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
Date of Report (Date of earliest event reported): May 18, 2000
(December 8, 1999)
DELTA AND PINE LAND COMPANY
(Exact name of registrant as specified in its charter)
Delaware 62-1040440
(State or other jurisdiction) (IRS employer of incorporation
identification No.)
000-21788
(Commission file number)
One Cotton Row, Scott, Mississippi 38772
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (662) 742-4000
<PAGE>
Item 5. Other Events:
Amendments to the February 2, 1996 Bollgard(TM) Gene License and Seed
Services Agreement; the February 2, 1996 Roundup(R) Ready Gene License and Seed
Services Agreement both among Delta and Pine Land Company ("D&PL" or the
"Company"), D&M Partners and Monsanto Company ("Monsanto"); the February 2, 1996
Option Agreement between D&PL and Monsanto and the February 2, 1996 Hartz Cotton
Acquisition Agreement among Monsanto, Hartz Cotton Inc., D&PL and Paymaster
Technology Corp., (a wholly owned subsidiary of D&PL)
1. February 2, 1996 Bollgard (TM) Gene License and Seed Services Agreement
(the "Bollgard Agreement").
Monsanto and the Company revised effective December 8, 1999 the
Bollgard Agreement, entered into in 1992, and modified in 1993 and amended
and restated in 1996 for licenses to genes which impart resistance to
Lepidopteran insects. The December 8, 1999 Amendment (the "Amendment")
removes from the Bollgard Agreement prohibitions against D&PL's combining
in seed containing a Monsanto Lepidopteran active gene, genes imparting
Lepidopteran-resistance provided by D&PL or third parties. The Amendment
also struck from the Bollgard Agreement all provisions whereby, if D&PL
commenced development of cotton varieties containing non-Monsanto insect
resistance genes, D&PL would forfeit options to advanced Monsanto
Lepidopteran-active genes and genes active against non-Lepidopteran insect
pests. In addition, both the significant minimum royalty payments and the
increase in the Monsanto royalty percentage that D&PL would have been
obligated to pay if D&PL commenced commercial sales of seed, in the United
States, of cotton varieties that contained non-Monsanto insect resistance
genes, were removed. Therefore, D&PL can now, without monetary
disincentives or loss of rights to future Monsanto technology, introduce
genes of third parties into its conventional varieties and/or stack genes
imparting insect resistance or herbicide tolerance of others in cottonseed
varieties that contain Monsanto's Bollgard gene technology. Modifications
were also made to the indemnity provisions of the Bollgard Agreement to
clarify the obligations of D&PL and Monsanto for those products into which
D&PL stacks any third party genes with Monsanto's Bollgard gene. The
Amendment also requires that, where it is legally able to do so, D&PL must
provide cross licenses to Monsanto of non-Monsanto genes that are stacked
with Monsanto genes in D&PL cottonseed varieties.
2. February 2, 1996 Roundup(R)Ready Gene License and Seed Services Agreement
(the "Roundup Ready Agreement").
Monsanto and the Company revised effective December 8, 1999 the
Roundup Ready Agreement (the "Roundup Ready Amendment") among Monsanto, D&M
Partners and D&PL which gives D&PL the right, on a non-exclusive basis, to
produce and sell seed containing Monsanto's Roundup Ready gene technology
that imparts tolerance to glyphosate herbicide. The Roundup Ready Amendment
removes prohibitions against D&PL stacking genes that impart tolerance to
non-glyphosate herbicides provided by D&PL or third parties in D&PL
cottonseed varieties that contain Monsanto's Roundup Ready gene technology.
The Roundup Ready Amendment also struck provisions whereby, if D&PL had
commenced development of cotton varieties containing non-Monsanto herbicide
tolerance genes, D&PL would forfeit options to advanced Monsanto Roundup
Ready genes. In addition, the terms requiring minimum royalties payable by
D&PL to Monsanto and increasing the Monsanto royalty percentage if D&PL
commenced commercial sales of varieties containing non-Monsanto herbicide
tolerance genes were removed. The Roundup Ready Amendment provides,
similarly to the Amendment of the Bollgard Agreement, for modifications of
the indemnity provisions related to stacked products and for cross
licenses, under certain circumstances, of non-Monsanto genes inserted in
stacked varieties.
3. Option Agreement (the "Option Agreement")
The Option Agreement effective as of February 2, 1996 between Monsanto
and D&PL confirms D&PL's options from Monsanto for exclusive licenses to
current and future Monsanto technologies relating to Lepidopteran-Active
Gene(s) and/or Non-Lepidopteran-Active Gene(s) for all countries outside
the United States except India, where D&PL has no rights, and Australia,
where D&PL has an option to a co-exclusive license. The Option Agreement
also grants D&PL options to non-exclusive licenses, on most favored
licensee terms, for Roundup Ready(R) genes in cotton for all countries
outside the United States. The Option Agreement also grants D&PL an option
for licenses, co-exclusive with a subsidiary of Monsanto, for fiber quality
genes developed by Monsanto for use in the United States and in all
countries outside the United States except India. Effective December 8,
1999 Monsanto and D&PL amended the Option Agreement with respect to fiber
quality gene(s) to provide that any licenses for fiber-quality genes in the
United States will be non-exclusive and that in all countries outside the
United States except India, D&PL retains the right to a license
co-exclusive in each geographic area with one other co-licensee which need
not be a subsidiary of Monsanto. Terms of those such licenses shall be no
less favorable than those of any other license granted by Monsanto for the
subject country.
4. Hartz Cotton Acquisition Agreement (the "Hartz Agreement")
The Hartz Agreement was modified effective December 8, 1999 to remove
restrictions on Monsanto's ownership or support of research and development
programs of other cotton planting seed businesses and to delete provisions
under which Monsanto was required to make certain payments to D&PL.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
Exhibit No. Description
- ----------- -----------
10.29 Amendement to Agreements dated as of December 8, 1999, by
and between Monsanto Company, Registrant, D & M Partners, a
partnership of Monsanto and D&PL, and Paymaster Technology
Corp.
