EX-10.21
[***Confidential Treatment Requested. Confidential portions of this agreement
have been redacted and have been separately filed with the Commission]
CONFIDENTIAL
JOINT DEVELOPMENT AND JOINT MARKETING AGREEMENT
BETWEEN
METAMORPHIX, INC. AND EXCEL CORPORATION AND XXXXXXX, INC.
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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
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 CARGILL 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 CARGILL 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 CARGILL ENTITIES TO MAKE TIMELY PAYMENT.
3.6.1 NOTICE AND RIGHT 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 CARGILL 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 ***. 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 *** 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 *** 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 ***.
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 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).
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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 365(n) of the United States
Bankruptcy Code, rights to intellectual property as defined by 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 NEGOTIATION OF AGREEMENT. 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, ***. 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 *** 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
*** 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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CONFIDENTIAL
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
"Cargill," "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
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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CONFIDENTIAL
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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CONFIDENTIAL
(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:
By: /s/ Xxxxx X. Xxxxxxxxxxx /s/ Xxxxxxx Xxxxxxx
-------------------------- ---------------------------------
Xxxxxxxxxxx, Ph.D
President and CEO Name:
Title
Date: May ___,2002
Date: May 6, 2002
_________ EXCEL CORPORATION
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name:
Title:
Date: May 6, 2002
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CONFIDENTIAL
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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CONFIDENTIAL
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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CONFIDENTIAL
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 3,000 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 ***
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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CONFIDENTIAL
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: ***
WORK PLAN
o ***
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: ***
Anticipated Completion Date: ***
Cost: ***
WORK PLAN
o ***
DELIVERABLE
o The Validated SNP Set.
o A report detailing the Validated SNP Set including SNP identification,
*** 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
35
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) ***
(ii) ***
(iii) ***
(iv) ***
(v) ***
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.
PART 2 -- ASSOCIATION STUDY -- PHASE ONE
Anticipated Start Date: ***
Anticipated Completion Date: ***
Cost: ***
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 ***.
o *** from each of the *** animals as follows, to be delivered to MMI no
later than *** in accordance with protocols (e.g., refrigeration)
reasonably established by MMI.
***
WORK PLAN
o ***
36
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: ***
Anticipated Completion Date: ***
Cost: ***
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 ***
DELIVERABLES
o The Associated SNP Sets.
o A report listing all tested SNPs, SNP genotypes of all genotyped
animals, association test statistics and an ***. 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 ***
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 *** in each of the Targeted Traits. The
Parties will use the ***. The Parties will analyze genetic relationships among
all SNP markers to determine if SNP markers for alleles that *** the phenotype
for the other Targeted Traits.
The Parties understand and acknowledge that to create significant value, the
alleles detected by diagnostic SNP markers ***; 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 ***.
37
DIAGNOSTIC PRODUCTS
PART 4 -- DEVELOPMENT AND VALIDATION OF DIAGNOSTIC PRODUCTS
Anticipated Start Date: ***
Anticipated Completion Date: ***
Cost: ***
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 *** have been (or will be)
collected to be delivered to MMI not later than ***. The phenotypes
will not be delivered to MMI.
WORK PLAN
o ***
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
EXHIBIT C
MILESTONES AND PAYMENTS
PART I -- SNP MAP VALIDATION
Anticipated Start Date: ***
Anticipated Completion Date: ***
Cost: ***
By *** 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: ***
Anticipated Completion Date: ***
Cost: ***
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: ***
38
Anticipated Completion Date: ***
Cost: ***
By ***, 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: ***
Anticipated Completion Date: ***
Cost: ***
By ***, 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 *** (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:
--------------------
Part I SNP Map Validation phase *** ***
Part 2 Association Study -- Phase One ***
Part 3 Association Study -- Phase Two ***
Part 4 Development and Validation of ***
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:
***
39
Invoices should be sent to:
Excel Corporation
000 X. Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attn: ***
40
