Brand Extension Agreement Asset Purchase Agreement, entered into on July 29, 2019 and effective as of August 1, 2019, by and between the Company and Monsanto

THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is entered into as of this 29^th day of July, 2019, by and between Monsanto Company, a Delaware corporation (the “Buyer”), and The Scotts Company LLC, an Ohio limited liability company (“Seller”). Capitalized terms are defined in Article 1.

NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual covenants, representations, warranties, conditions, and agreements hereinafter expressed, the adequacy and sufficiency of which are hereby acknowledged by the Parties, the Parties agree as follows:

The following words shall have the meanings given or otherwise ascribed to them in this Article 1:

1.1    [Intentionally Omitted]

1.2    “Action” means any alternative dispute resolution, arbitration, audit, claim, demand, examination, investigation, hearing, litigation, mediation, proceeding or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, and whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator.

1.3    “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.

1.4    “Agency Agreement” means that certain Third Amended and Restated Exclusive Agency and Marketing Agreement, effective as of the Closing Date, by and between Seller and the Buyer.

1.5    “Allocation” has the meaning set forth in Section 2.9.

1.6    “Allocation Schedule” has the meaning set forth in Section 2.9.

1.7    [Intentionally Omitted]

1.8    “Assumed Contracts” has the meaning set forth in Section 2.1(d).

1.9    “Assumed Liabilities” has the meaning set forth in Section 2.4.

1.10    “Assumed Rights” has the meaning set forth in Section 2.2.

1.11    “BEA Termination Agreement” means that certain Brand Extension Agreement Termination Agreement, effective as of the Closing Date, by and between Seller and Buyer.

1.12    “Benefit Plans” means (a) all “employee benefit plans” as defined in Section 3(3) of ERISA and (b) any other agreement, arrangement, plan, or policy, qualified or non-qualified, written or oral, funded or unfunded, that involves any (i) pension, retirement, profit sharing, savings, deferred compensation, bonus, stock option, simple retirement account (as described in Code Section 408(p)), stock purchase, phantom stock, incentive plan, or change-in-control benefits; (ii) welfare or “fringe” benefits, including vacation, holiday, severance, redundancy, disability, medical, hospitalization, dental, life and other insurance, tuition, company car, club dues, sick leave, maternity, paternity or family leave, health care reimbursement, dependent care assistance, cafeteria plan, regular in-kind gifts, or other benefits; or (iii) employment, consulting, engagement, retainer or golden parachute agreement or arrangement, in each case, which is sponsored, maintained or contributed to by Seller or any ERISA Affiliate and with respect to which Seller or any ERISA Affiliate has or may have any current or future Liability.

1.13    “Bill of Sale” means that certain Bill of Sale to be entered into by and between Seller and the Buyer at the Closing in substantially the form attached hereto as Exhibit C.

1.14    “Brand Extension Products” means those products set forth on Schedule 1.14.

1.15    “Business” means the development, manufacture, production, advertising, marketing, promotion, distribution, importation, exportation, offer for sale and sale of the Brand Extension Products.

1.16    “Business Day” means any day which is not a Saturday, a Sunday or a legal holiday in the State of Missouri, USA.

1.17    “Buyer” has the meaning set forth in the preamble.

1.18    “Cap” has the meaning set forth in Section 9.5(a).

1.19    “Claim Notice” has the meaning set forth in Section 9.4(a).

1.20    “Closing” means the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, as provided for in Section 2.7.

1.21    “Closing Date” means August 1, 2019.

1.22    “Code” means the U.S. Internal Revenue Code of 1986, as amended.

1.23    “Commercialization and Technology Termination Agreement” means that certain Commercialization and Technology Agreement Termination Agreement, effective as of the Closing Date, by and between Seller and Buyer.

1.24    “Contract” means any legally binding contract, agreement, understanding, lease, license, indenture, mortgage, deed of trust, evidence of indebtedness, commitment or instrument, purchase order or other purchasing arrangement, or offer, written or oral, express or implied.

1.25    “control,” including the terms “controlled by” and “under common control with,” means the ownership, directly or through one or more Affiliates, of (i) fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or fifty percent (50%) or more of the equity interests in the case of any other type of legal entity, or (ii) the power to direct or cause the direction of the management of an entity, whether through ownership of voting securities, by contract or otherwise.

1.26    [Intentionally Omitted]

1.27    [Intentionally Omitted]

1.28    “Data Room” means the “Project Sapphire II” virtual data room hosted at https://bcconnect.bryancave.com/bryancave.

1.29    “Direct Claim” has the meaning set forth in Section 9.4(c).

1.30    “Effective Time” means 12:01 a.m. Central Time in the USA on the Closing Date.

1.31    “Encumbrances” means any lien (statutory or otherwise), security interest, security agreement, mortgage, indenture, deed of trust, pledge, charge, adverse claim, easement, assessment, hypothecation, collateral assignment, deposit arrangement, right of first refusal, preemptive right, option, lease, license, restriction, agreement, adverse interest, restriction on transfer, covenant, condition, servitude, right of way, encroachment, exception to or defect in title or other restriction or encumbrance of any kind, including the interest of any vendor or lessor under any conditional sale, capital lease, or other title retention agreement.

1.32    “Environmental Law” means any currently applicable Law, including common law, relating to: (a) the environment, including pollution, contamination, cleanup, preservation, or protection, or remediation of the environment, or (b) the management or release into the environment of any Hazardous Material, including the manufacture, production, generation, presence, formulation, processing, labeling, distribution, introduction into commerce, registration, use, treatment, handling, storage, disposal, discharge, transportation, re-use, recycling or reclamation of any Hazardous Material or the containment, removal or remediation thereof. including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.), the Federal Solid Waste Disposal Act (which includes the Resource Conservation and Recovery Act) (42 U.S.C. § 6901, et seq.), the Federal Water Pollution Control Act (which includes the Clean Water Act) (33 U.S.C. § 1251, et seq.), the Clean Air Act (42 U.S.C. § 7401, et seq.), FIFRA, the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. §§ 11001, et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f, et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601, et seq.), and the Oil Pollution Act of 1990 (P.L. 101-380, 104 Stat. 486, et seq.), as such laws may be amended or otherwise modified from time to time, any regulations promulgated thereunder, and any similar state or local law provisions.

1.33    “EPA” mean the United States Environmental Protection Agency.

1.34    “ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time.

1.35    “ERISA Affiliate” means any corporation or trade or business controlled by, controlling or under common control with Seller (within the meaning of Code Section 414 or ERISA Section 4001(a)(14) or 4001(b)).

1.36    “Excluded Assets” has the meaning set forth in Section 2.3.

1.37    “Excluded Liabilities” has the meaning set forth in Section 2.5.

1.38    “Excluded Taxes” has the meaning set forth in Section 2.5(e).

1.39    “FIFRA” shall mean the Federal Insecticide, Fungicide and Rodenticide Act, as amended, and its implementing regulations.

1.40    “Final Inventory Value” has the meaning set forth in Section 2.8(e).

1.41    “Financial Statements” has the meaning set forth in Section 3.3(a).

1.42    “Fraud” means a Person’s willful and knowing commission of common law fraud.

1.43    “Fundamental Representations” means the representations and warranties set forth in Sections 3.1 (Existence and Power); 3.2(a); 3.2(b) and the first two sentences of 3.2(c) (Authorization; Valid and Enforceable Agreements); 3.9(a) (first sentence) (Title to Assets); 3.20 (Brokers, Finders); 4.1 (Existence and Power); 4.2 (Authorization; Valid and Enforceable Agreements); 4.4 (Brokers, Finders); and 4.5 (No Conflict; Required Filings and Consents).

1.44    “Governmental Authority” means any nation or state, any federal, bilateral or multilateral governmental authority, any possession, territory, local, county, district, city or other governmental unit or subdivision, and any branch, entity, agency, or judicial body of any of the foregoing.

1.45    “Hazardous Material” means any hazardous substances, hazardous wastes, toxic pollutants, toxic substances, deleterious substances, caustics, radioactive substances or materials, hazardous materials, and other sources of pollution or contamination, or terms of similar import, that are identified, listed and regulated under any Environmental Law including, but not limited to, petroleum and petroleum products, by-products or breakdown products, radioactive materials, friable asbestos, heavy metals, lead-based paint, nuclear fuel, and polychlorinated biphenyls.

1.46    “Indemnified Party” has the meaning set forth in Section 9.4(a).

1.47    “Indemnifying Party” has the meaning set forth in Section 9.4(a).

1.48    “Inputs” means all capital assets (molds, dies, etc.), intellectual property rights, supply chain or other contractual rights, and other property rights utilized in the design, development, manufacture, use, importation, exportation, marketing, distribution, promotion, development, sale and offer for sale of all Brand Extension Products and all other products covered by the Agency Agreement, including without limitation active ingredients, formulas and propriety packaging (drain back caps, wands, etc.).

1.49    “Intellectual Property” means all intellectual property, whether protected, created or arising under the Laws of the United States or any other jurisdiction, including all: (a) patents and applications therefor, including continuations, divisionals, continuations-in-part, or applications for reissue and patents issuing thereon (collectively, “Patents”); (b) trademarks, service marks, trade names, service names, brand names, slogans, logos, business names, domain names, trade dress rights, all goodwill associated therewith, and all applications, registrations and renewals thereof (collectively, “Marks”); (c) Know-How; (d) works protected by copyright, copyright registrations and applications therefor, and mask work rights; and (e) websites and related content, accounts with Twitter, Facebook and other social media companies and the content found thereon and related thereto.

1.50    “Intellectual Property Assignment Agreements” has the meaning set forth in Section 2.7(b)(v).

1.51    “Intellectual Property License Agreement” means the license agreement in the form attached hereto as Exhibit A, to be entered into between the Buyer and Seller at Closing, pursuant to which Seller grants Buyer a license to and under the Seller Licensed Intellectual Property, other than the Seller Licensed Marks.

1.52    “Inventory” means the raw materials, packaging, intermediates, work in progress and finished goods inventory exclusively related to the Transferred Products and a reasonable allocation (consistent with past practices) of raw materials, packaging, intermediates and work in progress related to the Transferred Products, in each case, to the extent owned by Seller and/or its

Affiliate immediately prior to the Closing, whether held in Seller’s (or its Affiliates’) premises or a Third Party’s premises.

1.53    “IRS” means the United States Internal Revenue Service.

1.54    “Know-How” means technology, processes and procedures, formulae, contents of research and development notebooks, specifications, procedures for experiments and tests and results of experimentation and testing; formulation, tolling, packaging and distribution information; together with all common law or statutory rights protecting the same, and any similar or analogous rights to any of the foregoing, whether arising or granted under any Laws.

1.55    “Knowledge” means, in respect of any individual, the actual knowledge of such individual upon due inquiry or investigation. In the case of Seller, those relevant individuals are listed on Schedule 1.55.

1.56    “Law” means in any jurisdiction, any federal, state or local, domestic or foreign, statute, law, treaty, ordinance, decree, order, injunction, rule, code, directive, or regulation of any Governmental Authority, and includes rules and regulations of any regulatory or self-regulatory authority compliance with which is required by Law, in effect on the date hereof, or, with respect to prior time periods, as in effect during the applicable prior period.

1.57     “Letter of Authorization” means a letter authorizing Buyer to rely on the Registration Data, which letter shall be in substantially the same form as attached hereto as Exhibit G.

1.58    “Liability” or “Liabilities” means all debts, adverse claims, liabilities and/or obligations, direct, indirect, absolute or contingent, whether accrued, vested or otherwise and whether or not reflected or required to be reflected on the financial statements of a Person.

1.59    “Loss” or “Losses” means any and all losses, awards, liabilities, damages, obligations, fines, penalties, encumbrances, settlements, judgments, costs and expenses that are probable and reasonably foreseeable (including reasonable attorneys’ fees), including, but not limited to, any of the foregoing arising under, out of or in connection with any Action; provided, however, that Losses exclude punitive, remote, or speculative damages, including any valuation methodology based on a multiple of earnings, in each case except to the extent actually awarded to a Third Party. For the avoidance of doubt, to be included as Losses, lost profits or other types of damages such as consequential, indirect or special damages, must be probable and reasonably foreseeable.

1.60    “Marks” has the meaning set forth in Section 1.49.

1.61    “Material Adverse Effect” means any change in, or effect on, the Purchased Assets or the Transferred Products taken as a whole, or the Business, that individually or in the aggregate, is or would reasonably be expected to be, materially adverse to the Business or the assets or liabilities, results of operations, or condition (financial or otherwise) of the Business.

1.62    “Material Contracts” has the meaning set forth in Section 3.10(a).

1.63    “Order” means an order, writ, injunction, judgment, ruling, assessment, arbitration award or decree of any Governmental Authority.

1.64    “Ordinary Course” means, with respect to Seller’s and its Affiliates’ activities related to the sale of the Transferred Products, the ordinary course of day-to-day operations customarily engaged in by Seller and/or its Affiliates.

1.65    “Party” means, individually, Seller and the Buyer, and “Parties” means both of them.

1.66    “Patents” has the meaning set forth in Section 1.49.

1.67    “Payment Date” shall have the meaning set forth in Section 2.6.

1.68    “Permits” has the meaning set forth in Section 3.12.

1.69    “Permitted Encumbrances” means (i) Encumbrances for Taxes which are not yet delinquent and for which an adequate reserve has been recorded on the Financial Statements as a current liability in accordance with GAAP; (ii) statutory Encumbrances for mechanics, material men, laborers, employees or suppliers arising by operation of Law for amounts which are owed, but not yet delinquent; and (iii) in the case of real property, applicable zoning and building ordinances and land use regulations, but only if same are not being violated.

1.70    “Person” means an individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, disregarded entity, unincorporated organization, government or governmental or regulatory body thereof, or political subdivision thereof, whether national, federal, regional, state, or local, or any agency, instrumentality or authority thereof, or any court or arbitrator, or any other entity.

1.71    “Pre-Closing Period” means any Tax period ending on or before the day before the Closing Date and the portion of any Straddle Period ending on and including the day before the Closing Date.

1.72    “Purchase Price” means One Hundred Twelve Million Dollars ($112,000,000).

1.73    “Purchased Assets” has the meaning set forth in Section 2.1.

1.74    “Registration Data” means any and all data, studies, or summaries of the same, including efficacy data or studies, that support the Specified Product Registrations or claims made with respect to the Transferred Products within the Territory.

1.75    [Intentionally Omitted]

1.76    [Intentionally Omitted]

1.77    “Related Packaging” has the meaning set forth in Section 1.84.

1.78    “Relevant Information” has the meaning set forth in Section 6.2(b).

