Exhibit 10.1
SETTLEMENT AGREEMENT I
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This Settlement Agreement I ("Agreement") is made, as of August 14,
2006 (the "Effective Date"), among Delta and Pine Land Company, a Delaware
corporation with its principal offices at Xxx Xxxxxx Xxx, Xxxxx,
Xxxxxxxxxxx 00000 ("DPL"), D&M International LLC, a Missouri Limited
Liability Company with its principal offices at Xxx Xxxxxx Xxx, Xxxxx,
Xxxxxxxxxxx 00000 ("D&M"), D&PL International Technology Corp., a Delaware
corporation with its principle offices at Xxx Xxxxxx Xxx, Xxxxx,
Xxxxxxxxxxx 00000 ("DITC") and Monsanto Company, a Delaware corporation
with its principal place of business at 000 X. Xxxxxxxxx Xxxx., Xx. Xxxxx,
Xxxxxxxx 00000 ("Monsanto").
WHEREAS, DPL and Monsanto have on this date entered into an Agreement
and Plan of Merger ("Merger Agreement"); and
WHEREAS, the Parties have instituted certain arbitration and
litigation proceedings as set forth below (the "Subject Proceedings"); and
WHEREAS, the Parties have come to certain agreements in connection
with the disputes that have been raised in the Subject Proceedings on terms
set forth in this Agreement; and
WHEREAS, the Parties may have other claims against each other, whether
asserted or as yet unasserted, which are intended to be preserved and not
released or affected by this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
and commitments set forth herein, the Parties understand the meaning and
legal effect of entering into this Agreement and hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the
following definitions shall apply to the terms set forth below,
and such terms may be used either in the singular or plural
context:
(a) "AFFILIATE" shall mean, with respect to a Party, any Person that
directly or indirectly, whether through one or more
intermediaries, Controls, is Controlled By, or is under Common
Control with a Party.
(b) "CLAIM" shall mean any and all claims, counterclaims, demands,
actions, causes of action, suits, damages, liabilities,
judgments, debts, claims over, accounts, warranties, liens, costs
or expenses whatsoever, wherever arising, and whether based in
contract law, tort law, equity, statute, or regulation, whether
known or unknown. A Claim shall include, but not be limited to,
any and all actions or claims for injunctive relief, patent
infringement, violations of the antitrust or competition laws,
false advertising, unfair or deceptive acts or practices, product
disparagement, unfair competition, restraint of trade, trade
secret misappropriation, breach of contract, conversion, fraud,
deceit, contempt, violations of court orders or injunctions,
costs, and/or attorney fees. A Claim shall not include any
payments due or other obligations owed under contracts or
agreements between the Parties or one or more of their Affiliates
made prior to the Effective Date of this Agreement that have not
been terminated herein or that were not otherwise at issue in the
Subject Proceedings.
(c) "CONTROL," "CONTROLLED BY," or "UNDER COMMON CONTROL WITH" shall
mean (i) the ownership, directly or indirectly, of more than
fifty percent (50%) of the voting equity interest in a Person,
and (ii) the ability, directly or indirectly, to direct or cause
the direction of the management and policies of that entity,
whether through ownership of voting securities, by contract, or
otherwise.
(d) "DPL PARTIES" shall mean DPL, D&M and DITP.
(e) "MONSANTO PARTIES" shall mean Monsanto Company ("Monsanto").
(f) "PARTIES" shall mean the DPL Parties and the Monsanto Parties.
"PARTY" shall mean one of DPL, D&M Partners, or Monsanto.
(g) "PERSON" shall mean any individual, corporation, proprietorship,
firm, partnership, limited liability company, trust, association,
or other form of business entity, whether formed under the laws
of any state of the United States, the District of Columbia, or
the laws of any foreign country or any state or political
subdivision thereof.
(h) "SUBJECT PROCEEDINGS" shall mean, collectively, the following
litigation and arbitration proceedings:
(i) Delta and Pine Land Company, et al. v. Monsanto Company, No.
1970-N, filed in the Court of Chancery of the State of Delaware,
New Castle County ("Delaware Litigation");
(ii) Delta and Pine Land Company; D&PL International Technology
Corp.; and D&M International, LLC. v. Monsanto Company, No.
