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EXHIBIT 10.25
THE PORTIONS OF THIS DOCUMENT OMITTED AND MARKED WITH ASTERISKS AND
BRACKETS IS SUBJECT TO A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY
WITH THE SEC.
SUB-AGREEMENT
TO
LICENSE AGREEMENT
(FRUITS, VEGETABLES, ETC.)
This Sub-Agreement is made effective as of the 1st day of March 2000
(the "Effective Date") by and between Agway, Inc., successor by merger to Agway
Consumer Products, Inc. ("Agway") and Planet Polymer Technologies, Inc.
("Planet").
RECITALS:
A. Agway and Planet entered into a License Agreement ("License
Agreement") effective November 12, 1998, pursuant to which Planet granted to
Agway an exclusive worldwide license in connection with time-release coatings
for a variety of Agricultural Products and Food Products as defined in the
License Agreement.
B. Pursuant to paragraph 4 of the License Agreement, Agway and Planet
are entering into this Sub-Agreement for fruits, vegetables, floral and nursery
items (hereinafter collectively, the "Product") marketed by Agway's CPG
Technologies International Division ("CPGTI") utilizing the technology granted
to Agway under the License Agreement.
C. Terms that are not otherwise defined in this Sub-Agreement shall have
the meanings set forth in the License Agreement.
WITNESSETH:
For good and valuable consideration, the parties, intending to be
legally bound, agree as follows:
1. This Sub-Agreement covers the following Product and Market Area:
Product: Planet patented/patent pending coatings and Planet
patented/patent pending polymer systems sold for use on fruits,
vegetables, floral and nursery items.
Market Area: The world.
1.1 Definitions. As used in this Sub-Agreement, the following terms shall be
defined as follows:
Fruits, Vegetables, Floral and Nursery (FVFN) Projects
CPGTI's, or any of its successors', work in connection with or related
to the Product.
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Net Sales and Revenues
CPGTI or any of its successors' gross Product sales and revenues, less
adjustments for returns, allowances and discounts, as recognized under generally
accepted accounting principles and under methods historically used and
consistently applied by CPGTI.
Pre-Tax Earnings/(Loss) Before Sales Royalty
Net income or loss before Sales Royalty and a provision for federal
income tax liability for FVFN Projects in accordance with generally accepted
accounting principles and with methods historically used and consistently
applied by CPGTI or any of its successors.
Full Fiscal Year
For purposes of this Sub-Agreement, the Full Fiscal Year shall be the
accounting and reporting cycle of Agway, which is a 52 or 53 week year ending
the last Saturday of June.
2. Sales Royalty
2.a) Agway shall pay Sales Royalty amounts to Planet on Net Sales and
Revenues during the term of this Sub-Agreement, such Sales Royalty
amounts being payable for the term of [*] years immediately following
the Effective Date of this Sub-Agreement, provided however, that Sales
Royalty amounts will be payable only for as long as the manufacture, use
or sale of such Product is covered by a claim of an unexpired licensed
U. S. patent or U. S. patent pending of Planet which has not been held
to be either invalid or unenforceable by a final decision from which no
appeal is or can be taken.
2.b) The Sales Royalty amounts due Planet under sub-paragraph 2.a) above
shall be calculated as follows; apply the following percentages based on
Net Sales and Revenues for each of Agway's Full Fiscal Years during the
term of this Sub-Agreement except that the calculation of Net Sales and
Revenues shall commence with the start of the first quarter in which
FVFN Projects have a profitable quarter:
[*];
[**],
[***].
2.c) Notwithstanding the calculation of a Sales Royalty under subparagraph
2.b) above, whether any payment is due Planet under subparagraph 2.b)
above and the amount of any such payment shall be subject to the
following two rules.
Rule No. 1. Determine whether the FVFN Projects were profitable for the
fiscal quarter being measured; if the FVFN Projects were profitable for
said quarter, the Sales Royalty payment due Planet shall be calculated
as set forth under subparagraph 2.b) above; however, if the FVFN
Projects were not profitable for said quarter, no Sales Royalty shall be
due Planet for said quarter; and,
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Rule No. 2. The quarterly Sales Royalty payment to Planet shall not
exceed [*] of the quarterly Pre-Tax Earnings/(Loss) Before Sales
Royalty; if the quarterly Sales Royalty payment otherwise due Planet
exceeds [**] of the quarterly Pre-Tax Earnings/(Loss) Before Sales
Royalty, then, the quarterly Sales Royalty payment due Planet shall be
reduced to an amount equal to [***] of the quarterly Pre-Tax
Earnings/(Loss) before Sales Royalty.
