Exhibit 10.35
[*] =Certain confidential information contained in this exhibit, marked by
brackets with asterisks, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.
MONSANTO CONFIDENTIAL INFORMATION
AMENDMENT NUMBER 3
To
MONSANTO/PARADIGM GENETICS COLLABORATION AGREEMENT
THIS IS AN AMENDMENT, effective September 23, 2002, to the
Monsanto/Paradigm Genetics Collaboration Agreement dated as of November 17,
1999, and amended May 10, 2000 and August 30, 2001, (the "Agreement") by and
between Paradigm Genetics Inc., a Delaware corporation, having a principal place
of business at 000 Xxxxxxxxx Xxxxx, Xxxxxxxx 0X, X.X. Xxx 00000, Research
Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000-0000 ("Paradigm") and Monsanto Company
("Monsanto"), a Delaware corporation, having a principal place of business at
000 X. Xxxxxxxxx Xxxx., Xx. Xxxxx, Xxxxxxxx 00000.
WHEREAS, the parties have agreed to modify the Agreement as set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties agree as follows:
1. DEFINITIONS
1.1 Terms defined in the Agreement are used herein as so defined.
1.2 New Definitions
In addition, for purposes of the Agreement, as amended hereby, the
following words and phrases shall have the following meanings:
1.47 Assay
[*****]
1.48 [*****]
1.49 [*****]
1.50 [*****]
1.51 [*****]
1.52 [*****]
2. REPLACEMENT AND ADDITION OF APPENDICES
2.1 Replacement Appendices B and C
Appendix B is deleted from the Agreement and replaced with Appendix B
which is attached hereto and incorporated herein by reference. Appendix
C is amended, to delete the information relating to [*****] and Appendix
C1, which is attached hereto and incorporated herein by reference, is
added for Production Target Levels for [*****].
2
2.2 Appendix N
Appendix N is added to the Agreement and attached hereto and
incorporated herein by reference.
3. TERM AND TERMINATION OF FUNDED PROJECT
3.1 The Agreement is amended by replacing Article 3.5.2 with the
following:
3.5.2 Early Termination - [*****] Monsanto may terminate this
Agreement [*****]. In the event of termination for failure to
[*****]. Monsanto will [*****]. In the event of termination
under this Article 3.5.2, Paradigm will, upon request of
Monsanto, [*****]
4. PAYMENTS
4.1 The Agreement is amended by replacing Articles 4.1.3 and 4.1.4
with the following:
4.1.3 [*****] Payment
Monsanto will pay Paradigm the fees set out in Appendix D as
compensation for Paradigm's services under the Project Plan for
each [*****] at the beginning of each [*****], except that the
payment for [*****] may be withheld until Paradigm has delivered
[*****] to Monsanto for [*****] and the payment for [*****] may
be withheld until Paradigm has delivered [*****] to Monsanto for
[*****] and has completed all [*****] work as set forth in
Appendix B [*****] The Project Committee will, at each quarterly
meeting, determine the number of credits available and record
the number in the minutes of the meeting. Monsanto shall have
fifteen (15) business days following delivery of [*****] to
assess whether the requirements for [*****] and [*****] work
have been met. If Monsanto does not give written notice that it
believes the requirements have not been met during such fifteen
(15) day period, the requirements will be conclusively presumed
to have been met. If Monsanto gives such written notice and
Paradigm disagrees, the matter will be resolved in accordance
with Section 11.3. Payments for [*****] and [*****] will be made
within thirty (30) days of the demonstration of the achievement
of requirements for [*****] and [*****] work have been met.
4.1.4 Production Target Level Payments
Monsanto will pay Paradigm [*****] payment that is a percentage
of the [*****] payment set forth in Appendix D. In no event
shall the payment exceed [*****] of the [*****] payment set
forth in Appendix D; and wherein sum of all [*****] payments
cannot be greater that [*****],
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unless one or more of the options in Article 4.1.5 are
exercised, in which event the sum of the [*****] payments cannot
be greater than the aggregate total of the [*****] payments on
the appropriate Appendices.
The [*****] payments shall be calculated as follows for [*****]
and all [*****] thereafter: [*****] of the payment will be
dependent upon [*****] delivered in the [*****], including the
Grace Period, as specified in Table 2, Appendix C, and [*****]
of the payment will be dependent upon the total number of
[*****] delivered in the [*****], including the Grace Period, as
specified in Table 3, Appendix C. Assays performed in a [*****]
shall first be treated as Assays performed in the Grace Period
of the preceding [*****] to the extent of any shortfall in the
same type [*****] and screen in such preceding [*****], and
shall be applied against the [*****] for such preceding [*****].
For [*****] and [*****] run for [*****], if the number of Assays
of a given type, [*****] delivered in a [*****], including its
Grace Period, for a given screen (after deducting Assays for
such screen that are applied to the preceding [*****] in
accordance with the preceding sentence) exceeds the [*****],
then the number of Assays exceeding the [*****] goal are
creditable toward the [*****] goal for the same screen in any
subsequent [*****], but are not creditable toward the [*****]
goal for a different screen in any [*****]. If excess Assays are
credited to prior [*****] shortfalls, Monsanto will pay Paradigm
the additional amount resulting from the [*****], at the time of
payment of amounts for the [*****] in which the excess Assays
were performed. For clarity, an example of a [*****] payment
calculation is shown in Appendix C. [*****] credits for failed
experiments, as defined in the [*****], may be used to meet
[*****] goals for [*****], with each [*****] credit available to
count as one Assay for each screen. If a credit is applied to
meet a [*****] goal for a screen, it may be replaced later with
an actual completed Assay and reused, but only for the same
screen for which it was used previously.
The Project Committee will agree on the appropriate QC criteria
to validate all [*****] deliveries. These QC criteria will be
used to validate attainment of [*****] and [*****]. Paradigm
will [*****] and share the resulting scripts with Monsanto.
Monsanto will [*****] and recommend any necessary changes. The
[*****] will be used by Paradigm to [*****]. Monsanto will use
the [*****]. If any problems [*****] following the QC guidelines
established by the Project Committee. Paradigm will not be
required to remediate any [*****] that have been accepted in
[*****].
All such payments under this section 4.1.4 will be made within [*****]
days of the demonstration of the achievement of the [*****].
4
Except as expressly set forth herein, the Agreement shall remain in full
force and effect and shall not be deemed modified hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Number
3 to be executed and delivered as of the date set forth above.
PARADIGM GENETICS, INC. MONSANTO COMPANY
By: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx, Ph.D.
----------------------------- -----------------------------
Printed Printed
Name: Xxxxxxxx Xxxxxx Name: Xxxxxx Xxxxxx, Ph.D.
--------------------------- -----------------------------
Title: President & CEO Title: Chief Technology Officer
-------------------------- -----------------------------
Date: Sept. 27, 2002 Date: Oct. 14, 2002
--------------------------- -----------------------------
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APPENDIX B - PROJECT PLAN
Updated September 2002 with Collaboration Agreement Amendment #3
[*****]
APPENDIX C:
Project Plan Production Target Levels
[*****]
