FIRST AMENDMENT TO
LICENSE, SUPPLY AND R&D AGREEMENT
This First Amendment to License,
Supply and R&D Agreement (this “ Amendment
”) is entered into as of May 29, 2009 (the “
Effective Date ”), by and among LANDEC CORPORATION, a
corporation organized and existing under the laws of the state of
Delaware (“ Landec Corporation ”), LANDEC AG,
INC., a corporation organized and existing under the laws of the
state of Delaware and a wholly-owned, direct subsidiary of Landec
Corporation (“ Landec Ag ,” and together with
Landec Corporation, “ Landec ”), and MONSANTO
COMPANY, a corporation organized and existing under the laws of the
state of Delaware (together with its Affiliates referred to herein
as “ Monsanto ”). Landec Corporation, Landec Ag
and Monsanto may each be referred to herein individually as a
“ Party ” and collectively as the “
Parties .”
Background
(a) The Parties entered into a
License, Supply and R&D Agreement dated December 1, 2006
(the “Original Agreement”), pursuant to which, among
other things, (i) Landec granted to Monsanto a license to
certain Licensed Technology referred to therein and
(ii) Landec granted to Monsanto the option to purchase 100% of
the equity of Landec Ag (the “ Buy-Out Option ”)
on the terms set forth therein.
(b) The Parties wish to modify
the terms of the Buy-Out Option and to make certain other
amendments to the Original Agreement.
(c) Capitalized terms used
herein, not otherwise defined, have the meanings given them in the
Original Agreement.
In consideration of the mutual
promises and covenants set forth below and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
Agreement
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1.
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Amendments to the Original
Agreement.
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1.1.
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Amendment to Section 3.2.
Section 3.2 of the Original Agreement is hereby amended to
read in its entirety as follows:
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“Buy-Out Option. At any
time during the period starting on the Effective Date and ending on
the fifth anniversary of the Effective Date, Monsanto has the
option to purchase one-hundred percent (100%) of the equity of
Landec Ag (the “ Buy-Out Option ”) by paying a
fee (the “ Buy-Out Fee ”) of eight million dollars
($8,000,000) to Landec Corporation; provided, that the
Buy-Out Fee shall be increased to ten million dollars ($10,000,000)
if, at the time of the closing of the purchase, the exercise of the
Buy-Out Option will be treated as an acquisition of assets for
U.S
