ENOGEN GROWER TECHNOLOGY LICENSE AGREEMENT THIS ENOGEN GROWER TECHNOLOGY LICENSE AGREEMENT (the “Agreement”) is made and entered into as of , 20 (“Effective Date”), by and between Syngenta Seeds, Inc., a Delaware corporation, having an address at 11055 Wayzata Boulevard, Minnetonka, MN 55305 (“Syngenta”), and the individual or entity identified as “Licensee” in the electronic signature block of this Agreement (“Licensee”). RECITALS WHEREAS, Syngenta has developed and produced proprietary varieties of corn seed products, has certain rights relating to technical information and know-how relating to plant transformation useful for improving renewable fuel production quality, and has rights in and to patents, and/or patent applications covering seed corn hybrids containing its Enogen® brand corn amylase product; WHEREAS, Licensee possesses knowledge and expertise regarding the production of corn hybrids and desires to grow the Enogen brand corn amylase products and produce grain to sell to Syngenta or an ethanol plant for use in the ethanol production process. NOW, THEREFORE, in consideration of the recitals and the mutual covenants set forth herein, the Parties agree as follows: 1.
For purposes of this Agreement, the following words and phrases have the following meanings: 1.1.
“Affiliate(s)” means any business entity which controls, is controlled by or is under common control with either Party to this Agreement; for the purposes of this definition, a business entity will be deemed to “control” another business entity if it owns, directly or indirectly, in excess of 50 percent of the outstanding voting securities or capital stock of such business entity or any other comparable equity or ownership interest with respect to a business entity other than a corporation.
“Buy-Out Price” means with respect to Enogen Seed, the price actually paid by Licensee to the Dealer for such Enogen Seed; and, with respect to Enogen Grain, any of the following at Syngenta’s election: (a) the price pursuant to the Enogen Corn Production Agreement under which such Enogen Grain is produced, (b) current market price for local posted bids for new crop corn delivered, or (c) current market prices. If the quantity of Enogen Grain is not knowable at the time of purchase, it will be determined based on the estimated production of Enogen Grain for such planted acres as set forth in the Enogen Corn Production Agreement.
“Dealer” means a Third Party authorized in writing by Syngenta to sell Enogen Seed.
“Enogen Grain” means grain that is produced by Licensee from Enogen Seed.
“Enogen Corn Production Agreement” means the current Enogen Corn production agreement between Licensee and Ethanol Plant or Syngenta for the production of Enogen Grain.
“Enogen Seed” means hybrid corn seed varieties containing Event 3272 provided by Syngenta or a Dealer to Licensee.
“Ethanol Plant” means the ethanol plants identified to Licensee in writing by Syngenta, as amended from time to time by Syngenta in its sole discretion.
“Event 3272” means the corn transformation event set forth in Syngenta’s APHIS Petition No. 05-280-01p for Determination of Nonregulated Status for Maize Event 3272 genetically engineered to produce the AMY79E alpha-amylase protein.
“Licensed Patent Rights” means those patents set forth on Schedule 1, patents maturing from those applications set forth on Schedule 1 or maturing from applications that are divisionals, continuations or continuations-in-part of those applications, and any extensions, continuations, continuations in part, any reissues in whole or in part, or any re-examination in whole or in part, or divisions thereof, and any foreign equivalents of any of the foregoing. For the avoidance of doubt, no rights are granted (by implication or otherwise) under any patents or any foreign equivalents falling outside the scope of this definition.
“Party” means Syngenta or Licensee; “Parties” mean Syngenta and Licensee.
“Stewardship Requirements” means the stewardship requirements as set forth on Schedule A hereto, which is incorporated herein, as amended from time to time by Syngenta in its sole discretion.
“Syngenta Know-How” means all technical facts, methods, assays, materials, data, information, writings, and copyrightable works, which is reasonably needed for purposes of this Agreement, and which is proprietary to Syngenta as of the Effective Date and/or at any time during the term of this Agreement, relating to Enogen Seed and/or Enogen Grain.
“Territory” means Licensee’s fields and storage facilities approved by Syngenta in the Enogen Grain Contracting System or otherwise in writing, as amended from time to time by Syngenta in its sole discretion.
“Third Party” means any person, organization, firm, corporation, partnership or entity other than Licensee or Syngenta.
