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Exhibit 10.132
AMENDED AND RESTATED
RESEARCH AND DEVELOPMENT AGREEMENT
This Amended and Restated Research and Development Agreement (the
"Agreement") is made as of January 30, 1998, by and between Monsanto Company, a
Delaware corporation, with its general offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (together with its Subsidiaries, successors and
assigns, "Monsanto"), and Ecogen Inc., a Delaware corporation having its
principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (together
with its Subsidiaries, successors and assigns, "Ecogen").
W I T N E S S E T H
WHEREAS, Monsanto and Ecogen are parties to that certain Research and
Development Agreement dated as of January 24, 1996, as amended by Amendment No.
1 thereto dated as of May 22, 1997 (the "Original Agreement");
WHEREAS, Monsanto acquired certain bacterium Bacillus thuringiensis
("Bt") strain libraries, crystal protein gene libraries, and certain proprietary
rights regarding protein engineering of Bt crystal proteins pursuant to the
Technology Assignment Agreement by and between Monsanto and Ecogen dated as of
January 24, 1996 ("Assignment Agreement");
WHEREAS, Monsanto has expertise in the field of plant biotechnology and
Ecogen has expertise in finding, screening and commercializing compounds,
including proteins based on Bt;
WHEREAS, both Monsanto and Ecogen have research facilities and have
conducted research and development pursuant to the Original Agreement which may
lead to the commercialization of (i) improved bioinsecticides, and (ii) plants
and/or plant seeds into the genomes of which Bt genes have been included so that
such plants or plant seeds will express proteins;
WHEREAS, in order to effect an orderly transition of the parties'
respective research and development activities, capabilities and resources,
Monsanto and Ecogen desire to restructure the terms of Original Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Monsanto and Ecogen agree as follows:
ARTICLE 1 - DEFINITIONS
Capitalized terms not otherwise defined in this Agreement shall have
the same meaning given such terms in the Assignment Agreement. In addition, the
following terms shall have the meanings set forth below and will include the
plural as well as the singular.
1.1 "Affiliate" shall mean, as to any party, any other person or entity
that controls, is under common control with, or is controlled by, such party.
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1.2 "Change of Control" shall have the meaning specified in Section
7.6(b) hereof.
1.3 "Competitor Company" shall mean any commercial entity (including
joint ventures) involved to any significant extent in the development of
transgenic plants, plant seeds, plant cells or components thereof, and any
Subsidiaries or Affiliates of any of the foregoing entities. For purposes of
this Agreement, a university or other educational institution (other than that
which maintains a meaningful licensing or other arrangement with a Competitor
Company that includes the area of In Planta Application) shall not be deemed a
commercial entity.
1.4 "Confidential Information" shall have the meaning specified in that
certain Confidentiality Agreement between Ecogen and Monsanto dated as of
January 24, 1996.
1.5 "Date of this Agreement" shall mean the date first written above.
1.6 "Designated Supervisory Employees" shall mean the persons
identified on Schedule 1.6 hereto.
1.7 "Event of Default" shall have the meaning specified in Section 7.2
hereof.
1.8 "Field of the Agreement" shall mean research and development in
finding, discovering, screening and developing new proteins and genes.
1.9 "In Planta Application" means (i) use, development, or
commercialization of transgenic plants, plant seeds, plant cells or components
thereof (collectively "Plants") or (ii) use, development, or commercialization
of genetic material used so that Plants express a new material or an existing
material at levels different from the levels that such Plants otherwise would.
1.10 "Intellectual Property Rights" means (i) all patent rights and all
right, title and interest in and to all letters patent and applications for
letters patent, and other government issued or granted indicia of invention
ownership including any substitutions, extensions, reissues, divisions,
continuations or continuations-in-part or applications thereof or therefor
throughout the world; (ii) all rights, title and interest in and to all trade
secrets and trade secret rights arising under the common law, state law, federal
law and laws of foreign countries; (iii) all copyright rights, and all other
literary property and author rights whether or not copyrightable; and all
rights, title and interest in and to all copyrights, copyright registrations,
certificates of copyright and copyrighted interests throughout the world; (iv)
all rights, title and interest in and to all know-how whether or not protectable
by patent, copyright or trade secret law; and (v) all goodwill associated with
any of the foregoing; provided, however, that the term "Intellectual Property
Rights" shall not include any trademarks, trade names or service marks, whether
registered or arising under the common law, state law, federal law or the laws
of foreign countries or any registrations thereof or interests therein.
1.11 "Microbial Applications" shall mean use, development or
commercialization of insecticidal, bacterial, fungicidal, pesticidal, medical,
veterinary, scientific, nutritional, food
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additive or preservative, materials, textiles, and similar products; provided,
however, that such products shall not include any product for an In Planta
Application.
1.12 "Naturally Occurring Genes" shall mean genes expressed by Bt that
produce proteins without genetic engineering or protein engineering.
1.13 "R&D Technology" shall mean the Bt strains or genes discovered or
developed pursuant to the Research Program and the Intellectual Property Rights
arising pursuant to the performance of the parties' obligations under this
Agreement.
1.14 "Relevant Employee" shall mean the persons named on Schedule 1.14
hereto.
1.15 "Remaining Term" shall mean the period commencing on January 30,
1998 and ending on January 24, 1999.
1.16 "Research Budget" shall mean the forecast of expenses and
expenditures set by Monsanto from time to time during the Term for that part of
the Research Program undertaken by Ecogen, which may be revised based on the
recommendation of the Supervisory Committee; provided, however the Research
Budget shall not include the cost or expenses of filing, prosecution or
maintenance of patent applications or issued patents.
1.17 "Research Plan" shall mean the Research and Development Plan as
may be amended from time to time and which Plan shall include a specific
schedule for work, resources to be allocated by each party, the identification
of target pests, personnel requirements, capital needs, and a schedule for the
duplication and transfer to Monsanto of copies of all strains and genes
developed under the Research Program. The selection of projects within the
Research Plan is to be determined by Monsanto, with Ecogen having the right to
object to any project which is inconsistent with the practices and procedures of
Ecogen.
