10-12B/A

As filed with the U.S. Securities and Exchange Commission on May 6, 2019

File No. 001-38710

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 4

TO

FORM 10

 

 

GENERAL FORM FOR REGISTRATION OF SECURITIES

PURSUANT TO SECTION 12(b) OR 12(g) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

 

Corteva, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   82-4979096

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

974 Centre Road

Wilmington, Delaware

  19805
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: 302-774-1000

Securities to be registered pursuant to Section 12(b) of the Act:

 

Title of each class

to be so registered

 

Name of each exchange on which
each class is to be registered

Common Stock, par value $0.01 per share   New York Stock Exchange

Securities to be registered pursuant to Section 12(g) of the Act: None

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.   ☐

 

 

 


CORTEVA, INC.

INFORMATION REQUIRED IN REGISTRATION STATEMENT

CROSS-REFERENCE SHEET BETWEEN INFORMATION STATEMENT AND ITEMS OF FORM 10

Certain information required to be included in this Form 10 is incorporated by reference to specifically-identified portions of the body of the information statement filed herewith as Exhibit 99.1 and which will be made available to stockholders. None of the information contained in the information statement shall be incorporated by reference herein or deemed to be a part hereof unless such information is specifically incorporated by reference.

Item 1. Business.

The information required by this item is contained under the sections of the information statement entitled “Information Statement Summary,” “Risk Factors,” “Cautionary Statement Concerning Forward-Looking Statements,” “The Distribution,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business,” “Certain Relationships and Related Person Transactions,” “Our Relationship with New DuPont and Dow Following the Distribution” and “Where You Can Find More Information.” Those sections are incorporated herein by reference.

Item 1A. Risk Factors.

The information required by this item is contained under the sections of the information statement entitled “Risk Factors” and “Cautionary Statement Concerning Forward-Looking Statements.” Those sections are incorporated herein by reference.

Item 2. Financial Information.

The information required by this item is contained under the sections of the information statement entitled “Capitalization,” “Unaudited Pro Forma Combined Financial Statements,” “Supplemental Management’s Discussion and Analysis of Pro Forma Segment Results,” “Selected Historical Consolidated Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Those sections are incorporated herein by reference.

Item 3. Properties.

The information required by this item is contained under the section of the information statement entitled “Business—Facilities.” That section is incorporated herein by reference.

Item 4. Security Ownership of Certain Beneficial Owners and Management.

The information required by this item is contained under the section of the information statement entitled “Security Ownership of Certain Beneficial Owners and Management.” That section is incorporated herein by reference.

Item 5. Directors and Executive Officers.

The information required by this item is contained under the section of the information statement entitled “Management.” That section is incorporated herein by reference.

Item 6. Executive Compensation.

The information required by this item is contained under the sections of the information statement entitled “Compensation Discussion and Analysis” and “Executive Compensation.” Those sections are incorporated herein by reference.


Item 7. Certain Relationships and Related Transactions, and Director Independence.

The information required by this item is contained under the sections of the information statement entitled “Management,” “Executive Compensation,” “Certain Relationships and Related Person Transactions” and “Our Relationship with New DuPont and Dow Following the Distribution.” Those sections are incorporated herein by reference.

Item 8. Legal Proceedings.

The information required by this item is contained under the section of the information statement entitled “Business—Environmental and Other Legal Proceedings.” That section is incorporated herein by reference.

Item 9. Market Price of, and Dividends on, the Registrant’s Common Equity and Related Stockholder Matters.

The information required by this item is contained under the sections of the information statement entitled “Risk Factors,” “The Distribution,” “Dividend Policy,” “Capitalization” and “Description of Our Capital Stock.” Those sections are incorporated herein by reference.

Item 10. Recent Sales of Unregistered Securities.

The information required by this item is contained under the section of the information statement entitled “Description of Our Capital Stock.” That section is incorporated herein by reference.

Item 11. Description of Registrant’s Securities to be Registered.

The information required by this item is contained under the sections of the information statement entitled “Risk Factors,” “The Distribution,” “Dividend Policy,” “Capitalization” and “Description of Our Capital Stock.” Those sections are incorporated herein by reference.

Item 12. Indemnification of Directors and Officers.

The information required by this item is contained under the section of the information statement entitled “Description of Our Capital Stock.” That section is incorporated herein by reference.

Item 13. Financial Statements and Supplementary Data.

The information required by this item is contained in the financial statements that are filed as Exhibit 99.2 hereto and which are incorporated herein by reference. Additional information is contained under the section of the information statement entitled “Merger, Intended Separations, Reorganization and Financial Statement Presentation—Financial Statement Presentation.”

Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

None.

Item 15. Financial Statements and Exhibits.

(a) Financial Statements

The information required by this item is contained in the financial statements that are filed as Exhibits 99.2 and 99.3 hereto and which are incorporated herein by reference. Additional information is contained under the section of the information statement entitled “Merger, Intended Separations, Reorganization and Financial Statement Presentation—Financial Statement Presentation.”

(b) Exhibits

The following documents are filed as exhibits hereto:


Exhibit
Number

  

Exhibit Description

   2.1    Separation and Distribution Agreement by and among DowDuPont Inc., Dow Inc. and Corteva, Inc.†**
   3.1    Form of Amended and Restated Certificate of Incorporation of Corteva, Inc.
   3.2    Form of Amended and Restated By-Laws of Corteva, Inc.
 10.1    Tax Matters Agreement by and among DowDuPont Inc., Corteva, Inc. and Dow Inc.†**
 10.2    Employee Matters Agreement by and among DowDuPont Inc., Corteva, Inc. and Dow Inc.†**
 10.3    Form of Intellectual Property Cross-License Agreement by and between Corteva, Inc. and DowDuPont Inc. **
 10.4    Intellectual Property Cross-License Agreement by and between Corteva, Inc. and Dow Inc.†**
 10.5    Form of Corteva, Inc. 2019 Omnibus Incentive Plan.
 10.6    Fondation de Prevoyance en Faveur du Personnel de DuPont de Nemours International SÁRL.
 10.7    The E. I. du Pont de Nemours and Company Management Deferred Compensation Plan, incorporated by reference to Exhibit  4.3 to DowDuPont Inc. Registration Statement on Form S-8 filed September 1, 2017.† *
 10.8    The E.  I. du Pont de Nemours and Company Stock Accumulation and Deferred Compensation Plan for Directors, incorporated by reference to Exhibit 4.4 to DowDuPont Inc. Registration Statement on Form  S-8 filed September 1, 2017.† *
 10.9    E. I. du Pont de Nemours and Company’s Pension Restoration Plan, as last amended effective June  29, 2015 (incorporated by reference to Exhibit 10.3 to E. I. du Pont de Nemours and Company’s Quarterly Report on Form 10-Q (Commission file number  1-815) for the period ended June 30, 2015).† *
 10.10    E. I. du Pont de Nemours and Company’s Rules for Lump Sum Payments, as last amended effective May  15, 2014 (incorporated by reference to Exhibit 10.4 to E. I. du Pont de Nemours and Company’s Quarterly Report on Form 10-Q (Commission file number  1-815) for the period ended June 30, 2015).† *
 10.11    E. I. du Pont de Nemours and Company’s Retirement Savings Restoration Plan, as last amended effective May  15, 2014. (incorporated by reference to Exhibit 10.08 to E. I. du Pont de Nemours and Company’s Quarterly Report on Form 10-Q (Commission file number  1-815) for the period ended June 30, 2014).† *
 10.12    E.  I. du Pont de Nemours and Company’s Retirement Income Plan for Directors, as last amended January 2011 (incorporated by reference to Exhibit 10.9 to E. I. du Pont de Nemours and Company’s Quarterly Report on Form 10-Q (Commission file number 1-815) for the period ended March 31, 2012).† *
 10.13    E. I. du Pont de Nemours and Company’s Senior Executive Severance Plan, as amended and restated effective December  10, 2015 (incorporated by reference to Exhibit 10.10 to E. I. du Pont de Nemours and Company’s Annual Report on Form 10-K (Commission file number  1-815) for the year ended December 31, 2015).† **
10.14    Separation Agreement by and between E.  I. du Pont de Nemours and Company and The Chemours Company (incorporated by reference to Exhibit 2.1 to E. I. du Pont de Nemours and Company’s Current Report on Form 8-K (Commission file number 1-815) dated July 8, 2015).† **
10.15    Amendment No. 1 to Separation Agreement by and between E.  I. du Pont de Nemours and Company and The Chemours Company, dated August 24, 2017 (incorporated by reference to Exhibit 2.1 to E. I. du Pont de Nemours and Company’s Current Report on Form  8-K (Commission file number 1-815) dated August 25, 2017).† **