Unless a clear contrary intention appears, as used herein, (a) the singular includes the plural and vice versa, (b) reference to any document or law means such document or law as amended from time to time, (c) “include” or “including” means including without limiting the generality of any description preceding such terms, (d) the word “or” is not exclusive, unless otherwise expressly stated, (e) the term “hereof”, “herein”, “hereby”, and derivative or similar words refer to this entire Agreement including the Schedules attached hereto and incorporated herein by this reference, as the same may be amended from time to time, and (f) headings are for convenience only and do not constitute a part of this Agreement. 2.
CONVEYANCE OF RIGHTS: 2.1.
License Grant: Syngenta hereby grants to Licensee, and Licensee hereby accepts, on
and subject to the terms and conditions of this Agreement, a royalty-free, non-exclusive license, without the right to sublicense except as expressly set forth herein, under Syngenta Know-How and Licensed Patent Rights: (a) to plant Enogen Seed purchased by Licensee from Syngenta or a Dealer; (b) to produce in the Territory a single crop of Enogen Grain from such Enogen Seed; (c) to deliver or have delivered any unused Enogen Seed to Syngenta or a Dealer; (d) to store or have stored Enogen Grain in the Territory; (e) to sell or transfer such Enogen Grain to Syngenta or to Ethanol Plant; and (f) to deliver or have delivered Enogen Grain to Syngenta or Ethanol Plant. 2.2.
Sublicensing: The licenses granted under Section 2.1 do not include the right to sublicense to a Third Party except as expressly set forth in this Section 2.2. Licensee will not have Enogen Grain stored or delivered by any Third Party unless such Third Party has a written contract with Licensee that includes the following terms and makes Syngenta a third party beneficiary as to those terms: 2.2.1.
Licensee will require the Third Party to comply with the Stewardship Requirements set forth on Schedule A.
Licensee will prohibit the Third Party from transferring, or having transferred, any Enogen Seed or Enogen Grain to any Third Party, except Ethanol Plant or Syngenta.
Licensee will require the Third Party to agree to the same terms applicable to Licensee in the audit provisions, as set forth in Sections 3.2 and 3.3.
In addition, any storage locations must be approved by Syngenta in the Enogen Grain Contracting System or otherwise in writing. Upon written request by Syngenta, Licensee will promptly provide Syngenta with a copy of such storage and/or delivery contracts with any Third Party.
No Other Licenses: Licensee is not licensed to, and will not, use Enogen Seed or Enogen Grain except as expressly set forth in Section 2.1. Licensee is not licensed to, and will not, transfer Enogen Seed or Enogen Grain to any Third Party, except as expressly set forth in Sections 2.1 or 2.2. Licensee acknowledges and agrees it would be a violation of this Agreement to allow subsequent production of the Enogen Seed or to create a seed variety, blend or seed product from said production, which may be used for seed purposes.
Limitation on Licenses: In the event Licensee does not plant all of the Enogen Seed to produce the Enogen Grain for Syngenta or Ethanol Plant, Licensee will promptly inform Dealer of the amount of such remaining Enogen Seed and Licensee will promptly return to the Dealer from which such Enogen Seed was purchased or to Syngenta, as determined by Syngenta in its sole discretion, any whole or partial bags of Enogen Seed.
STEWARDSHIP, RECORD KEEPING AND AUDIT RIGHTS: 3.1.
Stewardship: Licensee will strictly comply with the Stewardship Requirements when performing any activities under or related to this Agreement. Licensee will ensure that all sublicensees strictly comply with the Stewardship Requirements.
Record Keeping and Audit: Licensee will keep accurate and complete records of all activities under this Agreement and the Enogen Corn Production Agreement for a period of three years after expiration or termination of this Agreement. Syngenta reserves the right, at any time upon reasonable prior notice, to audit, or appoint a designee to audit, Licensee’s, and its sublicensees’, facilities and activities to verify Licensee’s compliance with all terms and conditions of this Agreement and/or the Enogen Corn Production Agreement. Licensee will fully cooperate with all such audits by providing prompt access to all relevant documents, facilities, processes, production systems, and information requested by Syngenta or its designated representatives or agents.