1.18 "Research Program" shall mean all research, experimentation or
development relating to the projects to be conducted or conducted by the parties
hereto under the terms of the Research Plan, including decisions regarding the
filing, prosecution and maintenance of patent applications and issued patents.
1.19 "Subsidiary" shall mean a subsidiary more than 50 percent of whose
outstanding securities representing the right, other than as affected by events
of default, to vote for the election of directors, is owned by the applicable
party and/or one or more of such party's other majority-owned Subsidiaries.
Subsidiaries of Ecogen shall also include the entities set forth in Schedule
3.01 to the Investment Agreement by and between Monsanto and Ecogen dated as of
January 24, 1996.
1.20 "Supervisory Committee" shall mean the Committee described in
Article 2 hereof.
1.21 "Term" shall mean the period commencing on January 24, 1996 and
ending on January 24, 1999.
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1.22 "Third Party" shall mean any entity other than Monsanto, Ecogen
and their respective Affiliates.
ARTICLE 2 - RESEARCH COLLABORATION
2.1 Research Plan. During the Term and subject to the terms and
conditions of this Agreement, Monsanto and Ecogen shall use all commercially
reasonable efforts to undertake their respective obligations (including as to
the retention of staffing) under the Research Program in accordance with the
Research Plan. The Research Plan shall be updated in writing and revised from
time to time by the Supervisory Committee in furtherance of the goals of the
Research Program, taking into account the then continuing personnel and other
resources of Ecogen. The efforts of Ecogen pursuant to Section 4.6 hereof shall
be deemed to be a part of the Research Program and the Research Plan. Ecogen
agrees to diligently pursue each project covered by the Research Program and to
assign the appropriate number of its then continuing personnel required to carry
out the Research Program, each of whom shall be qualified to perform his or her
assigned duties. The parties acknowledge that Ecogen makes no representation or
assurance whatsoever that the Research Program will be successfully completed or
result in the development of products with any technical or commercial value.
2.2 Research Funding. Monsanto shall be responsible for providing all
funding necessary for both parties to undertake their respective duties and
obligations under the Research Program and all other costs and expenses related
thereto. Transfers of funds to Ecogen under the Research Budget during the Term
shall be in accordance with the terms of Article 3 hereof.
2.3 Supervisory Committee.
(a) Collaboration between the parties shall be determined by a
Supervisory Committee of four (4) people; two (2) people appointed by each
party. The Chairman of the Supervisory Committee shall be appointed by Monsanto.
(b) It is the intent of the parties that information related to the
Research Program be shared with one another in an open manner. For this purpose,
the Supervisory Committee shall meet periodically and no less than once a
quarter to review the status of the Research Program at mutually convenient
locations. It is contemplated, however, that the parties may meet as frequently
as weekly at Ecogen's facility to review results of the Research Program. At
such meetings the implementation of the Research Program, including insectary
services, insect targets and sources of insecticidal or other biocidal proteins,
shall be discussed and mutually agreed upon. Each of the parties hereto shall
provide to the Supervisory Committee quarterly written summaries of data and the
status of its work under the Research Program in such form as such party
routinely uses for the summary of similar research work for its own purposes.
Modifications to the Research Program may be made by the Supervisory Committee
as collaboration progresses in accordance with this Agreement. In the event that
the Supervisory Committee cannot reach a decision regarding the Research
Program, the issue shall be referred for resolution to a senior business
executive of each party responsible for the Research Program.
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In the event that the parties continue to have a good faith dispute, the issue
will be resolved by the Monsanto business executive.
2.4 Continuity of Supervisory Committee. Each party shall attempt in
good faith to maintain continuity in the identity of its representatives to the
Supervisory Committee.
ARTICLE 3 - COSTS
3.1 Research and Development Funding Payment. Monsanto shall pay to
Ecogen the amount of $2,000,000 (including funds previously advanced pursuant to
the Original Agreement) for the funding of the Research Program during the
Remaining Term. $1,270,000, representing the balance of such amount after
subtracting amounts already advanced to Ecogen aggregating $730,000, shall be
paid to Ecogen in immediately available funds by bank wire transfer to the
account designated by Ecogen, contemporaneously with the execution and delivery
of this Agreement.
3.2 Transition Payment. Monsanto shall pay to Ecogen the additional sum
of $2,500,000 in immediately available funds by bank wire transfer to the
account designated by Ecogen, contemporaneously with the execution and delivery
of this Agreement. Such payment is in consideration, among other things, of
performance by Ecogen of its obligations under Article 4 hereof.
3.3 Research Budget. On or before thirty (30) days after the Date of
this Agreement, Monsanto will develop, with input from the Supervisory
Committee, and present to the Supervisory Committee a revised Research Budget
outlining budgeted costs and expenses on a quarterly basis for the Remaining
Term. The Research Budget shall be revised from time to time upon approval of
the Supervisory Committee to reflect the availability of continuing personnel
and other resources of Ecogen. Any budgeted amounts that remain unallocated or
unspent at the termination of this Agreement shall be retained by Ecogen, free
and clear of any obligation to Monsanto to perform research or other service;
provided, that such unallocated or unspent amounts shall be returned to Monsanto
promptly following a termination of the Research Program resulting from an Event
of Default by Ecogen.
3.4 Allocated Researchers and Equipment Purchases. In establishing the
Research Budget, each researcher employed by Ecogen shall be included in the
Research Budget at an annual rate of $*, which annual rate shall include
all costs and expenses for personnel, supplies (including consumables and
standard reagents), existing equipment required for the services to be performed
by Ecogen pursuant to the Research Plan and replacements therefor (so long as
the individual cost of any such item of replacement equipment does not exceed
$1,000), and overhead with respect to such researcher. Ecogen shall have no
obligation to purchase or obtain any other equipment not already in its
possession. Ecogen shall be responsible for paying up to $50,000 to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Medical Research Institute, Inc. and up to $3,000 to ▇▇. ▇▇▇▇▇▇▇ of the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine for consulting services performed pursuant
to the Research Plan. Such amounts paid by Ecogen shall be applied to and shall
reduce the Research Budget. No other agreements with or payments to Third
Parties shall be included in or
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* Confidential Treatment Requested.
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applied to the Research Budget.
