rise to application of Subsection 3.5(c)(i) and/or Subsection 3.5(c)(ii) without written consent of D&PL, and provided, further, D&PL may at its sole discretion elect to adopt as the mode of collection of TECHNOLOGY FEES for the right to use the Cry1Ab GENE in LICENSED COMMERCIAL SEED sold by D&PL or its sublicensees to any mode of collection of TECHNOLOGY FEES in effect in the same PRICING REGION in the United States of America with respect to TECHNOLOGY FEES for the right to use the Cry1Ab GENE in seed sold by MONSANTO or by SYNGENTA or its other licensees, and (B) with respect to each country outside the United States of America, SYNGENTA shall not change the mode of collection of TECHNOLOGY FEES for rights to use the Cry1Ab GENE in LICENSED COMMERCIAL SEED sold by D&PL or its sublicensees that was in place in that country on the date of occurrence of the event giving rise to application of Subsection 3.5(c)(ii) without the written consent of D&PL and shall require the same mode of collection of TECHNOLOGY FEES for rights to use the Cry1Ab GENE in LICENSED COMMERCIAL SEED sold by SYNGENTA or its other licensees in the subject country, provided that, in the event this procedure violates the local law of a particular country, the mode of collection of TECHNOLOGY FEES in that country shall be determined as provided in this Subsection 6.1(a) with respect in the United States of America. ITEM 9 [from Subsection 6.1 (d)]: (provided that the procedure set out in this Subsection 6.1(d) shall not apply to establish the TECHNOLOGY FEE for use of the Cry1Ab GENE in LICENSED COMMERCIAL SEED sold by MONSANTO in the United States of America if SYNGENTA exercises its right to license MONSANTO under Subsection 3.5(c)(i) or to establishment of the TECHNOLOGY FEES for use of the Cry1Ab GENE in LICENSED COMMERCIAL SEED sold by SYNGENTA or by other licensees of SYNGENTA in the United States of America if SYNGENTA exercises its right to sell or to license third parties to sell LICENSED COMMERCIAL SEED in the event of occurrences described in Subsection 3.5(c)(ii) of this LICENSE AGREEMENT) ITEM 10 [from Subsection 11.2 (b)]: (b) As of the EFFECTIVE DATE, D&PL has the right under the Roundup Ready(R) Gene License and Seed Services Agreement among Monsanto Company, D&M Partners, and Delta and Pine Land Company, dated as of February 2, 1996, amended as of July 26, 1996, and December 8, 1999, and clarified as of January 2, 2000, and further amended as of March 26, 2003 (the "Roundup Ready(R) Gene License and Seed Services Agreement"), to insert the Cry1Ab GENE in DELTAPINE CULTIVARS embodying MONSANTO'S Roundup Ready(R) Gene and related MONSANTO technology, subject to the terms and conditions of the Roundup Ready(R) Gene License and Seed Services Agreement and specifically subject to the terms of Section 3.6(a) of said agreement, as amended on December 8, 1999. D&PL warrants that it will not stack any NON-SYNGENTA GENE in combination with a SYNGENTA GENE as to which D&PL does not have full right and authority from the owner or licensor of the NON-SYNGENTA GENE to so stack. ITEM 11 [from Subsection 14.2 (b)]: (b) In the event of a MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION, the following events shall occur: (i) SYNGENTA shall pay to D&PL the MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION FEE within thirty (30) days after closing of the MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION, provided that SYNGENTA or its successor shall be obligated to pay D&PL only one MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION FEE under this LICENSE AGREEMENT and/or any of the RELATED AGREEMENTS. (ii) D&PL shall have the option, exercised by notice given within thirty (30) days after the later of (x) the closing of a MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION or (y) the closing of any divestiture of SYNGENTA'S rights to the Cry1Ab GENE or other assets related to SYNGENTA'S performance of this