Right to Enter: Licensee understands and agrees that Syngenta will have the right at all reasonable times to enter upon Licensee’s, or its sublicensees’, property, whether owned or leased, to observe the production and handling of the Enogen Seed and/or Enogen Grain and to ensure compliance with the terms and conditions of this Agreement. Syngenta will not be liable for damage, if any, to the Enogen Seed and/or Enogen Grain resulting from such entry. If, at any time, Licensee, or its sublicensees, will neglect, refuse, or for any reason fail to carry out its obligations under this Agreement or under their contracts with Licensee, Syngenta will have the right, but not the obligation, to take such measures as are necessary to properly care for planting, growing, harvesting, production, storage, transportation, delivery and overall handling of the Enogen Seed and/or Enogen Grain.
Insurance: Licensee will maintain adequate crop insurance, and other industry standard categories of insurance, at industry standard levels on all Enogen Seed and Enogen Grain in Licensee’s possession or control.
Reports: Licensee will enter the required information on each of the Enogen reports provided to Licensee by Syngenta or its designee by entering such information via the internet at a web address designated by Syngenta (the “Enogen Grain Contracting System”) or delivering a physical copy of each such completed report to Syngenta at the address first set forth above at the times designated by Syngenta or its designee to Licensee. The Enogen reports as of the Effective Date are set forth on Schedule B.
Use of Information: Licensee understands and agrees that Syngenta, its designees, and Ethanol Plant may share with one another any information relating to Licensee obtained through the reporting or auditing process set forth above, or obtained in any other manner. Licensee understands and agrees that Syngenta may share such information with Third Parties as part of its stewardship activities relating to Enogen Seed and/or Enogen Grain.
INTELLECTUAL PROPERTY: 4.1.
Ownership: Licensee acknowledges and agrees that the Syngenta Know-How and Licensed Patent Rights are owned by Syngenta and/or its Affiliates, and that Syngenta and its Affiliates would not enter into this Agreement without firm and enforceable assurances from Licensee that it will cooperate in protecting the Syngenta Know-How and Licensed Patent Rights.
Patent Procurement: Syngenta will have the exclusive right to apply for, seek issuance of, and maintain or abandon any or all of the Licensed Patent Rights.
Patent Enforcement: 4.3.1.
Licensee will give prompt notice to Syngenta of any infringement or claim of infringement of the Licensed Patent Rights that may come to its attention.
Syngenta has the exclusive right (but not the obligation) to institute and conduct legal action against third-party infringers of the Licensed Patent Rights, and to enter into such settlement agreements as may be deemed appropriate by Syngenta. Syngenta will receive the full benefits of any action it takes pursuant to this Section 4.3.
Licensee will cooperate fully in efforts to protect intellectual property rights for all products from Syngenta for which Licensee has obtained, or obtains a license.
Licensee will not at any time do or cause to be done any act contesting or in any way impairing any part of Syngenta’s right, title and interest in the Syngenta Know-How or Licensed Patent Rights.
WARRANTIES AND LIABILITIES 5.1.
Representations and Warranties: Syngenta represents and warrants that: 5.1.1.
It is the owner or licensee of the Licensed Patent Rights to the extent required for the grant of rights contained herein.
It has not previously granted, and will not grant to any Third Party during the Term, any rights and licenses under the Licensed Patent Rights that are in conflict with the rights granted to Licensee herein.
No Other Warranties: EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5.1, SYNGENTA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW REGARDING: 5.2.1.
LICENSED PATENT RIGHTS AND/OR SYNGENTA KNOW-HOW (INCLUDING, WITHOUT LIMITATION, THE VALIDITY OR SCOPE OF THE LICENSED PATENT RIGHTS); OR
THE ENOGEN SEED AND/OR ENOGEN GRAIN (INCLUDING, WITHOUT LIMITATION, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE NON-INFRINGEMENT OF ENOGEN SEED AND/OR ENOGEN GRAIN ON THIRD PARTY RIGHTS).
Except to the extent caused by a breach by Syngenta of its warranties under Section 5.1, Licensee will defend and indemnify against, and hold Syngenta and its Affiliates and their employees, directors, officers, agents, successors, and assigns harmless from and against, any loss, costs, liability, or expenses (including court costs and reasonable fees of attorneys and professionals) incurred from any claim arising or alleged to arise out of the use of Enogen Seed
and/or Enogen Grain by Licensee or its sublicensees; Licensee’s breach of its obligations under this Agreement or the Enogen Corn Production Agreement; and/or Licensee’s negligence, willful misconduct, improper, or illegal act or omission related to this Agreement or the Enogen Corn Production Agreement. 5.3.2.