Exhibit
Number

  

Exhibit Description

10.16    Tax Matters Agreement by and between E.  I. du Pont de Nemours and Company and The Chemours Company (incorporated by reference to Exhibit 2.2 to E. I. du Pont de Nemours and Company’s Current Report on Form 8-K (Commission file number 1-815) dated July 8, 2015).
 10.17    Transaction Agreement, dated as of March  31, 2017, by and between E. I. du Pont de Nemours and Company and FMC Corporation (incorporated by reference to Exhibit 10.25 to E. I. du Pont de Nemours and Company’s Quarterly Report on Form  10-Q (Commission file number 1-815) for the period ended March 31, 2017).† **
 21.1    Subsidiaries of Corteva, Inc.
 99.1    Information Statement of Corteva, Inc., preliminary and subject to completion, dated May 6, 2019.
 99.2    The Audited Consolidated Financial Statements of E. I. du Pont de Nemours and Company as of December  31, 2018 and 2017, for the year ended December 31, 2018, for the period September 1, 2017 through December 31, 2017, for the period January 1, 2017 through August 31, 2017 and the year ended December  31, 2016, and the accompanying notes thereto.
 99.3    The Audited Combined Financial Statements of The Dow Agricultural Sciences Business as of December  31, 2018 and 2017 and for the three years ended December 31, 2018, 2017 and 2016.
 99.4    Form of Notice Regarding the Internet Availability of Information Statement Materials.

 

*

Management contract or compensatory plan or arrangement.

**

Corteva hereby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to such agreement to the U.S. Securities and Exchange Commission upon request.

Previously filed.


SIGNATURES

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Corteva, Inc.
By:   /s/ Gregory R. Friedman
 

Name: Gregory R. Friedman

Title:  Executive Vice President, Chief Financial Officer

Date: May 6, 2019

EX-3.1

Exhibit 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

CORTEVA, INC.

(a Delaware corporation)

                    , 2019

Corteva, Inc. (hereinafter called the “Company”), a corporation organized and existing under the laws of the State of Delaware, does hereby certify as follows:

FIRST: The original Certificate of Incorporation of the Company was filed with the Secretary of State of the State of Delaware on March 16, 2018.

SECOND: This Amended and Restated Certificate of Incorporation has been duly adopted by the Company in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware and has been approved by the requisite vote of the stockholders of the Company in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.

THIRD: The text of the Certificate of Incorporation of the Company is hereby amended and restated to read in its entirety as follows:

ARTICLE I

NAME

The name of the Company is Corteva, Inc.

ARTICLE II

REGISTERED OFFICE AND AGENT

The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle 19801. The name of its registered agent at that address is The Corporation Trust Company.

ARTICLE III

PURPOSE AND POWERS

The purpose of the Company is to engage in any lawful act or activity for which a corporation may now or hereafter be organized under the General Corporation Law of the State of Delaware. The Company shall have all powers that may now or hereafter be lawful for a corporation to exercise under the General Corporation Law of the State of Delaware.


ARTICLE IV

CAPITAL STOCK

 

  A.

Classes of Stock. The total number of shares of stock of all classes of capital stock that the Company is authorized to issue is 1,916,666,667 shares. The authorized capital stock is divided into: (i) 1,666,666,667 shares of common stock having a par value of $0.01 per share (hereinafter, the “Common Stock”) and (ii) 250,000,000 shares of preferred stock having a par value of $0.01 per share (hereinafter, the “Preferred Stock”).

 

  B.

Common Stock. All shares of Common Stock of the Company shall be of one and the same class, shall be identical in all respects and shall have equal rights, powers and privileges.

 

  1.

Except as otherwise provided for by resolution or resolutions of the Board of Directors pursuant to this Article IV with respect to the issuance of any series of Preferred Stock or by the General Corporation Law of the State of Delaware, the holders of outstanding shares of Common Stock shall have the exclusive right to vote on all matters requiring stockholder action. On each matter on which holders of Common Stock are entitled to vote, each outstanding share of such Common Stock will be entitled to one vote.

 

  2.

Subject to the rights of holders of any series of outstanding Preferred Stock, holders of shares of Common Stock shall have equal rights of participation in the dividends and other distributions in cash, stock or property of the Company when, as and if declared thereon by the Board of Directors from time to time out of assets or funds of the Company legally available therefor and shall have equal rights to receive the assets and funds of the Company available for distribution to stockholders in the event of any liquidation, dissolution or winding up of the affairs of the Company, whether voluntary or involuntary.

 

  3.

Upon this Certificate of Incorporation becoming effective upon filing with the filing with the Secretary of State of the State of Delaware, pursuant to the DGCL (the “Effective Time”), the 100 shares of the Common Stock, issued and outstanding immediately prior to the Effective Time, shall thereafter constitute                 shares of Common Stock.

 

  C.

Preferred Stock

 

  1.

Shares of Preferred Stock of the Company may be issued from time to time in one or more series, the shares of each series to have such voting powers, full or limited, if any, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as are stated and expressed herein or in the resolution or resolutions providing for the issue of such series, adopted by the Board of Directors as hereinafter provided.

 

2


  2.

Authority is hereby expressly granted to the Board of Directors of the Company, subject to the provisions of this Article IV and to the limitations prescribed by the General Corporation Law of the State of Delaware, to authorize by resolution or resolutions from time to time the issuance of one or more series of Preferred Stock out of the authorized but unissued shares of Preferred Stock and with respect to each such series to fix, by filing a certificate of designation pursuant to the General Corporation Law of the State of Delaware setting forth such resolution or resolutions and providing for the issuance of such series, the voting powers, full or limited, if any, of the shares of such series and the designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof. The authority of the Board of Directors with respect to each series shall include, but not be limited to, the determination or fixing of the following:

 

  i.

the designation of such series;

 

  ii.

the number of shares of such series, which number the Board of Directors may thereafter (except where otherwise provided in the certificate of designation for such series) increase or decrease (but not below the number of shares of such series then outstanding);

 

  iii.

the dividend rate, if any, payable to holders of shares of such series, any conditions and dates upon which such dividends shall be payable, the relation which such dividends shall bear to the dividends payable on any other class or classes of stock or any other series of any class of stock of the Company, and whether such dividends shall be cumulative or non-cumulative;

 

  iv.

whether the shares of such series shall be subject to redemption by the Company, in whole or in part, at the option of the Company or of the holder thereof, and, if made subject to such redemption, the times, prices, form of payment and other terms and conditions of such redemption;

 

  v.

the terms and amount of any sinking fund provided for the purchase or redemption of the shares of such series;

 

  vi.

whether or not the shares of such series shall be convertible into or exchangeable for shares of any other class or classes of any stock or any other series of any class of stock of the Company or any other security, and, if provision is made for conversion or exchange, the times, prices, rates, adjustments, and other terms and conditions of such conversion or exchanges;

 

3


  vii.

the extent, if any, to which the holders of shares of such series shall be entitled to vote generally, with respect to the election of directors, upon specified events or otherwise;

 

  viii.

the restrictions, if any, on the issue or reissue of any additional Preferred Stock; and

 

  ix.

the rights and preferences of the holders of the shares of such series upon any voluntary or involuntary liquidation or dissolution of, or upon the distribution of assets of, the Company.

Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior to, rank equally with or be junior to any other series of Preferred Stock to the extent permitted by law and the terms of any other series of Preferred Stock.

ARTICLE V

BOARD OF DIRECTORS

 

  A.

Power of the Board of Directors. The business and affairs of the Company shall be managed by or under the direction of the Board of Directors. In furtherance, and not in limitation, of the powers conferred by the laws of the State of Delaware, the Board of Directors shall be expressly authorized to:

 

  1.

determine the rights, powers, duties, rules and procedures that affect the power of the Board of Directors to manage and direct the business and affairs of the Company;

 

  2.

establish one or more committees of the Board of Directors, by the affirmative vote of a majority of the entire Board of Directors, to which may be delegated any or all of the powers and duties of the Board of Directors to the fullest extent permitted by law; and

 

  3.

exercise all such powers and do all such acts as may be exercised by the Company, subject to the provisions of the laws of the State of Delaware, this Certificate of Incorporation, and the Amended and Restated Bylaws of the Company (as the same may be amended and/or restated from time to time, the “Bylaws”).