LICENSE AGREEMENT or any of the RELATED AGREEMENTS, pursuant to agreement of SYNGENTA and MONSANTO and/or as required by regulatory authorities as a condition to closing of a MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION, either (A) to continue this LICENSE AGREEMENT in full force and effect under the same terms and conditions, provided that thereafter (1) D&PL shall be responsible for making all decisions previously made by the LICENSE MANAGEMENT COMMITTEE, which decision-making shall be exercised by D&PL in good faith and in a commercially reasonable manner, and (2) D&PL may assume responsibility at its expense for obtaining GOVERNMENT APPROVAL for Cry1Ab GENE EVENTS in the United States of America and for controlling defense of patent infringement claims and SYNGENTA and/or its successor will, upon request, provide commercially reasonable assistance to D&PL with obtaining such GOVERNMENT APPROVAL in the United States of America and with defense of patent infringement claims, and (3) neither SYNGENTA nor MONSANTO or their respective AFFILIATES will assert any claims under patents that are issued on (or that thereafter issue from any patent application pending on) the date of closing of the MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION to enjoin or restrict sale of LICENSED COMMERCIAL SEED by D&PL or its sublicensees, or (B) to terminate this LICENSE AGREEMENT, in which event SYNGENTA shall refund to D&PL, within thirty (30) days after receipt of D&PL'S notice of its exercise of this option, all of the LICENSE PURCHASE PRICE paid by D&PL and D&PL and/or its sublicensees shall have the right for a period of three (3) years from and after the date of termination to sell LICENSED COMMERCIAL SEED then in their possession or which they are then obligated by contract to take delivery. D&PL and SYNGENTA shall each receive the portions of NET TECHNOLOGY FEE REVENUE related to such sales of LICENSED COMMERCIAL SEED as provided in Section 6.2. EXHIBIT L TERMINATION 10.2 TERMINATION. (a) In the event that on or before the COMMITMENT DATE, D&PL does not give SYNGENTA notice that it commits to achieve the INSECT RESISTANCE MARKET PENETRATION COMMITMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE, (i) this LICENSE AGREEMENT shall terminate as of the COMMITMENT DATE (except with respect to any Cry1Ab GENE EVENT for which GOVERNMENT APPROVAL in the United States of America has been obtained as of the COMMITMENT DATE) and (ii) D&PL shall have no obligation to pay SYNGENTA further installments of the LICENSE PURCHASE PRICE with respect to this LICENSE AGREEMENT to become due after the COMMITMENT DATE and (iii) SYNGENTA shall pay D&PL within thirty (30) days after the COMMITMENT DATE the sum of Seven Million United States Dollars (US$7,000,000) with respect to this LICENSE AGREEMENT. In the event that on or before the COMMITMENT DATE, D&PL gives SYNGENTA notice of the INSECT RESISTANCE MARKET PENETRATION COMMITMENT under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE but D&PL does not achieve such INSECT RESISTANCE MARKET PENETRATION under this LICENSE AGREEMENT and/or under the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE by any one or more of the deadline(s) applicable for achieving such INSECT RESISTANCE MARKET PENETRATION, this LICENSE AGREEMENT shall terminate as of the date of applicable deadline which D&PL fails to achieve (except with respect to any Cry1Ab GENE EVENT for which GOVERNMENT APPROVAL in the United States of America has been obtained as of such date). If this LICENSE AGREEMENT terminates under this Subsection 10.2(a), SYNGENTA shall have the rights specified in Subsection 3.5(c)(ii) with respect to all Cry1Ab GENE EVENTS. (b) In the event of a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION, D&PL or its successor shall pay SYNGENTA the MONSANTO CHANGE OF CONTROL TRANSACTION FEE within thirty (30) days after the closing of the MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION, provided that D&PL or its successor shall be obligated to pay SYNGENTA only one MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION FEE under this LICENSE AGREEMENT and/or any of the RELATED AGREEMENTS. D&PL or its successor shall also within such thirty (30) days either (i) give notice to SYNGENTA that D&PL or its successor will continue to make the installment payments of the LICENSE PURCHASE PRICE to SYNGENTA provided for under Subsection 2.2 of the LICENSE PURCHASE AGREEMENT as the same become due and payable or (ii) pay SYNGENTA the MONSANTO/D&PL CHANGE OF CONTROL TERMINATION PAYMENT. In the event D&PL gives the notice provided for in Subsection 10.2(b)(i), this LICENSE AGREEMENT shall continue in full force and effect. In the event that D&PL does not give the notice provided for in Subsection 10.2(b)(i), this LICENSE AGREEMENT shall terminate (except with respect to any Cry1Ab GENE EVENT for which GOVERNMENT APPROVAL in the United States has been obtained as of the date of closing of a MONSANTO/D&PL CHANGE OF CONTROL TRANSACTION), and, upon payment of the MONSANTO/D&PL CHANGE OF CONTROL TERMINATION PAYMENT, D&PL shall have no further obligation to pay SYNGENTA further installments of the LICENSE PURCHASE PRICE. In addition, in the event of a MONSANTO/D&PL CHANGE OF CONTROL, SYNGENTA shall have the rights specified in Subsection 3.5(c)(ii) with respect to all Cry1Ab GENE EVENTS and SYNGENTA'S obligations under Section 12 of this LICENSE AGREEMENT shall no longer apply to then pending or subsequently asserted patent infringement claims. (c) SYNGENTA and D&PL may terminate this LICENSE AGREEMENT by mutual written agreement. (d) In the event that the Roundup Ready(R) Gene License and Seed Services Agreement (as described in Subsection 11.2(b)), as the same may be amended from time to time in accordance with its terms, should cease to be in effect for a continuous period of six (6) months or longer or shall cease to contain provisions permitting D&PL to insert the Cry1Ab GENE in DELTAPINE CULTIVARS embodying a MONSANTO Roundup Ready(R) Gene (as defined in the Roundup Ready(R) Gene License and Seed Services Agreement including the "First Roundup Ready(R) Gene" and "Subsequent Roundup Ready(R) Gene" as defined therein), as a result of agreement between MONSANTO and D&PL or as a result of a written order or award by court or arbitration panel that is effective and binding on D&PL, and such agreement, order or award is not stayed, lifted or vacated and/or D&PL has not entered into an agreement with MONSANTO or its successor and/or assigns for reinstatement, novation or replacement of the Roundup Ready(R) Gene License and Seed Services Agreement, containing provisions permitting D&PL to insert the Cry1Ab GENE in DELTAPINE CULTIVARS embodying MONSANTO'S Roundup Ready(R) Gene, SYNGENTA shall have the right, exercisable by written notice delivered to D&PL within sixty (60) days after the end of such six (6) month period, to elect to have the provisions of Section 3.5(c)(ii) apply. If SYNGENTA delivers such notice, SYNGENTA must deliver the same notice as to the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE if no event under Section 3.5(c)(ii) thereof has then occurred with respect to such RELATED AGREEMENT. In the event that SYNGENTA delivers a notice as described in the preceding sentence, D&PL shall have the right, exercisable by written notice delivered to SYNGENTA within sixty (60) days after receipt of such notice from SYNGENTA, to elect that (i) this LICENSE AGREEMENT shall terminate (except with respect to any Cry1Ab GENE EVENT for which GOVERNMENT APPROVAL in the United States of America has been obtained as of the date of D&PL'S notice) and (ii) D&PL shall have no obligations to pay SYNGENTA further installments of the LICENSE PURCHASE PRICE with respect to this LICENSE AGREEMENT and (iii) SYNGENTA shall pay D&PL, within thirty (30) days after the receipt of D&PL'S