Exhibit 10.11
LONG TERM FUNDED RESEARCH AGREEMENT
This LONG TERM FUNDED RESEARCH AGREEMENT ("Agreement") is effective as of
the 1st day of January, 1997, and is by and between DNA PLANT TECHNOLOGY
CORPORATION ("DNAP"), a corporation duly organized and existing under the laws
of the State of Delaware, and SEMINIS VEGETABLE SEEDS, INC., a corporation
organized under the laws of the State of California ("SEMINIS")
WITNESSETH
WHEREAS, DNAP has expertise, personnel, facilities, equipment, technology
and intellectual property useful in the development of improved plants using
biotechnological techniques; and
WHEREAS, SEMINIS is, among other things, a leading developer and marketer
of improved varieties of fruits, vegetables and agronomic crops; and
WHEREAS, the parties desire to enter a long term relationship whereby the
parties will consult with each other regarding utilization of biotechnology in
the seed industry and SEMINIS will fund research and development projects to be
conducted by DNAP;
NOW, THEREFORE, the parties hereto agree as follows:
Article I. Definitions
For the purposes of this Agreement, the following terms shall have
the following meanings:
1.1 "DNAP" means DNA Plant Technology Corporation, a Delaware
Corporation, and its Affiliates.
1.2 "SEMINIS" means Seminis Vegetable Seeds, Inc., a California
corporation and its subsidiaries and/or its Affiliates.
1.3 "Affiliates" means, with respect to a particular party, persons
or entities controlling, controlled by or under common control with the party,
as well as any majority owned entities of the party and of its other affiliates.
Control shall mean the right to control or actual control of management of such
other entity, whether by ownership of voting securities, by agreement or
otherwise.
1.4 "Research Program" means the research and development program
described in Article II of this Agreement, and includes Projects.
1.5 "Funded Intellectual Property" or "Funded IP" means inventions,
discoveries, know-how, trade secrets, confidential information, biomaterials,
patents, plant variety protection act rights, breeders' rights, or other
intellectual or industrial property on a worldwide basis arising our of or
developed in the course of the Research Program or any Project.
1.6 "Project" means a particular research or development project to
be carried out by DNAP for SEMINIS as approved and accepted by the parties
pursuant to paragraph 2.2 of this Agreement.
1.7 "DNAP Intellectual Property" or "DNAP IP" shall mean the
intellectual property (including, but not limited to, know-how, trade secrets,
confidential information, biomaterials, patents, plant variety protection
rights, breeders' rights, and rights under licenses) owned in whole or in part,
controlled or licensable by DNAP from time to time.
1.8 "SEMINIS Intellectual Property" or "SEMINIS IP" means the
intellectual property (including, but not limited to, know-how, trade secrets,
confidential information, biomaterials, patents, plant variety protection
rights, breeders' rights, and rights under licenses) owned in whole or in part,
controlled or licensable by SEMINIS from time to time.
1.9 "Product" means any product or process which incorporates DNAP
IP, SEMINIS IP, or Funded IP.
1.10 "Field" means, for a given Project, crops which are being sold
or developed by SEMINIS at the time the Project is agreed to or renewed.
1.11 "Value Added" means the increase in the value of a Product
resulting from a Project.
1.12 "Net Sales" means the revenue received by DNAP and its
Affiliates or SEMINIS and its Affiliates on the sales of Products, after
deduction of the following items provided and to the extent such items are
actually incurred and do not exceed reasonable and customary amounts in the
market in which such sale occurred: (i) trade, quantity and cash discounts and
rebates; (ii) credits or allowance given or made for rejection or return of
previously sold Products; (iii) any tax or government charge levied on the sale
other than an income tax or value added tax; (iv) any charges for freight or
insurance; (v) all bona fide distributor commissions paid by DNAP and its
Affiliates or SEMINIS and its Affiliates in connection with the sales of
Products.
1.13 "Fiscal Year" means each twelve (12) month period beginning on
the 1st of October.
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1.14 "DNAP Developed Intellectual Property" or "DNAP Developed IP"
shall mean inventions, discoveries, know-how, trade secrets, confidential
information, biomaterials, patents, plant variety protection rights, breeder's
rights, or other intellectual or industrial property on a worldwide basis
arising out of or developed by DNAP as a result of its research with the Funded
IP within the Field and where such research is outside the Research Program and
not otherwise funded by SEMINIS.
1.15 "Added Value" shall mean the increase in value of a product
resulting from DNAP Developed IP.
