ASSET PURCHASE AND LICENSE AGREEMENT

E XHIBIT 10.1

E XECUTION C OPY

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

ASSET PURCHASE AND LICENSE AGREEMENT

by and among

A GRIGENETICS , I NC .,

a Delaware corporation;

M YCOGEN C ORPORATION ,

a California corporation;

E XELIXIS P LANT S CIENCES , I NC .,

a Delaware corporation;

A GRINOMICS , LLC,

a Delaware limited liability company;

and

E XELIXIS , I NC .,

a Delaware corporation.

Dated as of September 4, 2007

TABLE OF CONTENTS

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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ASSET PURCHASE AND LICENSE AGREEMENT

This A SSET P URCHASE AND L ICENSE A GREEMENT is entered into as of September 4, 2007 by and among A GRIGENETICS , I NC ., a Delaware corporation (the “ Purchaser ”), M YCOGEN C ORPORATION , a California corporation (“ Mycogen ”), E XELIXIS P LANT S CIENCES , I NC ., a Delaware corporation (“ EPS ”), A GRINOMICS , LLC, a Delaware limited liability company (“ Agrinomics ”), and E XELIXIS , I NC . , a Delaware corporation (“ Exelixis ”). EPS and Agrinomics are collectively referred to herein as the “ Seller ”. The Purchaser, EPS and Agrinomics are individually referred to herein as a “ Party ” or collectively as the “ Parties ”. Mycogen is a party to this Agreement pursuant to Section 7.3 and Section 8, and Exelixis is a party to this Agreement pursuant to Section 7.3 and Section 8. Certain capitalized terms used in this Agreement are defined in Exhibit A.

R ECITALS

WHEREAS, the Seller wishes to sell to the Purchaser, and the Purchaser wishes to purchase from the Seller, the Purchased Assets, and in connection therewith the Purchaser is willing to assume certain liabilities and obligations of the Seller relating thereto, all upon the terms and subject to the conditions set forth in this Agreement (the “ Acquisition ”);

WHEREAS , in connection with the Acquisition, the Seller wishes to grant certain licenses to the Purchaser, and the Purchaser wishes to grant certain licenses and covenants not to sue to the Seller, all upon the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, concurrently with the execution of this Agreement, EPS and the Purchaser are executing a contract research agreement (the “ Contract Research Agreement ”) which sets forth the terms and conditions under which EPS will provide contract research to the Purchaser after the Effective Date and potentially transfer additional assets to the Purchaser for additional consideration.

A GREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein, and subject to and on the terms and conditions set forth herein, the parties hereto, intending to be legally bound hereby, agree as follows:

SECTION 1. S ALE OF P URCHASED A SSETS ; L ICENSES .

1.1 Sale of Purchased Assets. Effective as of the Closing, the Seller hereby sells, assigns, transfers, conveys, and delivers to the Purchaser all of the Seller’s right, title and interest (other than the rights expressly licensed back to or otherwise conferred upon the Seller pursuant to Section 2 of this Agreement) in and to the Purchased Assets free and clear of all Encumbrances (other than Permitted Encumbrances) on the terms of, and subject to the conditions set forth in, this Agreement, and the Purchaser hereby purchases from the Seller, all of the Seller’s right, title and interest, in, to and under the Purchased Assets free and clear of all Encumbrances (other than Permitted Encumbrances).

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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1.2 Closing; Delivery and Payment.

(a) Closing. The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place concurrently with the execution and delivery of this Agreement (the time and date on which the Closing occurs is hereinafter referred to as the “ Effective Date ”).

(b) Delivery and Payment. At the Closing:

(i) the Purchaser shall pay the Purchase Price to the Seller in immediately available funds by wire transfer to the account or accounts designated in writing by the Seller at least two (2) business days prior to the Effective Date;

(ii) the Seller shall deliver to the Purchaser such instruments of transfer, assignment, conveyance and other instruments sufficient to evidence and effectuate the sale, assignment and transfer to the Purchaser of all right, title and interest in and to the Purchased Assets all in form and substance reasonably satisfactory to the Purchaser, including (1) the Statutory Warranty Deed in the form of Exhibit B attached hereto (the “ Statutory Warranty Deed ”), (2) the Bill of Sale in the form of Exhibit C attached hereto (the “ Bill of Sale ”) and (3) the Patent Assignment Agreement in the form of Exhibit D attached hereto (the “ Patent Assignment Agreement ”);

(iii) the Purchaser shall deliver to the Seller such instruments of assumption sufficient to assume, discharge or perform when due, all of the Assumed Liabilities, all in form and substance reasonably satisfactory to the Seller, including the Assignment and Assumption Agreement in the form of Exhibit E attached hereto (the “ Assignment and Assumption Agreement ” ); and

(iv) the Purchaser and the Seller shall execute an instrument demonstrating that the parties to the [ * ] have terminated such agreements (the “ Letter ”).

(c) Acknowledgement. The Purchaser hereby acknowledges that, except with regard to the Purchased Assets specifically described in Sections 7.2(b) and (e) below as requiring delivery, the Seller shall have no obligation to deliver the physical possession of any other Purchased Assets to the Purchaser, and, as of the Closing, all such other Purchased Assets are located at and, immediately after Closing, shall remain located at the Purchased Facility or the PDX Facility.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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1.3 Partially Exclusive License.

(a) The Seller hereby grants the Purchaser a fully-paid, royalty-free, perpetual, irrevocable, worldwide, exclusive license, with the right to grant sublicenses, under the Partially Exclusive Patents for any purpose, subject only to the licenses and the options described in Sections 1.3(b), 1.3(c) and 1.3(d) that the Seller previously granted to Third Parties under the Exelixis Existing Agreements and any future licenses granted pursuant to the exercise of such options.

(b) The Purchaser hereby acknowledges that, as of the Effective Date, [ * ] has, pursuant to the [ * ] Agreement, (i)  [ * ] and (ii)  [ * ] . Each such research license will [ * ] .

(c) The Purchaser hereby acknowledges that, as of the Effective Date, [ * ] has, pursuant to the [ * ] Agreement, [ * ] .

(d) The Purchaser hereby acknowledges that, as of the Effective Date, [ * ] has, pursuant to [ * ] Agreement, [ * ] , and [ * ] has, pursuant to [ * ] Agreement, the [ * ] . Prior to the Effective Date, [ * ] and, as of the Effective Date, [ * ] . [ * ] .