The indemnification under Section 5.3.1 will not apply to any claim against Syngenta for infringement of a patent owned by a Third Party patentee, insofar as such claim arises out of Licensee’s use of Enogen Seed and to the extent such claim specifically alleges patent infringement based on a claim that Licensee’s use of Enogen Seed is infringing upon the patent rights of such Third Party.
Limited Liability: Neither Party will be liable to the other for any loss of profits, loss of business, interruption of business, indirect, special or consequential damages of any kind suffered or incurred by either Party in connection, directly or indirectly, with this Agreement or any breach hereof, whether based on contract or tort claims or otherwise, even if such Party has been advised of the possibility of such loss.
TERM AND TERMINATION 6.1.
Term: This Agreement will commence on the Effective Date and will continue in effect for one growing season until delivery to Syngenta or Ethanol Plant of all Enogen Grain produced by the Licensee in such growing season and full and complete compliance with all Stewardship Requirements and obligations (“Term”) unless earlier terminated in accordance with this Section 6. 6.1.1.
Either Party may terminate this Agreement if the other Party materially breaches the terms of this Agreement, and Syngenta may terminate this Agreement if Licensee breaches the terms of the Enogen Corn Production Agreement; and such breach is not cured within 30 days of notice from the non-breaching Party, or if such breach cannot be cured within 30 days, if it has not taken reasonable steps to cure such breach within such period or fails to diligently pursue such efforts to cure thereafter.
Syngenta may terminate this Agreement with immediate effect if the Enogen Corn Production Agreement is terminated for any reason.
Syngenta may terminate this Agreement upon 10 days prior written notice, in the event that: (i) Syngenta decides in its sole discretion to withdraw Enogen Seed or Enogen Grain from the market, for use in the production of ethanol or the United States; or (ii) any regulatory body, court of competent jurisdiction, or governmental agency requests, orders or demands the removal of Enogen Seed or Enogen Grain from the applicable market, or revokes or fails to provide any such approval.
In the event that the Licensee becomes insolvent, ceases to conduct business in the ordinary course, or files a petition in bankruptcy, or a petition is filed in bankruptcy, the Parties acknowledge and agree that the rights under this Agreement are personal to Licensee and Syngenta may immediately terminate this Agreement.
Effects of Termination: Upon expiration or termination of this Agreement, all licenses
granted hereunder will immediately terminate, and Licensee must destroy all Enogen Seed, Enogen Grain, and Confidential Information then in its possession, except as provided in Section 6.4. Until such time as all such materials are destroyed or transferred to Syngenta, Licensee must continue to comply with the Stewardship Requirements and all other requirements applicable to the use of such material under this Agreement. Notwithstanding any expiration or termination of this Agreement, the provisions of Sections 1, 3, 4, 5, 6, 7 and 8 will survive the expiration or termination of this Agreement and will remain in effect.
Specific Performance. Any breach of this Agreement may result in irreparable damage to a Party for which it will not have an adequate remedy at law. Accordingly, in addition to any other remedies and damages available, each Party acknowledges and agrees that the other Party may immediately seek enforcement of this Agreement by means of specific performance or injunction, without any requirement to post a bond or other security.
Right to Purchase: Upon termination or expiration of this Agreement or the Enogen Corn Production Agreement, Syngenta will have the right but not the obligation to purchase any or all Enogen Seed and/or Enogen Grain in Licensee’s possession at the Buy-Out Price, within 14 days of the expiration or notice of termination.
Confidential Information: It is anticipated that it will be necessary, in connection with their obligations under this Agreement, for Syngenta to disclose to Licensee Confidential Information. For purposes of this Agreement, “Confidential Information” means any and all proprietary information (including without limitation, information related to technical, business and intellectual property matters), know-how, data, intellectual property, trade secrets, and germplasm and biological and other physical materials owned or held by either Party to this Agreement, now and in the future which is disclosed by Syngenta to Licensee in connection with this Agreement. The Confidential Information includes proprietary information disclosed in writing, orally, or other tangible form, including samples of materials.
