Commercialization and Technology Agreement

THIS COMMERCIALIZATION AND TECHNOLOGY AGREEMENT (this “Agreement”) is entered into as of this 15th day of May, 2015 (the “Effective Date”) between The Scotts Company LLC, an Ohio limited liability company, with its principal place of business at 14111 Scottslawn Road, Marysville, Ohio 43041, and Monsanto Company, a Delaware corporation, with its principal place of business at 800 N. Lindbergh Blvd., St. Louis, Missouri 63167.

RECITALS:

or L&G Service (the “Commercialization Notice”). Scotts shall have sixty (60) days after the date of the Commercialization Notice to provide a written proposal to Monsanto to participate in the Commercialization of such L&G Product or L&G Service (the “Commercialization Proposal”). Any such Commercialization Proposal shall contain material terms for an agreement for such participation, including: (i) Scotts’ proposed role in such Commercialization (e.g., as a licensee, distributor, service provider, acquirer, collaborator, co-developer or other participant and whether such proposed participation role is exclusive or non-exclusive) (the “Commercialization Role”); (ii) material financial terms, including royalty payments, upfront payments, and milestone payments; (iii) the proposed term of the participation (including a description of proposed termination rights); (iv) whether any territories other than the United States are proposed for such agreement; (v) any proposed on-going service, development or other obligations Monsanto would have under such agreement; and (vi) a reasonable timeline for completing such transaction.

in the applicable Commercialization Proposal that Monsanto intends to accept is not a Superior Commercialization Offer, then Monsanto may give written notice thereof to Scotts and Scotts shall have twenty (20) days thereafter to match the terms and conditions of such offer by giving written notice to Monsanto. If Scotts does match the terms and conditions of such offer, then Monsanto and Scotts shall, within ten (10) days thereafter, execute one or more binding agreements with respect to such transaction. If Scotts does not match the terms and conditions of such offer or enter into such binding agreement(s) with Monsanto in such timeframe, then Monsanto may thereafter engage one or more Third Parties to participate in such Commercialization in any capacity at any time or from time to time in such manner and upon such terms as Monsanto, in its discretion, deems appropriate.

good faith the terms of such license agreement; provided that neither Party shall have an obligation to enter into a definitive license agreement regarding a Technology License Proposal. If Monsanto and Scotts fail to enter into a definitive license agreement during such further thirty (30) day period, then, subject to Section 2.2(c) below, Monsanto shall thereafter have the right to license the Monsanto Technology identified in the Technology License Notice along with any other reasonably related technology for any or all of the uses identified and on the basis (e.g., exclusive or non-exclusive) identified and reasonably related uses in the Technology License Notice.

Commercialization activities among Monsanto Company and its Affiliates); (y) activities in which a Third Party acquired by Monsanto or involved in a Change of Control of Monsanto was or is engaged at the time of such acquisition or Change of Control; or (z) the continuation of any such Third Party’s business and any related extensions thereof. Furthermore, for the avoidance of doubt, the provisions of this Agreement shall not apply to any grant of license (or intent to grant a license) to Monsanto Technology for uses that are not entirely or substantially entirely within the Residential Lawn & Garden Field or if Monsanto does not have the legal or contractual right to enter into an agreement with Scotts. For further avoidance of doubt, in the event of subsequent transactions with Monsanto described in 2.3(x)(iii), 2.3(y), and 2.3(z), the lack of obligations of Monsanto or rights of Scotts shall apply to L&G Product or L&G Service Commercialization activities and any technology licensing within the Residential Lawn & Garden Field in which the entity involved in such transaction, its business or assets, or any acquired business or assets are engaged in or committed to with a Third Party (or which are subject to contractual obligations with respect to future commercialization with a Third Party that may preclude Scotts from having the first option under Section 2.1 and 2.2) as of the date of such transaction (including subsequent Commercialization of Related Products and Services and licensing of any reasonably related technology), but Commercialization of other L&G Products and L&G Services and licensing of other Monsanto Technology acquired in such transaction are subject to Sections 2.1 and 2.2.

obligations hereunder shall be transferred, delegated or assigned by a Party (by operation of law, Change of Control or otherwise) without the prior written consent of the other Party.  Notwithstanding the foregoing, (i) Monsanto Company shall have the right to transfer and assign all, but not less than all, of Monsanto’s rights, interests and obligations hereunder to any of its Affiliates; provided, that Monsanto Company shall remain liable for the performance of Monsanto’s obligations hereunder, and provided, further, that any such Affiliate shall be subject to the provisions of this Agreement as if it were the original party hereto, including, without limitation, this Section 4; (ii) The Scotts Company LLC shall have the right to transfer and assign all, but not less than all, of Scotts’ rights, interests and obligations hereunder to any of its Affiliates; provided, that The Scotts Company LLC shall remain liable for the performance of Scotts’ obligations hereunder, and provided, further, that any such Affiliate shall be subject to the provisions of this Agreement as if it were the original party hereto, including, without limitation, this Section 4; and (iii) The Scotts Company LLC shall be entitled to transfer and assign all, but not less than all, of Scotts’ rights, interests and obligations hereunder to (A) any Third Party to whom The Scotts Company LLC or any of its Affiliates transfers and assigns (or has previously transferred and assigned) all, but not less than all, of Scotts’ rights, interests and obligations under the Agency Agreement and the License Agreement (by operation of law, Change of Control or otherwise) as expressly permitted by the terms of such agreements or (B) any Third Party to whom The Scotts Company LLC or any of its Affiliates transfers and assigns (or has previously transferred and assigned) all, but not less than all, of Scotts’ rights, interests and obligations under the Agency Agreement and the License Agreement with respect to the North America Territories as expressly permitted by the terms of such agreements.  For the avoidance of doubt, this Agreement and the rights, interests and obligations hereunder may only be transferred and assigned (by operation of law, Change of Control or otherwise) to another party in their entirety and not in part.