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RESEARCH COLLABORATION AGREEMENT

Research and Development Agreement
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Diversa Corporation | Syngenta International AG | Syngenta Participations AG | Syngenta's Affiliate

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Title: RESEARCH COLLABORATION AGREEMENT
Governing Law: New York     Date: 1/6/2003
Industry: BIOTRX     Law Firm: Cooley Godward     Sector: HEALTH

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Research Collaboration Agreement
***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. §§ 200.80(b)(4),
200.83 and 240.24b-2
 
Exhibit 10.46
 
AMENDED AND RESTATED RESEARCH COLLABORATION AGREEMENT
 
BETWEEN
 
DIVERSA CORPORATION
 
AND
 
SYNGENTA PARTICIPATIONS AG
 
January 3, 2003

 
TABLE OF CONTENTS
 
         
Page
1
   
Definitions
   
2
2
   
Research Program
   
10
    
2.1 Research
   
10
    
2.2 Projects and Project Research
   
11
    
2.3 Directed Research
   
19
    
2.4 Research Plan
   
19
    
2.5 Staffing Level
   
21
    
2.6 Research Funding
   
21
    
2.7 Use of Materials and Syngenta Proprietary Technology
   
25
3
   
Research Committee
   
26
    
3.1 Representatives
   
26
    
3.2 Responsibilities
   
26
    
3.3 Decision Making
   
27
    
3.4 Meetings
   
28
    
3.5 Records and Reports
   
28
4
   
Exclusivity and Other Covenants
   
29
    
4.1 Diversa Exclusivity Obligations
   
29
    
4.2 Mutual Exclusivity Obligations
   
32
    
4.3 Diversa Third Party Projects
   
33
    
4.4 Syngenta Agreement
   
33
5
   
Research Milestone Payments
   
35
    
5.1 Project Milestones
   
35
    
5.2 Milestone Payments
   
36
6
   
Royalties
   
36
    
6.1 Royalty Rate
   
36
    
6.2 Cumulative Royalty
   
37
    
6.3 Net Revenue Adjustment
   
37
    
6.4 Non-Cash Revenue
   
37
    
6.5 Duration of Royalties
   
38
    
6.6 Third Party Royalties
   
38
    
6.7 Withholding Taxes
   
39
7
   
Books and Records
   
39
    
7.1 Reports and Payments
   
39
    
7.2 Payment Method; Late Payments
   
40
    
7.3 Currency Conversion
   
40
    
7.4 Restrictions on Payment
   
40
    
7.5 Records; Inspection
   
40

 
8
   
Intellectual Property
   
41
    
8.1   Ownership of Existing Intellectual Property and Improvements
   
41
    
8.2   Ownership of New Intellectual Property and Research Results
   
41
    
8.3   Ownership Dispute
   
42
    
8.4   License of Platform Technology and Biomolecules
   
43
    
8.5   Research License
   
45
    
8.6   Filing of Patents
   
45
    
8.7   Patent Enforcement
   
46
    
8.8   Third Party Infringement
   
47
    
8.9   No Unauthorized Use
   
48
    
8.10  No Implied Licenses
   
48
9
   
Representations and Warranties
   
48
    
9.1    Legal Authority
   
48
    
9.2   No Conflicts
   
48
    
9.3   Disclaimer of Warranties
   
49
10
   
Confidentiality
   
49
    
10.1  Confidential Information
   
49
    
10.2  Permitted Disclosures
   
50
    
10.3  Publicity
   
51
    
10.4  Publication
   
51
11
   
Indemnification
   
52
    
11.1  Syngenta
   
52
    
11.2  Diversa
   
52
    
11.3  Procedure
   
53
12
   
Term and Termination
   
53
    
12.1  Term and Termination of Research Program
   
53
    
12.2  Term and Termination of Agreement
   
54
    
12.3  Termination for Material Breach
   
54
    
12.4  Termination for Bankruptcy
   
55
    
12.5  Termination for Change in Control of Diversa
   
55
    
12.6  Effect of Termination
   
56
    
12.7  Survival
   
56
    
12.8  Rights in Bankruptcy
   
56
13
   
Dispute Resolution
   
57
    
13.1  Acknowledgement
   
57
    
13.2  Consultation
   
57
    
13.3  Arbitration
   
57
14
   
Miscellaneous
   
60
    
14.1  Governing Law
   
60
    
14.2  Waiver
   
60
    
14.3  Assignment
   
60
    
14.4  Notices
   
61

ii

 
14.5  
   
Force Majeure
   
62
14.6  
   
Independent Contractors
   
63
14.7  
   
Advice of Counsel
   
63
14.8  
   
Severability
   