Confidentiality and Limited Use: 7.2.1.
With respect to all Confidential Information and biological material, both Licensee and Syngenta agree as follows: Confidential Information provided or disclosed to Licensee will remain the property of Syngenta and will be maintained in confidence by Licensee and will not be provided or disclosed to Third Parties by Licensee and, further, will not be used except for purposes contemplated in this Agreement. All confidentiality and limited use obligations with respect to the Confidential Information will terminate seven years after the termination date of this Agreement.
Notwithstanding any provision to the contrary, Licensee may disclose the Confidential Information of Syngenta: (i) in connection with an order of a court or other government body or as otherwise required by or in compliance with law or regulations; provided that Licensee provides Syngenta with notice and takes reasonable measures to obtain confidential treatment thereof; or (ii) in confidence to Licensee’s attorneys, accountants, banks and financial sources, so long as, in
each case, the entity to which disclosure is made is bound to confidentiality on terms consistent with those set forth herein.
Exceptions: The obligations of confidentiality and limited use will not apply to any of the Confidential Information which: (i) is publicly available by publication or other documented means or later becomes likewise publicly available through no act or fault of Licensee or its agents; (ii) is already known to Licensee before receipt from Syngenta, as demonstrated by Licensee’s written records; or (iii) is made known to Licensee by a Third Party who did not obtain it directly or indirectly from Syngenta and who does not obligate Licensee to hold it in confidence. Specific information should not be deemed to be within any of these exclusions merely because it is embraced by more general information falling within these exclusions.
Disclosures to Personnel: Licensee agrees to advise those of its officers, directors, employees, associates, agents, consultants, sublicensees and Affiliates who become aware of the Confidential Information, of these confidentiality and limited use obligations and agrees, prior to any disclosure of Confidential Information to such individuals or entities, to make them bound by obligations of confidentiality and limited use of the same stringency as those contained in this Agreement.
Return of Confidential Information: Upon termination or expiration of this Agreement, originals and copies of Confidential Information in written or other tangible form must be returned to Syngenta by Licensee or destroyed by Licensee.
Confidential Status of Agreement: The terms of this Agreement will be deemed to be Confidential Information and will be dealt with according to the confidentiality requirements of this Section 7. Licensee will not make public disclosures concerning other specific terms of this Agreement without obtaining the prior written consent of Syngenta.
MISCELLANEOUS PROVISIONS 8.1.
Compliance with Laws: Licensee will fully comply with all applicable federal, state and local laws, regulations, and governmental orders in connection with this Agreement; Licensee’s performance hereunder; and its contracting, purchase or use of Enogen Seed or Enogen Grain.
Encumbrances: Licensee will ensure that any and all Enogen Seed purchased and Enogen Grain produced by Licensee under the terms of this Agreement will be free of all claims, liens, and encumbrances.
Choice of Law: This Agreement will be governed by, construed, interpreted, and applied in accordance with the laws of the State of Minnesota, notwithstanding its conflict of laws provisions.
Venue: The Parties expressly acknowledge and agree that any and all disputes arising under, out of, or in relation to this Agreement, its formation, performance or termination (“Disputes”) that have not been resolved amicably by the Parties will be finally and conclusively determined by a bench trial in a court of competent jurisdiction with respect to any legal proceeding arising out of or related to these terms. Further, Syngenta and Licensee expressly and irrevocably consent and submit to the exclusive personal
jurisdiction of any federal or state court sitting in Hennepin County, Minnesota. Both Parties further consent, submit to, and agree that venue in any such suit, action, proceeding, or claim is proper in said court and further expressly waive any and all personal rights under applicable law or in equity to object to the jurisdiction and venue of said court. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT SUCH PARTY HAS TO A TRIAL BY JURY IN ANY LITIGATION BETWEEN THEM ARISING UNDER, OUT OF, OR IN RELATION TO THIS AGREEMENT, ITS FORMATION, PERFORMANCE OR TERMINATION. 8.5.
Entire Agreement: This Agreement, including its Schedules and appendices referenced herein, constitutes the entire agreement between the Parties regarding the subject matter hereof, and may not be altered except by a written agreement signed by the Parties or by a written offer by Syngenta electronically executed by Licensee.