<PAGE>
SIGNATURE PAGE
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
Date: May 18, 2000 By: /s/ W. Thomas Jagodinski
------------------------
W. Thomas Jagodinski
Senior Vice President - Finance and Treasurer
(Duly Authorized Officer)
<PAGE>
Exhibit 10.29
AMENDMENTS TO AGREEMENTS
This Amendment to Agreements is made and entered into as of December 8,
1999, by and between MONSANTO COMPANY, a Delaware corporation, ("Monsanto"),
DELTA AND PINE LAND COMPANY, a Delaware corporation, ("D&PL"), D&M PARTNERS, a
partnership of MONSANTO and D&PL ("D&M Partners"), and PAYMASTER TECHNOLOGY
CORP., a Delaware corporation, ("Paymaster").
IN CONSIDERATION OF the mutual agreements set forth below:
1. The Bollgard(TM) Gene License and Seed Services Agreement among
Monsanto, D&PL and D&M Partners, dated as of February 2, 1996, is amended as set
forth in Schedule 1.
2. The Roundup Ready(TM) Gene License and Seed Services Agreement among
Monsanto, D&PL, and D&M Partners, dated as of February 2, 1996, as amended by
letter agreement dated July 26, 1996, is amended as set forth in Schedule 2.
3. The Option Agreement between Monsanto and D&PL, dated as of February 2,
1996, is amended as set forth in Schedule 3.
4. The Hartz Cotton Acquisition Agreement among Monsanto, D&PL, Hartz
Cotton, Inc., and Paymaster, dated as of February 2, 1996, is hereby amended as
set forth in Schedule 4.
5. These Amendments to Agreements shall be effective as of the date set
forth above.
6. The parties hereto agree that upon written request from any party each
party shall promptly execute and deliver an amended and restated version of any
one or more of the above described Agreements amended and restated to set forth
the amendments set forth in the attached schedules.
IN WITNESS WHEREOF, the parties have caused this document to be duly
executed by their respective authorized representatives as of the day and year
first written above.
MONSANTO COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
DELTA AND PINE LAND COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
D&M PARTNERS
By:________________________________
Name: Steve Hawkins
Title: Authorized Representative of
Delta and Pine Land Company
PAYMASTER TECHNOLOGY CORP.
for itself and as successor by
merger to Hartz Cotton, Inc.
By:________________________________
Title:_____________________________
<PAGE>
SCHEDULE 1
AMENDMENTS
TO
BOLLGARD(TM) GENE LICENSE
AND SEED SERVICES AGREEMENT
Section 2.1.39(b) is deleted in its entirety.
Section 2.1.39(c) is deleted in its entirety.
Section 3.4(a) is amended to read as follows:
(a) MONSANTO grants to D&M PARTNERS and D&PL an option to licenses in THE
TERRITORY, as described in Subsections 3.1, 3.2, and 3.3, to any SUBSEQUENT
GENE(S) or NON-B.t. LEPIDOPTERAN-ACTIVE GENE(S) for which MONSANTO obtains
GOVERNMENT APPROVAL, for use in cotton. The options pursuant to this Subsection
3.4(a) shall be effective during the term of this Agreement as set forth in
Subsection 10.1. The terms and conditions of licenses pertaining to any such
SUBSEQUENT GENE(S) or NON-LEPIDOPTERAN-ACTIVE GENE(S) shall be identical to the
terms and conditions of the licenses pertaining to the FIRST GENE.
Section 3.4(b) is amended to read as follows:
(b) MONSANTO grants to D&M PARTNERS and D&PL an option to a license in THE
TERRITORY, as described in Subsection 3.1, 3.2, and 3.3, to any
NON-LEPIDOPTERAN-ACTIVE GENE(S) for which MONSANTO obtains GOVERNMENT APPROVAL,
for use in cotton. The option pursuant to this Subsection 3.4(b) shall be
effective during the term of this Agreement. The terms of the licenses
pertaining to any such NON-LEPIDOPTERAN-ACTIVE GENE(S) shall be on terms no less
favorable to D&M PARTNERS or D&PL than those of any license to such
NON-LEPIDOPTERAN-ACTIVE GENE(S) granted by MONSANTO in THE TERRITORY to any
other licensee.
Section 3.4(c) is amended to read as follows:
(c) The licenses set forth in Subsection 3.4(b) pertaining to
NON-LEPIDOPTERAN-ACTIVE GENE(S) shall contain a two (2) year lead time versus
third party licensees (other than the licensee under that certain
Insect-Protected Cotton License and Seed Services Agreement between Monsanto, as
Licensor, and Stoneville Holding Corp., as Licensee, executed in connection with
the closing of the Stock Purchase Agreement signed among Monsanto Company,
Calgene LLC and Stoneville Holding Corp.) if, within ninety (90) days of the
date upon which MONSANTO first makes the NON-LEPIDOPTERAN-ACTIVE GENE(S)
available to D&PL pursuant to Subsection 4.3, 4.3(a), D&PL and MONSANTO
establish a mutually agreeable development plan with respect to such
NON-LEPIDOPTERAN-ACTIVE GENE(S) which establishes a reasonably aggressive date
of first commercial sale of cotton seed containing such NON-LEPIDOPTERAN-ACTIVE
GENE(S) to farmers in THE TERRITORY for use as cotton planting seed. MONSANTO
shall not unreasonably withhold consent to a development plan proposed by D&PL.
MONSANTO shall be permitted to license any third party to commercialize cotton
seed containing the subject NON-LEPIDOPTERAN-ACTIVE GENE(S) on the date two (2)
years following the anticipated first date of sale to a third party under the
relevant development plan. Subject to the provisions of Subsection 4.3, 4.3(a),
MONSANTO shall be permitted to grant research licenses pertaining to
NON-LEPIDOPTERAN-ACTIVE GENE(S) to any third party at any time. If no such
development plan regarding the subject NON-LEPIDOPTERAN-ACTIVE GENE(S) is timely
agreed to between MONSANTO and D&PL, then there shall be no restrictions on the
date on which third party licensees may commercialize such
NON-LEPIDOPTERAN-ACTIVE GENE(S).