Article II. Research Program
2.1 The Research Program
Pursuant to the terms and conditions set forth in this
Agreement, DNAP shall carry out Projects for SEMINIS. The Research Program shall
have a ten (10) -year term, commencing with the date of this Agreement.
2.2 Research Projects
a. Projects. During the term of the Agreement, the parties
will discuss potential Projects. Either party may propose such Projects. SEMINIS
shall approve all Projects and Project Plans as set forth in paragraph 2.2b of
this Agreement. DNAP shall not unreasonably refuse to agree to the terms of the
Project Plan for any Project proposed by SEMINIS, including any confidentiality
restrictions regarding the subject matter and scope of a Project.
b. Project Plan. Each such Project shall have a Project Plan,
which requires the approval of SEMINIS and shall include: (i) the goals of the
Project, (ii) the research plan, including benchmarks to be used in judging the
Project's progress and timeliness therefor, (iii) a budget and payment schedule,
(iv) a listing prepared by DNAP of the DNAP IP to be used in the Project, (v) a
listing prepared by SEMINIS of the SEMINIS IP is to be used in the Project, (vi)
the identification of the members of the Research Management Team for such
Project and (vii) such other information as SEMINIS may request. Any
modification of the Research Plan shall require the approval of SEMINIS.
c. Research Management Team. A Research Management Team
comprised of an appropriate number of DNAP and SEMINIS employees, which may from
time to time be equal, will be established. The Research Management Team will be
responsible for creating the Project Plan, evaluating the research and
activities on Projects under the Project Plan, and reviewing the progress of the
Projects under the Project Plan.
d. Project Termination. SEMINIS may terminate any Project at
any time for any reason, upon payment of Project costs prior to the date of
termination. Upon
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termination of a Project, any unused budgeted funds for the Project shall be
applied to a future Project to fulfill SEMINIS minimum project funding
requirements under Paragraph 3.2.
2.3 Records and Reports
DNAP shall keep complete and accurate records of the research
conducted pursuant to each Project. Such records shall be made available to
SEMINIS to inspect upon prior written notice to DNAP and during normal business
hours during the term of this Agreement. DNAP shall also provide SEMINIS with
written reports on the progress of each Project, on a quarterly basis or more
often if requested by SEMINIS. The reports shall contain: (a) the progress of
the Project in relation to the timelines established in the Project Plan; (b)
the problems encountered to date with the Project and proposed solutions; (c)
costs incurred to date on the Project and their relationship to the budget; (d)
a description of all Funded IP, germplasm, improvements or other technology
developed to date, and (e) any such other information as SEMINIS may request.
2.4 Oversight
SEMINIS shall have the right to oversee each Project,
including access to the DNAP employees and facilities being utilized in the
Project during normal business hours.
2.5 License to Existing IP
a. License. Subject to royalty payments in accordance with
Paragraph 4.2 e(iv), SEMINIS shall have a worldwide non-exclusive license under
this Agreement with respect to DNAP IP solely to the extent necessary or
reasonably appropriate for SEMINIS to commercialize the Funded IP, including the
right to make, have made, use, offer for sale and sell any Product resulting
from a Project.
b. Exclusivity.
DNAP agrees that it will not undertake to perform for a
third party a research and development program directed to the same gene/Plant
Family combination as any Project without the prior written consent of SEMINIS.
2.6 License to SEMINIS IP
a. License. If SEMINIS IP is utilized in a Project and
incorporated in Funded IP, DNAP shall have a royalty bearing non-exclusive
license under this Agreement with respect to SEMINIS IP solely to the extent
necessary or reasonably appropriate for DNAP to exercise its rights with respect
to the Funded IP pursuant to Section 4.2.
b. Royalty.
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(i) DNAP shall pay a royalty to SEMINIS for Products
sold by DNAP which incorporate SEMINIS IP. The royalty shall be at standard
industry rates, with the specific amount to be negotiated as Projects are
identified. Each party shall execute a formal license containing the customary
terms with respect to DNAP's and SEMINIS' rights and obligations under this
Section 2.6.
(ii) With each royalty payment, DNAP will provide to
SEMINIS a written royalty statement verified by the President or Chief Financial
Officer of DNAP, setting forth the total sales identified by Product designation
or other basis upon which royalties are calculated during the period covered by
the statement. SEMINIS shall have the right once per year to designate an
independent certified public accountant to inspect DNAP's books and records
relating to the basis upon which royalties are calculated.