63
14.9  
   
Compliance with Laws
   
63
14.10
   
Entire Agreement
   
63
14.11
   
Headings
   
63
14.12
   
Binding Effect
   
64
14.13
   
Counterparts
   
64
Exhibit A - Platform Technology Patent Applications
     
Exhibit B - Project List as of Effective Date
     
Exhibit C - Patent Strategy Cooperation Procedures
     

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AMENDED AND RESTATED RESEARCH COLLABORATION AGREEMENT
 
This AMENDED AND RESTATED RESEARCH COLLABORATION AGREEMENT (the “Agreement”), entered into as of January 3, 2003 and effective as of the closing of the transactions contemplated by the Transaction Agreement (as defined below) (the “Effective Date”), is made by and between Syngenta Participations AG, a corporation organized under the laws of Switzerland, with offices at CH-4002, Basel, Switzerland (“Syngenta”), and Diversa Corporation, a Delaware corporation, with offices at 4955 Directors Place, San Diego, California, 92121-1609 (“Diversa”).
 
BACKGROUND
 
A.    WHEREAS Diversa has a business based on gene diversity, gene enhancement, and chemical, industrial, agricultural and pharmaceutical applications and desires to become more focused on pharmaceutical applications, while continuing to exploit its research, chemical and industrial business opportunities;
 
B.    WHEREAS Syngenta and its Affiliates (as defined herein) have a business engaged primarily in the discovery, development, and commercialization of agricultural chemicals, plant traits, seeds, and products for the food, feed and natural fiber markets, and has certain technology and expertise related to functional genomics and systems biology incorporating gene sequencing, proteomics, metabolomics, RNA dynamics, the ability to analyze and interpret these systems, and bioinformatics software;
 
C.    WHEREAS Diversa has entered into an agreement to acquire certain assets of Syngenta’s Affiliate Torrey Mesa Research Institute (“TMRI”) and to enter into a license agreement with Syngenta to use certain technology for the purposes set forth therein in exchange for shares of Diversa common stock and a warrant to acquire additional shares of Diversa common stock to be issued to Syngenta or its designee;
 
D.    WHEREAS (i) Syngenta and Diversa have entered into the Research Collaboration Agreement dated as of December 3, 2002 (as amended, the “Existing Agreement”) in order to collaborate in the Syngenta Exclusive Field (as defined herein) to discover and develop new Biomolecules and Products (as such terms are defined herein) based on such Biomolecules utilizing the technology licensed by Syngenta to Diversa as well as Diversa’s technology and expertise and (ii) Syngenta and Diversa wish to replace the Existing Agreement with this Agreement.
 
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the Parties hereby agree as follows:

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1.    DEFINITIONS
 
The following capitalized terms shall have the meanings indicated for purposes of this Agreement:
 
1.1    “Affiliate” means any corporation, firm, limited liability company, partnership or other entity that directly or indirectly controls or is controlled by or is under common control with a Party to this Agreement. As used in this definition, control means ownership, directly or through one or more Affiliates, of more than fifty percent (50%) of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or more than fifty percent (50%) of the equity interests in the case of any other type of legal entity, status as a general partner in any partnership, or any other arrangement whereby a Party controls or has the right to control the Board of Directors or equivalent governing body of a corporation or other entity, or if such level of ownership or control is prohibited in any country, any entity owning or controlling at the maximum control or ownership right permitted in the country where such entity exists.
 
