exv10w19






Exhibit 10.19



Pages where confidential treatment has been requested are stamped ‘Confidential Treatment Requested and the
Redacted Material has been separately filed with the Commission,’ and the confidential section has been marked as follows: [***].




LICENSE AGREEMENT FOR NF/GA002




     THIS AGREEMENT is made this 1st day of September 2009 (“Effective Date”), by and between
THE SAMUEL ROBERTS NOBLE FOUNDATION, INC. (“NOBLE”), an Oklahoma nonprofit corporation, and CERES,
INC., a Delaware corporation (“CERES”).



     WHEREAS, NOBLE and UGARF entered into a TESTING AND EVALUATION AGREEMENT, dated 15 May 2006
(“UGARF TESTING AGREEMENT”), that grants NOBLE an exclusive license to test and evaluate
switchgrass varieties NF/GA991, NF/GA992, NF/GA001 and NF/GA002 with an exclusive option to obtain
an exclusive, world-wide license, with the right to sublicense, to produce, use, sell and
commercially exploit the same;



     WHEREAS, NOBLE and UGARF entered into a VARIETY LICENSE AGREEMENT, dated 1 September 2009
(“UGARF NF/GA002 LICENSE”), attached in ANNEX A, that grants NOBLE an exclusive, world-wide
license, with the right to sublicense, to produce, use, sell and commercially exploit NF/GA002
seed;



     WHEREAS, CERES has the ability to assume production of and to commercialize energy crops,
including, switchgrass crops and wishes to produce, use, sell and commercially exploit NF/GA002
seed;



     WHEREAS, CERES and NOBLE entered into an EVALUATION, PRODUCTION AND LICENSE AGREEMENT, dated
19 May 2006, that grants CERES, among other rights, the exclusive, world-wide license to produce,
use, sell and commercially exploit NF/GA002 seed;



     WHEREAS, CERES and NOBLE recognize that the rights intended to be granted hereunder can be a
strong incentive for CERES to risk money and other resources needed to produce, use, sell and
commercially exploit NF/GA002 seed for wide public enjoyment;



     WHEREAS, NOBLE wishes to grant CERES a sublicense to produce, use, sell and commercially
exploit NF/GA002 seed pursuant to its rights under the UGARF NF/GA002 LICENSE;



     NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements
contained herein and of other good and valuable consideration, the parties have agreed and do
hereby agree as follows:



1. DEFINITIONS.




     1.1 “LICENSED VARIETY” means switchgrass variety NF/GA002.



     1.2 “LICENSED TERRITORY” means the United States of America and all other countries of the
world.



     1.3 “LICENSED PRODUCTION TERRITORY” means the United States of America and all other countries
of the world.



 Page 1 of 38 









 




     1.4 “BREEDER SEED” means seed of the LICENSED VARIETY that (a) is identified by NOBLE as being
of a suitable standard of physical and genetic purity to produce FOUNDATION SEED and (b) resulted
from the final breeding of the LICENSED VARIETY.




     1.5 “FOUNDATION SEED” means seed produced from plants grown directly from BREEDER SEED,
cultivated according to certification regulations and that meets the specifications of the official
seed certifying agency of the jurisdiction in which said seed is/was produced.



     1.6 “REGISTERED SEED” means seed produced from plants grown directly from FOUNDATION SEED,
cultivated according to certification regulations and that meets the specifications of the official
seed certifying agency of the jurisdiction in which the seed is/was produced.



     1.7 “CERTIFIED SEED” means seed produced from plants grown directly from FOUNDATION SEED or
REGISTERED SEED, cultivated according to certification regulations and that meets the
specifications of the official seed certifying agency of the jurisdiction in which the seed is/was
produced.



     1.8 “NON-CERTIFIED SEED” means seed produced from plants cultivated according to certification
regulations of the official seed certifying agency of the jurisdiction in which the seed is/was
produced; however, such seed does not meet the specifications of CERTIFIED SEED but may be sold as
a LICENSED VARIETY.



     1.9 “COMMERCIAL SEED” means REGISTERED SEED, CERTIFIED SEED, or NON-CERTIFIED SEED, that is
sold for purposes other than seed production.



     1.10 “INTELLECTUAL PROPERTY RIGHTS” means all rights in any plant variety, patent, plant
breeders rights, registration or equivalent intellectual property protection, or any applications
thereof, for the LICENSED VARIETY, which may be filed in United States of America, or other
jurisdictions, with the exception of TRADEMARKS. INTELLECTUAL PROPERTY RIGHTS, when applied for or
granted, will be set forth in ANNEX B.



     1.11 “TRADEMARK” means any trademark, trade name or logo owned by CERES and intended for use
with a LICENSED VARIETY; provided however, it is recognized that U.S. regulations prohibit the
registration of any plant variety name as a trademark or trade name.



     1.12 “COMMERCIAL NAME” means the complete, preferred name of a LICENSED VARIETY under which
such LICENSED VARIETY will be marketed and sold.



     1.13 “NET SELLING PRICE” means the actual wholesale price for seeds of the LICENSED VARIETY
received by CERES or any AFFILIATED COMPANY from a third party for the sale of such seed, excluding
seed for further seed production, less any (a) customary trade, quantity, or cash discounts; (b)
amounts repaid or credited by reason of rejection or return; (c) any sales, use, tariff, customs
duties, V.A.T. and/or other taxes, duties and similar governmental assessments (except taxes based
on income); and (d) outbound transportation, shipping, packing, costs of insurance in transit paid
by CERES or an AFFILIATED COMPANY; subject in all cases to (a) to (d) being separately charged on
customer invoices or credit notes. Where there is no identifiable sale price or when a LICENSED
VARIETY is sold to other than bona fide, arms length customers of CERES or any AFFILIATED



 Page 2 of 38 









 




COMPANY, CERES or the AFFILIATED COMPANY shall be deemed to have received the NET SELLING
PRICE calculated based only on the final sale of the seed (wholesale level) to an independent third
party, otherwise referred to as net wholesale price payable by dealers. If no such current price is
available, a hypothetical fair market value price will be determined by the parties jointly in good
faith for the purpose of calculating NET SELLING PRICE.




     1.14 “LICENSE INCOME” means the gross amount actually received by either CERES or any
AFFILIATED COMPANY in consideration for the grant of SUBLICENSES (defined below) to SUBLICENSEES
(defined below) that are not AFFILIATED COMPANIES to produce and sell seed of the LICENSED VARIETY,
including up-front fees, lump sum payments and any running royalties on a product-by-product and
jurisdiction-by-jurisdiction basis, without deduction of any kind.



     1.15 “AFFILIATED COMPANY” means any company owned or controlled by, under common control with
or controlling CERES, “control” meaning in this context the direct or indirect ownership of fifty
percent (50%) or more of the voting stock/shares of a company, or the power to nominate at least
half of the directors.



     1.16 “SUBLICENSE” means any sublicense granted (a) by CERES to an AFFILIATED COMPANY or (b) by
CERES or an AFFILIATED COMPANY to any third party (“SUBLICENSEE”), as authorized by this Agreement,
to produce and sell a LICENSED VARIETY (or LICENSED VARIETY).