notice, an amount as set forth in the schedule attached as Exhibit G. If SYNGENTA delivers such notice, D&PL must deliver the same notice as to the RELATED AGREEMENT for the license of a NON-Cry1Ab SYNGENTA LEPIDOPTERAN-ACTIVE GENE if no event under Section 3.5(c)(ii) thereof has then occurred with respect to such RELATED AGREEMENT. If this LICENSE AGREEMENT terminates under this Subsection 10.2(d), SYNGENTA shall have the rights specified in Subsection 3.5(c)(ii) with respect to all Cry1Ab GENE EVENTS. Provided that anything in this LICENSE AGREEMENT notwithstanding, Subsection 10.2(d) shall not apply (a) in the event that the Roundup Ready(R) Gene License and Seed Services Agreement should cease to be in effect due to the expiration of the Licensed Patent Rights (as defined therein) and such expiration does not adversely affect D&PL'S right to insert the Cry1Ab GENE in DELTAPINE CULTIVARS embodying MONSANTO'S Roundup Ready(R) Gene and/or (b) in the event that, as of the time the Roundup Ready(R) Gene License and Seed Services Agreement should cease to be in effect or shall cease to contain provisions permitting D&PL to insert the Cry1Ab GENE in DELTAPINE CULTIVARS embodying MONSANTO'S Roundup Ready(R) Gene, D&PL has commenced COMMERCIAL SALE in the United States of America of DELTAPINE Cry1Ab CULTIVARS containing a HERBICIDE TOLERANCE GENE reasonably acceptable to SYNGENTA based on a good faith evaluation by SYNGENTA of such HERBICIDE TOLERANCE GENE, based on factors relating to HERBICIDE TOLERANCE GENE(S) and glyphosate-based herbicide(s). 10.5 EFFECT OF TERMINATION. In the event that, upon termination of this LICENSE AGREEMENT, D&PL retains rights to the Cry1Ab GENE EVENT(S) for which GOVERNMENT APPROVAL in the United States of America has then been obtained, SYNGENTA'S and D&PL'S respective rights and obligations with respect to such Cry1Ab GENE EVENT(S) for which GOVERNMENT APPROVAL in the United States of America has then been obtained shall continue on the same terms and conditions set forth herein, provided that, in cases where D&PL'S obligation to pay further installments of the LICENSE PURCHASE PRICE has terminated, SYNGENTA and D&PL shall share any costs of maintenance of government approvals and clearances with respect to Cry1Ab GENE EVENT(S) for which D&PL'S LICENSES survive in accordance with the formula for sharing of such expenses set forth in Subsections 4.3(c) and 4.3(d) based on TECHNOLOGY FEES from COMMERCIAL SALES of LICENSED COMMERCIAL SEED containing the subject Cry1Ab GENE EVENT(S) by D&PL and its sublicensees and by SYNGENTA and its licensees in each relevant country in the most recent twelve (12) month period ending August 31, provided that, if there are no such COMMERCIAL SALES in a particular country, such costs shall be borne equally by SYNGENTA and D&PL. In the event this LICENSE AGREEMENT is terminated pursuant to Subsections 10.2, 10.3, 10.4, or 14.2(b)(ii)(B), D&PL shall lose the rights and LICENSES granted to it pursuant to this LICENSE AGREEMENT including (except as provided in Subsections 10.2(a), (b) and (d) and this Subsection 10.5) losing the right to receive any portion of the NET TECHNOLOGY FEES on any LICENSED COMMERCIAL SEED, provided that if this LICENSE AGREEMENT is terminated pursuant to Subsections 10.3 or 10.4 by D&PL on account of a breach or default by SYNGENTA or pursuant to 10.2(c) by mutual agreement of D&PL and SYNGENTA or pursuant to Subsection 14.2(b)(ii)(B) upon a MONSANTO/SYNGENTA CHANGE OF CONTROL TRANSACTION, D&PL and/or its sublicensees shall have the right for a period of three (3) years from and after the date of termination to sell LICENSED COMMERCIAL SEED then in their possession or which they are then obligated by contract to take delivery. D&PL and SYNGENTA shall each receive the portions of NET TECHNOLOGY FEE REVENUE related to such sales of LICENSED COMMERCIAL SEED as provided in Subsection 6.2. EXHIBIT M ****** -----END PRIVACY-ENHANCED MESSAGE-----