1.2    “Animal Feed Field” means the use of Biomolecules for feed applications to alter, modify or improve feed conversion and/or animal nutrition, but excluding all vaccines and therapeutic applications and any part of such field to which rights have been granted to Zymetrics or Syngenta or any of its Affiliates under the Zymetrics Agreements.
 
1.3    “Biomolecule” means any Gene and RNA and protein or chemical entity the synthesis of which is directed by such Gene or Gene pathway, which protein or chemical entity was produced by an organism.
 
1.4    “Change in Control” means any of the following transactions: (a) a merger, reorganization, restructuring, or consolidation of Diversa which results in the holders of the voting securities of Diversa outstanding immediately prior thereto ceasing to hold at least […***…] of the combined voting power of the surviving entity or its parent immediately after such merger, reorganization, or consolidation; (b) the sale or transfer which is effectively a sale of all or substantially all of the assets of Diversa; or (c) any one person (other than Diversa, any trustee or other fiduciary holding securities under an employee benefit plan of Diversa, or any corporation owned directly or indirectly by the stockholders of Diversa, in substantially the same proportion as their ownership of stock of Diversa), together with any such person’s “affiliates” or “associates”, as such terms are used in the Securities Exchange Act of 1934, as amended, becoming the beneficial owner of […***…] of the combined voting power of the outstanding securities of Diversa or by contract or otherwise having the

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right to control the Board of Directors or equivalent governing body of Diversa or the ability to cause the direction of management of Diversa.
 
1.5      “CPI” or “Consumer Price Index” means the Consumer Price Index, All Urban Consumers, as published by the U.S. Bureau of Labor Statistics.
 
1.6      “Control”, “Controls”, or “Controlled” means possession of the ability to grant the licenses or sublicenses as provided for herein (other than by virtue of any license granted pursuant to this Agreement or the License Agreement) without violating the terms of any agreement or other arrangement with any Third Party.
 
1.7      “Core Country” means each of the United States, Canada, Japan, and any country in the European Union for which patent protection can be obtained through the European Patent Office.
 
1.8      “Crop” means any cultivated Plant.
 
1.09    “Directed Research” means the research activities which: (i) are funded by Syngenta pursuant to this Agreement, and (ii) are not intended to result in a product, per se.
 
1.10    “Diversa Commitments” means those contractual obligations to Third Parties entered into by Diversa, certain other Diversa projects involving Third Parties under the terms negotiated or agreed, which projects were committed to by Diversa or under substantially advanced negotiations with the Third Parties, and Diversa’s internally funded activities (other than its internally funded projects related to […***…]), in each case as of October 25, 2002, which Diversa has disclosed to Syngenta in writing prior to the date of the Transaction Agreement together with the Permitted Amendments.
 
1.11    “Diversa Materials” means all Materials Controlled by Diversa which Diversa makes available for use in the Research Program.
 
1.12    “Diversa Product” means any product sold or licensed, or being developed for sale or license, by Diversa or its Affiliates or Sublicensees which is generated pursuant to Section 2.2(j)(iv) herein for use outside the Syngenta Exclusive Field.
 
1.13    “Diversa Proprietary Genes” means Genes which are or were discovered or owned by Diversa, and the discovery of which was not funded, in whole or in

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part, by a Third Party, directly or indirectly, and are not discovered or identified under the Research Program.
 
1.14    “Fermentation” means a microbial fermentation process.
 
1.15    “FTE” means a full time scientist who is an employee or consultant of Diversa (or in the case of less than a full-time dedicated scientist, a full-time, equivalent scientist year), dedicated to research under the Research Program consisting of an average of […***…] person-hours per year and who are educated to Ph.D., MS or BS level (or otherwise appropriately trained) in an appropriate discipline.
 