     1.17 “MARKETING PLAN” means a detailed written plan for production, distribution, selling and
promotion of the LICENSED VARIETY prepared by or on behalf of CERES and submitted to NOBLE. A
MARKETING PLAN will be non-binding, i.e., the performance of CERES (through CERES and/or any
SUBLICENSEE) shall not be compared by forecasts and/or projections therein and such forecasts
and/or projections are merely advisory. The MARKETING PLAN shall include at least the information
outlined in ANNEX C. Actual, adopted MARKETING PLANS shall be attached as further annexes
to this Agreement.



2. GRANT OF LICENSE.




     2.1 Subject to CERES’ compliance with the obligations of this Agreement and the reservations
of Paragraph 2.2, NOBLE hereby grants CERES an exclusive sublicense to:




	 	(a)	 	Access to BREEDER SEED, whether produced by NOBLE or CERES; and
	 
	 	(b)	 	Produce all seed of the LICENSED VARIETY in the LICENSED
PRODUCTION TERRITORY, wherein the right to produce BREEDER SEED shall be
non-exclusive between CERES and NOBLE; and
	 
	 	(c)	 	Use, sell and commercially exploit the seed of the LICENSED
VARIETY in the LICENSED TERRITORY; and
	 
	 	(d)	 	Make sublicenses under any and all INTELLECTUAL PROPERTY RIGHTS.





     2.2 Notwithstanding Paragraph 2.1, NOBLE shall have an irrevocable, nonexclusive,
nontransferable, royalty-free right to produce, use and evaluate the LICENSED VARIETY for any



 Page 3 of 38 









 




research, development, breeding, evaluation, demonstration and/or educational purpose or
program conducted by NOBLE in accordance with the terms of the parties’ Master Research Agreement,
dated 19 May 2006 (“MRA”).




     2.3 Sublicenses. CERES shall have the right to grant SUBLICENSES within the LICENSED
TERRITORY provided that:




	 	(a)	 	Any such SUBLICENSE shall be personal to the SUBLICENSEE and
shall not be assignable unless to an affiliated company of that SUBLICENSEE,
defined similarly as in Paragraph 1.15 but in the context of such SUBLICENSEE.
	 
	 	(b)	 	The terms and obligations of any such SUBLICENSE shall be
consistent with the terms and obligations of this Agreement. Notwithstanding,
CERES shall remain responsible for the operations of its SUBLICENSEES relevant
to this Agreement as if such operations were conducted and carried out by CERES,
including, but not limited to, the payment of all fees and royalties due under
this Agreement.
	 
	 	(c)	 	CERES further shall deliver to NOBLE (under an obligation of
confidentiality) a written summary of each SUBLICENSE agreement, which shall
include the name and address of the SUBLICENSEE, scope of the SUBLICENSE,
exclusive/non-exclusive status, territory, remuneration, reporting and diligence
obligations, if any. This summary shall be provided within thirty (30) days
after execution, modification or termination of the summarized agreement.
	 
	 	(d)	 	CERES will use commercially reasonable efforts to collect any and
all amounts due to CERES under any SUBLICENSE for the sale of seed of each
LICENSED VARIETY.





     2.4 CERES shall not sell or supply to any SUBLICENSEE, seed growing contractor or to any other
third party any BREEDER SEED or FOUNDATION SEED for the purpose of seed production without an
agreement obligating the recipient to sell or deliver the resultant seed to CERES, any AFFILIATED
COMPANY, any SUBLICENSEE, any authorized distributor, or retailers as directed by CERES.



     2.5 Nothing in this Agreement shall be construed as conferring by implication, estoppel, or
otherwise any license or rights under any INTELLECTUAL PROPERTY RIGHTS, whether owned by NOBLE or
licensed to NOBLE, other than the one(s) expressly set forth in this Agreement.



     2.6 Notwithstanding Paragraph 2.4, CERES may supply unlabelled (i.e., without certification
tag) COMMERCIAL SEED to a third party for the limited purposes of evaluating the agronomic
performance of the LICENSED VARIETY. The third party shall enter into a written agreement with
CERES that the seed supplied will not be used for further multiplication, breeding, selection or
other improvements.



 Page 4 of 38 









 





3. INTELLECTUAL PROPERTY RIGHTS.




     3.1 CERES agrees to prepare and file, or have prepared and filed, any and all applications for
plant variety rights or other forms of intellectual property protection, including utility patents,
for the LICENSED VARIETY in the United States. Applications for intellectual property protection,
whether plant variety rights and/or patents, shall be filed in the name of NOBLE and/or UGARF. At
CERES’ discretion, plant variety rights and/or other forms of intellectual property protection may
be filed in any other jurisdiction.




     3.1.1 If CERES intends to abandon any plant variety rights, pending or granted in any
jurisdiction, CERES shall first give sufficient written notice (at least ninety (90) days)
to NOBLE to permit NOBLE the opportunity to assume such filing, examination and/or
maintenance without prejudice and Paragraph 2.10 of the MRA will apply.




     3.1.2 Any application for plant variety rights shall reflect the COMMERCIAL NAME of the
LICENSED VARIETY (Paragraph 5).



     3.2 CERES and NOBLE will consult with regard to INTELLECTUAL PROPERTY RIGHTS.



     3.3 The obligations of this paragraph shall not apply to any jurisdictions in which CERES has
elected not to apply for intellectual property protection:




     3.3.1 CERES and NOBLE shall avoid carrying out any act that would prejudice the grant
of INTELLECTUAL PROPERTY RIGHTS. Without limitation, neither party shall make available
reproductive material of the LICENSED VARIETY at a date or in a manner that might jeopardize
the right to seek INTELLECTUAL PROPERTY RIGHTS protection for the LICENSED VARIETY.




     3.3.2 CERES, whether directly or through any SUBLICENSEE, shall not sell any seeds of
the LICENSED VARIETY until such time as the requirements for INTELLECTUAL PROPERTY RIGHTS
have been established.




     3.3.3 The provisions of this Paragraph 3.3 shall not restrict or otherwise penalize any
Disclosure authorized pursuant to Paragraph 11.4 of this Agreement.



     3.4 CERES shall use all reasonable endeavors to ensure in any sales jurisdiction of the
LICENSED TERRITORY in which INTELLECTUAL PROPERTY RIGHTS exist that all bags or containers supplied
by CERES and any SUBLICENSEE containing only seed of the LICENSED VARIETY are clearly labeled to
show that the packaged LICENSED VARIETY is covered and protected by INTELLECTUAL PROPERTY RIGHTS.



4. LICENSED VARIETY CONSIDERATION.




     4.1 In partial consideration for the rights granted in Paragraph 2.1 of this Agreement, CERES
shall be responsible for any and all fees and expenses incurred in filing, examining, certifying
and maintaining any INTELLECTUAL PROPERTY RIGHTS for the LICENSED VARIETY, subject to the
provisions of Paragraph 3.



 Page 5 of 38 









 





     4.2 In partial consideration for the rights granted hereunder, CERES agrees to pay to NOBLE,
on behalf of CERES and any AFFILIATED COMPANY, for the LICENSED VARIETY, a royalty of [***] of the
NET SELLING PRICE for the naked seed weight (exclusive of any coating materials that may be
applied) of all COMMERCIAL SEED of the LICENSED VARIETY in the LICENSED TERRITORY in a calendar
year.



     4.3 In partial consideration for the rights granted hereunder, CERES agrees to pay to NOBLE
[***] of any and all LICENSE INCOME received from its SUBLICENSEES.



