Common use of Competing Investments Clause in Contracts

Competing Investments. From and after the date hereof, and following the Closing for so long as the Ownership Cap is 18% or more and no Trigger Event or Release Event shall have occurred, the Company shall not consummate or agree pursuant to a binding agreement to consummate a Competing Investment at any time prior to the fourth anniversary of the date of this Agreement. So long as the Ownership Cap is 18% or more and no Trigger Event or Release Event shall have occurred, the Company shall not consummate or agree pursuant to a binding agreement to consummate a Competing Investment at any time after the fourth anniversary of the date of this Agreement, unless (a) the Company shall have provided the Investor prior written notice of such proposed Competing Investment at least 30 days prior to the earlier of the consummation of or the entering into a binding agreement providing for such Competing Investment specifying the principal terms thereof (including the form and amount of such Competing Investment and the identity of the Competitor proposing to make such Competing Investment) (such notice, the "Competing Investment Notice") and (b) the Competitor shall have agreed in the Competitor Agreement or otherwise that (x) neither it nor any of its Affiliates or Associates (including any of its designees on the Board) will have access to any DuPont Proprietary Information or Joint Intellectual Property (as such terms are defined in the Research Alliance Agreement) except pursuant to a sublicense from the Company with respect to Pioneer Products (as defined in the Research Alliance Agreement) that is permitted pursuant to the Research Alliance Agreement, (y) upon any breach of the agreement referred to in clause (x) above, and so long as the Investor shall have the right to designate any Investor Nominees for election or appointment to the Board pursuant to Section 5 (and without limiting any other remedies the Investor may otherwise have), the Competitor will cause all designees of the Competitor on the Board to immediately resign and the Competitor will not have any rights to nominate any other persons to the Board, and (z) the provisions of the agreement referred to in this clause (b) shall be for the express benefit of the Investor and the Investor shall be a third party beneficiary thereof. The Investor shall have the right, which may be exercised by written notice to the Company delivered during the period commencing on the date of delivery of the Competing Investment Notice to the Investor and ending on the date which is the later of (i) the 30th day thereafter, (ii) the execution by the Company of a binding agreement providing for the Competing Investment (or, if no such agreement is executed, the consummation of such Competing Investment) and (iii) the second Business Day after the Company notifies the Investor in writing it will execute an agreement effectuating (or consummate, as the case may be) the transactions contemplated in the preceding clause (ii), provided that such notification shall not be deemed given unless such agreement is in fact executed (or transaction consummated, as the case may be) within such two Business Day period, notwithstanding the provisions of Section 6.1(A), to discuss the merits of the Competing Investment with the Company and the Board or to make alternative public or private proposals with respect thereto. The Investor shall also have the right, exercisable by delivering a notice (the "Competitor Release Notice") to the Company within the time period specified below, of its election to immediately terminate the Formation Agreement (the election of the Investor to so terminate the Formation Agreement, a "Release Event"), which termination shall be carried out, (i) if the Competing Investment resulting in such Release Event occurs or is consummated, or if the agreement providing therefor is executed by the parties thereto, prior to the seventh anniversary of the date of this Agreement, in accordance with the provisions of Section 9.2(d)(X) of the Formation Agreement as if an Involuntary Default described therein had occurred (and as if the Investor was the non-defaulting "Party" for purposes of Section 9.2(d)(X) of the Formation Agreement) upon consummation of the Competing Investment, and (ii) in all other cases, in accordance with the provisions Section 9.2(d)(Y) of the Formation Agreement as if an Involuntary Default described therein had occurred (and as if the Investor was the non-defaulting "Party" for purposes of Section 9.2(d)(Y) of the Formation Agreement). A Release Event shall be irrevocable and binding upon the Investor and the Company, except that (A) the Investor may, in the case of a termination carried out in accordance with clause (i) of the preceding sentence, rescind such Release Event (in which event all rights and obligations of the parties shall be as if no Release Event shall have ever occurred) for a period of five Business Days after the determination of Fair Market Value (as defined in, and calculated pursuant to, the