(e) The Purchaser: (i) covenants that during the term of the [ * ] Agreement, [ * ] in any jurisdiction in which an applicable unexpired [ * ] has not been held, by a court or governmental agency of competent jurisdiction, to be unpatentable, invalid or unenforceable in a decision from which no appeal can be taken, [ * ] ; and (ii) acknowledges that [ * ] .

(f) Between the Effective Date and [ * ] , the Purchaser: (i) covenants [ * ] in any jurisdiction in which an applicable unexpired [ * ] has not been held, by a court or governmental agency of competent jurisdiction, to be unpatentable, invalid or unenforceable in a decision from which no appeal can be taken [ * ] ; and (ii) acknowledges that [ * ] .

(g) If [ * ] with respect to a particular patent or patent application [ * ] , the Seller will notify the Purchaser in writing and will [ * ] ; provided , however , that if any patent or patent application [ * ] .

1.4 Non-Exclusive License. The Seller hereby grants the Purchaser a fully-paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive license, with the right to grant sublicenses, under the Non-Exclusive Assets for any purpose.

SECTION 2. E XCLUDED A SSETS ; L ICENSE TO S ELLER ; R ETAINED R IGHTS .

2.1 Excluded Assets.

(a) Generally. Subject to Section 2.1(c), the Purchaser shall not acquire any rights or interests in, and, further subject to Sections 2.1(b) and 8.15, the Seller shall retain all rights and interests in, including the rights to use, exploit, sell and otherwise transfer for all purposes, the Excluded Assets. Subject to Section 7.3(f), specifically, but not as a limitation to the generality of the foregoing, EPS shall have the right to grant a license to the Sellable Assets Purchaser to use the Non-Exclusive Know-How identified in Schedule 1.4(a) in connection with the Sellable Assets.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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(b) Sellable Assets.

(i) The Seller agrees [ * ] provided that the Seller [ * ] sell or otherwise transfer the Sellable Assets or any portion thereof to any Person (other than Exelixis) for any use by such Person and to receive consideration in exchange for such sale or transfer, including cash, equity or other ownership interest in such Person [ * ] (the closing of such sale of the Sellable Assets, the “ Sellable Assets Sale ”, and such purchaser or transferee of the Sellable Assets, the “ Sellable Assets Purchaser ”), provided further that EPS [ * ] .

(ii) EPS agrees that:

(1) prior to the Sellable Assets Sale, [ * ] any potential Sellable Assets Purchaser regarding the Sellable Assets;

(2) EPS shall not, and it will cause its Affiliates not to, directly or indirectly, [ * ] in connection with the Sellable Assets Sale;

(3) (A) EPS shall [ * ] transfer of the Sellable Assets and the provision of technical assistance to the Sellable Assets Purchaser, which may include the packaging, transferring and tracking of seeds, the transfer of data and database(s), and the transfer of licenses and permits [ * ] ; (B) EPS shall [ * ] ; and (C)  [ * ] transfer of the Sellable Assets and the provision of technical assistance to the Sellable Assets Purchaser;

(4) after [ * ] the Sellable Assets Purchaser with respect to the Sellable Assets, provided that the foregoing [ * ] ; and

(5) (A) it [ * ] the agreement governing the sale or transfer of the Sellable Assets (the “ Sellable Assets Purchase Agreement ”) [ * ] ; and (B) for any Sellable Assets Sale that occurs before the earlier of the Anticipated Delivery Date (as defined in the Contract Research Agreement) of [ * ] ; provided , however , that the following shall [ * ] .

(c) Cell Factory Assets.

(i) Subject to the Purchaser’s rights as described in this Section 2.1(c)(i) and in Section 2.1(c)(ii) below, the Seller expressly reserves all rights to use and exploit the Cell Factory Assets for all purposes, including entering into collaboration with any Third Party to further develop the Cell Factory Assets with such Third Party, or selling or otherwise transferring the Cell Factory Assets to any Third Party. In particular and without limiting the foregoing, unless and until the Parties enter into a Cell Factory Purchase Agreement, the Seller shall have the right to: (1) fund, by itself or with or through their Affiliates or Third Parties, and continue to operate the Cell Factory Assets [ * ] ; and (2) use the Cell Factory Assets to initiate

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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and conduct new research and collaborations, and to continue existing research and collaborations, at the Seller’s sole discretion; provided that the Seller [ * ] . Any and all new inventions, materials and intellectual property generated by the Seller pursuant to any such Cell Factory Asset-focused research or collaboration shall be deemed to be Cell Factory Assets (and therefore subject to Section 2.1(c)(ii)), except to the extent any Third Party has rights to such inventions, materials or intellectual property pursuant to an agreement between the Seller and such Third Party. The Seller shall notify the Purchaser within [ * ] . If the Purchaser notifies the Seller in writing, within [ * ] thereafter, of its interest in the development and/or commercialization of [ * ] then EPS shall grant the Purchaser [ * ] . If the Purchaser does not notify the Seller, within such [ * ] period, of the Purchaser’s interest in the development and/or commercialization of such [ * ] , then the Seller shall have no further rights with respect to, and EPS will have no further obligation to the Purchaser with respect to, such [ * ] . The foregoing obligation to notify the Purchaser of [ * ] .

(ii) Notwithstanding Section 2.1(c)(i) above, during the Notice Period, if the Seller desires to sell all or substantially all of the Cell Factory Assets, or if the Seller receives a bona fide offer from a Third Party to purchase all or substantially all of the Cell Factory Assets, the Seller shall provide written notice thereof (the “ Notice ”) to the Purchaser within [ * ] . Within [ * ] after receiving such Notice, the Purchaser shall notify the Seller in writing as to whether the Purchaser is interested in purchasing the Cell Factory Assets. If the Purchaser informs the Seller in writing within such [ * ] that it is interested in [ * ] or, if within the Notice Period, the Purchaser otherwise notifies the Seller in writing that it is interested in purchasing the Cell Factory Assets, then the Purchaser and the Seller shall engage in good faith negotiations regarding the terms and conditions of an agreement pursuant to which the Seller would sell such Cell Factory Assets to the Purchaser (the “ Cell Factory Purchase Agreement ”). If the Purchaser and the Seller enter into such Cell Factory Purchase Agreement, then the Parties’ rights and obligations with respect to the Cell Factory Assets shall be governed under the Cell Factory Purchase Agreement and no longer under this Agreement. The Seller’s obligations to the Purchaser pursuant to this Section 2.1(c)(ii) shall (1) expire upon the earlier of [ * ] and (2)  provided that the Seller has complied with this Section 2.1(c)(ii), not be interpreted as restricting the Seller from (A) negotiating with Third Parties with respect to purchase of all or substantially all of the Cell Factory Assets or (B) accepting, in its sole and absolute discretion, any offer to purchase all or substantially all of the Cell Factory Assets. The “ Notice Period ” shall mean the period that commences on the Effective Date and ends [ * ] thereafter, unless the Purchaser notifies the Seller within [ * ] after the Effective Date that the Purchaser and/or its Affiliates [ * ] , in which case the period shall end [ * ] after the Effective Date.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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2.2 Right to Use; Licenses; Covenants.