ARTICLE 4 - TRANSITIONAL MATTERS
4.1 Access to Certain Employees.
(a) Ecogen shall make no objection to any meetings or interviews at
reasonable times and locations between representatives of Monsanto and either or
both of the Designated Supervisory Employees for the purpose of allowing
Monsanto and either or both of the Designated Supervisory Employees to
investigate and consider potential employment of one of the Designated
Supervisory Employees with Monsanto.
(b) Monsanto may make an offer of employment to one of the Designated
Supervisory Employees. Monsanto may not make an offer of employment to the other
Designated Supervisory Employees unless and until (i) such first offer of
employment shall have been rejected by the recipient of such offer or (ii) such
first offer shall have expired or shall have been withdrawn by Monsanto, or upon
the occurrence of one of the events identified in Section 4.1(c) hereof. Except
as expressly set forth in Section 4.1(c) hereof, Monsanto shall hire a maximum
of one of the Designated Supervisory Employees and shall not have offer of
employment to each of the Designated Supervisory Employees pending at the same
time.
(c) The restrictions set forth in Section 4.1(b) hereof that Monsanto
may hire a maximum of one of the Designated Supervisory Employees and may not
have pending offers of employment to each of the Designated Supervisory
Employees at the same time shall have no further effect upon the occurrence of
any of the following:
(i) Change of Control of Ecogen involving a Competitor
Company;
(ii) Event of Default by Ecogen;
(iii) Receipt by a Designated Supervisory Employee (who has
not previously been hired by Monsanto) of a bona
fide, verifiable offer of employment from a
Competitor Company containing terms reflective of the
skills and background of such person and otherwise
containing reasonably standard terms and conditions
(it being understood that a condition requiring
Ecogen to waive any confidentiality or other
significant obligation owed to Ecogen by such person
shall not be deemed reasonably standard unless such
condition is subsequently waived by the offeror
Competitor Company);
(iv) Termination of employment initiated by Ecogen of a
Designated Supervisory Employee.
(d) Monsanto acknowledges and agrees that the provisions of this
Section 4.1 have been specifically negotiated and carefully tailored with a view
to preventing the serious and
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irreparable injury that Ecogen will suffer in the event of a breach by Monsanto
of its obligations under this Section. Monsanto further acknowledges that a
breach of this Section 4.1 by it will cause irreparable injury and damage to
Ecogen, the exact amount of which will be difficult to ascertain, and that the
remedies at law for any such breach would be inadequate. Accordingly, in the
event that Monsanto breaches this Section 4.1, then Ecogen shall be entitled to
injunctive relief without posting bond or other security.
4.2 Additional Payment. In the event that Monsanto hires a Designated
Supervisory Employee, then, unless any of the events described in clauses (i)
through (iv) of Section 4.1(c) hereof shall have occurred prior to the date of
commencement of such person's service with Monsanto, Monsanto shall pay to
Ecogen the amount of $* within 30 days following such commencement date. For
greater certainty, no payment shall be due and payable pursuant to this Section
4.2 if the subject hiring is the second such hiring under Section 4.1(b) hereof.
4.3 Access to Relevant Employees and Information. Ecogen shall make no
objection to any reasonable meetings or interviews between representatives of
Monsanto and any number of Relevant Employees for the purpose of allowing
Monsanto and such Relevant Employees to investigate and consider potential
employment of such Relevant Employees with Monsanto. Monsanto may make written
offers of employment to no more than six Relevant Employees at any one time.
Monsanto shall not hire more than six Relevant Employees; provided, that the
hiring of a Relevant Employee who subsequently does not actually begin his or
her employment with Monsanto shall not be counted for purposes of this sentence.
Ecogen agrees to provide Monsanto with prompt and reasonable access to files,
records, contracts and other information pertaining to the employment and work
history of such Relevant Employees.
4.4 Cooperation. Ecogen shall cooperate reasonably with Monsanto to
ensure the prompt and orderly transition of employment of any Ecogen employee
hired by Monsanto pursuant to this Article 4. Without limiting the foregoing,
Ecogen shall cooperate with Monsanto in complying with all applicable Federal,
state and local employment, tax, labor and immigration laws and regulations.
4.5 Release.
(a) Ecogen for itself and for its Affiliates (collectively, the
"Releasor"), hereby voluntarily and knowingly releases, acquits, discharges and
covenants not to claim against any Designated Supervisory Employee, any Relevant
Employee, Monsanto, or any Affiliates, shareholders (in
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* Confidential Treatment Requested.
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their capacity as shareholders), joint venturers, predecessors or successors of
the foregoing entities and each of their respective officers, directors,
employees, agents and attorneys (each a "Releasee" and collectively, the
"Releasees") from any and all claims, demands, liens, agreements, contracts,
covenants, actions, suits, causes of action, obligations, controversies, debts,
disputes, costs, expenses, damages, judgments, orders and liabilities of
whatever kind or nature, in law or in equity, by statute or otherwise whether
now known or unknown, vested or contingent, suspected or unsuspected, which have
existed or may have existed, or do exist or may exist, of any kind which the
Releasor may have against the Releasees (i) in connection with the hiring by
Monsanto of any Releasee pursuant to Sections 4.1 or 4.3, (ii) based upon the
disclosure to Monsanto of Confidential Information, Intellectual Property Rights
or other information of Ecogen (but not the confidential information of a Third
Party to which Ecogen is subject to an obligation of confidentiality) or (iii)
based upon any noncompetition obligation to Ecogen as such obligation would
apply to activities for or on behalf of Monsanto.
(b) For purposes of this Section 4.5, any Confidential Information of
Ecogen disclosed to Monsanto by a Designated Supervisory Employee or by a
Relevant Employee who has been hired by Monsanto shall be deemed to be
Confidential Information subject to the provisions of Section 8.1 hereof.
Nothing contained in Section 4.5(a) hereof is meant to grant to Monsanto a
license or other right to use or otherwise exploit Confidential Information,
Intellectual Property Rights or other information of Ecogen that has not been
otherwise licensed or transferred to Monsanto by Ecogen.