Amendments: This Agreement may not be amended or modified except in writing by a document agreed to and fully executed by duly authorized representatives of each Party or a written document prepared by Syngenta and electronically executed by Licensee, provided, however, that any writing hereunder must state that it is an amendment to this Agreement.
Severability: The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect.
Assignability: Licensee will not assign or otherwise transfer this Agreement or any interest herein or any right hereunder, by operation of law, merger, change of control or otherwise. Syngenta may freely assign this Agreement. Any attempted assignment in breach of this provision is void and will constitute a material breach of this Agreement.
Binding Effect: This Agreement will be binding upon and inure to the benefit of the Parties, their respective successors, permitted assigns, and any other person or persons who may derive their interests from any of the Parties hereto and will inure to the benefit of the respective successors and permitted assigns of the Parties.
Course of Performance: No course of dealing, course of custom, course of trade or failure of either Party to strictly enforce any term, right or condition of this Agreement will be construed as a waiver or relinquishment of such term, right or condition or as an amendment to this Agreement, nor will any such waiver be implied from acceptance of any payment. Each Party acknowledges and agrees that any failure on the part of the other Party to enforce at any time, or for any period of time, any of the provisions of this Agreement will not be deemed or construed to be a waiver of such provision(s), of any other default, or of the right of such other Party to subsequently enforce and compel strict compliance with each and every other provision, default, right, or remedy of this Agreement. All waivers must be in writing.
[Signature Page Follows]
By use of electronic signature, Licensee has caused this Agreement to be executed as of the Effective Date. BY SIGNING AND RETURNING THIS AGREEMENT, YOU, THE UNDERSIGNED LICENSEE, HEREBY ACKNOWLEDGE AND AGREE THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT; (2) THIS IS A LEGALLY BINDING CONTRACT; (3) YOU ARE FULLY AUTHORIZED TO ENTER INTO THIS AGREEMENT; AND (4) YOU ARE VOLUNTARILY ENTERING INTO THIS AGREEMENT WITH THE INTENT TO BE BOUND BY ITS TERMS AND CONDITIONS.
Licensee Name: ____________________________ Agrisure License Number: ___________________ Enogen License Number: ____________________ Licensee Production Contract Number(s): _________________
SCHEDULE 1 Licensed Patent Rights
Patent number US 5,543,576 US 5,705,375 US 7,102,057 US 7,557,262 US 7,635,799 US 7,816,108 US 7,914,993 US 7,781,201 US 7,919,681 US 7,785,855 US 7,727,726 US 7,915,020 US Publication No. 2010/0,240,082 US Publication No. 2010/0,229,980
SCHEDULE A Stewardship Requirements Licensee will comply with best stewardship practices when growing the Enogen Grain, including but not limited to the following: Training: 1. Licensee will complete two stewardship training courses as required by Syngenta. The first course will focus on planting and growing and the second course will focus on harvest, storage and grain delivery. Syngenta will provide a certification to Licensee for completion of each course. If Licensee has not been certified for completion of the applicable course in the calendar year immediately preceding the Effective Date, Licensee will attend such stewardship training course in person. If Licensee has been certified for completion of the applicable course in the calendar year immediately preceding the Effective Date, Licensee may attend such stewardship training course in person or via the internet, but must attend in person if required by any Ethanol Plant. 2. Syngenta or a Dealer may withhold delivery of Enogen Seed to Licensee until such time as Licensee receives from Syngenta certification of completion of the first stewardship training course on planting and growing. This Agreement may be terminated immediately by Syngenta if the stewardship training on planting and growing is not completed by April 1 immediately following the Effective Date. Farm Field Criteria: 1. Licensee will ensure that fields Licensee plants with Enogen Seed will contain 12 border rows of nonEnogen corn around the perimeter of the field. Corn planted in border rows must be of the same maturity group as the Enogen Seed planted. 