EX-10.35
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.
LETTER OF INTENT, LIMITED LICENSE AND OPTION AGREEMENT
THIS LETTER OF INTENT, LIMITED LICENSE AND OPTION AGREEMENT
("LOI/Limited License/Option Agreement") is entered into this 10th day of
November, 2000, by and between MetaMorphix, Inc., a Delaware corporation with a
business address at 0000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("MMI")
and Pilgrim's Pride Corporation, a Delaware corporation with its principal place
of business at 000 X. Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("Pilgrim's Pride").
(Pilgrim's Pride and MMI may each be referred to as a "Party" and may be
collectively referred to as the "Parties").
WHEREAS, MMI is in the business of producing biotechnology-based
products focused on improving poultry production, livestock production and
animal health;
WHEREAS, MMI has developed Myostatin(TM) Blockers, biotechnology-based
products that are administered by injection into chicken eggs to inhibit the
biological function of the. Myostatin(TM) protein thereby causing an increase in
muscle mass and carcass weight, accelerated weight gain, improved feeding
efficiency, standardization and uniformity of growth of males and females and/or
improved nutritional profile of the meat ("Myostatin(TM) Blockers");
WHEREAS, MMI represents that it either owns or holds valid exclusive
licenses to patent applications, patents and know-how (hereinafter collectively
referred to as "Myostatin(TM) Blocker Technology") related to the Myostatin(TM)
Blockers for non-human applications that (x) either disrupt or eliminate
Myostatin(TM) protein synthesis, bind to Myostatin(TM) receptors or interfere
with Myostatin(TM) signal transduction; and (y) result in an increase or
modification of muscle growth in chickens (the "MBT Applications");
WHEREAS, Pilgrim's Pride is in the business of producing, processing and
marketing poultry products in the. United States;
WHEREAS, MMI desires that Pilgrim's Pride enter into a long term,
non-exclusive, non-divisible, personal license agreement with respect to the
Myostatin(TM) Blocker Technology for use in poultry production in the United
States;
WHEREAS, Pilgrim's Pride desires to conduct its own internal research
and evaluation of the Myostatin(TM) Blocker Technology under commercial broiler
production conditions prior to entering into a long term, non-exclusive,
non-divisible, personal license agreement (hereinafter "Long Term License
Agreement");
WHEREAS, Pilgrim's Pride desires to enter into a Long Term License
Agreement with MMI so that Pilgrim's Pride may conduct, at their option,
internal research and evaluation of the Myostatin(TM) Blocker Technology to
further verify that the Myostatin(TM) Blocker causes a material increase in
muscle mass and carcass weight, accelerated weight gain, improved feeding
efficiency, standardization and uniformity of growth of males and females and/or
improved nutritional profile of the meat ("Pilgrim's Trials"). Any further
references to such Pilgrims Trials made herein are made under the assumption
that Pilgrim's Pride will undertake the Pilgrim's Trials. If Pilgrim's Pride
does not conduct the Pilgrim's Trials, MMI will not consider this a breach of
this LOl/Limited License/Option Agreement; and
WHEREAS, MMI and Pilgrim's Pride desire to enter into this LOI/Limited
License/Option Agreement to facilitate the Pilgrim's Pride commercial scale
trials, to facilitate negotiations of agreements which will govern the terms of
the proposed Long Term License Agreement between MMI and Pilgrim's Pride and to
affirm Pilgrim's Pride's intention to participate in the Poultry Scientific
Advisory Committee, as defined in Paragraph 1(a) below.
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NOW, THEREFORE, in consideration of the mutual promises and benefits
acknowledged by each of the above Parties, the Parties agree to:
1. RELATIONSHIP MANAGEMENT. Each Party will employ reasonable efforts to
provide the necessary resources to:
(a) form a committee comprised of all poultry companies that enter
into license agreements with MMI, for the purpose of selecting
an independent third party to conduct commercial scale trials on
the Myostatin(TM) Blocker Technology under commercial broiler
production conditions ("Poultry Scientific Advisory Committee");
(b) develop and establish a general process for implementing an
evaluation of the Myostatin(TM) Blocker Technology under
commercial broiler production conditions and for the
commencement of such commercial scale trials (the "Commercial
Scale Trials") to be agreed upon according to the provisions of
Paragraph 2(b), INFRA;
(c) conduct the Commercial Scale Trials and the Pilgrim's Trials in
an effort to obtain the information necessary to support U.S.
regulatory approval of products based upon the Myostatin(TM)
Blocker Technology;
(d) ensure that Pilgrim's Pride will provide Will with monthly
reports detailing the conduct and progress of the Pilgrim's
Trials;
(e) participate in regularly scheduled quarterly meetings in an
effort to identify any further requisite scope of work and to
analyze the year-to-date performance of the Pilgrim's Trials and
the Commercial Scale Trials; and
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(f) designate relationship managers as a primary contact for the
other Party.
2. GRANT OF LIMITED LICENSE.
(a) Subject to the terms and conditions of this LOI/Limited
License/Option Agreement, MMI hereby grants to Pilgrim's Pride a
limited non-exclusive, nondivisible, personal license to use the
Myostatin(TM) Blocker Technology (the "Limited License") for
research conducted in the Pilgrim's Trials solely related to the
MBT Applications and the products developed using the
Myostatin(TM) Blockers. This Limited License is limited to the
use of the inventions and knowhow comprising the Myostatin(TM)
Blocker Technology for the evaluation of the use of
Myostatin(TM) Blockers by injection into chicken eggs under
commercial broiler production.
(b) The Limited License shall expire thirty (30) days following the
completion of the Commercial Scale Trials, but maybe extended by
a written agreement between the Parties.
3. MMI'S RESPONSIBILITIES.
(a) POULTRY SCIENTIFIC ADVISORY COMMITTEE.