2.7 Consultation. The parties specifically understand that the
modification of phenotypic traits through biotechnology and genetic engineering
is of potential significant competitive importance to the industry. The parties
shall work closely together to create and define appropriate Projects. DNAP will
use its best efforts to continually apprise SEMINIS of scientific developments
relating to SEMINIS' products.
Article III. Research Program Funding
3.1 Payment by SEMINIS
SEMINIS shall pay DNAP in accordance with the payment schedule
established for each Project in the Project Plan, provided that if DNAP fails to
provide the resources it is committed to provide to a Project, then, in addition
to its other remedies provided for herein, such payments shall be equitably
adjusted.
3.2 Minimum Project Funding
SEMINIS and DNAP shall undertake Projects with payment
schedules chat will generate payments to DNAP of at least $7,500,000 each three
years, up to a maximum of $25,000,000 during the ten-year period beginning on
the effective date hereof, with the understanding that if the minimum payments
made by SEMINIS in any year exceed the amounts due and payable for research
services provided by DNAP hereunder, then such excess shall be credited towards
future services provided by DNAP in future years but shall not reduce SEMINIS'
obligation to continue minimum funding. Unless otherwise agreed by the parties,
minimum funding of $625,000 shall be paid to DNAP at the beginning of each
calendar quarter during the term of this Agreement until the maximum of
$25,000,000 has been reached.
3.3 Payment Level
Unless otherwise agreed in the Project Plan, SEMINIS shall pay
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DNAP all of DNAP's direct costs (including direct R&D overhead) plus an industry
standard operating margin, but in no event more than 200% of DNA-P's modified
direct costs, as customarily computed by DNAP to include only salaries,
benefits, supplies and travel for Project personnel.
Article IV. Rights to Results of Research Program
4.1 Ownership Rights
Subject to paragraph 4.2, SEMINIS will own the entire right,
title and interest in all Funded IP, as well as other inventions, discoveries,
germplasm, improvements or other technology, arising out of each Project and the
Research Program, whether or not patentable, together with all patent
applications or patents based thereon, regardless of whether the Funded IP are
made by employees of SEMINIS or employees of DNAP. SEMINIS shall have the right
to file, prosecute and maintain patent applications for all Funded IP at
SEMINIS' expense. DNAP will promptly disclose to SEMINIS in writing the
conception and the reduction to practice of Funded IP. DNAP hereby represents
and agrees that all employees and other persons acting on its behalf in
performing its obligations under this Agreement will be obligated under a
binding written agreement or applicable law to assign to SEMINIS, as directed,
all Funded IP made or developed by such employee or other person. DNAP agrees to
make available to SEMINIS or to SEMINIS' authorized attorneys, agents or
representatives, at DNAP's expense, DNAP employees as necessary or appropriate
to enable SEMINIS to file, prosecute and maintain patent applications and
resulting patents with respect to all Funded IP, for a period of time sufficient
for SEMINIS to obtain the assistance it needs from such personnel. DNAP also
agrees to cause its employees to cooperate with SEMINIS by executing any
documents that SEMINIS may request in connection with the filing, prosecution or
maintenance of patent applications and resulting patents involving the Funded
IP.
4.2 License Rights to Funded IP and Developed IP
a. DNAP's License Rights to Funded IP for Research Purposes
and For Development of Products Outside the Field. Unless otherwise agreed in a
Project Plan for Projects, SEMINIS hereby grants to DNAP (i) a royalty-free
non-exclusive license, with no rights to grant sublicenses, to use the Funded IP
for research purposes within the Field and outside a Project, and (ii) a royalty
bearing, sole license (subject to SEMINIS' retained rights to use the Developed
IP outside the Field), with rights to grant sublicenses, to use the Funded IP
outside the Field for any purpose, including the right to import, make, have
made, use, offer for sale and sell throughout the world Products outside the
Field.
b. Royalty Payable by DNAP. DNAP shall pay a royalty to
SEMINIS for any Products sold by DNAP outside the field containing the Funded IP
pursuant to Section 4.2a of this Agreement. The royalty shall be a royalty of 3%
of Net Sales, based on sales of seed or starter plants, for Products where the
contribution of the Funded IP to the Product is a patentable advance which
enables efficacy and which has not been independently made by DNAP
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in a DNAP-funded program. With each royalty payment, DNAP will provide to
SEMINIS a written royalty statement verified by the President or Chief Financial
Officer of DNAP, setting forth the total sales identified by Product designation
or other basis upon which royalties are calculated during the period covered by
the statement. SEMINIS shall have the right once per year to designate and
independent certified public accountant to inspect DNAP's books and records
relating to the basis upon which royalties are calculated.