     4.4. CERES shall have the right to sell, directly or through any AFFILIATED COMPANY and any
SUBLICENSEE, limited quantities of seed of the LICENSED VARIETY as “variety not stated” for
inventory control and disposal of seed that does not satisfy the standards of COMMERCIAL SEED.
CERES agrees to pay to NOBLE for sales made by CERES, any AFFILIATED COMPANY, and any SUBLICENSEE a
royalty determined in accordance with Paragraph 4.2 (for sales by CERES and any AFFILIATED COMPANY)
or in accordance with Paragraph 4.3 (for sales by SUBLICENSEES) for any such seed sales.




     4.4.1 “Limited quantities” shall not exceed 10% of the annual production of COMMERCIAL
SEED in each calendar year.




     4.4.2 “Variety not stated” seed cannot be associated with, directly or indirectly, any
COMMERCIAL NAME or include any other designations that identify such material as the
LICENSED VARIETY.



     4.5 Notwithstanding any other provision contained in this Agreement and irrespective of the
level of sales of seeds of a the LICENSED VARIETY under this Agreement, CERES shall pay to NOBLE
for each calendar year of the term hereof a minimum royalty with respect to the designated LICENSED
VARIETY only, according to the following schedule. Payment of this minimum royalty shall be due on
or before March 31 of the succeeding year for which the payment is due.



Minimum Royalties:




	 	 	 
	Calendar Year	 	Minimum Royalty (USD)
	2010
	 	[***]
	2011
	 	[***]
	2012
	 	[***]
	2013
	 	[***]
	2014
	 	[***]






     4.6 The minimum royalty of Paragraph 4.5 shall not carry forward to subsequent calendar years
as royalty credit against future sales. For clarification, the following rules shall guide the
relationship between royalties and minimum royalties:








 Page 6 of 38 



Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission








 






	 	(a)	 	If the royalty payments due under Paragraph 4.2 for a LICENSED VARIETY is less than the respective minimum royalty of
Paragraph 4.5 in a given year, then only the respective minimum annual royalty of Paragraph 4.5 for such LICENSED
VARIETY shall be payable;
	 
	 	(b)	 	If the royalty payment due under Paragraph 4.2 for a LICENSED
VARIETY exceeds the respective minimum royalty of Paragraph 4.5 in a given year,
then the respective minimum annual royalty of Paragraph 4.5 shall not be
payable;
	 
	 	(c)	 	Should there be a failure in production of seed of a LICENSED
VARIETY, where CERES can evidence that sufficient acreage was established to
produce adequate seed for payment of the minimum royalty of Paragraph 4.5 and
production of seed failed due to circumstances beyond the control of CERES or
CERES’ contract grower(s), then the minimum royalty will be paid pro-rata to the
extent of the failure of seed production; and
	 
	 	(d)	 	While not applicable to the minimum royalties contemplated in
Paragraph 4.5, the parties acknowledge and agree that future license agreements,
if any, may include a maximum, annual minimum royalty, based on cumulative
minimum royalty amounts from variety licenses and/or variety sublicenses by and
between the parties, to manage the annual minimum royalty load on CERES.





     4.7 CERES shall be responsible for the collection and payment of royalties due to NOBLE for
all seed sold in the LICENSED TERRITORY.



     4.8 CERES shall, in addition to any payments due under Paragraphs 4.1, 4.2, 4.3 or 4.6, pay
all goods and service taxes (or other taxes) due on its commercial activity. If any royalty
payments are subject to a withholding tax, then:




	 	(a)	 	If the tax is reclaimable by CERES (or an associated AFFILIATED
COMPANY), then CERES shall make the royalty payment without deduction; and
	 
	 	(b)	 	If the tax is non-reclaimable by CERES (or an associated
AFFILIATED COMPANY), then CERES shall pay the net royalty (i.e., the royalty due
less such withholding tax) and shall provide to NOBLE proper certificates for
such withholding tax.





     4.9 All sums payable by CERES to NOBLE under this Agreement shall be payable in United States
dollars. Royalties shall be payable by March 31 of each year with respect to the NET SELLING PRICE
and LICENSE INCOME received by CERES and any AFFILIATED COMPANIES in the preceding calendar year.
Payments shall be made by check to the following address:



Vice President, General Counsel

The Samuel Roberts Noble Foundation, Inc.

2510 Sam Noble Parkway

Ardmore, Oklahoma 73401







 Page 7 of 38 









 






Such payments shall be accompanied by a written report setting forth seed production, sales by
CERES, each AFFILIATED COMPANY, and each SUBLICENSEE of seed during the calendar year (identified by variety), permitted exclusions, related NET SELLING PRICE, CERES’ LICENSE INCOME,
the royalties due, and all uncollected amounts due CERES (and any AFFILIATED COMPANY) from
SUBLICENSEES. If no royalties are due, CERES also shall so report.




     4.10 Payments required under this Agreement shall, if overdue, bear interest at a per annum
rate of one percent (1%) above the prime interest rate in effect on the due date, as reported in
the Wall Street Journal, from the date the payment is due until it is received.



5. VARIETY NAMES, TRADE MARKS AND BRAND INTEGRITY.




     5.1 CERES shall use “EG2101” as the COMMERCIAL NAME for the LICENSED VARIETY, under which the
seed of the LICENSED VARIETY will be marketed and sold.



     5.2 In the event CERES seeks to change or modify the COMMERCIAL NAME for the LICENSED VARIETY,
CERES will obtain the prior written approval of NOBLE before adopting and/or submitting any (final
or proposed) COMMERCIAL NAME for registration, listing or introduction into commerce, wherein such
approval will neither be unreasonably withheld nor delayed. The parties acknowledge that NOBLE will
notify UGARF of such changes or modifications, in confidence, upon receiving notification from
CERES hereunder.



     5.3 CERES shall use all reasonable endeavors to ensure that all references made by CERES, any
AFFILIATED COMPANY, or any SUBLICENSEE to the LICENSED VARIETY shall use the COMMERCIAL NAME, as
specified in applicable INTELLECTUAL PROPERTY RIGHTS, and shall use its best endeavors to ensure
that all references by other parties shall use the same COMMERCIAL NAME and shall use this name in
a manner which distinguishes it from any TRADEMARK. CERES, any AFFILIATED COMPANY or any
SUBLICENSEE shall not falsely represent that any seeds of another variety being sold or offered for
sale are seeds of the LICENSED VARIETY.



     5.4 CERES may determine TRADEMARK(S) associated or intended for use with a LICENSED VARIETY.
CERES shall be the owner of all rights in any such TRADEMARK, chosen, applied to, used or
registered in association with the LICENSED VARIETY.



6. SEED AND QUALITY AND PERFORMANCE REGULATIONS.




     6.1 NOBLE shall at all times maintain adequate supplies of BREEDER SEED of the LICENSED
VARIETY for CERES as well as adequate supplies of germplasm for the production of BREEDER SEED,
wherein NOBLE shall provide needed quantities of such BREEDER SEED to CERES upon receipt of a
written request for the same; provided, however, NOBLE shall have the right to retain a reasonable
portion (or amount) of any such BREEDER SEED, such portion (or amount) being determined in the sole
discretion of the breeder of the LICENSED VARIETY, for research and/or archival purposes. For the
seed required under this paragraph, NOBLE will take all necessary measures to reasonably ensure
that all seed produced is handled and stored in such manner as to prevent contamination, theft,
deterioration, or unintentional destruction.