 

  B.

Number of Directors. The number of directors constituting the entire Board of Directors shall be fixed from time to time exclusively by a vote of a majority of the entire Board of Directors in the manner provided in the Bylaws. As used in this Certificate of Incorporation, the term “entire Board of Directors” means the total authorized number of directors that the Company would have if there were no vacancies.

 

4


  C.

Vacancies. Except as otherwise required by law and subject to the rights of the holders of any class or series of Preferred Stock to elect directors, any vacancies on the Board of Directors for any reason, including from the death, resignation, disqualification or removal of any director, and any newly created directorships resulting by reason of any increase in the number of directors shall be filled exclusively by the Board of Directors, acting by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum, or by a sole remaining director, and shall not be filled by stockholders. Any directors elected to fill a vacancy shall hold office until the next annual meeting of stockholders or until their successors are duly elected and qualified.

 

  D.

Removal of Directors. Except as otherwise required by law and subject to the rights of the holders of any class or series of Preferred Stock, any director, or the entire Board of Directors, may be removed from office at any time, with or without cause only by the affirmative vote of the holders of a majority of the voting power of all of the shares of capital stock of the Company then entitled to vote generally in the election of directors, voting as a single class.

ARTICLE VI

LIMITATION OF LIABILITY AND INDEMNIFICATION

 

  A.

Limitation of Liability of Directors. A Director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a Director to the fullest extent permitted by the General Corporation Law of Delaware as the same now exists or hereafter may be amended. No repeal or modification of this Article VI shall apply or have any adverse effect on any right or protection of, or any limitation of the liability of, any person entitled to any right or protection under this Article VI existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.

 

  B.

Indemnification. Directors, officers, employees and agents of the Company may be indemnified by the Company to the fullest extent as is permitted by the laws of the State of Delaware as it presently exists or may hereafter be amended and as the Bylaws may from time to time provide.

ARTICLE VII

STOCKHOLDER ACTION

Any action required or permitted to be taken by the stockholders of the Company must be effected at a duly called annual or special meeting of stockholders of the Company and may not be effected by any written consent of the stockholders of the Company; provided, however, that any action required or permitted to be taken by the holders of any series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable certificate of designation for such series of Preferred Stock.

 

5


ARTICLE VIII

AMENDMENT OF BYLAWS

 

  A.

Amendment by the Board of Directors. In furtherance, and not in limitation, of the powers conferred upon it by law, the Board of Directors is expressly authorized and empowered to amend, alter, change, adopt or repeal the Bylaws of the Company; provided, however, that no Bylaws hereafter adopted shall invalidate any prior act of the directors that would have been valid if such Bylaws had not been adopted.

 

  B.

Amendment by Stockholders. In addition to any requirements of the General Corporation Law of the State of Delaware (and notwithstanding the fact that a lesser percentage may be specified by the General Corporation Law of the State of Delaware), unless otherwise specified in the Bylaws, the affirmative vote of the holders of a majority of the voting power of all the shares of capital stock of the Company then entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders of the Company to amend, alter, change or repeal or to adopt any provision of the Bylaws of the Company.

ARTICLE IX

AMENDMENT OF CERTIFICATE OF INCORPORATION

The Company hereby reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the General Corporation Law of Delaware may be added or inserted, in the manner now or hereafter prescribed by the General Corporation Law of Delaware, and all rights, preferences and privileges of whatsoever nature conferred on stockholders, directors or any other persons whomsoever therein granted are subject to this reservation.

 

6


IN WITNESS WHEREOF, the undersigned has duly executed this Amended and Restated Certificate of Incorporation as of the date first written above.

 

By:    
 

Name:

 

Title:

 

7

EX-3.2

Exhibit 3.2

AMENDED AND RESTATED

BYLAWS

OF

CORTEVA, INC.

(a Delaware corporation)

EFFECTIVE AS OF                 , 2019


TABLE OF CONTENTS

 

ARTICLE I CAPITAL STOCK

     4  

1.1    Certificates

     4  

1.2    Record Ownership

     4  

1.3    Transfer of Record Ownership

     4  

1.4    Lost Certificates

     4  

1.5    Transfer Agents; Registrars; Rules Respecting Certificates

     5  

1.6    Record Date

     5  

ARTICLE II MEETINGS OF STOCKHOLDERS

     5  

2.1    Annual Meeting

     5  

2.2    Special Meetings

     5  

2.3    Notice

     7  

2.4    List of Stockholders

     7  

2.5    Quorum

     7  

2.6    Organization

     7  

2.7    Voting

     7  

2.8    Inspectors of Election

     8  

2.9    Notification of Stockholder Nominations and Other Business

     8  

2.10  Proxy Access for Director Nominations

     14  

ARTICLE III BOARD OF DIRECTORS

     23  

3.1    Number and Qualifications

     23  

3.2    Term

     23  

3.3    Resignation

     24  

3.4    Vacancies

     24  

3.5    Regular Meetings

     24  

3.6    Special Meetings

     24  

3.7    Notice of Special Meetings

     24  

3.8    Place of Meetings

     24  

3.9    Participation in Meetings by Conference Telephone

     24  

3.10  Quorum

     25  

3.11  Organization

     25  

3.12  Compensation of Directors

     25  

3.13  Action by Written Consent

     25  

3.14  Interested Transactions

     25  

3.15  Committees of the Board of Directors

     26  

ARTICLE IV OFFICERS

     26  

4.1    Positions and Election

     26  

4.2    Term

     27  

4.3    Resignation

     27  

4.4    Vacancies

     27  

4.5    Chief Executive Officer; President

     27  

4.6    Vice Presidents

     27  

4.7    Secretary; Assistant Secretary

     27  

4.8    Treasurer; Assistant Treasurer

     27  

4.9    Delegation of Authority

     28  


4.10  Voting Securities Owned by the Company

     28  

4.11  Chairman of the Board of Directors

     28  

ARTICLE V INDEMNIFICATION

     28  

5.1    Mandatory Indemnification

     28  

5.2    Permitted Indemnification

     29  

5.3    Expenses Payable in Advance

     29  

5.4    Judicial Determination of Mandatory Indemnification or Mandatory Advancement of Expenses

     30  

5.5    Nonexclusivity

     30  

5.6    Insurance

     30  

5.7    Definitions

     31  

5.8    Survival

     31  

5.9    Repeal, Amendment or Modification

     31  

ARTICLE VI MISCELLANEOUS

     31  

6.1    Seal

     31  

6.2    Waiver of Notice

     31  

6.3    Forum for Adjudication of Certain Disputes

     32  

6.4    Offices

     32  

6.5    Fiscal Year

     32  

6.6    Contracts

     32  

6.7    Checks, Notes, Drafts, Etc

     32  

6.8    Dividends

     32  

6.9    Conflict with Applicable Law or Certificate of Incorporation

     33  

ARTICLE VII AMENDMENT OF BYLAWS

     33  

7.1    Amendment of Bylaws

     33  

 

3


ARTICLE I

CAPITAL STOCK

 

1.1

Certificates. Shares of the capital stock of CORTEVA, INC., (the “Company”) may be certificated or uncertificated in accordance with the General Corporation Law of the State of Delaware; provided, that, commencing on or prior to the date of these Bylaws, the shares of common stock, par value $0.01 per share, of the Company shall be uncertificated, as provided by resolutions adopted by the Board of Directors of the Company (the “Board of Directors” and each member thereof, a “Director”). To the extent any certificates are ever issued with respect to any class or series of a class of capital stock of the Company, every holder of stock represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law and the Board of Directors, signed in the name of the Company by the Chairman of the Board of Directors (the “Chairman”) or the Chief Executive Officer or a Vice President, and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, representing the number of shares registered in certificate form held by such holder. Any or all the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

 

1.2

Record Ownership. A record of the name and address of the holder of each certificate, the number of shares represented thereby and the date of issue thereof shall be made on the Company’s books. The Company shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice thereof, except as required by the laws of the State of Delaware. If certificated, the certificates of each class or series of a class of stock shall be numbered consecutively.