c. DNAP's License Rights to Funded IP in the Field. If agreed
to in a Project Plan, DNAP shall have an option to acquire an exclusive license,
with no right to grant sublicenses, solely to import, make, have made, use,
offer for sale and sell throughout the world Products containing the Funded IP
inside the Field ("License"). The License granted to DNAP shall be for a period
of three (3) years from the date DNAP exercises the option. This exclusive
License shall be renewable for one (1) year terms upon the written agreement of
SEMINIS. Rights under this Paragraph 4.2c become non-exclusive after any
exclusive period.
d. Value Added. As consideration for the license granted to
DNAP under Paragraph 4.2c of this Agreement, DNAP shall pay SEMINIS, on a yearly
basis, fifty percent (50%) of the Value Added based upon the Net Sales by DNAP
of each Product in the Field, provided that, DNAP shall have most favored
nations status subsequent to DNAP's exclusivity period. If subsequent to DNAP's
exclusivity period SEMINIS grants a third party a license to the Funded IP in
the Field with terms which provide for the third party to pay SEMINIS either (i)
less than 50% of the Value Added or (ii) compensation based on a formula other
than a share of Value Added, hereinafter referred to as "Compensation
Arrangement", SEMINIS shall, within thirty (30) days, inform DNAP of the same in
writing and provide DNAP with the opportunity to convert the compensation
arrangement between SEMINIS and DNAP under this Paragraph 4.2 (d) to the more
favorable Compensation Arrangement between SEMINIS and the third party, with
such conversion being effective as of the effective date of the agreement
between SEMINIS and the third party. In the event that DNAP does not accept the
more favorable Compensation Arrangement within thirty (30) days after it
receives notice from SEMINIS, DNAP's option to substitute the different
Compensation Arrangement shall be deemed forever waived. The sums due hereunder
shall be payable in U.S. currency within forty-five (45) days after the end of
each Fiscal year. With each payment, DNAP will provide to SEMINIS a written
statement verified by product designation or other basis upon which the Value
Added is calculated during the year. SEMINIS shall have the right once per year,
at SEMINIS' expense, to designate an independent certified public accountant to
inspect DNAP's books and records relating to the calculation of the Value Added
due herewith.
e. DNAP Developed IP. DNAP shall own the entire right, title
and interest in all DNAP Developed IP, as well as all other inventions,
discoveries, germplasm, improvements, or other technology arising out of DNAP's
research with the Funded IP within the Field and outside a Project, whether or
not patentable. DNAP shall have the right to file, prosecute and maintain patent
applications for all Intellectual property at DNAP's expense.
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(i). License to Funded IP. DNAP shall have a worldwide
non-exclusive license under this Agreement, with no rights to grant sublicenses,
with respect to the Funded IP solely to the extent necessary for DNAP to
commercialize the DNAP Developed IP, including the right to import, make, have
made, use, offer for sale, and sell any product containing DNAP Developed IP.
(ii). Value Added. As consideration for the license
granted to DNAP under Paragraph 4.2e(i) of this Agreement, DNAP shall pay
SEMINIS, a royalty of 3% of Net Sales by DNAP of each Product in the Field
containing DNAP Developed IP. The sums due hereunder shall be payable in U.S.
currency within forty-five (45) days after the end of each Fiscal year. With
each payment, DNAP will provide to SEMINIS a written statement verified by
product designation or other basis upon which the Value Added is calculated
during the year. SEMINIS shall have the right once per year, at SEMINIS'
expense, to designate an independent certified public accountant to inspect
DNAP's books and records relating to the calculation of the Value Added due
herewith.
(iii). License to SEMINIS of DNAP Developed IP. If DNAP
does not commercialize the DNAP Developed IP or discontinues commercialization
of the DNAP Developed IP pursuant to paragraph 4.2e(i) of this Agreement, DNAP
shall grant SEMINIS a worldwide non-exclusive license under the Agreement to the
DNAP Developed IP, to import, make, have made, use, offer for sale, and sell any
seed product in the Field containing the DNAP Developed IP.
(iv.) Royalty. As consideration for the license rights
granted to SEMINIS under Paragraph 2.5(a) and 4.2(iii) of this Agreement,
SEMINIS shall pay DNAP, a royalty as follows for Products which SEMINIS has the
right to commercialize under this Agreement:
1. A royalty of 0% of Net Sales for a Product, where the contribution of the
Funded IP, DNAP IP or DNAP Developed IP to the Product is purely
analytical, for example, where DNAP is carrying out biochemical or
molecular biological characterization of existing material, such as
characterization of pea starch mutants.