(i) MNII shall form a Poultry Scientific Advisory Committee
for selecting an independent third party to conduct the
Commercial Scale Trials on the Myostatin(TM) Blocker
Technology.
(ii) MMI shall appoint the Chairman of the Poultry Scientific
Advisory Committee.
(iii) MMI agrees that Pilgrim's Pride, and every other poultry
company under contractual arrangements with MMI relating
to the Myostatin(TM) Blocker
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Technology, shall have the right to appoint one (1)
person to serve on the Poultry Scientific Advisory
Committee and that each committee member, including the
Chairman, shall have one (1) vote.
(b) COMMERCIAL SCALE TRIALS.
(i) MNII shall initiate the Commercial Scale Trials at its
own expense, but not to exceed One Hundred Thousand
Dollars ($100,000). MMI further agrees that in the event
costs associated with the Commercial Scale Trials exceed
$100,000 that MNII will not request any monetary
contribution from Pilgrim's Pride to offset these cost
overruns.
(ii) The Commercial Scale Trials are to be conducted by an
independent third party expert who will be approved by a
simple majority vote of the members of the Poultry
Scientific Advisory Committee.
MMI agrees that protocols for the Commercial Scale
Trials shall also be approved by a simple majority vote
of the members of the Poultry Scientific Advisory
Committee.
(iv) MMI shall be responsible for conducting, at its own
expense, all studies required for U.S. regulatory
approval of the use of the Myostatin(TM) Blocker
Technology in poultry production.
(v) MMI shall be responsible for manufacturing and supplying
the Myostatin(TM) Blockers for the Commercial Scale
Trials.
(c) MMI agrees that, conditioned upon the execution of this
LOI/Limited License, a Non-disclosure/Confidentiality Agreement
(a copy of which is attached hereto as EXHIBIT A and
incorporated herein by this reference), a Material Transfer
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Agreement (a copy of which is attached hereto as EXHIBIT B and
incorporated herein by this reference) upon determination by
MMI, in its sole discretion, that sufficient quantities of the
Myostatin(TM) Blocker product exists to provide Pilgrim's Pride,
it will make the quantity of the Myostatin(TM) Blocker product
necessary to perform the Pilgrim's Trials available for use in
the Pilgrim's Trials on a cost plus ten percent (10%) basis and
to provide such technical assistance deemed reasonably necessary
by MMI for the successful completion of the Pilgrim's Trials.
PILGRIM'S PRIDE'S RESPONSIBILITIES.
(a) Pilgrim's Pride will pay MMI a non-refundable fee of Two Hundred
Fifty Thousand Dollars ($250,000) upon execution of this
LOI/Limited License.
(b) POULTRY SCIENTIFIC ADVISORY COMMITTEE. PILGRIM'S TRIALS AND
COMMERCIAL SCALE TRIALS.
(i) Pilgrim's Pride will appoint one (1) individual to serve
on the Poultry Scientific Advisory Committee.
(ii) Pilgrim's Pride agrees to a similar. representation on
the Poultry Scientific Advisory Committee by all other
poultry companies under contractual arrangements with
MMI relating to the Myostatin(TM) Blocker Technology who
have agreed to participate in the Commercial Scale
Trials, that each committee member will have one (1)
vote and that MMI will appoint the Chairman, who shall
also have one (1) vote.
(iii) Pilgrim's Pride will accept the quantity of the
Myostatin(TM) Blocker product necessary to perform the
Pilgrim's Trials made available by MMI
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to Pilgrim's Pride on a cost plus ten percent (10%)
basis for the purpose of conducting the Pilgrim's
Trials.
(iv) Pilgrim's Pride shall be responsible for paying for all
aspects of the Pilgrim's Trials and shall make any and
all data and results of the Pilgrim's Trials available
to MMI on a monthly basis.
(v) During the term of this LOI/Limited License/Option
Agreement and until the execution of a Long Term License
Agreement by Pilgrim's Pride and MMI, as set forth in
Xxxxxxxxx 0, XXXXX, any inventions, improvements thereof
or know-how arising from Pilgrim's Trials or the
Commercial Scale Trials on the Myostatin(TM) Blocker
Technology or any patent application thereon: (a) will
be disclosed to MMI immediately; and (b) MMI will be
granted a royalty-free, exclusive, worldwide license to
the patent applications, patents or improvements
thereof, patent rights and know-how with additional
rights to sublicense them to third parties.
(c) Pilgrim's Pride agrees that, in its internal research and
evaluation of the Myostatin(TM) Blocker Technology, it will
comply with all federal and state regulatory laws and
restrictions.
(d) Pilgrim's Pride will participate in regularly scheduled
quarterly meetings in an effort to identify any further
requisite scope of work and to analyze the year-todate
performance of the Commercial Scale Trials.
(e) Pilgrim's Pride will designate relationship managers as a
primary contact for the other Party.
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LONG TERM LICENSE AGREEMENT.
(a) Upon successful completion of the Commercial Scale Trials,
Pilgrim's Pride agrees to enter into good faith negotiations
with MMI to enter into a Long Term License Agreement for the use
of the Myostatin(TM) Blocker Technology (the "Long Term
License") limited to improving chicken meat production economics
by inhibiting the biological function of the Myostatin(TM)
protein by injecting Myostatin(TM) Blocker into chicken eggs,
thereby creating benefits, including, but not limited to, an
increase in muscle mass and carcass weight, accelerated weight
gain benefits, including, but not limited to, improved feeding
efficiency, standardization and uniformity of growth of males
and females and/or improved nutritional profile of the meat
Unless otherwise agreed to by the parties in writing, a Long
Term License Agreement shall be executed within ninety (90) days
after the completion of the Commercial Scale Trials. It is also
anticipated that MMI may enter into similar Long Term License
Agreements with up to three additional poultry producers, to be
selected within the discretion of MMI.
