EX-10.21
CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document have been
omitted pursuant to a request for confidential treatment and, where applicable,
have been marked with an asterisk ("[****]") to denote where omissions have been
made. The confidential material has been filed separately with the Securities
and Exchange Commission.
CONFIDENTIAL
JOINT DEVELOPMENT AND JOINT MARKETING AGREEMENT
BETWEEN
METAMORPHIX, INC. AND EXCEL CORPORATION AND XXXXXXX, INC.
CONFIDENTIAL
JOINT DEVELOPMENT AND JOINT MARKETING AGREEMENT
This Joint Development and Joint Marketing Agreement (the "Agreement") is
entered into as of May 6, 2002 (the "Effective Date") by and between
METAMORPHIX, INC., a Delaware corporation, having a place of business at 0000X
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 ("MMI") and EXCEL CORPORATION, a Delaware
corporation and a subsidiary of Xxxxxxx, Xxxxxxxxxxxx, having a place of
business at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000 ("Excel"), and -
XXXXXXX, XXXXXXXXXXXX, a Delaware corporation, through its Caprock business
unit, having a place of business at 00000 XxXxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxx
00000 ("Caprock")(Excel and Caprock may be collectively referred to herein as
the "The Cargill Entities"), each hereinafter individually referred to as the
"Party" and collectively as the "Parties."
RECITALS
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WHEREAS, MMI has developed and licensed in resources and expertise in
the areas of on-line information, discovery sciences, discovery services, and
agricultural products that are based on MMI's generation, integration, and
analysis of biological information and that enable agricultural research and
discoveries by the members of the agriculture industry and research community;
and
WHEREAS, Excel is engaged in the business of processing cattle and other
livestock into various meat and animal-derived products, and the sale of such
products; and
WHEREAS, Caprock is engaged in the business of raising and feeding beef
cattle; and
WHEREAS, The Cargill Entities, subject to the terms and conditions of
this Agreement, desire to have MMI perform the discovery services as described
in this Agreement for them, and MMI desires to obtain certain information and
data from The Cargill Entities as described in this Agreement; and
WHEREAS, The Cargill Entities and MMI intend to work together toward
jointly developing and jointly commercializing products through the utilization
of the discovery services, information, and data that are the subject of this
Agreement; and
WHEREAS, MMI, subject to the terms and conditions of this Agreement, is
willing to perform the discovery services as set forth in this Agreement for The
Cargill Entities, and The Cargill Entities, subject to the terms of this
Agreement, are willing to provide MMI with the information and data as set forth
in this Agreement.
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AGREEMENT
---------
NOW, THEREFORE, the Parties agree, covenant, represent, and warrant as
follows:
1 DEFINITIONS
For purposes of this Agreement, each capitalized term used shall have the
meaning assigned to it in Exhibit A or otherwise in this Agreement.
2 PERFORMANCE AND GOVERNANCE OF THE WORK PLAN
2.1 PRIMARY CONTACTS AND STEERING COMMITTEE. The Parties shall form a six
(6) person steering committee (the "Steering Committee") to monitor the
research and development activities under this Agreement and perform the
functions as provided below. MMI and The Cargill Entities each shall
appoint three (3) representatives to serve on the Steering Committee,
and each shall designate one of its representatives to be the primary
contact between them and to serve as the co-chairs of the Steering
Committee. These primary contacts shall be responsible for day-to-day
communication between the Parties and for preparing and retaining
summaries of all communications for at least three (3) years after the
date of Complete Delivery. Each Party may substitute any or all of its
representatives to the Steering Committee upon written notice to the
other Party. Prior written notice (of at least three (3) days and to all
members) must be given of all meetings (whether held in person or by
telephone conference), at least four (4) members of the Steering
Committee must be present to constitute a quorum, and any decisions,
recommendations, or other authorized actions of the Steering Committee
shall be made only by a majority vote of all six members of the
Committee (i.e., by at least four (4) members voting in the
affirmative).
2.1.1 The Steering Committee shall:
(a) Monitor issues relating to the Work Plan (which is
attached to this Agreement as Exhibit B and incorporated
by reference herein) and to the Joint IP.
(b) Monitor, discuss, and make recommendations on matters
relating to Joint IP (including, but not limited to, the
advisability of filing a patent upon any specific
association or other item of Joint IP);
(c) Assess the research requirements, time frames, and work
prioritization of the Work Plan. The Steering Committee
shall have the authority to extend any deadlines or time
frames under the Work Plan by no more than sixty (60)
days. Should either Party seek an extension beyond 60
days, it must be approved in writing
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by the Chief Executive Officer of MMI (or his authorized
designee) and the designated Business Manager for The
Cargill Entities.
(d) Meet following the completion or purported completion of
each Part of the Work plan, within 30 days following
delivery by MMI to The Cargill Entities of the required
Deliverable(s) applicable to such Part of the Work Plan,
to (1) discuss and assess the Deliverable(s), and (2)
make a recommendation as to whether or not the Parties
should proceed to the next Part of the Work Plan. In the
event that the recommendation of the Steering Committee
is to proceed to the next Part of the Work Plan, the
Parties shall so proceed. In the event that the Steering
Committee recommends that the Parties not proceed to the
next Part or in the event that the Steering Committee
cannot reach a majority vote on the issue, the Parties
shall follow the procedure set forth in Section 12.12.
(e) Following completion of the Work Plan, turn its
attention and efforts toward commercialization of the
Joint IP and associated products and services. In this
regard, the Steering Committee shall, keeping in mind
the Core Commercialization Concepts (as defined in
Section 8), meet on a regular basis to discuss, evaluate
alternatives, and make recommendations relating to the
commercialization of the Joint IP and the execution of a
definitive Joint Commercialization Agreement.
2.1.2 The Steering Committee shall NOT have any authority to:
(a) amend the Work Plan, other than with respect to the
extension of deadlines as specifically described in
Section 2.1.1(d) above;
(b) amend this Agreement; or
(c) bind any of the Parties to any obligation or commitment
in addition to or different from those contained in this
Agreement.
2.2 WORK PLAN. The Parties shall use their commercially reasonable efforts
to complete the research and activities in the Work Plan in accordance
with the schedule set forth therein.
2.3 MATERIAL, DATA AND/OR INFORMATION TRANSFER.
2.3.1 The Cargill Entities shall provide MMI with the Samples in the
amount and of the quality set forth in the Work Plan for MMI to
use for purposes set forth in this Agreement and to complete the
Work Plan. The Cargill Entities further shall describe in
writing each transfer of any Sample to MMI. In the event that
The Cargill Entities fail to deliver the Samples as required by
the Work Plan, then MMI shall provide written notice to The
Cargill Entities' co-chair of the Steering Committee and the
time for MMI
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to provide each affected Deliverable and Complete Delivery to
Excel shall be extended by a number days equal to the number of
days that passed from the due date for such Samples until the
date that The Cargill Entities delivered the required Samples to
MMI.
2.3.2 MMI shall (a) use The Cargill Entities' Material solely to meet
its obligations under this Agreement, and (b) either (i) if
requested by The Cargill Entities in timely fashion, return all
residual Samples to The Cargill Entities (or another site
designated by The Cargill Entities') at the expense and risk of
The Cargill Entities within thirty (30) calendar days after the
date of Complete Delivery or termination of this Agreement or
(ii) destroy all residual Samples within thirty (30) calendar
days after the date of Complete Delivery or termination of this
Agreement. MMI shall not distribute, release, sell, disclose, or
otherwise transfer the Samples to any Third Party, except as
otherwise may be permitted under Section 4 (Confidentiality).
2.3.3 The Cargill Entities reserve the right to use the Samples and,
subject to the terms of this Agreement, transfer them to any
Third Party.
2.4 DATA ACCUMULATION. Immediately upon completion of each Part of the Work
Plan, MMI shall deliver to The Cargill Entities the applicable
Deliverable(s) as set forth in the Work Plan and Section 3.2. In
addition, MMI shall record and store the data and information as it is
generated and accumulated under the Work Plan in one or more computer
databases in anticipation of the delivery of certain confidential data
and information in furtherance of Section 7.8.
3 PAYMENTS
3.1 PAYMENTS BY THE CARQILL ENTITIES TO MMI. The Cargill Entities shall
share in the costs of the activities and services performed by MMI under
the Work Plan by making payments to MMI as set forth in Exhibit C.
Except for the Initial Payment, it is the intent of the Parties that The
Cargill Entities shall be obligated to make a given payment to MMI only
following the full and successful completion of each Part of the Work
Plan upon delivery by MMI of the required Deliverable(s).
3.2 MMI DELIVERY OF DELIVERABLE(S). When MMI believes that it has completed
a given Part of the Work Plan, it shall deliver to The Cargill Entities
the required Deliverable(s) which shall be accompanied by (1) a written
statement confirming that all of the required actions and services under
the Work Plan have been completed and that all of the required
Deliverable(s) have been delivered and (2) an invoice for the applicable
payment amount as set forth on Exhibit C.
3.3 REVIEW OF DELIVERABLE(S) BY THE CARQILL ENTITIES. Upon receipt from MMI
of all of the Deliverable(s) and the written documentation described in
Section 3.2, The Cargill Entities shall have a period of thirty (30)
days to examine the Deliverables
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and make a determination, in its reasonable judgment, as to whether MMI
has completed all of the required actions and services and delivered all
of the required Deliverable(s).
3.3.1 In the event that The Cargill Entities determine that all
required Deliverable(s) have been successfully delivered, The
Cargill Entities shall remit payment to MMI within ten (10) days
following the 30 day period evaluation period. If such payment
is not received on or before such tenth (10th) day, then MMI may
provide written notice to The Cargill Entities' co-chair of the
Steering Committee and have the time for MMI to provide the
Deliverable(s) for the next Part of the Work Plan shall be
extended by a number of days equal to the number of days that
passed from the due date for such payment until the date upon
which MMI receives such payments.
3.3.2 In the event that The Cargill Entities determine that all
required Deliverable(s) have not been delivered, (1) The Cargill
Entities shall advise MMI in writing of its determination within
the 30 day evaluation period specifying, in detail, the areas of
deficiency and (2) The Cargill Entities' obligation to remit the
applicable payment and MMI's obligation to proceed with the next
Part of the Work Plan shall be suspended pending a resolution of
the matter as described in Section 3.3.3 below.
3.3.3 In the event The Cargill Entities provide written notice to MMI
of deficiencies as described in Section 3.3.2 above, MMI shall
either:
(a) make an effort to address the deficiencies cited by The
Cargill Entities and make a corrective delivery of all
of the required Deliverable(s) within 30 days following
receipt of The Cargill Entities' notice, in which case
Cargill shall have a further 30 day period to evaluate
the corrective Deliverable(s). In the event that The
Cargill Entities determine, in its reasonable judgment,
that all required Deliverable(s) have been delivered,
The Cargill Entities, shall remit payment to MMI within
ten (10) days following the earlier of the end of the
30-day period evaluation period or such determination.