(a) The Purchaser hereby grants to EPS a fully-paid, royalty-free, worldwide, non-exclusive license, under all intellectual property included in the Purchased Assets and the Partially Exclusive Patents, solely for EPS to perform its obligations under the Contract Research Agreement during the term thereof.

(b) The Purchaser hereby grants to EPS access to, and the rights to use:

(i) all tangible items and data included in the Purchased Assets, free of charge, for EPS to perform its obligations under the Contract Research Agreement during the term thereof;

(ii) all office equipment such as telephones, computers and photocopy machines located at the Purchased Facility and the PDX Facility, free of charge, for EPS’s incidental use of such equipment in connection with any sale or transfer of the Sellable Assets in accordance with Section 2.1(b); and

(iii) all Purchased Operative Assets, free of charge [ * ] and in connection with:

(1) the research, development and commercialization of, and the potential management, transfer or sale of: (A) the Cell Factory Assets; (B) the Dual-Use Assets and the Non-Exclusive Assets in connection with the development, use, exploitation or transfer of the Cell Factory Assets; and (C) all assets arising from the above activities in connection with the development, use, exploitation or transfer of the Cell Factory Assets; and

(2) the research, development and commercialization of, and the potential management, transfer or sale of the Contractual Assets and the assets arising therefrom to preserve and maintain such assets and fulfill or transfer the Seller’s contractual obligations with respect to such assets.

(c) The Purchaser hereby grants to the Seller [ * ] , solely for use with: (i) the Cell Factory Assets, (ii) Dual-Use Assets and Non-Exclusive Assets in connection with the development, use, exploitation or transfer of the Cell Factory Assets and (iii) assets arising from any of the assets described in subsection (i) or (ii) above, with the right to sublicense, provided that [ * ] will be explicitly limited to [ * ] to [ * ] . For clarity and without limiting the Seller’s rights set forth in the foregoing sentence, the Seller’s license under this Section 2.2(c) shall be fully transferable by the Seller to any purchaser(s) or transferee(s) of the Cell Factory Assets without the prior consent of the Purchaser.

(d) The Purchaser hereby covenants that neither it nor its Affiliates (and in each case, nor any such entity’s successors or assigns) shall assert or enforce against the Seller, their Affiliates or their respective successors, assigns, employees, directors, agents, subcontractors, licensees, sublicensees, distributors or customers (the “ Seller Parties ”), any [ * ] .

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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The Purchaser hereby covenants that neither it nor its Affiliates (and in each case, nor any such entity’s successors or assigns) shall assert or enforce against any [ * ] , its Affiliates or their successors, assigns, employees, directors, agents, subcontractors, licensees, sublicensees, distributors or customers [ * ] ; provided , however , this covenant does not apply to the use of [ * ] . The Purchaser and its Affiliates shall [ * ] the Seller Parties and the Transferee Parties shall be third-party beneficiaries of [ * ] . The Seller Parties (other than the Seller) and the Transferee Parties shall also be third-party beneficiaries of this Section 2.2(d).

(e) The Purchaser hereby grants the Seller a fully paid, royalty free, non-exclusive, perpetual, irrevocable, worldwide license under the [ * ] .

(f) The Purchaser hereby grants the Seller a fully paid, royalty free, non-exclusive, perpetual, irrevocable, worldwide license, under the [ * ] .

(g) The Purchaser hereby grants the Seller a fully paid, royalty free, non-exclusive, perpetual, irrevocable, worldwide license under the [ * ] .

2.3 Retained Rights. The Seller shall have the right to retain copies of the Non-Exclusive Assets, practice the Non-Exclusive Assets for any purpose (subject to Section 7.3(f) and Section 8.15), and, in addition to licenses existing as of the Effective Date under the Exelixis Existing Agreement, to grant licenses under the Non-Exclusive Assets for any purpose to any Third Party purchasing all or substantially all of the Sellable Assets or the Cell Factory Assets, or any Third Party collaborator with respect to the Cell Factory Assets; provided , however , that the Seller shall [ * ] , and provided further however that the Non-Exclusive Know-How licensed to the Sellable Assets Purchaser shall be limited to that specifically identified in Schedule 1.4(a).

2.4 [ * ]. The Seller shall notify the Purchaser within [ * ] after [ * ] . If the Purchaser notifies the Seller in writing, within [ * ] thereafter, of its interest in [ * ] , then [ * ] . The Purchaser shall [ * ] pursuant to the preceding sentence; such [ * ] will be [ * ] . The Purchaser shall also [ * ] . If the Purchaser does not notify the Seller, within such [ * ] period, of the Purchaser’s interest in [ * ] , then the Seller shall have no further rights with respect to, and EPS will have no further obligation to the Purchaser with respect to, such [ * ] .

SECTION 3. A SSUMED L IABILITIES AND E XCLUDED L IABILITIES .

3.1 Assumed Liabilities. The Purchaser shall assume all of the obligations and liabilities of any kind, character or description whatsoever, whether direct or indirect, known or unknown, absolute or contingent, matured or unmatured, that are (a) exclusively associated with the Purchased Assets or (b) associated with, but not exclusively, the Purchased Assets, to the extent such obligations and liabilities are associated with the Purchased Assets, in each case to the extent such obligations and liabilities arise after the Effective Date (collectively, the “Assumed Liabilities” ). For clarity, Assumed Liabilities shall expressly include all obligations and liabilities associated with the Purchased Assigned Agreements arising after the Effective Date, and the Purchaser hereby agrees to be bound by the terms and conditions of the Purchased Assigned Agreements. The fact that a contract has been entered into by the Seller at or prior to

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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the Effective Date shall not determine whether a particular liability or obligation under such contract arose at or prior to the Effective Date. The Purchaser shall assume such Assumed Liabilities by executing and delivering to the Seller the Assignment and Assumption Agreement pursuant to Section 1.2(b)(iii).