1.16    “GAAP” means generally accepted accounting principles, as applied in the United States.
 
1.17    “Gene” means a polynucleotide sequence which can be transcribed into RNA and generally encodes a protein, optionally together with its regulatory sequences.
 
1.18    “Know-How” means all proprietary ideas, inventions, data, instructions, processes, trade secrets, devices, methods, formulae, Materials, protocols and marketing and other information, including improvements thereon, whether or not patentable, including, without limitation, biological, chemical, toxicological, physical and analytical, safety, manufacturing and quality control data and information, which are not publicly available and not covered by Patent Rights, but which are necessary or useful for the commercial exploitation of the Patent Rights or the conduct of the Projects or otherwise relate to Biomolecules or Products, and are Controlled by a Party or its Affiliate as of the Effective Date or thereafter if based on or derived from information or inventions generated in the course of the Research Program.
 
1.19    “License Agreement” means that certain Intellectual Property Rights License Agreement of even date herewith entered into between Diversa and Syngenta in conjunction with this Agreement.

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1.20    “Materials” means any chemical or biological substances, including, without limitation, any: (i) organic or inorganic chemical element or compound; (ii) Gene or genetic material, including any genetic control element (e.g., promoters); (iii) Biomolecule; (iv) vector or construct, plasmid, phage or virus; (v) host organism, including bacteria and Plant cells; (vi) eukaryotic or prokaryotic cell line or expression system; (vii) protein, including any peptide or amino acid sequence, enzyme, antibody or protein conferring targeting properties and any fragment of a protein or peptide or enzyme; or (viii) assay or reagent.
 
1.21    “Net Revenue” means Revenue, less the following amounts with respect to the applicable Product, to the extent not previously deducted: trade and quantity discounts and returns and […***…] actually granted to purchasers or licensees, and less taxes withheld (excluding income tax), customs and freight charges, and calculated using the applicable Party’s standard accounting procedures in accordance with GAAP, as consistently applied by such Party.
 
1.22    “Party” means Syngenta or Diversa, as applicable, and the “Parties” means Syngenta and Diversa.
 
1.23    “Patent Rights” means any United States or foreign patent or patent application, and any division, continuation, continuation-in-part, reissue, reexamination, extension or other governmental action that extends the subject matter of such patent or patent application, substitution, confirmation, registration or revalidation of the foregoing, in each case, that claims a Biomolecule or a Product or a method or process for the manufacture or use thereof and that is Controlled by Syngenta or Diversa or their respective Affiliates, or jointly by Syngenta and Diversa as of the Effective Date or thereafter for inventions made in the course of the Research Program.
 
1.24    “Permitted Amendments” means any modification or amendment to any Diversa Commitment or Syngenta Commitment, as the case may be, that would not […***…] as disclosed by Diversa to Syngenta, in the case of Diversa Commitments, and as disclosed by Syngenta to Diversa, in the case of Syngenta Commitments, in writing prior to the date of the Transaction Agreement in a manner that would […***…] under this Agreement.
 
1.25    “Plant” means a […***…] plant, or an […***…].

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1.26    “Plant Gene” means a Gene which is native to a Plant.
 
1.27    “Platform Technology” means all tools, technologies and methods relating to proteomics, metabolomics, RNA dynamics and bioinformatics and methods to analyze and link these components of genomics, which are both (i) not publicly available and are proprietary to or Controlled by Syngenta or its Affiliates immediately prior to the closing of the transactions under the Transaction Agreement, and (ii) claimed or disclosed within the patent applications and patents listed on Exhibit A or are within the scope of the material trade secrets related thereto, a written description of such material trade secrets having been previously provided by Syngenta to Diversa.
 
1.28    “Platform Technology Improvement” means any enhancement or improvement to the Platform Technology, whether or not patentable, made, conceived or reduced to practice solely by any employee or consultant of Syngenta, solely by any employee or consultant of Diversa or jointly by any employee or consultant of Syngenta and any employee or consultant of Diversa, and all Patent Rights and Know-How that claim, disclose or cover such enhancement or improvement.
 