In the event The Cargill Entities again determine that
all required Deliverable(s) have not been delivered, (1)
The Cargill Entities shall advise MMI in writing of its
determination within the new 30-day evaluation period
specifying the areas of deficiency, thereby initiating
one (1) additional and final 30-day cure period or (2)
if a reasonable determination can be made that such
Deliverable(s) are incapable of ever being delivered
(due to scientific impossibility, impracticability of
the effort, or MMI's abandonment of the project), The
Cargill Entities shall thereupon have the right to
declare MMI in breach and terminate this Agreement with
immediate effect by providing written notice to
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MMI, in which case ownership and rights in and to the
Joint IP shall be as set forth, as the case may be, in
either Section 5.3.2 or Section 7.2.1. The Cargill
Entities shall have no further obligation to remit the
applicable payment, nor any further payments whatsoever,
to MMI, subject to MMI's right to refer the matter to
binding arbitration in accordance with Section 12.12; or
(b) advise The Cargill Entities in writing (i) that it
disagrees with The Cargill Entities notice, (ii) that it
reasserts that its belief that all of the required
Deliverable(s) have been delivered, and (iii) while
reserving the right to delivery additional or different
Deliverable(s), that it is submitting the matter to
binding arbitration in accordance Section 12.12.
3.4 NONREFUNDABLE NATURE. All payments made by The Cargill Entities
hereunder are nonrefundable, but the making of any payments by The
Cargill Entities to MMI shall in no way prevent or preclude The Cargill
Entities from seeking, pursuing, and/or recovering any rights and
remedies available under this Agreement.
3.5 TAXES. All amounts payable under this Agreement are exclusive of all
sales, use, value-added, withholding, and other taxes and duties. The
Cargill Entities shall pay all sales and use taxes and duties assessed
in connection with the sale of products to or performance of services
for The Cargill Entities under this Agreement and its performance by any
authority within or outside of the U.S. The Parties shall be solely
responsible for the payment of any and all taxes payable on their
respective net income and the payment of any and all employment related
taxes attributable to their respective employees, agents, and
representatives.
3.6 FAILURE BY THE CARQILL ENTITIES TO MAKE TIMELY PAYMENT.
3.6.1 NOTICE AND RIQHT TO TERMINATE. In the event that MMI has not
received a payment from The Cargill Entities due hereunder
within the prescribed time period in violation of the terms of
this Agreement, MMI shall notify The Cargill Entities in writing
of such non-payment. In the event that MMI has not received
payment within fifteen (15) days after receipt by The Cargill
Entities of such notice from MMI, MMI shall have the right to
suspend further work under the Work Plan and/or suspend The
Cargill Entities' rights to the Joint IP. In the event that such
payment is not made within thirty (30) days of The Cargill
Entities' receipt of such notice, MMI also shall have the right
to declare The Cargill Entities in default and terminate this
Agreement with immediate effect by providing written notice to
The Cargill Entities in accordance with Section 7.2, in which
case ownership and rights in and to the Joint IP and liability
of The Cargill Entities shall be as set forth in Section 7.2.
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3.6.2 LATE PAYMENT FEE. Any payment due under this Agreement that is
not paid within the specified time period in violation of the
terms of this Agreement, shall bear interest to the extent
permitted by applicable law, at two percentage points (2%) over
the prime rate of interest compounded on an annual basis as
reported by Bank of America NT&SA in San Francisco, California,
from time to time, calculated on the number of days such payment
is delinquent.
4 CONFIDENTIALITY AND PUBLICATION
4.1 CONFIDENTIALITY. The Parties acknowledge that the Confidentiality
Agreements shall control all disclosures from its effective date up to
and until the Effective Date of this Agreement. The Parties agree that
each Confidentiality Agreement is hereby superseded as of the Effective
Date of this Agreement by the terms and conditions set forth in this
Section 4 and the other applicable terms and conditions set forth in
this Agreement.
4.1.1 The Parties acknowledge that during the course of this Agreement
they may each receive (and hence become a "Receiving Party")
from the other (the "Disclosing Party") information
electronically, in writing, or orally, that is proprietary
and/or confidential and of commercial value to the Disclosing
Party. The Parties agree that they shall take all reasonable
measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information. Without
limiting the foregoing, the Parties shall take at least those
measures that each takes to protect its own confidential
information of a similar nature, but in no event less than a
reasonable degree of care. Both Parties shall immediately notify
the other in the event either Party has knowledge of any
unauthorized use or disclosure of the Confidential Information.
4.1.2 Except to the extent expressly authorized by this Agreement, the
Parties agree that the Receiving Party shall keep confidential
and shall not publish or otherwise disclose, and shall not use
for any purpose, any Confidential Information furnished to it by
the Disclosing Party pursuant to this Agreement, regardless of
the medium on which it is provided, including know-how, except
to the extent that it can be established by the Receiving Party
by competent proof that such information:
(a) was already known to the Receiving Party, other than
under an obligation of confidentiality, at the time of
disclosure by the Disclosing Party;
(b) was generally known to the public or otherwise part of
the public domain at the time of its disclosure to the
Receiving Party;
(c) became generally available to the public or otherwise
part of the public domain after its disclosure through
no fault of the Receiving Party;
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(d) was subsequently lawfully disclosed to the Receiving
Party by a Third Party who did not require the Receiving
Party to hold it in confidence or limit its use,
provided it was not obtained by such Third Party under
an obligation of confidentiality directly or indirectly
from the Disclosing Party; or
(e) was independently discovered or developed by the
Receiving Party without the use of the Disclosing
Party's Confidential Information, as can be documented
by written records created at the time of such
independent discovery or development.
4.2 PERMITTED DISCLOSURE.
4.2.1 Subject to Section 4.1, the Receiving Party may disclose the
Disclosing Party's Confidential Information only to the extent
such disclosure is required for complying with applicable laws;
regulations, and/or court or administrative orders; provided
however, that in each case described in this Section 4.2.1, the
Receiving Party shall (i) give at least twenty-four (24) hours
advance notice to the Disclosing Party of such disclosure
requirement; (ii) provide a copy of the proposed disclosure; and
(iii) use commercially reasonable efforts in assisting the
Disclosing Party to secure confidential treatment, including a
protective order, for such Confidential Information required to
be disclosed.
4.2.2 The Receiving Party may disclose the Disclosing Party's
Confidential Information only to the Receiving Party's
employees, contractors, consultants, or licensees who (a) have a
need-to-know and (b) are under contract not to disclose or use
Confidential Information except as otherwise provided in this
Agreement.
4.3 COPIES. A Receiving Party shall not make any copies of the Disclosing
Party's Confidential Information without the prior written approval of
the Disclosing Party, except that, subject to Section 7.2, (a) The
Cargill Entities may make copies that are reasonably necessary for the
research and development of The Cargill Entities' Products, (b) MMI may
make copies that are reasonably necessary for the conduct of the Work
Plan, and (c) copies may be made as a part of any effort by the Steering
Committee or as a part of the planning for joint commercialization.
Notwithstanding the foregoing, the Receiving Party may retain one (1)
copy of the Disclosing Party's Confidential Information solely for legal
archival purposes.
4.4 PUBLICATION. Any Publications shall not include any of the Disclosing
Party's Confidential Information without the Disclosing Party's prior
written consent and shall include appropriate recognition of the other
Party's contributions in accordance with the standard practice for
assigning scientific credit, either through authorship or
acknowledgement as may be appropriate.
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4.4.1 JOINT PUBLICATION. In the event that the Parties agree to
jointly prepare a Publication of the results of the Work Plan in
a mutually acceptable scientific journal the Parties shall (a)
jointly draft such Publication through the research
representatives; (b) prepare such Publication within a mutually
agreed upon time following completion of the Work Plan; and (c)
have such joint Publication reviewed and approved by the duly
authorized officers of MMI and The Cargill Entities prior to
submission of the article to the agreed upon scientific journal.
Except by mutual consent, neither Party shall release or
otherwise transfer any of the results from the Work Plan to any
Third Party or the public prior to the date on which such joint
Publication will be released.
4.5 PUBLIC ANNOUNCEMENTS.
4.5.1 Except as may otherwise be required by law or regulation,
neither Party shall make any public announcement, directly or
indirectly, concerning the existence or terms of this Agreement
(or the subject matter hereof) without obtaining the prior
consent of the other Party under Section 4.5.2; it being
envisioned, however, that there shall be an initial public
announcement of the existence of this Agreement.
4.5.2 Unless otherwise agreed upon by the Parties, the reviewing Party
shall have (a) ten (10) calendar days to consent (or decline to
consent) to an initial public announcement concerning the
existence or terms of this Agreement (or the subject matter
hereof), such consent not to be unreasonably withheld or
delayed; or (b) thirty (30) calendar days to consent to the
publication of any announcement other than those subject to(.)
(a), such consent not to be unreasonably withheld. The
aforegoing "reasonable" standard of consent shall not apply to a
proposed public disclosure of Confidential Information, which
may be prohibited by the Disclosing Party in its sole and
absolute discretion.
4.5.3 If either Party shall be required by law or regulation to make a
public announcement concerning the existence or terms of this
Agreement, such Party shall (a) include only such information in
the public announcement that is specifically required, and (b)
give at least forty-eight (48) hours prior advance notice to the
other Party and obtain the other Party's comments.
4.6 EQUITABLE RELIEF. MMI and The Cargill Entities in their role as
Receiving Parties under this Agreement hereby acknowledge and agree that
with respect to the nature of the Confidential Information, there may be
no adequate remedy at law for any breach of their obligations as
Receiving Party under the confidentiality provisions of this Agreement,
that any such breach may result in irreparable harm to the Disclosing
Party, and therefore, notwithstanding Section 12.12, that upon any such
breach the Disclosing Party shall be entitled to seek equitable relief,
in addition to whatever remedies it might have at law, including
injunctive
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relief, specific performance, or such other relief as the Disclosing
Party may request to enjoin or otherwise restrain any act prohibited
hereby, as well as the recovery of all reasonable costs and expenses,
including attorneys' fees incurred.
5 INTELLECTUAL PROPERTY
5.1 MMI RIGHTS AND OBLIGATIONS. MMI shall own all right, title and interest
in and to MMI Technology. MMI shall assume all responsibility for all
costs associated with the application, prosecution, maintenance,
defense, and enforcement of patent applications and patents claiming all
or a portion of MMI Technology.
5.2 THE CARGILL ENTITIES RIGHTS AND OBLIGATIONS. The Cargill Entities shall
own all right, title, and interest in and to The Cargill Entities
Material, Samples, and The Cargill Entities Technology. The Cargill
Entities shall assume all responsibility for all costs associated with
the application, prosecution, maintenance, defense, and enforcement of
patent applications and patents claiming all or a portion of The Cargill
Entities Material, Samples, and/or The Cargill Entities Technology.