50133T0013106, an arbitration proceeding pending under the
jurisdiction of the American Arbitration Association ("ICS
Arbitration"); and
(iii)Delta and Pine Land Company v. Monsanto Company, No. 50 181
T 00283 06, an arbitration proceeding pending under the
jurisdiction of the American Arbitration Association ("May 2006
Arbitration"); and
(iv) Delta and Pine Land Company v. Monsanto Company, No. 06 DU
CC00022, filed in Xxxxxxx County Circuit Court, Xxxxxxx County,
Missouri ("Missouri I Litigation"), and
(v) Monsanto Company v. Delta and Pine Land Company, No.
06CC-000761, pending in the Circuit Court of St. Louis County,
Missouri ("Missouri II Litigation").
(i) "THIRD PARTY" shall mean any Person other than the Monsanto
Parties, the DPL Parties, and any of the Parties' Affiliates.
2. TREATMENT OF SUBJECT PROCEEDINGS. Upon execution of the Merger
Agreement, the Parties shall take the following actions and agree to the
following terms:
(a) D&PL and Monsanto shall execute the Amendment to Roundup Ready
Soybean License and Seed Services Agreement of September 1, 2001, as
previously amended, in the form of Exhibit A.
(b) Within 15 days of the execution of the Merger Agreement, Monsanto
shall pay to DPL the amount of Two Million One Hundred Sixty-Seven Thousand
Eight Hundred Seventy-Three Dollars and Eighty-Nine Cents (US
$2,167,873.89) in readily available funds.
(c) The Parties shall file with the appropriate court a Stipulation of
Dismissal with Prejudice of the Delaware Litigation, with each Party to
bear its own attorneys' fees and costs, in the form of Exhibit B.
(d) The Parties shall file with the appropriate court a Stipulation of
Dismissal with Prejudice of the Missouri I Litigation, with each Party to
bear its own attorneys' fees and costs, in the form of Exhibit C.
(e) The Parties shall file with the American Arbitration Association
and the appropriate arbitration panel a Motion to Stay Proceedings in the
ICS Arbitration, in the form of Exhibit D. The Parties further agree that
they will take all reasonable efforts to have the ICS Arbitration
proceedings stayed until expiration of the Outside Date (as that term is
used in the Merger Agreement). In the event that the Merger Agreement is
terminated by DPL under Section 9.04(d) thereof, DPL and its Affiliates
shall use their best efforts, but consistent with their contractual duties
to MDM Sementes de Algodao, Ltda. ("MDM"), to have the ICS Arbitration
dismissed with prejudice by promptly filing a Stipulation of Dismissal with
Prejudice, with each Party to bear its own attorneys' fees and costs, in
the form of Exhibit E. In any event, however, DPL and its Affiliates shall
assign to or otherwise transfer to Monsanto DPL's or its Affiliates'
contractual share, as of the Effective Date of the Agreement, of any and
all recovery entered against Monsanto or its Affiliates in connection with
the ICS Arbitration. During the period in which the ICS Arbitration is
stayed, (i) DPL agrees that none of the DPL Parties or their Affiliates
shall, either directly or indirectly, assert or initiate any Claims,
proceedings or other challenges (formal or informal) to the Indemnity
Collection System of Monsanto or any of its Affiliates applicable to
Brazil, and (ii) Monsanto agrees that technology fees, net of costs of
collection (not including internal costs) collected through the ICS system
in Brazil for Bollgard(R) seed shall be distributed 44% to DPL or its
Affiliates and 56% to Monsanto or its Affiliates. In determining the
percentage distributed to DPL or its Affiliates, Monsanto shall receive
credit for any amounts paid to MDM. The Parties agree that the agreements
and actions provided for in the preceding sentence shall be without
prejudice to any position that may be taken either Party in the May 2006
Arbitration should the stay be lifted, and no evidence concerning these
agreements and actions may be introduced into evidence or referenced to in
the May 2006 Arbitration.
(f) The Parties shall file with the American Arbitration Association
and the appropriate arbitration panel a Motion to Stay Proceedings in the
May 2006 Arbitration, in the form of Exhibit F, as it relates to DPL's
claims therein regarding Egypt and Burkina Faso. The Parties further agree
that they will take all reasonable efforts to have the proceedings
regarding Egypt and Burkina Faso stayed until expiration of the Outside
Date (as that term is used in the Merger Agreement). In addition, the
Parties shall file with the American Arbitration Association and the
appropriate arbitration panel a Stipulation of Dismissal with Prejudice in
the May 2006 Arbitration, with each Party to bear its own attorneys' fees
and costs, in the form of Exhibit G, as to all of DPL's Claims arising from
or relating to its contention that any of the Monsanto Parties failed to
satisfy its "most favored licensee" obligations in connection with its
dealings with Stoneville Pedigreed Seeds ("Stoneville") or its Affiliates -
regardless whether Stoneville was an Affiliate of any of the Monsanto
Parties.