1.79    “Representatives” means, with respect to any Person, the officers, directors, members, managers, principals, employees, agents, auditors, advisors, bankers and other representatives of such Person.

1.80    “Second Amended and Restated Formulation Agreement” means the Second Amended and Restated Formulation Agreement in substantially the form attached hereto as Exhibit H, to be entered into between the Buyer and Seller at Closing.

1.81    “Seller” has the meaning set forth in the preamble.

1.82    “Seller Intellectual Property License Agreements” means the Intellectual Property License Agreement and the Trademark License Agreement.

1.83    “Seller Licensed Copyrights” means (a) the copyright registrations and pending applications to register copyrights identified on Schedule 1.83 and (b) any common law or unregistered copyrights in the tangible works of expression identified on Schedule 1.83.

1.84    “Seller Licensed Intellectual Property” means, with the exception of those items listed on Schedule 3.14(d), all Seller Licensed Patents, Seller Licensed Marks, the Seller Licensed Copyrights and all other Intellectual Property owned by Seller or any of its Affiliates that is necessary for the conduct of the Business as currently conducted, including: (a) all Brand Extension Product formulations and all other Intellectual Property that is embodied by or in any Brand Extension Product, (b) all Intellectual Property that is embodied by or in any packaging that is currently used in connection with any Brand Extension Product (the “Related Packaging”) and (c) all Intellectual Property that relates to the development, manufacture or production of any Brand Extension Product or Related Packaging, in each case to the extent owned by Seller or any of its Affiliates but excluding all Intellectual Property included in the Transferred Intellectual Property.

1.85    “Seller Licensed Marks” means: (a) the Marks identified on Schedule 1.85 and (b) the trade dress elements of Related Packaging that are identified on Schedule 1.85.

1.86    “Seller Licensed Patents” means: (a) the Patents identified on Schedule 1.86, all Patents that claim priority to any such Patent or from which such Patent claims priority, including all continuations, continuations-in-part, divisionals, reissues, reexaminations, and other Patents issued in connection with any post-grant proceedings related to any such Patent and all foreign counterparts of any of the foregoing and (b) all other Patents owned by the Seller or any of its Affiliates that would be infringed by the conduct of the Business as currently conducted or proposed to be conducted absent a license thereto, but excluding any Patents included in the Transferred Intellectual Property.

1.87    “Seller Name” means Scotts and any variations thereof or logos associated therewith that are used on or in connection with any Brand Extension Product or Related Packaging.

1.88    “Specified Agreements” means the agreements, documents and instruments entered into contemporaneously with execution of this Agreement, including, without limitation (i) the BEA Termination Agreement; (ii) the Commercialization and Technology Termination Agreement; (iii)

the Agency Agreement; and (iv) all other agreements, documents and instruments contemplated by each of the foregoing.

1.89    “Straddle Period” has the meaning set forth in Section 2.10(b).

1.90    “Tax” or “Taxes” means (i) any U.S. federal, state or local or non-U.S. net income, gross income, gross receipts, property, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad valorem, value-added, transfer or excise tax, windfall profit, severance, production, stamp, unclaimed property, escheat, environmental, gross receipts, severance, occupation, premium, capital stock, social security (or similar), disability, workers’ compensation, registration, estimated or any other tax, custom, duty, governmental fee, withholding, levy, impost or other like assessment or charge of any kind whatsoever, (ii) any interest, penalty, fine, addition to tax or additional amount imposed by any Governmental Authority, in connection with (a) any item described in clause (i), or (b) the failure to comply with any requirement imposed with respect to any Tax Return, and (iii) any liability in respect of any items described in clause (i) or (ii) payable by reason of Contract (including any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar Contract or arrangement, but excluding for this purpose agreements entered into in the ordinary course of business and not primarily related to Taxes), assumption, transferee, or successor liability or operation of Law (including pursuant to Treasury Regulations Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local, or foreign Law)).

1.91    “Tax Authority” means any domestic, foreign, federal, national, state, county or municipal or other local government responsible for the collection of Taxes.

1.92    “Tax Returns” means all returns, reports, estimates, claims for refund, or information statements required to be filed with any Tax Authority in connection with the Purchased Assets or the Business, including any schedule or attachment thereto, and including any amendment thereof.

1.93    “Territory” means the USA. 

1.94    “Third Party” means any Person other than Seller, or the Buyer, or any of their respective Affiliates.

1.95    “Third Party Claim” has the meaning set forth in Section 9.4(a).

1.96    “Trademark License Agreement” means the license agreement in the form attached hereto as Exhibit F, to be entered into between the Buyer and Seller at Closing, pursuant to which Seller grants Buyer a license to use the Seller Licensed Marks.

1.97    “Transaction Documents” means each of the following:

1.98     “Transferred Books and Records” means, historical program margin reports for the customers of the Business, and to the extent exclusively related to the Business, (i) the Seller’s purchase and order supplier data and (ii) the Seller’s sales and order customer data.

1.99    “Transferred Intellectual Property” means the Intellectual Property owned by Seller or any of its Affiliates that is exclusively related to the Business, excluding Know-How but including the Intellectual Property listed on Schedule 1.99, subject to the limitations and caveats set forth on such Schedule. To the extent Seller or any of its Affiliates owns or claims to own any trade dress elements of Related Packaging or other Marks used or contemplated for use in connection with the marketing, promotion, offer for sale or sale of any Brand Extension Products as of the Closing that are not (a) the Seller Name or (b) expressly identified as Seller Licensed Marks on Schedule 1.85, such trade dress elements or other Marks shall be deemed to be Transferred Intellectual Property. To the extent Seller or any of its Affiliates owns or claims to own any copyright in any tangible work of expression used exclusively in connection with the marketing, promotion, offer for sale or sale of any Brand Extension Products as of the Closing that is not expressly identified as Seller Licensed Copyrights on Schedule 1.83, all such copyrights shall be deemed to be Transferred Intellectual Property. For clarity, the foregoing presumptions do not apply to Patents, Know-How or any other Intellectual Property not specifically within the scope of such presumptions.

1.100    “Specified Product Registrations” means federal and state registrations for the Transferred Products, as set forth on Schedule 1.100.

1.101    “Scotts Product Registrations” means the Specified Product Registrations where the base registration is held by Seller and/or its Affiliates, as set forth in Schedule 1.101.

1.102    “Third Party Product Registrations” means the Specified Product Registrations where the base registration is held by a third party, as set forth in Schedule 1.102.  

1.103    “Transferred Products” means the products that are sold by Seller and/or its Affiliates and listed on Schedule 1.103.

1.104    “Transfer Taxes” has the meaning set forth in Section 2.10(a).

1.105    “Tri-Party Agreement and Consent” means that certain Tri-Party Agreement and Consent, by and among Buyer, Seller and PBI-Gordon Corporation.

1.106    “USA” means the United States of America.

2.1    Transfer of Purchased Assets. Upon the terms and subject to the conditions of this Agreement and the other Transaction Documents, at the Closing, Seller shall, and shall cause its Affiliates to, sell, assign, transfer and convey to the Buyer, and the Buyer shall acquire, assume and accept from Seller, all of Seller’s right, title and interest to and in all of the Purchased Assets, free and clear of all Encumbrances other than Permitted Encumbrances. For the purposes of this Agreement, “Purchased Assets” means only:

(a)    the Transferred Intellectual Property;

(b)    the Inventory;

(c)    the Transferred Books and Records existing on the Closing Date (subject to Section 6.2);

(d)    all rights of Seller and/or its Affiliates under the Contracts listed on Schedule 2.1(d) (the “Assumed Contracts”);

(e)    all advertising, marketing, promotional and sales materials, and other literature, catalogues and other sales-related materials, to the extent owned by Seller and used in connection with the marketing, promotion or sale of the Transferred Products; and

(f)    any goodwill related to the foregoing.

2.2    Assumed Rights. Upon the terms and subject to the conditions of this Agreement and the other Transaction Documents, Buyer shall assume and receive from Seller the rights and licenses outlined in the BEA Termination Agreement (the “Assumed Rights”).

2.3    Excluded Assets. Notwithstanding any provision in this Agreement to the contrary, the Excluded Assets shall be retained by Seller and its Affiliates, and shall be excluded from the assets transferred under the terms of this Agreement. “Excluded Assets” means any asset of Seller or its Affiliates other than the Purchased Assets.

2.4    Assumption of Liabilities. Subject to the terms and conditions of this Agreement and the other Transaction Documents, at the Closing, Seller shall, and shall cause its applicable Affiliates, to assign and transfer to the Buyer, and the Buyer shall assume, become liable for and discharge when and as due, the Assumed Liabilities. The “Assumed Liabilities” means:

(a)    the obligations of the Seller (with respect to the Business) under the Assumed Contracts to the extent such obligations are applicable to and accrue with respect to periods subsequent to the Closing; and  

(b)    all other Liabilities arising out of or relating to Buyer’s ownership or operation of the Purchased Assets or the Business after the Closing.

2.5    Excluded Liabilities. Any Liability of Seller or its Affiliates other than the Assumed Liabilities (the “Excluded Liabilities”) shall be retained by Seller and its applicable Affiliates, and the Buyer shall not hereunder assume or become liable for any Excluded Liability, including (to the extent related to the ownership or operation of any of the Purchased Assets):

(a)    any Liability of the Business or the Seller or any other Person arising out of or relating to the ownership or operation of the Purchased Assets or the Business prior to the Closing;

(b)    any Liability for accounts payable, accrued expenses and similar items to the extent that they arise or are incurred prior to the Closing Date;

(c)    any Liability relating to any Action that (i) on the Closing Date, is pending against Seller or its Affiliates, in connection with the Purchased Assets, the Business or any other business of Seller or its Affiliates or (ii) arises after the Closing Date, to the extent arising from, or relating to, acts or omissions of Seller and/or its Affiliates prior to the Closing Date;

(d)    any Liabilities arising from or relating to (i) any employee of Seller or its Affiliates, (ii) any Benefit Plan or (iii) any other employee benefit plans, programs, policies, agreements and arrangements with respect to which Seller or any of its Affiliates has, now or in the future, any obligation to make contributions or pay benefits;

(e)    any Liabilities for Taxes (i) of the Seller resulting from the ownership or operation of the Business or the Purchased Assets for a Pre-Closing Period, (ii) of the Seller or any of its Affiliates (including any Liability of the Seller and any of its Affiliates for the Taxes of any other Person (other than the Buyer or its Affiliates) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by Contract or otherwise), (iii) that arise out of or result from the consummation of the transactions contemplated by this Agreement (other than Buyer’s 50% share of any Transfer Taxes pursuant to Section 2.10(a)) or (iv) required to be withheld in connection with any payment to or for the benefit of the Seller pursuant to this Agreement, to the extent not withheld pursuant to Section 2.12 (collectively, “Excluded Taxes”);

(f)    any Liability arising out of, or related to, the failure to comply with FIFRA or similar state pesticide laws regarding any Transferred Product manufactured, produced, sold, distributed, or offered for sale or distribution prior to the Closing Date; and

(g)    any Liability arising out of, or related to, any Contract of the Seller or its Affiliates that is not an Assumed Contract.

2.6    Consideration. As consideration for the Purchased Assets and the Assumed Rights, the Purchase Price and Final Inventory Value shall be deemed to be earned by Seller on the Closing Date; provided, however, that the Parties have agreed that such payments are payable on January 15, 2020 (the “Payment Date”). On the Payment Date, Buyer shall deliver, or cause to be delivered, to Seller, by wire transfer of immediately available funds to a bank account chosen by Seller, in

accordance with the wire instructions and other directions provided to Buyer by Seller on or before the Closing as set forth on Schedule 2.6, an amount equal to:

(a)    the Purchase Price; and

(b)    the Final Inventory Value, as determined in accordance with Section 2.8.

2.7    Closing.

(a)    The Closing shall take place on the Closing Date at the offices of Bryan Cave Leighton Paisner LLP, in St. Louis, Missouri, or at such other place as the Parties may agree in writing. In lieu of a physical Closing, the Parties agree that all documents required for Closing may be exchanged electronically at the Closing, and that documents so exchanged shall be binding on the Parties for all purposes. For all purposes under this Agreement, the Closing shall be effective as of the Effective Time.

(b)    Subject to the terms and conditions in this Agreement, at the Closing, Seller shall deliver, or cause to be delivered, to Buyer:

(i)    [Intentionally Omitted];

(ii)    the Bill of Sale, duly executed by Seller;

(iii)    the Trademark License Agreement, duly executed by Seller;

(iv)    the Intellectual Property License Agreement, duly executed by Seller;

(v)    one or more assignment agreements providing for transfer of the Transferred Intellectual Property to the Buyer and/or its Affiliates, in the form attached hereto as Exhibit D (the “Intellectual Property Assignment Agreements”), duly executed by Seller;

(vi)    the BEA Termination Agreement, duly executed by Seller;

(vii)    the Second Amended and Restated Formulation Agreement, duly executed by Seller;

(viii)    each Letter of Authorization, duly executed by Seller;

(ix)    a non-foreign person affidavit in form and substance satisfactory to the Buyer that complies with the requirements of Section 1445 of the Code, duly executed by The Scotts Miracle-Gro Company;

(x)    a properly executed and completed IRS Form W-9 from Seller; and

(xi)    such other documents, certificates or instruments as Buyer may reasonably request.

(c)    Subject to the terms and conditions in this Agreement, at the Closing, Buyer shall deliver, or cause to be delivered, to Seller:

(i)    [Intentionally Omitted];

(ii)    the Trademark License Agreement, duly executed by Buyer;

(iii)    the Intellectual Property License Agreement, duly executed by Buyer;

(iv)    the BEA Termination Agreement, duly executed by Buyer;

(v)    the Second Amended and Restated Formulation Agreement, duly executed by Buyer;

(vi)    the Intellectual Property Assignment Agreements, duly executed by Buyer or one or more of its Affiliates, as appropriate; and

(vii)    such other documents, certificates or instruments as Seller may reasonably request.

(d)    Following the Closing, Buyer shall deliver payments in respect of the Purchase Price and the Final Inventory Value to Seller on the Payment Date in accordance with Section 2.6.

2.8    Inventory.

(a)    Following the date hereof, and prior to the Closing, Seller shall perform a physical count of the finished goods inventory included in the Inventory (such finished goods inventory, the “Finished Goods Inventory”) and shall record each item of Finished Goods Inventory with a date and timestamp. Seller shall track and record the quantities and movements of all Finished Goods Inventory from the date hereof until the inventory count set forth in Section 2.8(c) is completed.

(b)     Within 10 calendar days following the Closing Date, Seller shall cause to be prepared and delivered to Buyer a certified statement (the “Estimated Inventory Statement”) setting forth Seller’s calculation of the value of the Finished Goods Inventory (calculated using Seller’s historical accounting principles as consistently applied).