Nothing in this Agreement shall prohibit The Cargill Entities from
continuing work under any agreements with Third Parties relating to
animal genomics research that (1) were signed by The Cargill Entities
prior to the Effective Date and (2) do not require SNP association
analysis.
5.3 JOINT INTELLECTUAL PROPERTY RIGHTS. Except as otherwise provided in this
Agreement, during the term of this Agreement all Joint IP shall be owned
jointly by MMI and The Cargill Entities and the following shall apply:
5.3.1 During the term of this Agreement (except as may be provided in
any Joint Commercialization Agreement), neither Party may enter
into any negotiations, discussions, or agreements with any Third
Party regarding any association studies in any of the Targeted
Traits in bovine animals in respect to meat production or
processing. During the Term of this Agreement and, subject to
Section 7.2, thereafter, the Parties may not make, use, sell,
license, or convey any rights in Joint IP for any purpose
whatsoever (a) except upon joint agreement among the Parties,
(b) except as set forth in Sections 3.3.3, 5.3.2, 7.2.1, or 7.3,
or (c) except in furtherance of the Work Plan set forth in this
Agreement. Neither Party (without the prior written agreement of
the other Part) may use the Joint IP for comparative studies and
other uses in other species and, excluding meat production and
processing-related uses, in dairy cattle.
5.3.2 In the event that the Parties enter into a Joint
Commercialization Agreement prior to the expiration of the term
of this Agreement, the Parties respective rights and obligation
with respect to the Joint IP thereafter shall be as stated in
such Agreement. In the event that
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the Parties do not enter into a Joint Commercialization
Agreement prior to the expiration of the Term of this Agreement,
unless the provisions of Section 7.2 shall apply, the Joint IP
shall continue to be owned jointly by MMI and The Cargill
Entities following the expiration of this Agreement with both
Parties having the right, subject to Section 8.5, to. make, use,
sell, or sublicense the Joint IP to detect the Targeted Traits
in bovine animals in respect to meat production or processing.
5.3.3 In no event shall the rights and restrictions established in
this Section 5.3 prevent either Party from performing its rights
and obligations under this Agreement.
5.3.4 In order to ensure the highest trade secret protection of
unpatented Joint IP, in recognition of MMI's research and
development efforts among several species, and in recognition of
the confidential and restricted nature of the databases licensed
from Celera, subject to Section 7.8, MMI shall be entitled to
maintain complete confidentiality (on a "firewall" basis without
any access by The Cargill Entities) of the SNP primer pairs and
SNP amplicon sequence and any and all unpatented Joint IP
relating to the SNP Sets. Notwithstanding anything in this
Section 5.3.4 to the contrary, The Cargill Entities, during the
Term, upon reasonable written notice of at least two weeks, and
not more than six times each year, may conduct an on-site review
of the firewalled information. MMI, for cause shown due to
conflicting research efforts, may delay the on-site review for
longer than two weeks.
5.4 MMI PATENTS. All United States and foreign patent applications that
pertain to any invention that is the property of MMI shall be prepared,
filed, prosecuted, and the sole responsibility of MMI.
5.5 THE CARQILL ENTITIES PATENTS. All United States and foreign patent
applications which pertain to any invention that is the property of The
Cargill Entities shall be prepared, filed, prosecuted, and the sole
responsibility of The Cargill Entities.
5.6 JOINT IP PATENTS. All United States and foreign patent applications that
pertain to any invention that is Joint IP shall be prepared, filed, and
prosecuted by counsel to be mutually agreed upon by the Parties at the
time a decision is made to file such joint application. The Parties
presently envision a patent and trade secret strategy whereby patents
would be filed upon any associations of a trait to a specific gene, but
that patents would not be filed upon any associations of a trait to an
SNP; the latter would be guarded as a highly confidential trade secret.
If the Parties cannot agree with respect to a particular issue (e.g.,
whether to file, selection of counsel), such issue will be resolved
pursuant to Section 12.12 of this Agreement. With regard to Joint IP
patents, subject to Section 7.2, the
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Parties will continue to consult in good faith after the termination of
this Agreement for so long as Joint IP patents are being prosecuted and
maintained, or such shorter time as mutually agreed to by the Parties in
writing. The Parties shall be equally responsible for all expenses for
prosecution and maintenance of Joint IP patents (unless mutually agreed
to be otherwise by the Parties in writing).
5.7 CELERA. Nothing in this Agreement is intended or shall be interpreted as
granting to The Cargill Entities or any Third Party any right or
interest in any intellectual property, whether licensed to MMI or not,
(a) invented, discovered, developed, or otherwise created by PE
Corporation (NY), or its Affiliates, including the Celera Genomics
Group, or (b) acquired or licensed by PE Corporation (NY), or its
Affiliates, including for the benefit of the Celera Genomics Group.
5.8 THIRD-PARTY INFRINGEMENT. If MMI believes that the license, transfer, or
use of the data and information in the Dataset (and, in turn, in any
Deliverable or Joint IP), in whole or part, infringes any patent,
copyright, trademark, or other proprietary right, or if the licensing,
transfer, or use of the Dataset, or any part thereof, is, as a result,
enjoined, then MMI, in respect to data and information owned or licensed
by MMI, in its sole discretion and expense, may: (a) procure for The
Cargill Entities and itself the right under such proprietary right to
the Dataset or such part thereof; or (b) replace the data or information
with other non-infringing data or information; or (c) remove the
infringing data or information, or part thereof, and make an equitable
adjustment of the fees paid hereunder as mutually agreed upon in
writing; or (d) if such data and information was received from Cetera,
endeavor to cause Celera to address the situation. In respect to any
such data and information received from The Cargill Entities, The
Cargill Entities shall replace the data or information with other
non-infringing data or information (and, to the extent appropriate,
agree to such extensions, additional payments, and the like so that the
completion of the Work Plan may proceed).
6 PERIOD OF EXCLUSIVITY FOR FEEDLOT TESTING
6.1 CARGILL PERIOD OF EXCLUSIVITY. Commencing on the date upon which MMI
delivers the Deliverable(s) required under Part 4 of the Work Plan and
provided that (a) The Cargill Entities make the payment for Part 4 and
(b) as set forth in Section 8.2, the Parties are negotiating toward a
Joint Commercialization Agreement, and continuing for a period of [****]
([****]) months (the "Cargill Period of Exclusivity"), The Cargill
Entities shall have the exclusive right, without the right to
sublicense, to make and use of the Joint IP in its own operations to
detect the Targeted Traits in bovine animals owned, grown, fed,
purchased, evaluated for possible purchase, or processed by either The
Cargill Entities or any of Excel's "alliance" partners (as may exist as
of March 1, 2002 under Excel's Alliance Agreements). No "alliance"
partner shall have any rights to any Joint IP (notwithstanding the
detection of Targeted Traits in such partner's, animals) or be
considered as an intended third party beneficiary of this Agreement.
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6.2 STANDSTILL IN THIRD PARTY NEGOTIATIONS. During the Cargill Period of
Exclusivity, MMI shall not enter into any negotiations, discussions, or
agreements regarding any association studies in any of the Targeted
Traits in bovine animals in respect to meat production or processing
regarding the Joint IP with any Third Party, nor shall either Party
make, use, sell, license, or convey any rights in the Joint IP,
internally or otherwise, except to provide the services to The Cargill
Entities as described in Section 6.3 or as set forth in Section 5.3.1.
6.3 DNA COLLECTION TOOL AND MMI. SERVICES. During the Cargill Period of
Exclusivity, The Cargill Entities shall make use of the Joint IP in its
operations pursuant to this Section 6. MMI shall provide a DNA
collection tool and the laboratory and/or diagnostic/analytical services
to The Cargill Entities to enable The Cargill Entities to make use of
the Joint IP in its own operations to detect the Targeted Traits in
bovine animals in respect to [****] or [****]. MMI shall provide such
tools and services to The Cargill Entities at a fee equal to its cost
(which shall be determined by MMI in its reasonable judgment in
accordance with standard accounting norms, but which shall not exceed
[****] Dollars ($[****]) per test). Such costs shall be invoiced by MMI
on a monthly basis and paid by The Cargill Entities within thirty (30)
days. It is the mutual expectation of the Parties that the Joint IP will
be utilized in a fashion in which The Cargill Entities will collect a
blood sample for each animal that The Cargill Entities desire to have
the Targeted Traits detected and submit that blood sample to MMI for
analysis using the Joint IP. During the Cargill Period of Exclusivity,
The Cargill Entities shall submit, in the aggregate, at least [****]
samples from bovine animals in respect to [****] (and shall have the
right to submit up to [****] samples) to MMI, and MMI shall analyze such
samples. The Parties (which shall jointly design the protocols for the
management of test animals and collection of samples) envision that the
submitted samples shall include samples from [****] and from [****].
6.4 BREACHES AND CURES. In the event that the Cargill Period of Exclusivity
has commenced (and is continuing) and MMI, thereafter, fails to provide
the DNA collection tool and/or analytical services to The Cargill
Entities during the Cargill Period of Exclusivity as required, under
this Section 6, The Cargill Entities, subject to and in accordance with
Section 7.2 and MMI's failure to cure any breach, shall have the right
to (a) retain another entity to provide such services and recover from
MMI any losses, damages, and expenses arising from MMI's breach,
including but not limited to the difference between the fees paid to the
new service provider and the fees that would have been paid to MMI had
MMI performed pursuant to this Section, (b) extend the period of
exclusivity and for the provision of services by an amount of time equal
to the delay caused by MMI (up to an additional twelve (12) months),
and/or (c) terminate this Agreement in accordance with Section 7.3. In
the event that The Cargill Entities fail to provide MMI with at least
the minimum number of samples on a regular and continued basis over the
[****] ([****]) month Cargill Period of Exclusivity as required under
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this Section 6, MMI, subject to and in accordance with Section 7.2 and
the failure of The Cargill Entities to cure any breach, shall have the
right to (a) perform necessary and appropriate [****] scale testing
elsewhere and recover from The Cargill Entities any losses, damages, and
expenses arising from the breach by The Cargill Entities and/or (b)
terminate this Agreement in accordance with Section 7.3.
7 TERM AND TERMINATION
7.1 TERM. Unless terminated earlier as provided herein, this Agreement shall
be in full force and effect for the Term.
7.2 DEFAULT. If either Party commits a breach of a material term or
provision of this Agreement at any time, and has not cured such breach
within thirty (30) calendar days after written notice thereof, which
notice must state the nature of the breach in reasonable detail, from
the non-breaching Party, then the non-breaching Party shall have the
right to declare the defaulting Party in breach and to terminate this
Agreement effective upon written notice thereof to the breaching Party.
In the event that a claimed breach is of a nature that cannot be cured
within thirty (30) days, but may reasonably be cured within ninety (90)
days, the breaching Party (upon notice to the non-breaching Party) may
extend the cure period up to ninety (90) days, in total, provided that
the breaching Party has promptly commenced (and shall thereafter
continue to pursue) efforts to effect such cure. (The payment of money
or the procurement of insurance shall never, by their respective
natures, be a matter requiring a cure of more than thirty (30) days.)
