EXHIBIT 10.38 


CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document
have been omitted pursuant to a request for confidential treatment and, where
applicable, have been marked with an asterisk (“[****]”) to denote where
omissions have been made. The confidential material has been filed separately
with the Securities and Exchange Commission.


JOINT RESEARCH AND MARKER
DEVELOPMENT AGREEMENT


BETWEEN


METAMORPHIX, INC.


AND


HUBBARD S.A.S.






CONFIDENTIAL


JOINT RESEARCH AND-MARKER
DEVELOPMENT AGREEMENT


THIS JOINT RESEARCH AND MARKER DEVELOPMENT AGREEMENT (the “Agreement”)
is entered into as of January 25, 2007 (the “Effective Date”) by and between
METAMORPHIX, INC., a Delaware corporation, having a place of business at 8000
Virginia Manor Road, Suite 140, Beltsville, Maryland 20705, United States of
America (“MMI”) and HUBBARD S.A.S., a French societe par actions simplifee,
having registered headquarters at Mauguerand, 22800 Le Foeil, France (“Hubbard”),
each hereinafter individually referred to as the “Party” and collectively as
the “Parties.”


Recitals


          WHEREAS,
MMI, itself and through its wholly-owned subsidiary, MMI Genomics, Inc., a Delaware corporation, has
developed, acquired, and licensed in intellectual property, resources, and
expertise in the areas of genetic information, discovery sciences, discovery
services, and agricultural products and services that support MMI’s generation, integration, and analysis of
biological information and enable MMI to provide the agriculture
industry with innovative products and services, including diagnostic services
to improve breeding stock selection and better manage animal production
systems;


          WHEREAS,
Hubbard is a world leader in the development and marketing of improved broiler
breeding stock;


          WHEREAS,
Hubbard and MMI desire to jointly develop a set of genomic markers associated with desired phenotypic
traits in broilers in support of Hubbard’s continuing improvement in the
breeding of Hubbard’s pure lines for broilers;


          WHEREAS,
Hubbard and MMI intend to work together toward developing these markers through
the utilization of the discovery services, information, and data that are the
subject of this Agreement and for Hubbard’s commercialization of improved pure
lines for broilers;


          WHEREAS,
MMI, subject to the terms and conditions of this Agreement, is willing to perform for Hubbard the genomic
discovery and development services as set forth in this Agreement, and Hubbard, subject to the terms of this Agreement, is
willing to share with MMI broiler phenotypic information, data and
expertise as required for MMI to perform the contemplated genomic services, all
as set forth in this Agreement (which relationship, subject to the terms and
conditions of this Agreement, shall be exclusive); and


          WHEREAS,
Hubbard may use the markers to improve the breeding of its pure lines for
broilers in order to respond to current and future needs of the poultry
industry, and MMI may commercialize the markers in fields not exploited by
Hubbard.






CONFIDENTIAL


Agreement


          NOW,
THEREFORE, in consideration of the foregoing, the Parties agree, covenant,
represent, and warrant as follows:


1 DEFINITIONS


          For
purposes of this Agreement, each capitalized term used shall have the meaning
assigned to it in Exhibit A or
otherwise in this Agreement.


2 PERFORMANCE
AND GOVERNANCE OF THE

RESEARCH PLAN



	
 

	
 

	
 


	
2.1

	
Research Plan.


	
 

	
 


	
 

	
2.1.1

	
MMI and Hubbard
  shall complete the design of the Research Plan within thirty (30) days after
  the execution and delivery of this Agreement.


	
 

	
 

	
 


	
 

	
2.1.2

	
MMI and Hubbard
  shall use their respective commercially reasonable efforts to complete the
  discovery, development, and commercialization activities in the Research Plan
  in accordance with the schedule set forth therein and each party, in
  accordance with Section 3.1, shall fund its own activities. The conduct of
  the Research Plan shall be reviewed and coordinated by the Steering Committee
  (as set forth in Section 2.7). MMI and Hubbard recognize that time is of the
  essence in their performance of their respective obligations as set out in
  the Research Plan, and that the quality of the genomic data, genotyping and
  association analysis, and Samples phenotypic data provided are crucial to the
  success of the Research Plan.


	
 

	
 

	
 


	
2.2

	
Material, Data,
  and/or Information Transfer.


	
 

	
 

	
 


	
 

	
2.2.1

	
Hubbard shall
  provide MMI with the Samples in the amount and of the quality set forth in
  the Research Plan for MMI to use for purposes set forth in this Agreement and
  to complete the Research Plan. Hubbard further shall provide to MMI together
  with each Sample the phenotypic, data collection and other germane
  characteristics thereof, in accordance with the specifications set out in the
  Research Plan. All Samples shall have been characterized for the relevant
  Targeted Traits as specified in the Research Plan. In the event that Hubbard
  fails to deliver the Samples as and when required by the Research Plan, then
  MMI shall provide written notice to Hubbard’s Primary Contact and the time
  for MMI to provide each affected Deliverable and to Complete Delivery to
  Hubbard shall be extended by a number days equal to the number of days that
  passed from the due date for such Samples until the date that Hubbard
  delivered the required Samples to MMI. Hubbard shall promptly replace,
  correct, and/or supplement any Sample and/or provided information that is not
  consistent





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CONFIDENTIAL


	
 

	
 

	
 


	
 

	
 

	
with the
  specifications set out in the Research Plan, or such other technical specifications-as-may have been agreed
  in writing by the Parties’ respective Primary Contacts.


	
 

	
 

	
 


	
 

	
2.2.2 

	
MMI (a) shall use
  Hubbard Material exclusively to meet its obligations under this Agreement, and (b) after the earlier of
  (i) first (1st)
  anniversary of the completion of the Research Plan or (ii) upon any earlier
  termination of this Agreement, MMI shall either (A) if requested by Hubbard,
  in timely fashion return all residual Hubbard Material to Hubbard (at any
  site designated by Hubbard) at the expense of Hubbard within thirty (30) calendar days after MMI’s receipt of such
  written request, or (B) destroy all residual
  Hubbard Material. MMI shall not distribute, release, sell, disclose,
  or otherwise transfer the Hubbard Material to any Third Party, except as
  otherwise expressly permitted under Article 4 (Confidentiality).


	
 

	
 

	
 


	
 

	
 

	
Subject to Section
  5.3.1, Hubbard reserves the right to use the Hubbard Material or any copies thereof for any purpose and to transfer them to
  any Third Parties.








	
 

	
 


	
2.3

	
Data Accumulation
  and Review. MMI shall record and store in one or more computer databases all data and information generated
and accumulated
  by MMI under the Research Plan. No more than once every three calendar
  (3) months during the Research Program, and thereafter, upon reasonable written
  notice of at least two (2) weeks, an agent of Hubbard shall be entitled to
  review the status and content of the database at MMI’s premises, and MMI
  shall provide such agent with such reasonable assistance as they may request
  to perform such review in an efficient and complete manner. The reviews shall
  be conducted on a “no copies” basis. The Parties respective Primary Contacts
  shall be in regular contact by telephone, notably to discuss the status of
  the progress of the performance of the Research Plan.


	
 

	
 


	
 2.4

	
MMI Delivery of
  Deliverable(s). When MMI believes that it has completed a given
  Phase of the Research Plan, it shall deliver to Hubbard the Research Plan­required
  Deliverable(s) which shall be accompanied by a written statement confirming
  that all of the required actions and services under that Phase of the
  Research Plan have been completed and that all of the required Deliverable(s)
  have been delivered. The Deliverables shall notably include such data as the
  Research Plan requires to be delivered as a part of the Deliverable. By way
  of example, the Parties recognize that the Chicken Discovery Panel and all
  results from the genotyping of the Samples using the Chicken Discovery Panel
  (including the minor allele frequencies for the SNPs in the Chicken Discovery
  Panel) and from the association studies and analyses performed using such
  genotype results in respect of the Targeted Traits will be delivered as a
  part of the Deliverables, but that the
  sequence information and other specific information (including primer
  pairs, amplicons, assay development) for the individual SNPs that comprise
  the Chicken Discovery Panel will not to be delivered, but shall










CONFIDENTIAL


	
 

	
 

	
 


	
 

	
instead
  be available for inspection under Section 2.3 and provided to the Escrow Agent under Section
7.7.


	
 

	
 

	
 


	
2.5

	
Review of
  Deliverable(s) by Hubbard. Upon receipt from MMI of all of the Deliverable(s)
  and the written documentation described in Section 2.4 in respect of any
  Phase of the Research Plan, Hubbard shall have a period of thirty (30) days
  to examine the Deliverables and make a determination, in its reasonable
  judgment, as to whether MMI has delivered all of the required Deliverable(s).
  Hubbard shall endeavor to provide initial feedback prior to the thirtieth (30th)
  day so that MMI may continue to move ahead with the project.


	
 

	
 

	
 


	
 

	
2.5.1

	
In the event that
  Hubbard determines that all required Deliverable(s) have been successfully
  delivered, Hubbard shall so inform MMI. If such determination is not received
  on or before such thirtieth (30th) day, then MMI (a) may provide
  written notice to Hubbard’s Primary Contact and the time for MMI to provide
  that the Deliverable(s) for the next Phase of the Research Plan shall be
  extended by a number of days equal to the number
  of days that passed from the due date for such acknowledgement until
  the date upon which MMI receives such determination and (b) may proceed under
  Section 12.12 and/or Sections 7.2 et seq.


	
 

	
 

	
 


	
 

	
2.5.2

	
In the event that
  Hubbard determines that all required Deliverable(s) have not been substantially delivered, (i) Hubbard
  shall advise MMI in writing of its determination within the thirty-day
  evaluation period specifying, in reasonable detail, the areas of deficiency,
  and (ii) MMI’s obligation to proceed with the next Phase of the Research Plan
  shall be suspended pending a resolution of the matter as described in Section
  2.5.3.


	
 

	
 

	
 


	
 

	
2.5.3

	
In the event that
  Hubbard provides written notice to MMI of deficiencies as described in
  Section 2.5.2, MMI shall either:








	
 

	
 

	
 

	
 


	
 

	
 

	
(a)

	
make an effort to
  address the deficiencies cited by Hubbard and make a corrective delivery of
  all of the required Deliverable(s) within
  thirty (30) days following receipt of Hubbard’s notice, in which case
  Hubbard shall have a further twenty-day day period to evaluate the corrective
  Deliverable(s). In the event that Hubbard then determines, in its reasonable
  judgment, that all required Deliverable(s) have been delivered, Hubbard shall
  so inform MMI within ten (10) days following the earlier of the end of the twenty­day
  period evaluation period or such determination. In the event Hubbard again
  determines that all required Deliverable(s) have not been substantially delivered, (i) Hubbard shall advise MMI in writing
  of its determination within such ten (10) day period, specifying the areas of
  deficiency, at which point MMI shall again have either one (1) additional and
  final thirty-day cure period, or have the possibility of disagreeing with
  Hubbard’s determination or requesting the





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CONFIDENTIAL


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
abandonment of the
  project in accordance with Section 2.5.3 (b) below; or


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
advise Hubbard in
  writing either (i) that it disagrees with Hubbard’s determination and
  reasserts its belief that all of the required Deliverable(s) have been
  delivered, or (ii) that due to the occurrence of significant unforeseen
  obstacles or challenges, it has become scientifically impossible or
  impracticable to deliver the Deliverables as contemplated and the Research
  Plan should be abandoned; and, in either case, while reserving the right to
  deliver additional or different Deliverable(s), that it is submitting the
  matter to the Steering Committee in accordance with Section 27.1(c) and/or
  (d), as the case may be.








	
 

	
 


	
2.6

	
Validation Phase. As defined in the Research Plan,
  a Validation Phase will be conducted following the association study to
  evaluate the preliminary Genomic Markers in populations from an agreed upon
  source and level.


	
 

	
 


	
 

	
The Research Plan
  shall be deemed to be completed when all the Deliverables to be delivered
  under the Research Plan are completely delivered, including notably the
  Deliverables of the Validation Phase.


	
 

	
 


	
2.7

	
Primary Contacts
  and Steering Committee. The Parties shall form a four (4) person steering
  committee (the “Steering Committee”) to monitor the discovery, development,
  and commercialization activities under this Agreement (i.e., during the performance of the Research Plan and beyond)
  and perform the functions as provided in this Section 2.7. MMI and
  Hubbard each shall appoint two (2) representatives to serve on the Steering
  Committee, and each shall designate one of its representatives to be the
  primary contact between them (the “Primary Contact”). These Primary Contacts
  shall be responsible for day-to-day communication between the Parties and for
  preparing and retaining summaries of all communications (which shall be kept
  and maintained for at least three (3) years after the date of Complete
  Delivery). Each Party may substitute any or all of its representatives to the
  Steering Committee upon written notice to the other Party. Prior written
  notice (of at least three (3) days and to all members) must be given of all
  meetings (whether held in person or by telephone conference), at least three (3) members of the Steering
  Committee must be present to constitute a quorum (except that, after
  any failure to reach a three (3) member quorum for thirty (30) or more days,
  the quorum shall then be only two (2) members (including at least one (1) representative from each Party) if at
  least ten (10) days written notice of such meeting and such lowered
  quorum is given by notice in accordance with Section 12.9). Any decisions,
  recommendations, or other authorized actions of the Steering Committee shall
  be made unanimously by all members of the Steering Committee present at any
  meeting.