2. A royalty of 1% of Net Sales for a Product which contains or is made using
Funded IP, DNAP IP or DNAP Developed IP, where the contribution of the
Funded IP, DNAP IP or DNAP Developed IP to the Product is not the basis of
the efficacy of the Product, for example, a Product containing- a
35S-driven Bt gene in a DNAP vector.
3. A royalty of 2% of Net Sales for a Product which contains or is made using
Funded IP, where the contribution of the Funded IP to the Product is a
patentable advance to enable efficacy.
4. A royalty of 3% of Net Sales for a Product which contains or is made using
DNAP IP or DNAP Developed IP where the contribution of the DNAP IP or DNAP
Developed IP to the
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Product is the basis of the efficacy of the Product, including
contributions in the form of promoters, gene suppression technology or
genes.
The sums due hereunder shall be payable in U.S. currency within forty-five (45)
days after the end of each Fiscal year. With each payment, SEMINIS will provide
to DNAP a written statement verified by product designation or other basis upon
which the Royalty is calculated during the year. DNAP shall have the right once
per year, at DNAP's expense, to designate an independent certified public
accountant to inspect SEMINIS' books and records relating to the calculation of
the Royalty due herewith.
f. Further Assurances. Each party shall execute a formal
license containing the customary terms with respect to DNAP's and SEMINIS'
rights and obligations under this Section 4.2.
4.3 Notice of Patents Affecting Commercialization Rights
During the term of the Research Program, DNAP shall use all
reasonable efforts to inform SEMINIS of:
(a) any patent owned by or patent application filed by a
third party of which DNAP is aware which claims a technology that DNAP is
considering for use in a Project, and that requires or may require one or both
of the parties to license rights thereunder in order to commercialize the
results of the Project; and
(b) any possible alternative to such a patented
technology of which DNAP is aware. In each such instance where DNAP is aware of
an alternative technology, the parties shall consider and discuss the
feasibility of using the alternative technology in place of the patented
technology.
Article V. Confidentiality
5.1 Confidentiality
All information supplied by one party to the other concerning the
Research Program, a Project, Project Plan, Developed Intellectual Property, DNAP
Intellectual Property, SEMINIS Intellectual Property, Products and any
biomaterials supplied by one party to the other shall be considered confidential
("Confidential Information"). The Confidential Information shall be utilized
only pursuant to this Agreement. During the term of this Agreement and for a
period of five (5) years thereafter, neither party shall disclose to any third
party any Confidential Information of the other Party without the specific
written consent of such party.
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5.2 Exceptions
The duties of confidentiality, provided by paragraph 5.l(a) above
shall not apply to information received by one party ("Receiving Party") from
the other party ("Disclosing Party") if the information:
(a) is public information at the time of disclosure by the
Disclosing Party to the Receiving Party;
(b) subsequently becomes public information other than by act
or omission of the Receiving Party;
(c) is already in the lawful possession of the Receiving
Party, as can reasonably be demonstrated by documentary evidence from the
Receiving Party, at the time of the first disclosure by the Disclosing Party to
the Receiving Party;
(d) is independently developed by employees of the Receiving
Party who did not have access to the information; or
(e) is required by law to be disclosed to a governmental
agency.
Article VI. Event of Default/Remedies/Other Termination Rights
6.1 Event of Default
It shall be an Event of Default hereunder if either party (i) fails
to pay any sums payable pursuant to this Agreement as and when they are due; or
(ii) materially breaches this Agreement.
6.2 Termination
The non-defaulting party shall have the right to terminate this
Agreement upon the occurrence of an Event of Default unless (i) the Event of
Default is cured within thirty (30) days after written notice thereof, or (ii)
the Event of Default is remediable but is not reasonably susceptible to cure
within such thirty (30) day period, then within such period of time as may be
required to cure the same if the defaulting party promptly commences to cure
such Event of Default within such thirty (30) day period and diligently
prosecutes such cure to completion as soon as is reasonably practicable; or
(iii) if such Event of Default is not one that can be remedied, the defaulting
party shall have taken reasonable steps within such thirty (30) day period to
prevent a recurrence of such breach; provided, however, that if such Event of
Default that cannot be remedied recurs in the same calendar year, the
nondefaulting party may, at its
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option, terminate this Agreement immediately upon the recurrency by written
notice to the other party. SEMINIS shall have the right to terminate this
Agreement if there is a change in control of DNAP. For the purposes, "change in
control of DNAP" shall mean that DNAP ceases to be greater than 50% owned,
directly or indirectly, or otherwise controlled by ELM or by an existing or
future ELM Affiliate. Each party's rights to Developed IP shall survive any
termination pursuant to this Agreement.