(c)    Following the delivery of the Estimated Inventory Statement, at a time that is mutually agreeable to Buyer and Seller (but prior to September 30, 2019), Buyer and Seller will mutually take a physical count of the Finished Goods Inventory.

(d)    No later than ten (10) Business Days following the completion of the physical count set forth in Section 2.8(c), Seller shall cause to be prepared and delivered to Buyer a statement, in a format substantially equivalent to the Estimated Inventory Statement (the “Closing Inventory Statement”) setting forth a reconciled calculation of the value of Finished Goods Inventory (calculated using Seller’s historical accounting principles as consistently applied) following the physical count set forth in Section 2.8(c).

(e)    Following delivery of the Closing Inventory Statement, Buyer and Seller shall cooperate in good faith to resolve any disputes relating to the Closing Inventory Statement (or the value of the Finished Goods Inventory set forth therein), and such disputes shall be resolved by Buyer and Seller with ten (10) Business Days following the delivery of the Closing Inventory Statement. If the Parties are unable to resolve such disputes within ten (10) Business Days following the delivery of the Closing Inventory Statement, then the Parties shall refer such disputes to a mutually agreeable third party accounting expert to finally resolve, as soon as practicable, and in any event prior to the Payment Date, all points of disagreement with respect to the Closing Inventory Statement. The value of the Finished Goods Inventory as agreed by Buyer and Seller following the resolution of any such disputes (or as determined by the mutually agreeable third party accounting expert, if applicable) shall be the “Final Inventory Value”.

2.9    Allocation of Purchase Price. The Parties agree to allocate the Aggregate Consideration among the Purchased Assets and Assumed Rights in accordance with the schedule set forth in Exhibit I (the “Allocation Schedule” and the allocation thereunder, the “Allocation”), which is in accordance with Section 1060 of the Code. For purposes of this Section 2.9, “Aggregate Consideration” means an amount equal to the sum of the Purchase Price, the Final Inventory Value, and the Assumed Liabilities (to the extent, if any, included in “amount realized” for U.S. federal income Tax purposes). Each Party shall timely and properly prepare, execute, file and deliver all such documents, forms and other information as the other Party may reasonably request reflecting the Allocation. The Seller, the Buyer and their respective Affiliates each shall (a) be bound by the Allocation for purposes of determining any Tax, and (b) prepare and file, and cause each of its Affiliates to prepare and file, its Tax Returns on a basis consistent with the Allocation. None of the Seller, the Buyer or their respective Affiliates shall take any position inconsistent with the Allocation in any Tax Return, in any refund claim, in any litigation, or otherwise for any Tax purpose unless required by final determination by a Tax Authority. In the event that the Allocation is disputed by any Tax Authority, the Party receiving notice of such dispute shall promptly notify the other Party and the Parties shall consult in good faith how to resolve such dispute in a manner consistent with such Allocation.  

2.10    Taxes.

(a)    All sales, use, value-added, gross receipts, occupation, property, excise, registration, stamp duty (or other duties) or other similar transfer Taxes and conveyance fees, recording charges, and other such fees and charges, including any penalties and interest (“Transfer Taxes”), if any, incurred in connection with the transfer and sale of the Purchased Assets as contemplated by the terms of this Agreement shall be paid by the Seller when due; provided, however, that the Buyer shall pay, or reimburse the Seller for, fifty percent (50%) of such Transfer

Taxes. All necessary Tax Returns and other documentation with respect to all such Transfer Taxes will be prepared and filed, or caused to be prepared and filed, by the Seller, and if required by applicable Law, the Buyer will, and will cause its Affiliates to, join with the Seller in the execution of any certificate, including a resale certificate or other document from any Tax Authority as may be necessary to mitigate, reduce or eliminate any Transfer Tax that could be imposed.

(b)    For any Taxes levied with respect to the Purchased Assets or the Assumed Liabilities relating to a Tax period that begins before and ends on or after the Closing Date (a “Straddle Period”), the Seller shall pay the Buyer an amount that relates to the portion of such Tax period ending on and including the day before the Closing Date. The Buyer shall prepare or cause to be prepared and timely file or cause to be timely filed all such Straddle Period Tax Returns consistent with past practice, unless otherwise required by applicable Law. The portion of any Straddle Period Tax that is allocable to a Pre-Closing Period shall be: (i) with respect to any real property Taxes, personal property Taxes, or similar ad valorem obligations and similar recurring Taxes imposed on a periodic basis, deemed to be the amount of such Taxes for the entire period multiplied by a fraction the numerator of which is the number of calendar days in the period ending on and including the day before the Closing Date, and the denominator of which is the number of calendar days in the entire period, and (ii) with respect to any other Taxes, deemed equal to the amount which would be payable if the taxable year ended at the end of the day before the Closing Date. Any amounts payable by the Seller, shall be paid to the Buyer within fifteen (15) Business Days after the date on which such Taxes are paid with respect to such Straddle Periods. Any credits or refunds relating to a Straddle Period shall be allocated between the Seller, on the one hand, and the Buyer, on the other hand, in the same proportion as the liability for such Tax to which the refund or credit relates. The Buyer shall promptly pay over to Seller, its allocable portion of such refunds or credits paid to or credited for the account of the Buyer.

(c)    From and after the Closing Date, to the extent reasonably requested by the other Party, and at such other Party’s expense, Seller and the Buyer shall assist and cooperate with each other in the preparation and filing of any Tax Return described in this Section 2.10, and shall assist and cooperate with the other in preparing for any disputes, audits or other litigation relating to Taxes for which the other Party is responsible pursuant to this Agreement. Any Tax audit or other Tax proceeding shall be deemed to be a Third Party Claim subject to the procedures set forth in Section 9.4.

2.11    Completion of Transfers. The entire beneficial interest in and to, and the risk of loss with respect to, the Purchased Assets and the Assumed Liabilities, shall, regardless of when legal title thereto shall be transferred to the Buyer, pass to the Buyer as of the Closing. All operations with respect to the Purchased Assets and Assumed Liabilities, once the Closing has occurred, and beginning at the Closing, shall be for the account of the Buyer.

2.12    Withholding. Each of the Buyer and the Seller, as the case may be, shall be entitled to deduct and withhold from any consideration otherwise payable to any Person pursuant to this Agreement such amounts as it is required under applicable Law to deduct and withhold. To the extent that such amounts are so deducted or withheld, they shall be paid over to or deposited with the applicable Governmental Authority, and such withheld amounts that are paid over to, or deposited

with, such Governmental Authority shall be treated for all purposes of this Agreement as having been paid to the applicable Person in respect to which such deduction and withholding was made.

Except as set forth in the corresponding sections or subsections of the disclosure schedules attached hereto (collectively, the “Schedules”) (each of which shall qualify only the specifically identified Sections or subsections hereof to which such Schedule relates and such other Sections or subsections hereof for which the applicability of such information and disclosure to such other Sections or subsections is reasonably apparent on its face), Seller hereby makes the following representations and warranties to Buyer, each of which is true and correct on the date hereof and as of the Closing and shall survive the Closing Date and the transactions contemplated hereby to the extent set forth herein.

3.1    Existence and Power. Seller is duly organized, validly existing and in good standing under the Laws of Ohio and has the power and authority to operate the Business and to own and/or use the Purchased Assets.

3.2    Authorization; Valid and Enforceable Agreements; Non-contravention.

(a)    The execution, delivery and performance by Seller of this Agreement and each Transaction Document to which Seller is a party have been duly authorized by all necessary limited liability company action with respect to Seller.

(b)    This Agreement and each other Transaction Document to which Seller is a party, constitute the legal, valid and binding obligation of Seller, as applicable, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

(c)    Neither the execution and delivery of this Agreement or any of the Transaction Documents, nor the consummation of the transactions contemplated hereby or thereby, will violate or result in a breach, default or violation under any Order of any Governmental Authority, domestic or foreign or any Law applicable to Seller, except where any such breach, default or violation would not have a Material Adverse Effect. Except as set forth on Schedule 3.2(c) or otherwise provided for herein, no permit, consent, waiver, approval or authorization of, or declaration to or filing or registration with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement or any of the Transaction Documents by Seller or the consummation of the transactions contemplated hereby. Except as set forth on Schedule 3.2(c), neither the execution and delivery of this Agreement or any of the other Transaction Documents by Seller will materially adversely affect, violate, conflict with or result in a breach of, or otherwise give any contracting party rights to compensation under or the right to accelerate, amend, cancel, or terminate any Contract to which Seller is a party or by which Seller is bound with respect to the Business. The execution of this Agreement and the Transaction Documents and

the consummation of the transactions contemplated hereby and thereby will not result in the creation of any Encumbrance against the Purchased Assets.

3.3    Financial Statements.

(a)    Attached as Schedule 3.3(a) are true and complete copies of (collectively, the “Financial Statements”) the unaudited (A) statements of earnings of the Seller with respect to the Business for (i) the fiscal years ended September 30, 2017 and 2018, and (ii) the period ending on June 30, 2019; (B) pro forma balance sheet information of the Seller with respect to the Business for the fiscal years ended September 30, 2017 and 2018, and (C) the balance sheet of the Seller with respect to the Business as of June 30, 2019.

(b)    The Financial Statements (i) have been prepared from and are consistent with the books and records of the Seller and (ii) present fairly and accurately the financial position of the Seller with respect to the Business as of the dates referred to for such financial statements, and the results of their operations for the period referred to therein, in conformity with GAAP.

3.4    Absence of Certain Developments. Except as set forth on Schedule 3.4, since December 31, 2018, (a) the Purchased Assets have not suffered a material adverse effect; and (b) Seller has not waived, or committed pursuant to a legally binding agreement to waive, any claims or rights of material value concerning the Business or the Purchased Assets other than in the Ordinary Course.

3.5    Taxes. Except as set forth on Schedule 3.5:

(a)    Seller has filed, or caused to be filed, all Tax Returns for periods ending prior to the Closing Date that are required to be filed with respect to the Purchased Assets, and such Tax Returns are true, correct and complete in all material respects.

(b)    All Taxes due and owing by Seller with respect to the Purchased Assets have been fully paid.

(c)    There are no Encumbrances for Taxes upon any of the Purchased Assets other than the Permitted Encumbrances.

(d)    No deficiencies with respect to any Taxes in respect of the Purchased Assets have been asserted or assessed in writing and remain unpaid.

(e)    The Seller has not received from any Tax Authority any written Tax inquiry, Tax claim or notice of any Tax audit or other examination with respect to the Purchased Assets.

(f)    No written claim has been made by any Tax Authority in a jurisdiction where the Seller does not file Tax Returns with respect to the Purchased Assets that the Seller is or may be subject to taxation by that jurisdiction that would be covered by such Tax Returns.

(g)    Buyer will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period (or portion thereof) beginning on or

after the Closing Date as a result of any of the Purchased Assets constituting a prepaid amount, deferred revenue, or advance payment received on or prior to the Closing Date.

3.6    Litigation. Except as set forth on Schedule 3.6:

(a)    there is no, and since June 1, 2017, there has not been any Action pending or, to Seller’s Knowledge, threatened (i) against the Business (including any of the Purchased Assets or the Assumed Liabilities), or (ii) that, as of the date hereof, challenge the validity or propriety of the transactions contemplated by this Agreement or any Transaction Document;

(b)    neither the Seller nor the Business (including any of the Purchased Assets or the Assumed Liabilities), is or since June 1, 2017 has been subject to any Order other than Orders of general applicability; and

(c)    neither the Seller nor the Business (including any of the Purchased Assets or the Assumed Liabilities) has been subject to any Action or Order relating to personal injury, death, or property or economic damage arising from the Brand Extension Products.

3.7    Inventory. All Inventory is of a quantity and quality usable and salable in the Ordinary Course, and is not physically damaged, previously used, obsolete, discontinued or excess Inventory.

3.8    Real Property. The Purchased Assets do not include any real property.

3.9    Title to Purchased Assets.

(a)    Except as set forth on Schedule 3.9(a), the Seller owns, or in the case of leased assets, has a valid leasehold interest in, all of the tangible personal property included in the Purchased Assets, free and clear of all Encumbrances other than Permitted Encumbrances, and there exists no restriction on the transfer or use of such property. Upon the Closing, good and marketable title to the tangible personal property included in the Purchased Assets shall be vested in Buyer free and clear of all Encumbrances other than Permitted Encumbrances. Except as set forth on Schedule 3.9(a), none of the tangible personal property included in the Purchased Assets are in the possession of others and the Seller does not hold any property on consignment.

(b)    Except as set forth on Schedule 3.9(b) or as otherwise included in the Purchased Assets, the Seller does not own, hold or control any assets or property (other than Inventory) that are exclusive to the Business.