(b) It is anticipated that the Long Term License Agreement will be
limited to the territory of the United States, without any
rights of export ("Territory").
(c) It is anticipated that the Long Term License Agreement will have
an initial term of five (5) years to begin upon U.S. regulatory
approval for products produced using the Myostatin(TM) Blocker
Technology and chickens produced from the Myostatin(TM) Blockers
products, with a right to renew the license for similar five (5)
year terms until the expiration date of the licensed patents,
provided,
HOWEVER, that renewal of the Long Term License Agreement will be
conditioned
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upon Pilgrim's Pride's production exceeding certain minimum
sales volumes which will be mutually agreed upon by Pilgrim's
Pride and MMI. These renewals will be subject to the applicable
patent term.
(d) It is anticipated that the license fee under the Long Term
License, and any other license agreements entered into for the
use of Myostatin(TM) Blockers with other poultry companies,
shall have two components: (i) an up-front license fee and (ii)
a royalty fee based on the value added per chicken by using the
Myostatin(TM) Blockers (the "Value Added").
(e) It is anticipated that the aggregate of all up-front license
fees under the Long Term License, and any other long term
license agreement MMI enters into with other poultry companies,
shall total [****] Dollars ($[****]). Under any long term
license agreement, it will be stipulated that Pilgrim's Pride
will pay their PRO RATA share of the $[****] total up-front
license fee based upon Pilgrim's Pride's production level of
chickens in pounds-per-year as it relates to the total annual
chicken production levels of all of MMI's licensees under the
referenced agreements. For the purpose of the PRO RATA division
of these up-front license fees, the calendar year 1999 will be
used as the base year.
(f) It is anticipated that Pilgrim's Pride will pay its share of the
up-front license fees on the following schedule: (i) one-quarter
(1/4) of the total up-front license fee will be due upon the
execution of the Long Term License Agreement; and (ii)
one-quarter (1/4) of the total up-front license fee will be due
upon the first, second and third anniversaries of the execution
of the Long Term License Agreement; provided however, that such
share of the up-front license fee will be limited to a
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payment of no more than [****] per annum.
(g) Although it is anticipated that the Value Added royalty
component of the license fee will equate to thirty percent (30%)
of the value added to the licensees' chicken production from
using the Myostatin(TM) Blocker Technology, a definitive Value
Added royalty component will be negotiated and agreed upon by
the Parties prior to execution of the Long Term License
Agreement This Value Added royalty will be calculated and paid
on a quarterly basis. Pilgrim's Pride, as a member of the
Poultry Advisory Committee, shall participate in further
negotiations with MMI and the other members of the Poultry
Scientific Advisory Committee, to determine the Value Added
royalty to be paid to MMI that will be based upon the average
economic benefit provided by the Myostatin(TM) Blocker
Technology on a cents-per-chicken basis. If the Poultry
Scientific Advisory Committee cannot mutually agree on a Value
Added amount to be included in the Long Term License, the
Poultry Scientific Advisory Committee will agree to the
appointment of a panel of three (3) independent arbitrators to
initiate non-binding arbitration to make this determination. It
is anticipated that if the determination of the arbitrators is
unsatisfactory to MMI, MMI reserves the right to terminate the
negotiations with any dissenting member of the Poultry
Scientific Advisory Committee.
(h) If the Parties enter into the Long Term License, it is
anticipated that Pilgrim's Pride will provide sales and royalty
reports within thirty (30) days of the end of each quarter.
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(1) If the Parties enter into the Long Term License, MMI will credit
the up-front license fee advanced by Pilgrim's Pride against any
Value Added royalty to be paid under the Long Term License.
However, MMI's obligation to credit Pilgrim's Pride's up-front
license fee payments against any Value Added royalty payments
will be limited to no more than fifty percent (50%) of the total
Value Added royalty due in any one year and shall continue from
year to year until the up-front license fee has been fully
credited. Upon completion of repayment to Pilgrim's Pride of its
up-front license fees, Pilgrim's Pride will pay MMI the full
agreed upon Value Added royalty for the duration of the term of
the Long Term License.
(j) It is anticipated that the Long Term License will contain
representations, warranties and indemnities by the Parties
customary for transactions and relationships of this nature for
failure to perform covenants and for breach of representation
and warranties.
(k) It is anticipated that the Long Term License Agreement shall
contain provisions that:
(i) Pilgrim's Pride may terminate the Long Term License
Agreement at any time upon thirty (30) days written
notice;
(ii) If Pilgrim's Pride terminates the Long Term License
Agreement, Pilgrim's Pride's rights to use the
Myostatin(TM) Blocker Technology will be revoked and
Pilgrim's Pride's obligation to pay MMI any future
up-front license fees will terminate; and
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(iii) MMI shall have the right to terminate the Long Term
License Agreement in the event of a breach of any of the
terms or conditions of the Long Term License Agreement
and such breach has not been cured within forty-five
(45) days of receipt by Pilgrim's Pride of the notice of
such breach.
(1) It is anticipated that the Long Term License Agreement will not
be assignable, transferable or saleable without MMI's consent,
which may be granted in MMI's sole discretion.
(m) It is anticipated that the Long Term License Agreement shall
contain a provision that any new patent applications, patents or
improvements thereof, patent rights and know-how arising from
Pilgrim's Pride's use or internal research of the Myostatin(TM)
Blocker Technology shall be: (a) disclosed immediately; and (b)
licensed promptly to MMI. This license will be royalty-free,
non-exclusive, and worldwide with additional rights to
sublicense them to third parties.
(n) INDEMNIFICATION.