6.3 Other Remedies
In addition to all other remedies specified in Article 6, the
non-defaulting party shall have the right to pursue any and all available legal
or equitable remedies for the breach.
6.4 No Consequential Damages
In no event will either party be liable to the other or any
third party for any indirect, incidental or consequential damages with respect
to the performance or non-performance of this Agreement, whether arising out of
breach of warranty, breach of contract, tort (including negligence), strict
products liability or otherwise, even if advised of the possibility of such
damage or if such damage could have been reasonably foreseen, except only in
case of personal injury where applicable law requires such liability.
Article VII. Miscellaneous
7.1 Notices
All notices, demands, requests, and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been given when received by DNAP or SEMINIS, as the case may be, at the
following address, or such other address as DNAP or SEMINIS may from time to
time designate by written notice to the other as herein required:
SEMINIS VEGETABLE SEEDS
00000 Xxxxx Xxxxxxx 00
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President Research
DNA PLANT TECHNOLOGY CORPORATION
0000 Xxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Vice President, Business Development with
a copy to DNAP Legal Department at same
address
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7.2 Choice of Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of California, United States of America,
without giving effect to conflict of law principles.
7.3 Severability
In the event that any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable because it is invalid or in
conflict with any law of any, relevant jurisdiction, the validity of the
remaining provisions shall not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement did not contain
the particular provision held to be unenforceable, and any provision that is
held not to be enforceable in shall nevertheless be enforceable to the full
extent permitted by law.
7.4 Amendments
No Amendment or modification of this Agreement shall be valid
or binding unless in writing signed by the parties.
7.5 Assignment
Neither party may assign this Agreement without the prior
written consent of the other except to an Affiliate or to an entity acquiring
the party or all of the party's business in the subject area.
7.6 Arbitration
(a) The parties hereby undertake to use good faith efforts to
settle all disputes arising under this Agreement. Failing settlement, all
disputes, including without limitation, claims of breach of contract, fraud in
the inducement and negligence shall be referred to binding arbitration in
Dallas, Texas, if arbitration is initiated by DNAP, or in San Francisco,
California, if the arbitration is initiated by SEMINIS, in accordance with the
Commercial Rules of Arbitration of the American Arbitration Association.
(b) It within seven (7) days after receipt by one party of the
other party's notice of intention to arbitrate, the parties are unable to agree
on a single arbitrator, each party shall have seven (7) days to appoint its own
arbitrator from a list selected by the American Arbitration Association, and the
arbitrators thus chosen shall together, within seven (7) days of their
appointment, appoint a third arbitrator from the list selected by the American
Arbitration Association. If either party fails to appoint its own arbitrator
within the specified period, the arbitrator appointed by the other party shall
be the sole arbitrator. if both parties fail to appoint arbitrators within the
specified period, or if the arbitrators appointed by the parties fail to
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appoint a third arbitrator within the specified period, the American Arbitration
Association shall make the appointment. The parties shall use their best efforts
to appoint arbitrators who are knowledgeable in the biotechnology industry. The
decision of the arbitrator(s) shall be final and may be enforced in any court of
competent jurisdiction. The prevailing party in any proceeding shall be
reimbursed by the other party for all expenses incurred in connection with
arbitration.
7.7 No Joint Venture
The parties perform their obligations under this Agreement as
independent contractors and each party shall be solely responsible for its own
financial obligations. Nothing contained in this Agreement shall be construed to
imply a joint venture or principal and agent relationship between the parties
and neither shall have the right to create any obligation, express or implied,
on behalf of the other.
7.8 Counterparts
This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which will constitute one
and the same instrument.
IN WITNESS WHEREOF the parties have executed this Agreement in
duplicate originals as of the date first above written, as evidence by the
signature below of the authorized representatives.
DNA PLANT TECHNOLOGY SEMINIS VEGETABLE
CORPORATION SEEDS, INC.
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxxxx Xxxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxxxx
------------------------------- -------------------------------
Title: Chairman of the Board Title: President
------------------------------ ------------------------------
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