Any notices under this Section 7.2 must be addressed to the person(s)
and/or office(s) identified in Section 12.9.
7.2.1 In the event this Agreement is terminated by either Party
pursuant to this Section 7.2, the defaulting Party shall
automatically relinquish and forfeit all of its rights, title
and interest in and to the Joint IP, and upon such termination
all of its rights, title, and interest in and to the Joint IP
shall immediately transfer to the non-defaulting Party.
Thereafter, the defaulting Party shall have no right to make,
sell, license or convey any rights in Joint IP or use the Joint
IP for any purpose whatsoever, and the non-defaulting Party
shall have the sole and exclusive right to make, use, sell or
sublicense the Joint IP to detect the Targeted Traits in bovine
animals in respect to meat production or processing or for any
other purpose whatsoever, including, without limitation, the
right to collaborate with other parties to complete the
activities contemplated by this Agreement.
7.2.2 In the event this Agreement is terminated by either Party
pursuant to this Section 7.2, the defaulting Party shall be
liable to the non-defaulting party with respect to all
obligations arising on or prior to the default by the defaulting
Party, but shall not be liable to the non-defaulting for the
non-
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performance of any obligations under this Agreement that were
due after such termination, except for a violation of Section
7.2.1. Specifically, for example:
(a) in the event that The Cargill Entities fail to make a
payment that is due to MMI in accordance with the
provisions of Section 3, MMI shall, after providing
notice and otherwise following the procedures set forth
in this Section 7.2, have the right to terminate this
Agreement, in which case (i) MMI shall become the sole
owner of the Joint IP in accordance with Section 7.2.1,
and (ii) The Cargill Entities shall remain liable to MMI
for the amount of the missed payment, but shall have no
further liability to MMI for any payments that were to
be made by The Cargill Entities to MMI following the
date of such termination; and
(b) in the event that MMI fails to deliver the required
Deliverable(s) to The Cargill Entities as required under
the Work Plan, The Cargill Entities shall, after
providing notice and otherwise following the procedures
set forth in this Section 7.2, have the right to
terminate this Agreement, in which case (i) The Cargill
Entities shall become the sole owner of the Joint IP in
accordance with Section 7.2.1, and (ii) MMI shall have
no further liability to The Cargill Entities arising
from non-performance of the remaining Parts of the Work
Plan and non-delivery of the Deliverable(s) due from MMI
following the-date of such termination.
Notwithstanding anything in this Section 7.2 to the contrary, MMI's
failure to deliver any Deliverable(s) due to either scientific
impossibility or the impracticability of the effort (e.g., the
association study requiring substantially more than the "ten million
(10,000,000) genotypes" maximum set forth in the Work Plan) shall not
constitute a breach of this Agreement and the provisions of this Section
7.2 in regard to termination of this Agreement and ownership of Joint IP
shall not apply. Instead, either (1) Sections 3.3.3 and 5.3.2 or (2)
Section 7.4.1 shall govern in such instance.
7.3 RIQHT TO TERMINATE PRIOR TO EXPIRATION OF TERM. Either Party shall have
the right to terminate this Agreement, with or without cause, and
without further liability to the other Party except as set forth in this
Section 7.3, in accordance with the following procedures:
7.3.1 Each Party shall have the right to terminate this Agreement
exercisable at the following time by providing written notice to
the other Party: following full completion of Part 3 of the Work
Plan (i.e. after delivery by MMI of the required Deliverable(s)
and after the required payment by The Cargill Entities) but
before commencement of work under Part 4 of the Work Plan. In
addition, in the event only that applicable Federal law
hereafter
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prohibits The Cargill Entities from owning or controlling
livestock for more than fourteen days prior to xxxxxxxxx (as,
for example, set forth in Senate Xxxx 142 of the 107th Congress,
1st Session). The Cargill Entities may also have the right to
terminate this Agreement exercisable at either of the following
times by providing written notice to MMI: (a) following full
completion of Part 1 of the Work Plan (i.e., after delivery by
MMI of the required Deliverable(s) and after the required
payment by The Cargill Entities, but before commencement of work
under Part 2 of the Work Plan) or (b) following the full
completion of Part 2 of the Work Plan (i.e., after delivery by
MMI of the required Deliverable(s) and after the required
payment by The Cargill Entities, but before commencement of work
under Part 3 of the Work Plan).
7.3.2 In the event that either Party terminates this Agreement
pursuant to this Section 7.3, the Party who elected to terminate
this Agreement in accordance with such Section shall
automatically relinquish and forfeit all of its rights, title,
and interest in and to the Joint IP, and upon such termination
all of its rights, title, and interest in and to the Joint IP
shall immediately transfer to the other Party. Thereafter, the
Party who elected to terminate shall have no right to make,
sell, license, or convey any rights in Joint IP for use the
Joint IP for any purpose whatsoever, and the other Party shall
have the sole and exclusive right to make, use, sell, or
sublicense the Joint IP to detect the Targeted Traits in bovine
animals in respect to meat production or processing including
the right to collaborate with other parties to complete the
activities contemplated by this Agreement.
7.3.3 In the event this Agreement is terminated by either Party
pursuant to this Section 7.3, the Party who elected to terminate
shall continue to be liable to the other Party with respect to
all obligations arising on or prior to the date of such
termination, but shall not be liable to the other Party for the
non-performance of any obligations under this Agreement that
would otherwise have arisen after the date of termination.
Specifically, for example, in the event The Cargill Entities
elect to terminate this Agreement pursuant to this Section 7.3,
(i) MMI shall become the sole owner of the Joint IP and (ii) The
Cargill Entities shall remain liable to MMI for the amount of
the missed payment, but shall have no further liability to MMI
for any payments that were to be made by The Cargill Entities to
MMI following the date of such termination by The Cargill
Entities in accordance with this Section 7.3.
7.4 Termination Based on Recommendation of Steering Committee. If, pursuant
to Section 2.1.1(d), the Steering Committee makes a recommendation not
to proceed to the next Part of the Work Plan, the senior executives of
the Parties shall meet to discuss the recommendation and the following
shall apply:
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7.4.1 In the event that both Parties agree with the recommendation of
the Steering Committee, the Parties shall execute a document
indicating their decision not to proceed with further work under
the Work Plan and to jointly terminate this Agreement. Upon a
termination of this Agreement pursuant to this Section 7.4.1,
neither Party shall have any further liability to the other for
future obligations under this Agreement and the Joint IP shall
continue to be jointly owned by MMI and The Cargill Entities
following such termination, with both Parties having the right
to make, use, sell or sublicense the Joint IP to detect the
Targeted Traits in bovine animals in respect to production or
meat processing.
7.4.2 In the event that both Parties disagree with the recommendation
of the Steering Committee, the Parties shall confirm their joint
decision in writing and the Parties shall proceed to the next
Part of the Work Plan.
In the event one Party concurs with the recommendation of the Steering Committee
and one does not, the Party that concurs with the recommendation shall send
written confirmation of its decision to the other Party and such Party shall be
deemed to have elected to terminate this Agreement pursuant to Section 7.3
above, with the Parties having the rights and obligations as set forth in
Section 7.3 above.
7.5 BANKRUPTCY. Either Party may terminate this Agreement immediately upon
the occurrence of any of the following events: (a) if the other Party
ceases to. do business, or otherwise terminates its business operations;
or (b) the other Party seeks protection under any bankruptcy,
receivership, trust deed, creditors arrangement, composition, or
comparable proceeding, or if any such proceeding is instituted against
the other Party. All rights granted under this Agreement are deemed to
be, for purposes of ss. 365(n) of the United States Bankruptcy Code,
rights to intellectual property as defined by ss. 101(56) of the United
States Bankruptcy Code and the Parties will retain and may fully
exercise all of their rights under this Agreement.
7.6 CONSEQUENCES OF TERMINATION. Upon termination of this Agreement, in
addition to any provisions specifically addressed in any Section
regarding terminations, the following provisions shall survive: 4, 5,
7.6, 7.7, 10, 11, and 12. Expiration or termination of this Agreement
shall not affect any rights or obligations of either party accruing
prior to such expiration or termination.
7.7 REMEDIES. The rights and remedies provided in this Section 7 shall not
be exclusive and shall be in addition to any other rights and remedies
available at law or in equity.
7.8 ESCROW OF FIREWALLED SNP SET INFORMATION. MMI shall provide a
third-party escrow agent (reasonably acceptable to The Cargill Entities
and under written contract with the Parties) with an SNP Set escrow
deposit upon the completion of Part 1 and, on an ongoing up-to-date
basis upon the completion of each Part
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thereafter, such information as would be necessary for a qualified Third
Party to continue any research and development into the next part of the
Work Plan and, as envisioned in Section 8.1, to develop genomic
DNA-based diagnostic products. (However, the Parties recognize that MMI,
in accordance with Section 5.7, shall not provide the escrow agent with
any confidential information owned by Cetera and not part of any MMI
Technology, e.g., Celera's bovine SNP maps, database, and technology to
which MMI has access by virtue of its license from Celera, but as to
which MMI has no right to sublicense.) Such escrow agent (as an agent
for the Partners) shall hold such escrowed confidential information on a
strict confidentiality basis. Upon a termination of this Agreement under
Sections 3.3.3, 5.3.2, 7.2.1 (in the event of an MMI breach and
declaration of termination by The Cargill Entities), 7.3 (in the event
of MMI's exercise of a right to terminate thereunder), or 7.4.1, the
escrow agent (upon at least fifteen (15) days prior written notice by
The Cargill Entities to the escrow agent and to MMI) shall release such
escrowed information to The Cargill Entities. In such event, MMI may
challenge by Section 12.12 any such release (thereby delaying it). The
Cargill Entities, upon receipt of any such information shall treat it as
highly confidential and maintain it as a closely guarded trade secret.
8 JOINT COMMERCIALIZATION OF PRODUCTS
8.1 INTENT. The objective of this Agreement is to jointly develop genomic
DNA-based diagnostic products (the "Products") to detect the Targeted
Traits in bovine animals in respect to meat production or processing in
the animal production and meat processing industries with the goal of
jointly commercializing such Products for sale, following the Cargill
Period of Exclusivity, to potential buyers in these industries initially
in [****] and, ultimately [****].
8.2 NEQOTIATION OF AQREEMENT. Upon completion of Part 4 of the Work Plan and
the making of the payment for Part 4 of the Work Plan, the Parties shall
thereupon and thereafter negotiate in good faith (with each other and
perhaps also with third parties) the terms of a definitive Joint
Commercialization Agreement regarding the development, manufacture,
marketing, sales, delivery, and distribution of the Products to The
Cargill Entities and following the expiration of the Cargill Period of
Exclusivity, to others. Unless this Agreement is sooner terminated, for
at least [****] months after the completion of Part 4 of the Work Plan,
such negotiations shall continue and neither Party may enter into any
negotiations, discussions, or agreements regarding the development,
manufacture, marketing, sales, delivery, and distribution of such
Products with any Third Party, notwithstanding.