(i) Pilgrim' s Pride, its directors; officers, employees,
agents and assigns will agree to indemnify, defend and
hold harmless MMI and its directors, officers, employees
and agents from and against any and all claims
threatened or initiated against MMI that arise under any
federal or state antitrust or unfair competition law,
and which challenge any conduct under Paragraph 10
hereof or its implementing provision in the Long Term
Licensing Agreement. This agreement to indemnify, defend
and hold harmless shall cover any and all losses,
expenses, damages, liabilities, and costs, including
without limitation, interest, penalties,
12
double or treble damages, reasonable attorneys' fees,
court or litigation costs, costs associated with
responding to any investigative demand or discovery
request, judgments, and amounts paid in settlement by
MMI (upon consultation with Pilgrim's Pride) arising
from such claims or any claims supplemental to them.
This is conditional, however, upon a finding and or
judgment of a court of competent jurisdiction that the
provisions of Paragraph 10 hereof, or its implementing
provision in the Long Term Licensing Agreement, are
unlawful, or if MMI, after consultation with PP, enters
into an agreement settling-any such actual or threatened
claims.
(ii) Each Party hereto and its directors, officers,
employees, agents and assigns agrees to indemnify,
defend and hold harmless the other Party hereto and its
directors, officers, employees and agents from and
against all claims, losses, damages, costs, expenses
(including, but not limited to, reasonable attorney's
fees and costs of litigation actually incurred) or
liability incurred or suffered due to either of such
Parties, or such Parties authorized agents or
contractors, negligence or willful misconduct.
(iii) MMI, its directors, officers, employees, agents and
assigns will agree to indemnify, defend and hold
harmless Pilgrim's Pride and its directors, officers,
employees and agents from and against any and all claims
related to Patent infringements by MMI under or related
to the Long Term License Agreement,
(iv) The foregoing agreements to indemnify, defend and hold
harmless shall be effective throughout the term of the
Long Term Licensing Agreement, and
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shall extend to any claim initiated or threatened after
the termination of the Long Term Licensing Agreement, if
such claim arises out of conduct that occurred during
the term of the agreement.
6. TERM AND TERMINATION OF LOI/LIMITED LICENSE/OPTION AGREEMENT.
(a) The term of the LOI/Limited License/Option Agreement shall
commence upon execution of this LOI/Limited License/Option
Agreement and shall terminate upon the completion of the
Commercial Scale Trials (the "Term").
(b) Pilgrim's Pride shall have the right to terminate this
LOI/Limited License/Option Agreement at any time, but agrees,
that upon termination, MMI, due to the nonexclusive nature of
this LOI/Limited License/Option Agreement, shall have the right
to license the Myostatin(TM) Blocker Technology to a replacement
poultry company to participate in the Poultry Scientific
Advisory Committee and for the same uses in the field and
Territory.
(c) Pilgrim's Pride agrees that termination of the agreement by
Pilgrim's Pride will not provide Pilgrim's Pride-with any
residual rights to the Myostatin(TM) Blocker Technology.
(d) In the event of termination, the fee of Two Hundred Fifty
Thousand Dollars ($250,000) will be retained by MMl.
(e) MMI shall have the right to terminate the LOI/Limited
License/Option Agreement in the event of a breach by Pilgrim's
Pride of this L0I/Limited License/Option Agreement and such
breach has not been cured within forty-five (45) days of receipt
by Pilgrim's Pride of the notice of such breach.
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7. COSTS AND EXPENSES. Each Party will bear its own costs and expenses in
connection with the transactions contemplated herein, except for the
payment by Pilgrim's Pride on a cost plus ten percent (10%) basis to MMI
for use of the Myostatin(TM) Blocker product in the Pilgrim's Trials.
8. CONFIDENTIALITY. The Parties agree to enter into a
Non-Disclosure/Confidentiality Agreement and agree that the terms of
this LOI/Limited License/Option Agreement and any of the agreements
contemplated herein shall be subject to the provisions of the
NonDisclosure/ Confidentiality agreement, the terms and conditions of
which shall survive any termination or expiration of this LOI/Limited
License/Option Agreement or any subsequent agreement entered into
between the Parties.
9. PUBLICITY. It is the Parties' intention to issue press releases
concerning this LOI/ Limited License/Option Agreement. Such releases
shall be mutually agreed upon and, prior to making such releases,
neither Party shall:
(a) make any announcement, public or private;
(b) discuss the terms and conditions of the
LOI/LimitedLicense/Option Agreement, the Poultry Scientific
Advisory Committee, the Commercial Scale Trials or the Pilgrim's
Trials; or
(c) discuss any of the proposed transactions with any third party
other than either Party's attorneys, without the prior consent
of the other Party.
After any such press release, all future communications or press
releases will be limited to the contents of the initial press release.
Thereafter, MMI, in its sole discretion, shall control and approve all
other publicity regarding the Myostatin(TM) Blocker Technology.
15
10. NON-EXCLUSIVE RELATIONSHIP. Subject to the limitations set forth in
Paragraph 4(a) above, nothing in this LOI/Limited License/Option
Agreement shall be construed as preventing or prohibiting MMI from
entering into additional agreements with third parties for similar
activities and/or services. However, MMI will limit the negotiation of
the rights to a long-term license agreement to the initial four
companies that participate in the Poultry Advisory Committee and the
Commercial Scale Trials as set forth in paragraphs 3 and 4. SUPRA.
Moreover, if, in the event any of the initial four companies fail to
execute a long-term license agreement or in the event of governmental
intervention, MMI reserves the exclusive right to negotiate with a
replacement company of MMI's exclusive choosing.