2.d) It is the intent of the parties that the following principles apply:
(i) No quarterly Sales Royalty under subparagraph 2.b) above will
become due or payable unless and until the FVFN Projects have
[*]; and,
(ii) The quarterly Sales Royalty due and payable to Planet under
subparagraph 2.b) above shall not exceed the FVFN Projects'
quarterly Pre-Tax Earnings Before Sales Royalty on the Product;
if CPTGI or any of its successors quarterly Pre-Tax Earnings
Before Sales Royalty on the Product is less than [*] the
quarterly Sales Royalty due Planet, the quarterly Sales Royalty
payable to Planet will be reduced to be equal to [*] of the FVFN
Projects' quarterly Pre-Tax Earnings Before Sales Royalty.
2.e) The Sales Royalty payment as calculated above becomes due at the end of
each fiscal quarter and payable within 45 days thereafter. With each
such payment, CPGTI or any of its successors shall furnish Planet a
report in sufficient detail to permit confirmation of the accuracy of
the Sales Royalty payment made, including without limitation, the sales
of the Product during the fiscal quarter being reported, the Sales
Royalty payment in United States dollars, the method used to calculate
the Sales Royalty payment and the exchange rate used.
2.f) At the end of each Full Fiscal Year, an annual Sales Royalty true-up
will be calculated. The Sales Royalty annual true-up will apply the
calculation provisions of paragraphs 2.b) and 2.c) to the Net Sales and
Revenues for the Full Fiscal Year to determine the actual amount due
Planet for the Full Fiscal Year. This amount will be compared to the
amounts calculated as due Planet under the four quarterly calculations
for that corresponding Full Fiscal Year. If the annual calculation
indicates a higher amount due Planet, that payment is due 90 days after
the end of the Full Fiscal Year. If the annual calculation indicates a
lower amount is due Planet, the difference will be deducted from the
next succeeding payment(s) due Planet. CPGTI or any of its successors
shall furnish Planet a report in sufficient detail to permit
confirmation of the accuracy of the Sales Royalty true-up, including
without limitation, the sales of the Product during the fiscal year
being reported, the Sales Royalty payment in United States dollars, the
method used to calculate the Sales Royalty payment and the exchange rate
used.
3. Minimum Annual Royalty. The sole purpose of the Minimum Annual Royalty
is to compensate Planet for granting exclusive license rights to Agway
for the Product under this Sub-Agreement.
3.a) If the annual Sales Royalty amount, solely as calculated in subparagraph
2.b) above, is less than the Minimum Annual Royalty, as identified in
subparagraph 3.b) below, for the
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corresponding Full Fiscal Year, then, payment of this incremental
difference is due to Planet resulting in full satisfaction of the
Minimum Annual Royalty.
If the annual Sales Royalty amount, solely as calculated in subparagraph
2.b) above, is greater than the Minimum Annual Royalty, as identified in
subparagraph 3.b) below, for the corresponding Full Fiscal Year, then,
the intent of the Minimum Annual Royalty has been fully satisfied.
Therefore, the Minimum Annual Royalty provision is not applicable for
the corresponding Full Fiscal Year.
3.b) Minimum Annual Royalty Schedule:
Full Fiscal Year Minimum Annual Royalty
---------------- ----------------------
Fiscal Year One [*]
Fiscal Year Two [**]
Fiscal Year Three [***]
Fiscal Year Four [****]
Fiscal Year Five [*****]
Fiscal Year Six [******]
Fiscal Year Seven [*******]
Fiscal Year Eight [********]
Fiscal Year Nine [*********]
Fiscal Year Ten [**********]
Fiscal Year Eleven [***********]
Fiscal Year Twelve [************]
Fiscal Year Thirteen [*************]
Fiscal Year Fourteen [**************]
Fiscal Year Fifteen [***************]
Fiscal Year One shall commence with Agway's 2000-2001 fiscal year.