 

1.3

Transfer of Record Ownership. Subject to applicable laws, transfers of shares of stock of the Company shall be made on the books of the Company only by direction of the registered holder thereof or such person’s attorney, lawfully constituted in writing, and, if such shares are represented by a certificate, only upon the surrender to the Company or its transfer agent or other designated agent of the certificate representing such shares properly endorsed or accompanied by a properly executed written assignment of the shares evidenced thereby, which certificate shall be canceled before a new certificate or uncertificated shares are issued.

 

1.4

Lost Certificates. Any person claiming a stock certificate in lieu of one lost, stolen or destroyed shall give the Company an affidavit as to such person’s ownership of the certificate and of the facts which go to prove its loss, theft or destruction. Such person shall also, if required by policies adopted by the Board of Directors, give the Company a bond sufficient to indemnify the Company against any claim that may be made against it on account of the alleged loss of the certificate or the issuance of a new certificate or of uncertificated shares.


1.5

Transfer Agents; Registrars; Rules Respecting Certificates. The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars. The Board of Directors may make such further rules and regulations as it may deem expedient concerning the issue, transfer and registration of shares of stock of the Company.

 

1.6

Record Date. The Board of Directors may fix in advance a date, not more than sixty (60) days or less than ten (10) days preceding the date of an annual or special meeting of stockholders and not more than sixty (60) days preceding the date of payment of a dividend or other distribution, allotment of rights or the date when any change, conversion or exchange of capital stock shall go into effect or for the purpose of any other lawful action, as the record date for determination of the stockholders entitled to notice of and to vote at any such meeting and any adjournment thereof, or to receive any such dividend or other distribution or allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to participate in any such other lawful action. Such stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, or to receive such dividend or other distribution or allotment of rights, or to exercise such rights, or to participate in any such other lawful action, as the case may be, notwithstanding any transfer of any stock on the books of the Company after any such record date fixed as aforesaid.

ARTICLE II

MEETINGS OF STOCKHOLDERS

 

2.1

Annual Meeting. The annual meeting of stockholders for the election of Directors and the transaction of such other business as may properly be brought before the meeting shall be held annually on a date and at a time and place, within or without Delaware, as determined by the Board of Directors. The Board of Directors may postpone, reschedule or adjourn any previously scheduled annual meeting of stockholders.

 

2.2

Special Meetings.

 

  (a)

Purpose. Special meetings of stockholders for any purpose or purposes (i) may be called by the Board of Directors, pursuant to a resolution adopted by a majority of the entire Board of Directors upon motion of a Director, and (ii) shall be called by the Chairman or the Secretary of the Company upon a written request from stockholders of the Company holding at least twenty-five percent (25%) of the voting power of all the shares of capital stock of the Company then entitled to vote on the matter or matters to be brought before the proposed special meeting that complies with the procedures for calling a special meeting of stockholders as set forth in these Bylaws. Any such request by stockholders shall (A) be delivered to, or mailed to and received by, the Secretary of the Company at the

 

5


  Company’s principal executive offices, (B) be signed by each stockholder, or a duly authorized agent of such stockholder, requesting the special meeting, (C) set forth the purpose or purposes of the meeting and (D) include the information required by Section 2.9 as applicable, and a representation by the stockholder(s) that within five (5) business days after the record date for any such special meeting it will provide such information as of the record date for such special meeting to the extent not previously provided.

 

  (b)

Date, Time and Place. A special meeting, whether called by the Board of Directors or called at the request of stockholders shall be held at such date, time and place, within or without the State of Delaware, as determined by the Board of Directors; provided, however, that the date of any such special meeting shall be not more than ninety (90) days after the request to call the special meeting by one or more stockholders who satisfy the requirements of this Section 2.2 is delivered to or received by the Secretary, unless a later date is required in order to allow the Company to file the information required under Item 8 (or any comparable or successor provision) of Schedule 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), if applicable. Notwithstanding the foregoing, a special meeting requested by stockholders shall not be held if: (i) the stated business to be brought before the special meeting is not a proper subject for stockholder action under applicable law or (ii) the Board of Directors has called or calls for an annual meeting of stockholders to be held within ninety (90) days after the request for the special meeting is delivered to or received by the Secretary and the Board of Directors determines in good faith that the business of such annual meeting includes (among any other matters properly brought before the annual meeting) the business specified in the stockholders’ request. A stockholder may revoke a request for a special meeting at any time by written revocation delivered to, or mailed to and received by, the Secretary. If, at any time after receipt by the Secretary of the Company of a proper request for a special meeting of stockholders, there are no longer valid requests from stockholders holding in the aggregate at least the requisite number of shares entitling the stockholders to request the calling of a special meeting, whether because of revoked requests or otherwise, the Board of Directors, in its discretion, may cancel the special meeting (or, if the special meeting has not yet been called, may direct the Chairman or the Secretary of the Company not to call such a meeting).

 

  (c)

Conduct of Meeting. At any such special meeting, only such business may be transacted as is set forth in the notice of special meeting. Business transacted at a special meeting requested by stockholders shall be limited to the matters described in the special meeting request; provided, however, that nothing herein shall prohibit the Board of Directors from submitting matters to the stockholders at any special meeting requested by stockholders. If none of the stockholders who submitted the request for a special meeting appears or sends a qualified representative to present the nominations proposed to be presented or other business proposed to be conducted at the special meeting, the Company need not present such nominations or other business for a vote at such meeting. The

 

6


  chairman of a special meeting shall determine all matters relating to the conduct of the meeting, including, but not limited to, determining whether any nomination or other item of business has been properly brought before the meeting in accordance with these Bylaws, and if the chairman of the meeting should so determine and declare that any nomination or other item of business has not been properly brought before the special meeting, then such business shall not be transacted at such meeting.

 

2.3

Notice. Notice (either written or as otherwise permitted by the General Corporation Law of the State of Delaware) of each meeting of stockholders, whether annual or special, stating the date, time, place and, with respect to a special meeting, purpose thereof, shall be distributed (either by the U.S. Postal Service or as otherwise permitted by the General Corporation Law of the State of Delaware) by the Secretary or Assistant Secretary not less than ten (10) days nor more than sixty (60) days before the date of such meeting to every stockholder entitled to vote thereat.

 

2.4

List of Stockholders. A complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder, shall be prepared by the Secretary at least ten (10) days before every meeting of stockholders and shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days before the meeting during ordinary business hours at the principal place of business of the Company. A list of stockholders entitled to vote at the meeting shall be produced and kept at the place of the meeting during the whole time of the meeting and may be examined by any stockholder who is present.

 

2.5

Quorum. The holders of a majority of the voting power of all of the shares of capital stock of the Company then entitled to vote with respect to the purposes for which the meeting is called, present in person or represented by proxy, shall constitute a quorum, except as otherwise required by the General Corporation Law of the State of Delaware. If a quorum does not exist, the chairman of the meeting or a majority in interest of the stockholders present in person or represented by proxy may adjourn the meeting from time to time without notice other than announcement at the meeting, until a quorum shall be obtained. At any such adjourned meeting at which there is a quorum, any business may be transacted that might have been transacted at the meeting originally called.

 

2.6

Organization. The Chairman, or, in the absence of the Chairman, a chairman designated by the Board of Directors, shall preside at meetings of stockholders (including special meetings of stockholders) as chairman of the meeting and shall determine the order of business for such meeting. The Secretary of the Company shall act as secretary at all meetings of stockholders, but in the absence of the Secretary, the chairman of the meeting may appoint a secretary of the meeting. Rules governing the procedures and conduct of meetings of stockholders shall be determined by the chairman of the meeting.

 

2.7

Voting. Subject to all of the rights of the preferred stock provided for by resolution or resolutions of the Board of Directors pursuant to Article IV of the Certificate of Incorporation or by the General Corporation Law of the State of Delaware, each

 

7


  stockholder entitled to vote at a meeting shall be entitled to one vote, in person or by proxy (either written or as otherwise permitted by the General Corporation Law of the State of Delaware), for each voting share held of record by such stockholder. The votes for the election of Directors and, upon the demand of any stockholder the vote upon any matter before the meeting, shall be by written ballot. Except as otherwise required by the General Corporation Law of the State of Delaware or as specifically provided for in the Certificate of Incorporation or these Bylaws, in any question or matter brought before any meeting of stockholders (other than the election of Directors), the affirmative vote of the holders of voting shares present in person or by proxy representing a plurality of the votes actually cast on any such question or matter at a meeting where there is a quorum shall be the act of the stockholders. Directors shall be elected by the vote of a majority of the votes cast at a meeting where there is a quorum; except that, notwithstanding the foregoing, Directors shall be elected by a plurality of the votes cast at a meeting where there is a quorum if as of the record date for such meeting the number of nominees exceeds the number of Directors to be elected. For purposes of the foregoing sentence, a majority of the votes cast means that the number of shares voted “for” a Director nominee must exceed the number of shares voted “against” that Director nominee.