11. ENTIRE AGREEMENT. All previous negotiations and understandings between
MMI and Pilgrim's Pride, or their respective agents and employees, with
respect to the transaction set forth herein, are merged into this
LOI/Limited License/Option Agreement, except for the Non-Disclosure)
Confidentiality Agreement and the Material Transfer Agreement, which
alone fully and completely expresses the Parties' rights, duties and
obligations with respect to its subject matter and which may be amended
only by a subsequent written agreement between the Parties.
12. NO MERGER. The warranties, representations and covenants expressly made
herein shall survive the termination of this LOI/Limited License/Option
Agreement and shall not be merged therein.
13. GOVERNING LAW. This LOI/Limited License/Option Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to the conflict of laws principles
thereof.
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14. CHOICE OF FORUM. Any action or proceeding arising in any way out of this
LOI/Limited License/Option Agreement must be brought as follows: (x) if
by MMI, in the United States District Court, District of Maryland; (y)
if by Pilgrim's Pride, in the United States District Court, District of
North Texas; and (z) any such action or proceeding will be governed by
the laws of the State of Delaware.
15. SEVERABILITY. If any provision of this LOI/Limited License/Option
Agreement is found by a court of competent jurisdiction to be illegal,
invalid, or unenforceable, the remainder of this LOT/Limited
License/Option Agreement will not be affected, and in lieu of each
provision that is found to be illegal, invalid, or unenforceable, a
provision will be added as a part of this LOI/Limited License/Option
Agreement that is as similar to the illegal, invalid, or unenforceable
provision as may be possible and will be legal, valid and enforceable.
16. CONSTRUCTION. The rule of strict construction shall not apply to this
LOI/Limited License/Option Agreement. This LOI/Limited License/Option
Agreement has been prepared by MMI and its professional advisors and
reviewed by Pilgrim's Pride and its professional advisors. MMI,
Pilgrim's Pride and their separate advisors believe that this
LOI/Limited License/Option Agreement is the product of all of their
efforts, that it expresses their agreement, and that it should not be
interpreted in favor of or against either MMI or Pilgrim's Pride merely
because of their efforts in preparing it.
17. CAPTIONS GENDER NUMBER AND LANGUAGE OF INCLUSION. The captions are
inserted in this LOI/Limited License/Option Agreement only for
convenience of reference and do not define, limit, or describe the scope
or intent of any provisions of this LOI/Limited License/Option
Agreement. Unless the context clearly requires otherwise, the singular
17
includes the plural, and vice versa, and the masculine, feminine, and
neuter adjectives include one another. As used in this LOI/Limited
License/Option Agreement, the word "including" shall mean "including,
but not limited to."
18. BINDING EFFECT. This LOI/Limited License/Option Agreement, shall be
binding upon and inure to the benefit of the Parties hereto and their
respective successors, permitted assigns, heirs and personal
representatives.
19. MERGER, ACQUISITION OR SIMILAR TRANSACTIONS.
(a) The Parties acknowledge that the Limited License granted
hereunder has been negotiated with reference to the current
operations of the Pilgrim's Pride. Accordingly, the Parties have
agreed to the following terms governing merger, acquisition or
similar transactions:
(i) Any majority controlled subsidiary of Pilgrim's Pride,
or of a Pilgrim'sPride affiliate, that is created in the
ordinary course of business after the execution of this
agreement shall not affect the Limited License herein;
(ii) Any Party that becomes a majority owned or controlled
subsidiary of Pilgrim's Pride, or of a then-existing
licensed Pilgrim's Pride affiliate, after the execution
of the LOI/Limited License/Option Agreement shall be
made a Party to this LOl/Limited License/Option
Agreement;
(iii) Any licensed Pilgrim's Pride affiliate or business unit
of Pilgrim's Pride that is acquired by a third-party
shall no longer be entitled to the benefit of this
Limited License; and
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(iv) In the event a majority of the stock or assets of
Pilgrim's Pride are acquired or merged or consolidated
with a third person, the Limited License granted herein
may be rescinded at the sole discretion of MMI.
20. ASSIGNMENT. Subject to the provisions of Paragraph 19 hereof, this
LOl/Limited License/Option Agreement may not be assigned by Pilgrim's
Pride without the prior consent of MNII, which may be withheld for any
reason.
21. TIME. Time is of the essence of this LOI/Limited License/Option
Agreement and each and every provision hereof.
22. NOTICE. All notices, consents, waivers, and other communications that
are required under this Agreement must be in writing and will be deemed
to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by telecopier (with written
confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or (c) when received by the addressee,
if sent by a nationally recognized overnight delivery service (receipt
requested). All other business correspondence, including, but not
limited to, billing invoices, shipping information or order entries,
shall be in writing and shall be deemed to have been given when posted
with a reputable mail carrier. In either case, all of these
communications must be to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier
numbers as a Party may designate by notice to the other Parties):
19
If to MMI:
Xxxxx X. Xxxxxxxxxxx
MetaMorphix, Inc.
0000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxx,
XX 00000
Telephone: (000) 000-0000 Facsimile:
(000) 000-0000
If to Pilgrim's Pride:
Xxxx Xxxxxxxx
Pilgrim's Pride Corporation 000 Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000 Facsimile:
(000) 000-0000
Also provide a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP.
Sixteenth Floor
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
23. WAIVER AND MODIFICATIONS. No provision of this LOI/Limited
License/Option Agreement shall be waived, unless in writing signed by
the Party effecting such waiver. No waiver of the breach of any of the
terms or provisions of this LOI/Limited License/Option Agreement shall
be a waiver of any preceding or succeeding breach of this LOI/Limited
License/Option Agreement or any other provisions of it. No waiver of any
default, express or implied, made by any Party hereto shall be binding
upon the Party making such waiver in the event of a subsequent default.
This LOI/Limited License/Option Agreement may only be modified or
amended by a written agreement executed by each of the Parties.