 Page 8 of 38 









 





     6.2 Subject to the obligations of NOBLE under Paragraph 6.1, CERES shall be responsible for
multiplying seed of the LICENSED VARIETY within the LICENSED PRODUCTION TERRITORY and using
commercially reasonable efforts to produce, market and sell the resultant seed so as to ensure that COMMERCIAL SEED of the LICENSED VARIETY is commercially available in the
United States in reasonable quantities and at a reasonable price in 2010. Availability in foreign
markets, if any, of the LICENSED VARIETY shall be determined by CERES no later than two (2) years
after U.S. commercialization of such LICENSED VARIETY.




     6.3 CERES shall meet its own cost of promotion, overseas trials and listing of the LICENSED
VARIETY in the LICENSED TERRITORY.



     6.4 CERES shall use reasonable endeavors to ensure that all seed of the LICENSED VARIETY
offered for sale by CERES, any AFFILIATED COMPANY or SUBLICENSEE shall meet the normally accepted
standards of the seed trade or certifying authorities relating to seed quality within the relevant
jurisdiction of the LICENSED TERRITORY.



     6.5 Subject to the obligations of Paragraph 4.4, where CERES wishes to dispose of seeds of the
LICENSED VARIETY without identity, CERES shall obtain prior written approval by NOBLE before
disposing of any seed of the LICENSED VARIETY, such approval not to be unreasonably withheld. In
the event that no response is received within five (5) working days of the request for approval
being made then it shall be deemed that consent has been granted.



     6.6 CERES shall advise NOBLE of any downgrading of FOUNDATION SEED of the LICENSED VARIETY.



     6.7 When performing activities pursuant to this Agreement, each party shall be responsible for
complying with all applicable laws, rules and regulations and obtaining any and all permits or
authorizations or proceed to any notifications which may be required by such laws, rules and
regulations.




     6.7.1 CERES shall at all times comply with and abide by any governing act, rules,
regulations, by-laws, plant variety rights legislation or the like and/or requirements
relating to the quality and sale of seeds of the LICENSED VARIETY in the relevant
jurisdictions of the LICENSED TERRITORY and shall use all reasonable commercial endeavors to
obtain any necessary regulatory approvals for the LICENSED VARIETY.



7. DILIGENCE.




     7.1 CERES will use commercially reasonable efforts to actively market and distribute seed of
the LICENSED VARIETY in the LICENSED TERRITORY, wherein such efforts shall be appropriately
reflected in the MARKETING PLAN.



     7.2 CERES shall submit to NOBLE with its annual report under Paragraph 4.9 a report of
progress made by CERES (and any AFFILIATED COMPANY), directly or through its SUBLICENSEES, in
achieving marketing goals of previous years and meeting the objectives of the MARKETING PLAN
submitted and agreed upon for the LICENSED TERRITORY. From time to time, but at least annually,
CERES shall submit an amended and updated MARKETING PLAN for NOBLE’S review and acceptance, which
will not be unreasonably withheld or delayed.



 Page 9 of 38 









 





     7.3 Minimum diligence requirements for the LICENSED VARIETY shall be satisfied by the payment
of the annual minimum royalty amounts for the prescribed years for only the specific LICENSED
VARIETY set forth in Paragraph 4.5.




     7.4.1 If CERES fails to pay to NOBLE the prescribed annual minimum royalty, NOBLE shall
have the right to convert the license granted to CERES with respect to such LICENSED VARIETY
to non-exclusive, by written notice to CERES.




     7.4.2 Upon CERES’ written request, this Agreement shall be amended to terminate the
annual minimum royalty and to convert the exclusive license grant of Paragraph 2.1 for the
LICENSED VARIETY to a non-exclusive license grant.



8. BOOKS, RECORDS AND RIGHT OF AUDIT.




     8.1 CERES shall keep and shall cause each AFFILIATED COMPANY and each SUBLICENSEE to keep
accurate records of all production and sales of seeds of the LICENSED VARIETY in each country of
the LICENSED TERRITORY where such production and/or sales are made. These records should include,
at least, the number of acres of LICENSED VARIETY seed under production, the physical location of
each LICENSED VARIETY production field owned or controlled by CERES, any AFFILIATED COMPANY or any
SUBLICENSEE, the total amount of seed of the LICENSED VARIETY produced, the total amount of seed of
the LICENSED VARIETY sold, including specifically the amount of COMMERCIAL SEED sold and the amount
of seed sold and/or disposed of without identity (under Paragraphs 4.4 and 6.5) and all invoices or
shipping documents relating to such sales.



     8.2 CERES shall allow an independent auditor, reasonably acceptable to CERES, appointed by
NOBLE to inspect the records of CERES and any AFFILIATED COMPANY pertaining to the LICENSED VARIETY
for the exclusive purpose of verifying the accuracy of the reports provided. Any such audit shall
occur no more frequently than annually. Any such inspection shall occur during normal business
hours and after NOBLE has provided written notice at least ten business days prior to the date of
the intended inspection. NOBLE agrees that it and its representatives will hold the information
obtained from the inspection in confidence, and not use it for any purpose other than verification
of the royalties required to be paid hereunder. Any inspection under this paragraph shall be at the
cost of NOBLE; provided that, if the inspection reveals that a net aggregate underpayment by CERES
to NOBLE of more than five percent (5%) is found, CERES shall be obligated to reimburse NOBLE for
the cost of such inspection.



9. ABATEMENT OF INFRINGEMENT.




     9.1 Each party shall notify the other of any suspected infringement of any INTELLECTUAL
PROPERTY RIGHTS covering the LICENSED VARIETY. During the term of this Agreement, CERES shall have
right, but shall not be otherwise required, to bring suit to abate such infringement.




     9.1.1 CERES shall have the first option to bring suit alone for infringement of the
LICENSED VARIETY. If elected, in writing, CERES shall be responsible for taking those
actions necessary to enforce the parties’ rights, wherein the expenses and cost of any such
action shall be CERES’. CERES and NOBLE will consult with each other upon a course of



 Page 10 of 38 









 







action and enforcement strategy. CERES will be responsible for the conduct of any such
enforcement action, and NOBLE will reasonably cooperate with CERES to effect the enforcement
action, and if appropriate, determine a settlement position. CERES shall be responsible for
retaining counsel and shall promptly notify NOBLE following retention of counsel, and NOBLE
agrees to be represented by such counsel as may be required for any enforcement action or
settlement. For purposes of settlement, CERES shall be the contact with the parties’ counsel
as well as the opposing party(ies) and shall have the right to enter into settlements. CERES
shall keep NOBLE advised as to all developments with respect to the enforcement action and
settlement discussions, which includes supplying to NOBLE copies of all papers received and
filed in sufficient time for NOBLE to comment thereon. NOBLE may attend any and all meetings
with the parties’ counsel and the opposing side for settlement purposes. NOBLE agrees to
voluntarily join in any action brought by CERES as a party plaintiff/defendant, if
necessary, at the expense of CERES. If necessary, NOBLE agrees to enter into a joint defense
agreement. Any damages received by CERES as a result of an enforcement action, after
deduction of all enforcement related costs incurred by CERES, shall be considered as NET
SELLING PRICE for the purpose of royalty payments to NOBLE; provided however, that any award
that exceeds compensation for loss of revenue, costs and expenses incurred by CERES (e.g.
punitive damages), after deduction of all enforcement related costs incurred by CERES, will
be shared equally by the parties.