3.2 Excluded Liabilities. Except for the Assumed Liabilities, the Purchaser shall not assume or be obligated to pay, perform or otherwise discharge, and the Seller shall retain, pay, perform, remain responsible for and otherwise discharge, any and all obligations and liabilities of the Seller of any kind, character or description whatsoever, whether direct or indirect, known or unknown, absolute or contingent, matured or unmatured, and currently existing or hereinafter arising (collectively, the “ Excluded Liabilities ”). Without limiting the foregoing, the Purchaser expressly does not assume and the following shall be considered Excluded Liabilities:

(a) any obligations and liabilities related to the Purchased Assets or the Partially Exclusive Patents that arose or required performance prior to the Effective Date;

(b) any obligations and liabilities related to [ * ] ; and

(c) any obligations and liabilities related to the Excluded Assets, whether arising prior to, on or after the Effective Date.

SECTION 4. C ONSIDERATION AND R ELATED M ATTERS .

4.1 Purchase Price. In consideration for the sale, assignment, transfer, conveyance and delivery of the Purchased Assets to the Purchaser, the Purchaser shall: (a) on the Effective Date, pay to the Seller, by wire transfer of immediately available funds, a non-refundable, non-creditable amount equal to EIGHTEEN MILLION DOLLARS ($18,000,000) (the “ Purchase Price ”); (b) on the Effective Date, assume the Assumed Liabilities; and (c) on or before the first (1 ^st ) anniversary of the Effective Date, pay to the Seller, by wire transfer of immediately available funds to an account or accounts designated by the Seller, a non-refundable, non-creditable amount equal to FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS ($4,500,000) (such payment, the “ First Anniversary Payment ”). The Purchaser’s obligation with respect to the First Anniversary Payment shall not be cancelable or conditioned upon any performance, rights or obligations of any Party under this Agreement or the Contract Research Agreement.

4.2 Transfer Taxes. The Purchaser and the Seller shall each bear and pay 50% of any transfer, documentary, sales (imposed by the State of Oregon), stamp, registration and other similar Taxes and all conveyance fees, recording charges and other similar fees and charges that may become payable (whether by the Seller or the Purchaser) in connection with the sale of the Purchased Assets to the Purchaser, the assumption of the Assumed Liabilities by the Purchaser or any of the other transactions contemplated by this Agreement. The Purchaser shall bear 100% of all use Taxes in connection with the use or relocation of the Purchased Assets and any sales Taxes imposed by any state other than the State of Oregon. For the avoidance of doubt, the Seller shall be solely responsible for all Taxes imposed upon the Seller with respect to any income or gain recognized by the Seller as a result of (a) the sale of the Purchased Assets to the Purchaser, (b) the assumption of the Assumed Liabilities by the Purchaser and (c) the other transactions contemplated by this Agreement.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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4.3 Allocation. Except for the portion of the Purchase Price allocated to the purchase of the Purchased Facility, which has been agreed upon by the Parties prior to the Effective Date, as soon as practicable after the Closing, the Purchaser will deliver to the Seller a statement allocating the Purchase Price, the First Anniversary Payment (excluding the portion thereof required to be treated as interest for U.S. federal income tax purposes), and the Assumed Liabilities (to the extent relevant) among the Purchased Assets (the “ Allocation Statement ”) in a manner consistent with Section 1060 of the Internal Revenue Code. If within fifteen (15) days after the delivery of the Allocation Statement, the Seller, in a manner consistent with Section 1060 of the Internal Revenue Code, objects to the allocation set forth in such Allocation Statement, the Purchaser and the Seller will negotiate with each other in good faith and will use commercially reasonable efforts to resolve such dispute within thirty (30) days. If the Purchaser and the Seller reach agreement on such allocation, then each of them will timely file IRS Form 8594 and report all relevant matters consistently with such agreement.

4.4 Real Estate Transaction Expenses. The Purchaser shall bear one hundred percent (100%) of all fees and costs incurred in connection with the transfer of the Purchased Facility at Closing, such as title insurance costs, documentation fees, any survey costs and other similar fees and costs.

SECTION 5. R EPRESENTATIONS AND W ARRANTIES .

5.1 By the Seller. As of the Effective Date, except as set forth in the corresponding Sections or subsections of the disclosure schedule delivered to the Purchaser on the Effective Date (collectively, the “ Disclosure Schedule ”) (each of which shall qualify the specifically identified Sections or subsections hereof to which such Disclosure Schedule relates or such other representations and warranties where it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such representations or warranties), the Seller hereby represents and warrants to the Purchaser as follows:

(a) Purchased Assets. Either EPS or Agrinomics owns and has good and valid title to the Purchased Assets (other than to the Intellectual Property Rights included in the Purchased Patents and the Purchased Know-How), free and clear of all Encumbrances, except for Permitted Encumbrances.

(b) Partially Exclusive Patents and Non-Exclusive Assets. EPS or Agrinomics Controls the Partially Exclusive Patents and the Non-Exclusive Assets and has the right to grant to the Purchaser the licenses thereto set forth in Sections 1.3 and 1.4.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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(c) Intellectual Property.

(i) Except as set forth in Section 5.1(c)(i) of the Disclosure Schedule, either EPS or Agrinomics owns all right, title and interest in the Purchased Know-How and the Purchased Patents expressly listed on Schedule 1.1(c) (the “ Listed Patents ” ), free and clear of all Encumbrances except for (A) Permitted Encumbrances, (B) the rights granted to Third Parties pursuant to the Purchased Assigned Agreements, (C) the rights granted to the Purchaser and the Purchaser’s Affiliates pursuant to the [ * ] and (D)  [ * ] .