Formation Agreement) by delivering a written notice of such rescission to the Company within such period, and (B) the Investor may rescind such Release Event (in which event all rights and obligations of the parties shall be as if no Release Event shall have ever occurred) for a period of five Business Days following the entry of a final and non-appealable Order as contemplated by the following sentence and (C) the Release Event shall automatically be rescinded (in which event all rights and obligations of the parties shall be as if no Release Event shall have occurred) if the Competing Investment which triggered such Release Event was not consummated, as advised in writing by the Company to the Investor. The closing of the transfer of the Investor's or the Company's Venture Interest, as applicable (as defined in the Formation Agreement) following a Release Event shall be as soon as practicable following the expiration or termination of all waiting periods, if any, under the HSR Act and in any event no later than the later to occur of (I) 15 days after the delivery of the Competitor Release Notice and (II) 5 business days after the expiration or termination of all waiting periods, if any, under the HSR Act, subject to no Order having been entered, promulgated or enforced by a court or governmental authority of competent jurisdiction which prohibits such transaction (and the Investor and the Company shall use commercially reasonable efforts to have any such Order lifted or terminated in order to allow consummation of such transaction unless and until such time as such Order becomes final and non-appealable). The Competitor Release Notice, in order to result in the rights described above, must be delivered by the Investor to the Company within twenty Business Days after the earlier of (i) the public announcement by the Company of the consummation of the Competing Investment, and (ii) the Company notifying the Investor in writing that the Competing Investment has been consummated (and the Company agrees to promptly so notify the Investor); provided, however, that the Investor may deliver a Competitor Release Notice at any time after it becomes aware of the consummation of a Competing Investment until twenty Business Days after either of the events described in clauses (i) or (ii) above shall have occurred. Notwithstanding anything to the contrary in this Agreement, following consummation of the Competing Investment, the Investor, with the consent of the Company, may engage in discussions with the Company as to matters relating to the Joint Venture Agreement (including the entity established pursuant to the Formation Agreement) and the Research Alliance Agreement, including the terms of a purchase or sale of any interest therein. Notwithstanding anything herein to the contrary, solely for purposes of Section 5.2(z), 6.2(e) and clause (iii) and the reference to Sections 8.1(b) and (c) contained in the second to last sentence of Section 6.9, the Release Event will not be deemed to have occurred (and the rights and obligations of the parties referenced therein will not come into effect) until the earlier of (I) the time, following a Release Event, of the consummation of the transfer of the Company's or the Investor's Venture Interest, as applicable (each as defined in the Formation Agreement) in connection with such Release Event and (II) six months following such Release Event. Upon the occurrence of a Release Event, (i) the Standstill Period shall be extended, in respect of the sections indicated, and to the extent provided, in Section 10.2(iv), (ii) the Company shall file and use commercially reasonable efforts to obtain and maintain the effectiveness of a shelf registration statement on the terms set forth in the Registration Rights Agreement, (iii) the Investor shall immediately cause all of the Investor Nominees then serving on the Board to offer their resignations from the Board, and the Company's obligations to designate Investor Nominees to the Board pursuant to Section 5 shall terminate, (iv) the parties' obligations and rights pursuant to Section 6.7(a), Section 8.1(b) and (c), Section 8.2, Section 8.3 and Section 8.8 shall terminate, (v) the provisions of Section 6.3(g) shall thereafter apply and (vi) the provisions of Section 6.1(A), Section 6.2(e), Section 6.6, Section 6.7(b) through (e) and Section 6.8 shall remain in full force and effect in perpetuity. The rights of the Investor to terminate the Formation Agreement pursuant to Section 6.9 and Section 8.2(c) hereof shall automatically be transferred and assigned at the election of the Investor, upon notice to and acknowledgment by the Company of such notice, but without any consent required on the part of the Company, to any Spin-Off Entity (which term, for purposes of this sentence, shall include any Person who would otherwise be deemed a Spin-Off Entity but for such Person's status as a Subsidiary of the Investor) which is a Subsidiary of the Investor or satisfies each of the conditions set forth in clauses (i) through (v) of the definition of the term "Sale of Ag Products."