20
24. WAIVER AND MODIFICATIONS. No provision of this LOI/Limited
License/Option Agreement shall be waived, unless in writing signed by
the Party effecting such waiver. No waiver of the breach of any of the
terms or provisions of this LOI/Limited License/Option Agreement shall
be a waiver of any preceding or succeeding breach of this LOI/Limited
License/Option Agreement or any other provisions of it. No waiver of any
default, express or implied, made by any Party hereto shall be binding
upon the Party making such waiver in the event of a subsequent default.
This LOI/Limited License/Option Agreement may only be modified or
amended by a written agreement executed by each of the Parties.
25. FURTHER PROVISIONS.
(a) LEGAL REPRESENTATION. The Parties hereto each acknowledge that,
in entering into this LOI/Limited License/Option Agreement, they
have not relied upon any statements, representations,
warranties, correspondence, negotiations, conditions,
understandings, promises or agreements, oral or written, not
specifically set forth in this LOI/Limited License/Option
Agreement, except those in the NonDisclosure/Confidentiality
Agreement and Material Transfer Agreement. All of the Parties to
this LOI/Limited License/Option Agreement represent that they
are represented by legal counsel and have been fully advised as
to the meaning and consequence of all of the terms and
provisions of this LOI/Limited License/Option Agreement.
(b) POST CONFORMING DOCUMENTS. The Parties hereto shall execute and
deliver any and all additional papers, documents, and other
assurances, and shall do any and
21
all acts and things reasonably necessary in connection with the
performance of their obligations hereunder and to carry out the
intent of the Parties hereto.
(c) AUTHORITY TO SIGN. All of the Parties hereto and their
authorized representatives signing this LOI/Limited
License/Option Agreement/Option Agreement represent and warrant
that they have authority to execute and enter into this
LOI/Limited License/Option Agreement.
25. CERTAIN PROHIBITIONS. Pilgrim's Pride, or any of Pilgrim's Pride's
affiliates, agree not to, either directly or indirectly, through its
subsidiaries and other affiliates or otherwise, provide financial or
other support for, provide documentation to or provide testimony on
behalf of, except as may be required by law, any third person in the
prosecution or submission of any claim, suit, petition, application,
request, against MMI or any of its subsidiaries, affiliates, agents,
strategic partners or customers relating to the Myostatin(TM) Blocker
Technology ("Claims"). Furthermore, Pilgrim's Pride and Pilgrim's
Pride's Affiliates will promptly give notice to MMI of all Claims of
which they become aware and of all activities undertaken by third
parties in preparation for assertion of any Claims, including without
limitation attempts by third parties to solicit or organize financial or
other support for the submission or assertion of any Claims.
26. EFFECT OF LOI/LIMITED LICENSE/OPTION AGREEMENT PROVISIONS. The Parties
shall negotiate in good faith toward the execution of the Long Term
License Agreement described herein. The provisions of Paragraph 4
represent the Parties' good faith intention to negotiate toward
execution of a definitive long term agreement. Unless otherwise agreed
to by the parties in writing, a Long Term License Agreement shall be
executed within ninety (90) days after the completion of the Commercial
Scale Trials.
22
Only the provisions of Paragraph 4 of this LOI/Limited License/Option
Agreement are not binding between the Parties and neither Party shall
have any liability to the other if they fail to execute a definitive
agreement for any reason.
If you agree that the foregoing correctly expresses your present
intent, please sign below in the space provided. The Parties shall
thereafter negotiate in a positive and constructive manner with the
objective of reaching a mutually satisfactory and definitive Long Term
License.
IN WITNESS WHEREOF, the Parties have agreed to and executed this
LOI/Limited License/Option Agreement as of the date first above written.
MMI PILGRIM'S PRIDE
METAMORPHIX, INC. PILGRIM'S PRIDE CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxx Xxx Xxxxx
------------------------ ------------------------
Name : Xxxxx Xxx Xxxxx
Name : Xxxxx X. Xxxxxxxxxxx Title : President-CEO-COO
Chairman, President, & CEO Date of Execution : 11/10/00
23
EXHIBIT A
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (this "Agreement"),
together with the Letter of Intent, Limited License and Option Agreement
("LOI/Limited License/Option Agreement), which have been executed on November
10, 2000 and incorporated herein by this reference, is made and entered into
this 10th day of November, 2000, by and between MetaMorphix, Inc., a Delaware
corporation ("MMI") and Pilgrim's Pride Corporation, a Delaware corporation
("Pilgrim's Pride").
WHEREAS, MMI and Pilgrim's Pride have entered into a Letter of Intent,
Limited License Agreement and Option Agreement (LOI/Limited License/Option
Agreement"), dated November 10, 2000, between the parties and, accordingly,
desire to exchange certain highly confidential information with each other.
WHEREAS, each party (the "Disclosing Party") may furnish to the other
party (the "Reviewing Party"), from time to time, confidential information
concerning certain inventions, know how, patent strategies and patent
applications, research and development strategies, business plans,
relationships, trade secrets, test data and other highly confidential
information and documentation that is confidential, non-public, and/or
proprietary in nature (the "Confidential Information").
WHEREAS, each party seeks to protect fully the Confidential Information
provided by it.
NOW THEREFORE, the parties mutually agree as follows:
SECTION 1. MAINTENANCE OF CONFIDENTIALITY. The Confidential Information
will be kept absolutely confidential and shall not, under any circumstances be
disclosed by the Reviewing Party holding such Confidential Information in any
manner whatsoever, in whole or in part. Within the Reviewing Party's
organization, the disclosed confidential Information may be known only by its
directors, officers, other employees with a "need to know" such information,
consultants who have signed Confidentiality agreements with the Reviewing Party,
and the Reviewing Party's attorneys. All such persons shall be provided with a
copy of this Agreement.