	
 

	
 


	
 

	
2.7.1 The Steering
  Committee shall:










CONFIDENTIAL


	
 

	
 

	
 

	
 


	
 

	
 

	
(a)

	
Monitor issues
  relating to the Research Plan.


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
Assess the
  research requirements, time frames, and work prioritization of the Research
  Plan. The Steering Committee shall have
  the authority to extend any deadlines or time frames under the
  Research Plan by up to sixty (60) days. Should either Party seek an extension
  beyond sixty (60) days (but not longer than one hundred eighty (180) days),
  it must be approved in writing by the Chief
  Executive Officer of MMI (or his authorized designee) and the
  President of Hubbard (or his authorized designee); beyond one hundred eighty
  (180) days, a formal extension between the parties must be agreed to in
  accordance with Section 12.5.


	
 

	
 

	
 

	
 


	
 

	
 

	
(c)

	
Meet promptly in
  person following any submission to it pursuant to Section 2.5.3(b) resulting from a disagreement between the Parties
  as to whether MMI delivered to Hubbard all the required Deliverables to be
  delivered pursuant to a Phase of the Research Plan. In the event the Steering
  Committee is unable within thirty (30) days of the meeting to resolve the
  disagreement, either Party may submit it to binding arbitration in accordance
  with Section 12.12.


	
 

	
 

	
 

	
 


	
 

	
 

	
(d)

	
Meet promptly in
  person should either Party submit that the Research Plan should be abandoned
  because it has become scientifically impossible or impracticable as a result
  of the occurrence of significant unforeseen obstacles and challenges. Within
  30 days of the meeting, the Steering Committee shall communicate its
  recommendation, or its inability to agree on a recommendation, to the
  executive officers of the Parties, who shall consider the question in
  accordance with Section 7.3.1.


	
 

	
 

	
 

	
 


	
 

	
 

	
(e)

	
Meet at least
  quarterly and, as necessitated by the completion of a Phase of the Research
  Plan or otherwise, more often as appropriate.


	
 

	
 

	
 

	
 


	
 

	
 

	
(f)

	
Following the
  completion of the Research Plan, meet twice each calendar year to review and monitor Hubbard’s post-Research Plan
  commercialization effort. The Steering Committee may determine, upon mutual
  agreement, that a face-to-face meeting is not necessary and that a written
  report will suffice.


	
 

	
 

	
 

	
 


	
 

	
2.7.2 The Steering
  Committee shall NOT have any authority to:


	
 

	
 

	
 

	
 


	
 

	
 

	
(a)

	
amend the Research
  Plan, other than with respect to the extension of deadlines as specifically
  described in Section 2.7.1(b) above;


	
 


	
 

	
 

	
(b)

	
amend this
  Agreement; or





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CONFIDENTIAL


	
 

	
 

	
 

	
 


	
 

	
 

	
(c)

	
bind any of the Parties to any obligation or commitment in addition

  to or materially different from those contained in this Agreement.





3     RESEARCH
PROJECT SUPPORT


	
 

	
 


	
3.1

	
Research Project
  Support by Hubbard and MMI. Hubbard and MMI shall each support their own costs
  (whether internal or due by them to Third Parties) of the activities and
  services performed by each of them under the Research Plan. Specifically,
  Hubbard shall fully and timely cover the total cost of the phenotypic
  selection, data collection, analysis, and Sample transfer side of the
  Research Project and MMI shall fully and timely cover the Genotyping analysis
  for the Research Project, and all license, royalty, or other amounts of any
  nature due to Third Parties from which MMI
  has obtained licenses to databases, analysis tools, or any other
  technologies used in MMI’s performance of its activities under the Research
  Plan. The principal undertakings of the Parties, as further detailed in the
  Research Plan, are to provide Samples and phenotype information for up to
  [****] ([****]) birds (Hubbard) of the structure described in the Research Plan, and to
  Genotype and analyze the results of no greater than [****] SNPs in each
  Sample (MMI) as described in the Research Plan.


	
 

	
 


	
 3.2

	
Regular Reports. Hubbard and MMI shall each
  regularly and promptly provide (at least quarterly) to each other and to the
  Steering Committee a written report regarding
  the efforts made and expenditures made during the prior calendar year
  quarter.





4     CONFIDENTIALITY
AND PUBLICATION


	
 

	
 

	
 

	
 


	
4.1

	
Confidentiality. The Parties acknowledge that the
  Parties have in their discussions negotiations and preparation of this
  Agreement disclosed to each other certain Confidential Information prior to
  the Effective Date of this Agreement, and that all such Confidential
  Information disclosed at and since the April 5, 2005 meeting between the
  Parties in Maine shall be governed by the terms of this Agreement, and in
  particular those of this Article 4.


	
 

	
 

	
 

	
 


	
 

	
4.1.1

	
The Parties
  acknowledge that during the course of this Agreement they will each receive
  (and hence become a “Receiving Party”) from the other Party (the “Disclosing Party”) information
electronically, in writing,
  or orally, that is proprietary and/or confidential and of commercial
  value to the Disclosing Party. The Parties agree that they shall take all
  reasonable measures to protect the secrecy
  of and avoid disclosure and unauthorized use of the Confidential
  Information. Without limiting the foregoing, the Parties shall take at least
  those measures that each takes to protect its own confidential information of a similar nature, but in no event less
  than a reasonable degree of care. Each Party shall immediately notify
  the other Party in the event either Party has knowledge of any unauthorized
  use or disclosure of the Confidential Information.










CONFIDENTIAL


	
 

	
 

	
 

	
 


	
 

	
 

	
For the purposes
  of this Agreement, MMI Technology shall be deemed to be Confidential
  Information disclosed by MMI; and Hubbard Technology shall be deemed to be
  Confidential Information disclosed by Hubbard. Both Parties shall treat Joint
  Intellectual Property as Confidential Information.


	
 

	
 

	
 

	
 


	
 

	
4.1.2

	
Except to the
  extent expressly authorized by this Agreement, the Parties agree that the Receiving Party shall keep
  confidential and shall not publish or otherwise disclose, and shall
  not use for any purpose other than performing its obligations under this
  Agreement (or as may be expressly permitted,
  in respect only to Joint IP, under Section 5.3.3 and Section 7.2), any
  Confidential Information furnished to it by the Disclosing Party pursuant to
  this Agreement, regardless of the medium on which it is provided, including
  know-how, except to the extent that it can be established by the Receiving
  Party by competent proof that such information:








	
 

	
 

	
 

	
 


	
 

	
 

	
(a)

	
was already known
  to the Receiving Party, other than under an obligation of confidentiality, at
  the time of disclosure by the Disclosing Party;


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
was generally
  known to the public or otherwise part of the public domain at the time of its
  disclosure to the Receiving Party;


	
 

	
 

	
 

	
 


	
 

	
 

	
(c)

	
became generally
  available to the public or otherwise part of the public domain after its
  disclosure through no fault of the Receiving Party;


	
 

	
 

	
 

	
 


	
 

	
 

	
(d)

	
was subsequently
  lawfully disclosed to the Receiving Party by a Third Party who did not
  require the Receiving Party to hold it in confidence or limit its use
  (provided that, to the knowledge of the Receiving Party after inquiry to the
  Third Party, it was not obtained by such Third Party under an obligation of
  confidentiality directly or indirectly from the Disclosing Party); or


	
 

	
 

	
 

	
 


	
 

	
 

	
(e)

	
was independently
  discovered or developed by the Receiving Party without the use of the
  Disclosing Party’s Confidential Information, as can be documented by written
  records created at the time of such independent discovery or development.








	
 

	
 

	
 

	
 


	
4.2

	
Permitted
  Disclosure.


	
 

	
 

	
 

	
 


	
 

	
4.2.1

	
Subject to Section
  4.1, the Receiving Party may disclose the Disclosing Party’s Confidential
  Information only to the extent such disclosure is required for complying with
  applicable laws, regulations, and/or court or administrative orders; provided
  however, that in each case described in this Section 4.2.1, the Receiving
  Party shall (a) give at least two business days advance notice to the
  Disclosing Party of such disclosure requirement; (b) provide a copy of the
  proposed disclosure; and (c) use commercially reasonable efforts to secure,
  or to assist the Disclosing Party in securing, confidential treatment,
  including a protective order, for





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 such
  Confidential Information required to be disclosed.


	
 

	
 

	
 


	
 

	
4.2.2

	
 The
  Receiving Party may disclose the Disclosing Party’s Confidential Information
  only to the Receiving Party’s employees, contractors, consultants, or
  licensees who (a) have a need-to-know and (b) are under contract not to
  disclose Confidential Information or use Confidential Information for any
  purpose other than those expressly authorized in this Agreement.


	
 

	
 

	
 


	
4.3

	
Copies. A Receiving Party shall not make
  any copies of the Disclosing Party’s Confidential
  Information without the prior written approval of the Disclosing Party,
  except that, subject to Section 5.3.5 and Section 7.2, (a) Hubbard may make
  copies that are reasonably necessary for the research and development or
  commercialization of Hubbard’s improved breeding stock, (b) MMI may make copies that are reasonably necessary for the
  conduct of the Research Plan or for the commercialization of Joint
  Intellectual Property outside the Field, and (c) copies may be made as a part
  of any effort by the Steering Committee. Notwithstanding the foregoing, the
  Receiving Party may also retain one (1) copy of the Disclosing Party’s
  Confidential Information in secure legal files for legal archival purposes
  only. Notwithstanding Sections 4.2.2 and 4.3, MMI shall not in any case be
  entitled without Hubbard’s prior written consent to provide any Hubbard
  Materials or disclose any Confidential Information included therein to any
  Third Party licensee.


	
 

	
 

	
 


	
4.4

	
Publication. No Publications shall include any
  of the Disclosing Party’s Confidential Information without the Disclosing
  Party’s prior written consent (which may be withheld in its sole discretion).
  All Publications shall include appropriate recognition of the other Party’s
  contributions in accordance with the standard practice for assigning
  scientific credit, either through authorship or acknowledgement as may be
  appropriate.


	
 

	
 

	
 


	
 

	
4.4.1

	
Publication
  Regarding Success of Research Plan. In the event that the Parties agree to jointly prepare a Publication of
the results of the
  Research Plan in a mutually acceptable scientific journal (which is
  not their present intention), MMI shall (a) draft such Publication, (b)
  prepare such Publication within a mutually
  agreed upon time following completion of the Research Plan, and (c)
  have such Publication reviewed and approved by the duly authorized officers of MMI and Hubbard prior to submission of
  the article to the agreed upon scientific journal. Except by mutual
  consent, neither Party shall release or
  otherwise transfer any of the results from the Research Plan to any
  Third Party or the public prior to the date on which such joint Publication
  will be released.


	
 

	
 

	
 


	
4.5

	
Press Releases and
  Public Announcements.


	
 

	
 

	
 


	
 

	
4.5.1

	
Except as may
  otherwise be required by law or regulation, neither Party shall make any
  press release or other public announcement, directly or










CONFIDENTIAL


	
 

	
 

	
 


	
 

	
 

	
indirectly,
  concerning the existence or terms of this Agreement (or the subject matter
  hereof) without obtaining the prior consent of the other Party under Section4.5.2; it
being envisioned, however,
  that there shall be an initial (but limited) public announcement of the existence of this
  Agreement and that, upon launch of commercialization, there will be
  announcements and marketing (none of which will contain any Confidential
  Information).


	
 

	
 

	
 


	
 

	
4.5.2

	
Should a Party
  wish to make any press release or other public announcement, it shall provide
  a draft thereof to the other Party and, unless otherwise agreed upon by the
  Parties, the reviewing Party shall have (a) ten (10) calendar days to consent
  to (or comment upon) a proposed initial
  public announcement concerning the existence or terms of this
  Agreement (or the subject matter hereof), such consent not to be unreasonably
  withheld or delayed, and (b) otherwise, fifteen (15) calendar days to consent to the
publication of any
  announcement other than an initial public announcement, such consent not to
  be unreasonably withheld. The aforegoing “reasonable” standard of consent
  shall not apply to a proposed public disclosure of Confidential Information,
  which may be prohibited by the Disclosing Party in its sole and absolute
  discretion.


	
 

	
 

	
 


	
 

	
4.5.3

	
If either Party
  shall be required by law or regulation to make a public announcement or securities filing concerning the
  existence or terms of this Agreement,
  such Party shall (a) include only such information in the public
  announcement that is specifically required, and (b) give at least two business days prior advance notice to the other
  Party and obtain the other Party’s comments.