 

2.8

Inspectors of Election. In advance of any meeting of stockholders, the Board of Directors or the chairman of the meeting shall appoint one or more inspectors to act at the meeting and make a written report thereof. The chairman of the meeting may designate one or more persons as alternate inspectors to replace any inspector who fails or is unable to act. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. At each meeting of stockholders, the inspector(s) shall ascertain the number of shares outstanding and the voting power of each, determine the shares represented at the meeting and the validity of proxies and ballots, count all votes and ballots, determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspector(s), and certify the inspectors’ determination of the number of shares represented at the meeting and the count of all votes and ballots. The inspector(s) may appoint or retain other persons or entities to assist the inspector(s) in the performance of the duties of the inspector(s). Any report or certificate made by the inspector(s) shall be prima facie evidence of the facts stated therein.

 

2.9

Notification of Stockholder Nominations and Other Business.

 

  (a)

Annual Meeting.

 

  (i)

Nominations of persons for election to the Board of Directors and the proposal of business other than nominations to be considered by the stockholders may be made at an annual meeting of stockholders only (A) by or at the direction of the Board of Directors, (B) by any stockholder of the Company who is a stockholder of record at the time the notice provided for in this Section 2.9 is delivered to, or mailed to and received by, the Secretary of the Company, who is entitled to vote at such annual meeting and who complies with the notice procedures and disclosure

 

8


  requirements set forth in this Section 2.9 or (C) in the case of stockholder nominations to be included in the Company’s proxy statement for an annual meeting of stockholders, by an Eligible Stockholder (as defined below) who satisfies the notice, ownership and other requirements of Section 2.10 of these Bylaws.

 

  (ii)

For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (B) of Section 2.9(a)(i), such stockholder must have given timely written notice thereof in proper form to the Secretary of the Company and such proposed business must be a proper subject for stockholder action. To be timely, a stockholder’s notice must be delivered to, or mailed to and received by, the Secretary at the principal executive offices of the Company: not later than the close of business on the ninetieth (90th) day or earlier than the close of business on the one hundred twentieth (120th) day prior to the anniversary date on which the Company first distributed its proxy materials for the prior year’s annual meeting of stockholders of the Company; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after the first anniversary of the prior year’s annual meeting, notice by the stockholder in order to be timely must be so delivered, or so mailed and received, not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of (A) the ninetieth (90th) day prior to such annual meeting and (B) the tenth (10th) day following the date on which public disclosure (as defined below) of the date of the annual meeting is first made by the Company; provided, however, that for the purposes of this clause (ii), (x) the anniversary date of the Company’s first distribution of its proxy materials for the 2019 annual meeting of stockholders of the Company shall be deemed to be April 29, 2020 and (y) the anniversary date of the Company’s 2019 annual meeting of stockholders shall be deemed to be June 25, 2020. In no event shall the public disclosure of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth:

 

  (A)

as to each person, if any, whom such stockholder proposes to nominate for election or re-election as a Director: (1) all information relating to such person that would be required to be disclosed in a proxy statement soliciting proxies for the election of such nominee as a Director in an election contest (even if an election contest is not involved) or that is otherwise required to be disclosed, under Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, (2) the written consent of the nominee to being named in the proxy statement as a nominee and to serving as a Director if elected and a representation by the nominee to the effect that, if elected, the nominee will agree to and

 

9


  abide by all policies of the Board of Directors as may be in place at any time and from time to time and (3) any information that such person would be required to disclose pursuant to paragraph (ii)(C) of this Section 2.9(a), if such person were a stockholder purporting to make a nomination or propose business pursuant thereto;

 

  (B)

as to any other business that such stockholder proposes to bring before the meeting: (1) a brief description of the proposed business desired to be brought before the meeting, (2) the text of the proposal or proposed business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws of the Company, the language of the proposed amendment), (3) the reasons for conducting such business at the meeting, (4) any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such business of such stockholder and the beneficial owner (within the meaning of Section 13(d) of the Exchange Act), if any, on whose behalf the business is being proposed, (5) any other information relating to such stockholder and beneficial owner, if any, on whose behalf the proposal is being made, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal and pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, (6) a description of all agreements, arrangements, or understandings between or among such stockholder, or any affiliates or associates of such stockholder, and any other person or persons (including their names) in connection with the proposal of such business and any material interest of such stockholder or any affiliates or associates of such stockholder, in such business, including any anticipated benefit therefrom to such stockholder, or any affiliates or associates of such stockholder and (7) the information required by Section 2.9(a)(ii)(A) above; and

 

  (C)

as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made or the other business is proposed: (1) the name and address of such stockholder, as they appear on the Company’s books, and the name and address of the beneficial owner, if any, on whose behalf the nomination is made, (2) the class and number of shares of capital stock of the Company which are beneficially owned (as defined below) and owned of record by such stockholder and owned by the beneficial owner, if any, on whose behalf the nomination is made as of the date of the notice, and a representation that such stockholder shall notify the Company in writing within five (5) business days after the record date for such meeting of the class and number of shares of capital stock of the Company beneficially owned by such stockholder or

 

10


  beneficial owner as of the record date for the meeting, (3) a written representation (from the stockholder giving notice) that such stockholder is the holder of record of shares of the Company entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination or nominations or other business specified in the notice, (4) a description of any agreement, arrangement or understanding with respect to the nomination or other business between or among such stockholder or the beneficial owner, if any, on whose behalf the nomination is made and any other person, including without limitation any agreements that would be required to be disclosed pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the requirement to file a Schedule 13D is applicable to such stockholder or the beneficial owner, if any, on whose behalf the nomination is made) and a representation that such stockholder shall notify the Company in writing within five (5) business days after the record date for such meeting of any such agreement, arrangement or understanding in effect as of the record date for the meeting, (5) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of such stockholder’s notice by, or on behalf of, such stockholder or the beneficial owner, if any, on whose behalf the nomination is made or any of their affiliates or associates, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes of any class of the Company’s capital stock for, or maintain, increase or decrease the voting power of such stockholder or the beneficial owner, if any, on whose behalf the nomination is made or any of their affiliates or associates with respect to shares of stock of the Company and a representation that such stockholder shall notify the Company in writing within five (5) business days after the record date for such meeting of any such agreement, arrangement or understanding in effect as of the record date for the meeting and (6) a representation as to whether such stockholder intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding capital stock required to approve the election of the nominee and/or otherwise to solicit proxies from stockholders in support of such election.

 

  (iii)

The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as a Director of the Company, including information relevant to a determination whether such proposed nominee can be considered an independent Director or that could be material to a reasonable stockholders’ understanding of the independence, or lack thereof.

 

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  (iv)

This Section 2.9(a) shall not apply to a proposal proposed to be made by a stockholder if the stockholder has notified the Company of his or her intention to present the proposal at an annual or special meeting only pursuant to and in compliance with Rule 14a-8 under the Exchange Act and such proposal has been included in a proxy statement that has been prepared by the Company to solicit proxies for such meeting.

 

  (b)

Special Meeting. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Company’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders called by the Board of Directors at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors or (ii) provided that the Board of Directors has determined that Directors shall be elected at such meeting, by any stockholder of the Company who is a stockholder of record at the time the notice provided for in this Section 2.9(b) is delivered to, or mailed to and received by, the Secretary of the Company and at the time of the special meeting, who is entitled to vote at the special meeting and upon such election, and who complies with the notice procedures set forth in this Section 2.9 as to such nomination. In the event the Board of Directors calls a special meeting of stockholders for the purpose of electing one or more Directors to the Board of Directors, any such stockholder entitled to vote in such election of Directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Company’s notice of meeting, if the notice required by Section 2.9(a)(ii) shall be delivered to, or mailed to and received by, the Secretary at the principal executive offices of the Company not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public disclosure of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is first made by the Company. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

 

  (c)

General.