4.6 Program Development Assistance and Other Transitional Services.
During the Remaining Term Ecogen shall assist Monsanto to develop a sustainable
Bt discovery, development and improvement program. Such assistance shall be
reasonable in light of Ecogen's then continuing personnel and other resources
and shall include, without limitation, providing Monsanto with reasonable access
to Ecogen's facilities and research employees, training of Monsanto employees,
and providing advice and recommendations to Monsanto regarding program
establishment and development. Without limiting the foregoing, during the
Remaining Term Ecogen shall assist Monsanto in the transfer of electronic
versions of (i) all bioassay, biophysical and other data associated with the Bt
strain libraries and crystal protein gene libraries acquired by Monsanto from
Ecogen on January 24, 1996 and (ii) all bioassay, biophysical and other data
generated under the Research Program from and after January 24, 1996. In
addition, to the extent feasible, during the Remaining Term Ecogen shall provide
Monsanto with reasonable stocks from its existing insect colonies. Monsanto
shall reimburse Ecogen for the reasonable out-of-pocket travel and travel
related expenses incurred by Ecogen in providing assistance and services to
Monsanto pursuant to this Section 4.6 and the amount of such expenses shall not
be included in or applied to the Research Budget.
4.7 Monsanto Noncompetition.
(a) From the Date of this Agreement through December 31, 1999 (the
"Non-Competition Period"), Monsanto agrees that it shall not engage in (i)
research and development specifically directed to, or (ii) the
commercialization, license or sale of products incorporating, Bt Microbial
Applications. Monsanto shall not enter into any arrangement, including any
ownership, joint
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venture or licensing arrangement, as a result of which Monsanto would engage,
directly or indirectly, in any significant manner, in an activity otherwise
prohibited to Monsanto by the preceding sentence of this Section 4.7(a).
(b) Monsanto acknowledges and agrees that the provisions of this
Section 4.7 have been specifically negotiated and carefully tailored with a view
to preventing the serious and irreparable injury that Ecogen will suffer in the
event of competition by Monsanto with Ecogen with respect to Bt Microbial
Applications or research during the Non-Competition Period. Ecogen is providing
the benefits set forth herein in reliance on Monsanto's representation that the
restrictions on it set forth in this Section 4.7 will not impose an undue
hardship on Monsanto because of the availability of other opportunities with
respect to the operation of its business and because of the benefit that
Monsanto will derive as a result of this Agreement. Monsanto further
acknowledges that a breach of this Section 4.7 by it will cause irreparable
injury and damage to Ecogen, the exact amount of which will be difficult to
ascertain, and that the remedies at law for any such breach would be inadequate.
Accordingly, in the event that Monsanto breaches this Section 4.7, then Ecogen
shall be entitled to injunctive relief without posting bond or other security.
(c) In the event that, despite the express agreement of Ecogen and
Monsanto, any provision of this Section 4.7 shall be determined by any court or
other tribunal of competent jurisdiction to be unenforceable for any reason
whatsoever, the parties agree that this Section 4.7 shall be interpreted to
extend only over the maximum period of time for which it may be enforceable,
and/or over the maximum geographical areas as to which it may be enforceable,
and/or to the maximum extent in any and all other respects as to which it may be
enforceable, all as determined by such court or tribunal.
4.8. Ecogen Noncompetition.
(a) During the Remaining Term, except in connection with the Research
Program, Ecogen agrees that (except to the extent of existing obligations
described on Schedule 1.12 to the Assignment Agreement) it shall not engage in
(i) research and development specifically directed to, or (ii) the
commercialization, license or sale of products incorporating, In Planta
Applications (whether or not involving Bt, Bt genes or Bt proteins). During the
period commencing on January 25, 1999 and ending on December 31, 1999, Ecogen
agrees that (except to the extent of existing obligations described on Schedule
1.12 to the Assignment Agreement) it shall not engage in (i) research and
development specifically directed to, or (ii) the commercialization, license or
sale of products incorporating, In Planta Applications involving Bt, Bt genes or
Bt proteins. Ecogen shall not enter into any arrangement, including any
ownership, joint venture or licensing arrangement, as a result of which Ecogen
would engage, directly or indirectly, in any significant manner, in an activity
otherwise prohibited to Ecogen by the preceding sentences of this Section
4.8(a).
(b) Ecogen acknowledges and agrees that the provisions of this Section
4.8 have been specifically negotiated and carefully tailored with a view to
preventing the serious and irreparable injury that Monsanto will suffer in the
event of competition by Ecogen with
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Monsanto with respect to In Planta Applications or research during the
Non-Competition Period. Monsanto is providing the benefits set forth herein in
reliance on Ecogen's representation that the restrictions on it set forth in
this Section 4.8 will not impose an undue hardship on Ecogen because of the
availability of other opportunities with respect to the operation of its
business and because of the benefit that Ecogen will derive as a result of this
Agreement. Ecogen further acknowledges that a breach of this Section 4.8 by it
will cause irreparable injury and damage to Monsanto, the exact amount of which
will be difficult to ascertain, and that the remedies at law for any such breach
would be inadequate. Accordingly, in the event that Ecogen breaches this Section
4.8, then Monsanto shall be entitled to injunctive relief without posting bond
or other security.
(c) In the event that, despite the express agreement of Ecogen and
Monsanto, any provision of this Section 4.8 shall be determined by any court or
other tribunal of competent jurisdiction to be unenforceable for any reason
whatsoever, the parties agree that this Section 4.8 shall be interpreted to
extend only over the maximum period of time for which it may be enforceable,
and/or over the maximum geographical areas as to which it may be enforceable,
and/or to the maximum extent in any and all other respects as to which it may be
enforceable, all as determined by such court or tribunal.