8.3 CORE COMMERCIALIZATION CONCEPTS. Due to the intrinsic uncertainties
associated with the type of research project contemplated by this
Agreement, the Parties desire to retain a degree of flexibility with
respect to the precise terms and structure that the Joint
Commercialization Agreement may take.
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At the same time, however, the Parties desire to set forth below the
general commercialization concepts on which they have reached basic
agreement and around which they will conduct their negotiations (the
"Core Commercialization Concepts"):
(a) The Parties desire to pursue joint commercialization of the
Products only if such an effort is likely to achieve acceptable
returns. The Parties will jointly develop and prepare a
five-year financial forecast (for the five-year period following
expiration of the Cargill Period of Exclusivity) of the income
statement and balance sheet for the commercialization of the
Products.
(b) The Parties desire to pursue joint commercialization of the
Products only if the Products are technically effective and thus
attractive to potential buyers. Presently, the Parties
anticipate proceeding with joint commercialization of the
Products only if the Products are envisioned to cost to the end
user, per test, is less than, per animal, [****] of the [****].
The Parties shall formally assess the likelihood of exceeding
such thresholds upon the conclusion of Part 3 and upon the
conclusion of Part 4.
(c) The Parties, after reimbursing MMI for the actual cost of the
test (which cost (i) shall be determined in accordance with
generally accepted accounting standards after a review by The
Cargill Entities of such cost and (ii) may include a reasonable
apportionment of the cost of any new or expanded facility for
the production of such tests and the provision of test-related
services), will split net profits and/or losses arising from
commercialization of the Products on an equal 50/50 basis. MMI
shall consult with The Cargill Entities prior to the purchase of
a new facility or expansion of an existing facility in regard to
the production of tests and the provision of test-related
services if MMI then intends to include an apportionment of such
cost in the deemed "actual cost" of the test.
(d) The Parties will each contribute people and other resources to
the joint commercialization effort at their direct costs. For
example, MMI will produce and provide the DNA collection tool
and the laboratory and/or diagnostic/analytical services to the
joint commercialization effort at its direct cost (as such cost
is calculated in accordance with Section 6.3).
(e) The Parties will use their joint commercialization vehicle not
only for the Products, but also for any other traits related to
[****] and/or [****] in meat producing bovines or relating to
DNA-based diagnostic tools that the Parties may be involved
with.
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(f) The Parties will target a price for the Products based upon at
least thirty percent (30%) of the "value added" benefit to the
purchaser as determined during the Cargill Period of
Exclusivity.
(g) Subsequent to the Cargill Period of Exclusivity (or if The
Cargill Entities, with the agreement of MMI, desire to exceed
[****] samples during such Period, shall pay the same price for
the Products as would a Third Party (although the net revenue as
of such sale to The Cargill Entities would be split between The
Cargill Entities and MMI).
(h) The Parties shall assess whether the authorized use of any
diagnostic Product should be restricted initially to [****].
8.4 INABILITY TO REACH AGREEMENT. In the event that the Parties are unable
to reach agreement on the terms of a Joint Commercialization Agreement
for any reason whatsoever within the time set forth in Section 8.2, the
provisions of Section 5.3.2 and Section 8.5 shall apply unless the
Parties then otherwise agree.
8.5 ROYALTIES PAID TO OTHER JOINT IP PARTY. In the event that both parties
are permitted to make, use, sell, or sublicense the Joint IP to detect
the Targeted Traits in bovine animals in respect to meat production or
processing in accordance with (a) Sections 5.3.2 and 8.4 or (b) Section
7.4.1, either Party so making, using, selling, or sublicensing such
Joint IP in such fashion shall pay the other Party (i.e., MMI to The
Cargill Entities or The Cargill Entities to MMI) a quarterly royalty
upon sales (for the greater of the life of any patent upon any Joint IP
or fifteen (15) years). Such royalty shall be a percentage of net gross
sales, which shall be gross sales less the aggregate cost of continued
research and development (but not, in this respect, exceeding more than
one-half of gross sales), marketing, insurance, and shipping (but not
net of taxes), as follows:
PERCENTAGE CONDITION OR TIMING
---------- -------------------
[****]% If Part 3 never completed.
[****]% If Part 3, but no subsequent Part was completed.
[****]% If Part 4 was completed, but the Parties elected not
to proceed with feedlot testing under Section 6 and
did not enter into a Joint Commercialization
Agreement.
[****]% If feedlot testing was undertaken under Section 6, but
the Parties did not enter into a Joint
Commercialization Agreement.
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9 REPRESENTATIONS AND WARRANTIES AND GENERAL COVENANTS
9.1 Each Party represents and warrants to the other Party, upon on the date
upon which this Agreement is executed and upon the commencement of each
Part of the Work Plan, that:
(a) it is duly organized and validly existing and in good standing
under the laws of the state of its incorporation and it has the
corporate power and authority and the legal right to enter into
this Agreement and to perform its obligations hereunder;
(b) the execution and delivery of this Agreement and the performance
of the transactions contemplated hereby have been duly
authorized by all necessary corporate actions of such Party and
the person executing this Agreement on behalf of each Party has
been duly authorized to do so by all requisite corporate
actions;
(c) the execution and delivery of this Agreement and the performance
by such Party of any of its obligations under this Agreement do
not (i) conflict with, or constitute a breach or violation of,
any other contractual obligation to which it is a Party, any
judgment of any court or governmental body applicable to such
Party or its properties or, to such Party's knowledge, any
statute, decree, order, rule or regulation of any court or
governmental agency or body applicable to such Party or its
properties, and (ii) with respect to the execution and delivery
of this Agreement, require any consent or approval of any Third
Party;
(d) it is aware of no action, suit, inquiry, or investigation
contemplated or instituted by any Third Party that questions or
threatens the validity of this Agreement; and
(e) this Agreement is legally binding upon its execution and,
subject to the discretion of courts in awaiting equitable relief
and to applicable bankruptcy, reorganization, insolvency,
moratorium, and similar laws, enforceable in accordance with its
terms.
9.2 The Cargill Entities represent and warrant that they are entitled to use
and transfer to MMI the Samples, data, and/or information for the
purpose(s) set forth in this Agreement.
9.3 Each Party shall (a) comply with all applicable laws, regulations, and
guidelines in connection with that Party's performance of its
obligations and exercise of its rights pursuant to this Agreement, (b)
maintain good standing under the laws of the jurisdiction of is
incorporation, and (c) not enter into any contractual obligation that
would conflict with or constitute a breach or violation of any material
provision of this Agreement.
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10 DISCLAIMERS AND LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING SECTION 5.8, NOTHING IN THIS AGREEMENT (EXCEPT TO THE
LIMITED EXTENT SET FORTH IN SECTION 9.2) SHALL BE CONSTRUED AS A
REPRESENTATION MADE OR WARRANTY GIVEN BY EITHER PARTY OR ITS SUPPLIERS
THAT THE USE OF ANY INFORMATION, DATA, OR OTHER MATERIALS PROVIDED
HEREUNDER WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER
RIGHTS OF ANY THIRD PARTY. THE INFORMATION, DATA, OR OTHER MATERIALS
PROVIDED BY EITHER PARTY HEREUNDER ARE PROVIDED "AS IS" WITHOUT WARRANTY
OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER PARTY MAKES ANY WARRANTY THAT THE DELIVERABLES DO NOT CONTAIN
ERRORS OR, IF APPLICABLE, THAT ANY ASSEMBLED ORGANISM DOES NOT CONTAIN
GAPS.
10.2 IN NO EVENT SHALL EITHER PARTY OR THEIR AFFILIATES BE LIABLE FOR LOST
PROFITS, LOSS OF USE, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF
DATA, COST OF COVER OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER, HOWEVER CAUSED AND UNDER
ANY THEORY OF LIABILITY WHETHER BASED IN CONTRACT, WARRANTY, TORT
(INCLUDING WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, STATUTORY,
OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN
IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 THE LIABILITY OF THE PARTIES, THEIR RESPECTIVE AGENTS, EMPLOYEES,
SUBCONTRACTORS, AND SUPPLIERS WITH RESPECT TO ANY AND ALL SUITS,
ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS, AND
EXPENSES ARISING OUT OF THE PERFORMANCE OR NONPERFORMANCE OF ANY
OBLIGATIONS UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, WARRANTY,
TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY,
STATUTORY, OR OTHERWISE, SHALL BE LIMITED TO (a) DIRECT, ACTUAL DAMAGES
INCURRED AS A RESULT OF ITS FAILURE TO PERFORM ITS OBLIGATIONS AS
REQUIRED BY THIS AGREEMENT, AND (b) EXCEPT IN RESPECT TO THE PAYMENTS
SET FORTH IN EXHIBIT C, SHALL NOT EXCEED IN THE AGGREGATE A SUM EQUAL TO
TWO MILLION DOLLARS.
10.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE PARTIES
RECOGNIZE THAT ANY JOINT TECHNOLOGY DISCOVERED, CREATED, OR DEVELOPED
UNDER THIS AGREEMENT MAY BE SUBJECT TO A THIRD PARTY'S PRIOR
INTELLECTUAL PROPERTY RIGHTS.
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11 INDEMNITY
11.1 THE CARGILL ENTITIES INDEMNITY. Subject to the limitations set forth in
Section 10 above, The Cargill Entities shall indemnify, defend, and hold
harmless MMI (including its officers, directors, employees, and agents)
from and against all personal or property losses, liabilities, damages,
and expenses (including reasonable attorneys' fees and costs) arising
(a) out of the falsehood or inaccuracy in any material respect of any
representation or warranty or out of the breach or non-fulfillment of
any material covenant or agreement of The Cargill Entities contained
herein or contemplated hereby; (b) out of the gross negligence or
intentional misconduct of The Cargill Entities in connection with the
performance of The Cargill Entities of its obligations under this
Agreement; and/or (c) out of The Cargill Entities' use of The Cargill
Entities Technology; except to the extent any such loss, liability,
damage, or expense arises from the action or inaction of MMI.
11.2 MMI INDEMNITY. Subject to the limitations set forth in Section 10 above,
MMI shall indemnify, defend, and hold harmless The Cargill Entities
(including its officers, directors, employees and agents) from and
against all personal or property losses, liabilities, damages, and
expenses (including reasonable attorneys' fees and costs) arising (a)
out of the falsehood or inaccuracy in any material respect of any
representation or warranty or out of the breach or nonfulfillment of any
material covenant or agreement of MMI contained herein or contemplated
hereby or (b) out of the gross negligence or intentional misconduct of
MMI in connection with the performance of its obligations under this
Agreement, and/or (c) out of the MMI's use of MMI Technology; except to
the extent any such loss, liability, damage or expense arises from the
action or inaction of The Cargill Entities.