(ii) Except for the previously granted rights identified in Section 5.1(c)(i) and the previously granted licenses and options described in Sections 1.3(b), 1.3(c) and 1.3(d), and the obligation to grant licenses pursuant to such options, (A) no Third Party has any rights, including any license (whether royalty-bearing or royalty-free) from EPS or Agrinomics to any Purchased Know-How, Listed Patents or Partially Exclusive Patents, and (B) neither EPS nor Agrinomics is subject to any obligation to grant rights to such Intellectual Property Rights to any other Third Party.

(iii) The Listed Patents, the Partially Exclusive Patents and the Non-Exclusive Patents: (A) have not been the subject of any prior litigation or administrative proceeding; (B) are not the subject of any pending litigation or administrative proceeding; (C) are not the subject(s) of any Claim for which the Seller has received written notification; and (D) are not the subject of any threatened Claim of which the Seller has knowledge. For purposes of this Section 5.1(c)(iii), “administrative proceeding” shall mean an opposition, revocation, reexamination, interference or similar proceeding in any country.

(iv) The consummation of the transactions contemplated hereby will not result in the loss or impairment of any of the Intellectual Property Rights included in Purchased Know-How, the Listed Patents, the Partially Exclusive Patents or the Non-Exclusive Assets.

(v) To the knowledge of Seller, no Third Party is currently infringing, misappropriating or otherwise violating, any of the Intellectual Property Rights included in the Purchased Know-How, the Listed Patents, the Partially Exclusive Patents or the Non-Exclusive Assets.

(vi) The Seller has not received from any Third Party any written notification of alleged infringement, misappropriation or other violation of any Intellectual Property Rights of any Third Party arising from the Seller’s development or use of any tangible Purchased Assets or any Intellectual Property Rights included in the Purchased Know-How, the Listed Patents, the Partially Exclusive Patents or the Non-Exclusive Assets, and the Seller does not reasonably believe that the Seller’s development or use, prior to the Effective Date, of any tangible Purchased Assets or use of any Intellectual Property Rights included in the Purchased Know-How, Listed Patents, the Partially Exclusive Patents or the Non-Exclusive Assets constituted infringement, misappropriation or other violation of any valid and enforceable Intellectual Property Rights of any Third Party.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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(d) Purchased Assigned Agreements. The Exelixis Existing Agreements and the Purchased Assigned Agreements constitute all contracts, agreements, arrangements or understandings, whether written or oral, to which EPS or Agrinomics is a party, that grant to any Third Party rights to any Purchased Assets. EPS has delivered to the Purchaser accurate and complete copies of each Purchased Assigned Agreement, including all amendments thereto. Each Purchased Assigned Agreement is valid, binding and enforceable (subject to applicable limitations on such enforcement based on bankruptcy laws and other debtors’ rights) and is in full force and effect. Neither EPS nor Agrinomics, nor to the knowledge of the Seller, any other party, is in breach or violation of, or (with or without notice or lapse of time or both) default under, any Purchased Assigned Agreement, nor has either EPS or Agrinomics received any written claim of any such breach, violation or default.

(e) Sufficiency. Except as set forth in Section 5.1(e) of the Disclosure Schedule, the Purchased Assets, the Partially Exclusive Patents and the Non-Exclusive Assets include all tangible assets and Intellectual Property Rights Controlled by EPS or Agrinomics as of the Effective Date that are necessary for EPS to perform its obligations under the Contract Research Agreement in accordance with the Research Plan (as defined in the Contract Research Agreement) in effect as of the Effective Date with respect to genes expressly identified therein. The representation set forth in this Section 5.1(e) does not extend to specific technologies, techniques, methodologies, equipment, software or biological or chemical materials that the Parties decide after the Effective Date to use or employ in the course of performing work pursuant to the Contract Research Agreement.

(f) Legal Proceedings. There are no material Claims pending or, to the knowledge of the Seller, threatened against EPS or Agrinomics or any of their respective Affiliates that involve or would otherwise affect the Purchased Assets, the Partially Exclusive Patents or the Assumed Liabilities.

(g) Valid Existence. EPS is a corporation validly existing and in good standing under the laws of the State of Delaware. Agrinomics is a limited liability company validly existing and in good standing under the laws of the State of Delaware.

(h) Authority. EPS has the requisite corporate power and authority to enter into and to deliver the Transaction Agreements to which it is a party and to perform its obligations thereunder, and the execution, delivery and performance by EPS of the Transaction Agreements to which it is a party have been duly authorized by all necessary action on the part of EPS and its board of directors and its stockholders, if required. Agrinomics has the requisite corporate power and authority to enter into and to deliver the Transaction Agreements to which it is a party and to perform its obligations thereunder, and the execution, delivery and performance by Agrinomics of the Transaction Agreements to which it is a party have been duly authorized by all necessary action on the part of Agrinomics and its board of managers and its members, if required.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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(i) Binding Nature of Agreements. The Transactional Agreements to which either EPS or Agrinomics is a party constitute the legal, valid and binding obligations of EPS or Agrinomics, as applicable, enforceable against it in accordance with their terms, except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

(j) Non-Contravention. The execution and delivery by EPS and Agrinomics of the Transactional Agreements to which they are a party and the sale of the Purchased Assets to the Purchaser or the license of the Partially Exclusive Patents or the Non-Exclusive Assets to the Purchaser hereunder will not: (i) conflict with, or result in a violation of, the certificate of incorporation, bylaws or other equivalent organizational documents of EPS or Agrinomics; (ii) result in a violation of any Law that is applicable to EPS, Agrinomics, the Purchased Assets, the Partially Exclusive Patents or the Non-Exclusive Assets; (iii) result in the imposition of any Encumbrance upon any of the Purchased Assets, the Partially Exclusive Patents or the Non-Exclusive Assets; or (iv) result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, require any consent of any Person pursuant to, give to others any right of termination, amendment, modification, acceleration or cancellation of, allow the imposition of any fees or penalties under, require the offering or making of any payment or redemption under, or give rise to any increased, guaranteed, accelerated or additional rights or entitlements of any Person pursuant to, any note, bond, mortgage, indenture, agreement, lease, license, permit, franchise, instrument, obligation or other contract to which the Seller is a party and which pertains directly to the Purchased Assets, the Partially Exclusive Patents or the Non-Exclusive Assets.

(k) No Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the sale of the Purchased Assets to the Purchaser or any of the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of EPS or Agrinomics or their respective Affiliates.