	
 

	
 

	
 


	
4.6

	
Equitable Relief. MMI and Hubbard in their role as
  Receiving Parties under this Agreement hereby acknowledge, covenant, and
  agree that, with respect to the nature of the Confidential Information, there
  may be no adequate remedy at law for any breach of their obligations as
  Receiving Party under the confidentiality provisions of this Agreement, that
  any such breach may result in irreparable harm to the Disclosing Party and,
  therefore, notwithstanding Section 12.12, that upon any such breach the Disclosing
  Party shall be entitled to seek equitable relief, in addition to whatever
  remedies it might have at law, including injunctive relief, specific
  performance, or such other relief as the Disclosing Party may request to
  enjoin or otherwise restrain any act prohibited hereby, as well as the
  recovery of all reasonable costs and expenses, including attorneys’ fees
  incurred.





5     INTELLECTUAL
PROPERTY


	
 

	
 


	
5.1

	
MMI Rights and
  Obligations. MMI shall own all right, title, and interest in and to the MMI Technology.
  MMI shall assume in its discretion and at its cost the application,
  prosecution, maintenance, defense, and enforcement of patent applications and
  patents claiming all or a portion of the MMI Technology.





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5.2

	
Hubbard Rights and
  Obligations. Hubbard shall own all rights title; and interest in and to the
  Hubbard Technology. Hubbard shall assume in its discretion and at its cost
  the application, prosecution, maintenance, defense, and enforcement of patent
  applications and patents claiming all or a portion of the Hubbard Technology.


	
 

	
 

	
 


	
5.3

	
Joint Intellectual
  Property Rights. Except as otherwise provided in this Agreement,
  during the term of this Agreement all Joint IP shall be owned jointly by MMI
  and Hubbard and the following shall apply:


	
 

	
 

	
 


	
 

	
5.3.1

	
During the term of
  this Agreement, neither Party may enter into any negotiations, discussions or
  agreements with any Third Party regarding association studies in any of the
  Targeted Traits in broiler breeding stock in poultry.


	
 

	
 

	
 


	
 

	
5.3.2

	
Article 6 provides
  Hubbard with exclusivity in the Field and describes and [****] Hubbard’s use
  of the [****].


	
 

	
 

	
 


	
 

	
5.3.3

	
MMI, subject to
  Article 6 and on an exclusive basis, may further develop, make, use, sell, or
  sublicense the [****] (and conduct research in furtherance thereof) for
  purposes other than improving [****] stock.


	
 

	
 

	
 


	
 

	
5.3.4

	
In no event shall
  the rights and restrictions established in this Section 5.3 prevent either
  Party from performing its obligations under this. Agreement.


	
 

	
 

	
 


	
 

	
5.3.5

	
In order to ensure
  the highest trade secret protection of unpatented Joint IP and MMI Technology
  in recognition of MMI’s research and development efforts among several
  species and in recognition of the confidential and restricted nature of the
  databases licensed from Celera, subject to Section 7.7 and in furtherance of
  (and exceeding) the provisions of Article 4, MMI shall be entitled to
  maintain complete confidentiality (on a “firewall”
  basis without any delivery to Hubbard) of the SNP primer pairs and SNP
  amplicon sequences that are a part of the MMI Technology and the sequence
  information related to the Putative SNP Set (which itself is not Joint IP).
  Notwithstanding anything in this Section
  5.3.5 to the contrary, its is understood that the firewalled data
  shall be included in the databases made available for Hubbard review in
  accordance with Section 2.3 and provided to the Escrow Agent in accordance
  with Section 7.7.


	
 

	
 

	
 


	
5.4

	
MMI Patents. All United States and foreign
  patent applications that claim MMI Technology shall be prepared, filed,
  prosecuted and defended in the sole discretion and under the sole
  responsibility of MMI.





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CONFIDENTIAL


	
 

	
 


	
5.5

	
Hubbard Patents. All United States and foreign
  patent applications that claim Hubbard Technology shall be prepared, filed,
  prosecuted and-defended in the sole discretion and under the sole
  responsibility of Hubbard.


	
 

	
 


	
5.6

	
Joint IP Patents. All United States and foreign
  patent applications that claim Joint IP shall be prepared, filed, and
  prosecuted by counsel to be mutually agreed
  by the Parties. Hubbard acknowledges that MMI has significant expertise
  and experience in intellectual property matters relating to genomic markers
  associated with biological traits, and consequently agrees to take particular
  note of MMI’s advice concerning the
  selection of patent counsel and the decision as to whether to file a
  patent application in respect of any given genomic marker or markers, and not
  to unreasonably reject any such advice. If the Parties cannot agree with
  respect to a particular issue not expressly governed by this Agreement (e.g.,
  whether to file, selection of counsel, prosecution instructions to be given to counsel), such issue will be
  resolved pursuant to Section 12.12 of this Agreement. With regard to
  Joint IP patents, subject to Section 7.2, the Parties will continue to
  consult diligently and in good faith after the termination of this Agreement
  for so long as Joint IP patents are being prosecuted and maintained, or such
  shorter time as mutually agreed to by the Parties in writing. The Parties
  shall be equally responsible for all filing and other patent office fees,
  legal fees, and other expenses for the filing, prosecution, and maintenance
  of Joint IP patents.


	
 

	
 


	
5.7

	
No Rights to
  Celera IP or GTG IP. Nothing in this Agreement is intended or shall be
  interpreted as granting to Hubbard or any Third Party any right or interest
  in any intellectual property, whether licensed to MMI or not, (a) invented,
  discovered, developed, or otherwise created by Celera, Genetic Technologies
  Limited, and/or their respective Affiliates, or (b) acquired or licensed by
  Celera, Genetic Technologies Limited, and/or their respective Affiliates.


	
 

	
 


	
5.8

	
Infringement of
  Third Party Rights. If MMI believes that the license, transfer, or use
  of the data and information in the Dataset (and, in turn, in any Deliverable
  or Joint IP), in whole or part, infringes any patent, copyright, trademark,
  or other proprietary right, or if the licensing, transfer, or use of the
  Dataset, or any part thereof, is, as a result, enjoined, then MMI, with
  respect to data and information owned or licensed by MMI, in its sole
  discretion and expense, may (but is under no obligation to Hubbard to): (a)
  procure for Hubbard and itself the right under such proprietary right to the
  Dataset or such part thereof; or (b) replace the data or information with
  other non-infringing data or information; or (c) remove the infringing data
  or information, or part thereof, and make an equitable adjustment of the fees
  paid hereunder as mutually agreed upon in writing; or (d) if such data and
  information was received from Celera, endeavor to cause Celera to address the
  situation. In respect to any such data and information received from Hubbard,
  Hubbard may (but is under no obligation to MMI to) at its cost replace the
  data or information with other non-infringing data or information (and, to
  the extent appropriate, agree to such
  extensions and the like so that the performance of the Research Plan
  may proceed).










CONFIDENTIAL


6     EXCLUSIVITY


	
 

	
 

	
 

	
 


	
6.1

	
Hubbard
  Exclusivity. For the purposes of this Agreement, “Field” shall mean the use of
  genomic markers to detect and/or manage targeted traits in broiler livestock.
  Throughout the Hubbard Period of Exclusivity, Hubbard (and, to the extent designated in writing to MMI, Hubbard’s
  Affiliates) shall have the exclusive right and license, without the
  right to sublicense, to practice and use the Joint IP in the Field in (and
  only in) its own broiler-breeding operations to detect the Targeted Traits in its lines of broiler breeding
  stock throughout the Territory to the fullest extent permitted by
  applicable law. No Hubbard customer (e.g., the growers and producers to which Hubbard sells) shall have any rights to
  any Joint IP (except to the extent the animals sold to the customers
  were selected and bred using Joint IP) or
  be considered as an intended third party beneficiary of this
  Agreement. Hubbard and its Affiliates may not sell Targeted Traits-based
  diagnostic kits to its customers. During the Hubbard Period of Exclusivity,
  MMI and its Affiliates may not license Joint IP or sell any diagnostic kits
  to any Third Parties for use in connection with broiler livestock.


	
 

	
 

	
 

	
 


	
 

	
For the purposes
  of this Agreement, the “Hubbard Period of Exclusivity” shall begin on the
  Effective Date and shall end on the earlier of:


	
 

	
 

	
 

	
 


	
 

	
 

	
(a)

	
the date of expiry
  of this Agreement;


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
the early
  termination of this Agreement (for any reason other than a Hubbard
  termination under Section 7.2 due to an uncured default by MMI);


	
 

	
 

	
 

	
 


	
 

	
 

	
(c)

	
any earlier date
  on which Hubbard ceases to undertake commercially reasonable and diligent
  efforts to use Joint IP to [****] its lines of broiler breeding stock and/or
  to [****] broiler breeding stock that has been improved using Joint IP;


	
 

	
 

	
 

	
 


	
 

	
 

	
(d)

	
the full and final
  cessation of the [****] of [****] and [****] and/or [****] of broiler
  breeding stock based upon the Genomic Markers; or


	
 

	
 

	
 

	
 


	
 

	
 

	
(e)

	
on the [****]
  ([****]) anniversary of the completion of the Research Plan unless Hubbard has
  paid MMI prior to such anniversary at least
  either (i) $[****] in royalties due
  under Section 8.2.1 or (ii) at Hubbard’s option, an aggregate of
  $[****] in a combination of (A) royalties due under Section 8.2.1 and/or (B),
  a voluntary, nonrefundable, and noncreditable payment.


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
In the event (on
  the date of the [****]-year anniversary) Hubbard has not actually paid
  $[****] in royalties to MMI, Hubbard shall inform MMI of the amount of Net
  Sales received by Hubbard through such
  anniversary date on which royalties have not yet been paid (but which
  royalties will be paid after the end of the then ­current calendar quarter)
  and (for the purposes of subsection (e) of





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CONFIDENTIAL


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
this Section 6.1
  only) such unpaid royalties shall be deemed to be included in the calculation
  of the royalties paid for the purposes of Sections 6.1(e) (i) and (ii).








	
 

	
 


	
 

	
After the end of
  the Hubbard Period of Exclusivity, Hubbard’s exclusive license set forth
  above in this Section 6.1 shall become a non-exclusive license.


	
 

	
 


	
6.2

	
Standstill in Third
  Party Negotiations. Throughout the Hubbard Period of Exclusivity, MMI shall not enter into any
  negotiations, discussions, or agreements with any Third Party
  regarding any association studies in broiler breeding stock, or the license
  to any Third Party of any Joint IP for the purpose of detecting or improving
  broiler breeding stock.


	
 

	
 


	
 6.3

	
Sample Collection
  and Testing Services. In order to use the Joint IP as contemplated in
  Section 6.1, Hubbard will after the completion of the Research Plan require
  DNA collection tools and/or technologies to collect DNA from broilers and
  laboratory and/or diagnostic/analytical services to test such DNA for the
  markers associated with the Targeted Traits (“Collection Services” and “Testing
  Services”, respectively). It is the mutual expectation of the Parties that
  the Joint IP will be utilized in a fashion in which Hubbard will collect a
  blood sample for each animal that Hubbard
  desire to have the Targeted Traits detected and submit that blood
  sample to the Testing Service provider for analysis using the Joint IP.


	
 

	
 


	
 

	
MMI shall be the
  preferred provider of Collection Services and Testing Services to Hubbard
  throughout the Hubbard Period of Exclusivity. MMI undertakes to propose such
  services to Hubbard at a fee based upon its production cost (plus an amount equal to [****] percent ([****]%) of such cost), which
shall be determined in accordance with
  generally accepted accounting principles, as applied consistently by MMI).
  MMI shall only be obligated to propose such services in respect of calendar
  years during which Hubbard undertakes to submit at least [****] ([****])
  samples for Testing Services.


	
 

	
 


	
 

	
Hubbard shall as
  may be reasonably agreed by the Parties’ Primary Contacts provide to MMI
  advance notice of expected requirements for Collection and Testing Services, and based thereon MMI shall
  calculate and provide to Hubbard proposed costs to MMI for these
  services. Should the costs proposed by MMI be substantially equivalent to
  those proposed by any Third Party provider to perform such services, Hubbard
  shall retain MMI to perform the services, and MMI shall perform the services
  and invoice Hubbard on a monthly basis, such invoices to be paid within
  forty-five (45) days. The Parties shall jointly design the protocols for the
  management and collection of samples.


	
 

	
 


	
 

	
Should MMI not
  propose to provide services required by Hubbard (because Hubbard [****] for
  at least [****] samples), or should a Third Party provider propose to Hubbard
  to perform Collection and/or Testing Services for a price that is substantially
  inferior to that proposed by MMI, and










CONFIDENTIAL


	
 

	
 


	
 

	
should
  MMI not wish to match such price, then Hubbard (after written notice of at least
  thirty (30) days to MMI) shall be free to retain the Third Party to perform
  the services. Hubbard (after written notice of at least thirty (30)
  days to MMI) shall also be free to contract with a Third Party provider
  should MMI be unable for any reason to provide such Collection and/or Testing
  services or should it provide such services in an unsatisfactory manner. Hubbard’s
  retaining any Third Party to provide Collection and/or Testing Services shall
  be Hubbard’s sole remedy to which Hubbard may be entitled to should MMI not
  have offered and agreed to provide such
  Services; provided, however,
  that upon MMI and Hubbard agreeing
  upon MMI providing such Services to Hubbard, the Parties shall thereupon
  enter into a genotyping collection and/or testing services agreement (which
  shall be upon industry-standard terms, including MMI being liable under such
  agreement for actual damages, but not lost
  profits and consequential, incidental, and special damages).