3.10    Contracts.

(a)    Schedule 3.10(a) sets forth a list of the following Contracts to which the Seller or any of its Affiliates is a party or otherwise bound with respect to the Business (collectively, “Material Contracts”):

(i)    Any Contract providing for expenditure by the Seller or its Affiliates, in an amount in excess of $50,000, or Contracts with the same or affiliated vendor(s)

providing for expenditure by the Seller or its Affiliates in an amount in excess of $50,000, in the aggregate, for the same, or a related product or service;

(ii)    Any Contract providing for the purchase of goods or services from the Seller or its Affiliates substantially in an amount in excess of $50,000, which has not yet been completed by the Seller or any of its Affiliates;

(iii)    Any Contract, bid or offer to sell products or to provide services to third parties which (a) is at a price which would over the life of such Contract be reasonably expected to result in a net loss to the Seller or any of its Affiliates on the sale of such products or provision of such services, or (b) contains terms or conditions the Seller or any of its Affiliates cannot reasonably expect to satisfy or fulfill in all material respects;

(iv)    Any Contract which involves (A) a sharing of profits, or (B) future payments of $50,000 or more per annum to other Persons;

(v)    Any Contract pursuant to which any Person has acquired the right to (A) market, distribute or resell any product, (B) to represent the Seller with respect to any products or (C) to act as agent for the Seller in the marketing, distribution or sale of any product;

(vi)    Any Contract providing for rebates or other payments contingent upon sales, purchases or profits to be made by the Seller to any Person in connection with any products marketed or sold by the Seller;

(vii)    Any Contract with a supplier of products or raw materials;

(viii)    Any Contract which will be binding on the Seller containing covenants that limit the freedom of the Seller or any of its Affiliates to engage in the business of the Seller, to compete in any geographic region or to compete with any Person;

(ix)    Any Contract with any information technology vendors;

(x)    Any Contract providing for the disposition, merger or similar transaction of any significant portion of the assets or business of the Seller or any of its Affiliates (other than sales of products in the Ordinary Course) or any agreement providing for the acquisition, merger, or similar transaction by the Seller of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course);

(xi)    Any Contract concerning the operation or establishment of a joint venture, strategic alliance, partnership, or similar arrangement;

(xii)    Any sales agency, sales representation, dealer, consultant, distributorship or franchise agreement;

(xiii)    Any non-competition, non-solicitation, or exclusive dealing agreement restricting the Seller or any of its Affiliates or any other Contract which purports

to limit or restrict in any respect (A) the ability of the Seller or any of its Affiliates to solicit customers or employees or (B) the manner in which, or the location in which, all or any portion of the business of the Seller or any of its Affiliates, or, following the consummation of the transactions contemplated by this Agreement, the business and operations of Buyer and its subsidiaries and Affiliates, is or would be conducted;

(xiv)    Any Contract that grants any right of first refusal, right of first offer, right of first negotiation, or similar right with respect to any material asset or business of the Seller or any of its Affiliates or that limits or purports to limit the ability of the Seller or any of its Affiliates to own or operate any material asset or business;

(xv)    Any Contract that contains a “most favored nation” clause or other term providing preferential pricing or treatment by the Seller or any of its Affiliates in favor of a third party;

(xvi)    Any Contract that requires the purchase by Seller or any of its Affiliates of any product or service, or all or any portion of the Seller’s or any of its Affiliates’ requirements, exclusively from a third party or grants exclusive rights to marketing or distribution;

(xvii)    Any Contract with a Governmental Authority;

(xviii)    Any Contract that is a settlement, conciliation, or similar agreement, the performance of which involves payment by the Seller or any of its Affiliates after the Closing Date;

(xix)    Any Contract or commitment not made in the Ordinary Course;

(xx)    Intentionally Omitted;

(xxi)    Any Contract relating to Inputs that is (A) exclusive to the Business or (B) not exclusive to the Business and which relates to active ingredients, proprietary surfactants or proprietary packaging.

(b)    Except as set forth on Schedule 3.10(b), prior to the date hereof, the Seller has delivered to Buyer correct, complete, and current copies of all Material Contracts, and a written description of each Material Contract that is an oral agreement or arrangement, and none of such Material Contracts has been modified or amended in any respect, except as reflected in such disclosure to Buyer.

3.11     [Intentionally Omitted]

3.12    Licenses and Permits. The Seller holds, and at all times since June 1, 2017, has held, all permits, licenses, registrations, certificates, franchises, and authorizations necessary for the lawful conduct of the Business (collectively, “Permits”), and each such Permit is valid, subsisting, in full force and effect, and listed on Schedule 3.12. Neither the execution of this Agreement nor

the consummation of the transactions contemplated hereby constitutes or will constitute or result in a default under or violation of any such Permit. To Seller’s Knowledge, the Seller (i) is in compliance with all Permits held by it, except where the failure to be in compliance would not result in a Material Adverse Effect, (ii) there are no outstanding violations of any, defaults under, or failures to comply with, such Permits, and (iii) has not received any notice asserting any such violation, default or failure to comply. There are no Actions pending or, to Seller’s Knowledge, threatened that seek or are reasonably likely to result in the suspension, revocation, failure to renew or modification of any such Permit held by the Seller. Except as described on Schedule 3.2(c), neither the execution of this Agreement nor the Closing do or will constitute or result in a default under or violation of any such Permit.

3.13    Compliance with Laws. Except (a) where the failure to be in compliance would not result in a Material Adverse Effect, (b) with respect to the subject matter of the representations and warranties set forth in Section 3.12 (Licenses and Permits), Section 3.14 (Intellectual Property), Section 3.15 (Registrations and Registrations Data) and Section 3.22 (Environmental), or (c) as set forth on Schedule 3.13, the Seller is, and at all times since June 1, 2017, has been, in compliance with all applicable Laws and Orders relating to the Purchased Assets and the Business, and the Seller has not received any notice from any Governmental Authority regarding any actual or alleged violation or breach of such Laws or Orders.

3.14    Intellectual Property.

(a)    Schedules 1.83, 1.85, 1.86 and 1.99 are true and complete lists, as applicable, of all Patents, registered and unregistered Marks and pending applications to register Marks, copyright registrations and pending applications to register copyrights that are owned by Seller or any of its Affiliates and that are used or contemplated for use in the conduct of the Business as of the Closing, and a list of tangible works of expression in which Seller or its Affiliates owns common law or unregistered copyrights which are necessary to the conduct of the Business. Except as otherwise set forth on the applicable Schedule, each item listed or required to be listed on such Schedules is valid, subsisting and, to Seller’s Knowledge, enforceable. Seller has good title to each item of Transferred Intellectual Property (as applicable), free and clear of all Encumbrances (other than Permitted Encumbrances), except as otherwise set forth on the applicable Schedule. Seller has good title to each item of Seller Licensed Intellectual Property and has the right to grant Buyer the licenses under and to the Seller Licensed Intellectual Property on the terms set forth in the Seller Intellectual Property License Agreements, and such license grants do not conflict with any agreement, order, instrument or understanding, oral or written, to which Seller or any of its Affiliates is a party or by which any of them are bound. Immediately following the Closing, Buyer will have the right to use all Transferred Intellectual Property and Seller Licensed Intellectual Property in the same manner as used by Seller and its Affiliates in the conduct of the Business immediately prior to Closing.

(b)    The use of the Transferred Intellectual Property and the Seller Licensed Intellectual Property in the development, manufacture, use, importation, exportation, marketing, promotion, sale and offer for sale of the Brand Extension Products and Related Packaging and in the conduct of the Business as presently conducted does not and has not, to Seller’s Knowledge,

infringed, diluted, misappropriated or otherwise violated any Third Party’s rights in Intellectual Property. To Seller’s Knowledge, no Transferred Intellectual Property or Seller Licensed Intellectual Property is being or has been, infringed, diluted or misappropriated or otherwise violated by a Third Party.

(c)    Except as provided on Schedule 3.14(c) and Schedule 3.14(d), to Seller’s Knowledge: (i) Seller has not licensed, sublicensed or otherwise acquired rights to any Intellectual Property necessary for or used in the conduct of the Business and owned by a Third Party, including, for clarity, rights in any tangible works of expression in which a Third Party owns common law or unregistered copyrights, that is being or has been used in the development, manufacture, use, importation, exportation, marketing, promotion, sale and offer for sale of any Brand Extension Product or Related Packaging or that is embodied by any Brand Extension Product or Related Packaging; (ii) Seller has not licensed, sublicensed or otherwise transferred rights in or to any Transferred Intellectual Property or Seller Licensed Intellectual Property to any Person; and (iii) Seller has not entered into any agreement with any Person to develop or assist in the development of any Transferred Intellectual Property or Seller Licensed Intellectual Property.

(d)    Except as provided on Schedule 3.14(d), neither Seller nor any of its Affiliates owns any right, title or interest in or to any Intellectual Property that is used in or necessary for the conduct of the Business as currently conducted that is not either Transferred Intellectual Property or Seller Licensed Intellectual Property.

(e)    There has been no action filed, or to the Seller’s Knowledge, any claim threatened, against the Seller or any of its Affiliates (and neither the Seller nor any of its Affiliates has not been a party to any action including such a claim), and neither the Seller nor any of its Affiliates has received written notice of any such claim or other communication: (i) asserting the invalidity, misuse or unenforceability of, or challenging Seller’s or any Affiliate’s right to use, any Transferred Intellectual Property or Seller Licensed Intellectual Property, (ii) asserting the infringement, misappropriation, dilution or other violation of any Third Party Intellectual Property in connection with the Business or (iii) asserting that Seller or any of its Affiliates have engaged in unfair competition, false advertising or other unfair business practices in connection with the Business.

(f)    All current and former employees, officers, independent contractors and consultants of the Seller or any of its Affiliates, and agencies engaged by Seller or any of its Affiliates, who have created any Transferred Intellectual Property or Seller Licensed Intellectual Property have assigned ownership of such Intellectual Property to the Seller or its Affiliate pursuant to a binding, written agreement.

3.15    Registrations and Registration Data. Except as set forth in Schedule 3.15:

(a)    As of the Closing Date, each of the Specified Product Registrations is valid and in full force and effect and has been valid and in full force and effect (i) with respect to federal Specified Product Registrations, since the date identified on Schedule 3.12; and (ii) with respect to state Specified Product Registrations, since the first shipment date of the applicable Transferred

Products by Seller. Schedule 3.15(a) contains a list of all Specified Product Registrations held as of the Closing Date relating to the Transferred Products.

(b)    For the five (5) years prior to Closing Date, Seller has not received any notice or allegation from any Governmental Authority or other third party that the manufacturing, production, labelling, storage, transportation, sale, distribution or offering for sale or distribution of the Transferred Products failed in any way to comply with FIFRA or similar state laws, nor has Seller received any written notice or allegation of actual or potential liability under FIFRA or similar state laws.

(c)    To Seller’s Knowledge, the Specified Product Registrations or the manufacturing, production, labelling, storage, transportation, sale, distribution or offering for sale or distribution of the Transferred Products are, and have been in material compliance with the requirements of FIFRA or similar state laws (i) since the date identified on Schedule 3.12 with respect to federal Specified Product Specifications; and (ii) with respect to state Specified Product Registrations, since the first shipment date of the applicable Transferred Products by Seller.

(d)    As of the Closing Date, Seller has issued all offers to pay data compensation as required by FIFRA or similar state laws in order to obtain the Specified Product Registrations, and there are no outstanding claims or demands for data compensation pending against Seller nor does the Seller owe or reasonably expect to receive any claims or demands for data compensation for the Transferred Products. As of the Closing Date, Seller has obtained, or has obtained access to, all Registration Data that Seller deems reasonably necessary to support the Specified Product Registrations, and all advertising or marketing claims made with respect to the Transferred Products. Schedule 3.15(d)(i) contains a list of all Registration Data that is owned by Seller, and Schedule 3.15(d)(ii) contains a list of all Registration Data to which Seller has citation rights through a letter of access or similar grant of right.

3.16    Product and Service Warranties.

(a)    Set forth in Schedule 3.16(a) are the standard forms of product and service warranties and guarantees used by the Seller with respect to the Business and copies of all other outstanding product and service warranties and guarantees. To Seller’s Knowledge, no product or service warranties or guaranties have been orally authorized or made except as set forth in Schedule 3.16(a).

(b)    Except as set forth in Schedule 3.16(b), no product or service warranty or similar claims have been made against the Seller or its Affiliates with respect to the Business.

3.17    Product Standards. With respect to the Business:

(a)    To Seller’s Knowledge, neither the Seller nor any of its Affiliates has manufactured for commercial supply, marketed, sold, or supplied any product which was at the time not compliant with its standard terms and conditions of sale or any applicable product registration.

(b)    No product sold by the Seller has been the subject of any voluntary or involuntary recall, market withdrawal, post-sale warning or other similar action due to any product or manufacturing defect or any safety concern. The Seller has a recall plan in place with respect to products it designs, manufactures, imports distributes or sells.

(c)    Intentionally Omitted.

(d)    There exists no pending or, to the Seller’s Knowledge, threatened action or proceeding by any Person or by or before any Governmental Authority relating to any product designed, manufactured, imported, distributed, or sold by the Seller or any of its Affiliates, and alleged to have been defective, unsafe, unlawful, improperly designed or manufactured, mislabeled, adulterated or in breach of any express or implied product warranty or any applicable Law. The Seller is insured against product liabilities in accordance with the insurance policies held by the Seller.

(e)    None of the products produced by the Seller or any of its Affiliates (i) have, at the time of delivery, been adulterated, contaminated, or misbranded or (ii) constitute articles prohibited from introduction into interstate commerce under any Law. The Seller has not been required to file any notification or other report with or provide information to any Governmental Authority or product safety standards group concerning actual or potential defects or hazards with respect to any services performed or products manufactured, sold, distributed, or put in commerce by the Seller or any of its Affiliates.

(f)    All claims made by the Seller or any of its Affiliates on product labels, labeling, marketing, advertising or technical materials are true, accurate, not misleading and comply with all applicable Laws regarding such claims.

(g)    Except as set forth on Schedule 3.17(g), no product manufactured, imported, distributed, or sold, nor any ingredients used in any such product, is (i) listed under or requires warnings under California’s Safe Drinking Water and Toxic Enforcement Act of 1986; (ii) identified under any applicable Law as persistent, bioaccumulative and toxic or very persistent and very bioaccumulative; (iii) identified under any applicable Law as an actual or potential endocrine disruptor; (iv) identified under any applicable Law as toxic or extremely toxic; or (v) identified under the European REACH regulation as being on the candidate list of substances of very high concern.

3.18    Customers and Suppliers. Schedule 3.18 sets forth a true, complete, and correct list of the ten (10) largest customers of the Business and the ten (10) largest suppliers of the Business by volume of sales and purchases, respectively (by dollar volume) for the twelve (12)-month period ending at the end of the calendar month immediately prior to the execution of this Agreement. To Seller’s Knowledge, the Seller has not received any indication from any supplier to the effect that such supplier will stop or decrease, or plans to stop or materially decrease the rate of supplying materials, products, or services to the Business. To Seller’s Knowledge, the Seller has not received any indication from any customer to the effect that such customer will stop or materially decrease the rate of buying materials, services, or products from the Business.

3.19     No Improper Payments. No Person associated with the Seller has promised or given anything of value to another person to obtain or retain business or an advantage in the conduct of the Business, and the Seller has in place adequate procedures designed to prevent Persons associated with the Seller from undertaking any such conduct.

3.20    Brokers, Finders. No finder, broker, agent, or other intermediary, acting on behalf of the Seller or under the Seller’s authority is or will be entitled to a commission, fee, or other compensation in connection with the negotiation or consummation of this Agreement or any of the transactions contemplated hereby.

3.21    [Intentionally Omitted]

3.22    Environmental. Seller is in material compliance with applicable Environmental Laws with respect to the manufacturing, storage and distribution of the Transferred Products, including but not limited to, material compliance with all permits required by Environmental Laws. With respect to the Transferred Products, Seller has not received written notice of any claim, investigation, suit, prosecution, fine, penalty, assessment, charge, hearing or proceeding by a third person, including, without limitation, a judicial, administrative, or civil proceeding instigated by a government or other authority, alleging a violation by Seller of any Environmental Law. With respect to the Transferred Products, Seller has not caused or allowed any material release into the environment of any Hazardous Material.