(g) The Parties shall file with the appropriate court a Stipulation of
Dismissal with Prejudice of the Missouri II Litigation, with each Party to
bear its own attorneys' fees and costs, in the form of Exhibit G.
3. MUTUAL RELEASES.
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(a) By the Monsanto Parties: The Monsanto Parties and their Affiliates
hereby release and discharge each of the DPL Parties, their respective
Affiliates, assigns, predecessors, and successors, and any and all of those
Persons' past, present, and future officers, directors, employees, agents,
licensees and attorneys from all Claims that each of the Monsanto Parties
and their respective Affiliates, assigns, predecessors, and successors, and
all of those Persons' past, present, and future officers, directors,
employees, agents, and attorneys ever had, now have, or may have for, upon,
or by reason of, any matter whatsoever, through the date of this Agreement,
arising from, encompassed by, or related to any and all matters (i) alleged
in the Missouri I and Missouri II Litigations, and/or (ii) relating to
DPL's contention in the May 2006 Arbitration that any of the Monsanto
Parties failed to satisfy its "most favored licensee" obligations in
connection with its dealings with Stoneville Pedigreed Seeds ("Stoneville")
or its Affiliates - regardless whether Stoneville was an Affiliate of any
of the Monsanto Parties.
(b) By the DPL Parties: The DPL Parties and their Affiliates hereby
release and discharge each of the Monsanto Parties, their respective
Affiliates, assigns, predecessors, and successors, and any and all of those
Persons' past, present, and future officers, directors, employees, agents,
licensees and attorneys from all Claims that each of the DPL Parties and
their respective Affiliates, assigns, predecessors, and successors, and all
of those Persons' past, present, and future officers, directors, employees,
agents, and attorneys ever had, now have, or may have for, upon, or by
reason of, any matter whatsoever, through the date of this Agreement,
arising from, encompassed by, or related to any and all matters (i) alleged
in the Missouri I and Missouri II Litigations, and/or (ii) relating to
DPL's contention in the May 2006 Arbitration that any of the Monsanto
Parties failed to satisfy its "most favored licensee" obligations in
connection with its dealings with Stoneville Pedigreed Seed Company
("Stoneville") or its Affiliates - regardless whether Stoneville was an
Affiliate of any of the Monsanto Parties. In the event that the Merger
Agreement is terminated by DPL under Section 9.04(d) thereof, the foregoing
release shall also include, effective as of the date of such termination,
all Claims arising from, encompassed by, or related to any and all matters
asserted in the ICS Arbitration.
(c) Parties Not Released: The releases set forth in paragraphs 3(a)
and 3(b) of this Agreement do not include any Claim by any Party or its
Affiliates against (and are expressly not for the benefit of) any Third
Party not specifically referred to or described in Paragraphs 3(a) or 3(b)
hereof.
(d) Matters Not Released:
Solely for the avoidance of doubt, the Parties agree that only the
claims asserted within the Subject Proceedings and identified above are the
subject of the above releases or other resolution of disputes set forth
above in this Paragraph 3.
4. COVENANT NOT TO XXX. The DPL Parties and their respective
Affiliates on the one hand and the Monsanto Parties and their respective
Affiliates on the other expressly covenant never to institute or prosecute
against the other in any administrative proceeding, arbitration proceeding,
suit, or action of any kind or nature whatsoever, at law or in equity, any
Claim released in this Agreement; provided that nothing contained in this
paragraph shall release, remise, discharge or acquit a Party's claims,
regardless of the legal theory upon which they are based, against any other
Party for the alleged breach of or to seek the enforcement of this
Agreement. Provided, however, nothing in this Agreement shall affect any
Claim or counterclaim in Delta and Pine Land Company v. Monsanto Company,
2005-IA-00015-SCT, consolidated with Delta and Pine Land Company v.
Monsanto Company, 2005-IA-00016-SCT, or Delta and Pine Land Company v.
Monsanto Company, et al., Civil Action No. 2000-1, pending in the Circuit
Court of the First Judicial District of Bolivar County, State of
Mississippi, or in any other legal proceeding or arbitration not otherwise
specifically released herein.
