CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR
PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL
TREATMENT IS REQUESTED ARE DENOTED BY “[*]”.
CONFIDENTIAL INFORMATION OMITTED HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.2
FIRST AMENDMENT OF THE LICENSE
AND SUPPLY AGREEMENT BY AND BETWEEN
BASF AKTIENGESELLSCHAFT AND AMVAC
CHEMICAL CORPORATION
BASF Aktiengesellschaft (“ BASF
”) and AMVAC Chemical Corporation (“ AMVAC
”) entered into the above-referenced License and Supply
Agreement (the “ LSA ”) effective as of the last
date on which this first amendment (the “ First
Amendment ”) is fully executed. Capitalized terms used
but not defined herein are defined in the LSA.
BASF and AMVAC (each, a “ Party
” and collectively, the “ Parties ”) now
desire to amend Sections 1.23, 1.40, 5.4(A)(i), 5.4(B), and 7.1(A)
as well as Article XII of, and to add a new Section 5.4(D) to, the
LSA via this First Amendment as follows:
1. The Parties agree that Section 1.23 of the
LSA is hereby deleted in its entirety and replaced with the
following:
1.23 “Effective
Date” means the
last date on which this Agreement is fully executed.
2. The Parties agree that Section 1.40 of the
LSA is hereby deleted in its entirety and replaced with the
following:
1.40 [
INTENTIONALLY OMITTED
]
3. The Parties agree that Section 5.4(A)(i) of
the LSA is hereby deleted in its entirety and replaced with the
following:
5.4 Forecasts and
Ordering.
A.
Registration/Commercialization is Expected by
[*].
(i)
[*] Contract Year During Which
Commercialization is Expected to Occur . AMVAC expects
to obtain an Initial Registration and to commence Commercialization
by [*]. Accordingly, but subject to the provisions of Section
5.4(D), AMVAC shall undertake the following:
(a) AMVAC shall place
its [*] order for
[*] of Compound TGAI on the Effective Date and specify in such
order the desired delivery date (in accordance with the provisions
of subsection (b) immediately following) and US port of entry;
and
(b) If BASF does not take
delivery of any Compound TGAI and/or Products for sale outside the
Territory, then AMVAC shall take delivery, in accordance with the
provisions of Section 5.10, of [*] of Compound TGAI to which the immediately
preceding subsection (a) refers no later than [*] and the
remaining [*] of such Compound TGAI no later tha n [*]
; provided , however , that AMVAC shall have the
right under this Section 5.4(A)(i)(b) to postpone the delivery date
of such Compound TGAI up to [*], and, if such right to
postpone is invoked, AMVAC agrees that it shall reimburse BASF
for [*] costs, as well as the [*] for Inventory (as
hereinafter defined), that BASF incurs with respect to such
Compound TGAI for the duration of any such postponement period. As
used herein and hereafter in this Agreement, “[*] for
Inventory” means that amount equal to [*].
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4. The Parties agree that Sections 5.4(B)(i) of
the LSA is hereby deleted in its entirety and replaced with the
following:
(i)
[*] Contract Year
During Which Commercialization is Expected to Occur . If
AMVAC expects to obtain an Initial Registration and to commence
Commercialization after [*], then for the [*] Contract Year during
which Commercialization is expected to occur AMVAC
shall:
(a) submit its [*] forecast for
Products to BASF no later than [*] (or such other mutually agreed
date);
(b) place its [*] order for Compound
TGAI and/or Products no later than [*] (or such other mutually
agreed date), which firm order shall be [*] of the aforesaid [*]
forecast and wherein the desired delivery date and US port of entry
are specified; and
(c) take delivery, in accordance
with the provisions of Section 5.10, of Compound TGAI and/or
Products during a mutually agreed date.
5. The Parties agree to add the following as
Section 5.4(D) to the LSA:
D. AMVAC’s Options with
respect to its Requirements for the [*] Contract Year During Which
Commercialization is Expected to Occur and Applicable Agreement
Provisions .
(i) AMVAC Does Not Exercise
either Option under Section 5.4(D)(ii)
. For the avoidance of doubt, the
Parties acknowledge and agree that it AMVAC does not exercise
either option under Section 5.4(D)(ii), the provisions of Section
5.4(A)(iii) shall remain in full force and effect and the
provisions of Section 5.4(A)(ii) and 5.4(B) shall be deemed
inapplicable.
(ii) AMVAC’s Options re:
its Requirements for the [*] Contract Year During Which
Commercialization is Expected to Occur . AMVAC shall have
the right, but not the obligation, to exercise either the options
set forth in subsection (a) of this Section 5.4(D)(ii) or the
option set forth in subsection (b) of this Section 5.4(D)(ii),
subject to the provisos contained in each such
subsection:
(a) Cancellation . For the
period commencing [*],
AMVAC shall have the right, but not the obligation, to cancel
the order placed by it pursuant to its obligations under Section
5.4(A)(i)(a) provided that:
(I) if AMVAC cancels such order
and does not reinstate such order by [*] , and if BASF does not take delivery of
any Compound TGAI or Product for sale outside the Territory,
then:
(1) AMVAC shall (A) not have the
right to exercise the option set forth in subsection (b) of this
Section 5.4(D)(ii) and (B) reimburse BASF, no later than
[*] , for [*] of the
manufacturing costs incurred by BASF with respect to Compound TGAI,
up to a maximum amount of [*] (the “Reimbursement
Amount” ) and;
(2) the provisions of Section
5.4(B) shall remain in full force and effect and the provisions of
Sections 5.4(A)(ii) and (iii) shall be deemed inapplicable;
OR
Page 2 of 6
(II) if AMVAC cancels such order
but reinstates such cancelled order on or before
[*] and requests delivery of at
least [*] of Compound TGAI during [*] or such other
mutually agreed date, and delivery of the balance of such order on
or before [*] , then:
(1) AMVAC shall not have the
right to exercise the option set forth in subsection (b) of this
Section 5.4(D)(ii);
(2) The Parties acknowledge and
agree that if AMVAC cancels and thereafter reinstates its order for
Compound TGAI, BASF’s [*] may be [*] to supply the Compound
T