3.23    No Other Representations or Warranties. Except for any representations and warranties set forth in this Article 3 or any Transaction Document, neither Seller nor any of its Affiliates or Representatives has made or makes any other express or implied representation or warranty, either written or oral, including any representation or warranty as to the accuracy or completeness of any information regarding the Business or the Purchased Assets furnished or made available to Buyer and its Representatives (including any information, documents or materials made available through the Data Room, through management presentations or in any other form), and any such other representation or warranty is hereby expressly disclaimed.

The Buyer hereby makes the following representations and warranties to Seller, each of which is true and correct on the date hereof and as of the Closing and shall survive the Closing Date and the transactions contemplated hereby to the extent set forth herein.

4.1    Existence and Power. The Buyer is duly organized, validly existing and in good standing under the Laws of the State of Delaware, and has the power and authority to execute and deliver this Agreement and each of the Transaction Documents to which it is a party, and to consummate the transactions contemplated hereby and thereby.

4.2    Authorization; Valid and Enforceable Agreements. This Agreement has been duly executed and delivered by Buyer and constitutes a legal, valid, and binding obligation of Buyer, enforceable against it in accordance with its terms, except that such enforcement may be subject to

(i) bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting or relating to enforcement of creditors’ rights generally, and (ii) general principles of equity. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Buyer.

4.3    Litigation. There are no actions, suits, proceedings, orders or investigations pending or, to the Buyer’s Knowledge, threatened against the Buyer or any of the Buyer’s Affiliates, at law or in equity, which if adversely determined would have a material adverse effect on the Buyer’s performance under this Agreement, or the consummation of the transactions contemplated hereby. There are no injunctions, decrees or unsatisfied judgments outstanding against or related to the Buyer which could interfere with the Buyer’s ability to consummate the transactions contemplated by this Agreement. The Buyer is not subject to any order, judgment, writ, injunction or decree of any Governmental Authority which would have a material adverse effect on the Buyer’s ability to consummate the transactions contemplated by this Agreement.

4.4    Brokers, Finders. No finder, broker, agent, or other intermediary, acting on behalf of the Buyer or under the Buyer’s authority is or will be entitled to a commission, fee, or other compensation in connection with the negotiation or consummation of this Agreement or any of the transactions contemplated hereby.

4.5    No Conflict; Required Filings and Consents.

(a)    Except as otherwise provided for herein, no material permit, consent, waiver, approval or authorization of, or declaration to or filing or registration with, any Governmental Authority is required in connection with the execution, delivery or performance of this Agreement or any of the Transaction Documents by Buyer or the consummation of the transactions contemplated hereby.

(b)    Neither the execution and delivery of this Agreement or any of the Transaction Documents, nor the consummation of the transactions contemplated hereby or thereby, by Buyer will violate or result in a material breach of or constitute a material default under any Order.

(c)    Neither the execution and delivery of this Agreement or any of the Transaction Documents, nor the consummation of the transactions contemplated hereby or thereby, by Buyer will violate or result in a material breach of or constitute a material default under any applicable Law.

4.6    Independent Knowledge; No Reliance. Except in the case of Fraud or intentional misrepresentation, Buyer acknowledges that no information or materials provided or made available by, and no representation or warranty (except for those contained in Article 3), express or implied of Seller or Seller’s respective Affiliates or Representatives with respect to the Business or the Purchased Assets, shall form the basis of any claim against Seller or Seller’s respective Affiliates or Representatives pursuant to this Agreement.

5.1    Conduct of Business Until Closing. From the date of this Agreement until the Closing Date, Seller shall, and shall cause its Affiliates to, continue to operate and conduct the Business, including with respect to the Purchased Assets, in the Ordinary Course, on a basis consistent with past practices. Each of Buyer and Seller shall use commercially reasonable efforts to execute and deliver, and cause PBI-Gordon Corporation to execute and deliver, the Tri-Party Agreement and Consent.

(c)    Registration Data.

(i)    With respect to Registration Data that is owned by Seller or its Affiliate or to which Seller or its Affiliate has the right to grant access (“Seller Registration Data”), Seller or its relevant Affiliate shall, within ten (10) Business Days of a request from Buyer or its designated Affiliate, issue a Letter of Authorization in substantially the same form as Exhibit G or as may be required by the relevant Governmental Authority, granting Buyer or its designated Affiliate the authority to cite, use and otherwise rely upon the Seller Registration Data. Seller Registration Data shall include, but shall not be limited to, the Registration Data identified on Schedule 6.1(c)(i). Additionally, within thirty (30) days after

the Closing Date, Seller shall provide to Buyer, and shall cause its Affiliates to provide to Buyer, hard copies of all Seller Registration Data and registration files, including complete EPA and California registration applications, data summaries or analyses prepared by a Governmental Authority in the possession of Seller or its Affiliates, and current confidential statements of formula, for all Specified Product Registrations. Buyer and its designated Affiliates shall have “hard copy rights” to use the Seller Registration Data, provided, however, that nothing in this Section 6.1(c) shall be deemed to be a transfer of all ownership interest in the Seller Registration Data to Buyer, nor shall Seller or its Affiliates be precluded from continuing to cite, use or rely upon the Seller Registration Data.

(ii)    With respect to Registration Data that is owned by a third party in whole or in part or to which Seller does not have the sole right to grant access (“Third Party Registration Data”), Seller or its Affiliate agree to issue a Letter of Authorization in substantially the same form as Exhibit G or as may be required by the relevant Governmental Authority, and/or to provide to Buyer, hard copies of any such Third Party Registration Data, in whole or in part, if, and only if, the relevant third party/ies agree to the same. To Seller’s Knowledge, Third Party Registration Data includes the Registration Data identified on Schedule 6.1(c)(ii). Upon request from Buyer or its Affiliates and agreement by the relevant third party/ies, Seller shall not unreasonably delay providing to Buyer or its Affiliates hard copies of the Third Party Registration Data or issuing a Letter of Authorization with respect to such Third Party Registration Data.

(d)    Upon receipt of all necessary federal and state registrations for the Transferred Products in the name of Buyer or its Affiliates, the Buyer shall, and shall cause its Affiliates to, without undue delay, comply with all Laws for changeover of all applicable packaging, labelling, package inserts and safety data sheets associated with the Transferred Products that are the subject of such registrations.

(e)    In connection with the actions contemplated by this Section 6.1, each Party shall, and shall cause its Affiliates to, provide reasonably necessary assistance to the other Party and its Affiliates in seeking to obtain federal and state registrations for the Transferred Products in the name of Buyer and/or its Affiliates; provided, however, that the Buyer shall, or shall cause its Affiliates to, reimburse Seller and its Affiliates for any reasonable out-of-pocket fees, expenses and other costs incurred by Seller and its Affiliates in connection with such assistance promptly following receipt of a written request for reimbursement (including reasonable supporting documentation for such fees, expenses and other costs).

(f)    Subject to Section 6.1(c)(ii) with respect to Third Party Registration Data, Seller hereby authorizes Buyer and/or its Affiliates to cite, refer to or submit the Registration Data in order to support the ability of Buyer and/or its Affiliates to obtain and hold registrations of the Transferred Products in their own name; provided, however, that neither Seller nor its Affiliates shall seek, nor shall Seller or its Affiliates be entitled to, any data compensation from Buyer or its designated Affiliates associated with the citation to, use of or reliance on Registration Data generated, cited, relied upon or submitted to a Governmental Authority by Seller or any of its Affiliates. For the avoidance of doubt, all Registration Data remains the property of Seller and/or its licensor/third

party owner and Buyer is only granted the right to cite, refer to or submit such data, without further data compensation, solely and exclusively for the use in obtaining registrations for the Brand Extension Products for sale by Buyer.  

6.2    Books and Records; Transfer of Books and Records.

(a)    Seller and/or its Affiliates shall have the right to retain copies of any Transferred Books and Records for legal, regulatory, Tax or accounting purposes.

(b)    Except for the Transferred Books and Records, to the extent the Seller possesses customer data related to the Transferred Products or supplier data related to the Transferred Products, in each case, for Fiscal Year 2017 through Fiscal Year 2019 (the “Relevant Information”), such information is subject to the following conditions:

(i)    if it is reasonably practicable for the Relevant Information to be physically extracted from the corresponding books and records, or if it is reasonably practicable for a copy of the corresponding books and records to be transmitted to the Buyer, redacting any information that is not Relevant Information, then the Seller shall, and shall cause its Affiliates to, transmit to the Buyer such extract or such redacted copy;

(ii)    if it is not reasonably practicable for the Relevant Information to be physically extracted or to be transmitted in a redacted form, then the Seller shall, and shall cause its Affiliates to, give access to such Relevant Information to the Buyer according to the following conditions:

6.3    Confidentiality; Announcements.

(a)    Following Closing, Seller shall maintain, and shall cause its Affiliates to maintain, in confidence any information in its or their possession related to the Business, the Purchased Assets and the Assumed Liabilities, and such information shall not be disclosed or used by Seller or its Affiliates with Buyer’s prior written consent, except in connection with this Agreement and unless such information is: (i) otherwise publicly available; or (ii) if advised by counsel that such information required to be disclosed applicable law or by order of a court of competent jurisdiction, by rule or regulation of any governmental agency or by any listing

agreement with, or rule or regulation of, any stock exchange upon which securities of such Party are registered.

(b)    No written or oral public announcement or disclosure may be made by either Party with regard to this Agreement, the Specified Agreements or the transactions contemplated hereby or thereby without the prior consent of the other Party; provided, that either Party may make (a) such announcement or disclosure (i) with respect to operational matters related to the Parties under the Agency Agreement in response to inquiries by customers and vendors in the ordinary course of business (but not with respect to the substantive rights between the Parties under the Agency Agreement or any other agreement between the Parties) (“Operational Matters”); or (ii) if advised by counsel that such Party is required to do so by applicable law or by order of a court of competent jurisdiction, by rule or regulation of any governmental agency or by any listing agreement with, or rule or regulation of, any stock exchange upon which securities of such Party are registered; (b) any written public announcement or disclosure, if the other Party has previously consented to any announcement or disclosure that is the same (other than immaterial, non-substantive deviations) to such announcement or disclosure; or (c) any oral public announcement or disclosure, if the other Party has previously consented to any announcement or disclosure that is substantially similar to such announcement or disclosure. Notwithstanding the foregoing and except with respect to Operational Matters, each Party shall, (i) provide to the other Party reasonable advanced notice, and a draft copy or summary, of any written or oral public announcements or disclosures (regardless of whether or not such announcement or disclosure is required, as described in the preceding sentence) concerning this Agreement, the Specified Agreements or the transactions contemplated thereby, (ii) give the other Party a reasonable opportunity to comment on such announcement or disclosure and (iii) consider in good faith such comments, prior to making any such written or oral public announcement or disclosure.

6.4    Regulatory Filings. Except as contained in Section 6.1:

(a)    Subject to the terms and conditions of this Agreement, each Party will use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws to consummate the transactions contemplated by this Agreement and the other Transaction Documents. The Buyer and Seller shall furnish to each other and to each other’s counsel all such information as may be reasonably required in order to accomplish the foregoing actions.

(b)    Subject to the terms and conditions of this Agreement, each Party will use its commercially reasonable efforts to cooperate with one another in seeking any actions, consents, approvals or waivers required to be obtained from parties to any Assumed Contracts in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, and in making any filings with any Governmental Authority and furnishing information required in connection therewith and timely seeking to obtain any such actions, consents, approvals or waivers.

(c)    In furtherance and not in limitation of the foregoing, and subject to the terms set forth in this Section 6.4, each Party shall cooperate and consult with the other Party in connection with the actions referenced in this Section 6.4. In particular, each Party shall, subject to applicable

Law and except as prohibited by any Governmental Authority: (i) furnish to the other Party such information and assistance as the other Party reasonably may request in connection with the preparation of any submissions to, or agency proceedings by, any Governmental Authority relating to this Agreement; (ii) promptly notify and apprise the other Party of (and, if in writing, supply such Party with) any communication (or other correspondence or other memoranda) to that Party from any Governmental Authority relating to this Agreement; (iii) permit the other Party to review in advance, and consider in good faith the comments of the other Party in connection with, any proposed written communication with any Governmental Authority relating to this Agreement; (iv) to the extent reasonably practicable, not participate in any substantive meeting or any material discussion or communication with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement, unless it consults with the other Party in advance and, as permitted by such Governmental Authority, gives the other Party the opportunity to attend and participate thereat or, to the extent prior consultation is not reasonably practicable, promptly report to the other Party the substance of the communication; (v) furnish the other Party with copies of all correspondence, filings, and written communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives and any Governmental Authorities or their respective representatives with respect to this Agreement; and (vi) make available such Party’s counsel, experts and advisors to (and have such Persons participate with) the other Party and its counsel, experts, and advisors for the purpose of (and in connection with) the actions contemplated in this Section 6.4. Notwithstanding the foregoing or anything to the contrary in this Agreement, neither Party shall be required to disclose any information to the extent that disclosing such information would violate any Law or require the disclosing Party or any of its Affiliates to disclose information subject to attorney-client privilege, or conflict with any confidentiality obligations to which the disclosing Party or any of its Affiliates are bound.

6.5    Further Actions; Cooperation. On or after the Closing Date, the Parties shall, on request, cooperate with one another by furnishing any additional information, executing, delivering and filing (as the case may be) any additional documents and instruments, including, without limitation, contracts and/or instruments of transfer or assignment, files, books and records and doing any and all such other things as may be reasonably required by the Parties or their counsel to consummate or otherwise implement the transactions contemplated by this Agreement and any other Transaction Document. In connection with the Assumed Liabilities and liabilities retained by Seller and its Affiliates pursuant to this Agreement, each of the Parties hereto shall, and shall cause their Affiliates and employees to, aid, cooperate with and assist the other Party in their defense of such assumed or retained liabilities, by, among other things, providing such other Party with reasonable access to pertinent records at such times as such other Party may reasonably request; provided, however, that neither Party shall be required by this Section 6.5 to take any such action that would unreasonably interfere with the conduct of its business, or unreasonably disrupt its normal operations. Seller shall use commercially reasonable efforts to assist Buyer with effecting the transfer of any social media accounts or domain names included in the Transferred Intellectual Property. To the extent that Buyer seeks to use additional copyrighted materials subject to unregistered copyright interests that were used by Seller in the Business prior to Closing but were not included in the Transferred Intellectual Property, Seller shall use commercially reasonable efforts to make such unregistered copyrights available to Buyer (whether via a transfer or license). Within thirty (30)

days of the Closing Date, Seller shall deliver to Buyer (i) the unaudited statements of earnings of the Seller with respect to the Business for the fiscal period ending on July 31, 2019 and (ii) the balance sheet of the Seller with respect to the Business as of July 31, 2019.