1.29    “Preferred Supplier Period” means the period commencing on the Effective Date and continuing for that portion of the […***…].
 
1.30    “Product” means a Diversa Product or a Syngenta Product, as applicable.
 
1.31    “Program Materials” means all Materials which are developed or made, or the utility of which is determined or discovered, pursuant to the Research Program, excluding Diversa Materials and Syngenta Materials.
 
1.32    “Program Technology” means all Research Results and Program Materials, and Patent Rights and Know-How claiming, disclosing or covering such Research Results or Program Materials but excluding either Party’s proprietary technology and improvements and intellectual property rights therein which are retained by such Party under Section 8.1.
 
1.33    “Project” means each specific project in the Syngenta Exclusive Field undertaken, or initially undertaken, in the Research Program as set forth in Section 2.2, which are described in Exhibit B, as may be updated from time to time as provided in this Agreement, including without limitation the active Projects and the Reserved Projects and

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the new protein therapeutic projects undertaken in accordance with, and subject to the terms of, Section 2.2(c).
 
1.34    “Project List” means those Projects which are described in Exhibit B hereto as may be updated from time to time as provided in this Agreement.
 
1.35    “Project Plan” has the meaning set forth in Section 2.2(a).
 
1.36    “Project Research” means those research and development activities conducted pursuant to the Research Program with respect to Projects.
 
1.37    “Research Committee” shall have the meaning set forth in Section 3.1(a).
 
1.38    “Research Plan” means a written plan describing the activities to be carried out during each Year of the Research Term, as modified from time to time by the Parties pursuant to this Agreement.
 
1.39    “Research Program” means the research and development program to be conducted pursuant to Section 2 and as described in the applicable Research Plan.
 
1.40    “Research Results” means all data and results arising out of the Research Program.
 
1.41    “Research Term” shall have the meaning set forth in Section 12.1.
 
1.42    “Reserved Projects” shall have the meaning set forth in Section 2.2(a).
 
1.43    “Revenue” means all gross sales invoiced, or other consideration or value and payments received, by a Party and its Affiliates in each case, for the use or sale of any Syngenta Product or Diversa Product as the case may be, including, without limitation, […***…] Syngenta Products or Diversa Products, as applicable. Revenue shall be calculated using the Party’s standard accounting procedures in accordance with GAAP, as consistently applied by the Party. All sales or licenses of Products between a Party and any of its Affiliates shall be […***…]; provided that if such […***…] the following shall apply: If the Affiliate  […***…], and […***…], then the gross sales invoiced, or other consideration or value and payments received, […***…] shall be used to determine Revenue, and all […***…]

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[…***…]. If the Affiliate […***…], and […***…], then […***…] which shall be used as the […***…], and the […***…]; provided that if the […***…], then the […***…] and all […***…]. The calculation of Revenue shall be subject to the provisions of Sections 6.3 and 6.4.
 
1.44    “Sublicensee” means (i) with respect to Syngenta, a Third Party which receives from Syngenta or its Affiliate a license or sublicense, and (ii) with respect to Diversa, a Third Party which receives from Diversa or its Affiliate a license or sublicense.
 
1.45    “Syngenta Commitments” means those contractual obligations to Third Parties entered into by Syngenta or its Affiliates and certain other draft agreements or projects of Syngenta or its Affiliates involving Third Parties under the terms negotiated or agreed under substantially advanced negotiations with Third Parties as of October 25, 2002, which Syngenta has disclosed to Diversa in writing prior to the date of the Transaction Agreement together with the Permitted Amendments.
 