SECTION 2. PURPOSE OF DISCLOSURE. The sole purpose of disclosure of the
Confidential Information is to assist the Reviewing Party in its performance of
its obligations under the LOI/Limited License/Option Agreement or other future
business arrangement, including all anticipated Long Term License Agreements
between MMI and Pilgrim's Pride. The Reviewing Party is not to use the
Confidential Information for any other purpose (e.g., to compete with the
Disclosing Party). Nothing in this Agreement gives either Reviewing Party any
rights in any Confidential Information of the Disclosing Party. If either party
requests the return of such Confidential Information for any reason, the
Reviewing Party must immediately return the Confidential Information (and any
and all copies thereof) to the Disclosing Party.
SECTION 3. DISCLOSURE TO THIRD PARTIES. Without the express prior
written consent of the Disclosing Party, the Reviewing Party will not disclose
Confidential Information to third parties (except to consultants and attorneys
in accordance with Section 1 of this Agreement). In addition, neither party will
disclose to any person or entity the fact that the Confidential Information has
been made available, that discussions or negotiations are taking place or have
taken place between MMI and Pilgrim's Pride concerning a possible transaction
involving them or any of the terms, conditions, or other facts with respect to
any such possible transaction, including the status thereof.
SECTION 4. LIMITATIONS ON CONFIDENTIAL INFORMATION. The confidentiality
restrictions shall not apply to such portion of the Confidential Information
that: (a) are or become generally available to the public; (b) appears in issued
patents; or (c) is already known to the Reviewing Party at the time of
disclosure by the Disclosing Party or becomes known to the Reviewing Party by
disclosure by a third party (which is not bound by a confidentiality agreement
with the Disclosing Party). If any dispute between the parties arises, it shall
be Reviewing Party's burden to prove that any Information that it has disclosed
or used (other than as provided for in Section 2 of this Agreement) falls within
this exception.
SECTION 5. COMPELLED DISCLOSURE. If the Reviewing Party is requested or
becomes compelled pursuant to a civil lawsuit or any criminal investigation,
indictment, or proceeding (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand, or similar
process) to disclose any of the Confidential Information, the Reviewing Party
will provide the other party with prompt written notice prior to such request or
demand for disclosure so that the other party may seek a protective order or
other appropriate remedy. In the event that such protective order or other
remedy is not obtained, the Reviewing Party will furnish only that portion of
the Confidential Information that is legally required, and the Reviewing Party
will exercise its best efforts to obtain reliable assurance that confidential
treatment will be accorded the Confidential Information.
SECTION 6. INJUNCTIVE RELIEF. Each party acknowledges and agrees that a
breach or attempted breach of any material provision of this Agreement will
cause the other party substantial and irreparable harm. Each party consents and
agrees, therefore, in such event, in addition to any other remedies available to
the other party at law or equity, to a temporary restraining order, preliminary
injunction, and permanent injunction restraining and enjoining a breaching
Reviewing Party from disclosing, publishing, or using the Confidential
Information, or otherwise breaching or violating this Agreement. Each party
agrees that, in connection with any remedy sought pursuant to this Section 6, it
shall not be necessary to post a bond or provide other security.
SECTION 7. INDEMNIFICATION. The Reviewing Party agrees to indemnify the
other party and to hold it harmless against any loss, cost, liability, or
expense, including reasonable attorney's fees, incurred by the other party by
reason of the Reviewing Party's breach and non-fulfillment of any provision
contained in this Agreement.
2
SECTION 8. CONSTRUCTION OF AGREEMENT; CHOICE OF LAW, SEVERABILITY,
NUMBER AND TERMINATION. The validity, legality, and construction of this
Agreement or any of its provisions shall be determined under the laws of the
State of Delaware. If any provision contained in this Agreement cannot be
enforced to its fullest extent, then such provision shall be enforced to the
maximum extent permissible by law, and the parties consent and agree that such
provision may be judicially modified accordingly, in any proceeding brought to
enforce such provision. The invalidity, illegality, or unenforceability of any
provision of this Agreement shall not affect or limit the validity and
enforceability of any other provision hereof. Where the context requires, the
plural shall include the singular and vice versa. The provisions of this
Agreement shall apply to all Confidential Information exchanged under this
Agreement as long as it is in the possession of the other party, regardless of
whether the LOI/Limited License/Option Agreement or other agreements between the
parties lapse or terminate.
SECTION 9. NOTICES. All notices and communications hereunder shall be in
writing and shall be deemed given when sent postage prepaid by certified mail
(return receipt requested) by hand delivery (against a signed receipt), or by
nationally recognized overnight delivery service.
MetaMorphix, Inc.
MMI 0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
PILGRIM'S PRIDE Pilgrim's Pride Corporation
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxx
If a party furnishes the other with notice of a change of address, as provided
in this Section, then all notices and communications thereafter shall be
addressed as provided in such notice.
SECTION 10. ENTIRE AGREEMENT. This Agreement, the LOI/Limited
License/Option Agreement and the Material Transfer Agreement executed
concurrently herewith by the Parties contain the entire agreement between the
parties with respect to the matters contained herein and supersedes all existing
agreements and all other oral, written, or other communications between the
parties concerning the subject matter of this Agreement. This Agreement may be
modified or waived only by a separate writing signed by the parties expressly so
modifying or waiving this Agreement.
3
IN WITNESS WHEREOF, the parties have executed this Confidentiality and
NonDisclosure Agreement as of the day and year first above written.