6.6    Wrongfully Transferred or Retained Assets and Liabilities. In the event any of the Parties discovers after the Closing that it, or its Affiliates, is the owner of, receives, or otherwise comes to possess any asset (including the receipt of payments made pursuant to Assumed Contracts) or is liable for any liability (including liability for accounts payable pursuant to Assumed Contracts) that is allocated to any Person other than in accordance with this Agreement or any other Transaction Documents (except as the Parties may otherwise agree), such Party shall, or shall cause its Affiliates to, use all commercially reasonable efforts to convey such asset or liability, at no cost, to the Party so entitled thereto in accordance with this Agreement (and the relevant Party will cause such entitled Party to accept such asset or assume such liability).

6.7    Seller Name. Subject to the other provisions of this Section 6.7, the Seller hereby grants a limited, non-exclusive, fully paid, non-royalty bearing right and license to the Buyer for a period of thirty-six (36) months following the Closing Date to use and sublicense the Seller Name only to the extent necessary to allow the Buyer, its Affiliates and its Third Party manufacturers and distributors to market, distribute, and sell all Inventory of finished Brand Extension Products or any finished Brand Extension Products manufactured after the Closing Date, utilizing the labels and packaging, advertising, marketing, sales and promotional materials that either exist on the Closing Date and are included in the Purchased Assets or that are identical, in all material respects, to such labels, packaging or advertising, marketing, sales and promotional materials. Any Brand Extension Products that are manufactured or otherwise acquired by the Buyer or its Affiliates after the Closing Date shall be of quality consistent with the quality of the Inventory of finished Brand Extension Products included in the Purchased Assets and all uses of the Seller Name shall be in a form and manner consistent with the use thereof by the Seller in connection with the Business immediately prior to the Closing Date. All goodwill arising out of use by Buyer or any of its Affiliates of the Seller Name shall inure solely to the benefit of the Seller.

6.8    PBI. In the event that the Tri-Party Agreement and Consent has not been executed and delivered by Seller and PBI-Gordon Corporation at Closing, then (i) each of Buyer and Seller shall continue to use commercially reasonable efforts to execute and deliver, and cause PBI-Gordon Corporation to execute and deliver the Tri-Party Agreement and Consent, and (ii) Seller agrees to waive any Seller restrictive covenant, exclusivity obligation or right or other obligation set forth in any agreement between Seller and PBI-Gordon Corporation or its Affiliates that would prevent PBI-Gordon Corporation or its Affiliates from entering into, or performing under, any agreement with Buyer with respect to the Mixture Products (as such term is defined in the Tri-Party Agreement and Consent).

The obligation of Buyer to proceed with the Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions precedent, any of which may be waived in whole or in part by Buyer:

7.1    No Contrary Judgment. On the Closing Date there shall not exist (i) any order, decree or ruling permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement or (ii) any pending action, demand, suit, claim, litigation, investigation or other proceeding by a Governmental Authority against either Party for the purpose of enjoining or otherwise preventing the transactions contemplated herein.

7.2    Deliveries. Seller shall have made or tendered, or caused to be made or tendered, delivery to the Buyer of the documents and deliverables set forth in Section 2.7(b).

The obligation of the Seller to proceed with the Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions precedent, any of which may be waived in whole or in part by the Seller:

8.1    No Contrary Judgment. On the Closing Date there shall not exist (i) any order, decree or ruling permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement or (ii) any pending action, demand, suit, claim, litigation, investigation or other proceeding by a Governmental Authority against either Party for the purpose of enjoining or otherwise preventing the transactions contemplated herein.

8.2    Deliveries. Buyer shall have made or tendered, or caused to be made or tendered, delivery to the Seller of the documents and deliverables set forth in Section 2.7(c).

9.1    Survival.

(a)    The representations and warranties of Buyer and Seller contained in this Agreement and any certificate delivered pursuant hereto shall survive the Closing until the fifteen (15) month anniversary of the Closing Date; provided, however that the Fundamental Representations, and any representation in the case of Fraud, shall survive until the close of business on the sixtieth (60^th) day following the expiration of the applicable statute of limitations.

(b)    Neither Buyer nor Seller shall have any liability with respect to any representations, warranties, covenants or agreements unless the requisite Claim Notice under Section 9.4 with respect to an actual or threatened claim hereunder is given to the other Party prior

to the expiration of the applicable survival period, if any, for such representation, warranty, covenant or agreement, in which case such representation, warranty, covenant or agreement shall survive as to such claim until such claim has been finally resolved in accordance with this Article 9, without the requirement of commencing any Action in order to extend such survival period or preserve such claim; provided, however, that any representation, warranty, covenant or agreement that would otherwise expire will continue to survive if the requisite Claim Notice under Section 9.4 has been timely given in good faith based on facts reasonably expected to establish a valid claim under this Article 9 that occurred on or prior to such expiration date, until the related indemnity claim shall have been satisfied or otherwise resolved as provided in this Article 9.

9.2    Indemnification by Seller. Subject to the limitations set forth in this Article 9, Seller shall save, defend, indemnify and hold harmless Buyer and its Affiliates and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, any and all Losses incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to:

(a)    any breach of any of the representations or warranties made in Article 3 by Seller;

(b)    any breach or violation of the obligations or covenants made in this Agreement by Seller;

(c)    the ownership, use or possession of the Excluded Assets; and

(d)    the Excluded Liabilities.

9.3    Indemnification by Buyer. Subject to the limitations set forth in this Article 9, Buyer shall save, defend, indemnify and hold harmless Seller and its Affiliates and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, any and all Losses incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to:

(a)    any breach of any of the representations and warranties made in Article 4 by Buyer;

(b)    any breach or violation of the obligations or covenants made in this Agreement by Buyer; or

(c)    any Assumed Liability.

9.4    Procedures.

(a)    A Party seeking indemnification (the “Indemnified Party”) as a result of, arising out of, or relating to a Loss involving a claim or demand made by any person against the Indemnified Party (a “Third Party Claim”) shall deliver notice (a “Claim Notice”) in respect thereof to the Party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of notice of the Third Party Claim, and shall

provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 9 except to the extent that the Indemnifying Party is materially prejudiced by such failure.

(b)    The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within thirty (30) days of receipt of a Claim Notice from the Indemnified Party in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period set forth above, the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim in accordance with the terms of this Section 9.4(b); provided that such settlement shall not be deemed evidence that the Indemnified Party is entitled to indemnification hereunder nor shall it be determinative of the amount of Loss. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the sole expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing by the Indemnified Party, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be fully indemnified hereunder.

(c)    An Indemnified Party seeking indemnification as a result of, arising out of or relating to a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with reasonably detailed information of the facts and circumstances underlying such claim along with a good faith estimate of Loss and supporting documents. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 9 except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article 9.

(d)    The Indemnifying Party shall not be entitled to require that any Action be made or brought against any other Person before a claim is made against it hereunder by the Indemnified Party.

(e)    In respect of any amounts due and payable by a Party, pursuant to this Article 9, such Party shall pay to the other Party such amounts by wire transfer of immediately available funds to an account designed by the other Party in writing.

9.5    Limitation on Indemnification. Notwithstanding anything to the contrary contained in this Agreement:

(a)    an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 9.2(a) or Section 9.3(a), as the case may be, unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Party equals or exceeds Two Hundred Fifty Thousand Dollars ($250,000), in which case the Indemnifying Party shall be liable only for the amount of such Losses that exceeds Two Hundred Fifty Thousand Dollars ($250,000) and subject to the other limitations set forth herein; provided, however, that the maximum aggregate amount of indemnifiable Losses which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 9.2(a), on the one hand, or Section 9.3(a), on the other hand, as the case may be, shall be an amount equal to Eight Million Dollars ($8,000,000) (the “Cap”), provided, further, that the foregoing limitations shall not apply to Losses arising out of or relating to (i) the inaccuracy or breach of any Fundamental Representation or (ii) any representation or warranty in the event of Fraud;

(b)    except as otherwise provided in this Section 9.5, the maximum aggregate amount of Losses which may be recovered from the Indemnifying Party arising out of or relating to this Agreement shall be limited to an aggregate amount equal to the Purchase Price;

(c)    notwithstanding anything to the contrary herein, it is intended that the provisions of this Agreement will not result in a duplicative payment of any amount required to be paid under this Agreement such that a Party would receive payment on more than one occasion in respect of the same specific Loss and this provision will be construed accordingly;

(d)    for purposes of this Article 9, the representations and warranties of either Party qualified by any references to materiality, material adverse effect or any similar qualifier shall be deemed to have been made with such qualification for purposes of determining whether a breach occurred but, if such breach has occurred, shall be deemed to have been made without such qualification for purpose of determining the amount of any Losses resulting from any such breach;

(e)    the amount of any and all Losses under this Article 9 shall be reduced by the net Tax benefit actually realized by the Indemnified Party as a result of a deduction with respect to such Loss in the Tax period in which such Loss was incurred or the two (2) Tax periods immediately following the last day of such Tax period (with a 25% effective Tax rate being assumed for this purpose). The net Tax benefit that is actually realized by the Indemnified Party for a Tax period shall be the excess, if any, of (x) the Indemnified Party’s cumulative liability for Taxes

through the end of such Tax period, calculated by excluding any Tax items attributable to the payment with respect to the Loss at issue for all Tax periods, over (y) the Indemnified Party’s actual cumulative liability for Taxes through the end of such Tax period, calculated by taking into account any Tax items attributable to the payment with respect to the Loss at issue for all Tax periods (to the extent permitted by relevant Tax Law). For the avoidance of doubt, the result of the foregoing is to treat such Tax items as the last items claimed for any Tax period; and

(f)    each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach giving rise to such Loss.

9.6    Characterization of Indemnity Payments. Any indemnification payments made pursuant to this Agreement shall be considered, to the extent permissible under Law, as adjustments to the Purchase Price provided herein for all Tax purposes.

9.7    Exclusive Remedy. The Parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from Fraud) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein shall be pursuant to the indemnification provisions set forth in this Article 9; provided that nothing herein shall limit (a) any Party’s right to seek specific performance or other equitable remedy or (b) any Party’s rights or remedies under any Transaction Document.

10.1    Termination. This Agreement may be terminated and the transactions contemplated hereunder may be abandoned at any time prior to the Closing Date by mutual written consent of Buyer and the Seller.

11.1    Fees and Expenses. Except as otherwise provided herein, all fees and expenses incurred in connection with or related to this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby shall be paid by the Party incurring such fees or expenses, whether or not such transactions are consummated.

11.2    Amendment and Modification. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each Party.

11.3    Waiver. No failure or delay of a Party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.

The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on the part of a Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such Party.

11.4    Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by e-mail, upon written or machine generated confirmation of receipt by e-mail or otherwise, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the Party to receive such notice:

11.5    Interpretation. When a reference is made in this Agreement to a Section, Article, Exhibit or Schedule such reference shall be to a Section, Article, Exhibit or Schedule of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in any Exhibit or Schedule are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to the Agreement as a whole and not to any particular provision in this Agreement. The term “or” is not exclusive. The word “will” shall be construed to have the same meaning and effect as the word “shall.” References to days mean calendar days unless otherwise specified.

11.6    Entire Agreement. This Agreement (including the Exhibits and Schedules hereto), the Transaction Documents and the Mutual Confidentiality Agreement, effective May 8, 2019, constitute the entire agreement with respect to the purchase and sale of the Purchased Assets, and supersede all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the Parties with respect to the subject matter hereof and thereof. Notwithstanding any oral agreement or course of conduct of the Parties or their Representatives to the contrary, no Party to this Agreement shall be under any legal obligation to enter into the transactions contemplated hereby unless and until this Agreement shall have been executed and delivered by each of the Parties. Notwithstanding the foregoing, the Parties acknowledge and agree that this Agreement together with the Specified Agreements constitute an indivisible, integrated agreement with (a) a single nature and purpose and (b) interrelated obligations. The Parties acknowledge and agree that the consideration for this Agreement is adequate, that the consideration for each of the Specified Agreements is adequate, and that subsequent defaults or terminations of any of the Specified Agreements will not render this Agreement unenforceable due to lack of consideration. The Parties further acknowledge and agree that, subject to the foregoing sentence, the consideration for each of the Specified Agreements is intended as interdependent consideration for all Specified Agreements and is not separate, distinct or capable of apportionment, such that a rejection in any proceeding pursuant to any applicable bankruptcy or insolvency Laws of any terms of this Agreement or any of the Specified Agreements would constitute a rejection of all such agreements. The Parties acknowledge and agree that they would not have entered into this Agreement or any Specified Agreement without entering into all such agreements. Notwithstanding the foregoing, the Parties acknowledge and agree that no breach of this Agreement shall be deemed to be a breach of any Specified Agreement and that no breach of any Specified Agreement shall be deemed to be a breach of this Agreement; provided, that the foregoing shall not be deemed to negate an actual breach of this Agreement or the Specified Agreements, as applicable.

11.7    No Third-Party Beneficiaries. Except for Affiliates and Representatives with respect to indemnification rights pursuant to Article 9, nothing in this Agreement, express or implied,

is intended to or shall confer upon any Person other than the Parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.

11.8    Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, applicable to contracts to be carried out wholly within such State, without regard to the principles of conflicts of Laws that might otherwise be applicable.

11.9    Jurisdiction; Service of Process. To the extent a Party seeks a determination as to the infringement, validity or enforceability of intellectual property rights (“Specified Actions”), any suit, action or proceeding against any Party hereto with respect to the such matters, or any judgment entered by any court in respect of a Specified Action, must be brought or entered in the United States District Court for the District of Delaware, and each such Party hereby irrevocably submits to the jurisdiction of such court for the purpose of any Specified Action. If such court does not have jurisdiction over the Specified Action or, if such jurisdiction is not available, then such Specified Action or proceeding against any Party hereto shall be brought or entered in the Court of Chancery of the State of Delaware, County of New Castle, and each Party hereby irrevocably submits to the jurisdiction of such court for the purpose of any such Specified Action. Each Party hereto hereby irrevocably waives any objection which either of them may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to a Specified Action brought as provided in this subsection, and hereby further irrevocably waives any claim that any such Specified Action brought in any such court has been brought in an inconvenient forum. To the extent each Party hereto has or hereafter may acquire any immunity from jurisdiction of any court or from legal process with respect to itself or its property, each Party hereto hereby irrevocably waives such immunity with respect to any Specified Action. Except as otherwise provided herein, the Parties agree that exclusive jurisdiction of all Specified Actions between the Parties hereto with respect to the subject matter of this Agreement lies in the United States District Court for Delaware, or the Court of Chancery of the State of Delaware, County of New Castle, as hereinabove provided. Seller hereby irrevocably appoints CT Corporation, having an address at 1209 Orange Street, Wilmington, Delaware 19801 and Buyer hereby irrevocably appoints Corporation Service Corporation, having an address at 2711 Centerville Rd, Suite 400, Wilmington, Delaware 19808, as its agent to receive on behalf of each such Party and its respective properties, service of copies of any summons and complaint and any other pleadings which may be served in any Specified Action. Service by mailing (by certified mail, return receipt requested) or delivering a copy of such process to a Party in care of its agent for service of process as aforesaid shall be deemed good and sufficient service thereof, and each Party hereby irrevocably authorizes and directs its respective agent for service of process to accept such service on its behalf. To the extent a Party seeks injunctive relief (including without limitation injunctive relief related to the scope or validity of indemnity or defense obligations), the Party may seek such relief in any federal or state court with applicable jurisdiction or any venue permitted by law.