Section 3.4(d) is deleted in its entirety.
Section 3.4(e) is amended as follows:
(e) For so long as the options for licenses pursuant to subsections 3.4(a)
and 3.4(b) are effective, MONSANTO shall notify D&PL in writing whenever
MONSANTO decides to authorize a SUBSEQUENT GENE, NON-B.t. LEPIDOPTERAN-ACTIVE
GENE or NON-LEPIDOPTERAN-ACTIVE GENE for COMMERCIAL DEVELOPMENT in THE
TERRITORY. Such notification shall be given to D&PL with respect to each
SUBSEQUENT GENE, NON-B.t. LEPIDOPTERAN-ACTIVE GENE or NON-LEPIDOPTERAN-ACTIVE
GENE not later than thirty (30) days after its DATE OF APPROVAL FOR COMMERCIAL
DEVELOPMENT and not later than notice to another licensee or potential licensee.
D&PL may, at its sole discretion, exercise for itself and D&M PARTNERS the
option to obtain a license for such SUBSEQUENT GENE, NON-B.t.
LEPIDOPTERAN-ACTIVE GENE or NON-LEPIDOPTERAN-ACTIVE GENE by notifying MONSANTO
in writing within sixty (60) days after the date on which MONSANTO gives D&PL
such notice of the DATE OF APPROVAL FOR COMMERCIAL DEVELOPMENT and provides to
D&PL a proposed license agreement meeting the requirements of Subsection 3.4(a)
or 3.4(b), as the case may be. With respect to a SUBSEQUENT GENE, NON-B.t.
LEPIDOPTERAN-ACTIVE GENE or NON-LEPIDOPTERAN-ACTIVE GENE, the license under the
terms of this Agreement shall become effective upon receipt by MONSANTO of
D&PL's notice of exercise of the options.
Section 3.6(a) is amended to read as follows:
(a) D&PL may insert into a line of LICENSED COMMERCIAL SEED of DELTAPINE
B.t. CULTIVARS any gene not licensed to D&PL by MONSANTO expressing a trait not
naturally occurring in cotton (a "NON-MONSANTO COTTON GENE") provided that, with
respect to any LICENSED COMMERCIAL SEED sold by D&PL which contains any
NON-MONSANTO COTTON GENE ("STACKED GENE COTTON SEED"):
(1) MONSANTO shall have the right by written notice to D&PL to
prohibit the display the BOLLGARD GENE TRADEMARK on packages containing
such seed, provided that, in the event such notice is given, Section 3.7(a)
notwithstanding, D&PL may sell such STACKED GENE COTTON SEED in packaging
not displaying the BOLLGARD GENE TRADEMARK.
(2) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION 13.1, D&PL SHALL
DEFEND AND INDEMNIFY AGAINST, AND HOLD MONSANTO AND D&M PARTNERS AND THEIR
RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS HARMLESS FROM, ANY
LOSS, COST, LIABILITY OR EXPENSE (INCLUDING COURT COSTS AND REASONABLE FEES
OF ATTORNEYS AND OTHER PROFESSIONALS) INCURRED FROM ANY CLAIM BY COTTON
FARMERS WHO PURCHASE LICENSED COMMERCIAL SEED, AND OF DISTRIBUTORS AGAINST
WHOM SUCH FARMERS MAY MAKE CLAIMS, ARISING OR ALLEGED TO ARISE OUT OF THE
PERFORMANCE OF SUCH STACKED GENE COTTON SEED OR PLANTS GROWN FROM STACKED
GENE COTTON SEED, UNLESS SUCH FAILURE OF PERFORMANCE IS PROXIMATELY CAUSED
SOLELY BY THE PRESENCE OF A GENE RECEIVED FROM MONSANTO IN SUCH STACKED
GENE COTTON SEED, PROVIDED THAT, ON THE ISSUE OF CAUSATION, D&PL SHALL BEAR
THE BURDEN OF PROOF, AND PROVIDED THAT COSTS OF CLAIMS COVERED BY THE
IMMEDIATELY PRECEDING CLAUSE (I.E., CLAIMS WHERE D&PL MEETS SUCH BURDEN OF
PROOF) SHALL BE PRORATED BETWEEN MONSANTO AND D&PL SO THAT MONSANTO'S
RESPECTIVE PERCENTAGE SHARE OF THE COSTS OF SUCH CLAIMS SHALL BE BASED ON
MONSANTO'S RESPECTIVE PERCENTAGE SHARE OF THE TOTAL OF THE NET LICENSE
REVENUES AND SEED PREMIUMS (IN INSTANCES WHERE NO TECHNOLOGY LICENSE FEES
ARE CHARGED FOR SUCH NON-MONSANTO COTTON GENE) DERIVED FROM THE PRESENCE OF
GENETICALLY-ENGINEERED TECHNOLOGY IN THE SUBJECT STACKED GENE COTTON SEED.
(3) D&PL shall not sell such STACKED GENE COTTON SEED unless:
(i) with respect to any NON-MONSANTO COTTON GENE which is owned
by D&PL or which D&PL has the right to license or sublicense to
MONSANTO, D&PL has offered MONSANTO a license to commercialize such
NON-MONSANTO COTTON GENE in THE TERRITORY on commercially reasonable
terms or, in the case of NON-MONSANTO COTTON GENE licensed or
sublicensed by D&PL with the right to sublicense, on terms no less
favorable than the terms of D&PL'S license or sublicense, or
(ii) with respect to any NON-MONSANTO COTTON GENE which is not
owned by D&PL and which D&PL does not have the right to license or
sublicense to MONSANTO, D&PL has made a good faith effort to obtain a
license or sublicense permitting sublicensing to MONSANTO to
commercialize such NON-MONSANTO COTTON GENE in cotton in THE TERRITORY
and D&PL shall not have entered into any license or other agreement
which prohibits MONSANTO obtaining a license to commercialize such
NON-MONSANTO COTTON GENE in cotton in THE TERRITORY.