(l) Real Property. Except as set forth in Section 5.1(l) of the Disclosure Schedule, the Purchased Facility and the PDX Facility are the only real property owned or leased by the Seller that are used by the Seller as of the Effective Date in connection with plant traits research and development. EPS or Agrinomics has good and marketable title in fee simple to the Purchased Facility, free and clear of all Encumbrances, except Permitted Encumbrances. The PDX Facility Lease is in full force and effect, and there exists no default under such lease by EPS or, to the knowledge of the Seller, any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by EPS or, to the knowledge of the Seller, any other party thereto. Neither the Purchased Facility nor the PDX Facility is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefore, nor, to the knowledge of the Seller, has any such condemnation, expropriation or taking been proposed. There are no contractual or legal restrictions, other than those set forth in the PDX Facility

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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Lease, that preclude or restrict the ability of the Purchaser to use the Purchased Facility or the PDX Facility for the purposes for which they are currently being used, and there are no latent defects or adverse physical conditions affecting the Purchased Facility or the PDX Facility, or improvements thereon. As of the Effective Date and except as otherwise provided in Section 6.1(c) of the Contract Research Agreement, the PDX Facility, the Purchased Facility and the Purchased Operative Assets are in good working order and are sufficient for EPS to fulfill its obligations under the Contract Research Agreement as contemplated in the Research Plan in effect as of the Effective Date.

(m) Purchased Operative Assets. All of the Purchased Operative Assets have been maintained in accordance with past practice and generally accepted industry practice. Each item of the Purchased Operative Assets is in good operating condition and repair, ordinary wear and tear excepted, and is adequate for the uses to which it is being put.

(n) Insurance. Section 5.1(n) of the Disclosure Schedule sets forth a true and complete list of all casualty, general liability, product liability and all other types of insurance maintained by EPS or Agrinomics or their respective Affiliates with respect to the Purchased Assets and the Partially Exclusive Patents, together with the carriers and liability limits for each such policy. All such policies are in full force and effect. No notice of cancellation, termination or reduction of coverage has been received with respect to any such policy. No claim currently is pending under any such policy.

(o) Compliance with Law; Permits. Each of EPS and Agrinomics is and has been, since January 1, 2005, in material compliance with all Laws applicable to it in connection with the ownership or use of the Purchased Assets and the Partially Exclusive Patents. Since January 1, 2005, neither EPS nor Agrinomics has received any written notice, order, complaint or other written communication from any Governmental Authority or any other Person that it is not in compliance in all material respects with any such Laws with respect to the Purchased Assets or the Partially Exclusive Patents. Either EPS or Agrinomics is in possession of all permits necessary for EPS or Agrinomics to own and operate the Purchased Facility, to lease and operate the PDX Facility and to use the Purchased Assets and the Partially Exclusive Patents in all material respects, in each case as currently operated or used (the “ Permits ”). Each of EPS and Agrinomics is and has been in compliance in all material respects with all such Permits applicable to it. No suspension, cancellation, modification, revocation or nonrenewal of any such Permit is pending or, to the knowledge of the Seller, threatened.

(p) Taxes. There are no liens for Taxes (other than Permitted Encumbrances) on any of the Purchased Assets. There is no dispute or claim concerning any Tax liability of EPS or Agrinomics or their respective Affiliates claimed or raised by any taxing authority in writing with respect to any Purchased Assets or Partially Exclusive Patents.

(q) Environmental Matters. Neither EPS nor Agrinomics has received, or is aware of any basis for, any communication or complaint from a Governmental Authority or other Person alleging that EPS or Agrinomics or their respective Affiliates has any liability under any

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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Environmental Law or is not in compliance with any Environmental Law with respect to the use of the Purchased Facility, the PDX Facility, the other Purchased Assets or the Partially Exclusive Patents. To Seller’s knowledge, and except with respect to such matters as would not reasonably be expected to result in any liability under any Environmental Law, [ * ] , and there is and has been no Release or threatened Release of Hazardous Substances nor any clean-up or corrective action of any kind relating thereto, on the Purchased Facility (including any buildings, structures, improvements, soils and surface, subsurface and ground waters thereof) or the PDX Facility. To Seller’s knowledge, except as set forth in Section 5.1(q) of the Disclosure Schedule, no underground improvement, including any treatment or storage tank or water, gas or oil well, that is subject to regulation under Environmental Laws, is or has been located on any property described in the foregoing sentence. To Seller’s knowledge, neither EPS nor Agrinomics are actually, contingently, potentially or allegedly liable (i) for any Release of, threatened Release of or contamination by Hazardous Substances with respect to the Purchased Facility or the PDX Facility or (ii) under any Environmental Law with respect to the Purchased Facility or the PDX Facility. To Seller’s knowledge, there has been no Release or threatened Release of Hazardous Substances nor any clean-up or corrective action of any kind relating thereto, on the Purchased Facility (including any buildings, structures, improvements, soils and surface, subsurface and ground waters thereof) or the PDX Facility that was or would have been required to be reported to Governmental Authorities under any Environmental Law. There is no pending or, to the knowledge of the Seller, threatened investigation by any Governmental Authority nor any pending or, to the knowledge of the Seller, threatened Action with respect to the Purchased Facility or the PDX Facility in connection with Hazardous Substances or otherwise under any Environmental Law. Either EPS or Agrinomics holds all Environmental Permits necessary in connection with the use of the Purchased Facility, the PDX Facility, the other Purchased Assets, or the Partially Exclusive Patents as they are currently being used or operated and is and has been in material compliance therewith, and the Seller has provided the Purchaser with copies of all such Environmental Permits. To Seller’s knowledge, neither the execution nor delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) require any notice to or consent of any Governmental Authority or other Person pursuant to any applicable Environmental Law or Environmental Permit or (ii) subject any Environmental Permit to suspension, cancellation, modification, revocation or non-renewal. The Seller has disclosed to the Purchaser all “Phase I”, “Phase II” or other environmental assessment reports (“ Environmental Reports ”) that they have knowledge of and have provided copies of such Environmental Reports that they have in their possession or Control addressing the Purchased Facility or the PDX Facility.

5.2 By the Purchaser. The Purchaser represents and warrants to the Seller that, as of the Effective Date:

(a) Valid Existence; Subsidiary. The Purchaser is a corporation validly existing and in good standing under the laws of the State of Delaware. The Purchaser is a wholly owned subsidiary of Mycogen.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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(b) Authority. The Purchaser has the requisite corporate power and authority to enter into and to deliver the Transactional Agreements to which it is a party and to perform its obligations thereunder, and the execution, delivery and performance by the Purchaser of the Transactional Agreements to which it is a party have been duly authorized by all necessary action on the part of the Purchaser and its board of directors and its stockholders, if required.