2. Licensee will plant Enogen Seed and grow Enogen Grain only in the approved fields identified as part of the Territory. Except corn planted in border rows, Licensee will not plant seed other than Enogen Seed in the approved fields identified as part of the Territory. 3. Licensee will ensure that all fields that Licensee plants with Enogen Seed are no less than one-half mile distant from any hybrid corn seed production fields. Control of Volunteer Enogen Corn: If Enogen Seed is not planted in a field listed as part of the Territory in the calendar year following termination or expiration of this Agreement, Licensee will employ practices that permit control of volunteer corn plants containing Syngenta’s Enogen technology in subsequent production of crops in such field(s). Licensee will not plant corn in such field in such calendar year, provided, however, that Licensee may plant corn in such field that is genetically modified to be tolerant to an herbicide to which the Enogen Seed planted under this Agreement was not tolerant. Seed Handling / Planting: 1. Licensee will at all times keep and maintain Enogen Seed separate from all other types, brands, and varieties of seed on Licensee’s farm or storage facilities. 2. Immediately after planting of Enogen Seed is completed, Licensee will clean all seed from the following components of any planter used: planter boxes, hopper, pneumatic system, seed plates,
seed tender, augers, and conveyors. The Licensee will visually confirm removal of seed from the foregoing. Farm Storage Criteria: 1. Licensee will store Enogen Grain only in storage facilities identified as part of the Territory. Licensee will ensure at all times that the storage grain bins identified in Schedule B have a capacity that is equal to or exceeds the estimated production of the farm fields identified as part of the Territory. 2. In the event Licensee produces Enogen Grain in excess of the capacity of the storage grain bins identified as part of the Territory (“Over-Production”), Licensee must contact Syngenta and manage and transfer such Over-Production as directed by Syngenta. 3. Licensee will not at any time whatsoever co-mingle Enogen Grain with other grain, except for grain from applicable border rows as set forth below. Licensee will not co-mingle Enogen Grain produced in one year with Enogen Grain produced in another year. 4. If Licensee uses dryers or conveyance systems with Enogen Grain, Licensee will completely clean all dryer and conveyance systems used promptly after such use. Licensee will flush out and inspect the continuous flow dryer cleanout prior to other grain being introduced. 5. Licensee will monitor and manage Enogen Grain in storage for quality, including but not limited to monitoring and managing for moisture, air circulation, and grain condition. Licensee will immediately report any changes to the stored Enogen Grain condition to Ethanol Plant and Syngenta. 6. After unloading all the Enogen Grain from the storage unit, Licensee will clean all remaining grain from such storage unit. Such cleaning will include removal of grain from the following: loading augers and conveyers, legs, distributors, bin floors, bin walls, fans, unloading augers and conveyers, bin stirators, grain spreading equipment, hatches, and doors. Licensee will visually confirm the foregoing and ensure that the storage unit is clean before storing additional grain in such storage unit. 7. Licensee will not sell any corn screenings from Enogen Grain except to a location approved in writing by Syngenta. Harvest Stewardship: 1. Licensee will harvest all grain from border rows together with the Enogen Grain from the field to which such border rows relate and store all such grain together in the approved storage site or deliver all such grain directly to Ethanol Plant or Syngenta, as applicable. 2. Licensee will label any and all storage units containing Enogen Grain with Enogen Grain signage provided by Syngenta and as directed by Syngenta. 3. Licensee will clean all grain from the following components of the combine: header, feeder house, rock trap, grain tank, outside platforms and shields, engine compartment, monitor sensors, walkers, threshing, clean grain and tailing elevator, conveying, and transport equipment. Licensee will visually inspect such equipment to confirm the foregoing.