 

  (i)

Only such persons who are nominated in accordance with the procedures set forth in this Section 2.9 or Section 2.10 shall be eligible to be elected at any meeting of stockholders of the Company to serve as Directors and only such other business shall be conducted at a meeting of stockholders as shall have been properly brought before the meeting in accordance with the procedures set forth in this Section 2.9 or Section 2.10, as applicable. The chairman of the special meeting, as determined pursuant to Section

 

12


  2.6, shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.9. If any proposed nomination or other business was not made or proposed in compliance with this Section 2.9 or Section 2.10, as applicable, then except as otherwise provided by law, the chairman of the meeting shall have the power and duty to declare that such nomination shall be disregarded or that such proposed other business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.9, unless otherwise required by law, if the stockholder does not provide the information required under clauses (2), (4) and (5) of Section 2.9(a)(ii)(C) to the Company within five (5) business days following the record date for an annual or special meeting of stockholders, or if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Company to present a nomination or proposed other business, such nomination shall be disregarded and such proposed other business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Company. For purposes of this Section 2.9, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or authorized by a writing executed by such stockholder (or a reliable reproduction or electronic transmission of such writing) delivered to the Company prior to the making of such nomination or proposal at such meeting by such stockholder stating that such person is authorized to act for such stockholder as proxy at the meeting of stockholders.

 

  (ii)

For purposes of this Section 2.9, “public disclosure” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press, or comparable national news service or any document publicly filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to Section 13, 14 or 15(d) of the Exchange Act. For purposes of clause (2) of Section 2.9(a)(ii)(C), shares shall be treated as “beneficially owned” by a person if the person beneficially owns such shares, directly or indirectly, for purposes of Section 13(d) of the Exchange Act and Regulations 13D and 13G thereunder or has or shares pursuant to any agreement, arrangement or understanding (whether or not in writing): (A) the right to acquire such shares (whether such right is exercisable immediately or only after the passage of time or the fulfillment of a condition or both), (B) the right to vote such shares, alone or in concert with others and/or (C) investment power with respect to such shares, including the power to dispose of, or to direct the disposition of, such shares.

 

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2.10

Proxy Access for Director Nominations.

 

  (a)

Eligibility. Subject to the terms and conditions of these Bylaws, in connection with an annual meeting of stockholders at which Directors are to be elected, the Company (a) shall include in its proxy statement and on its form of proxy the names of, and (b) shall include in its proxy statement the “Additional Information” (as defined below) relating to, a number of nominees specified pursuant to Section 2.10(b)(i) (the “Authorized Number”) for election to the Board of Directors submitted pursuant to this Section 2.10 (each, a “Stockholder Nominee”), if:

 

  (i)

the Stockholder Nominee satisfies the eligibility requirements in this Section 2.10;

 

  (ii)

the Stockholder Nominee is identified in a timely notice (the “Stockholder Notice”) that satisfies this Section 2.10 and is delivered by a stockholder that qualifies as, or is acting on behalf of, an Eligible Stockholder (as defined below); and

 

  (iii)

the Eligible Stockholder satisfies the requirements in this Section 2.10 and expressly elects at the time of the delivery of the Stockholder Notice to have the Stockholder Nominee included in the Company’s proxy materials.

 

  (b)

Definitions.

 

  (i)

The maximum number of Stockholder Nominees appearing in the Company’s proxy materials with respect to an annual meeting of stockholders (the “Authorized Number”) shall not exceed the greater of (x) two or (y) twenty percent (20%) of the number of Directors in office as of the last day on which a Stockholder Notice may be delivered pursuant to this Section 2.10 with respect to the annual meeting, or if such amount is not a whole number, the closest whole number (rounding down) below twenty percent (20%); provided that the Authorized Number shall be reduced by (A) the number of individuals (if any) included in the Company’s proxy as nominees recommended by the Board of Directors pursuant to an agreement, arrangement or other understanding with a stockholder or group of stockholders (other than any such agreement, arrangement or other understanding entered into in connection with an acquisition of stock from the Company by such stockholder or group of stockholders) and (B) the number of nominees (if any) who were previously elected to the Board of Directors as Stockholder Nominees at any of the preceding two annual meetings and who are nominated for election at the annual meeting by the Board of Directors as a Board of Directors nominee. For purposes of determining when the Authorized Number has been reached, any individual nominated by an Eligible Stockholder for inclusion in the Company’s proxy materials pursuant to this Section 2.10 whose nomination is subsequently withdrawn or whom the Board of Directors decides to nominate for election to the Board of

 

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  Directors shall be counted as one of the Stockholder Nominees. In the event that one or more vacancies for any reason occurs after the date of the Stockholder Notice but before the annual meeting and the Board of Directors resolves to reduce the size of the Board of Directors in connection therewith, the Authorized Number shall be calculated based on the number of Directors in office as so reduced.

 

  (ii)

To qualify as an “Eligible Stockholder,” a stockholder or a group as described in this Section 2.10 must:

 

  (A)

Own and have Owned (as defined below), continuously for at least three years as of the date of the Stockholder Notice, a number of shares (as adjusted to account for any stock dividend, stock split, subdivision, combination, reclassification or recapitalization of shares of the Company that are entitled to vote generally in the election of Directors) that represents at least three percent (3%) of the outstanding shares of the Company that are entitled to vote generally in the election of Directors as of the date of the Stockholder Notice (the “Required Shares”), and

 

  (B)

thereafter continue to Own the Required Shares through such annual meeting of stockholders.

For purposes of satisfying the ownership requirements of this Section 2.10(b)(ii), a group of not more than twenty (20) stockholders and/or beneficial owners may aggregate the number of shares of the Company that are entitled to vote generally in the election of Directors that each group member has individually Owned continuously for at least three (3) years as of the date of the Stockholder Notice if all other requirements and obligations for an Eligible Stockholder set forth in this Section 2.10 are satisfied by and as to each stockholder or beneficial owner comprising the group whose shares are aggregated. No shares may be attributed to more than one Eligible Stockholder, and no stockholder or beneficial owner, alone or together with any of its affiliates, may individually or as a member of a group qualify as or constitute more than one Eligible Stockholder under this Section 2.10. A group of any two or more funds shall be treated as only one stockholder or beneficial owner for this purpose if they are (A) under common management and investment control OR (B) under common management and funded primarily by a single employer OR (C) part of a family of funds, meaning a group of publicly offered investment companies (whether organized in the U.S. or outside the U.S.) that hold themselves out to investors as related companies for purposes of investment and investor services. For purposes of this Section 2.10, the term “affiliate” or “affiliates” shall have the meanings ascribed thereto under the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

  (iii)

For purposes of this Section 2.10:

 

  (A)

A stockholder or beneficial owner is deemed to “Own” only those outstanding shares of the Company that are entitled to vote generally in the election of Directors as to which the person

 

15


  possesses both (1) the full voting and investment rights pertaining to the shares and (2) the full economic interest in (including the opportunity for profit and risk of loss on) such shares, except that the number of shares calculated in accordance with clauses (1) and (2) shall not include any shares (a) sold by such person in any transaction that has not been settled or closed, (b) borrowed by the person for any purposes or purchased by the person pursuant to an agreement to resell, or (c) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by the person, whether the instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of the Company that are entitled to vote generally in the election of Directors, if the instrument or agreement has, or is intended to have, or if exercised would have, the purpose or effect of (x) reducing in any manner, to any extent or at any time in the future, the person’s full right to vote or direct the voting of the shares, and/or (y) hedging, offsetting or altering to any degree any gain or loss arising from the full economic ownership of the shares by the person. The terms “Owned,” “Owning” and other variations of the word “Own,” when used with respect to a stockholder or beneficial owner, have correlative meanings. For purposes of clauses (a) through (c), the term “person” includes its affiliates.

 

  (B)

A stockholder or beneficial owner “Owns” shares held in the name of a nominee or other intermediary so long as the person retains both (1) the full voting and investment rights pertaining to the shares and (2) the full economic interest in the shares. The person’s Ownership of shares is deemed to continue during any period in which the person has delegated any voting power by means of a proxy, power of attorney, or other instrument or arrangement that is revocable at any time by the stockholder.

 

  (C)

A stockholder or beneficial owner’s Ownership of shares shall be deemed to continue during any period in which the person has loaned the shares if the person has the power to recall the loaned shares on not more than five (5) business days’ notice.