5. NO TRANSFER OF RELEASED CLAIMS. Each Party hereto represents and
warrants that it has not prior to the Effective Date, and will not in the
future, sell, transfer, assign or othewise hypothecate to any Third Party
that would not be bound hereby any Claim released by this Agreement
existing prior to the date hereof and each Party will defend, indemnify and
hold harmless the other Party from any actions by any Third Party asserting
any such Claim.
6. DENIAL OF LIABILITY. Each Party hereto expressly denies any
liability with respect to the Claims made against it in the Subject
Proceedings.
7. FUTURE DISCOVERY. Each Party acknowledges that it may hereafter
discover facts relating to the Subject Proceedings that occurred prior to
the date of this Agreement that are different from, or in addition to,
those which it now knows or believes to be true, and each Party agrees that
this Agreement shall be and remain effective and applicable in all
respects, notwithstanding such different or additional facts, or the
discovery thereof.
8. BINDING NATURE. This Agreement shall be binding upon, impose
obligations upon, and inure to the benefit of each of the Parties, their
respective Affiliates, and their respective permitted successors and
assigns.
9. GOVERNING LAW. The internal laws of the State of Delaware
(excluding its choice of law or conflicts of law provisions) shall govern
the interpretation, performance and enforcement of this Agreement.
10. SUBMISSION TO JURISDICTION. Each of the Parties irrevocably agrees
that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and
enforcement of any judgment in respect of this Agreement and the rights and
obligations arising hereunder brought by the other Party hereto or its
successors or assigns shall be brought and determined exclusively in the
Delaware Court of Chancery, or in the event (but only in the event) that
such court does not have subject matter jurisdiction over such action or
proceeding, in the United States District Court for the District of
Delaware. Each of the Parties hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect of its property,
generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and agrees that it will not bring any action relating to
this Agreement or any of the transactions contemplated by this Agreement in
any court or tribunal other than the aforesaid courts. Each of the Parties
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with
respect to this Agreement and the rights and obligations arising hereunder,
or for recognition and enforcement of any judgment in respect of this
Agreement and the rights and obligations arising hereunder (i) any claim
that it is not personally subject to the jurisdiction of the above named
courts for any reason, (ii) any claim that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise) and (iii) to the fullest extent permitted by the
applicable law, any claim that (x) the suit, action or proceeding in such
court is brought in an inconvenient forum, (y) the venue of such suit,
action or proceeding is improper or (z) this Agreement, or the subject
matter hereof, may not be enforced in or by such courts.
11. WAIVER OF JURY TRIAL. Each Party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues and, therefore, each such Party
irrevocably and unconditionally waives any right it may have to a trial by
jury in respect of any legal action arising out of or relating to this
Agreement or the transactions contemplated by this Agreement. Each party to
this Agreement certifies and acknowledges that (i) no representative of any
other Party has represented, expressly or otherwise, that such other Party
would not seek to enforce the foregoing waiver in the event of a legal
action, (ii) such Party has considered the implications of this waiver,
(iii) such Party makes this waiver voluntarily, and (iv) such Party has
been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications contained in this paragraph.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof, and all prior
negotiations and understandings between the Parties relating to the subject
matter hereof shall be deemed merged into this Agreement.
13. VOLUNTARILY AND KNOWINGLY. The Parties each acknowledge that they
have read this Agreement and understand all of its terms, and that these
documents are being executed voluntarily, without duress, and with full
knowledge of their legal significance. The Parties each acknowledge that
they have received independent legal advice from their respective attorneys
with respect to the legal consequences of entering into these agreements.
14. CONSTRUCTION. The Parties agree that in the event of any dispute
concerning the interpretation or construction of this Agreement, no
presumption shall exist with respect to the Party initially drafting the
Agreement. The Parties each agree they have had ample opportunity to
influence the choice of language and terms in this Agreement.
15. REPRESENTATIONS. The DPL Parties and Monsanto Parties each
represent and warrant that they have full capacity and authority to settle,
compromise, and release their Claims and the Claims of their respective
Affiliates as set forth herein, and that no other person or entity has, or
will in the future, acquire or have any right to assert against any person
or entity released by this Agreement any portion of that Party's or its
Affiliates' released Claims.
16. SUFFICIENCY OF CONSIDERATION. Other than the obligations set forth
in this Agreement, the Parties each acknowledge and agree that no
additional consideration is required or owing to the other, and that
sufficient consideration has passed between them to render the Agreement
valid and enforceable.
17. MODIFICATIONS. This Agreement may not be amended, altered, or
modified, in whole or in part, except by an instrument in writing executed
by the Parties thereto.