11.3 PROCEDURE. The Indemnitee shall promptly notify the Indemnitor of any
loss, liability, damage, expense, claim, demand, action, or other
proceeding in respect of which the Indemnitee intends to claim such
indemnification, and the Indemnitor shall have the right to participate
in, and, to the extent the Indemnitor so desires, jointly with any other
Indemnitor similarly noticed, to assume the defense thereof with counsel
selected by the Indemnitor and reasonably satisfactory to the
Indemnitee; provided, however, that an Indemnitee shall have the right
to retain its own counsel, with the fees and expenses to be paid by the
Indemnitee, if representation of such Indemnitee by the counsel retained
by the Indemnitor would be inappropriate due to actual or potential
differing interests between such Indemnitee and any other Party
represented by such counsel in such proceedings. The indemnity agreement
in this Section 11 shall not apply to amounts paid in settlement of any
loss, liability, damage, expense, claim, demand, action, or other
proceeding if such settlement shall be effected without the consent of
the Indemnitor, which consent shall not be unreasonably withheld. The
failure to deliver notice to the Indemnitor within a reasonable time
after the
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commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such Indemnitor of any liability to the
Indemnitee under this Section 11 to the extent Indemnitor is prejudiced
by Indemnitee's delay, but the omission of such notice to the Indemnitor
will not relieve it of any liability that it may have to the Indemnitee
otherwise than under this Section 11. The Indemnitor may not settle the
action or otherwise consent to an adverse judgment in such action or
other proceeding that effects the rights or interests of the Indemnitee
without the express written consent of the Indemnitee. The Indemnitee
under this Section 11, and its employees and agents, shall cooperate
fully with the Indemnitor and its legal representatives in the
investigation of any action, claim or liability covered by this
indemnification.
11.4 INSURANCE. Each Party shall maintain, through self-insurance or
commercially placed insurance, adequate coverage for the tort-related,
non-contract-based indemnification obligations set forth herein and
shall provide competent proof of such insurance within three (3)
business days after receipt of a written request from the other Party.
12 GENERAL PROVISIONS
12.1 NO PARTNERSHIP. Nothing in this Agreement is intended or shall be deemed
to constitute partnership, agency, distributorship, employer-employee,
or joint venture relationship between The Cargill Entities and MMI. No
Party shall incur any debts or make any commitments for the other.
12.2 ASSIGNMENTS. Neither Party shall assign any of its rights or obligations
hereunder in whole or in part, except (notwithstanding anything in
Section 5.3.1, Section 6.2, or Section 8.2 to the contrary): (a) as
incident to the merger, consolidation, reorganization, or acquisition of
stock or assets or a similar transaction affecting all or substantially
all of the assets or voting control of the assigning Party; or (b) to
any directly or indirectly wholly-owned subsidiary if the assigning
Party remains liable and responsible for the performance and observance
of all of the subsidiary's duties and obligations contained in this
Agreement; or (c) in any conveyance of assets that are material to the
performance of any obligation contained in this Agreement, or (d) with
the consent of the other Party, such consent not to be unreasonably
withheld or delayed. Upon any such assignment, the assigning Party, the
other Party, and the permitted assignee shall enter into an appropriate
confirmatory agreement. Notwithstanding anything in this Section 12.2 to
the contrary, The Cargill Entities, if they are the assigning Party,
shall give MMI reasonable advance notice if the intended assignee has
any operations in poultry, swine, or other non-bovine livestock,
whereupon appropriate "fire wall" confidentiality restrictions shall
first be established within the assignee entity. This Agreement shall be
binding, upon the successors and permitted assigns of the Parties, and
the name of a Party appearing herein shall be deemed to include the
names of such Party's successors and permitted assigns to the extent
necessary to carry out the intent
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of this Agreement. Any assignment not in accordance with the above shall
be void.
12.3 FURTHER ACTIONS. The Parties agree to promptly execute, acknowledge, and
deliver such further instruments, and to do all such other acts, as may
be necessary or appropriate in order to carry out the purposes and
intent of this Agreement.
12.4 NO TRADEMARK RIGHTS. Except as otherwise provided herein or agreed to in
advance in writing, no right, express or implied, is granted by this
Agreement to use in any manner the trade names and trademarks "Xxxxxxx,"
"Excel," "Caprock," "MetaMorphix," "Celera," "Celera Genomics," "PE
Corporation (NY)," "Applera," or any other trade name or trademark of a
Party, its Affiliates, or the names of any employees thereof, for any
purpose other than the Parties' internal purposes and uses.
12.5 ENTIRE AGREEMENT OF THE PARTIES; AMENDMENTS. This Agreement, including
its Exhibits, constitutes and contains the entire understanding and
agreement of the Parties and cancels and supersedes any and all prior
negotiations, correspondence, representations, understandings, and
agreements, whether verbal or written, between the Parties respecting
the subject matter hereof. In case of any discrepancies between the
terms incorporated from the Exhibits and the terms of the sections
herein, the terms of the sections shall prevail. No waiver,
modification, or amendment of any provision of this Agreement (and/or
the Exhibits) shall be valid or effective unless made in writing and
signed by a duly authorized representative of each Party. The failure or
delay of either Party in enforcing any of its rights under this
Agreement shall not be deemed a continuing waiver or a modification by
such Party of such right.
12.6 SEVERABILITY. In the event any that one or more of the provisions of
this Agreement should for any reason be held by any court or authority
having jurisdiction over this Agreement. or either of the Parties to be
invalid, illegal, or unenforceable, such provision or provisions shall
be validly reformed to as nearly as possible approximate the intent of
the Parties and, if unreformable, shall be divisible and deleted in such
jurisdiction; elsewhere, this Agreement shall not be affected so long as
the Parties are still able to realize the principal benefits bargained
for in this Agreement.
12.7 HEADINGS. The headings to this Agreement are for convenience only, and
are to be of no force or effect in construing or interpreting any of the
provisions of this Agreement.
12.8 GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware, without reference to
the conflict of law principles thereof and without regard to the United
Nations Convention on the International Sale of Goods.
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12.9 NOTICES AND DELIVERIES. Any notice, request, delivery, approval, or
consent required or permitted to be given under this Agreement shall be
in writing and shall be delivered personally (against a signed receipt)
or by a nationally recognized overnight courier, costs prepaid, and
shall be deemed to have been duly given when so delivered in person,
with receipt confirmed, or one (1) business day after the date of
deposit with such nationally recognized overnight courier. All such
notices, requests, deliveries, approvals, consents, or other
communications shall be addressed to the respective Parties at the
addresses set forth below, or to such other address as a Party may
designate to the other Party in accordance herewith.
12.9.1 If to MMI, addressed to:
MetaMorphix, Inc.
0000X Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxxx, Ph.D., President and CEO
with a copy to:
Xxxxxxx Xxxx & Guinot
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000 Attn:
Xxxxxxx X. Xxxxxxx, Esq.
12.9.2 If to The Cargill Entities, addressed to:
Excel Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attn: Xxx Xxxx
with a copy to:
Xxxxxxx, Xxxxxxxxxxxx
Law Department
00000 XxXxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Ph.D., Esq.
Notices of meetings of the Steering Committee shall be given to its
members at such addresses and in such manner as may be, from time to
time, requested by its members or determined by the Committee.
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12.10 COUNTERPARTS. This Agreement may be executed in two or. more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12.11 FORCE MAJEURE. If the performance of any part of this Agreement by
either Party, or of any obligation under this Agreement, shall be
prevented, restricted, interfered with, or delayed by reason of any
cause beyond the reasonable control of the Party liable to perform,
unless conclusive evidence to the contrary shall be provided, the Party
so affected shall, upon giving written notice to the other Party, be
excused from such performance to the extent of such prevention,
restriction, interference, or delay, provided that the affected Party
shall use its commercially reasonable efforts to avoid or remove such
causes of non-performance and shall continue performance with the utmost
dispatch whenever such causes are removed. When such circumstances
arise, the Parties shall discuss what, if any, modification of the terms
of this Agreement may be required in order to arrive at an equitable
solution.
12.12 DISPUTE RESOLUTION. MMI and The Cargill Entities shall deal with each
other in good faith. In the event that a dispute arises between the
Parties concerning, or in any way relating to, this Agreement, the
Parties shall undertake good faith efforts to amicably resolve such
dispute.
12.12.1 EXECUTIVE OFFICERS. In the event that the Parties are unable to
resolve any such dispute, the matter shall be referred for
further review and resolution to MMI's Chief Executive Officer,
or another designated representative of MMI, and to the
President of Excel Corporation, or another designated
representative of The Cargill Entities, who will attempt in good
faith and reasonable diligence to resolve the dispute.
12.12.2 MEDIATION. If the dispute is not resolved within thirty (30)
days after referral under Section 12.12.1, or such other time as
mutually agreed upon in writing by the Parties, the Parties
shall submit the matter to non-binding mediation to be
administered by the American Arbitration Association under its
Commercial Mediation Rules in effect at the time of mediation.
The Party desiring such mediation shall initiate it in
accordance with the Commercial Mediation Rules. Upon delivery of
the mediation request, the Parties shall endeavor in good faith
to select a neutral mediator who is acceptable to each Party. If
the Parties have not selected a mutually acceptable neutral
mediator within five (5) business days after delivery of the
mediation request, they shall notify the American Arbitration
Association and request the American Arbitration Association to
appoint a mediator in accordance with the Mediation Rules.
Unless otherwise agreed upon by the Parties, all mediation
sessions shall be held in Chicago, Illinois as a neutral
location or, if several sessions are to be held, in alternative
sessions in Denver, Colorado and in Baltimore, Maryland. The
Parties shall
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endeavor in good faith to resolve the dispute through the
mediation process contemplated by this Section and neither Party
shall be entitled unilaterally to terminate the mediation prior
to thirty (30) days after the appointment of a mediator.
12.12.3 BINDING ARBITRATION. If the dispute is not resolved through
mediation under Section 12.12.2, the Parties shall submit the
matter to binding arbitration to be administered by the American
Arbitration Association under its Commercial Rules in effect at
the time of arbitration. The Party desiring such arbitration
shall initiate it in accordance with the Commercial Arbitration
Rules except as provided below. The arbitration shall be heard
and determined by a panel of three arbitrators (at least one of
which shall have considerable agribusiness experience, at least
one of which shall have considerable genomic experience, and at
least one of whom shall be a practicing lawyer or retired
judge). The arbitrators shall be selected by the Parties from a
proposed list of possible arbitrators provided by the AAA in
accordance with a process determined by the AAA. The Parties
shall be afforded reasonable opportunity for discovery and the
Federal Rules of Discovery shall apply. Unless otherwise agreed
upon by the Parties, all arbitration sessions shall be held in
alternative sessions in Denver, Colorado and Baltimore,
Maryland. The decision of the arbitrators shall be final and
binding upon Parties. Notwithstanding anything in this Section
12.12.3 to the contrary, such arbitration shall not proceed or
be binding if there is either any third-party claimant involved
in the specific dispute proposed to be arbitrated or any
necessary third-party defendant or co-defendant.