 

  (iv)

For purposes of this Section 2.10, the “Additional Information” referred to in Section 2.10(a) that the Company will include in its proxy statement is:

 

  (A)

the information set forth in the Schedule 14N provided with the Stockholder Notice concerning each Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in the Company’s proxy statement by the applicable requirements of the Exchange Act and the rules and regulations thereunder; and

 

16


  (B)

if the Eligible Stockholder so elects, a written statement of the Eligible Stockholder (or, in the case of a group, a written statement of the group), not to exceed five hundred words, in support of its Stockholder Nominee(s), which must be provided at the same time as the Stockholder Notice for inclusion in the Company’s proxy statement for the annual meeting (the “Statement”).

 

    

Notwithstanding anything to the contrary contained in this Section 2.10, the Company may omit from its proxy materials any information or Statement that it, in good faith, believes is untrue in any material respect (or omits a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading) or would violate any applicable law, rule, regulation or listing standard. Nothing in this Section 2.10 shall limit the Company’s ability to solicit against and include in its proxy materials its own statements relating to any Eligible Stockholder or Stockholder Nominee.

 

  (c)

Stockholder Notice and Other Informational Requirements.

 

  (i)

The Stockholder Notice shall set forth all information, representations and agreements required under Section 2.9(a)(ii) above, including the information required with respect to (i) any nominee for election as a Director, (ii) any stockholder giving notice of an intent to nominate a candidate for election, and (iii) any stockholder, beneficial owner or other person on whose behalf the nomination is made under this Section 2.10. In addition, such Stockholder Notice shall include:

 

  (A)

a copy of the Schedule 14N that has been or concurrently is filed with the SEC under the Exchange Act;

 

  (B)

a written statement of the Eligible Stockholder (and in the case of a group, the written statement of each stockholder or beneficial owner whose shares are aggregated for purposes of constituting an Eligible Stockholder), which statement(s) shall also be included in the Schedule 14N filed with the SEC, (i) setting forth and certifying to the number of shares of the Company entitled to vote generally in the election of Directors that the Eligible Stockholder Owns and has Owned (as defined in Section 2.10(b)(iii) of these Bylaws) continuously for at least three years as of the date of the Stockholder Notice, (ii) agreeing to continue to Own such shares through the annual meeting and (iii) indicating whether it intends to continue to Own such shares for at least one year following the annual meeting;

 

  (C)

the written agreement of the Eligible Stockholder (and in the case of a group, the written agreement of each stockholder or beneficial owner whose shares are aggregated for purposes of constituting an Eligible Stockholder) addressed to the Company, setting forth the following additional agreements, representations; and warranties:

 

17


  (1)

it shall provide (a) within five business days after the date of the Stockholder Notice, one or more written statements from the record holder(s) of the Required Shares and from each intermediary through which the Required Shares are or have been held, in each case during the requisite three-year holding period, specifying the number of shares that the Eligible Stockholder Owns, and has Owned continuously in compliance with this Section 2.10, (b) within five business days after the record date for the annual meeting both the information required under Section 2.9(a)(ii)(C) and notification in writing verifying the Eligible Stockholder’s continuous Ownership of the Required Shares, in each case, as of such date, and (c) immediate notice to the Company if the Eligible Stockholder ceases to own any of the Required Shares prior to the annual meeting;

 

  (2)

it (a) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control at the Company, and does not presently have this intent, (b) has not nominated and shall not nominate for election to the Board of Directors at the annual meeting any person other than the Stockholder Nominee(s) being nominated pursuant to this Section 2.10, (c) has not engaged and shall not engage in, and has not been and shall not be a participant (as defined in Item 4 of Exchange Act Schedule 14A) in, a solicitation within the meaning of Exchange Act Rule 14a-1(l), in support of the election of any individual as a Director at the annual meeting other than its Stockholder Nominee(s) or any nominee(s) of the Board of Directors , and (d) shall not distribute to any stockholder any form of proxy for the annual meeting other than the form distributed by the Company; and

 

  (3)

it will (a) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the stockholders of the Company or out of the information that the Eligible Stockholder provided to the Company, (b) indemnify and hold harmless the Company and each of its Directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Company or any of its Directors, officers or employees arising out of the Eligible Stockholder’s communications with the stockholders of the Company or out of the information that the Eligible

 

18


  Stockholder provided to the Company, (c) comply with all laws, rules, regulations and listing standards applicable to its nomination or any solicitation in connection with the annual meeting, (d) file with the SEC any solicitation or other communication by or on behalf of the Eligible Stockholder relating to the Company’s annual meeting of stockholders, one or more of the Company’s Directors or Director nominees or any Stockholder Nominee, regardless of whether the filing is required under Exchange Act Regulation 14A, or whether any exemption from filing is available for the materials under Exchange Act Regulation 14A, and (e) at the request of the Company, promptly, but in any event within five business days after such request (or by the day prior to the day of the annual meeting, if earlier), provide to the Company such additional information as reasonably requested by the Company; and

 

  (D)

in the case of a nomination by a group, the designation by all group members of one group member that is authorized to act on behalf of all members of the group with respect to the nomination and matters related thereto, including withdrawal of the nomination, and the written agreement, representation, and warranty of the Eligible Stockholder that it shall provide, within five business days after the date of the Stockholder Notice, documentation reasonably satisfactory to the Company demonstrating that the number of stockholders and/or beneficial owners within such group does not exceed twenty (20), including whether a group of funds qualifies as one stockholder or beneficial owner within the meaning of Section 2.10(b)(ii).

All information provided pursuant to this Section 2.10(c)(i) shall be deemed part of the Stockholder Notice for purposes of this Section 2.10.

 

  (ii)

To be timely under this Section 2.10, the Stockholder Notice must be delivered to, or mailed to and received by, the Secretary at the principal executive offices of the Company not later than the close of business on the one hundred twentieth (120th) day or earlier than the close of business on the one hundred fiftieth (150th) day prior to the anniversary date on which the Company first distributed its definitive proxy materials for the prior year’s annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after the first anniversary of the prior year’s annual meeting, notice by the stockholder in order to be timely, must be so delivered, or so mailed and received, not earlier than the close of business on the one hundred fiftieth (150th) day prior to such annual meeting and not later than the close of business on the later of the one hundred twentieth (120th) day prior to such annual meeting or the tenth (10th) day following the date on which public disclosure (as defined in Section

 

19


  2.9(c)(ii) above) of the date of the annual meeting is first made by the Company; provided, however, that for the purposes of this clause (ii), (x) the anniversary date of the Company’s first distribution of its proxy materials for the 2019 annual meeting of stockholders of the Company shall be deemed to be April 29, 2020 and (y) the anniversary date of the Company’s 2019 annual meeting of stockholders shall be deemed to be June 25, 2020. In no event shall the public disclosure of an adjournment or a postponement of an annual meeting commence a new time period (or extend any time period) for the giving of the Stockholder Notice as described above.

 

  (iii)

Within the time period for delivery of the Stockholder Notice, a written representation and agreement of each Stockholder Nominee shall be delivered to the Secretary of the Company at the principal executive offices of the Company, which shall be signed by each Stockholder Nominee and shall represent and agree (A) as to the matters set forth in Section 2.9(a)(ii)(A), and (B) that such Stockholder Nominee consents to being named in the Company’s proxy statement and form of proxy as a nominee and to serving as a Director if elected. At the request of the Company, the Stockholder Nominee must promptly, but in any event within five (5) business days after such request, submit all completed and signed questionnaires required of the Company’s nominees and provide to the Company such other information as it may reasonably request. The Company may request such additional information as necessary to permit the Board of Directors to determine if each Stockholder Nominee satisfies the requirements of this Section 2.10.

 

  (iv)

In the event that any information or communications provided by the Eligible Stockholder or any Stockholder Nominees to the Company or its stockholders is not, when provided, or thereafter ceases to be, true, correct and complete in all material respects (including omitting a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading), such Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary and provide the information that is required to make such information or communication true, correct, complete and not misleading; it being understood that providing any such notification shall not be deemed to cure any defect or limit the Company’s right to omit a Stockholder Nominee from its proxy materials as provided in this Section 2.10.

 

  (d)

Proxy Access Procedures.