	
 

	
 


	
 

	
Notwithstanding
  anything in the foregoing to the contrary, in the event MMI has proposed to
  provide certain Testing Services to Hubbard, Hubbard may only utilize a less
  expensive Third Party for such Testing Services after such Third Party
  has demonstrated that it shall be capable of providing the services with a
  quality that is substantially comparable to that of the services proposed by
  MMI, said “quality” to be evaluated in light of the purpose for which Hubbard
  will use the results of the Testing Services. At a minimum, the Third Party
  must have demonstrated the quality of its services in a trial test of at
  least [****] ([****]) birds showing a [****] in the range of [****]% in
  accordance with quality assessment protocols then agreed upon by the Parties.
  This quality assessment may, by way of non-binding example, be based upon two
  parameters: (a) no single sample shall have less than [****]% complete [****]
  data (e.g., if [****] are tested, the Third Party must have provided data for
  at least [****]) and (b) [****]% of the SNP data genotype calls must agree with
  [****] (i.e., [****]% or [****] must agree with [****]). Upon
  written request, Hubbard may request that the proposed Third Party testing
  service attempt a second test if the first test failed to demonstrate
  sufficient concordance.


	
 

	
 


	
 

	
In any case where
  Hubbard retains a Third Party to perform Testing Services in accordance with
  this Section 6.3, MMI shall provide to Hubbard or to such Third Party all data and information, including
  without limitation Joint IP not provided to Hubbard in accordance with
  Section 5.3.5, as may be reasonably required or useful for the Third Party to
  provide the services (provided, however, that if such Joint IP has been
  firewalled under such Section, its use must be reasonably necessary or useful
  for the Third Party to perform the Testing Services). In particular, the
  sequences, assay development, primer pairs and amplicon sequences for all SNPs that are to be genotyped
  by the Third Party as part of the Testing Services shall be deemed to
  be necessary or useful data. Should MMI not provide such information within
  ten (10) days of Hubbard’s written request, Hubbard
  shall be entitled to cause the Escrow Agent contemplated in Section 7.7
  to provide all such information to Hubbard or to the Third Party service
  provider, and the Escrow Agent shall promptly provide the information upon
  request. In





Page 17






CONFIDENTIAL


	
 

	
 


	
 

	
any
  case, before receiving any such information, the Third Party service provider shall undertake in writing to
  Hubbard, and if requested by MMI to MMI, that all information received shall be held in strict confidence and shall
  solely be used for the purpose of performing Testing Services for
  Hubbard.





7      TERM AND TERMINATION 


	
 

	
 

	
 


	
7.1

	
Term. Unless terminated earlier as
  provided herein, this Agreement shall be in full force and effect for the
  Term.


	
 

	
 

	
 


	
7.2

	
Default. If either Party commits a breach
  of a material term or provision of this Agreement
  at any time and has not cured such breach within thirty (30) calendar days after written notice thereof from the
  non-breaching Party, which notice must state the nature of the breach in reasonable detail, then the
  non-breaching Party shall have the
  right to declare the defaulting Party in breach and to terminate this
  Agreement effective upon written notice thereof to the breaching Party. In
  the event that a claimed non-monetary breach is of a nature that cannot be
  cured within thirty (30) days, but may reasonably be cured within ninety (90)
  days, the breaching Party (upon notice to the non-breaching Party) may extend
  the cure period up to ninety (90) days, in total, provided that the breaching
  Party has promptly commenced (and shall thereafter continue to pursue)
  efforts to effect such cure. The payment of money shall never by its nature
  be a matter requiring a cure of more than thirty (30) days. Any notices under
  this Section 7.2 must be addressed to the person(s) and/or office(s)
  identified in Section 12.9.


	
 

	
 

	
 


	
 

	
7.2.1

	
In the event this
  Agreement is terminated by either Party pursuant to this Section 7.2, the
  defaulting Party shall automatically relinquish and forfeit all of its
  rights, title and interest in and to the Joint IP, and upon such termination
  all of its rights, title and interest in and to the Joint IP shall
  immediately transfer to the non-defaulting Party. Thereafter, the defaulting
  Party shall have no right to make, sell, license, or convey any rights in
  Joint IP or use the Joint IP for any purpose whatsoever, and the non-defaulting
  Party shall have the sole and exclusive right to make, use, sell or
  sublicense the Joint IP to detect the Targeted Traits in lines of broiler
  breeder stock or for any other purpose whatsoever, including, without limitation, the right to collaborate
  with other parties to complete the activities contemplated by this
  Agreement. Notwithstanding anything in the forgoing to the contrary, however,
  if prior to any such termination MMI has
  already, on an exclusive basis, licensed out the Joint IP in accordance
  with Section 5.3.3 for a use outside of the Field, such exclusivity shall
  continue (and Hubbard, if it is the non-defaulting Party, cannot use or
  license the Joint IP in such exclusive, non-broiler field) provided that MMI
  or such other MMI licensee shall pay to Hubbard all consideration to be paid
  under such agreement in consideration for the license(s) to any Joint IP.










CONFIDENTIAL


	
 

	
 

	
 


	
 

	
7.2.2

	
In the event this
  Agreement is terminated by either Party pursuant to this Section 7.2, the
  defaulting Party shall be liable to the non-defaulting party with respect to
  all obligations arising on or prior to the default by the defaulting Party,
  but shall not be liable to the non-defaulting for the non­performance of any
  obligations under this Agreement that were due after such termination, except
  for a violation of Section 7.2.1 or as otherwise expressly set forth herein.


	
 

	
 

	
 


	
 

	
 

	
Specifically, for
  example:


	
 

	
 

	
 


	
 

	
 

	
First example: In the event that Hubbard
  abandons the Research Plan (and refuses to recommence), or in the event
  Hubbard is otherwise in material breach of its obligations under the Research
  Plan, MMI shall, after providing notice and otherwise following the
  procedures set forth in this Section 7.2, have the right to terminate this
  Agreement, in which case (i) MMI shall become the sole owner of the Joint IP
  in accordance with Section 7.2.1, and (ii)
  Hubbard shall have no further liability to MMI arising from non-performance of the remainder of the
  Research Plan following the date of such termination. In addition, in
  such case, Hubbard shall not enter into any negotiations, discussions, or
  agreements with any Third Party regarding any association studies in broiler
  breeding stock for a period of three (3) years from termination.


	
 

	
 

	
 


	
 

	
 

	
Second example: In the event that MMI abandons
  the Research Plan (and refuses to
  recommence), or in the event MMI is otherwise in material breach of
  its obligations under the Research Plan, Hubbard shall, after providing
  notice and otherwise following the procedures set forth in this Section 7.2,
  have the right to terminate this Agreement, in which case (i) Hubbard shall
  become the sole owner of the Joint IP in accordance with Section 7.2.1, and (ii) MMI shall have no
  further liability to Hubbard arising from non-performance of the
  remaining Parts of the Research Plan and non-delivery
  of the Deliverable(s) due from MMI following the date of such
  termination. In addition, in such case, MMI shall not enter into any
  negotiations, discussions, or agreements with any Third Party regarding any
  association studies in broiler breeding stock for a period of three (3) years
  from termination.


	
 

	
 

	
 


	
 

	
Notwithstanding
  anything in this Section 7.2 or other Section to the contrary, MMI’s failure
  to deliver any Deliverable(s) due to either scientific impossibility or the
  impracticability of the effort resulting from the occurrence of significant
  unforeseen obstacles or challenges (e.g., the association study requiring
  substantially more than the number of genotypes set forth in the Research
  Plan) shall not constitute a breach of this Agreement and the provisions of
  this Section 7.2 in regard to termination of this Agreement and ownership of
  Joint IP shall not apply. Instead, Section 5.3.3 and (if applicable) Section
  7.3.1 shall govern in each instance. MMI
  shall, however, in such case, not enter into any negotiations,
  discussions, or agreements with any Third Party regarding any association





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CONFIDENTIAL


	
 

	
 

	
 


	
 

	
studies in broiler
  breeding stock for a period of three (3) years from termination, unless MMI
  has given Hubbard a first opportunity to negotiate to enter into a new
  agreement with MMI for a renewed or different effort. Should MMI wish to
  pursue an association study in broiler breeding stock with a third party
  during such three­year period, MMI shall first propose the contemplated
  research program to Hubbard, providing Hubbard with sufficient information
  concerning the content of the proposed program and the principal terms and
  conditions of the contemplated agreement related thereto for Hubbard to
  determine whether it is interested in pursuing the program with MMI on such
  conditions. Hubbard shall have thirty (30) days from MMI’s proposal to notify
  MMI whether it wishes to pursue the proposed program with MMI; if Hubbard
  indicates that it is so interested, the Parties shall have sixty (60) days
  from such notification of Hubbard’s interest to diligently and in good faith
  negotiate and execute an agreement covering the program. If Hubbard indicates
  that it is not interested in pursuing the program, or does not notify MMI of
  its intention within the relevant thirty (30) day period, or the Parties have
  not executed an agreement in respect of the program within the relevant sixty
  (60) day period, MMI shall be free to pursue the program with any third
  party, provided that the agreement entered into with the third party shall be
  no more favorable to the third party than the terms proposed by MMI to Hubbard.


	
 

	
 

	
 


	
7.3

	
Termination Based
  on Recommendation of Steerinq Committee. If, pursuant to Section 2.7.1(d),
  the Steering Committee makes a recommendation not to proceed to the next
  Phase of the Research Plan due to either scientific impossibility or the
  impracticability of the effort resulting from the occurrence of significant
  unforeseen obstacles or challenges, or if the Steering Committee is unable to
  agree on a recommendation, the senior executives of the Parties shall meet to
  discuss the recommendation and the following shall apply:


	
 

	
 

	
 


	
 

	
7.3.1

	
In the event that
  both executive officers agree to abandon the Research Plan, the Parties shall
  execute a document indicating their decision not to proceed with further work under the Research Plan and to jointly
  terminate this Agreement. Upon a termination of this Agreement
  pursuant to this Section 7.3.1, the following conditions shall apply
  following termination of the Agreement: (a) neither Party shall have any
  further liability to the other for future research or payment obligations
  under this Agreement; (b) the Joint IP shall continue to be jointly owned by
  MMI and Hubbard following such termination, with the provisions of Section
  5.3 and Article 4 continuing to govern; (c) Hubbard shall retain the exclusive
  right to exploit and license Joint IP in the Field and MMI shall retain the
  exclusive right to exploit and license
  Joint IP outside of the Field; and (d) MMI shall promptly return to
  Hubbard or destroy all Hubbard Materials and Confidential Information in
  accordance with Section 2.2.2.


	
 

	
 

	
 


	
 

	
7.3.2

	
In the event that
  both executive officers agree to proceed with the Research Plan, the Parties
  shall confirm their joint decision in writing and the Parties shall proceed
  to the next Phase of the Research Plan.




Page 20






CONFIDENTIAL


	
 

	
 

	
 


	
 

	
7.3.3

	
In the event one
  executive officer wishes to proceed with the Research Plan and the other does
  not, the Party that wishes to proceed shall send written confirmation of its
  decision to the other Party and the Parties shall proceed to the Next Phase
  of the Research Plan (but, in such event, the Party that did not wish to
  proceed shall not be obligated to expend any funds above what it had already
  budgeted for such effort and, in any event, shall not be required to
  undertake any scientifically meaningless effort).


	
 

	
 

	
 


	
7.4

	
Bankruptcy. Either Party may terminate this
  Agreement immediately upon the occurrence of any of the following events: (a)
  if the other Party ceases to. do business, or otherwise terminates its
  business operations; or (b) the other Party seeks protection under any
  bankruptcy, receivership, trust deed, creditors arrangement, composition, or
  comparable proceeding, or if any such proceeding is instituted against the
  other Party (any of the above being an “Insolvency Event”). Each Party shall
  immediately notify the other Party should it be subject to an Insolvency
  Event. All rights granted under this Agreement are deemed to be, for purposes
  of § 365(n) of the United States Bankruptcy Code, rights to intellectual
  property, and the Parties will retain and may fully exercise all of their
  rights under this Agreement. The Parties agree that Hubbard is a licensee of such rights under this Agreement and shall
  retain and may fully exercise all of its rights and elections under
  the U.S. Bankruptcy Code. The Parties further agree that, in the event of the
  commencement of an Insolvency Event affecting MMI, Hubbard shall, whether or
  not it decides to terminate this Agreement pursuant to the above paragraph,
  be entitled to a complete duplicate of all data and information that
  comprises the Joint IP and that was or should have been provided to the
  Escrow Agent in accordance with Section 7.7. All such data and information
  and all media containing such, if not already in its possession, shall be, within ten (10) days of the commencement of
  the Insolvency Event, delivered to Hubbard upon Hubbard’s written
  request therefore. The delivery to Hubbard of
  the data and information contemplated above shall be made by MMI; provided
  that if for any reason MMI is unable to or does not deliver such data or
  information within ten (10) days of Hubbard’s written request, Hubbard may
  promptly cause the Escrow Agent to provide it with the data and information.