(c) Binding Nature of Agreements. The Transactional Agreements to which the Purchaser is a party constitute the legal, valid and binding obligations of the Purchaser, enforceable against it in accordance with its terms, except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

(d) Non-Contravention. The execution and delivery by the Purchaser of this Agreement and the purchase of the Purchased Assets by the Purchaser from the Seller will not: (i) conflict with, or result in a violation of, the certificate of incorporation, bylaws or other equivalent organizational documents of the Purchaser; and (ii) result in a material violation by the Purchaser of any Law that is applicable to the Purchaser or the Purchased Assets or Partially Exclusive Patents.

(e) No Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the sale of the Purchased Assets to the Purchaser or any of the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser or its Affiliates.

(f) Financing. The Purchaser has or will have sufficient cash to enable it to make all timely payments under this Agreement and all other Transactional Agreements.

(g) [ * ]. The Purchaser and its Affiliates have not received any written notification of a [ * ] , and have no knowledge of any [ * ] .

5.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5 OR AS EXPRESSLY SET FORTH IN THE TRANSACTION AGREEMENTS, EACH PARTY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO ANY KNOW-HOW, DATA, CONSTRUCTS, CELL LINES, GENES, SEED, ORGANISMS, COLLECTION, PORTFOLIO, DATABASE, TECHNOLOGY, INVENTIONS OR INTELLECTUAL PROPERTY RIGHTS SOLD, LICENSED OR OTHERWISE TRANSFERRED TO THE OTHER PARTY PURSUANT TO THE TERMS OF THIS AGREEMENT.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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SECTION 6. I NDEMNIFICATION .

6.1 Indemnification by the Seller. Subject to the limitations set forth in this Section 6, the Seller shall indemnify the Purchaser and its Affiliates and each of their trustees, directors, officers, employees and agents and their respective successors, heirs and assigns (collectively, the “ Purchaser Indemnitees ”) against (a) any Damages incurred by or imposed upon the Purchaser Indemnitees or any one of them arising or resulting from any Claim brought by [ * ] or any of its licensees against one or more Purchaser Indemnitees with respect to any infringement or alleged infringement of [ * ] , in each case only with respect to [ * ] having occurred prior to the Effective Date (such Claim, the “ [ * ] Claim ”), provided that the Seller shall not have any obligation pursuant to this Section 6.1(a) to indemnify the Purchaser Indemnitees (i) in the event that such [ * ] Claim is first brought or made after any Purchaser Indemnitee brings a Claim challenging the validity, enforceability, scope or infringement of [ * ] , or (ii) with respect to Damages resulting from any Claim or portion thereof that is not a [ * ] Claim, including any Claim brought by [ * ] or any of its licensees with respect to any infringement or alleged infringement of any [ * ] that is not [ * ] or any other cause of action that does not concern [ * ] ; and (b) any Damages that the Purchaser Indemnitees or any one of them incurs resulting or arising from or otherwise relating to (i) any Excluded Liabilities, including any liabilities arising from the use, license, sale or exploitation of any of the Purchased Assets prior to the Effective Date, except that this Section 6.1(b)(i) shall not be construed as limiting the Purchaser’s indemnification obligations under the Contract Research Agreement, (ii) any breach of the representations and warranties of the Seller set forth in Section 5.1 or (iii) any breach of any of the covenants of the Seller set forth in this Agreement.

6.2 Indemnification by the Purchaser. Subject to the limitations set forth in this Section 6, the Purchaser shall indemnify the Seller and their Affiliates and each of their trustees, directors, officers, employees and agents and their respective successors, heirs and assigns (collectively, the “ Seller Indemnitees ”) against any Damages that the Seller Indemnitees or any one of them incurs resulting or arising from or otherwise relating to (a) any breach of the representations and warranties of the Purchaser set forth in Section 5.2; (b) any breach by the Purchaser of the covenants of the Purchaser set forth in this Agreement; (c) any Assumed Liability; or (d) any liability arising from (i) the post-Effective Date use, license, sale or exploitation of any of the Purchased Assets by the Purchaser, its Affiliates and their respective successors, assigns, licensees (except for the Seller and their Affiliates), sublicensees (except for the Seller, their Affiliates and their and their Affiliates’ licensees or sublicensees) and transferees, but excluding any such liability resulting from or relating to an infringement of [ * ] , or (ii) the Purchaser’s or its Affiliates’ or sublicensees’ (except for the Seller, their Affiliates and their and their Affiliates’ licensees or sublicensees) practice of the licenses set forth in Sections 1.3 and 1.4, excluding any such liability resulting from or relating to an infringement of [ * ] . In addition, the Purchaser shall indemnify the Seller, the Sellable Assets Purchaser, and their respective Affiliates and each of their respective trustees, directors, officers, employees and agents and their respective successors, heirs and assigns (collectively, the “ Other Indemnitees ”) against any Damages that the Other Indemnitees or any one of them incurs resulting or arising from or otherwise relating to [ * ] or the reasonable efforts by the Other Indemnitees or any one of them to [ * ] .

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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6.3 Limitations on Liability.

(a) If a party entitled to be indemnified under this Section 6 (an “Indemnified Party” ) wishes to assert an indemnification claim against the party subject to such indemnification obligation under this Section 6 (the “Indemnifying Party” ), the Indemnified Party will deliver to the Indemnifying Party, as soon as reasonably practicable, a written notice (a “Claim Notice” ) setting forth: (i) the specific representation, warranty or covenant alleged to have been breached by the Indemnifying Party or the specific other matter with respect to which the Indemnified Party is making such an indemnification claim; (ii) a reasonably detailed description of the facts and circumstances giving rise to the alleged breach of such representation, warranty or covenant or other matter; and (iii) a reasonably detailed description of, and a good faith estimate of the total amount of, the Damages actually incurred or expected to be incurred by the Indemnified Party as a result of such alleged breach or other matter, which estimate shall not limit the indemnification obligations of any Indemnifying Party hereunder. Notwithstanding anything to the contrary contained in this Agreement, the Indemnified Party will not be permitted to deliver any Claim Notice to the Indemnifying Party (and will not be entitled to assert any claim set forth in any Claim Notice) unless the Indemnified Party has reasonably determined that the breach alleged in such Claim Notice has actually occurred or, in the case of indemnification with respect [ * ] , that [ * ] or its licensee has actually filed or threatened in writing to file a suit that names one or more Purchaser Indemnitees and alleges infringement of [ * ] by the Purchaser or DAS [ * ] , or by EPS or its Affiliates, prior to the Effective Date.