4.9 Employee Letter. Ecogen shall distribute promptly, and in any event
with fourteen days following the Date of this Agreement, to each Designated
Supervisory Employee and each Relevant Employees a letter in the form of Exhibit
A attached hereto releasing each such employee with respect to Monsanto from the
noncompetition restrictions contained in any agreement between such employee and
Ecogen, and advising such employees generally of Ecogen's plans to restructure
its research operations and to assist Monsanto in the development of a Bt
discovery, development and improvement program.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Monsanto. Monsanto hereby
represents and warrants to Ecogen, as of the date hereof, as follows:
(a) Monsanto is duly organized, validly existing and in good standing
under the Delaware General Corporation Law with all requisite power and
authority to own its assets and conduct its business as now conducted; Monsanto
is in good standing and duly qualified to transact business as a foreign
corporation in each jurisdiction where it is legally required to do so;
(b) the execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action on the part of Monsanto; this
Agreement has been duly executed and delivered by Monsanto and constitutes the
valid and binding obligation of Monsanto enforceable against Monsanto in
accordance with its terms;
(c) the execution and delivery of this Agreement by Monsanto and the
performance by Monsanto of its obligations hereunder will not violate or
conflict with, or constitute a breach or default under, or result in the
creation or imposition of any lien under (i) the articles of
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incorporation or bylaws of Monsanto, (ii) any applicable statute, law,
regulation, rule, judgment, order or decree or (iii) any contract, instrument,
agreement, lease, mortgage, or other restriction to which Monsanto is a party or
by which Monsanto is bound;
(d) no filing with, consent or approval or authorization of, any
governmental authority or third party is required for Monsanto to enter into and
to perform its obligations under this Agreement.
5.2 Representations and Warranties of Ecogen. Ecogen hereby represents
and warrants to Monsanto, as of the date hereof, as follows:
(a) Ecogen is duly organized, validly existing and in good standing
under the Delaware General Corporation Law with all requisite power and
authority to own its assets and conduct its business as now conducted; Ecogen is
in good standing and duly qualified to transact business as a foreign
corporation in each jurisdiction where it is legally required to do so;
(b) the execution, delivery and performance of this Agreement have been
duly authorized by the Board of Directors of Ecogen and by all necessary
corporate action on the part of Ecogen; this Agreement has been duly executed
and delivered by Ecogen and constitutes the valid and binding obligation of
Ecogen enforceable against Ecogen in accordance with its terms;
(c) the execution and delivery of this Agreement by Ecogen and the
performance by Ecogen of its obligations hereunder will not violate or conflict
with, or constitute a breach or default under, or result in the creation or
imposition of any lien under (i) the articles of incorporation or bylaws of
Ecogen, (ii) any applicable statute, law, regulation, rule, judgment, order or
decree or (iii) any contract, instrument, agreement, lease, mortgage, or other
restriction to which Ecogen is a party or by which Ecogen is bound;
(d) no filing with, consent or approval or authorization of, any
governmental authority or third party is required for Ecogen to enter into and
to perform its obligations under this Agreement.
ARTICLE 6 - INVENTIONS, LICENSES AND PATENTS
6.1 License Grant for Intellectual Property Arising Under Agreement.
Ecogen shall have a worldwide, perpetual, exclusive, fully paid up,
royalty-free, transferable license to the R&D Technology to make, have made,
offer for sale, import, use or sell products solely for Microbial Applications.
The rights granted in this Agreement include the right to grant sublicenses. In
addition, Ecogen shall have a perpetual and permanent right to hold and possess
Bt strains and genes discovered or developed hereunder, solely for Microbial
Applications. Licenses granted pursuant to this Section during the Term shall
survive the termination or expiration of this Agreement for any reason.
6.2 Rights of Monsanto: Other Than Microbial Applications. The rights
to any (i) invention related to the Field of the Agreement, conceived during the
performance under this Agreement, and not related solely to Microbial
Applications (ii) applications for a patent for the
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aforesaid invention, (iii) patent granted on such application, and (iv) all
other Intellectual Property Rights in the Field of the Agreement arising from
the performance under this Agreement and not related solely to Microbial
Applications shall be owned by Monsanto.
6.3 Rights of Ecogen: Solely Microbial Applications. The rights to any
(i) invention related to the Field of the Agreement conceived during the
performance under this Agreement and which is related solely to Microbial
Applications (ii) applications for a patent for the aforesaid invention, (iii)
patent granted on such application, and (iv) all other Intellectual Property
Rights in the Field of the Agreement arising from the performance under this
Agreement related solely to Microbial Applications shall be owned by Ecogen.
6.4 Patent Applications by Monsanto.
(a) From time to time, not less than quarterly, the Supervisory
Committee shall make a determination if any patent applications should be filed
to protect inventions conceived in accordance with this Agreement and if so the
countries in which such patent applications should be filed. In the event that
the Supervisory Committee has decided that one or more patent applications
should be filed regarding an invention that has in whole or part In Planta
Applications, Monsanto shall be responsible for the filing, prosecution and
maintenance of patent applications (and related issued patents) directed to such
rights, including all costs, expenses and taxes associated therewith. Monsanto
shall include in such patent applications such claims, including without
limitation claims relating solely or in part to Microbial Applications as Ecogen
shall reasonably request. Monsanto shall remain responsible for the filing,
prosecution and maintenance of all claims (and related patent applications and
issued patents) that are submitted in such patent applications whether or not
such claims relate solely to Microbial Applications and whether or not such
claims become the subject of divisional applications, continuation applications
or otherwise related applications directed solely to Microbial Applications.
(b) Ecogen and Monsanto shall cooperate with one another as to the
preparation and prosecution thereof, including, without limitation, the claim
language. Monsanto shall allow Ecogen, at Ecogen's own expense, to participate
to the extent requested in the preparation and prosecution of such patent
applications including, without limitation, (i) the receipt of copies of all
correspondence to or from the United States Patent and Trademark Office or
foreign patent offices, and (ii) the participation in all communications and/or
meetings with the United States Patent and Trademark Office or foreign patent
offices.
6.5 Abandonment by Monsanto. Monsanto may decide to allow any patent
application or patent directed in whole or in part to In Planta Applications
that was filed pursuant to Section 6.4 hereof to go abandoned and/or patent to
lapse, and, in such event, Monsanto may also allow any patent application,
divisional application, continuation application or patent directed solely to
Microbial Applications related (as described in the fourth sentence of Section
6.4) to such patent application or patent to go abandoned or to lapse; provided,
however, Monsanto shall have first provided Ecogen with adequate opportunity to
prosecute and/or maintain any patent application, divisional application,
continuation application or patent that Monsanto has decided to go abandoned or
to lapse. In the event Ecogen elects to prosecute and/or maintain any such
13
patent application, divisional application, continuation application or patent,
then Monsanto shall assign all of its rights thereto to Ecogen and Monsanto
shall have no license thereto or to any resulting patents; provided, however,
Ecogen shall not have any rights to In Planta Applications thereunder nor shall
Ecogen have the right to grant rights to In Planta Applications thereunder to
any Third Party.