	
 

	
 

	
 


	
 7.5

	
Consequences of
  Termination. Upon termination of this Agreement, in addition to any provisions
  specifically addressed in any Section regarding terminations, the following
  provisions shall survive: 4, 5, 7, 10, 11 and 12. Expiration or termination
  of this Agreement shall not affect any rights or obligations of either party
  accruing prior to such expiration or termination.


	
 

	
 

	
 


	
 7.6

	
Remedies. The rights and remedies provided
  in this Article 7 shall not be exclusive and shall be in addition to any
  other rights and remedies available at law or in equity (which other rights
  and remedies, to the extent not in contradiction with this Agreement, may be
  exercised).




Page 21





CONFIDENTIAL


	
 

	
 


	
7.7

	
Escrow of
  Firewalled SNP Set Information. MMI, at Hubbard’s cost, shall provide to a
  third-party escrow agent (reasonably acceptable to Hubbard and under written
  contract with the Parties, the “Escrow Agent”) the Putative SNP Set and
  validated Chicken Discovery Panel, together with all data and information
  that constitutes the Joint IP. as would be reasonable necessary or useful for
  a qualified Third Party to continue MMI’s activities as contemplated under
  the Research Plan with the objective of developing Genomic Markers. This data
  and information shall be provided to the Escrow Agent on a regular basis as
  it becomes available, and at least once every calendar quarter. The Putative
  SNP Set shall be taken out of escrow and returned by the Escrow Agent to MMI
  after the completion of Phase II of the Research Plan and the provision by
  MMI to the Escrow Agent of the complete validated Chicken Discovery Panel and
  all data related to the SNPs contained therein (including [****] for the
  [****],[****] ([****] and [****]) and [****] of the [****] on the [****]).
  Hubbard shall be entitled to conduct a regular review of the data provided to the Escrow Agent, on the same
  conditions as those set out in Section 2.3, to verify the information
  provided is consistent with that available in the MMI database. MMI may at
  any time agree to provide to Hubbard, subject to Hubbard undertaking
  appropriate confidentiality obligations, the data and information held in
  escrow, in which case the escrow shall be terminated.


	
 

	
 


	
 

	
The
  Parties recognize that MMI, in accordance with Section 5.7, shall not provide the Escrow Agent with
certain
  confidential information owned by Celera and not part of any MMI Technology
  (e.g., Celera’s bovine SNP maps, database, and technology to which MMI has
  access by virtue of its license from Celera, but which MMI does not have the
  right to provide to other parties).


	
 

	
 


	
 

	
The Escrow Agent
  (as an agent for the Parties) shall hold such escrowed confidential
  information on a strict confidentiality basis. Upon a termination of this
  Agreement under Section 7.2.1 (in the event of an MMI breach and declaration
  of termination by Hubbard), the Escrow Agent (upon at least thirty (30) days
  prior written notice by Hubbard to the Escrow Agent and to MMI) shall release
  all such escrowed information and data to Hubbard. In such event, MMI may
  challenge by Section 12.12 any such release (thereby delaying it). Hubbard, upon
  receipt of any such information shall treat it as highly confidential and
  maintain it as a closely guarded trade secret.


	
 

	
 


	
 

	
Hubbard may also
  obtain the escrowed information and data from the Escrow Agent in the cases
  contemplated, and in accordance with the terms and conditions specified, in
  Section 6.3, 7.4 and 12.2 of this Agreement.


	

8 COMMERCIALIZATION OF GENOMIC


	
MARKERS AND PAYMENT OF ROYALTIES


	
 


	
8.1

	
Intent. The objective of this Agreement
  is to develop genomic DNA-based diagnostic
  abilities based upon the Joint IP (the “Genomic Markers”) to detect the
  Targeted Traits in Hubbard’s proprietary pure lines for broiler breeding
  stock (and




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CONFIDENTIAL


	
 

	
 

	
 


	
 

	
select and manage
  the breeding of such stock) with the goal of broadly utilizing such Genomic
  Markers-in Hubbard’s operations in North America, Europe, Asia, and
  ultimately worldwide.


	
 

	
 

	
 


	
8.2

	
Royalty Payments.


	
 

	
 

	
 


	
 

	
8.2.1

	
Hubbard shall pay
  to MMI a royalty equal to [****] percent ([****]%) of Net Sales. This royalty
  rate shall be [****] upon Hubbard’s (and every Affiliate’s) full and final
  cessation of the selection of pedigrees and great grandparents and/or
  improvement of broiler breeding stock based upon the Genomic Markers, as
  follows: (a) upon the [****] ([****]) anniversary of such cessation, the
  royalty rate shall thereupon be [****] percent ([****]%), (b) upon the [****]
  ([****]) anniversary of such cessation, the royalty rate shall thereupon be [****] percent ([****]%), (c) upon the
[****] ([****]) anniversary of such cessation, the
  royalty rate shall thereupon be [****] percent ([****]%), (d) upon the [****]
  ([****]) anniversary of such cessation, the royalty rate shall thereupon be [****] percent ([****]%), and (e) upon the
[****]
  ([****]) anniversary of such
  cessation, the royalty rate shall thereupon be [****]. Such cessation shall not be deemed to have occurred
  unless and until Hubbard has so notified MMI in writing. Hubbard shall
  notify MMI of such cessation in writing, specifying the date on which the
  cessation occurred.


	
 

	
 

	
 


	
 

	
 

	
Net Sales shall
  mean the gross revenues received by Hubbard and/or its Affiliates from the
  sale of any and all broiler breeders that were selected, bred or improved
  using the Joint IP, after deducting the following reasonable and customary
  deductions to the extent applicable to such gross
  receipts: (i) all trade, cash and quantity credits, discounts, refunds or
  rebates actually granted; (ii) allowances
  or credits to customers or charges back from customers on account of
  rejection or return of products, or on account of retroactive price
  reductions affecting such products; and (iii) packaging, handling fees and prepaid freight, sales taxes, duties and
  other governmental charges (including value added tax), but excluding
  income and similar taxes. For the avoidance of doubt, Net Sales shall not
  include sales by Hubbard to its Affiliates for resale. Transfers or
  dispositions for promotional purposes or for testing, regulatory or
  governmental purposes shall not be considered “sales”.


	
 

	
 

	
 


	
 

	
8.2.2

	
MMI shall pay to
  Hubbard a royalty of [****]% of Net Sales received by MMI and/or its
  Affiliates from the sale by MMI or its Affiliates of any and all genetically
  improved or selected [****] livestock that were selected, bred, or improved
  using the Joint IP. This royalty rate shall be reduced, upon cessation of the
  use of the Joint IP in a particular [****] use, in the same fashion as set
  forth in the second sentence of Section 8.2.1. MMI shall notify Hubbard of
  such cessation in writing, specifying the date on which the cessation
  occurred. Furthermore, if MMI or its Affiliates licenses into MMI any
  intellectual property from a Third Party for the development of genomic markers and/or the selection of desired traits
  in a










CONFIDENTIAL


	
 

	
 

	
 


	
 

	
 

	
[****] use, the
  royalty rate set forth in this Section 8.2.2 shall be reduced (up to,but
  not exceeding fifty percent (50%)) for any royalties paid to such Third
  Party. If, by way of example, MMI is to pay a Third Party a one percent (1%)
  royalty, then the royalty rate paid by MMI to Hubbard shall be [****] percent
  ([****]%); but if the royalty rate to the Third Party is three percent (3%),
  the royalty rate paid to Hubbard shall be [****]-an-[****] percent ([****]%),
  not [****] percent ([****]%).


	
 

	
 

	
 


	
8.3

	
Royalty Period. Each Party’s obligation to pay
  royalties to the other Party in accordance with Section 8.2.1 or 8.2.2 shall
  continue on a country by country basis
  until the later of: (a) the last to expire Valid Claim of a Joint IP patent
  in the country which would be
  infringed by the manufacture, use, sale or importation of the product in the country, and (b) ten years
  following the first sale in any country of a product selected, bred or
  improved using Joint IP on which royalties were paid hereunder.


	
 

	
 

	
 


	
 8.4

	
Sharing of MMI
  Revenue from Exploitation of Joint IP. MMI shall pay to Hubbard [****]
  and [****] percent ([****]%) of any and all consideration received by MMI
  and/or its Affiliates from the license of any Joint IP to Third Parties for
  use outside the Field. MMI shall pay to Hubbard [****] percent ([****]%) of
  any and all consideration received by MMI
  and/or its Affiliates from the license of any Joint IP to Third
  Parties for use in the Field (which may not occur during the Hubbard Period
  of Exclusivity).


	
 

	
 

	
 


	
 

	
MMI shall pay to
  Hubbard [****] and [****] percent ([****]%) of the gross margin obtained from
  the sale of diagnostic kits commercialized by MMI and/or its Affiliates from sales of diagnostic kits
  incorporating Joint IP for use outside the Field. MMI shall pay to
  Hubbard [****] percent ([****]%) of the gross margin obtained from the sale
  of diagnostic kits commercialized by MMI and/or its Affiliates from sales of
  diagnostic kits incorporating Joint IP for use in the Field (which may not
  occur during the Hubbard Period of Exclusivity).


	
 

	
 

	
 


	
 

	
Notwithstanding
  anything in the foregoing paragraphs of this Section 8.4 to the contrary, in
  recognition that any such out-licensing by MMI will likely arise from further
  development of MMI Technology and the Joint IP (e.g., similar traits in
  different species, different or additional markers), such percentages (a)
  shall be reduced to [****] and [****] percent ([****]%) (for inside the
  Field) and [****] percent ([****]%) (for outside the Field), respectively, if
  less than fifty percent (50%) of the markers used (by the Third Party
  licensee or in the diagnostic kit, as the case
  may be) were identified pursuant to the Research Plan as being informative
  in respect of Targeted Traits , (b) remain the same if ninety percent (90%)
  or more of the markers used (by the Third
  Party licensee or in the diagnostic kit, as the case may be) were
  identified pursuant to the Research Plan as being informative in respect of
  Targeted Traits, and (c) be proportionately reduced (i.e., between [****]% and [****]% and/or between [****]% and
[****]%, respectively) if the percentage of the markers used is more
  than fifty percent (50%) and less than ninety percent (90%). This royalty
  shall be paid whether the Targeted Traits are










CONFIDENTIAL


	
 

	
 


	
 

	
licensed to the
  Third Party or used in the diagnostic kit, as the case may be, in their
  entirety or as single traits (and the “percentage-of-markers” mechanism shall
  be applied per trait and shall be the basis for the royalty calculation).


	
 

	
 


	
8.5

	
Royalty and
  Revenue Sharing Reports. After the first commercialization of Joint IP by
  Hubbard or by MMI, such Party shall deliver written reports to the other
  Party for each calendar quarter within sixty (60) days after the end of such
  quarter, stating in each such report its Net Sales from the commercialization
  of livestock selected, bred or improved
  using Joint IP or the gross revenue from the license to a Third Party of Joint IP, or from the sale of diagnostic
  kits, as the case may be, and the calculation of royalties or other
  revenue sharing payments due to the other Party thereon pursuant to Sections
  8.2, 8.3 or 8.4. With each such report, the royalties or other payments due
  for the reported quarter shall be paid.


	
 

	
 


	
8.6

	
Currency
  Conversions. All payments to be made hereunder shall be in US dollars. If any
  currency conversion shall be required in connection with the calculation of
  royalties hereunder, such conversion shall be made using the closing exchange
  rate for conversion of the foreign currency into U.S. Dollars quoted on the
  Internet site http://www.xe.com/ict/ (or, if not available, as current
  transactions are reported by Reuters or
  its successor) for the last business day of the relevant calendar quarter. Should royalties earned in certain
  countries not be eligible for payment from that country, the party
  owing the royalties shall pay the other party the equivalent of such
  royalties due in U.S. Dollars from other sources of funds.


	
 

	
 


	
8.7

	
Records and
  Inspection. Hubbard and its Affiliates and MMI and its Affiliates shall each keep
  complete, true, and accurate books of account and records (“Records”) for the
  purpose of determining the royalty amounts payable under this Agreement. Such
  books and records shall be kept at each such Party’s principal place of
  business within the United States of America or France, for at least three
  (3) years following the end of the six (6) month period to which they
  pertain. The books and records of each Party shall be open for inspection by
  the other Party during such three (3) year period by a public accounting firm
  for whom the Party to be inspected has no reasonable objection, solely for
  the purpose of verifying royalty statements hereunder. Such inspections may
  be made no more than twice each calendar year, at reasonable times and on
  reasonable notice. Inspections conducted under this Section 8.7 shall be at
  the requesting Party’s expense; provided, however, if a variation or error
  producing an increase exceeding [****] percent ([****]%) of the royalty
  amount stated for the total period covered by the inspection is
  established in the course of any such inspection, then all reasonable costs
  relating to the inspection and any unpaid amounts that are discovered shall
  be paid promptly by the audited Party to the requesting Party, together with
  interest thereon from the date such payments were due at the lesser of the Prime Rate (as defined in Section
  8.10.2) plus four percent (4%) or
  the highest rate permissible by law.