Section 3.6(b) is amended to read as follows:
(b) D&PL shall choose VARIETAL NAMES, VARIETAL NUMBERS, or DISTINCTIVE
NOMENCLATURE to designate cotton seed of D&PL's varieties which contains
GENE(S). D&PL shall not use DISTINCTIVE NOMENCLATURE, used to identify LICENSED
COMMERCIAL SEED, to identify cotton seed which does not contain a GENE. For
examples, if D&PL has sold cotton seed containing a GENE using a DISTINCTIVE
NOMENCLATURE, such as in the VARIETAL NAME "DP 5590 Lep-Con," D&PL may
thereafter (a) identify NON-LEPIDOPTERAN-RESISTANT COTTON SEED by a VARIETAL
NAME such as "DP 5590," and (b) may also identify cotton seed which contains a
gene(s) encoding a B.t. TOXIN other than a GENE(S) using the VARIETAL NUMBER
"5590" but must use some DISTINCTIVE NOMENCLATURE other than "Lep-Con" in
connection with such seed, so that the VARIETAL NAME "DP 5590 I.R." could be
used to identify such seed but VARIETAL NAMES such as "DP 5590 Lep-Con," "DP
5590 Lep-Con Plus," or "D&PL 5590 Lep-Con" could not be used.
Section 6.2(b) is deleted in its entirety.
Section 6.3(c) is deleted in its entirety.
Section 6.4(b) is amended to read as follows:
(b) In the event that EXPIRATION of the last-to-expire patent of LICENSED
PATENT RIGHTS with one or more claim(s) which, in the absence of a license from
MONSANTO or the patent owner, would be infringed by the making, using, or
selling of LICENSED COMMERCIAL SEED of the specific DELTAPINE B.t. CULTIVAR in
THE TERRITORY occurs prior to the end of the COMPENSATION PERIOD, then MONSANTO
and D&PL shall, in good faith, renegotiate the payment terms including possible
reduction of the ROYALTY, said payment alterations to reflect the value of
MONSANTO TECHNOLOGY and the possible impact of generic competition.
Section 6.5 is amended to read as follows:
6.5 MOST FAVORED LICENSEE STATUS: If MONSANTO has granted or hereafter
grants a commercial license in THE TERRITORY under the LICENSED PATENT RIGHTS
and MONSANTO TECHNOLOGY to a third party for use of the FIRST GENE in cotton
containing ROYALTY terms that are more favorable than the ROYALTY terms
contained in this Agreement, MONSANTO shall notify D&PL of the more favorable
ROYALTY terms and all other terms of such third-party license which are
different from the terms of this Agreement. MONSANTO'S obligation to so notify
D&PL shall remain in effect for so long as D&PL is not selling in THE TERRITORY
any cotton seed which contains a NON-MONSANTO LEPIDOPTERAN-ACTIVE GENE(S)
provided, however, such notice shall be given to D&PL if any third party
licensee enjoying such terms is allowed to sell in THE TERRITORY cotton seed
which contains a NON-MONSANTO LEPIDOPTERAN-ACTIVE GENE(S). Such notice shall be
given within thirty (30) days after Monsanto grants such license or within
thirty (30) thirty days from the EFFECTIVE DATE of this Agreement, whichever
occurs later. D&PL shall, within thirty (30) days of receipt of such notice,
have the right to substitute (by notice to MONSANTO) such ROYALTY terms together
with all other terms of such third-party license which are different from the
terms of this Agreement for the time period that such terms are applicable to
said third party. Provided, further, that in the case of a license from MONSANTO
to a SUBSIDIARY of MONSANTO, D&PL may elect to apply the ROYALTY terms in such
Agreement, with all other terms of the LICENSE from MONSANTO to D&PL to be as
set forth in this Agreement. D&PL shall have the right to request a review of
such license with a third party for the purpose of ascertaining that the terms
and conditions thereof, considered as a whole, are more favorable than the terms
and conditions offered to D&PL. In the event that D&PL makes such request, the
review shall be implemented by MONSANTO delivering either (i) a copy of such
license with all references to the licensee deleted to D&PL or (ii) an accurate
summary of the principal terms and conditions of such license certified by an
authorized representative of MONSANTO. Any new terms, including, but not limited
to, ROYALTY terms, which may be made available to D&PL pursuant to this
Subsection 6.4 shall be effective for so long as D&PL is not selling in THE
TERRITORY any cotton seed which contains a NON-MONSANTO LEPIDOPTERAN-ACTIVE
GENE, provided, however, any such new terms shall be effective so long as any
third party licensee enjoying such terms is allowed to sell in THE TERRITORY
cotton seed which contains a NON-MONSANTO LEPIDOPTERAN-ACTIVE GENE(S).
Section 7.2(b) is deleted in its entirety.
DEVELOPMENT PLAN
Section 1.7 is amended to read as follows:
1.7 Commencement of Development Activities: MONSANTO shall make each gene
which MONSANTO determines is a candidate to become a GENE, a NON-B.t.
LEPIDOPTERAN or a NON-LEPIDOPTERAN-ACTIVE GENE available to D&PL for development
and evaluation under the provisions of the DEVELOPMENT PLAN no later than the
date on which (i) MONSANTO makes such gene available for development or
evaluation by any third party (including by any SUBSIDIARY of MONSANTO) or (ii)
if MONSANTO hereafter enters into the business of selling LICENSED COMMERCIAL
SEED, directly, as opposed to sales through licensees, when MONSANTO inserts
said genes into lines of cotton for the purpose of COMMERCIAL DEVELOPMENT of
said lines. If a gene must be made available to D&PL under this provision prior
to the date on which MONSANTO approves such gene(s) for COMMERCIAL DEVELOPMENT
as a GENE(S), MONSANTO and D&PL shall agree on appropriate procedures for
development and evaluation by D&PL of such gene(s) prior to their approval for
COMMERCIAL DEVELOPMENT as GENE(S). In all cases, MONSANTO will provide the
subject gene(s) to D&PL in the most advanced generation of germplasm development
at which such gene(s) are provided to any third party. It is understood that
this DEVELOPMENT PLAN contains standards and procedures appropriate to
LEPIDOPTERAN ACTIVE GENE(S). In the case of NON-LEPIDOPTERAN-ACTIVE GENES,
MONSANTO and D&PL shall mutually agree upon modifications or alterations to the
standards and procedures set forth herein appropriate to such NON-LEPIDOPTERAN
ACTIVE GENES. Agreement upon such modifications or alterations for
NON-LEPIDOPTERAN ACTIVE GENES shall not be unreasonably withheld or delayed.