18. WAIVER. Any failure by any Party to this Agreement to insist upon
the strict performance by another Party of any of the provision of this
Agreement shall not be deemed a waiver of any of the provisions of this
Agreement and such Party, notwithstanding such failure, shall have the
right thereafter to insist upon the specific performance of any and all of
the provisions of this Agreement. There shall be no estoppel against the
enforcement of any provision of this Agreement, except by written
instruments signed by the Party charged with the waiver or estoppel; no
written waiver shall be deemed a continuing waiver unless specifically
stated therein, and the written waiver shall operate only as to the
specific term or condition waived, and not for the future or as to any
other act than that specifically waived.
19. SEVERABILITY. If any clause, provision, or section of this
Agreement shall, for any reason, be held illegal, invalid or unenforceable,
the Parties shall negotiate in good faith and in accordance with reasonable
standards of fair dealing, a valid, legal, and enforceable substitute
provision or provisions that most nearly reflect the original intent of the
Parties under this Agreement in a manner that is commensurate in magnitude
and degree with the changes arising as a result of any such substitute
provision or provisions. All other provisions in this Agreement shall
remain in full force and effect and shall be construed in order to carry
out the original intent of the Parties as nearly as possible (consistent
with the necessary reallocation of benefits) and as if such invalid,
illegal, or unenforceable provision had never been contained herein.
20. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be considered and shall have the force
and effect of an original and all of which together shall constitute one
and the same document.
21. HEADINGS. The various headings used in this Agreement are for
reference purposes only and are not to be used in interpreting the text of
the paragraph in which they appear or to which they relate.
22. NOTICES. Any notice required or permitted by this Agreement shall
be in writing and served either (1) by hand delivery or (2) by facsimile
and United States mail, first-class, postage prepaid, and addressed to the
facsimile and address set forth below:
If to the DPL Parties:
Delta and Pine Land Company
Office of the Chief Executive Officer
Xxx Xxxxxx Xxx
Xxxxx, XX 00000
Fax: (000) 000-0000
or such other person and/or address as DPL designates in writing.
If to the Monsanto Parties:
Monsanto Company
Office of the General Counsel
000 Xxxxx Xxxxxxxxx Xxxx.
Xxxxxxxx X
Xx. Xxxxx, XX 00000
Fax: (000) 000-0000
or such other person and/or address as Monsanto designates in
writing.
23. ATTACHMENTS AND EXHIBITS. The Attachments and Exhibits form an
integral part of this Agreement.
Signature page to follow
D&M INTERNATIONAL LLC DELTA AND PINE LAND COMPANY
BY D&PL INTERNATIONAL
TECHNOLOGY CORP.
By /s/ X.X. Xxxxxx By /s/ X.X. Xxxxxx
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Title Senior Vice President Title Senior Vice President
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Date August 14, 2006 Date August 14, 2006
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MONSANTO COMPANY D&PL INTERNATIONAL TECHNOLOGY CORP.
By /s/ Xxxxxxx X. Xxxxx By /s/ XX Xxxxxx
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Title Chief Financial Officer Title Senior Vice President
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Date August 14, 2006 Date August 14, 2006
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EXHIBIT A
AMENDMENT TO ROUNDUP READY(R) SOYBEAN LICENSE AND SEED SERVICES
AGREEMENT OF SEPTEMBER 1, 2001
Delta and Pine Land Company, a Delaware corporation, and Monsanto Company,
a Delaware corporation, are parties to a certain Roundup Ready(R) Soybean
License and Seed Services Agreement of September 1, 2001 (hereinafter
referred to as the "Agreement").
All capitalized terms, not otherwise defined in this Amendment, shall have
the meanings defined in the Agreement.
The parties agree to amend the Agreement, effective as of the 2007 growing
season, as follows:
1. In Subsection 3.10(b), delete the words in the first parenthetical
"replants and." At the end of that Subsection, add the following
sentence, "For the avoidance of doubt, the parties agree that the
number of UNITS sold by LICENSEE less returns to LICENSEE from its
direct customers shall be the "net number of UNITS transferred to
growers" in calculating the ROYALTY. UNITS that are sold and later
must be replanted as well as UNITS sold for replanting purposes are to
be included in "net number of UNITS transferred to growers"."
All other terms and conditions of the Agreement remain the same.
DELTA AND PINE LAND COMPANY MONSANTO COMPANY
By By
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Title Title
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Date Date
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