11.10    Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by either Party without the prior written consent of the other Party, and any

such assignment without such prior written consent shall be null and void; provided, however, that a Party may assign this Agreement to any Affiliate of such Party without the prior consent of the other Party; provided, further, that that assigning Party shall remain liable for all of the assignee’s obligations hereunder. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.

11.11    Currency. All references to “dollars” or “$” or “US$” in this Agreement or any Transaction Document refer to United States dollars, which is the currency used for all purposes in this Agreement and any Transaction Document.

11.12    Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

11.13    Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each of the other Parties.

11.14    Facsimile or pdf Signature. This Agreement may be executed by facsimile or .pdf signature and a facsimile or.pdf signature shall constitute an original for all purposes.

11.15    Time of Essence. Time is of the essence with regard to all dates and time periods set forth or referred to in this Agreement.

11.16    No Presumption Against Drafting Party. Each of Seller and Buyer acknowledges that each Party to this Agreement has been represented by legal counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting Party has no application and is expressly waived.

IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed as of the date first above written.

For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, The Scotts Company LLC, an Ohio limited liability company (“Scotts”), does hereby grant, bargain, transfer, sell, assign, convey, and deliver to Monsanto Company, a Delaware corporation (“Monsanto”), all of its right, title and interest in and to all of the Inventory (as defined in that certain Asset Purchase Agreement, dated July 29, 2019, between Monsanto and Scotts), to have and to hold the same unto Monsanto, its successors and assigns, forever.

Effective: August 1, 2019

IN WITNESS WHEREOF, the undersigned has duly executed this Bill of Sale as of the date first above written.

This BRAND EXTENSION AGREEMENT TERMINATION AGREEMENT (this “Agreement”) is entered into July 29, 2019 and effective as of August 1, 2019 (the “Effective Date”), by and between Monsanto Company, a Delaware corporation (“Monsanto”), and The Scotts Company LLC, an Ohio limited liability company (“Scotts”). Each of Monsanto and Scotts may be referred to herein as a “Party” or collectively as the “Parties.”

WHEREAS, Monsanto and Scotts are parties to that certain Amended and Restated Lawn and Garden Brand Extension Agreement - Americas, effective as of May 15, 2015 (the “Brand Extension Agreement”); and

WHEREAS, the Parties desire to mutually terminate the Brand Extension Agreement, with such termination to be effective as of the Effective Date.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:

1.    Termination of Brand Extension Agreement. Each Party mutually agrees that the Brand Extension Agreement shall be terminated effective as the Effective Date, and following such termination, the Brand Extension Agreement shall be of no further force or effect. This Agreement is written notification by each Party to the other Party of its intention to terminate the Brand Extension Agreement, and each Party hereby waives any right to prior notice or other requirements of termination that may be required under the Brand Extension Agreement.

2.    Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

3.    Assignment. Neither this Agreement nor any right or interest under this Agreement may be assigned by any Party without the prior written consent of the other Party.

4.    Notices. All notices and other communications hereunder shall be in writing and shall be deemed given on the same business day if delivered personally or sent by telefax with confirmation of receipt, on the next business day if sent by overnight courier, or on the earlier of actual receipt as shown on the registered receipt or five business days after mailing if mailed by registered or certified mail (return receipt requested) to the Parties at the addresses set forth below (or at such other address for a Party as shall be specified by like notice):

5.    Further Assurances. The Parties shall execute and deliver such further instruments and take such further actions as may be necessary or desirable to evidence more fully the agreement contained herein, including without limitation the termination of the Brand Extension Agreement.

6.    Entire Agreement. This Agreement, together with all respective exhibits and schedules hereto, constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof. Notwithstanding the foregoing, the Parties acknowledge and agree that this Agreement together with the Specified Agreements constitute an indivisible, integrated agreement with (a) a single nature and purpose and (b) interrelated obligations. The Parties acknowledge and agree that the consideration for this Agreement is adequate, that the consideration for each of the Specified Agreements is adequate, and that subsequent defaults or terminations of any of the

Specified Agreements will not render this Agreement unenforceable due to lack of consideration. The Parties further acknowledge and agree that, subject to the foregoing sentence, the consideration for each of the Specified Agreements is intended as interdependent consideration for all Specified Agreements and is not separate, distinct or capable of apportionment, such that a rejection in any proceeding pursuant to any applicable bankruptcy or insolvency laws of any terms of this Agreement or any of the Specified Agreements would constitute a rejection of all such agreements. The Parties acknowledge and agree that they would not have entered into this Agreement or any Specified Agreement without entering into all such agreements. Notwithstanding the foregoing, the Parties acknowledge and agree that no breach of this Agreement shall be deemed to be a breach of any Specified Agreement and that no breach of any Specified Agreement shall be deemed to be a breach of this Agreement; provided, that the foregoing shall not be deemed to negate an actual breach of this Agreement or the Specified Agreements, as applicable. “Specified Agreements” means the agreements, documents and instruments entered into contemporaneously with execution of this Agreement, including, without limitation (i) that certain Commercialization and Technology Agreement Termination Agreement by and between Monsanto and Scotts; (ii) that certain Asset Purchase Agreement by and between Monsanto and Scotts; (iii) that certain Third Amended and Restated Exclusive Agency and Marketing Agreement by and between Monsanto and Scotts, and (iv) all other agreements, documents and instruments contemplated by each of the foregoing.

7.    Amendment and Modification. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each Party.

8.    Execution by Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument. A signed copy of this Agreement delivered by e-mail, facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

Dear [INSERT RECIPIENT NAME]:

[[The Scotts Company] or [relevant Affiliate]] (“Scotts”) hereby authorizes the [U.S. Environmental Protection Agency (EPA)] to refer to the Scotts Data (as defined below in Section 1) in support of [COMPANY NAME]’s (“Company”) application for registration of [PRODUCT NAME] solely for the uses described below in Section 2.

    

Scotts does not grant the Company any ownership interest whatsoever in any of the Scotts Data. This Letter of Authorization is not and shall not be construed as an authorization to refer to or to cite the Scotts Data, directly or indirectly, in support of any other application submitted by Company or any other applicant for any other purpose, including, but not limited to, applications for new or amended registrations or distributor products. This letter does not authorize EPA to allow Company to have access to or to review any Scotts Data or any other data submitted by Scotts. Furthermore, this letter is not a waiver of any of Scotts’ rights in the referenced Scotts Data, nor may these Scotts Data be referenced or cited by other governmental regulatory agencies not previously authorized by Scotts in writing.

Sincerely,

[SCOTTS SIGNATORY NAME]

[SCOTTS SIGNATORY TITLE]

cc:    [INSERT AS NEEDED]

THIS SECOND AMENDED AND RESTATED FORMULATION AGREEMENT (this “Formulation Agreement”), is entered into as of July, 29, 2019 and effective as of August 1, 2019 (the “Second Amendment Date”), by and between MONSANTO COMPANY, a Delaware corporation, having its principal place of business at 800 North Lindbergh Blvd., St. Louis, Missouri 63167 (hereinafter called “Monsanto”), and THE SCOTTS COMPANY LLC, an Ohio limited liability company (f/k/a The Scotts Company, an Ohio corporation), having its principal place of business at 14111 Scottslawn Road, Marysville, Ohio 43041 (hereinafter called “Formulator”) amends and restates that certain Amended and Restated Formulation Agreement, dated as of the First Amendment Date, by and between Monsanto and Formulator (as amended from time to time, the “Amended and Restated Formulation Agreement”).

WHEREAS, Monsanto and Formulator completed the transaction contemplated by that certain Asset Purchase Agreement, dated November 11, 1998 (as amended from time to time, the “Asset Purchase Agreement”) pursuant to which Formulator has purchased certain assets of The Solaris Group operating unit of Monsanto, including Monsanto’s manufacturing facility at Ft. Madison, Iowa;

WHEREAS, Monsanto and Formulator entered into that certain Amended and Restated Exclusive Agency and Marketing Agreement, dated September 30, 1998 (as amended from time to time, the “Original Agency Agreement”) pursuant to which Formulator serves as Monsanto’s exclusive agent for the marketing and distribution of Roundup Products to be sold in Lawn and Garden Channels (each, as defined in the Agency Agreement);

WHEREAS, Monsanto and Formulator entered into that certain letter agreement, dated August 31, 2009, which amended the Original Formulation Agreement and the Original Agency Agreement in settlement of certain claims and issues thereunder;

WHEREAS, prior to the transaction effectuated by the Asset Purchase Agreement, Monsanto prepared such Roundup Products at the Ft. Madison, Iowa facility sold to Formulator;

WHEREAS, Formulator represented to Monsanto that as a result of the transactions described in the Asset Purchase Agreement and the Agency Agreement, Formulator had or would have the necessary skill and facilities to perform all of the operations and services for Monsanto as hereinafter described and defined, including the preparation of Roundup Products to be sold in Lawn and Garden Channels in the United States and Canada;

WHEREAS, Monsanto and Formulator entered into that certain Formulation Agreement, dated as of the Effective Date (as amended from time to time, the “Original Formulation Agreement”) pursuant to which Monsanto retained Formulator for such operations and services on an exclusive basis with respect to Products to be sold in Lawn and Garden Channels in the United States and Canada during the term of the Original Formulation Agreement;

WHEREAS, on February 24, 2012, Monsanto and Formulator entered into the Amended and Restated Formulation Agreement, which amended and restated the Original Formulation Agreement;

WHEREAS, on August 31, 2017, Monsanto and Formulator entered into that certain Second Amended and Restated Exclusive Agency and Marketing Agreement (the “Second Amended and Restated Agency Agreement”), which amended and restated the Original Agency Agreement;

WHEREAS, simultaneously with the execution of this Formulation Agreement, Monsanto and Formulator are entering into that certain Third Amended and Restated Exclusive Agency and Marketing Agreement, effective of the Second Amendment Date (the “Agency Agreement”), which amended and restated the Second Amended and Restated Agency Agreement; and

WHEREAS, Monsanto and Formulator now wish to amend and restate the Amended and Restated Formulation Agreement as set forth herein.

NOW THEREFORE, in consideration of the mutual agreements herein contained, Monsanto hereby engages Formulator for, and Formulator hereby undertakes, all of such operations and services in accordance with the terms and conditions set forth herein.

As used in this Formulation Agreement, the following terms shall have the following respective meanings:

meets the Specifications therefor, in accordance with Monsanto’s instructions and the Quality Assurance Manual.

Formulator and Monsanto. Any incremental increases or decreases in costs relating to the Formulating Services as a result of any such changes by Monsanto shall be borne by or credited to Monsanto, as the case may be.

Either party may (i) terminate the Formulating Services for Legacy Products at the end of a Program Year by providing written notice of such termination to the other party no later than March 31 of the Program Year immediately preceding the Program Year to be terminated (i.e., at least eighteen (18) months’ notice) and (ii) terminate the Formulating Services for BEA Products at the end of a Program Year by providing written notice of such termination to the other party no less than three (3) full Program Years prior to the termination of such Formulating Services (i.e., at least thirty-six (36) months’ notice) (any such notice, a “Formulation Termination Notice”); provided, however, that in the event of a termination pursuant to this Section 3.1(i), Formulator shall also supply those Specified Materials used in Legacy Products for a period of thirty six (36) months after the Formulation Termination Notice. For example, a Formulation Termination Notice with respect to Legacy Products provided no later than March 31, 2021 would terminate the Formulating Services of the Legacy Products effective as of October 1, 2022 and a Formulation Termination Notice with respect to BEA Products provided no later than September 30, 2019 would result in the termination of the Formulating Services of the BEA Products effective as of October 1, 2022. Notwithstanding the foregoing, following the delivery of a Formulation Termination Notice, Monsanto may terminate such Formulating Services earlier by providing written notice of earlier termination to Formulator not less than eighteen (18) months’ prior to the effective date of such earlier termination.

to Formulator pursuant to this Section 3.3, and, provided, further, that, for the items described in clauses (ii) and (iii) above, if such condition is a result of or is caused by adherence to the Specifications and if it is commercially reasonable to modify such Specifications to eliminate such condition and Monsanto agrees to do so, then Formulator shall not be entitled to terminate this Formulation Agreement pursuant to such clauses (ii) and (iii).

BEA Critical Materials.

Formulator shall exercise commercially reasonable efforts to cause the BEA Critical Material Agreements to be replicated in favor of or assigned to Monsanto within six (6) months following the Second Amendment Date, such that following such replication or assignment, Monsanto would have an agreement or other arrangement directly with each third party to provide all BEA Critical Materials to Monsanto for use in the BEA Products in the Lawn and Garden Channels (a “New BEA Critical Material Agreement”).

In the event that Formulating Services are terminated with respect to any Products, Formulator shall, beginning when the notice of such termination is first delivered, use its commercially reasonable efforts to cause all Specified Input Agreements to be replicated in favor of or assigned to Monsanto prior to the termination of the Agency Agreement and such Formulating Services with respect to such Products, such that following such replication or assignment, Monsanto would have an agreement or other arrangement directly with each third party to provide all Specified Inputs to Monsanto for use in the Products in the Lawn and Garden Channels (each, a “New Specified Input Agreement”).

Subject to the applicable counterparty’s consent and agreement, Formulator shall pursue and propose that each New BEA Critical Material Agreement and New Specified Input Agreement (collectively, the “New Agreements”) provide (i) for the supply of the applicable BEA Critical Materials or Specified Inputs (the “Supplied Inputs”) on terms substantially similar to the applicable Underlying Agreement and (ii) that Monsanto has full control over purchasing decisions, pricing, terms and conditions of supply related to the

applicable Supplied Inputs. Formulator’s obligations to exercise commercially reasonable efforts to cause the entry into New Agreements for each Supplied Input are deemed satisfied by, without limitation, (i) a full assignment of the applicable Underlying Agreement, (ii) in the case where the applicable Supplied Material is not used by Formulator solely in connection with the Products, a partial assignment of all relevant portions of the applicable Underlying Agreement, or (iii) the entry by Monsanto, on the one hand, and the applicable counterparty, on the other hand, into a New Agreement that achieves the requirements of the preceding sentence; provided, however, in no event shall Formulator be deemed to be in breach of such obligation where the applicable counterparty to the applicable Underlying Agreement does not agree or otherwise cooperate with such efforts performed by Formulator in good faith and reasonable diligence. In no event shall Formulator be required to incur any out of pocket costs in the course of exercising commercially reasonable efforts as provided herein.