12.12.4 INJUNCTION. Notwithstanding anything in this Section 12.12 to
the contrary, an aggrieved Party, to the extent that it may be
otherwise be entitled under applicable law governing injunctions
and equitable relief, may seek and shall be entitled to an
injunction prohibiting any material breach (or other equitable
relief) in regard to Article 4 or Article 5. The Parties
recognize the importance of the confidentiality and publication
provisions of Article 4 and intellectual property provisions of
Article 5 and acknowledge that an aggrieved Party could suffer
irreparable harm as a result of a material breach of such
provisions.
12.12.5 CONFIDENTIALITY. The Parties hereby mutually agree that the
existence, terms, and content of any dispute resolution entered
into pursuant to this Agreement, as well as all information or
documents relating thereto, shall be maintained in confidence
and not be given, shown, disclosed to, or discussed with any
Third Party except: (a) by prior written agreement of both
Parties; (b) during any legal proceeding to protect or secure a
Party's rights under such dispute resolution; (c) counsel and
accountants who shall agree to maintain its confidentiality;
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(d) to the extent required by applicable reporting requirements;
and (e) upon compulsory legal process.
IN WITNESS WHEREOF, the Parties have caused this Joint Development and
Joint Marketing Agreement to be executed by their respective duly authorized
officers.
METAMORPHIX, INC. XXXXXXX, XXXXXXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
--------------------------------- ---------------------------------
Xxxxx X. Xxxxxxxxxxx, Ph.D Name:
President and CEO Title
Date: May ,2002 Date: May 6, 2002
_____________ EXCEL CORPORATION
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name:
Title:
Date: May 6, 2002
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EXHIBIT A
DEFINITIONS
1. "Affiliates" shall mean any corporation, firm, partnership, or other
legal entity that, directly or indirectly, controls, is controlled by,
or is under common control with any of the Parties. A corporation or
other entity shall be regarded as in control of another corporation or
entity, if: (a) in the case of corporate entities it owns or directly or
indirectly controls more than fifty percent (50%) of the outstanding
voting stock or other ownership interest of the other corporation or
entity, or if it possesses, directly or indirectly, the power to manage,
direct or cause the direction of the management and policies of the
corporation or other entity or the power to elect or appoint fifty
percent (50%) or more of the members of the governing body of the
corporation or other entity; and (b) in the case of non-corporate
entities, direct or indirect ownership of at least fifty percent (50%)
interest with the power to direct the management and policies of such
non-corporate entities.
2. "Annotation Information" shall mean the information derived by analyzing
the DNA Sequence Information to identify features associated with the
sequences, and the functional information resulting from such analysis,
including, but not limited to, homology information, DNA sequence
cluster and assembly identifiers, gene predictions, orthologs and marker
locations on chromosome maps
3. "Celera" shall mean PE Corporation (NY), through its Celera Genomics
Group.
4. "Complete Delivery" shall mean MMI's delivery to The Cargill Entities of
all of the Deliverables set forth in the Work Plan.
5. "Confidentiality Agreements" shall mean, collectively, the
non-disclosure agreement executed by The Cargill Entities and Celera and
dated April 18, 2001 (and to which Celera has assigned its rights to
MMI) and the non-disclosure agreement executed by The Cargill Entities
and MMI and dated November 29, 2001.
6. "Confidential Information" shall mean the existence and terms of this
Agreement, the Deliverables, Records, business information, and
technical information relating to The Cargill Entities Material, the
Datasets, The Cargill Entities Technology, MMI Technology, or other
information belonging to the disclosing Party, including, where
appropriate and without limitation, any associated information,
business, financial and scientific data, DNA sequence information,
annotation information, invention disclosures, patent disclosures,
patent applications, structures, models, techniques, processes,
compositions, compounds, biological samples, and the like, and
bioinformatics methods, hardware configurations and software (regardless
of its stage of development), and the like.
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7. "Dataset" shall mean a compilation of the information and data resulting
from MMI's activities under the Work Plan.
8. "Default" shall mean a breach or default of a material obligation of
this Agreement and/or a false representation or warranty made by either
party under this Agreement.
9. "Deliverable" shall mean any of the Datasets, information, reports, and
other items in whole or in part, required to be provided by MMI to The
Cargill Entities under the Work Plan set forth in Exhibit B of this
Agreement.
10. "DNA Sequence Information" shall mean the respective consensus,
nonredundant nucleotide sequences for the Samples.
11. "Genotype" shall mean the specific nucleic acid sequence of an
individual found at a specific location in the genome.
12. "Genotyping" shall mean the analysis of nucleic acid sequence variation
at a specific location in the genome.
13. "Indemnitee" shall mean the Party that intends to seek compensation or
protection pursuant to this Agreement.
14. "Indemnitor" shall mean the Party from whom the Indemnitee seeks
compensation or protection.
15. "Joint Commercialization Agreement" shall mean an agreement between the
Parties regarding the sale, exploitation, and commercialization of any
products or services relating to any trait-specific assay that,
individually or in combination, detects the Targeted Traits.
16. "Joint Intellectual Property" or "Joint IP" shall mean any technology,
data, information, inventions, know-how, trade secrets, and the like,
whether patentable or not, that are conceived, identified, discovered,
developed, or invented by the Parties or any of them pursuant to any of
the activities conducted pursuant to the Work Plan. Joint IP shall
include all the Deliverables described in the Work Plan, including but
not limited to the Validated SNP Set (as defined in the Work Plan), the
Associated SNP Sets, the Diagnostic SNP Sets for each of the Targeted
Traits, all Datasets (subject to Section 7.8), all information contained
in any reports issued by MMI under the Work Plan, the results and data
of the association studies (subject to Section 7.8), and any
trait-specific assay that individually or in combination, detects the
Targeted Traits.
17. "MMI Technology" shall mean assay technology and all data, information,
inventions, know-how, technology, trade secrets and the like, whether
patentable or not, that are (a) conceived, identified, discovered,
developed, or invented in
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whole or part-by or on behalf of MMI independent of The Cargill Entities
and independent of The Cargill Entities material and/or The Cargill
Entities Technology, including the Putative SNP Set and/or (b) acquired
or licensed by MMI from Third Parties.
18. "Payment Schedule" shall mean the payment terms for this Agreement as
set forth in Exhibit C and all amendments thereto.
19. "Publication" shall mean any information or data that The Cargill
Entities seeks to disclose electronically, in writing or verbally, or
make publicly available through any means, including, but not limited
to, written document, abstract, poster, chart, slide presentation, or
article.
20. "Putative SNP Set" shall mean a set of at least 100,000 putative SNPs
that cover the bovine genome. and have known, unique locations on
Celera's human genome (to which MMI has access by a license agreement).
21. "Samples" shall mean the blood samples from 3000 head of bovine animals
used for meat production or processing to be provided by The Cargill
Entities under Part 2 of the Work Plan, the blood samples from 500 head
of bovine animals used for meat production or processing to be provided
by The Cargill Entities under Part 4 of the Work Plan, and other
biological material that The Cargill Entities supply to MMI. under the
Work Plan.
22. "Targeted Traits" shall mean the traits of [****] and [****].
23. "Term" shall mean the period of time from the Effective Date through the
later of the date on which MMI provides Complete Delivery to The Cargill
Entities-or The Cargill Entities pays to MMI the final payment due under
Section 3 (Payments) or the Agreement is otherwise terminated as
provided for in this Agreement.
24. "The Cargill Entities Material" shall mean the Samples, phenotypic data,
and other information required to be or otherwise provided by The
Cargill Entities to MMI under the Work Plan.
25. "The Cargill Entities Technology" shall mean all data, including bovine
animals used for meat production or processing phenotype data supplied
by The Cargill Entities, information, inventions, know-how, technology,
trade secrets, and the like including the Samples and The Cargill
Entities Material, whether patentable or not, that are conceived,
identified, discovered, developed, or invented in whole or part by or on
behalf of The Cargill Entities independent of MMI.
26. "Third Party" shall mean any individual, partnership, joint venture,
corporation, trust, estate, unincorporated organization, government or
any department or
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agency thereof, or any other entity other than either of The Cargill
Entities or MMI or any Affiliates of the Parties.
27. Work Plan" shall mean the description of the plan under which the
Parties will fulfill their obligations under this Agreement as set out
in Exhibit B, and any amendments thereto.
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EXHIBIT B
WORK PLAN
SNP MAPS
COMPLETED PART -- SNP MAP DEVELOPMENT
-------------------------------------
Completed by Celera Genomics, licensor to MetaMorphix under a Livestock License
Agreement.
Cost to Celera Genomics: [****] dollars.
WORK PLAN
o [****] has constructed [****] from [****] breeds of cattle ([****]). The
constructed [****] are a mixture of [****] ([****]),[****] ([****]) and
[****] ([****])[****] suitable for [****].
o Using [****] from [****] ([****]) of the [****], and [****]) the [****],
using a [****] approach, to a depth of [****] sufficient to generate at
least [****] ([****])[****].
o Fragments from the [****] of the [****] were compared and [****] to the
[****] using a [****].
o At least [****] were discovered using [****]. This process discovers
[****], using [****] from the [****].
o These [****] were [****], to the [****]. They have been analyzed [****]
using [****].
OUTCOME AND CELERA INPUT
o A set of at least [****] putative SNPs that cover the bovine genome and
have known, unique locations on Celera's [****] (the "Putative SNP
Set").
MMI RIGHTS AND ACCESS
o Celera has licensed access to its bovine SNP maps, database, and
technology to MetaMorphix.
PART I -- SNP MAP VALIDATION
----------------------------
Anticipated Start Date: May 10, [****]
Anticipated Completion Date: December 1, [****]
Cost: Four million three hundred thousand
($4,300,000) dollars
WORK PLAN
o MMI will select up to [****] from the [****] for validation. Based on
experience in other species, MMl's selection criteria will include
[****],[****] ([****] and [****]), and the likelihood that MMI can
predict if a [****] and [****].
o MMI will analyze the [****] as follows:
(i) a representative animal from each of the following [****],
namely, [****] and [****], will be used to [****] and [****] of
each [****];
(ii) for those [****] in the representative animal of [****], MMI
will [****] an additional [****] from each of these [****] to
determine the [****] of the [****] and [****].
35
o MMI elect a set of at least [****] from the [****] analyzed as described
in this section of the Work Plan (the "Validated SNP Set") such that the
selected SNPs ("Validated SNPs") have the best possible [****] to the
[****].
DELIVERABLE
o The Validated SNP Set.
o A report detailing the Validated SNP Set including SNP identification,
[****] location on [****] (if known), and [****] in each breed tested
above.