     9.1.2 In the absence of CERES’ and/or NOBLE’S participation in any such action, whether
individually or jointly, UGARF reserves the right to bring such suit. In such instance,
UGARF shall bear the entire cost of such litigation, including defending any counterclaims,
and shall be entitled to retain the entire amount of any recovery of settlement.




     9.1.3 Should either party bring suit under the provisions of this Paragraph 13, and
thereafter elects to abandon such action, then the party bringing suit shall give timely
notice to the other party who may, if it so desires, or UGARF may, if it so desires,
maintain the action. Unless the parties agree otherwise at the time of withdrawal, the
withdrawing party shall have no further obligation for expenses for the subject action and
shall not benefit from any subsequent settlement or other financial benefit received as a
result of the subject action.



10. TERM AND TERMINATION.




     10.1 Subject to any other rights of termination under this paragraph, this Agreement shall
have a term equal to the longer of:




	 	(a)	 	On a jurisdiction-by-jurisdiction basis, the term of the
INTELLECTUAL PROPERTY RIGHTS in the respective jurisdiction covering such
LICENSED VARIETY; or
	 
	 	(b)	 	On a jurisdiction-by-jurisdiction basis, fifteen (15) years from
the date of the first sale of the LICENSED VARIETY in such jurisdiction.




Notwithstanding the foregoing, the parties may, by mutual, written agreement, extend the term of
this Agreement by additional five (5) year periods.







 Page 11 of 38 









 








     10.2 Each party shall have the right to terminate this Agreement unilaterally by giving
written notice of termination to the other party if such other party fails to satisfy its material
obligations, which shall include but are not limited to, making required reports and making
required payments, under this Agreement, and such party subsequently fails to cure such failure(s)
within (a) thirty (30) days for failures to remit payment for amounts due under this Agreement and
(b) ninety (90) days for all other obligations after receipt of written notice from the
non-breaching party specifying such failure.



     10.3 NOBLE will have the right to terminate this Agreement unilaterally with thirty (30) days’
written notice to CERES (a) if CERES seeks protection under any bankruptcy, insolvency,
receivership, trust, deed, creditors arrangement or comparable proceeding or if any such proceeding
is instituted against CERES (and not dismissed within one hundred twenty (120) days) or (b) in case
of dissolution or winding up of CERES (excluding any situation where all or substantially all of
CERES’ assets, stock or business to which this Agreement relates are acquired by a third party
(whether by sale, acquisition, merger, operation of law or otherwise)).



     10.4 CERES may after consultation with NOBLE terminate this Agreement by written notice if (a)
in the commercially reasonable opinion of CERES, the markets for the LICENSED VARIETY change, or do
not develop as anticipated, so as to render the production, promotion and sale of the LICENSED
VARIETY uneconomical or impractical or (b) if CERES decides to cease substantially all activities
in Panicum virgatum; provided however, CERES shall then terminate its promotion, marketing and
sales of the LICENSED VARIETY, whether directly or through any AFFILIATED COMPANIES.



     10.5 The parties may terminate this Agreement at any time by mutual, written agreement.



     10.6 Upon termination by CERES pursuant to Paragraph 10.2, NOBLE will promptly deliver to
CERES any and all BREEDER SEED in its possession and promptly upon harvesting, any of the
aforementioned seed from plants which are in NOBLE-controlled field(s) on the termination date, and
NOBLE will grant CERES access to facilities and fields under its control for the purpose of
collecting germplasm of each LICENSED VARIETY other than seed. Moreover, NOBLE will provide for the
orderly transfer of CERES’ rights under this Agreement directly to UGARF.



     10.7 Upon termination of this Agreement, no existing SUBLICENSES granted by CERES or
AFFILIATED COMPANIES to third parties shall be affected by such termination, and all such
sublicenses shall remain in effect according to their terms, pursuant to the election of each
SUBLICENSEE. NOBLE shall continue to be entitled to payments relating to such SUBLICENSES pursuant
to this Agreement and such SUBLICENSES.



     10.8 Immediately upon termination of this Agreement, except termination by CERES on the basis
of Paragraph 14.2:




	 	(a)	 	CERES shall either destroy or return all BREEDER SEED and all
FOUNDATION SEED to NOBLE. No compensation shall be due for any seed destroyed or
returned pursuant to this paragraph.
	 
	 	(b)	 	CERES may continue to sell the seed of the LICENSED VARIETY in
the ordinary course of business for a period of one (1) year after the
termination




 Page 12 of 38 









 






	 	 	 	date; provided however, the royalties on such sales are paid in the amounts
and in the manner provided in this Agreement. Following such one (1) year
period, all remaining inventory of LICENSED VARIETY seed must be destroyed,
and CERES shall notify NOBLE of the same.





     10.9 Termination or expiration of this Agreement, for any reason, shall not relieve either
party of any obligation, liability accrued under this Agreement before termination or rescind any
payments made or due before termination, for example, but not limited to, termination of this
Agreement shall not prevent NOBLE from recovering any royalties due and payable as of termination
(or thereafter, pursuant to Paragraph 10.10(b)). Termination or expiration of this Agreement shall
not prevent either party from obtaining a remedy for any breach of the provisions of this
Agreement.



     10.10 Paragraphs 8, 10, 11, 13, 14, 15, 16, and 17 will survive any termination of this
Agreement.



11. CONFIDENTIALITY AND PUBLICATIONS.




     11.1 As used in this Agreement, the term “Confidential Information” shall mean (a) all
non-public-information received by one party from the other in the framework of this Agreement and
(b) any and all information, results (including materials) and observations generated by NOBLE in
the performance of any this Agreement. Confidential Information can include, but is not limited to,
information concerning the disclosing party’s operations, research, processes, techniques, data and
non-public materials.



     11.2 From receipt to five (5) years after the disclosure of the relevant CONFIDENTIAL
INFORMATION, the receiving party shall not use, except (a) for the benefit of the parties’
collaboration, or (b) such use as is expressly allowed by this Agreement, and/or disclose any
Confidential Information to any third party without the prior written consent of the disclosing
party if the Confidential Information was received from the other party, or the prior written
consent of both parties if the Confidential Information was generated during the performance of
this Agreement, excepting that information described in Paragraph 11.3. Confidential Information
shall only be made accessible to each party’s employees or students on a need-to-know basis.
Manuscripts and papers published in scientific journals and presentations made at public meetings
that include Confidential Information are exempt from the conditions of this paragraph, provided
the parties followed the procedure set forth in Paragraph 11.4.



     11.3 The receiving party shall have no obligations of confidentiality for information that:
can be established through written evidence to be in the possession of the receiving party prior to
the disclosure by the disclosing party; is or becomes public knowledge through no fault of the
disclosing party; is acquired from others not under an obligation of confidentiality to the
disclosing party. In addition, CERES shall have the right to proceed to disclosures of Confidential
Information (a) as required to file for INTELLECTUAL PROPERTY RIGHTS or registration, (b) as
required to exercise its commercialization rights granted in or on the basis of this Agreement and
for related marketing activities, (c) as required by laws, rules or regulation or court ordering
such as, without limitation, SEC regulations or (d) in CERES’ reasonable judgment, to (potential)
investors and business partners.