WITNESS/ATTEST: METAMORPHIX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx (SEAL)
--------------------------------- -------------------------
Xxxxx X. Xxxxxxxxxxx, Ph.D., /President
Date:
--------------------------------- --------------------------------------
PILGRIM'S PRIDE CORPORATION
By: /s/ Xxxxx Xxx Xxxxx (SEAL)
Name: Xxxxx Xxx Xxxxx
--------------------------------- -------------------------------------
Title: PRESIDENT, CEO AND COO
---------------------------------
4
EXHIBIT B
METAMORPHIX, INC.
MATERIAL TRANSFER AGREEMENT
THIS MATERIAL TRANSFER AGREEMENT (this "Agreement"), together with the
Letter of Intent, Limited License and Option Agreement ("LOI/Limited
License/Option Agreement/"), which have been executed on November 10, 2000 and
incorporated herein by this reference, is made and entered into this 10th day of
November, 2000, by and between MetaMorphix, Inc., a Delaware corporation ("MMI")
and Pilgrim's Pride Corporation, a Delaware corporation ("Pilgrim's Pride").
1. BACKGROUND. Pilgrim's Pride desires to obtain samples of the
Myostatin(TM) Blocker Technology and defined in the LOI/Limited
License/Option Agreement (together with all derivatives and
improvements, the "Material") from MMI for use in performing separate
and independent commercial scale trials "Pilgrim's Trials" and in
evaluating the potential license under the terms and conditions of this
Agreement.
2. THE MATERIAL AND THE PILGRIM'S TRIALS. Pilgrim's Pride acknowledges that
MMI owns the Material. Pilgrim's Pride will use the Material solely in
its Pilgrim's Trials and for no other purpose. The Pilgrim's Trials will
be conducted solely by Pilgrim's Pride at its research facilities. None
of the Material will be transferred to, sold to, or used by third
parties. Pilgrim's Pride will not use the Material for testing in or
treatment of human subjects. Pilgrim's Pride acknowledges that the
Material is experimental and will comply with all laws and regulations
applicable to its handling and use. Any Material remaining upon
completion of the Pilgrim's Trials will be returned immediately to MMI,
at Pilgrim's Pride's cost.
3. IN VIVO STUDIES. If Pilgrim's Pride is using the Material for non-human
IN VIVO studies, it will (a) consider alternative IN VITRO approaches,
(b) comply with all applicable federal, state and local laws and
regulations and (c) provide MMI with copies of the applicable IN VIVO
protocols.
4. TECHNOLOGY DISCLOSURE AND ASSIGNMENT.
4.1. DISCLOSURE. During the term of the LOI/Limited License/Option Agreement
and until the execution of a Long Term License Agreement by Pilgrim's
Pride and MMI, as set forth in the LOI/Limited License/Option Agreement,
any inventions, improvements thereof or know-how arising from the
Pilgrim's Trials on the Myostatin(TM) Blocker Technology, as defined in
the LOI/Limited License/Option Agreement, or any patent application
thereon: (a) will be disclosed to MMI immediately; and (b) MMI will be
granted a royalty-free, exclusive, worldwide license to the patent
applications, patents or improvements thereof, patent rights and
know-how with additional rights to sublicense, them to third parties.
4.2. REPORTS. Pilgrim's Pride will advise and update MMI on the progress and
results of the Pilgrim's Trials and will provide a written report upon
the conclusion of the Pilgrim's Trials, upon any inventions being made,
and at other times as MMI may reasonably request.
5. CONFIDENTIALITY. Except as provided in Paragraph 6 of this Agreement,
Pilgrim's Pride will not publish or disclose any of MMI's confidential
or proprietary information to third parties. The terms and conditions of
the Confidentiality and Non-Disclosure Agreement executed by the parties
concurrently with this Agreement are incorporated herein by this
reference.
6. PUBLICATION. Pursuant to the provisions of Paragraph 9 of the
LOI/Limited License/Option Agreement, MMI, in its sole discretion, shall
control and approve all publications regarding the Myostatin(TM) Blocker
Technology.
7. NO WARRANTY. THE MATERIAL IS PROVIDED TO RECIPIENT AS-IS AND WITHOUT
WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
TITLE OR FITNESS FOR A PARTICULAR PURPOSE.
8. INDEMNIFICATION. To the extent permitted under the law governing this
Agreement, each party will indemnify and hold each harmless from any
claims or liability resulting from Pilgrim's Pride's use of the
Material, except insofar as such claims or liability result from the
claims or liability results from the party causing the negligence or
wrongdoing.
9. TERMINATION. This Agreement will terminate simultaneously with the
termination of the LOI/Limited License/Option Agreement pursuant to the
provisions of Paragraph 6 of said LOI/Limited License/Option Agreement.
10. MISCELLANEOUS. This Agreement (a) may not be assigned or transferred by
any party without the prior written consent of the other party, except
that MMI may assign this Agreement to an affiliated company or in
connection with the merger, consolidation or sale of all or
substantially all of its assets and (b) shall be governed by and
construed in accordance with the substantive law of the State of
Delaware.
MMI PILGRIM'S PRIDE
METAMORPHIX, INC. PILGRIM'S PRIDE CORPORATION
Name: /s/ Xxxxx X. Xxxxxxxxxxx Name: /s/ Xxxxx Xxx Xxxxx
--------------------------- ---------------------------
Title: Chairman, President and CEO Title: President, CEO and COO
--------------------------- ---------------------------
duly authorized and attested duly authorized and attested
Date of Execution: 11/15/00 Date of Execution:
--------
MetaMorphix, Inc. Pilgrim's Pride Corporation
0000 Xxxxx Xxxxxxx Xxxx 000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000 X.X.X. Xxxxxxxxx, Xxxxx 00000 X.X.X.
Telephone (000) 000-0000 Telephone (000) 000-0000
-------------- --------------
Telecopier (000) 000-0000 Telecopier (000) 000-0000
-------------- --------------
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