(b) The Claims Period will begin on the date hereof and will terminate and expire, and will cease to be of any force or effect as follows: with respect to Damages arising from or otherwise relating to (i) any breach of the Core Representations, on the date that is the [* ] , (ii) any breach of a covenant herein, [ * ] and (iii) any breach of any representation or warranty other than a Core Representation, [ * ] . Notwithstanding the foregoing, if the Indemnified Party shall have duly delivered to the Indemnifying Party, in conformity with all of the applicable procedures set forth in Section 6.3(a), a Claim Notice setting forth a claim for indemnification based upon a breach by the Indemnifying Party of any of such representations, warranties or covenants, then the specific claim set forth in such Claim Notice will survive the Claims Period. The Indemnifying Party will not be liable for any claim for indemnification [ * ] , provided that the foregoing shall [ * ] . [ * ] , the Indemnifying Party will be required to indemnify the Indemnified Party [ * ] . The total amount of indemnifiable Damages required to be paid by the Seller to the Purchaser Indemnitees [ * ] is limited to an amount equal to [ * ] , provided that the foregoing limitation shall not apply to Damages arising out of or relating to the breach of any representation or warranty in the event of fraud, intentional misrepresentation or intentional breach. For clarity, except in the case of Damages arising out of or relating to the breach of any representation or warranty in the event of fraud, intentional misrepresentation or intentional breach, [ * ] . The total amount of indemnifiable Damages required to be paid by the Seller to the Purchaser Indemnitees under [ * ] is limited to an amount equal to [ * ] , provided that the foregoing limitation shall not apply to Damages arising out of or relating to the [ * ] in the event of fraud, intentional misrepresentation or intentional breach. For clarity, except in the case of Damages arising out of or relating to the [ * ] in the event of fraud, intentional misrepresentation or intentional breach, [ * ] .

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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(c) The Purchaser Indemnitees’ indemnification rights under Section 6.1(a) will terminate and expire, and will cease to be of any force or effect, on the [ * ] , and any and all liabilities of the Seller with respect thereto will thereupon be extinguished; provided , however , that if, prior to the [ * ] , the Purchaser shall have duly delivered to the Seller, in conformity with all of the applicable procedures set forth in Section 6.3(a), a Claim Notice setting forth a claim for indemnification under Section 6.1(a), then the specific claim set forth in such Claim Notice will survive the [ * ] . With respect to the Seller’s indemnification obligations under Section 6.1(a), the Seller shall indemnify the Purchaser for [ * ] (the “ Initial Threshold ”). Thereafter, the Seller’s indemnification obligations under Section 6.1(a) shall be [ * ] incurred by or imposed upon any of the Purchaser Indemnitees in excess of the Initial Threshold. Notwithstanding anything to the contrary in this Agreement, the total amount of indemnifiable Damages required to be paid by Seller to the Purchaser Indemnitees under Section 6.1(a) is limited to an amount equal to [ * ] . For clarity, [ * ] .

(d) An Indemnified Party seeking indemnification from the Indemnifying Party shall specify in the Claim Notice the cause under which it seeks indemnification so that the Parties can determine the applicable limitation under this Section 6.3, if any, on the Indemnifying Party’s obligations with respect to such indemnification. In no event shall the Indemnified Party be entitled, with respect to a particular indemnification-triggering event, to indemnification from the Indemnifying Party for multiple causes to which different limitations apply. In addition, the Purchaser Indemnitees shall not be entitled to indemnification pursuant to Section 6.1(b) with respect to any Claim brought by [ * ] or any of its licensees with respect to infringement or alleged infringement of [ * ].

(e) The total amount of all indemnifiable Damages required to be paid by the Purchaser under Section 6.2 with respect to [ * ] is limited to an amount equal to [ * ] , provided that the foregoing limitation shall not apply to Damages arising out of or relating to the breach of [ * ] in the event of fraud, intentional misrepresentation or intentional breach. For clarity, except in the case of Damages arising out of or relating to any representation or warranty in the event of fraud, intentional misrepresentation or intentional breach, [ * ] . The total amount of indemnifiable Damages required to be paid by the Purchaser to the Seller Indemnitees under Section 6.2 with respect to [ * ] is limited to an amount equal to [ * ] , provided that the foregoing limitation shall not apply to Damages arising out of or relating to [ * ] in the event of fraud, intentional misrepresentation or intentional breach. For clarity, except in the case of Damages arising out of or relating to the breach of any Core Representation or covenant in the event of fraud, intentional misrepresentation or intentional breach, [ * ] .

(f) No current or former individual, director, officer or employee of an Indemnifying Party shall have any personal or individual liability of any nature to the Indemnified Party.

[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .

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(g) Without limiting the effect of any other limitation set forth in this Section 6.3, for purposes of this Agreement, no representation or warranty of the Indemnifying Party shall be deemed to have been breached if the Indemnified Party had knowledge, on or prior to the Effective Date, of the inaccuracy in or breach of such representation or warranty or of any facts or circumstances constituting or resulting in an inaccuracy in or breach of such representation or warranty.

(h) The amount of any Damages for which indemnification is provided under this Section 6 shall be calculated net of any actual Tax benefit received by the Indemnified Party or any Affiliate of the Indemnified Party in connection with such Damages or any of the events or circumstances giving rise or otherwise related to such Damages. If the Indemnified Party or any Affiliate of the Indemnified Party actually receives a Tax benefit after an indemnification payment is made, the Indemnified Party shall promptly pay the amount of such Tax benefit to the Indemnifying Party at such time or times as and to the extent that such Tax benefit is realized, but only to the extent of the aggregate related indemnification payments made to the Indemnified Party by the Indemnifying Party.

(i) To the extent the Indemnifying Party makes or is required to pay Damages to the Indemnified Party under this Section 6, the Indemnifying Party will be entitled to exercise,