 Page 13 of 38 









 





     11.4 The parties agree that the researchers involved in the development of the LICENSED
VARIETY are permitted to present methods and/or results of the development activities at
professional symposia or professional meetings and to publish the same in academic journals or like
publications, subject to the obligations of this paragraph. If either party wishes to present
results of the evaluation activities set forth in this Agreement at symposia and professional
meetings or publish the same in journals or the like, the disclosing party must furnish copies of
any proposed publication, presentation or disclosure (collectively “Disclosure”) to the other party
at least thirty (30) days in advance of the specific submission, presentation, or other disclosure.
If the non-disclosing party raises an objection within such thirty (30) day period with respect to
any part of the proposed Disclosure, the parties will diligently cooperate to modify the objected
matter. The non-disclosing party’s consent will be required for such Disclosure, but such consent
will not unreasonably be withheld. If no objection is raised within the aforementioned thirty (30)
day period, the disclosing party may proceed with the Disclosure.



     11.5 Each party shall be responsible for requiring any and all of its employees or students
who will perform activities under this Agreement to be bound by a written agreement(s) that commits
their inventions, discoveries, and other intellectual property to the party-employer and requires
confidential treatment of party and third-party confidential information. Each party shall further
notify each such employee, in writing, of their obligations and responsibilities under the terms of
this Agreement, including but not limited to the provisions of this Article.



12. NOTICES.




     Any notices required to be given or which shall be given under this Agreement shall be in
writing and delivered by first class mail or overnight (trackable) courier addressed to the Parties
as follows:


Vice President of Commercial Development

Ceres, Inc.

1535 Ranch Conejo Blvd.

Thousand Oaks, California 91320



With a copy to:



Legal Department

Ceres, Inc.

1535 Ranch Conejo Blvd.

Thousand Oaks, California 91320



Vice President, General Counsel

The Samuel Roberts Noble Foundation, Inc.

2510 Sam Noble Parkway

Ardmore, Oklahoma 73401



In the event that notices under this Agreement are sent by certified or registered mail (or
alternatively, by overnight courier) by one party to the other party at its above address, they
shall be deemed to have been given or made as of the date so mailed.







 Page 14 of 38 









 








13. WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY.




     13.1 NOBLE represents and warrants that it has the right, under its agreement(s) with UGARF,
to grant rights to CERES as set forth in this Agreement.




     13.1.1 Copies of relevant agreements by and between UGARF and NOBLE that concern or
relate, directly or indirectly, to the rights transferred to NOBLE to produce, use, sell
and/or commercially exploit the LICENSED VARIETY are included in ANNEXES A and B.
NOBLE will notify CERES within ten (10) days, in writing, of any modification to, or notice
of termination or termination of its 

agreement(s) with UGARF.



     13.2 EXCEPT AS SET FORTH IN THIS ARTICLE, THE PARTIES ACKNOWLEDGE AND AGREE THAT NEITHER PARTY
HAS MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.



     13.3 IN NO EVENT SHALL EITHER PARTY BE HELD RESPONSIBLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT ARISING OUT OF THE USE OF ANY INTELLECTUAL PROPERTY
RIGHTS COVERED BY THIS AGREEMENT, OR THE IMPLEMENTATION OF THIS AGREEMENT, EVEN IF SUCH PARTY IS
ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.



     13.4 NOBLE shall not be liable under any circumstances, whether in contract, in tort, under
any warranty, in negligence or otherwise, for any incidental, indirect, special or consequential
damages resulting from the exercise of CERES’ rights under the option and/or license granted
pursuant to this Agreement or from the production, sale, storage, use or attempted use of the
LICENSED VARIETY, including, but not limited to, damage to real or personal property, including
land, livestock, crops, plants, seed or feed crop.



     13.5 Nothing in this Agreement shall be construed as:




	 	(a)	 	A warranty or representation by either party as to the validity
or scope of any INTELLECTUAL PROPERTY RIGHTS, patent rights or plant variety
rights;
	 
	 	(b)	 	A warranty or representation by either party that anything made,
used, sold or otherwise disposed of pursuant to any license granted under this
Agreement is or will be free from infringement of patents of third parties;
	 
	 	(c)	 	Any obligations by either party to bring or prosecute actions or
suits against third parties for patent infringement; and
	 
	 	(d)	 	A grant by implication, estoppel, or otherwise of any licenses
under any intellectual property rights of NOBLE or other persons other than as
provided in Paragraph 2.1 hereof.





 Page 15 of 38 









 





14. INDEMNIFICATION.




     Excluding those acts directly attributable to the gross negligence or willful misconduct of
NOBLE, CERES agrees to indemnify, hold harmless and defend NOBLE and UGARF, its trustees, officers,
employees and agents and the breeders (as named in the INTELLECTUAL PROPERTY RIGHTS, if any)
against any and all liability and/or damages with respect to any claims, suits, demands, judgments
or causes arising out of (a) the production, development, storage, sale or any other use of the
seed of the LICENSED VARIETY and/or exercise of rights granted hereunder by CERES, its
SUBLICENSEES, distributors, agents, representatives or AFFILIATED COMPANIES; (b) the use by
end-users and other third parties of the seed of the LICENSED VARIETY; and/or (c) any
representation, warranty or statement by CERES, its SUBLICENSEES, distributors, agents,
representatives or AFFILIATED COMPANIES, concerning NOBLE, UGARF, the LICENSED VARIETY or any
INTELLECTUAL PROPERTY RIGHTS. In the event any such claims, demands or actions are made, CERES
shall defend NOBLE and/or UGARF at CERES’ sole expense by counsel selected by CERES and reasonably
acceptable to NOBLE. NOBLE shall promptly notify CERES, in writing, of any such claims, suits or
demands upon discovery and shall cooperate with CERES in the defense, provided that CERES shall
have the right to lead the defense including entering into any settlement. CERES will keep NOBLE
informed about the conduct of the defense and consult NOBLE regarding any settlement proposals.



15. PUBLICITY AND USE OF NAMES.




     15.1 Neither party shall publicize or disclose the terms of this Agreement without the prior
written approval of the other party, subject to the same exceptions as set forth in Paragraph
11.3(a) through (d).



     15.2 Neither party shall use the names, trademarks, design marks or any markings of UGARF, the
Board of Regents or UGA in any publicity, advertising or news release without the prior, written
approval of an authorized representative of UGARF.



     15.3 CERES, any AFFILIATED COMPANY and any SUBLICENSEE may make known in promotional materials
and technical literature that the LICENSED VARIETY was evaluated and developed for
commercialization at NOBLE and seed is produced, marketed and sold under a (sub-) license from
NOBLE; provided however, that such use shall not state or otherwise imply that NOBLE has any
relationship with CERES outside its publicized relationships (e.g., licensor-licensee, etc.). NOBLE
shall have the right to review and must pre-approve, in writing, any and all such provided
materials and technical literature that references NOBLE or its employees prior to its public
release.



     15.4 CERES, any AFFILIATED COMPANY and any SUBLICENSEE shall include on (or affix to) the seed
packaging (e.g., bag, container, seed tag) and promotional materials, if so elected by NOBLE, a
NOBLE-specific mark provided to CERES by NOBLE. NOBLE shall have the right to review and must
pre-approve, in writing, any and all materials, including seed packaging, that includes or is
intended to include the NOBLE-specific mark referenced in this paragraph.