<PAGE>
SCHEDULE 2
AMENDMENTS
TO
ROUNDUP READY(R) GENE LICENSE
AND SEED SERVICES AGREEMENT
Section 2.1.40(b) (as previously amended) is deleted in its entirety.
Section 2.1.40(c) (as previously amended) is deleted in its entirety.
Section 3.4(a) is amended to read as follows:
(a) MONSANTO grants to D&M PARTNERS and D&PL an option to licenses in THE
TERRITORY as described in Subsections 3.1, 3.2, and 3.3, to any SUBSEQUENT
ROUNDUP READY(R) GENE for which MONSANTO obtains GOVERNMENT APPROVAL, for use in
cotton. The options pursuant to this Subsection 3.4(a) shall be effective during
the term of this Agreement as set forth in Subsection 10.1. The terms and
conditions of licenses pertaining to any such SUBSEQUENT ROUNDUP READY(R)
GENE(S) shall be identical to the terms and conditions of the license and
sublicense pertaining to the ROUNDUP READY(R) GENE.
Section 3.4(b) is deleted in its entirety.
Section 3.4(c) is amended to read as follows:
(c) For so long as the options for licenses pursuant to Subsection 3.4(a)
are effective, MONSANTO shall notify D&M PARTNERS and D&PL in writing whenever
MONSANTO decides to authorize a SUBSEQUENT ROUNDUP READY(R) GENE for COMMERCIAL
DEVELOPMENT in THE TERRITORY. Such notification shall be given to D&M PARTNERS
and D&PL with respect to each SUBSEQUENT ROUNDUP READY(R) GENE not later than
thirty (30) days after its DATE OF APPROVAL FOR COMMERCIAL DEVELOPMENT and not
later than notice to another licensee or potential licensee. D&PL may, at its
sole discretion, exercise, for itself and for D&M PARTNERS, the option to obtain
a license for such SUBSEQUENT ROUNDUP READY(R) GENE by notifying MONSANTO in
writing within sixty (60) days after the date on which MONSANTO gives D&M
PARTNERS and D&PL such notice of the DATE OF APPROVAL FOR COMMERCIAL DEVELOPMENT
and provides D&PL a proposed license agreement meeting the requirements of
Subsection 3.4(a). With respect to a SUBSEQUENT ROUNDUP READY(R) GENE, a license
under the terms of this Agreement shall become effective upon receipt by
MONSANTO of D&PL's notice of exercise of the options.
Section 3.6(a) is amended to read as follows:
(a) D&PL may insert into a line of LICENSED COMMERCIAL SEED of DELTAPINE
ROUNDUP READY(R) CULTIVARS any gene not licensed to D&PL by MONSANTO expressing
a trait not naturally occurring in cotton (a "NON-MONSANTO COTTON GENE")
provided that, with respect to any LICENSED COMMERCIAL SEED sold by D&PL which
contains any NON-MONSANTO COTTON GENE ("STACKED GENE COTTON SEED"):
(1) MONSANTO shall have the right by written notice to D&PL to
prohibit the display the ROUNDUP READY(R) GENE TRADEMARK on packages
containing such seed, provided that, in the event such notice is given,
Section 3.7(a) notwithstanding, D&PL may sell such STACKED GENE COTTON SEED
in packaging not displaying the ROUNDUP READY(R) GENE TRADEMARK.
(2) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION 13.1, D&PL SHALL
DEFEND AND INDEMNIFY AGAINST, AND HOLD MONSANTO AND D&M PARTNERS AND THEIR
RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS HARMLESS FROM, ANY
LOSS, COST, LIABILITY OR EXPENSE (INCLUDING COURT COSTS AND REASONABLE FEES
OF ATTORNEYS AND OTHER PROFESSIONALS) INCURRED FROM ANY CLAIM BY COTTON
FARMERS WHO PURCHASE LICENSED COMMERCIAL SEED, AND OF DISTRIBUTORS AGAINST
WHOM SUCH FARMERS MAY MAKE CLAIMS, ARISING OR ALLEGED TO ARISE OUT OF THE
PERFORMANCE OF STACKED GENE COTTON SEED OR PLANTS GROWN FROM STACKED GENE
COTTON SEED, UNLESS SUCH FAILURE OF PERFORMANCE IS PROXIMATELY CAUSED
SOLELY BY THE PRESENCE OF A ROUNDUP READY(R) GENE(S) IN SUCH STACKED GENE
COTTON SEED, PROVIDED THAT, ON THE ISSUE OF CAUSATION, D&PL SHALL BEAR THE
BURDEN OF PROOF AND PROVIDED THAT COSTS OF CLAIMS COVERED BY THE
IMMEDIATELY PRECEDING CLAUSE (I.E., CLAIMS WHERE D&PL MEETS SUCH BURDEN OF
PROOF) SHALL BE PRORATED BETWEEN MONSANTO AND D&PL SO THAT MONSANTO'S
RESPECTIVE PERCENTAGE SHARE OF THE COSTS OF SUCH CLAIMS SHALL BE BASED ON
MONSANTO'S RESPECTIVE PERCENTAGE SHARE OF THE TOTAL OF THE NET LICENSE
REVENUES AND SEED PREMIUMS (IN INSTANCES WHERE NO TECHNOLOGY LICENSE FEES
ARE CHARGED FOR SUCH NON-MONSANTO COTTON GENE) DERIVED FROM THE PRESENCE OF
GENETICALLY-ENGINEERED TECHNOLOGY IN THE SUBJECT STACKED GENE COTTON SEED.