6.6 Countries Where Patent Applications Are Not Prosecuted. In the
event the Supervisory Committee shall determine not to file a patent application
in any country with respect to an invention conceived in accordance with this
Agreement, Ecogen may decide to file, prosecute and maintain such a patent
application at its own expense and in its own name after notifying Monsanto of
such decision. Upon receipt of notice of such decision Monsanto shall assign its
rights to such invention in such country to Ecogen and Monsanto shall have no
rights with respect to such patent application or related patent in such country
unless Monsanto shall reimburse Ecogen for all of Ecogen's out- of-pocket costs
incurred after such notice including, without limitation, prosecuting the patent
application, maintaining the patent application and resulting patent or any
other administrative or legal proceeding. Upon receipt of such reimbursement
Ecogen shall grant to Monsanto a royalty-free, worldwide, perpetual exclusive
license with the right to sublicense under such patent solely for In Planta
Applications.
6.7 Patent Applications by Ecogen. Ecogen shall be responsible for the
filing and prosecution of patent applications directed solely to its rights
under Section 6.2 hereof including all costs, expenses and taxes associated
therewith. Ecogen may decide to allow any such patent application or resulting
patent to go abandoned and/or to lapse; provided, however, Ecogen shall have
first provided Monsanto with adequate opportunity to prosecute and/or maintain
any such patent application or resulting patent. In the event Monsanto elects to
prosecute and/or maintain any such patent application or resulting patent,
Ecogen shall assign all of its rights thereto to Monsanto and Ecogen shall have
the rights set forth in Section 6.1 hereof with respect to such patent
application and resulting patent.
6.8 No Warranty. Neither Monsanto nor Ecogen warrants to the other that
any patent obtained is valid or enforceable.
6.9 Other Ecogen Programs.
(a) Ecogen shall offer (the "Offer") Monsanto the opportunity to
participate in each of Ecogen's own research and development programs in
existence or commenced during the Term (the "Ecogen Programs"), other than
Excluded Technology, which are not part of the Research Program for which in
Ecogen's good faith judgment there is a reasonable expectation that the Ecogen
Program will result in technology applicable to the Field of the Agreement for
In Planta Applications. Such Offer shall be in writing and in reasonable detail
and shall be made as soon as Ecogen has a reasonable expectation that the
technology will be applicable to the Field of the Agreement. Each such Ecogen
Program shall be called a "Designated Program." Such Offer shall be made prior
to initiation of the Designated Program. For Designated Programs already under
way as of the Date of this Agreement, Ecogen shall inform Monsanto of the
existence of these Designated Programs at or before the first meeting of the
Supervisory Committee. Ecogen shall
14
have no duty to present to Monsanto an Offer for any Ecogen Programs funded by a
Third Party and Monsanto shall have no rights to such Ecogen Programs.
(b) Should Monsanto desire to have a Designated Program become subject
to this Agreement, it shall notify Ecogen of that decision within thirty (30)
days from Monsanto's receipt of the Offer. The parties shall negotiate in good
faith to modify the Research Program and increase the Budget, if necessary, to
account for the Designated Program.
(c) If Monsanto decides not to have a Designated Program become subject
to this Agreement the results and Intellectual Property arising from the
Designated Program corresponding to the Offer shall be owned solely by Ecogen
and Monsanto shall have no rights thereto.
(d) If Ecogen has not offered an Ecogen Program to Monsanto and such
Ecogen Program results during the Term and within 3 months thereafter in
technology applicable to the target pests in the Research Program, then Monsanto
shall have the option to acquire a license, on the same terms and conditions of
the Monsanto License Agreement dated of even date herewith, for such technology
for In Planta Applications by reimbursing Ecogen for Ecogen's cost in developing
such technology based upon the costs and expenses per year per researcher as if
the technology were developed pursuant to this Agreement and Monsanto had paid
the costs of such researcher pursuant to the terms of Section 3.4.
6.10 Genes Discovered by Ecogen. All genes or strains discovered by
Ecogen in Ecogen's research outside the Research Program shall be owned solely
by Ecogen; provided, however, that Ecogen hereby grants to Monsanto a perpetual,
paid-up, royalty-free worldwide license in and to Naturally Occurring Genes
applicable to the target pests of the Research Program that are discovered by
Ecogen to the extent Ecogen then has the right to do so. In that event such a
license shall be deemed to be part of the Research Program.
6.11 Other Research by Monsanto. It is envisioned that in the course of
this Agreement, evaluation of useful Bt Genes by Monsanto will create research
at Monsanto that will have application to Ecogen's performance of its
obligations under this Agreement. Manipulation of Bt Genes in microorganisms
with application to gene discovery, expression and protein stability will be
shared with Ecogen for purposes of enhancing gene discovery, expression and
protein stability in connection with Ecogen's performance of its obligations
under this Agreement. Use of such manipulation techniques for the development of
microbial pesticides shall be licensed to Ecogen in paid-up, royalty-free
worldwide license, with the right to sublicense, for use solely in Microbial
Applications.
6.12 Notice of Infringement. During the Term each party shall notify
the other of the existence of an infringement of which such party becomes aware
of an invention or other Intellectual Property Right conceived during or arising
from the performance under this Agreement.
6.13 Infringement Relating to Microbial Applications. If the
infringement referred to in
15
Section 6.12 relates to an application solely for Microbial Applications, then
Ecogen shall be solely responsible in its sole discretion for the abatement of
the infringement including settlement and the bringing of a lawsuit and all
costs and expenses of such lawsuit, provided, however, that no settlement shall
impose any affirmative obligation or obligation of payment on Monsanto without
Monsanto's prior written consent given in Monsanto's sole discretion. Monsanto
shall provide all reasonable nonmonetary assistance requested by Ecogen and
agrees to be named in the lawsuit if required by law as a necessary or
indispensable party. All recoveries and damages obtained by Ecogen shall be
owned solely by Ecogen. In the event there is a counterclaim regarding the
validity or enforceability of an Intellectual Property Right, Monsanto shall be
permitted to join in the action at its own expense, in which case any recovery
obtained or damages awarded shall be first used to reimburse Ecogen's reasonable
attorneys' fees and other out-of-pocket costs in bringing the lawsuit, then
reimbursing Monsanto's reasonable attorneys' fees and other out-of-pocket costs
in joining the action, and then all remaining recovery and damage award to
Ecogen.