16. DISPUTE RESOLUTION.



All disputes, differences or questions arising out of or in connection with this Agreement or its
ANNEXES, or related to the alleged breach, termination, validity, interpretation or violation
thereof,






 Page 16 of 38 









 







shall be submitted to the MANAGEMENT COMMITTEE (as defined in the MRA) for resolution, which shall
convene, whether in person or otherwise, to resolve such dispute in a timely manner. Either party
may initiate a resolution procedure by providing written notice (“Dispute Notice”) to the other
party, and any such Dispute Notice must set forth the subject matter of the dispute, difference or
question. If after sixty (60) days the dispute remains unresolved, the presidents of CERES and
NOBLE shall seek to resolve the dispute through negotiation or mediation. If negotiation is
elected, the parties agree that at least eight (8) cumulative hours of negotiations between the
presidents will be undertaken. If mediation is elected, the presidents will meet at a neutral site
for mediation. Unless agreed to otherwise, the neutral site shall be Denver, Colorado. The
mediation shall be conducted in accordance with the then existing Commercial Mediation Rules of the
American Arbitration Association (AAA). The mediator shall be selected by mutual agreement of the
parties. If the parties cannot agree on a mediator, AAA shall designate a mediator at the request
of either party. Any mediator so designated must be acceptable to both parties. Fees for the
mediation will be shared equally, and the parties will responsible for their respective expenses.
Settlement reached in mediation or negotiation will not be binding until the parties have signed a
written settlement agreement.



Any dispute, controversy, or claim arising out of or in connection with this Agreement or its
ANNEXES, or related to the alleged breach, termination, validity, interpretation or violation
thereof, not settled by negotiation or mediation in accordance with the terms hereof, shall be
finally settled and determined by arbitration administered by the AAA under its then current
Commercial Arbitration Rules and Mediation Procedures (including Procedures for Large, Complex
Commercial Disputes) (the “Rules”). The written reasoned award of the arbitrators shall be final
and binding upon the parties, and judgment on or enforcement of the award so rendered may be
sought, had or entered in any court having jurisdiction.





	 	(a)	 	Initiation of Arbitration. Any party may initiate arbitration by filing
a written request for arbitration with the AAA. A copy of the request shall be
furnished to all other parties in accordance with the provisions of the Rules and the
provisions in the agreement between the parties concerning notices. For all purposes
the “commencement of the arbitration” shall be deemed to be the date on which any party
issues a written demand for arbitration in accordance with the requirements of Article
18.
	 
	 	(b)	 	Appointment of Arbitrators. Each party shall appoint an arbitrator, and
the two arbitrators so appointed shall appoint the third arbitrator. The party
initiating the arbitration shall appoint its arbitrator at the commencement of the
arbitration. The other party shall appoint its arbitrator within thirty (30) days of
the commencement of the arbitration. If the arbitrators appointed by the parties fail
to appoint the third arbitrator within sixty (60) days of the commencement of the
arbitration, the AAA shall appoint the third arbitrator following consultation with the
parties.
	 
	 	(c)	 	Qualifications of Arbitrators. Each arbitrator so appointed shall have
a reputation as being experienced in the legal and technical matters related to the
dispute, shall be required to disclose, among other disclosures, any prior involvement
with the legal and technical matters related to the dispute and any involvement with a
competitor of any party, and shall not be presently nor in the past have been
affiliated with any party or a competitor of any party. Notwithstanding the method of
their appointment, each




 Page 17 of 38 









 






	 	 	 	arbitrator shall be required to meet the standards contained in the Rules with
respect to impartiality, independence and neutrality.
	 
	 	(d)	 	Location of the Arbitration. The seat of arbitration shall be Denver,
Colorado. The arbitrators may hold hearings at such other locations as the arbitrators
shall determine, after consultation with the parties.
	 
	 	(e)	 	Language of Arbitration. The arbitral proceedings and all pleadings and
written evidence shall be in the English language. Any written evidence originally in a
language other than English shall be submitted in English translation accompanied by
the original or true copy thereof.
	 
	 	(f)	 	Procedural Requirements. The arbitrators shall, after consultation with
the parties, make appropriate provision in the arbitration process for rules specific
to this arbitration which:






	 	(i)	 	require the disclosure of all exhibits expected to be used by the
parties at the arbitration, and the exchange of complete copies of all such
exhibits in advance of the arbitration;
	 
	 	(ii)	 	determine the dates for the exchange of said written disclosures
and copies of said exhibits;
	 
	 	(iii)	 	require the written disclosure of the identity of all witnesses
whom the parties expect to call at the arbitration;
	 
	 	(iv)	 	determine the dates for the exchange of the written disclosures
of the identity of witnesses which the parties expect to call at the
arbitration;
	 
	 	(v)	 	determine the dates for the exchange of sworn narrative
statements containing the testimony of all witnesses whom the parties expect to
call at the arbitration;
	 
	 	(vi)	 	require that the sworn narrative testimony of witnesses be
submitted in substitution for the direct examination of the witness, and that
all witnesses whose sworn testimony is submitted for consideration by the
arbitrators must present him or herself for cross examination at the time and
place of the arbitration hearing, unless some other procedure providing the
parties with a full and complete opportunity for cross-examination has been
established and provided by the arbitrators, the parties and the witness:
	 
	 	(vii)	 	prohibit, except upon a showing of good cause, or for purposes
of rebuttal, the receipt into evidence of any exhibit not disclosed by the
parties, nor shall the arbitrators permit a party to present the testimony of
any witness whose identity and testimony was not exchanged prior to the
arbitration;
	 
	 	(viii)	 	permit discovery as reasonable and necessary for the orderly preparation of
the dispute for hearing and determination of the dispute (said discovery may
include requests for production of documents and depositions of witnesses who
cannot




 Page 18 of 38 









 






	 	 	 	be summoned to the arbitration or are otherwise unavailable to attend the
arbitration); and
	 
	 	(ix)	 	require all parties and experts to maintain all information and
documents they have received , reviewed, exchanged or given testimony about in
confidence pursuant to an appropriate confidentiality undertaking and order.






	 	(g)	 	Limitation on Remedies. The arbitrators are precluded from awarding
punitive or exemplary damages. In no event shall the arbitrators have the powers of an
amiable compositeur.
	 
	 	(h)	 	Resort to the Courts. Nothing in this Agreement prohibits any party
from seeking interim or conservatory relief in any court of competent jurisdiction;
provided however, that neither the filing of an application for a
temporary restraining order, preliminary injunction or other interim or conservatory
relief, as necessary, nor the granting of such relief, shall be deemed to be a waiver
of the obligation of the party to have the dispute heard and determined solely and
exclusively by arbitration.
	 
	 	(i)	 	Survival. The rights and obligations of the parties as described herein
shall survive the termination, expiration, non-renewal or rescission of the Agreement
between the parties.





17. GENERAL.




     17.1 Entire Agreement/Modifications. This Agreement together with its ANNEXES
constitutes the entire agreement between the parties hereto with respect to the subject matter
hereof, and there are no representations, warranties, covenants or obligations except as set forth
herein. This Agreement supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, written or oral, of the parties hereto relating to the subject matter
hereof. This Agreement may only be amended, modified or superseded by a writing executed by the
authorized representative of the parties hereto. Pursuant to the obligations of this Agreement, the
parties anticipate that ANNEXES will be attached to and become part of this Agreement during its
term.