(3) D&PL shall not sell such STACKED GENE COTTON SEED unless:
(i) with respect to any NON-MONSANTO COTTON GENE which is owned
by D&PL or which D&PL has the right to license or sublicense to
MONSANTO, D&PL has offered MONSANTO a license to commercialize such
NON-MONSANTO COTTON GENE in THE TERRITORY on commercially reasonable
terms or, in the case of a NON-MONSANTO COTTON GENE licensed or
sublicensed by D&PL with the right to sublicense, on terms no less
favorable than the terms of D&PL'S license or sublicense, or
(ii) with respect to any NON-MONSANTO COTTON GENE which is not
owned by D&PL and which D&PL does not have the right to license or
sublicense to MONSANTO, D&PL has made a good faith effort to obtain a
license or sublicense permitting sublicensing to MONSANTO to
commercialize such NON-MONSANTO COTTON GENE in cotton in THE TERRITORY
and D&PL shall not have entered into any license or other agreement
which prohibits MONSANTO obtaining a license to commercialize such
NON-MONSANTO COTTON GENE in cotton in THE TERRITORY.
Section 3.6(d) is amended to read as follows:
(d) D&PL shall choose VARIETAL NAMES, VARIETAL NUMBERS, or DISTINCTIVE
NOMENCLATURE to designate cotton seed of D&PL's varieties which contain ROUNDUP
READY(R) GENE(S). D&PL shall not use DISTINCTIVE NOMENCLATURE used to identify
LICENSED COMMERCIAL SEED to identify cotton seed which does not contain a
ROUNDUP READY(R) GENE. For examples, if D&PL has sold cotton seed containing a
ROUNDUP READY(R) GENE using a DISTINCTIVE NOMENCLATURE, such as in the VARIETAL
NAME "DP 5590 Gly-Res," D&PL may thereafter (a) identify NON-ROUNDUP READY(R)
COTTON SEED by a VARIETAL NAME such as "DP 5590" and (b) may also identify
cotton seed which contains a NON-MONSANTO HERBICIDE TOLERANCE GENE using the
VARIETAL NUMBER "5590" but must use some DISTINCTIVE NOMENCLATURE other than
"Gly-Res" in connection with such seed, so that the VARIETAL NAME "DP 5590 H.R."
could be used to identify such seed but VARIETAL NAMES such as "DP 5590
Gly-Res," "DP 5590 Gly-Res Plus," or "D&PL 5590 Gly-Res" could not be used.
Section 6.2(b) is deleted in its entirety.
Section 6.3(c) is deleted in its entirety.
Section 6.4(b) is amended to read as follows:
(b) In the event that EXPIRATION of the last-to-expire patent of LICENSED
PATENT RIGHTS with one or more claim(s) which, in the absence of a license from
MONSANTO or the patent owner, would be infringed by the making, using, or
selling of LICENSED COMMERCIAL SEED of a specific DELTAPINE B.t. CULTIVAR in THE
TERRITORY occurs prior to the end of the COMPENSATION PERIOD, then MONSANTO and
D&PL shall, in good faith, renegotiate the payment terms including possible
reduction of the ROYALTY, said payment alterations to reflect the value of
MONSANTO TECHNOLOGY and the possible impact on generic competition.
Section 6.5 is amended to read as follows:
6.5 MOST FAVORED LICENSEE STATUS:
----------------------------
(a) If MONSANTO has granted or hereinafter grants a commercial license in
THE TERRITORY under the LICENSED PATENT RIGHTS and MONSANTO TECHNOLOGY to a
third party for use of the FIRST ROUNDUP READY(R) GENE containing ROYALTY terms
that are more favorable than the ROYALTY terms contained in this Agreement,
MONSANTO shall notify D&PL of the more favorable ROYALTY terms and all other
terms of such third-party license which are different from the terms of this
Agreement. MONSANTO'S obligation to so notify D&PL shall remain in effect for so
long as D&PL is not selling commercially in THE TERRITORY cotton seed which
contains a NON-MONSANTO HERBICIDE TOLERANCE GENE other than a PERMITTED
COMPETITIVE HERBICIDE TOLERANCE GENE provided, however, such notice shall be
given to D&PL if any third party license enjoying such terms is allowed to sell
in THE TERRITORY cotton seed which contains a NON-MONSANTO HERBICIDE TOLERANCE
GENE. Such notice shall be given within thirty (30) days after Monsanto grants
such license or within thirty (30) days from the EFFECTIVE DATE of this
Agreement, whichever occurs later. D&PL shall, within thirty (30) days of
receipt of such notice, have the right to substitute (by notice to MONSANTO)
such ROYALTY terms together with all other terms of such third party license
which are different from the terms of this Agreement for the time period that
such terms are applicable to said third party. Provided, further, that in the
case of a license from MONSANTO to a SUBSIDIARY of MONSANTO. D&PL may elect to
apply the ROYALTY terms in such Agreement, with all other terms of the LICENSE
from MONSANTO to D&PL to be as set forth in this Agreement. D&PL shall have the
right to request a review of such license with a third party for the purpose of
ascertaining that the terms and conditions thereof, considered as a whole, are
more favorable than the terms and conditions offered to D&PL. In the event that
D&PL makes such request, the review shall be implemented by MONSANTO delivering
either (i) a copy of such license with all references to the licensee deleted to
D&PL or (ii) an accurate summary of the principal terms and conditions of such
license certified by an authorized representative of MONSANTO.
(b) Any new terms, including, but not limited to, ROYALTY terms, which may
be made available to D&PL pursuant to this Section 6.5 shall be effective for so
long as D&PL is not selling in THE TERRITORY cotton seed which contains a
NON-MONSANTO HERBICIDE TOLERANCE GENE other than a PERMITTED COMPETITIVE
HERBICIDE TOLERANCE GENE, provided, however, any such new terms shall be
effective so long as any third party licensee enjoying such terms is allowed to
sell in THE TERRITORY cotton seed which contains a NON-MONSANTO HERBICIDE
TOLERANCE GENE.
Section 7.2(a) is amended to read as follows:
(a) D&M PARTNERS shall submit to D&PL fifteen (15) days after the end of
each month a report which summarizes the cash payments on accounts receivable
specifically identifiable as SUBLICENSE REVENUE resulting from sublicenses to
cotton farmers for use of LICENSED COMMERCIAL SEED of DELTAPINE ROUNDUP READY(R)
CULTIVARS. D&M PARTNERS shall submit to D&PL by the end of September of each
year a report which summarizes any payment due for the previous twelve (12)
months. With each such annual report. D&M PARTNERS shall pay to D&PL the ROUNDUP
READY(R) SEED SERVICES FEE due pursuant to Subsection 6.2(a). If no payment is
due to MONSANTO for the subject reporting period, the written report should so
state.
DEVELOPMENT PLAN
Section 1.7 is amended to read as follows:
1.7 Commencement of Development Activities: MONSANTO shall make each gene
which MONSANTO determines is a candidate to become a ROUNDUP READY(R) GENE
available to D&PL for development and evaluation under the provisions of the
DEVELOPMENT PLAN no later than the date on which (i) MONSANTO makes such gene
available for development or evaluation by any third party (including by any
SUBSIDIARY of MONSANTO) or (ii) MONSANTO hereafter enters into the business of
selling LICENSED COMMERCIAL SEED, directly, as opposed to sales through
licensees, when MONSANTO inserts said genes into lines of cotton for the purpose
of COMMERCIAL DEVELOPMENT of said lines. If a gene must be made available to
D&PL under this provision prior to the date on which MONSANTO approves such
gene(s) for COMMERCIAL DEVELOPMENT as a ROUNDUP READY(R) GENE(S), MONSANTO and
D&PL shall agree on appropriate procedures for development and evaluation by
D&PL of such gene(s) prior to their approval for COMMERCIAL DEVELOPMENT as
ROUNDUP READY(R) GENE(S). In all cases, MONSANTO will provide the subject
gene(s) to D&PL in the most advanced generation of germplasm development at
which such gene(s) are provided to any third party.
<PAGE>
SCHEDULE 3
AMENDMENTS
TO
OPTION AGREEMENT
Section 5.1 is amended to read as follows:
5.1 OPTION(S) TO FIBER-QUALITY GENE(S) IN THE TERRITORY: In the event that
during the term of the BOLLGARD(TM) GENE LICENSE AND SEED SERVICES AGREEMENT in
which D&PL'S option to license (under the terms of Subsection 3.4 of the
BOLLGARD(TM) GENE LICENSE AND SEED SERVICES AGREEMENT) LEPIDOPTERAN ACTIVE
GENE(S) and/or NON-LEPIDOPTERAN-ACTIVE GENE(S) in THE TERRITORY is in force,
MONSANTO should develop and acquire GOVERNMENT APPROVAL for any FIBER QUALITY
GENE, then MONSANTO shall offer to D&PL a non-exclusive license to such FIBER
QUALITY GENE and MONSANTO TECHNOLOGY related thereto, to develop, produce, have
produced and to sell cotton seed containing such FIBER QUALITY GENE in THE
TERRITORY. Such license shall be on the following terms and conditions:
(a) [Intentionally Omitted]
(b) the sharing of revenue attributed to the FIBER QUALITY GENE(S)
shall be determined through good faith negotiations between MONSANTO and
D&PL. Provided, however, that the net revenue retained by D&PL attributable
to the FIBER QUALITY GENE(S) shall not exceed the greater of: (i) the
average per acre net revenue realized by D&PL on the sale of seed of
non-genetically modified cotton varieties; or (ii) the average per acre net
revenue realized by D&PL under the BOLLGARD(TM) GENE LICENSE AND SEED
SERVICES AGREEMENT. The terms of such license shall be no less favorable
than those of any other license granted by MONSANTO for such FIBER QUALITY
GENE(S) in THE TERRITORY.
Section 5.2 is amended to read as follows:
5.2 OPTION(S) TO FIBER-QUALITY GENE(S) OUTSIDE THE TERRITORY: In the event
that during the term of the BOLLGARD(TM) GENE LICENSE AND SEED SERVICES
AGREEMENT in which D&PL's option to license (under the terms of Subsection 3.4
of the BOLLGARD(R) GENE LICENSE AND SEED SERVICES AGREEMENT) LEPIDOPTERAN-ACTIVE
GENE(S) and/or NON-LEPIDOPTERAN-ACTIVE GENE(S) in THE TERRITORY is in force,
MONSANTO should develop and acquire GOVERNMENT APPROVAL for any FIBER QUALITY
GENE and decide to commercialize such technology outside THE TERRITORY with the
exception of India, MONSANTO hereby grants to D&PL an option to license such
FIBER QUALITY GENE and MONSANTO TECHNOLOGY related thereto, to develop, produce,
have produced and/or to sell cotton seed containing such FIBER QUALITY GENE(S)
in any country outside THE TERRITORY with the exception of India. Such license
shall be on the following terms and conditions:
(a) The license may be co-exclusive in the applicable geographic area
outside THE TERRITORY for production or sale of cotton seed containing such
FIBER QUALITY GENE. MONSANTO shall retain the right to grant a license in
each geographic area to a one other licensee. In the event that within six
(6) months after MONSANTO decides to commercialize a FIBER QUALITY GENE in
a geographical area outisde THE TERRITORY, MONSANTO has not entered into a
license to such FIBER QUALITY GENE for that geographical area with a third
party, MONSANTO and D&PL shall meet and discuss the possibility of an
exclusive license to such FIBER QUALITY GENE. Failing agreement as to the
terms and conditions of such exclusive license, MONSANTO shall continue to
be permitted to grant one third party license for that particular
geographical area.