6.14 Infringement Relating to Other Than Microbial Applications. If the
infringement referred to in Section 6.12 relates to an application other than
solely for Microbial Applications, then Monsanto shall be solely responsible in
its sole discretion for the abatement of the infringement including settlement
and the bringing of a lawsuit and all costs and expenses of such lawsuit,
provided, however, that no settlement shall impose any affirmative obligation or
obligation of payment on Ecogen without Ecogen's prior written consent given in
Ecogen's sole discretion. Ecogen shall provide all reasonable nonmonetary
assistance requested by Monsanto and agrees to be named in the lawsuit if
required by law as a necessary or indispensable party. All recoveries and
damages obtained by Monsanto shall be owned solely by Monsanto. In the event
there is a counterclaim regarding the validity or enforceability of an
Intellectual Property Right, Ecogen shall be permitted to join in the action at
its own expense, in which case any recovery obtained or damages awarded shall be
first used to reimburse Monsanto's reasonable attorneys' fees and other
out-of-pocket costs in bringing the lawsuit, then reimbursing Ecogen's
reasonable attorneys' fees and other out-of-pocket costs in joining the action,
and then all remaining recovery and damage award to Monsanto.
ARTICLE 7 - TERM AND TERMINATION
7.1 Term. The Term shall commence on January 24, 1996 and shall end on
January 24, 1999, unless earlier terminated pursuant to the provisions hereof.
7.2 Events of Default. Each of the following shall be deemed an "Event
of Default":
(a) a petition is filed against either party under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in effect, and the
party, as applicable, is not diligently prosecuting a dismissal of such petition
and such petition is not dismissed within 90 days after its filing;
(b) either party files a petition in voluntary bankruptcy or seeking
relief under any provision of any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt,
16
dissolution or liquidation law of any jurisdiction whether now or hereafter in
effect, or consents to the filing of any petition against it under any such law;
(c) a party admits insolvency or bankruptcy or its inability to pay its
debts as they become due or is generally not paying its debts as such debts
become due, or becomes insolvent or bankrupt or makes an assignment for the
benefit of creditors, or a custodian (including without limitation a receiver,
liquidator or trustee) of the party or any of its property is appointed by court
order or takes possession thereof;
(d) other than a failure by Monsanto to transfer funds to Ecogen under
the Research Budget in accordance with the terms of Article 3 hereof, a party
shall fail to perform any of its material obligations hereunder for a period of
90 days after written notice, specifying such failure and requesting that it be
remedied is given to such breaching party by the nonbreaching party; provided,
however, if such default is such that it can be corrected but cannot be
corrected within such 90-day period, it shall not constitute an Event of Default
if corrective action is instituted by the breaching party within such 90-day
period and diligently pursued until the default is corrected. No such default
shall remain uncured 120 days after written notice.
(e) a failure on Monsanto's part to transfer funds to Ecogen under the
Research Budget in accordance with the terms of Article 3 hereof for a period of
30 days after written notice from Ecogen, specifying such failure and requesting
that such funds be transferred.
7.3 Notice of Default. Each party agrees to give the other prompt
written notice if any petition referred to in Section 7.2(a) or 7.2(b) is filed
by or against it or of the occurrence of any other event or condition which
constitutes an Event of Default immediately upon becoming aware of the existence
thereof.
7.4 Termination of Agreement in Event of Default. If an Event of
Default shall have occurred and shall be continuing, the nonbreaching party
shall have the right to terminate this Agreement effective upon written notice
of such termination from the nonbreaching party.
7.5 Suspension of Payments During Cure Period. Notwithstanding the
period in which Ecogen has to cure a breach of this Agreement and prior to the
time in which such breach would constitute an Event of Default, Monsanto shall
have the right to suspend transfers of funds to Ecogen under the Research Budget
during the applicable cure period and prior to Monsanto's exercise of its right
to terminate this Agreement: (i) if Monsanto has in good faith given notice to
Ecogen of Ecogen's failure to perform any of its material obligations hereunder
pursuant to Section 7.2(d); or (ii) if any petition referred to in Section
7.2(a) is filed against Ecogen.
7.6 Change of Control.
(a) Notwithstanding anything contained in this Agreement to the
contrary, Monsanto shall have the right to terminate the Research Program and
all of Monsanto's obligations under Article 2 and Article 3 hereof effective
upon written notice of such termination from Monsanto at any time following the
occurrence of a Change of Control of Ecogen; provided, that upon any
17
such termination any budgeted amounts that are then unallocated or unspent shall
be retained by Ecogen free and clear of any obligation to Monsanto to perform
research or other services.
(b) For purposes of this Agreement, the term "Change of Control" shall
mean the occurrence of any of the following events with respect to Ecogen: (i)
there shall be consummated (A) any merger, consolidation or combination
involving Ecogen in which Ecogen is not the continuing or surviving corporation,
or pursuant to which shares of Ecogen's voting stock would be converted in whole
or in part into cash (excluding any such transaction in which only fractional
shares are so converted to cash), or (B) any sale, lease, exchange or transfer
(in one transaction or a series of related transactions) of all or substantially
all of the assets of Ecogen, or (ii) any person, company, corporation or other
entity shall become the beneficial owner (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934) of securities of Ecogen representing 50% or
more of the combined voting power of then outstanding securities ordinarily (and
apart from rights accruing in special circumstances) having the right to vote in
the election of directors, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise. The parties
hereto agree that a sale, lease, exchange or transfer of all or substantially
all of the Intellectual Property Rights of Ecogen shall constitute a sale,
lease, exchange or transfer (as the case may be) of all or substantially all of
the assets of Ecogen for purposes hereof. The parties hereto further agree that
a sale, lease, exchange or transfer of Ecogen assets which does not include all
or substantially all of the Intellectual Property Rights of Ecogen shall not
constitute a sale, lease, exchange or transfer (as the case may be) of all or
substantially all of the assets of Ecogen for purposes hereof, unless after
giving effect to such transaction, Ecogen would be unable to pay its debts as
they become due, would become insolvent or would cease operations as a going
concern.