3.c) In order to maintain exclusive license rights to Product, the Minimum
Annual Royalty amount due as determined in subparagraph 3.a) will be
made by October 31 immediately following the Full Fiscal Year of
measurement. Agway may choose to not pay the Minimum Annual Royalty for
any and all Full Fiscal Years, and Planet shall have no rights or
recourse against Agway for such payment for that year or for any future
Full Fiscal Years. However, if Agway fails to make a timely Minimum
Annual Royalty payment, Planet reserves the right to provide Agway with
a written notice of such failure to pay, and Agway will have 60 days
from receipt of such notice to remedy such shortfall in payment. If
Agway does not cure its failure to make the Minimum Annual Royalty
payment within the 60-day cure period, then, Planet's only recourse and
remedy will be to grant non-exclusive license rights to Product to other
parties. Despite Agway's failure to make Minimum Annual Royalty
payments, this Sub-Agreement shall continue in full force and effect but
on a non-exclusive basis, and no Minimum Annual Royalty shall be due
from Agway.
4. In the event that any Sales Royalty payments due hereunder are not made
when due, the
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payments shall accrue interest from the due date at the prime lending
rate as of said date as published in The Wall Street Journal; provided,
however, that in no event shall such rate exceed the maximum legal
annual interest rate. The payment of such interest shall not limit
Planet from exercising any other rights it may have as a consequence of
the lateness of any payment.
5. All payments owed under this Sub-Agreement shall be made by wire
transfer to a bank account designated by Planet, unless otherwise
specified in writing by Planet. All payments due Planet under this
Sub-Agreement shall be paid in United States dollars, free of taxes
payable in any foreign country, except for such taxes as result in, and
to the extent that the same do result in a foreign tax credit applicable
to the United States taxes payable by Planet. With respect to each
quarter, for countries other than the United States, whenever conversion
of payments from any foreign currency shall be required, such conversion
shall be made at the rate of exchange required of CPGTI or any of its
successors under generally accepted accounting principles for the
applicable accounting period.
6. Agway and its affiliates shall keep accurate books and records as
reasonably needed for determination of Sales Royalty payments due under
paragraph 2 above. Such books and records shall be maintained for a
period of at least three years from the expiration of the relevant Sales
Royalty payment period.
7. Not more than once in each fiscal year, Planet may have the books and
records of CPGTI, or any of its successors, audited by an independent
certified public accounting firm (CPA Firm) reasonably acceptable to
Agway to the extent necessary to verify the correctness of any Sales
Royalty payment report furnished under this Sub-Agreement. If such
independent CPA Firm should determine that an underpayment of Sales
Royalty may have occurred, Agway may have Agway's independent
accountants review the CPGTI records and the report and calculations of
the CPA Firm to determine Agway's independent accountants' assessment of
the amount due under this Sub-Agreement. If the CPA Firm and Agway's
independent accountants do not agree, and the parties cannot agree to a
mutually satisfactory resolution, then, a third mutually agreeable
nationally recognized independent certified public accounting firm shall
be hired by the parties to finally resolve the correct amount due. The
determination by the third independent certified public accounting firm
shall be final. The CPA Firm and any third firm shall keep all
information received in connection with any audit confidential, and they
shall report to Planet and Agway only the accuracy of and/or any
deficiencies in any such Sales Royalty payment report. The fee for such
CPA Firm and any third firm shall be paid by Planet, unless the audit
finally results in an upward adjustment of Sales Royalty payments due
Planet by more than 5% of the amount due under this Sub- Agreement; in
such case, Agway shall pay the full cost of such audits. In any event,
Agway shall pay any finally determined underpayment with interest in
accordance with paragraph 4 above.
8. This Sub-Agreement shall be a part of the License Agreement entered into
between Agway and Planet effective the 12th day of November, 1998 and
incorporates all the terms thereof to the extent they are not
inconsistent herewith. In the event of any inconsistency between
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THE PORTIONS OF THIS DOCUMENT OMITTED AND MARKED WITH
ASTERISKS AND BRACKETS IS SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST FILED SEPARATELY WITH THE SEC
the terms of the License Agreement and this Sub-Agreement, this
Sub-Agreement shall govern the rights, duties, privileges and
obligations of the parties.
IN WITNESS WHEREOF, the parties have executed this Sub-Agreement as of
the date first above mentioned.
AGWAY, INC.
By:
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As:
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PLANET POLYMER TECHNOLOGIES, INC.
By:
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As:
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