(b) The sharing of revenue attributed to the FIBER QUALITY GENE(S)
shall be determined through good faith negotiations between MONSANTO and
D&PL. Provided, however, that the net revenue retained by D&PL attributable
to the FIBER QUALITY GENE(S) shall not exceed the greater of: (i) the
average per acre net revenue realized by D&PL on the sale of seed of
non-genetically modified cotton varieties: or (ii) the average per acre net
revenue realized by D&PL under the BOLLGARD(TM) GENE LICENSE AND SEED
SERVICES AGREEMENT. The terms of such license shall be no less favorable
than those of any other license granted by MONSANTO for such country.
Section 5.3 is amended to read as follows:
5.3 NOTIFICATION OF DECISION TO COMMERCIALIZE FIBER-QUALITY GENE(S): In the
event MONSANTO decided to commercialize any FIBER QUALITY GENE(S) for such use
in and/or outside THE TERRITORY, MONSANTO shall so notify D&PL and shall present
to D&PL a proposed license agreement meeting the conditions of Subsections 5.1
or 5.2. Such notification shall be given to D&PL with respect to any such FIBER
QUALITY GENE not later than thirty (30) days after MONSANTO'S decision to
commercialize such FIBER QUALITY GENE for use in a particular country and not
later than the notice of such decision to the other potential licensee. D&PL
shall have the right to a license for applicable country(ies) on terms and
conditions which are not materially different from the terms and conditions
offered to any third party. MONSANTO shall give notice of the grant of
license(s) to any other permitted licensee. D&PL shall have the right to request
a review of any such license for the purpose of ascertaining that the terms and
conditions thereof, considered as a whole, are more favorable than the terms and
conditions offered to D&PL. In the event that D&PL makes such request, the
review shall be implemented by MONSANTO delivering either (i) a copy of such
license with all references to the licensee deleted to D&PL or (ii) an accurate
summary of the principal terms and conditions of such license certified by an
authorized representative of MONSANTO.
Section 5.5(a) is amended to read as follows:
5.5 TIMING OF DEVELOPMENT ACTIVITIES
(a) MONSANTO shall make each gene with MONSANTO determines is a
candidate to become a FIBER QUALITY GENE available to D&PL for development
and evaluation no later than the date on which MONSANTO makes such gene
available for development or evaluation by any other potential licensee.
<PAGE>
SCHEDULE 4
AMENDMENTS
TO
HARTZ COTTON ACQUISITION AGREEMENT
Section 11.7 is amended to read as follows:
11.7 Limited Covenant and Seed Service Rebate.
----------------------------------------
(a) Monsanto and D&PL, having entered into the Bollgard(TM)
Gene License and Seed Services Agreement and the Roundup Ready(R) Gene License
and Seed Services Agreement, agree and understand that a consideration for the
merger of Hartz Cotton into D&PL Sub is the continuation of commercialization of
such Monsanto cotton-related technologies by D&PL. Monsanto and D&PL agree and
understand that in order to fulfill their respective obligations under said
agreements, all for the purpose of jointly developing and bringing to market
genetically modified varieties of cotton planting seed, D&PL has shared with
Monsanto, under prior agreements and, as provided in current agreements, must
continue to share with Monsanto on a free and open basis D&PL technology and
confidential information, and that the continued exchange of such D&PL
technology and confidential information is advantageous to both Monsanto and
D&PL. Monsanto and D&PL further recognize that D&PL has a legitimate interest in
preventing its competitors from access to business information it needs to share
with Monsanto and from reaping the benefits of D&PL's development efforts and of
its contributions to Monsanto's development efforts. Accordingly, to encourage
the continued commercialization of such Monsanto cotton-related technologies by
D&PL and to encourage the free and open exchange of information between D&PL and
Monsanto, Monsanto agrees, subject to the following terms and conditions, not to
permit via Monsanto personnel the exchange of confidential pricing, sales, or
other sensitive commercial information regarding D&PL to any other competing
company. Monsanto shall take reasonable action to use separate personnel for
matters involving D&PL and matters involving Stoneville Pedigreed Seed Co. or
any other entity owned in whole or in part by Monsanto which engages in any
Directly Competing Activity. As used herein, "Directly Competing Activity" means
and refers to the cotton planting seed business, including but not limited to
breeding, producing, processing, marketing, or sale of cotton planting seed. In
addition to other remedies, the Parties agree that this Section 11.7(a) shall be
specifically enforceable.
(b) [Intentionally omitted]
(c) [Intentionally omitted]
(d) Monsanto's obligations pursuant to Subsection 11.7(a) shall
terminate upon the expiration or other termination of the Bollgard(TM) Gene
License and Seed Services Agreement or any subsequent agreement entered into
pursuant to Section 15.15 of the Bollgard(TM) Gene License and Seed Services
Agreement.
Section 14.18(b) is amended to read as follows:
(b) D&PL shall deliver notice to Monsanto of D&PL's intent to exercise
the Exchange, along with copy of the divestiture order, within five days of
D&PL's receipt of the divestiture order. The Exchange shall occur within 7 days
of delivery of such notice. At the closing of the Exchange, D&PL shall deliver
to Monsanto (i) a stock certificate representing all of the issued and
outstanding shares of D&PL Sub with duly executed stock powers, (ii) a
certificate executed by an officer of D&PL representing that all of the
conditions set forth in Subsection 14.18(a)(1) through 14.18(a)(9) are true and
correct as of the date of Exchange, (iii) an agreement, similar in the form of
indemnification set forth in Section 8.3 hereof, signed by D&PL pursuant to
which D&PL agrees to indemnify Monsanto for any and all Liability, Actions, and
Damages suffered or incurred by Monsanto resulting from (y) any breach of
representation or warranty made in Subsection 14.18(a)(1) through 14.18(a)(9),
and (z) any claims by third parties to the extent resulting from the ownership,
possession, use, or operation, from and after the Closing until the date of the
Exchange, of the Assets, or the Business, and (iv) an agreement executed by D&PL
terminating the Trademark License Agreement and Temporary Services. At the
closing of the Exchange, Monsanto shall deliver to D&PL a stock certificate
representing all of the shares of D&PL Preferred Stock acquired by Monsanto
pursuant to this Agreement, along with duly executed stock powers.