ARTICLE 8 - CONFIDENTIALITY
8.1 Confidentiality. Confidential Information shall be treated by the
parties in accordance with the Confidentiality Agreement dated as of January 24,
1996.
ARTICLE 9 - LIABILITY; INDEMNITY;
PATENT INFRINGEMENT; SEVERABILITY
9.1 Limitation of Liability. It is understood and agreed that the
furnishing of any chemicals, samples or any information (including Confidential
Information) by either party pursuant to this Agreement is not to be construed
as a recommendation by that party to use the same. FURTHERMORE, WITH RESPECT TO
SUCH INFORMATION, MATERIALS, PRODUCTS, PROCESS INFORMATION, PROCESSES, ADVICE,
CONSULTATIONS, ASSISTANCE, SERVICES, LICENSES AND RIGHTS PROVIDED HEREUNDER, AND
ANY MATERIALS OR PRODUCTS MADE USING SUCH, NEITHER PARTY MAKES ANY
REPRESENTATION, WARRANTY OR GUARANTEE OF ANY KIND, EXPRESSED OR IMPLIED, AS TO
MERCHANTABILITY, FITNESS FOR PARTICULAR A PURPOSE, SATISFACTORY RESULTS BASED
UPON USE THEREOF OR RELIANCE THEREON, OR OTHERWISE, AND NEITHER PARTY SHALL BE
LIABLE TO THE OTHER FOR ANY LOSS OR DAMAGE RESULTING FROM THE RELIANCE AND/OR
USE THEREOF.
18
9.2 Indemnification. Notwithstanding the foregoing Section, each of the
parties agrees to hold the other party harmless from and against any and all
demands, claims, penalties, liabilities, causes of action, suits, damages,
judgments, losses, costs and expenses (including cost of defense, settlement and
reasonable attorneys' fees and expenses) arising out of injury to any employee
of such party resulting from or in any way connected with the performance of
this Agreement, unless arising from the other party's negligence or willful
misconduct.
9.3 Limitation on Infringement. Neither of the parties to this
Agreement shall be liable to the other party in any way for Third Party patent
infringement by said other party arising out of the use of any information
furnished to such other party pursuant to this Agreement.
ARTICLE 10 - MISCELLANEOUS
10.1 Severability. If any provision of this Agreement is found to be
unenforceable under any law applicable thereto, then that provision shall be
deemed to have been severed from this Agreement in that jurisdiction, but all
other provisions of this Agreement shall remain in full force and effect.
10.2 No Partnership Created. The parties acknowledge that this
Agreement does not constitute nor does it create any partnership or joint
venture between Monsanto and Ecogen.
10.3 Governing Law. This Agreement shall be governed by and shall be
construed to take effect according to the laws of the State of Missouri, United
States of America.
10.4 Notices. All notices or other communications which any party to
this Agreement may desire or be required to give hereunder shall be in writing
and, except for notices of meetings of the Supervisory Committee which shall be
given as reasonably agreed among the members of such Committee, shall be given
by personal delivery, by mailing the same by registered or certified mail,
postage prepaid, return receipt requested, or by facsimile transmission followed
up by a nationally recognized overnight carrier, addressed:
(a) If to Monsanto:
Monsanto Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President - Technology,
Agricultural Sector
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Monsanto Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
19
Attn: Intellectual Property Counsel
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
and (b) if to Ecogen:
Ecogen Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
Notices given by personal delivery shall be deemed given when
delivered, otherwise notices shall be deemed given when sent.
10.5 Survival. The provisions of Articles 6, 8 and 9 shall survive the
expiration or termination of this Agreement. The provisions of Article 4 hereof
shall survive the expiration or termination of this Agreement for a period of
seven years; provided, that any release pursuant to Section 4.5(a) hereof shall
be perpetual. Any license which has been granted to any party pursuant to this
Agreement, including one which has been granted under Section 6.1 hereof, shall
survive any termination of this Agreement, including a termination caused by an
Event of Default.
10.6 Counterparts. This Agreement may be signed in counterparts, both
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.7 Entire Agreement. This Agreement represents the entire
understanding of the parties hereto with respect to research and development in
the Field of the Agreement and supersedes all other and prior memoranda and
agreements between the parties hereto, other than documents executed or
delivered at the Closing of this Agreement or the Assignment Agreement.
10.8 Amendment. No amendment, modification or waiver of any term or
condition of this Agreement shall be valid or of any force or effect unless made
by written instrument signed by the parties hereto, specifying the exact nature
of such amendment, modification or waiver. Any waiver by any party of any
provision of this Agreement shall not imply a subsequent waiver of that or any
other provision.
10.9 Assignment. Neither party shall assign its rights or delegate its
performance under this Agreement without the prior written consent of the other,
other than the licenses granted hereunder, which shall be transferable without
the prior written consent of the other party.
10.10 Section Headings. The section captions and headings in this
Agreement are for convenience and reference purposes only and should not affect
in any way the meaning or interpretation of this Agreement.
10.11 No Presumption Against Drafter, Qualifications on Schedules. The
parties to this
20
Agreement have jointly participated in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement, shall be construed as if drafted jointly by the parties
and no presumptions or burdens of proof shall arise favoring any party by virtue
of the authorship of any of the provisions of this Agreement.
ARTICLE 11 - AFFIRMATIVE COVENANT
11.1 Ecogen Information. During the Remaining Term, Ecogen covenants
that it will furnish to Monsanto Quarterly Reports on Form 10-Q and Annual
Reports on Form 10-K as filed with the Securities and Exchange Commission.
21
IN WITNESS WHEREOF, each party has caused this Agreement to be
executed by its duly authorized representative effective on the date set forth
first above.
MONSANTO COMPANY ECOGEN INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
----------------------------------------- ------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Director, Mergers and Acquisitions Chairman and Chief Executive Officer