     17.2 Severability. This Agreement, to the greatest extent possible, shall be
construed so as to give validity to all of the provisions hereof. If any provision of this
Agreement is or becomes invalid, is ruled illegal by a court of competent jurisdiction or is deemed
unenforceable under the current applicable law from time to time in effect during the term of this
Agreement, the remainder of this Agreement will not be affected or impaired thereby and will
continue to be construed to the maximum extent permitted by law. In lieu of each provisions which
is invalid, illegal or unenforceable, there will be substituted or added as part of this Agreement
by mutual written agreement of the parties, a provision which will be as similar as possible, in
economic and business objectives as intended by the parties to such invalid, illegal or
unenforceable provision, but will be valid, legal and enforceable.



     17.3 Waiver. No failure or delay by either party in exercising any right or remedy
under this Agreement will waive any provision of this Agreement. Nor will any single or partial
exercise by either party of any right or remedy under this Agreement preclude it from otherwise or
further



 Page 19 of 38 









 




exercising any rights or remedies which it may have, or any other rights or remedies granted
by any law or any related document.




     17.4 Enforcement. In the event an action is commenced by either party against the
other to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to
recover from the other party reasonable attorneys’ fees, court costs and necessary disbursements
incurred in connection with such action.



     17.5 Licensor-Licensee Relationship. The relationship of the parties is that of
independent contractors and licensor-licensee. Nothing herein is intended or will be construed to
establish any agency, partnerships, or joint ventures. Neither party has any authority to act for
and/or to bind the other party in any way or to represent that either is in any way responsible for
the acts of the other, except as may be explicitly provided for herein or authorized by the
non-acting party in writing. Neither party is authorized or empowered to act as an agent for the
other party for any purpose, nor shall either party be bound by the acts or conduct of the other
party.



     17.6 Assignablility. This Agreement binds and enures to the benefit of the parties,
their successor or assigns, but may not be assigned by either party without the prior written
consent of the other party; provided however, that CERES shall have the right to assign its rights
and obligations under this Agreement to any AFFILIATED COMPANY and either party shall have the
right to assign its rights and obligations under this Agreement to a third party in conjunction
with the transfer to the third party of substantially all of the assets of that party associated
with performance under this Agreement without prior consent.



     17.7 Force Majeure. No party shall be responsible to the other party for delay or
failure in performance of any the obligations imposed by this Agreement, provided such failure
shall be occasioned by fire, flood, explosion, lightning, wind storm, hailstorm, earthquake,
subsidence of soil, failure of machinery or equipment or supply of materials, discontinuity in the
supply of power, court order or governmental interference, terrorist attacks, civil commotion,
riot, war, strikes, labor disturbances, transportation difficulties, labor shortage, natural
genetic variation of any living matter or by any other cause of like or unlike nature beyond the
reasonable control and without fault or negligence of such party.



     17.8 Choice of Law. This Agreement shall be governed by, and construed and interpreted
in accordance with, the laws of the State of Delaware without regard to the principles of conflicts
of law thereof.



     IN WITNESS WHEREOF, CERES and NOBLE have caused this Agreement to be duly executed as
indicated below.



(SIGNATURES PROVIDED ON THE FOLLOWING PAGE)






 Page 20 of 38 









 








	 	 	 	 	 	 	 

	THE SAMUEL ROBERTS NOBLE

FOUNDATION, INC.	 	CERES, INC.
	 
	 	 	 	 	 	 
	By:

	 	
/s/ Michael A. Cawley 	 	By:	 	/s/
Michael Stephenson
	 

	 	 
	 	 	 	 
	Name:

	 	Michael A. Cawley
	 	Name:
	 	Michael Stephenson
	 

	 	 
	 	 	 	 
	Title:

	 	President
	 	Title:
	 	Vice President of Operations
	 

	 	 
	 	 	 	 
	Date:

	 	Oct. 20, 2009 	 	Date:	 	Oct. 22, 2009 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	

	 	 	 	By:	 	/s/
Richard Hamilton 
	 

	 	 
	 	 	 	 
	

	 	 	 	Name:
	 	Richard Hamilton
	 

	 	 
	 	 	 	 
	

	 	 	 	Title:
	 	President & Chief Executive Officer
	 

	 	 
	 	 	 	 
	

	 	 	 	Date:	 	Oct. 27, 2009 
	 

	 	 
	 	 	 	 





 Page 21 of 38 









 





ANNEX A




COPY OF UGARF NF/GA002 LICENSE

(Recitals and Paragraph 13.1.1)



License Agreement



[***]



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Confidential
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filed with the Commission






 








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Confidential
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filed with the Commission






 








[***]







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Confidential
Treatment Requested and the Redacted Material has been separately
filed with the Commission






 








[***]






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Confidential
Treatment Requested and the Redacted Material has been separately
filed with the Commission






 








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Confidential
Treatment Requested and the Redacted Material has been separately
filed with the Commission






 








[***]







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Confidential
Treatment Requested and the Redacted Material has been separately
filed with the Commission






 








[***]







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[***]






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Confidential
Treatment Requested and the Redacted Material has been separately
filed with the Commission






 








[***]






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Confidential
Treatment Requested and the Redacted Material has been separately
filed with the Commission






 








[***]







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Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission









 








[***]







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Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission









 








[***]






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Confidential Treatment Requested and the Redacted Material has been separately filed with the Commission









 








ANNEX B




INTELLECTUAL PROPERTY RIGHTS for the LICENSED VARIETY

(Paragraph 1.10)



	 	 	 	 	 
	LICENSED VARIETY	 	COMMERCIAL NAME	 	INTELLECTUAL PROPERTY RIGHTS
	NF/GA002
	 	EG2101
	 	[PATENT APPL NO]
	NF/GA002
	 	EG2101
	 	[PATENT APPL NO]
	NF/GA002
	 	EG2101
	 	[PVP APPL NO]






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ANNEX C




MARKETING PLAN

(Paragraph 1.17)




	1.	 	TIMING
	 
	 	 	The MARKETING PLAN is to cover a five year period and shall be reviewed annually with
adjustments made for further five year periods in line with market conditions (or
projections of the same) and the agronomic performance of the LICENSED VARIETY.
	 
	2.	 	POSITIONING
	 
	 	 	An assessment of the potential of the LICENSED VARIETY in an identified market.
	 
	3.	 	PROMOTION
	 
	 	 	Details of all project promotional activities, plus anticipated, related expenditures, that
are intended to the LICENSED VARIETY achieves its maximum market potential.
	 
	4.	 	DISTRIBUTION
	 
	 	 	Details of the proposed distribution network and activities for supporting the distributor
or retailer plus anticipated promotion activities of the distributor/retailer. NOTE: If the
anticipated distribution network includes the creation of a new seed company, details
regarding this important component should be included here.
	 
	5.	 	EVALUATION
	 
	 	 	Details of planned evaluation and demonstration, if any.
	 
	6.	 	PROTECTION
	 
	 	 	Anticipated intellectual property protection requirements.
	 
	7.	 	SEED SALES
	 
	 	 	Estimated sales including grade of seed, volume and price and country of destination.
	 
	8.	 	ROYALTY INCOME






	 	a.	 	Estimated royalty payments; and
	 
	 	b.	 	Commencement date of payment.






	9.	 	SEED PRODUCTION
	 
	 	 	Estimated production, including grade of seed, land area to be sown, estimated production
and harvest date.






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