Delivery and Storage: 1. Delivery of unused Enogen Seed to Syngenta or Dealer: Licensee will comply with the following: a. Only transport bags or Q-Bit® boxes directly from Licensee’s approved storage facility to the designated Syngenta location or Dealer. b. Ensure that any open bags or Q-Bit® boxes are sealed during transportation. c. After transportation, visually inspect vehicle, trailer, or other device used for transportation for leakage or spillage of any seed, and immediately destroy any such material in accordance with all applicable laws and regulations. 2. Delivery from Licensee’s field to Licensee’s Approved Facility: Licensee will comply with the following: a. To make sure that all containers have the ability to completely cover the contents of container and that the Enogen Grain is covered from field until reaching the Licensee’s applicable storage locations, as identified as part of the Territory. b. To only use containers that are free of any leaks or holes. c. To only transport containers directly from the field to applicable storage location, as identified as part of the Territory. d. After unloading the grain, to broom sweep all tractors and containers until empty and clear of all grain both inside and outside including all doors, slides and hatches. Either Ethanol Plant or Licensee (depending on which transported the Enogen Grain) will visually confirm the foregoing. e. To ensure that Enogen Grain will not be removed from the Licensee’s storage locations identified as part of the Territory except for transport to Ethanol Plant as set forth below or as directed by Syngenta. 3. From Licensee’s Approved Facility to Ethanol Plant: Licensee will comply with the following: a. To make sure that all containers have the ability to completely cover the contents of container and that the Enogen Grain is covered from storage site until reaching Ethanol Plant’s approved receiving facility. b. To only use containers that are free of any leaks or holes. c. To only transport containers directly from Licensee’s storage location, as identified as part of the Territory, to Ethanol Plant’s approved receiving facility and to ensure that the container is closed and sealed. Licensee will ensure that all truck hoppers, boxes, or other containers that contain Enogen Grain will be marked to visually distinguish trucks containing Enogen Grain from trucks containing non-Enogen Grain (e.g. trucks hauling #2YDC) as required by Syngenta. In addition, Licensee will have a placard clearly indicating that Enogen Grain is being delivered adequately displayed in the windshield of the delivery vehicle. d. After unloading the grain, to broom sweep all tractors and containers until empty and clear of all grain both inside and outside including all doors, slides and hatches. Either Ethanol Plant or
Licensee (depending on which transported the Enogen Grain) will visually confirm the foregoing. e. To ensure that Enogen Grain will not be removed from the Licensee’s storage locations, as identified as part of the Territory, except for transport to Ethanol Plant or as directed by Syngenta. f.
After unloading all the Enogen Grain from the storage unit, to clean all remaining grain from such storage unit. Such cleaning will include removal of grain from the following: loading augers and conveyers, legs, distributors, bin floors, bin walls, fans, unloading augers and conveyers, bin stirators, grain spreading equipment, hatches, and doors. Licensee will visually confirm the foregoing and ensure that the storage unit is clean prior to storing additional grain in such storage unit.
4. From Licensee’s field to Ethanol Plant: Licensee will comply with the following: a. To make sure that all containers have the ability to completely cover the contents of container and that the Enogen Grain is covered from field until reaching Ethanol Plant’s approved receiving facility. b. To only use containers that are free of any leaks or holes. c. To only transport containers directly from Licensee’s field to Ethanol Plant’s approved receiving facility and to ensure that the container is closed and sealed. Licensee will ensure that all truck hoppers, boxes, or other containers that contain Enogen Grain will be marked to visually distinguish trucks containing Enogen Grain from trucks containing non-Enogen Grain (e.g. trucks hauling #2YDC) as required by Syngenta. In addition, Licensee will have a placard clearly indicating that Enogen Grain is being delivered adequately displayed in the windshield of the delivery vehicle. d. After unloading the grain, to broom sweep all tractors and containers until empty and clear of all grain both inside and outside including all doors, slides and hatches. Either Ethanol Plant or Licensee (depending on which transported the Enogen Grain) will visually confirm the foregoing. 5. Failure to Satisfy Enogen Grain Testing. If Enogen Grain does not qualify as Enogen Grain as determined by Ethanol Plant or Syngenta, such grain must be dumped at the delivery location as #2YDC and cannot be reblended or removed by Licensee from its destination for any reason. Enogen Reports: Licensee will complete the following reports, and any other reports required by Syngenta in its sole discretion, in the form provided by Syngenta to Licensee via the Enogen Grain Contracting System or otherwise in writing and provide such reports to Syngenta at the following times: 1. 2. 3. 4. 5. 6. 7.
Form A: Field Information Report – on the Effective Date Form B: Post-Planting Report – promptly after Licensee completes planting of Enogen Seed Form C: Planter Clean-Out Report – promptly after the Enogen Seed planted reaches the R2 stage Form D: In-Season Field Report – promptly after harvest of the Enogen Grain Form E1: Harvest Report – promptly after harvest of the Enogen Grain Form E2: Combine Clean-Out Report – promptly after delivery of the Enogen Grain Form E3: Harvest Equipment Clean-Out Report – promptly after Licensee completes planting of each listed field with Enogen Seed 8. Form F: Bin/Storage Clean-Out Report – promptly after Licensee harvests Enogen Grain from each listed field