1.46    “Syngenta Exclusive Field” means
 
(a)    any Biomolecule with Plants as the expression host;
 
(b)    any Plant Gene;
 
(c)    any Biomolecule for admixture to the product of any physical or chemical processing of Crops or derivatives of Crops provided that the product contains Plant material unique to Plants;
 
(d)    any Biomolecule for any industrial application involving Crops or the close derivatives of Crops, but excluding inert or minor ingredients from or derived from a Plant source which do not materially add value to an end product of an industrial manufacturing process;
 
(e)    any Biomolecule useful for Syngenta’s actual or potential customers in the agriculture, food and/or natural fibers markets involving the use of Crops, or the use of close derivatives of Crops (including all uses of corn, wheat, barley, rice, cotton and soy, and other oil Crops and their close derivatives), but excluding inert or minor

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ingredients from or derived from a Plant source which do not materially add value to an end product of an industrial manufacturing process;
 
(f)    any Biomolecule with commercial value, alone or in combination with other Biomolecules, for use in the Animal Feed Field; and
 
(g)    any Project described in the Project List including those not covered under Section 1.46(a)-(f) and including the new protein therapeutic projects undertaken in accordance with, and subject to the terms of, Section 2.2(c).
 
1.47    “Syngenta Materials” means all Materials Controlled by Syngenta or its Affiliates which Syngenta or any of its Affiliates provides to Diversa for use in the Research Program; for clarification, Syngenta Materials shall exclude all Materials, if any, included in the Purchased Assets under the Transaction Agreement.
 
1.48    “Syngenta Product” means any product sold or licensed, or being developed for sale or license, by Syngenta or its Affiliates or Sublicensees which consists of, incorporates, or is made through the use of a Biomolecule that is discovered, identified or developed, or the utility of which is discovered or identified, in the course of the Research Program or using Program Technology. Syngenta Products do not include any product that is discovered, identified or developed, or the utility of which is discovered or identified, using Syngenta Proprietary Technology outside the course of the Research Program without the use of any Program Technology.
 
1.49    “Syngenta Proprietary Technology” means all technology Controlled by Syngenta or its Affiliates immediately after the Effective Date, or thereafter independently of the Research Program, and which Syngenta uses or makes available for the conduct of the Research Program or the design, development, testing, use, manufacture or sale of Syngenta Products, including all such United States and foreign patents and patent applications (including, without limitation, all reissues, extensions, substitutions, confirmations, registrations, revalidations, additions, continuations, continuations-in-part, and divisions thereof) and other proprietary information, data and know-how. Syngenta Proprietary Technology includes the “TMRI Intellectual Property Rights” (as defined in the License Agreement), if and only to the extent that Syngenta determines that such TMRI Intellectual Property Rights should be used in the Research Program and grants Diversa a license to use such TMRI Intellectual Property Rights in the Syngenta Exclusive Field under the terms and conditions set forth in Section 8.5 hereof. Syngenta Proprietary Technology excludes all TMRI Intellectual Property Rights which are licensed to Diversa by Syngenta under the License Agreement, including without limitation the Platform Technology licensed thereunder, and the Platform Technology Improvements.

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1.50    “Third Party” means any party other than Syngenta, Diversa or an Affiliate of either of them.
 
1.51    “TMRI Corp.” means Torrey Mesa Research Institute, a Delaware corporation.
 
1.52    “Transaction Agreement” means that certain Transaction Document, dated of even date herewith, entered by TMRI Corp., Diversa and Syngenta, as may be amended in accordance with its terms.
 
1.53    “Transgenics” means Plants whose genome contains nucleotide(s) sequence(s) inserted using molecular biology techniques.
 
1.54    “Year” means any consecutive 12 month calendar year period.
 
1.55    “Zymetrics” means Zymetrics, Inc.
 
1.56    “Zymetrics Agreements” means the Research and Development Agreement between Diversa and Zymetrics, dated December 1, 1999, as may be amended or extended in accordance with its terms, and the Joint Venture Agreement between Diversa and Syngenta Seeds AG, dated December 1, 1999, as may be amended or extended in accordance with its terms.
 
2.    RESEARCH PROGRAM
 
2.1    Research.  Diversa will diligently conduct research and development activities pursuant to the Research Plan as set forth herein with the primary objective of conducting Project Research to identify and develop Syngenta Products in the Syngenta Exclusive Field and of conducting Directed Research for Syngenta.