MMI may maintain the confidentiality of the SNP primer pairs and SNP
amplicon sequence, i.e., marker names may remain anonymous in accordance
with Section 5.3.4. In accordance with Section 5.3.4, The Cargill
Entities may inspect and assess the SNP primer pairs and SNP amplicon
sequence to assist The Cargill Entities in its determination under
Section 3.3. Such inspection and assessment shall not result in the
disclosure of specific primer pair and sequence information to The
Cargill Entities.
ACTION ITEM
o Steering Committee to make recommendations to the Parties to determine
whether to continue or amend the Work Plan. A recommendation shall be
given to continue into Part 2 if the Deliverables are acceptable.
ASSOCIATION STUDY
ASSUMPTIONS
-----------
The plan for the association study is based on certain assumptions, which to
MMl's best knowledge will yield the expected outcomes, but is subject to change
as new knowledge is acquired in the process. MMI has yet to determine the final
genotyping strategy to be used for the association study. MMI will choose the
strategy that delivers the most information the most efficiently. In any event,
MMI will not attempt more than [****] ([****]) genotypes as part of the
association study. The total number of genotyping reactions will depend upon a
number of technical factors that will become evident as the research progresses.
These technical factors include, but are not limited to:
(i) number of [****];
(ii) the potential of [****] versus [****];
(iii) the [****] in [****] of the [****] of the [****], and the
appropriate number of animals in these [****];
(iv) the number of animals with [****]; and
(v) the number of [****] in the [****].
The following plan represents MMl's reasonable estimate of the work required to
reach the program's objectives, but is subject to change depending on the
results of previous steps, the performance and practicability of the SNP
detection system concept, and changes in the technology.
36
PART 2 -- ASSOCIATION STUDY -- PHASE ONE
----------------------------------------
Anticipated Start Date: January 1, [****]
Anticipated Completion Date: December 1, [****]
Cost: Four million four hundred thousand
($4,400,000) dollars
THE CARGILL ENTITIES INPUTS
o Twenty milliliters (20ml) blood samples in EDTA tubes (purple top)
collected from [****] to be delivered to MMI no later than November 1,
[****].
o [****] from each of the [****] animals as follows, to be delivered to
MMI no later than November 1, [****] in accordance with protocols (e.g.,
refrigeration) reasonably established by MMI.
[****]
[****] would be assigned an [****] and have an [****] upon entering the
study. Two additional [****] will be recorded when the [****]. The
[****] collected from the [****] would include any information known
about the [****] to their [****] ([****], etc.) and the [****] group
would be recorded. Any [****] would be noted in the record as well.
[****] would be acquired at some time period prior to xxxxxxxxx.
[****] and [****]
of [****], etc
[****]
[****] and any [****] recorded would enter
the [****]. All information [****] at the [****] would be included as
follows.
[****]
[****]
[****] recorded on [****] and [****] according to [****].
WORK PLAN
o MMI will determine which [****] from the [****] will be used in
Association Study -- Phase Two. This determination may be accomplished
in one of two ways: (i) by analyzing [****], or (ii) by [****]. The
success of a [****] depends on the [****] of the [****]. MMI will
determine the [****] of the [****] before [****] whether to use the
[****]. In either approach, the number of [****] that must be [****] can
be determined [****] the [****] are [****]. This number is based on
[****] and the [****]. The two [****] are described below:
o In the [****], MMI will [****] no less than [****] using the
[****]. MMI will create a minimum of [****] will be comprised of
[****] least one of the [****] will be comprised of animals from
the [****] and [****] will be comprised of [****] from the
[****] of the [****] ([****]).
o In the [****], MMI will [****] that would have been [****] in
the [****], had the [****] been chosen, with the [****]. Animals
that would have been [****] in more than [****] (that is, the
[****] for more than [****]) will be [****] only.
o MMI will record any [****]. For each [****], based on these [****], MMI
will identify a
37
[****] from the [****] that show [****] of the [****] in the [****] (the
"[****]").
DELIVERABLE
o MMI will screen [****] ([****]) Validated SNPs per thirty (30) days and
deliver to The Cargill Entities, after the end of each such period, a
report listing all tested SNPs, SNP genotypes of genotyped animals, and
association test statistics.
ACTION ITEM
o Steering Committee to make recommendations to the Parties to determine
whether to continue or amend the Work Plan.
PART 3 -- ASSOCIATION STUDY -- PHASE TWO
----------------------------------------
Anticipated Start Date: January 1, [****]
Anticipated Completion Date: March 1, [****]
Cost: One million one hundred thousand
($1,100,000) dollars
MMI INPUT:
o As a result of Association Study -- Phase One, MMI will have selected
the Reduced SNP Set for use in Association Study -- Phase Two
WORK PLAN
o Depending upon the strategy selected in the Association Study -- Phase
One:
o If the [****] has been selected in Association Study -- Phase One,
all [****] will be [****] with the [****].
o [****] were [****] to [****] the Association Study -- Phase One,
then the [****] from the Phase One Association Study will be [****]
with the [****].
o MMI will record any [****] and [****] in the [****], and [****] the
[****] of the [****] on the [****] contributed by [****] for which that
[****] is a [****].
o MMI will create a table identifying [****] with the [****] ("[****]")
resulting in a [****] with each of the [****] (an "[****]").
DELIVERABLES
o The Associated SNP Sets.
o A report listing all tested SNPs, SNP genotypes of all genotyped
animals, association test statistics and an [****] for the [****] of the
[****] on the [****] contributed by the [****] for which that [****] is
a [****]. The report need not contain such information as is maintained
as confidential in accordance with Section 5.3.4.
ANALYSIS OF ASSOCIATION STUDY
-----------------------------
Under the guidance of the Steering Committee, the Parties will analyze the
[****] and [****] data to determine whether the Associated SNP Sets can lead to
acceptable diagnostic SNPs. The criteria will include whether the anticipated
SNP-based diagnostic test is likely to detect [****] that [****] in each of the
Targeted Traits. The Parties will use the [****] with which all the animals used
in the study fall into [****] based on their [****] to [****] the [****] as to
whether or not they are [****] for [****] that [****] the [****] for each
[****], as well as all [****] of the
38
[****]. The Parties will analyze genetic relationships among all SNP markers to
determine if SNP markers for alleles that [****] to [****] for [****] the
phenotype for the other Targeted Traits.
The Parties understand and acknowledge that to create significant value, the
alleles detected by diagnostic SNP markers should account for a [****] of the
[****] for each of the [****]; however, the Steering Committee's recommendation
regarding continuing the program shall be based on its assessment of the
potential value that can be created by implementing an SNP-based diagnostic test
for a Targeted Trait. Specifically, the Steering Committee shall assess the
probably "value added" benefit of the diagnostic SNP marker Product and the cost
per test.
ACTION ITEM
o Steering Committee to make recommendations to the Parties to determine
whether to continue or amend the Work Plan. The recommendation shall be
given to continue into Part 4 if it can be reasonably envisioned that
the Product will (1) produce more than [****] dollars ($[****]) in
"[****]" [****] and (2) [****] of the [****].
DIAGNOSTIC PRODUCTS
PART 4 -- DEVELOPMENT AND VALIDATION OF DIAGNOSTIC PRODUCTS
-----------------------------------------------------------
Anticipated Start Date: April 1, [****]
Anticipated Completion Date: June 1, [****]
Cost: Four hundred thousand ($400,000) dollars
THE CARGILL ENTITIES INPUTS
o One (1) blood samples in an EDTA tube (purple top) with a minimum of ten
(10) ml of blood will be collected from [****] ([****]) for which [****]
have been (or will be) collected to be delivered to MMI not later than
May 15, [****]. The phenotypes will not be delivered to MMI.
WORK PLAN
o If necessary to create a [****] for each of the [****], MMI will
identify [****] from the [****] close to the [****] of the [****].
o MMI will determine which of these [****] to the [****] with [****].
o MMI will select [****] that are [****] for the [****] of the [****] to
comprise [****] which can be used to [****] (a "[****]").
o MMI will validate these [****] ([****]) [****] supplied by [****] that
were not [****] in the either the Association Study -- Phase One or
Association Study -- Phase Two.
DELIVERABLES
o Diagnostic SNP Sets for each of the Targeted Traits.
o A report listing the genotypes of each of the [****] and the [****] of
the [****] used in the validation study
39
EXHIBIT C
MILESTONES AND PAYMENTS
PART I -- SNP MAP VALIDATION
----------------------------
Anticipated Start Date: May 10, [****]
Anticipated Completion Date: December 1, [****]
Cost: Four million three hundred thousand
($4,300,000) dollars
By December 1, [****], MMI will deliver the Validated SNP Set and the report set
forth in Part I of the Work Plan detailing the Validated SNP.
PART 2 -- ASSOCIATION STUDY -- PHASE ONE
----------------------------------------
Anticipated Start Date: January 1, [****]
Anticipated Completion Date: December 1, [****]
Cost: Four million four hundred thousand
($4,400,000) dollars
MMI will screen [****] ([****]) Validated SNPs per thirty (30) days and deliver
to The Cargill Entities, after the end of each such period, the report set forth
in Part 2 of the Work Plan.
PART 3 -- ASSOCIATION STUDY -- PHASE TWO
----------------------------------------
Anticipated Start Date: January 1, [****]
Anticipated Completion Date: March 1, [****]
Cost: One million one hundred thousand
($1,100,000) dollars
By March 1, [****], MMI will deliver the Associated SNP Sets and the report set
forth in Part 3 of the Work Plan.
PART 4 -- DEVELOPMENT AND VALIDATION OF DIAGNOSTIC PRODUCTS
-----------------------------------------------------------
Anticipated Start Date: April 1, [****]
Anticipated Completion Date: June 1, [****]
Cost: Four hundred thousand ($400,000) dollars
By May 15, [****], MMI will deliver the Diagnostic SNP Sets for each of the
Targeted Traits and the report set forth in Part 4 of the Work Plan.
PAYMENT SCHEDULE
Upon the full execution of this Agreement, The Cargill Entities will make an
initial payment of $2,040,000 (the "Initial Payment") to MMI. Thereafter, in
accordance with Section 3, The Cargill Entities shall remit the following
payments, except for the Initial Payment, to MMI following the full and
successful completion of each Part of the Work Plan, as follows:
40
Part I SNP Map Validation phase $2,260,000 $4,300,000 in
Part 2 Association Study -- Phase One $4,400,000 total, of which
Part 3 Association Study -- Phase Two $1,100,000 $2,040,000 has
Part 4 Development and Validation of $ 400,000 already been paid
Diagnostic Products
V. PAYMENTS & INVOICING
All payments under this Agreement shall be made in U.S. dollars by
deposit to the credit and account of MMI as follows:
BY MAIL TO:
MetaMorphix, Inc.
0000X Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X.X. Xxxxxx, Vice President and CFO
BY WIRE TO:
Bank of America, N.A.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
[****]
Beneficiary Name: MetaMorphix, Inc.
Beneficiary Account Number: [****]
Invoices should be sent to:
Excel Corporation
000 X. Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attn: [****]
41