Page 25





CONFIDENTIAL


	
 

	
 


	
8.8

	
Payments and
  Invoicinq. All royalty payments and/or royalty and other invoices under this
  Agreement-shall-be made in U.S. dollars by deposit to the credit and account
  of each Party as follows:









	
 

	
 

	
 


	
 

	
If to MMI, then
  to:


	
 

	
 

	
 


	
 

	
by mail to:

	
MetaMorphix, Inc.


	
 

	
 

	
8000 Virginia
  Manor Road, Suite 140


	
 

	
 

	
Beltsville,
  Maryland 20705


	
 

	
 

	
United States


	
 

	
 

	
Attn:
  Thomas P. Russo, Chief Financial Officer and Executive Vice President


	
 

	
 

	
 


	
 

	
by wire to: Bank
  of America, N.A.


	
 

	
 

	
10 Light Street


	
 

	
 

	
Baltimore,
  Maryland 21202


	
 

	
 

	
ABA No: 052 001
  633


	
 

	
 

	
Beneficiary Name:
  MetaMorphix, Inc.
Beneficiary Account
  Number: 391 636 2583


	
 

	
 

	
 


	
 

	
If to Hubbard,
  then to:


	
 

	
 

	
 


	
 

	
by mail to:
  Hubbard SAS


	
 

	
 

	
Mauguerand,
  22800 Le Foeil 
France


	
 

	
 

	
Attn: Accounts
  Receivable




	
 

	
by wire to the
  bank account whose coordinates are communicated in writing by Hubbard.









	
 

	
 


	
8.9

	
Taxes. All amounts payable under this
  Agreement are exclusive of all sales, use, value-added and similar taxes and
  duties. Hubbard shall pay all sales and use taxes and duties assessed by any
  authority within or outside of the U.S in connection with the sale of
  products to Hubbard or performance of services for Hubbard in connection with
  Hubbard’s activities undertaken under the Research Plan.


	
 

	
 


	
 

	
The Parties shall
  be solely responsible for the payment of any and all taxes payable on their
  respective net income and the payment of any and all employment related taxes
  attributable to their respective employees, agents, and representatives.


	
 

	
 


	
 

	
Where any sum due
  to be paid by either Party hereunder is subject to any withholding or similar tax, the Parties shall
  use their best efforts to take all actions and sign all such deeds and
  documents as will enable them to take advantage of any exemption from or
  reduction in such taxes under any applicable double taxation agreement or
  treaty.





Page 26






CONFIDENTIAL


	
 

	
 

	
 


	
8.10

	
Failure by Parties
  to Make-Timely Payment.


	
 

	
 

	
 


	
 

	
8.10.1

	
Notice and Right
  to Terminate. In the event that MMI or Hubbard, as the case may
  be, has not received a payment from the other Party due under Section 8.2
  and/or Section 8.3 within the prescribed time period in violation of the terms of this Agreement, MMI or
  Hubbard, as the case may be, shall notify the late-paying Party in
  writing of such non-payment. In the event that MMI or Hubbard, as the case
  may be, has not received payment within thirty (30) days after receipt by the
  late-paying Party of such notice, MMI or Hubbard, as the case may be, shall
  have the right to suspend all (or a portion of) the late-paying Party’s
  rights to the Joint IP. In the event that such payment is not made within
  thirty (30) days of the late-paying Party’s receipt of such notice, MMI or
  Hubbard, as the case may be, also shall have the right to declare the other
  Party in default and terminate this
  Agreement with immediate effect by providing written notice to the other Party in accordance with Section
  7.2, in which case ownership and rights in and to the Joint IP and
  liability of the non-paying Party shall be as set forth in Section 7.2.


	
 

	
 

	
 


	
 

	
8.10.2

	
Late Payment Fee. Any payment due under this
  Agreement that is not paid within the specified time period in violation of
  the terms of this Agreement, shall bear
  interest to the extent permitted by applicable law, at four percentage
  points (4%) over the prime rate of interest compounded on an annual basis as
  reported by Bank of America NT&SA in San Francisco, California, from time
  to time, calculated on the number of days such payment is delinquent (the
  “Prime Rate”).


	
 

	
 

	
 


	
9
  REPRESENTATIONS AND WARRANTIES


	
AND GENERAL COVENANTS


	
 


	
9.1

	
Each Party
  represents and warrants to the other Party, upon on the date upon which this
  Agreement is executed and upon the commencement of each Phase of the Research
  Plan, that:


	
 

	
 

	
 


	
 

	
(a)

	
it is duly
  organized and validly existing and in good standing under the laws of the
  state of its incorporation and it has the corporate power and authority and the legal right to enter into this
  Agreement and to perform its obligations hereunder;


	
 

	
 

	
 


	
 

	
(b)

	
the execution and
  delivery of this Agreement and the performance of the transactions
  contemplated hereby have been duly authorized by all necessary corporate
  actions of such Party and the person executing this Agreement on behalf of
  each Party has been duly authorized to do so by all requisite corporate
  actions;




Page 27




CONFIDENTIAL

	
 

	
 

	
 


	
 

	
(c)

	
the execution and
  delivery of this Agreement and the performance by such Party of any of its-obligations- under-this
  Agreement and the grant by such Party of the licenses granted under
  this Agreement do not: (i) conflict with, or constitute a breach or violation
  of, any other contractual obligation to which it is a Party, any judgment of
  any court or governmental body applicable to such Party or its properties or,
  to such Party’s knowledge, any statute, decree, order, rule or regulation of
  any court or governmental agency or body applicable to such Party or its
  properties, or (ii) require any consent or approval of any Third Party;


	
 

	
 

	
 


	
 

	
(d)

	
it is not aware of
  any action, suit, inquiry, or investigation contemplated or instituted by any
  Third Party that questions or threatens the validity of this Agreement; and


	
 

	
 

	
 


	
 

	
(e)

	
this Agreement is
  legally binding upon its execution and, subject to the discretion of courts
  in awarding equitable relief and (particularly in respect to Section 7.4 to
  which MMI makes no such representation or warranty) to applicable bankruptcy, reorganization,
  insolvency, moratorium, and similar laws, is enforceable in accordance
  with its terms.


	
 

	
 

	
 


	
9.2

	
Hubbard represents
  and warrants that it is entitled to use and transfer to MMI the Samples, other Hubbard Material, data, and/or
  information for the purpose(s) set forth in this Agreement and that
  there are no restrictions or prohibitions limiting the development of (or
  royalties to be imposed upon the use of) new intellectual property from such
  Samples and other Hubbard Material.


	
 

	
 

	
 


	
9.3

	
MMI represents and
  warrants that it has all the rights and licenses required, including notably
  under its agreements with Cetera and Genetic Technologies Limited, to perform
  its activities as described in the Research Plan, and to develop, exploit and
  license to Hubbard in accordance with the terms hereof, new intellectual
  property from the activities so performed, and to provide to Hubbard and the Escrow Agent the data and
  information to be provided pursuant to this Agreement in accordance
  with the conditions hereof, it being understood that there is NO sublicense
  by MMI of any Cetera and Genetic Technologies Limited intellectual property.


	
 

	
 

	
 


	
9.4

	
Each Party shall
  (a) comply with all applicable laws and regulations in connection with that Party’s performance of its obligations
  and exercise of its rights pursuant to
  this Agreement, (b) maintain good standing under the laws of the jurisdiction
  of its incorporation, and (c) not enter into any contractual
  obligation that would conflict with or constitute a breach or violation of
  any material provision of this Agreement.


	
 

	
 

	
 


	
10 DISCLAIMERS AND LIMITATION OF LIABILITY


	
 

	
 

	
 


	
10.1

	
NOTWITHSTANDING
  ANYTHING IN SECTION 5.8 TO THE CONTRARY, NOTHING IN THIS AGREEMENT (EXCEPT TO
  THE LIMITED EXTENT SET




Page 28




CONFIDENTIAL

	
 

	
 


	
 

	
FORTH IN SECTION
  9.2 OR 9.3) SHALL BE CONSTRUED AS A REPRESENTATION
  MADE-OR-WARRANTY GIVEN BY EITHER PARTY THAT THE USE OF ANY
  INFORMATION, DATA, OR OTHER MATERIALS PROVIDED HEREUNDER WILL NOT INFRINGE
  ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OF ANY THIRD PARTY. THE
  INFORMATION, DATA, OR OTHER MATERIALS PROVIDED BY EITHER PARTY HEREUNDER ARE
  PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED,
  INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
  PARTICULAR PURPOSE. NEITHER PARTY MAKES ANY WARRANTY THAT THE DELIVERABLES OR
  HUBBARD TECHNOLOGY DO NOT CONTAIN ERRORS (PROVIDED THAT EACH PARTY SHALL BE
  REASONABLY DILIGENT IN PREVENTING THE OCCURRENCE OF ANY ERRORS).


	
 

	
 


	
10.2

	
IN NO EVENT SHALL
  EITHER PARTY OR THEIR AFFILIATES BE LIABLE FOR LOST PROFITS, LOSS OF USE,
  LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR ANY
  INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE
  WHATSOEVER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER BASED IN
  CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), STRICT
  LIABILITY, STATUTORY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER PARTY HAS
  BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


	
 

	
 


	
10.3

	
THE LIABILITY OF
  THE PARTIES WITH RESPECT TO ANY AND ALL SUITS, ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS,
  AND EXPENSES ARISING OUT OF THE PERFORMANCE OR NONPERFORMANCE OF ANY
  OBLIGATIONS UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, WARRANTY, TORT
  (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE),
  STRICT LIABILITY, STATUTORY, OR OTHERWISE, SHALL BE LIMITED TO DIRECT,
  ACTUAL DAMAGES INCURRED BY ONE PARTY AS A RESULT OF THE OTHER PARTY’S FAILURE
  TO PERFORM ITS OBLIGATIONS AS REQUIRED BY THIS AGREEMENT.


	
 

	
 


	
10.4

	
NOTWITHSTANDING
  ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
  PARTIES RECOGNIZE THAT ANY JOINT TECHNOLOGY DISCOVERED, CREATED, OR
  DEVELOPED UNDER THIS AGREEMENT MAY BE SUBJECT TO A THIRD PARTY’S PRIOR
  INTELLECTUAL PROPERTY RIGHTS.


	
 

	
 


	
11      INDEMNITY


	
 

	
 


	
11.1

	
Hubbard Indemnity. Subject to the limitations set
  forth in Article 10 above, Hubbard shall indemnify, defend, and hold harmless
  MMI (including its officers, directors, employees, and agents) from and
  against all personal or property losses, liabilities, damages, and expenses
  (including reasonable attorneys’ fees




Page 29




CONFIDENTIAL

	
 

	
 


	
 

	
and costs) arising
  (a) out of the falsehood or inaccuracy in any material respect of any
  representation or warranty-or-out-of-the-breach or non-fulfillment of any
  material covenant or agreement of Hubbard contained herein or contemplated hereby; or (b) out of the gross negligence or
  intentional misconduct of Hubbard in connection with the performance
  of its obligations under this Agreement; and/or (c) out of Hubbard’s use of
  Hubbard Technology or Joint IP (except to the extent any such loss,
  liability, damage, or expense is the responsibility of MMI as determined in
  accordance with Section 11.2 below).


	
 

	
 


	
11.2

	
MMI Indemnity. Subject to the limitations set
  forth in Article 10 above, MMI shall indemnify, defend, and hold harmless
  Hubbard (including its officers, directors, employees and agents) from and
  against all personal or property losses, liabilities, damages, and expenses
  (including reasonable attorneys’ fees and costs) arising (a) out of the
  falsehood or inaccuracy in any material respect of any representation or
  warranty or out of the breach or non-fulfillment of any material covenant or agreement of MMI contained
  herein or contemplated hereby or (b) out of the gross negligence or
  intentional misconduct of MMI in connection with
  the performance of its obligations under this Agreement, and/or (c) out of
  the MMI’s use of MMI Technology or Joint IP (except to the extent any
  such loss, liability, damage or expense is the responsibility of Hubbard as
  determined in accordance with Section 11.1 above).


	
 

	
 


	
11.3

	
Procedure. In the event either Party (the
  “Indemnitee”) shall wish to be indemnified by the other Party (the
  “Indemnitor”) pursuant to this Article 11, the Indemnitee shall promptly
  notify the Indemnitor of any loss, liability, damage, expense, claim, demand,
  action, or other proceeding in respect of which the Indemnitee intends to
  claim indemnification, and the Indemnitor shall have the right to participate
  in, and, to the extent the Indemnitor so desires, jointly with any other
  Indemnitor similarly noticed, to assume the defense thereof with counsel
  selected by the Indemnitor and reasonably satisfactory to the Indemnitee;
  provided, however, that an Indemnitee shall have the right to retain its own
  counsel, with the fees and expenses to be paid by the Indemnitee, if
  representation of such Indemnitee by the counsel retained by the Indemnitor
  would be inappropriate due to actual or potential differing interests between
  such Indemnitee and any other Party represented by such counsel in such proceedings.
  The indemnity agreement in this Article 11 shall not apply to amounts paid in
  settlement of any loss, liability, damage, expense, claim, demand, action, or
  other proceeding if such settlement is made without the consent of the
  Indemnitor, which consent shall not be unreasonably withheld. The failure to
  deliver notice to the Indemnitor within a reasonable time after the
  commencement of any such action, if prejudicial to its ability to defend such
  action, shall relieve such Indemnitor of any liability to the Indemnitee
  under this Article 11 to the extent Indemnitor is prejudiced by Indemnitee’s
  delay, but the omission of such notice to the Indemnitor will not relieve it
  of any liability that it may have to the Indemnitee otherwise than under this
  Article 11. The Indemnitor may not settle the action or otherwise consent to
  an adverse judgment in such action or other proceeding that affects the
  rights or interests of the Indemnitee









CONFIDENTIAL

	
 

	
 


	
 

	
without
  the express written consent of the Indemnitee, which consent shall not be unreasonably withheld. The
  -Indemnitee under this Article 11, and its employees and agents, shall cooperate fully with the Indemnitor and its legal
  representatives in the investigation of any action, claim or liability
  covered by this indemnification.


	
 

	
 


	
11A

	
Insurance. Each Party shall maintain,
  through self-insurance or commercially placed insurance, adequate coverage
  for the tort-related, non-contract-based indemnification obligations set
  forth herein and shall provide competent proof of such insurance within three
  (3) business days after receipt of a written request from the other Party.
  Any self-insurance plan shall satisfy customary standards (e.g., dedication
  of appropriate reserves) as are then typical in the applicable industry.


	
 

	
 


	
12 GENERAL PROVISIONS


	
 

	
 


	
12.1

	
No Partnership. Nothing in this Agreement is
  intended or shall be deemed to constitute partnership, agency,
  distributorship, employer-employee, or joint venture relationship between
  Hubbard and MMI. No Party shall incur any debts or make any commitments for
  the other.


	
 

	
 


	
12.2

	
Assignments. Neither Party shall assign any of
  its rights or obligations hereunder in whole or in part, except (a) as
  incident to the merger, consolidation, reorganization, or acquisition of
  stock or assets or a similar transaction affecting all or substantially all
  of the assets or voting control of the assigning Party; or (b) to any
  Affiliate if the assigning Party remains liable and responsible for the
  performance and observance of all of the Affiliate’s duties and obligations
  contained in this Agreement; or (c) in any conveyance of substantially all
  the assets that are material to the performance of the obligations contained
  in this Agreement, or (d) with the consent of the other Party, such consent
  not to be unreasonably withheld or delayed. Upon any such assignment, the
  assigning Party, the other Party, and the permitted assignee shall enter into
  an appropriate confirmatory agreement. Notwithstanding anything in this
  Section 12.2 to the contrary, Hubbard, if
  it is the assigning Party, shall give MMI reasonable advance notice if
  the intended assignee has any operations in swine or bovine livestock,
  whereupon appropriate and strict “fire wall” confidentiality restrictions
  shall first be established within the assignee entity. Similarly, MMI, if it
  is the assigning Party, shall give Hubbard reasonable advance notice if the
  intended assignee has any operations in
  broiler breeding, whereupon appropriate and strict “firewall”
  confidentiality restrictions shall first be established within the assignee
  entity. In the event (only) that such an assignment (as otherwise permitted
  under this Section 12.2) is (a) to a competitor of Hubbard in the broiler
  breeding business, and (b) during the performance of the Research Plan, then
  (and only then) Hubbard shall have the option to terminate the Research Plan
  and, in any such case, Hubbard shall
  thereupon be entitled to obtain from the Escrow Agent all the data and
  information placed in escrow in accordance with Section 7.7. This Agreement shall
  be binding upon the successors and permitted assigns of the Parties and the
  name of a Party appearing herein shall be deemed to include the




Page 31




CONFIDENTIAL

	
 

	
 


	
 

	
names
  of such Party’s successors and permitted assigns to the extent necessary to carry out the
intent of this
  Agreement-Any-assignment not in accordance with the above shall be null and
  void.


	
 

	
 


	
12.3

	
Further Actions. The Parties agree to promptly
  execute, acknowledge, and deliver such further instruments, and to do all
  such other acts, as may be necessary or appropriate in order to carry out the
  purposes and intent of this Agreement.


	
 

	
 


	
12.4

	
No Trademark
  Rights. Except as otherwise expressly provided herein or agreed to in advance
  in writing, no right, express or implied, is granted by this Agreement to use
  in any manner the trade names and trademarks “Hubbard,” “MetaMorphix,” “MMI,” “MMI
Genomics,” “Celera,”
  “Celera Genomics,” “Applera,” or any other trade name or trademark of
  a Party, its Affiliates, Celera, their respective licensors, or the names of
  any employees thereof, for any purpose other than the Parties’ internal
  purposes and uses.


	
 

	
 


	
12.5

	
Entire Agreement
  of the Parties; Amendments. This Agreement, including its Exhibits, constitutes and contains the
entire
  understanding and agreement of the Parties and cancels and supersedes
  the February 21, 2005 letter of intent between the parties, the several draft
  term sheets exchanged in 2006, and any and
  all prior negotiations, correspondence, representations, understandings, and
  agreements, whether verbal or written, between the Parties respecting the
  subject matter hereof. In case of any discrepancies between the terms
  incorporated from the Exhibits and the terms of the sections herein, the
  terms of the sections shall prevail. No waiver, modification, or amendment of
  any provision of this Agreement (and/or
  the Exhibits) shall be valid or effective unless made in writing and
  signed by a duly authorized representative of each Party. The failure or
  delay of either Party in enforcing any of its rights under this Agreement shall
  not be deemed a continuing waiver or a modification by such Party of such
  right.


	
 

	
 


	
12.6

	
Severability. In the event any that one or more
  of the provisions of this Agreement should for any reason be held by any
  court or authority having jurisdiction over this Agreement or either of the
  Parties to be invalid, illegal, or unenforceable, the Parties shall promptly
  validly reform such provision to as nearly as possible approximate the intent
  of the Parties and, if the provision is unreformable,
  it shall be divisible and deleted in such jurisdiction; elsewhere, this
  Agreement shall not be affected so long as
  the Parties are still able to realize the principal benefits bargained
  for in this Agreement.


	
 

	
 


	
12.7

	
Headings. The headings to this Agreement
  are for convenience only, and are to be of no force or effect in construing
  or interpreting any of the provisions of this Agreement.


	
 

	
 


	
12.8

	
Governing Law. This Agreement shall be governed
  by and interpreted in accordance with the laws of the State of New York and
  the United States of









CONFIDENTIAL

	
 

	
 


	
 

	
America, without
  reference to the conflict of law principles thereof, the conflict of law
  principles of any other jurisdiction;-and--withoutregard-to the United
  Nations Convention on the International Sale of Goods.


	
 

	
 


	
12.9

	
Notices and Deliveries. Any notice, request, delivery,
  approval, or consent required or permitted to be given under this Agreement
  shall be in writing and shall be delivered personally (against a signed
  receipt) or by an internationally recognized express courier, costs prepaid,
  and shall be deemed to have been duly delivered when so delivered in person
  or by courier, with receipt confirmed. All such notices, requests,
  deliveries, approvals, consents, or other communications shall be addressed
  to the respective Parties at the addresses set forth below, or to such other
  address as a Party may designate to the other Party in accordance herewith.







	
 

	
 

	
 

	
 


	
 

	
12.9.1 If to MMI,
  addressed to:


	
 

	
 


	
 

	
 

	
 

	
MetaMorphix, Inc.


	
 

	
 

	
 

	
8000 Virginia
  Manor Road - Suite 140


	
 

	
 

	
 

	
Beltsville,
  Maryland 20705


	
 

	
 

	
 

	
Attn: Edwin C.
  Quattlebaum, Ph.D., President and CEO


	
 

	
 

	
 

	
 


	
 

	
 

	
with a copy to:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Shapiro Sher
  Guinot & Sandler, P.A.


	
 

	
 

	
 

	
2000 Charles
  Center South 36


	
 

	
 

	
 

	
South Charles
  Street


	
 

	
 

	
 

	
Baltimore,
  Maryland 21201 


	
 

	
 

	
 

	
Attn: William E.
  Carlson, Esq.


	
 

	
 

	
 

	
 


	
 

	
12.9.2 If to
  Hubbard, addressed to:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Hubbard SAS


	
 

	
 

	
 

	
Mauguerand, 22800 Le Foeil
  France


	
 

	
 

	
 

	
Attn: Stephane
  Duthoit, CEO


	
 

	
 

	
 

	
 


	
 

	
 

	
with a copy to:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Hubbard LLC


	
 

	
 

	
 

	
195 Main Street -
  P.O. Box 415 


	
 

	
 

	
 

	
Walpole,
  New Hampshire 03608


	
 

	
 

	
 

	
Attn: Mark Barnes,
  COO


	
 

	
 

	
 

	
 


	
 

	
Notices of
  meetings of the Steering Committee shall be given to its members at such
  addresses and in such manner as may be, from time to time, requested by its
  members or determined by the Committee.




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CONFIDENTIAL


	
 

	
 

	
 


	
12.10

	
Counterparts. This Agreement may be executed in
  two or more counterparts, each of which shall be deemed an
  original;-but--all--of--which together shall constitute one and the same
  instrument.


	
 

	
 

	
 


	
12.11

	
Force Majeure. If the performance of any part of
  this Agreement by either Party or of any obligation under this Agreement
  (other than the payment of money) shall be prevented, restricted, interfered
  with, or delayed by reason of war, fire, strike, terrorism, vandalism,
  hurricane, extreme weather, labor unrest, or any other cause beyond the
  reasonable control of the Party liable to perform, unless conclusive evidence to the contrary shall be
  provided, the Party so affected shall, upon giving written notice to
  the other Party, be excused for up to one hundred eighty (180) days from such
  performance to the extent of such prevention, restriction, interference, or
  delay, provided that the affected Party shall use its commercially reasonable
  efforts to avoid or remove such causes of non­performance and shall continue
  performance with the utmost dispatch whenever such causes are removed. When
  such circumstances arise, the Parties shall discuss
  what, if any, modification of the terms of this Agreement may be required
  in order to arrive at an equitable solution.


	
 

	
 

	
 


	
12.12

	
Dispute
  Resolution. MMI and Hubbard shall deal with each other in good faith. In the
  event that a dispute arises between the Parties concerning, or in any way
  relating to, this Agreement, the Parties shall undertake good faith efforts
  to amicably resolve such dispute.


	
 

	
 

	
 


	
 

	
12.12.1

	
Executive
  Officers. In the event that the Parties are unable to resolve any such dispute,
  the matter shall be referred for further review and resolution to MMI’s Chief
  Executive Officer (or another designated representative of MMI) and to
  Hubbard’s President (or another designated representative of Hubbard) who
  will attempt in good faith and reasonable diligence to resolve the dispute.


	
 

	
 

	
 


	
 

	
12.12.3

	
Binding
  Arbitration. If the dispute is not resolved through negotiation under Section
  12.12.1, either Party may submit the matter to binding arbitration to be
  administered by the American Arbitration Association under its Commercial
  Rules in effect at the time of arbitration. The Party desiring such
  arbitration shall initiate it in accordance with the Commercial Arbitration
  Rules except as provided below. The arbitration shall be heard and determined
  by a panel of three arbitrators (at least one of which shall have
  considerable agribusiness experience, at least one of which shall have
  considerable genomic experience, and at least one of whom shall be a
  practicing lawyer or retired judge). The arbitrators shall be selected by the
  Parties from a proposed list of possible
  arbitrators provided by the AAA in accordance with a process
  determined by the AAA. The Parties shall be afforded reasonable opportunity
  for discovery. Unless otherwise agreed upon by the Parties, all arbitration
  sessions shall be held in New York, New York as a neutral location or, if
  several sessions are to be held, in










CONFIDENTIAL


	
 

	
 

	
 


	
 

	
 

	
alternative
  sessions in (a) Paris, France and (b) Washington, D.C.. The decision of the arbitrators
  shall--be--final-and binding upon Parties. Notwithstanding anything in
  this Section 12.12.2 to the contrary, such arbitration
  shall not proceed or be binding if there is either (a) any third­party claimant integrally involved in the
  specific dispute proposed to be arbitrated or (b) any necessary
  third-party defendant or co-defendant.


	
 

	
 

	
 


	
 

	
12.12.3

	
Injunction. Notwithstanding anything in this
  Section 12.12 to the contrary, an aggrieved Party, to the extent that it may
  be otherwise be entitled under applicable
  law governing injunctions and equitable relief, may seek and shall be entitled to an injunction
  prohibiting any material breach (or other equitable relief) in regard
  to Article 4 or Article 5. The Parties recognize the importance of the
  confidentiality and publication provisions of Article 4 and intellectual
  property provisions of Article 5 and
  acknowledge that an aggrieved Party could suffer irreparable harm as a
  result of a material breach of such provisions.


	
 

	
 

	
 


	
 

	
12.12.4

	
Confidentiality. The Parties hereby mutually agree
  that the existence, terms, and content of any dispute resolution entered into
  pursuant to this Agreement, as well as all information or documents relating
  thereto, shall be maintained in confidence and not be given, shown, disclosed
  to, or discussed with any Third Party except: (a) by prior written agreement
  of both Parties; (b) during any legal proceeding to protect or secure a
  Party’s rights under such dispute resolution; (c) by counsel and accountants who shall agree to maintain its
  confidentiality; (d) to the extent
  required by applicable reporting requirements; and (e) pursuant to
  compulsory legal process.


	
 

	
 

	
 


	
12.13

	
Further
  Assurances. The Parties shall provide each other with such further assurances as
  the other Party may reasonably request and, accordingly, shall execute and
  deliver such certificates, acknowledgments, and patent office filings as may
  be reasonably requested from time to time.





[Signatures
on following page]


Page 34







CONFIDENTIAL


IN WITNESS WHEREOF, the Parties have caused-this Joint-Research
and Marker Development Agreement to be executed by their respective duly
authorized officers. 


	
 

	
 

	
 

	
 


	
 

	
 

	
METAMORPHIX, INC.




	


	
 

	
By:

	



	
 

	
 

	



	
 

	
 

	
Edwin C. Quattlebaum, Ph.D.


	
 

	
 

	
President and CEO








	
 

	
 

	
 

	
 


	
Date: January 25, 2007 HUBBARD
  S.A.S. 

	
 

	
 

	
 


	
ATTEST OR WITNESS:

	
 

	
 

	
 


	



	
 

	
 

	



	
 

	
 

	
By:

	



	
 

	
 

	
 

	
 


	
Stephane Duthoit, Directeur general

	
 

	
 

	
           Frederic Grimaud, President





Date: January 25, 2007


ACKNOWLEDGEMENT
AND JOINDER OF HUBBARD, LLC


          HUBBARD,
LLC, a Delaware limited liability company and an Affiliate of Hubbard, S.A.S.,
joins in this Joint Research and Marker Development Agreement to express its
recognition and agreement with the terms, conditions, and provisions of Article
4, Article 8 (in respect to any Net Sales by it as an Affiliate), and Article
12 of this Agreement and to confirm this Agreement’s applicability to it as an
Affiliate of Hubbard, S.A.S. 


	
 

	
 

	
 

	
 


	
WITNESS:



	
 

	
HUBBARD, LLC


	



	
 

	
By:

	



	


	
 

	
 

	



	
 

	
 

	
 

	
Name: S. Duthoit


	
 

	
 

	
 

	
Title: CEO.






Page 36





CONFIDENTIAL


EXHIBIT A

DEFINITIONS


	
 

	
 


	
1.

	
“Affiliate” shall mean any corporation, firm, partnership, or other
  legal entity that, directly or indirectly, controls, is controlled by, or is
  under common control with any of the Parties. A corporation or other entity
  shall be regarded as in control of another corporation or entity, if (a) in
  the case of corporate entities, it owns or directly or indirectly controls
  more than fifty percent (50%) of the outstanding voting stock or other
  ownership interest of the other corporation or entity, or if it possesses,
  directly or indirectly, the power to manage, direct or cause the direction of
  the management and policies of the corporation or other entity or the power
  to elect or appoint fifty percent (50%) or more of the members of the
  governing body of the corporation or other entity and (b) in the case of
  non-corporate entities, direct or indirect ownership of at least fifty
  percent (50%) interest and/or the power to direct the management and policies
  of such non-corporate entities. In no event, for the purposes of this
  Agreement, shall Celera be deemed to be an Affiliate of MMI. 


	
 

	
 


	
2.

	
“Broiler Population” shall mean the collection of blood samples and
  their phenotypic data from xx birds as described in the Research Plan that
  will be used to identify the Broiler Trait Associated SNP Set. 


	
 

	
 


	
3.

	
“Broiler Trait Associated SNP Set” shall mean the collection of SNP
  markers from the Chicken Discovery Panel that are significantly associated
  with [****] traits of [****], and [****] discovered during Phase IV of the
  Research Plan, together with all associated data analyses and statistics,
  including those resulting from the validation analyses performed as Phase V
  of the Research Plan. 


	
 

	
 


	
4.

	
“Celera” shall mean Applera Corporation, acting by and through its
  Celera Genomics Group, which is the successor to PE Corporation (NY), through
  its Celera Genomics Group. 


	
 

	
 


	
5.

	
“Chicken Discovery Panel” (which shall constitute MMI Technology, not
  Joint IP) shall mean a subset of the Putative SNP Set, containing between
  [****] and [****] SNPs [****] throughout the [****], and validated by MMI
  using [****] provided by Hubbard as being an informative panel to use for the
  genome-wide association studies to be performed in Phases III and IV of the
  Research Plan. 


	
 

	
 


	
6.

	
“Complete Delivery” shall mean MMI’s delivery to Hubbard of all of
  the Deliverables set forth in the Research Plan. 


	
 

	
 


	
7

	
“Confidential Information” shall mean all non-public information
  disclosed by one Party to the other at or since the Parties’ April 5, 2005
  meeting in Maine in the context of their discussions and negotiations
  relating to this Agreement, including notably information relating to the use
  of genomic data to improve breeding stock 






Page 37





CONFIDENTIAL


	
 

	
 


	
 

	
selection and to manage animal production systems, and information
  and phenotypic data relating to Hubbard’s breeding lines, as well as all
  non-public information disclosed and generated pursuant to this Agreement. In
  particular, Confidential Information shall include the existence and terms of
  this Agreement, the Deliverables, Records (as defined in Section 8.7),
  business information, and technical information relating to Hubbard Material,
  the Datasets, Hubbard Technology, MMI Technology, or other information
  belonging to the disclosing Party, including, where appropriate and without
  limitation, any associated information, business, financial and scientific
  data, DNA sequence information, annotation information, invention
  disclosures, patent disclosures, patent applications, structures, models,
  techniques, processes, compositions, compounds, biological samples, and the
  like, and bioinformatics methods, hardware configurations and software
  (regardless of its stage of development), and the like. 


	
 

	
 


	
8.

	
“Dataset” shall mean a compilation of two types of data: animal data
  and genomic data. The animal data consist of animal identification, family
  pedigree structure and/or phenotypic data, as required under the Research
  Plan, for each of the animals studied under the Research Plan, together with
  the genotypes for each animal for each of the markers tested. The genomic
  data include the Chicken Discovery Panel, the Broiler Associated SNP Set, the
  Production Associated SNP Set, and associated statistics describing the SNP
  markers. 


	
 

	
 


	
9.

	
“Deliverable” shall mean any of the Datasets, information, reports,
  and other items, in whole or in part, required to be provided by MMI to
  Hubbard under the Research Plan. 


	
 

	
 


	
10.

	
“Disclosing Party” shall have the meaning set forth in Section 4.1.1.
  


	
 

	
 


	
11.

	
“Effective Date” shall be the date upon which both Parties have
  executed this Agreement. 


	
 

	
 


	
12.

	
“Escrow Agent” shall have the meaning set forth in Section 7.7. 


	
 

	
 


	
13.

	
“Field” shall have the meaning set forth in Section 6.1. 


	
 

	
 


	
14.

	
“Genotype” shall mean the specific nucleic acid sequence of an
  individual found at a specific location in the genome. 


	
 

	
 


	
15.

	
“Genotyping” shall mean the analysis of nucleic acid sequence
  variation at a specific location in the genome. 


	
 

	
 


	
16.

	
“Hubbard Material” shall mean the Samples, muscle tissue samples, and
  related identity and phenotypic information provided by Hubbard to MMI under
  the Research Plan. 


	
 

	
 


	
17.

	
“Hubbard Period of Exclusivity” shall have the meaning set forth in Section
  6.1. 






Page 38





CONFIDENTIAL


	
 

	
 


	
18.

	
“Hubbard Technology” shall mean all data (including the Hubbard
  Materials and any other phenotype and broiler line data supplied by Hubbard),
  information, inventions, know-how, technology, trade secrets, and the like, whether
  patentable or not, that are conceived, identified, discovered, developed, or
  invented in whole or part by or on behalf of Hubbard independent of MMI. 


	
 

	
 


	
19.

	
“Joint Intellectual Property” or “Joint IP” shall mean all results of
  the Research Plan that are identified, discovered, developed or invented
  through the use of both Hubbard Technology and MMI Technology, including all
  results of genotypes performed by MMI on Samples, the data analyses performed
  by MMI using the genotype results and phenotype, family or other information
  included in the Hubbard Technology and the resulting statistics, and the
  Broiler Trait Associated SNP Set, the Production Trait Associated SNP Set.
  Notwithstanding the above, the Chicken Discovery Panel and any other intellectual
  property generated during Phase I or Phase II of the Research Plan shall be
  deemed not to be Joint Intellectual Property; all results obtained by MMI
  using any phenotype or broiler identity data included in the Hubbard
  Technology, including notably all the data and analysis results generated
  pursuant to Phases III, IV and V of the Research Plan, shall however be Joint
  Intellectual Property. 


	
 

	
 


	
20.

	
“MMI Technology” shall mean (a) assay technology and all data,
  information, inventions, know-how, technology, trade secrets, and the like,
  whether patentable or not, including the Putative SNP Set, that are either
  (i) conceived, identified, discovered, developed, or invented in whole or
  part by or on behalf of MMI independent of Hubbard and without any use of Hubbard
  Technology, whether as a part of the Research Plan or separately, and/or (ii)
  acquired or licensed by MMI from Third Parties and (b) the Chicken Discovery
  Panel and any other intellectual property generated during Phase I or Phase
  II of the Research Plan. 


	
 

	
 


	
21.

	
“Party” and “Parties” shall have the meanings set forth in the first
  paragraph on the first page of this Agreement. 


	
 

	
 


	
22.

	
“Primary Contact” shall have the meaning set forth in Section 2.7. 


	
 

	
 


	
23.

	
“Production Associated SNP Set” shall mean the collection of SNP
  markers from the Chicken Discovery Panel that are significantly associated
  with ([****]) discovered from Phase IV of the Research Plan, together
  with all associated data analyses and statistics, including those resulting from
  the validation analyses performed as Phase V of the Research Plan. 


	
 

	
 


	
24.

	
“Publication” shall mean any information or data that a Party seeks
  to disclose electronically, in writing or verbally, or make publicly
  available through any means, including, but not limited to, written document,
  abstract, poster, chart, slide presentation, article (scientific journal or
  otherwise), seminar, or lecture. 






Page 39





CONFIDENTIAL


	
 

	
 


	
25.

	
“Putative SNP Set” (which shall constitute MMI Technology, not Joint
  IP) shall mean a set of at least ([****]) putative SNPs
  generated by MMI without any use of ([****]) Technology that cover the chicken
  genome, have known, unique locations on the public chicken genome assembly
  and are evenly dispersed throughout the chicken genome. 

	
 

	
 


	
26.

	
“Receiving Party” shall have the meaning set forth in Section 4.1.1 


	
 

	
 


	
27.

	
“Research Plan” shall mean the plan setting out the Parties’
  respective research obligations under this Agreement, which shall be agreed
  upon by the Parties in accordance with Section 2.1.1 of this Agreement,
  together with any amendments thereto made in accordance with Section 12.5. 


	
 

	
 


	
28.

	
“Samples” shall mean the blood samples collected by Hubbard from the
  various populations of chickens studied in the Research Plan and delivered to
  MMI as described in the Research Plan. 


	
 

	
 


	
29.

	
“Steering Committee” shall have the meaning set forth in Section 2.7.
  


	
 

	
 


	
30.

	
“Targeted Traits” shall mean the traits of ([****]) for the ([****]) Trait Study
  and ([****]) for the Production Trait Study as described in the
  Research Plan or as determined by the Steering Committee, it being recognized
  that any other traits must be determined prior to the commencement of the
  Research Plan. 

	
 

	
 


	
31.

	
“Term” shall mean the period of time from the Effective Date through
  the date the final payment due under Article 8 of the Agreement is paid or
  any such earlier date on which the Agreement is otherwise terminated in
  accordance with its terms. 


	
 

	
 


	
32.

	
“Territory” shall mean the entire world. 


	
 

	
 


	
33.

	
“Third Party” or “Third Parties” shall mean any individual,
  partnership, joint venture, corporation, trust, estate, unincorporated
  organization, government (or any department or agency thereof), or any other
  entity other than either of Hubbard or MMI or any Affiliate(s) of the
  Parties. 


	
 

	
 


	
34.

	
“Valid
  Claim” of a patent means any claim of a granted and unexpired patent, which
  has not been revoked or adjudged unenforceable or invalid by a judgment of a
  court of competent jurisdiction or other governmental agency of competent
  jurisdiction, from which judgment there is no appeal or no appeal has been
  taken within the time allowed for appeal, and which has not been disclaimed
  or admitted to be invalid or unenforceable through disclaimer or other
  written document executed by the owner thereof. 






Page 40