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2.2    Projects and Project Research.
 
(a)    Diversa will diligently conduct Project Research as specified in the Research Plan. Diversa shall conduct the Research Program in a professional manner and shall use commercially reasonable efforts to meet the time schedules contemplated in the Research Plan. The activities conducted in connection with the Research Program will be overseen and administered by the Research Committee as provided in Sections 2 and 3. The Project List includes both Projects which are expected to be undertaken initially and those which could be undertaken when the initial group of Projects are completed and/or abandoned as provided herein (the “Reserved Projects”). Each Project at its initiation shall include a plan that covers the objectives (including definition of Product or product concept), targets, the estimated resources including estimated FTEs, overall timetable, the Milestones applicable to the Project (as defined in Section 5.1, subject to Section 2.2(c) with respect to the Milestones and payments related thereto with respect to certain new protein therapeutic projects) and other applicable criteria related to achievement of Milestones in accordance with Section 5.1 (subject to Section 2.2(c) with respect to certain new protein therapeutic projects), and other matters as may be determined by the Research Committee, as may be amended in accordance with the terms of this Agreement (the “Project Plan”).
 
(b)    The Research Committee shall review the Project List including the Reserved Projects from time to time and make recommendations to Syngenta of changes to the list to add, terminate, transfer outside the Research Program, modify, reorder the priority of, or substitute Projects, including the Reserved Projects, as necessary or advisable in their reasonable judgment; provided that any new Project or modification to a Project must be within the scope of Section 1.46(a)-(f), unless otherwise agreed by the Parties in writing. Both Diversa and Syngenta may propose Projects for consideration for inclusion on the Project List and for making a Reserved Project an active Project. Diversa and Syngenta agree that Projects may include […***…] projects in each case as may be mutually agreed. By […***…], the Parties will agree in good faith […***…]; if they mutually agree in writing […***…].
 
(c)    (i) During the Research Term, at Syngenta’s request, Diversa shall be required to undertake Projects under this Agreement which are new protein therapeutic projects utilizing Plant expression (over and above the Projects on the Project

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List as of the Effective Date); provided that Diversa shall have no obligation to undertake a particular new protein therapeutic project if at the time of the request to undertake a particular new protein therapeutic project, […***…], or […***…]. The Parties agree to commence a new protein therapeutic project which is an antibody project or which optimizes an existing antibody in Year one of the Research Term. Notwithstanding any other provision of this Agreement to the contrary, […***…] provided that […***…]; provided, however that nothing shall prevent Third Parties from manufacturing in Plants. The royalty rate applicable to the Syngenta Products which are developed from such new protein therapeutic projects shall be the […***…] rate as set forth in Section 6.1. For any new protein therapeutic projects, the […***…] shall not […***…], $[…***…], and $[…***…]; provided that the […***…] for both new protein therapeutic projects and existing biopharma projects on the Project List as of the Effective Date shall not […***…] unless otherwise agreed in writing. The Parties may agree in good faith to […***…].
 
(ii)  Notwithstanding anything to the contrary in Section 5.1, the Milestones and Milestone payments under Section 5.1 with respect to the new protein therapeutic projects undertaken in accordance with this Section 2.2(c) shall be based on the following schedule and the criteria set forth below and in the applicable Project Plan:
 
1.    […***…]
 
$[…***…]
 
2.    […***…]
 
$[…***…]

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[…***…]
 
3.    […***…]
 
(a)        […***…]
 
(b)        […***…]
 
(c)        […***…]
 
(d)        […***…]
 
 
Stage
  
[…***…]
[…***…]
  
Milestone Payment
[…***…]
  
[…***…]
  
[…***…]
   
[…***…]
  
[…***…]
   
[…***…]
  
[…***…]
   
[…***…]
  
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*Confidential Treatment Requested

13

 
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