Within three (3) months following the Second Amendment Date, Formulator shall provide to Monsanto a copy of each Underlying Agreement to the extent permitted by the terms thereof, and if not so permitted, Formulator shall seek a waiver of such restriction such that Formulator may provide a copy of such agreement with reasonable redactions required to comply with such confidentiality obligations. Formulator shall work with Monsanto to, within three (3) months following the Second Amendment Date (i) provide a list of all Underlying Agreements and (ii) develop a mutually agreeable transition plan for all Supplied Inputs to ensure continuity of supply for Monsanto. Monsanto acknowledges that although Formulator may include an Underlying Agreement on the list described by clause (i) of the preceding sentence, such Underlying Agreement may contain confidentiality obligations that may preclude or restrict Formulator’s ability to provide full disclosure of such Underlying Agreements.

In the event Formulator enters into any material, new written agreement or amends any material written agreement, in each case, that relates to any Supplied Input, Formulator shall use commercially reasonable efforts to ensure that each such new agreement or amended agreement (i) permits Formulator to share all relevant terms and provisions of such agreement with Monsanto, (ii) permits the partial assignment of all relevant portions of such agreement to Monsanto so that Monsanto can purchase the Supplied Inputs directly and (iii) permits the supply of the applicable Supplied Input from Formulator to Monsanto. For purposes of clarification, certain supply agreements between Formulator and a third party are based on spot market pricing and not subject to written agreements.  

Pending the entry into a New Agreement with respect to all Supplied Inputs, and subject to and to the extent allowable by the Underlying Agreement, Formulator shall continue to purchase any such Supplied Inputs for which a New Agreement has not been entered into (each a “Non-Transitioned Input”), for the benefit of Monsanto on substantially similar terms that Formulator receives from the supplier or provider of such Supplied Inputs and shall continue to supply such Non-Transitioned Inputs to Monsanto until a New Agreement is entered into with respect to each such Non-Transitioned Input.

Formulator shall waive any Formulator restrictive covenant, exclusivity obligation or right or other obligation for the Lawn and Garden Channels set forth in any Underlying Agreement or any other agreement that would prevent any third party under any Underlying Agreement or any other agreement from providing BEA Critical Materials or Specified Inputs to Monsanto and its affiliates and their respective representatives and agents. In the event that Monsanto or any third party requests consent (including the waiver of any exclusivity obligation, restrictive covenant or other similar obligation preventing the supply or provision of BEA Critical Materials or Specified Inputs) from Formulator in connection with the provision of BEA Critical Materials or Specified Inputs from a third party to Monsanto, Formulator shall promptly provide such consent without any unreasonable condition.

If and to the extent that any BEA Critical Input Rights exist as of the date that is six (6) months following the Second Amendment Date, then effective as of such date: (i) subject to and to the extent allowable under the applicable instrument granting such rights to Formulator, Formulator hereby assigns and agrees to assign (and to cause its Affiliates to assign) to Monsanto all such BEA Critical Input Rights that are solely and exclusively related to the development, manufacture, production, advertising, marketing, promotion, distribution, importation, exportation, offer for sale and sale of any BEA Product and (ii) Formulator hereby grants and agrees to grant (and to cause its Affiliates to grant) Monsanto and its Affiliates a license under and to all such BEA Critical Input Rights, subject to and to the extent allowable under the applicable instrument granting such rights to Formulator, that are not within the scope of item (i) above in accordance with the terms of the Intellectual Property License Agreement, and such BEA Critical Input Rights shall thereafter be deemed to be Licensed Intellectual Property under the Intellectual Property License Agreement.

Within ninety (90) days of the Second Amendment Date, Formulator shall work in good faith with Monsanto to (i) catalogue the Specified Input Rights necessary for the development, manufacture, production, advertising, marketing, promotion, distribution, importation, exportation, offer for sale and sale of each Product in the Lawn and Garden Channel (the “Cataloguing Process”) and (ii) establish agreed-upon terms effectuating the assignment or license, according and subject to the applicable rights owned or licensed by Formulator, to Monsanto of such Specified Input Rights. In the event that Formulating Services are terminated with respect to any one or more Products, Formulator shall, beginning when the notice of such termination is first delivered, (i) use its commercially reasonable efforts to cause such assignment or license to be effected prior to the termination of the Agency Agreement and such Formulating Services with respect to such Products and (ii) repeat the Cataloguing Process with Monsanto with respect to such Products and shall work in good faith with Monsanto to (with respect to any improvements related to each such Product since the original Cataloguing Process was completed) establish agreed-upon terms effectuating the assignment or license, according and subject to the applicable rights owned or licensed by Formulator, to Monsanto of such Specified Input Rights. It is the parties intent that the assignment or license terms would follow the following construct except to the extent that the parties reasonably determine otherwise after completing the Cataloguing Process: (a) Formulator would assign (and cause its Affiliates to assign) to Monsanto all Specified Input Rights, subject to and to the extent allowable under the applicable instrument granting such rights to Formulator, that are solely and exclusively related to the development, manufacture, production, advertising, marketing, promotion, distribution, importation, exportation, offer for sale and sale of such Product in the Lawn and Garden Channel; and (b) Formulator would agree to grant a license (and cause its Affiliates to grant) Monsanto and its Affiliates a license under and to all Specified Input Rights, subject to and to the extent allowable under the applicable instrument granting such rights to Formulator, related, but not solely and exclusively related, to the development, manufacture, production, advertising, marketing, promotion, distribution, importation, exportation, offer for sale and sale of such Product in the Lawn and Garden Channels. 

“BEA Critical Input Rights” means all Input Rights owned by Formulator or any of its Affiliates that relate to any BEA Critical Inputs, utilized in, or that would be infringed, misappropriated or otherwise violated, absent a license thereto, by the design, manufacture, formulation, use distribution, marketing, promotion or sale of any BEA Product, in each case to the extent owned by Formulator or any of its Affiliates, but excluding all Transferred Intellectual Property and Seller Licensed Intellectual Property.

“BEA Critical Material Agreements” means all agreements, rights, purchasing relationships or other arrangements between Formulator and its Affiliates, on the one hand, and any third party, on the other hand, to the extent related to any BEA Critical Materials, including, without limitation, all agreements, rights, purchasing relationships or other arrangements that provide access to intellectual property or other rights related to the BEA Critical Materials.

“BEA Critical Materials” means all active ingredients, formulated products and proprietary inerts (e.g., proprietary surfactants) used by Formulator in the design, manufacture, formulation, use, marketing,

promotion, sale or distribution of the BEA Products, including, without limitation those items set forth on Schedule 3.7(a) attached hereto.

“Input Rights” means rights in and to: (a) patents and applications therefor, including continuations, divisionals, continuations-in-part, or applications for reissue and patents issuing thereon; (b)  trade dress; (c) technology, processes and procedures, formulae, specifications, procedures for tests and results of testing; formulation, tolling, packaging and distribution information, and other know-how; and (d) works protected by copyright; and (e) trademarks and service marks (but excluding SCOTTS and its associated design variations and logos).

“Intellectual Property License Agreement” means that certain Intellectual Property License Agreement by and between the Parties dated July 29, 2019 and effective as of the Second Amendment Date.

“Licensed Intellectual Property” has the meaning ascribed to such term in the Intellectual Property License Agreement.

“Licensed Products” has the meaning ascribed to such term in the Trademark License Agreement.

“Licensed Trademark” has the meaning ascribed to such term in the Trademark License Agreement.

“Seller Licensed Intellectual Property” has the meaning ascribed to such term in the APA.

“Specified Inputs” means all Specified Materials and Specified Services.

“Specified Input Rights” means all Input Rights owned or licensed by Formulator or any of its Affiliates that relate to any Specified Inputs utilized in, or that would be infringed, misappropriated or otherwise violated, absent a license thereto, by the design, manufacture, formulation, use, sale, marketing, promotion or distribution of any Product, in each case to the extent owned or licensed by Formulator or any of its Affiliates.    

“Specified Materials” means all raw materials, formulated products, packaging, delivery systems and other assets used by Formulator in the manufacture, formulation, sale or distribution of Products in the Lawn and Garden Channels, including those materials set forth on Schedule 3.7(b) attached hereto.

“Specified Services” means all tolling and other services used by Formulator in the manufacture, formulation, sale or distribution of Products in the Lawn and Garden Channels, including those services provided by the third parties set forth on Schedule 3.7(c) attached hereto.

“Specified Input Agreements” means all agreements, rights, purchasing relationships or arrangements between Formulator and any third party to the extent related to any Specified Inputs, including, without limitation, all agreements or other arrangements that provide access to, or rights to use, capital assets (molds, dies, etc.), intellectual property or other rights, in each case, utilized in the design, manufacture, formulation, use, distribution, marketing, promotion or sale of any Product.

“Transferred Intellectual Property” has the meaning ascribed to such term in the APA.

“Underlying Agreements” means, collectively, the applicable BEA Critical Material Agreements and the Specified Input Agreements.

in Sections 6.0, 10.0, 13.0, 16.0, 17.0, and 18.0, and shall in no way be deemed to be or construed as a restriction, limitation or waiver of Formulator’s rights to pursue any additional available remedy at law or in equity.

such party shall provide the other party hereto with a description of the likely terms prior to any agreements being finally executed. Neither party hereto shall finalize any agreement or arrangement related to the supply of Input Materials without the prior agreement of the other party hereto. In the event Monsanto and Formulator cannot agree with each other as to acceptable terms for the supply of any Input Material, the terms for such supply shall be determined by the Steering Committee in accordance with the procedures set forth in the Agency Agreement. Administration of contracts related to the supply of the Input Materials, including but not limited to placing orders and making any necessary payments thereunder, shall be the responsibility of Formulator unless the parties hereto jointly agree in writing to act otherwise. The costs of the Input Materials shall be borne by Monsanto, and Formulator shall bill Monsanto for such costs in the invoices described in Section 9.3.1 hereof. With respect to materials of types utilized by Formulator for both (i) Preparing the Products, and (ii) purposes outside of those described in this Formulation Agreement, Formulator shall purchase such materials and invoice Monsanto periodically for such materials that are purchased on Monsanto’s behalf and used for the Preparation of the Products.

costs incurred in the formulation thereof as aforesaid) of the disposal of non-Specification Product shall be for the account of and paid for by Monsanto.

or requests of any governmental unit or entity or a court with respect to any matter arising hereunder; (iv) any breach by Formulator of any of the terms or provisions of this Formulation Agreement; (v) the handling, possession, transportation, processing, further manufacture, other use or disposition hereunder by Formulator of Salt or Product; or (vi) any negligent act or omission of Formulator, its officers, employees, agents, contractors. In case any action, suit or proceeding (whether civil, criminal, administrative or investigative) is brought against any party indemnified by Formulator under this Formulation Agreement, Formulator, upon the request of said indemnified party, will, at Formulator’s expense, cause such action, suit or proceeding to be defended by counsel mutually agreed upon by Monsanto and Formulator and under the direction of Formulator, and Monsanto shall have the right, at Monsanto’s expense, to participate in the investigation, settlement and/or compromise of same.

Formulation Fee = E [(Overhead Costs for Line n - Machine Hours for Line n) x Total RU Machine Hours for Line n + (Direct Labor Costs for Line n + Direct Labor Hours for Line n) x Total RU Labor Hours for Line n]

Where:

Line n = each Production Line used in Preparing Product.

(except as excused by Force Majeure as set forth in Section 12), Formulator’s failure to Prepare for Monsanto such Actual Quantities of Product as may be required by customers pursuant to Section 4.1 hereof, Formulator shall bear, in addition to packing and loading costs, the reasonable costs of shipping and insuring delivery of Monsanto’s Materials and of any appropriate documents to a shipping point designated by Monsanto.

party hereto warrants that all of its officers and employees shall be subject to and shall comply with the restrictions set forth in this Section 16.0.

or to such other address as may be specified from time to time in a written notice given by such party. Any notice shall be deemed to be received on the day on which personally delivered or, if given by prepaid certified or registered mail, on the tenth (10th) day after being posted or on the date of actual receipt, whichever date is earlier. Both parties agree to acknowledge in writing the receipt of any notice delivered in person.

Chancery of the State of Delaware, County of New Castle, and each such party hereby irrevocably submits to the jurisdiction of such court(s) for the purpose of any such suit, action, proceeding or judgment. Each party hereto hereby irrevocably waives any objection which any of them may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Formulation Agreement brought as provided in this Section 19.0, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. To the extent each party hereto has or hereafter may acquire any immunity from jurisdiction of any court or from legal process with respect to itself or its property, each party hereto hereby irrevocably waives such immunity with respect to its obligations under this Section 19(b). The parties hereto agree that exclusive jurisdiction of all disputes, suits, actions or proceedings between the parties hereto with respect to the subject matter or this Formulation Agreement lies in the United States District Court of Delaware, or the Court of Chancery of the State of Delaware, County of New Castle, as hereinabove provided. Formulator hereby irrevocably appoints CT Corporation, having an address at 1209 Orange Street, Wilmington, Delaware 19801 and Monsanto hereby irrevocably appoints CT Corporation, having an address at 1209 Orange Street, Wilmington, Delaware 19801, as its agent to receive on behalf of each such party and its respective properties, services of copies of any summons and complaint and any other pleadings or process of any summons and complaint and any other pleadings or process which may be served in any such action or proceedings. Service by mailing (by certified mail, return receipt requested) or delivering a copy of such process to a party in care of its agent for service of process as aforesaid shall be deemed good and sufficient service thereof, and each party hereby irrevocably authorizes and directs its respective agent for service of process to accept such service on its behalf.

of any other right or remedy, unless such waiver is expressed in writing signed by the party to be bound. Failure of a party to exercise any right will not be deemed a waiver of such right or rights in the future.

IN WITNESS WHEREOF, the parties have caused this Formulation Agreement to be executed in duplicate by their duly authorized representatives as of the Second Amendment Date.

    

The Aggregate Consideration (together with other relevant amounts, including any adjustments to the Purchase Price) shall be allocated among the Purchased Assets and Assumed Rights consistent with Section 1060 of the Code and the Treasury Department regulations thereunder, as follows: