Exclusive Agency and Marketing Agreement [Amended and Restated] [Amendment] (2015)Full Document 

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AMENDMENT TO
AMENDED AND RESTATED EXCLUSIVE AGENCY
AND MARKETING AGREEMENT
BETWEEN
MONSANTO COMPANY
AND THE SCOTTS COMPANY LLC

This AMENDMENT TO AMENDED AND RESTATED EXCLUSIVE AGENCY AND MARKETING AGREEMENT (this “Amendment”), effective as of May 15, 2015 (the “Effective Date”), is entered into by and between Monsanto Company, a Delaware corporation (“Monsanto”), and The Scotts Company LLC, an Ohio limited liability company (the “Agent”).

WHEREAS, Monsanto and the Agent entered into that certain Amended and Restated Exclusive Agency and Marketing Agreement, effective as of September 30, 1998, and amended and restated as of November 11, 1998 (such agreement, as it has been amended from time to time, the “Agreement”);

WHEREAS, Monsanto and the Agent are entering into a Lawn and Garden Brand Extension Agreement effective as of the date hereof (the “License Agreement”);

WHEREAS, Monsanto and the Agent are entering into a Commercialization and Technology Agreement effective as of the date hereof (the “Joint Technology Agreement” and, together with this Amendment and the License Agreement, the “2015 Agreements”); and

WHEREAS, Monsanto and the Agent desire to further amend the Agreement as set forth below.

NOW THEREFORE, in consideration of the promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, Monsanto and the Agent agree as follows:

ARTICLE I
AMENDMENTS

Section 1.01    Capitalized Terms. Capitalized terms used but not defined herein shall have the meaning set forth in the Agreement.

Section 1.02    Amendments Related to Included Markets.

(a)
Schedule 1.1(a) attached to the Agreement, as amended from time to time, is hereby deleted in its entirety and replaced with the Schedule 1.1(a) attached to this Amendment.

(b)
The following definitions included in Section 1.1 of the Agreement are hereby deleted in their entirety and replaced with the following text:


1




““Excluded Markets” means (i) Japan; (ii) any country subject to a comprehensive U.S. trade embargo (currently Cuba, Iran, North Korea, Sudan, Syria and Burma); (iii) countries subject to other relevant embargos and trade restrictions to the extent that such relevant embargos and trade restrictions would materially adversely impact either party’s ability to fulfill such party’s duties and obligations under this Agreement; and (iv) each other country expressly excluded from Included Markets.”

““Included Markets” means every country throughout the world, other than the Excluded Markets; provided, however, that the list of Included Markets may be amended from time to time pursuant to Section 2.5 below.”

(c)
Section 1.1 of the Agreement is hereby amended by adding the following text as defined terms into Section 1.1 in alphabetical order:

““Activated Included Markets” means those Included Markets that are currently being serviced by the Agent, which are listed on Schedule 1.1(a).”

““Transition Markets” means Hungary, New Zealand, Portugal, Russia, the Republic of South Africa, Spain, Switzerland and Ukraine.”

““Unactivated Included Markets” shall have the meaning set forth in Section 2.5(b).”

(d)
Article 2 of the Agreement is hereby amended by adding, immediately after Section 2.4 of the Agreement, as Section 2.5, the following text:

“Section 2.5    Changes to Markets.

(a)    Subject to the terms of this Section 2.5, the Included Markets, the Activated Included Markets or the Excluded Markets may be amended from time to time as more particularly set forth below.

(b)    Monsanto agrees that it will not promote, distribute or sell Roundup Products in any Excluded Market (other than the Transition Markets during the period of transition) without first complying with the provisions of this Section 2.5(b) and Section 2.5(c). Either Monsanto or the Agent may propose to the Steering Committee moving an Excluded Market to the list of Included Markets or commencing distribution of Roundup Products in an Included Market that is not currently being serviced by the Agent and adding such Included Market to Schedule 1.1 as an Activated Included Market (any Included Market that is not being serviced by the Agent, other than any of the Transition Markets, are “Unactivated Included Markets”) by providing a proposal (the “Included Markets Proposal”) to the Steering Committee including the proposed (i) term (i.e., duration of amendment or transition period), (ii) adjustment to the calculation for the Commission, and (iii) adjustment to the
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