 

  (i)

Notwithstanding anything to the contrary contained in this Section 2.10, the Company may omit from its proxy materials any Stockholder Nominee, and such nomination shall be disregarded and no vote on such

 

20


  Stockholder Nominee shall occur, notwithstanding that proxies in respect of such vote may have been received by the Company, if:

 

  (A)

the Eligible Stockholder or Stockholder Nominee breaches any of its agreements, representations or warranties set forth in the Stockholder Notice or otherwise submitted pursuant to this Section 2.10, any of the information in the Stockholder Notice or otherwise submitted pursuant to this Section 2.10 was not, when provided, true, correct and complete (or omitted a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading), or the Eligible Stockholder or applicable Stockholder Nominee otherwise fails to comply with its obligations pursuant to these Bylaws, including, but not limited to, its obligations under this Section 2.10;

 

  (B)

the Stockholder Nominee (1) is not independent under any applicable listing standards, any applicable rules of the SEC or any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the Company’s Directors, (2) is or has been, within the past three years, an officer or Director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended, (3) is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in a criminal proceeding (excluding traffic violations and other minor offenses) within the past ten years, (4) is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”) or (5) shall have provided any information to the Company or its stockholders that was untrue in any material respect or that omitted to state a material fact necessary to make the statements made, in light of the circumstances in which they were made, not misleading;

 

  (C)

the Company has received a notice (whether or not subsequently withdrawn) that a stockholder intends to nominate any candidate for election to the Board of Directors pursuant to the advance notice requirements for stockholder nominees for Director in Section 2.9(a); or

 

  (D)

the election of the Stockholder Nominee to the Board of Directors would cause the Company to violate the Certificate of Incorporation of the Company, these Bylaws, or any applicable law, rule, regulation or listing standard.

 

  (ii)

An Eligible Stockholder submitting more than one Stockholder Nominee for inclusion in the Company’s proxy materials pursuant to this Section 2.10 shall rank such Stockholder Nominees based on the order that the

 

21


  Eligible Stockholder desires such Stockholder Nominees to be selected for inclusion in the Company’s proxy materials and include such assigned rank in its Stockholder Notice submitted to the Company. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 2.10 exceeds the Authorized Number, the Stockholder Nominees to be included in the Company’s proxy materials shall be determined in accordance with the following provisions: one Stockholder Nominee who satisfies the eligibility requirements in this Section 2.10 shall be selected from each Eligible Stockholder for inclusion in the Company’s proxy materials until the Authorized Number is reached, going in order of the amount (largest to smallest) of shares of the Company each Eligible Stockholder disclosed as Owned in its Stockholder Notice submitted to the Company and going in the order of the rank (highest to lowest) assigned to each Stockholder Nominee by such Eligible Stockholder. If the Authorized Number is not reached after one Stockholder Nominee who satisfies the eligibility requirements in this Section 2.10 has been selected from each Eligible Stockholder, this selection process shall continue as many times as necessary, following the same order each time, until the Authorized Number is reached. Following such determination, if any Stockholder Nominee who satisfies the eligibility requirements in this Section 2.10 thereafter is nominated by the Board of Directors, thereafter is not included in the Company’s proxy materials or thereafter is not submitted for Director election for any reason (including the Eligible Stockholder’s or Stockholder Nominee’s failure to comply with this Section 2.10), no other nominee or nominees shall be included in the Company’s proxy materials or otherwise submitted for election as a Director at the applicable annual meeting in substitution for such Stockholder Nominee.

 

  (iii)

Any Stockholder Nominee who is included in the Company’s proxy materials for a particular annual meeting of stockholders but either (A) withdraws from or becomes ineligible or unavailable for election at the annual meeting for any reason, including for the failure to comply with any provision of these Bylaws (provided that in no event shall any such withdrawal, ineligibility or unavailability commence a new time period (or extend any time period) for the giving of a Stockholder Notice) or (B) does not receive in favor of such Stockholder Nominee’s election at least twenty-five percent (25%) of the votes cast with respect to such Stockholder Nominee’s election, shall be ineligible to be a Stockholder Nominee pursuant to this Section 2.10 for the next two annual meetings.

 

  (iv)

Notwithstanding the foregoing provisions of this Section 2.10, unless otherwise required by law or otherwise determined by the chairman of the meeting or the Board of Directors, if the stockholder delivering the Stockholder Notice (or a qualified representative of the stockholder, as defined in Section 2.9(c)(i)) does not appear at the annual meeting of stockholders of the Company to present its Stockholder Nominee or

 

22


  Stockholder Nominees, such nomination or nominations shall be disregarded, notwithstanding that proxies in respect of the election of the Stockholder Nominee or Stockholder Nominees may have been received by the Company.

 

  (v)

The Board of Directors (and any other person or body authorized by the Board of Directors) shall have the power and authority to interpret this Section 2.10 and to make any and all determinations necessary or advisable to apply this Section 2.10 to any persons, facts or circumstances, including, without limitation, the power to determine (1) whether one or more stockholders or beneficial owners qualifies as an Eligible Stockholder, (2) whether a Stockholder Notice complies with this Section 2.10 and has otherwise met the requirements of this Section 2.10, (3) whether a Stockholder Nominee satisfies the qualifications and requirements in this Section 2.10, and (4) whether any and all requirements of this Section 2.10 (or any applicable requirements of Section 2.9) have been satisfied. Any such interpretation or determination adopted in good faith by the Board of Directors (or any other person or body authorized by the Board of Directors) shall be binding on all persons, including, without limitation, the Company and its stockholders (including, without limitation, any beneficial owners).

 

  (vi)

For the avoidance of doubt, nothing in this Section 2.10 shall limit the Company’s ability to solicit against any Stockholder Nominee or include in its proxy materials the Company’s own statements or other information relating to any Eligible Stockholder or Stockholder Nominee, including any information provided to the Company pursuant to this Section 2.10.

 

  (vii)

This Section 2.10 shall be the exclusive method for stockholders to include Director nominees for election in the Company’s proxy materials.

ARTICLE III

BOARD OF DIRECTORS

 

3.1

Number and Qualifications. The business and affairs of the Company shall be managed by or under the direction of its Board of Directors. The number of Directors constituting the entire Board of Directors shall be not less than six (6) nor more than sixteen (16), as fixed from time to time exclusively by resolution of a majority of the entire Board of Directors. As used in these Bylaws, the term “entire Board of Directors” means the total authorized number of Directors that the Company would have if there were no vacancies.

 

3.2

Term. Subject to any rights of holders of preferred stock to elect directors, each director shall hold office until the next annual meeting for the election of directors and until the director’s successor is duly elected and qualified.

 

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3.3

Resignation. A Director may resign at any time by giving written notice to the Chairman, to the Chief Executive Officer or the Secretary. Unless otherwise stated in such notice of resignation, the acceptance thereof shall not be necessary to make it effective; and such resignation shall take effect at the time or upon the happening of an event specified therein or, in the absence of such specification, it shall take effect upon the receipt thereof.

 

3.4

Vacancies. Subject to the provisions of the Certificate of Incorporation and the rights of the holders of any class or series of preferred stock to elect directors, any vacancies on the Board of Directors for any reason, including from the death, resignation, disqualification or removal of any director, and any newly created directorships resulting by reason of any increase in the number of directors shall be filled exclusively by the Board of Directors, acting by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum, or by a sole remaining director, and shall not be filled by stockholders. Any directors elected to fill a vacancy shall hold office until the next annual meeting of stockholders or until their successors are duly elected and qualified.

 

3.5

Regular Meetings. Regular meetings of the Board of Directors may be held without further notice on such date and at such time and place as shall from time to time be determined by the Board of Directors. A meeting of the Board of Directors for the election of officers and the transaction of such other business as may come before it may be held without notice immediately following the annual meeting of stockholders.

 

3.6

Special Meetings. Special meetings of the Board of Directors may be called by the Chairman or the Chief Executive Officer or at the request in writing or by the affirmative vote of a majority of the Directors then in office.

 

3.7

Notice of Special Meetings. Notice of the time and place of each special meeting shall be mailed to each Director at least two (2) days before the meeting at his or her residence or usual place of business, or telegraphed, telecopied or electronically transmitted or delivered personally or by telephone to such Director at least one day before the meeting but such notice may be waived by such Director. The notice need not state the purposes of the special meeting and, unless indicated in the notice thereof, any and all business may be transacted at a special meeting.

 

3.8

Place of Meetings. The Directors may hold their meetings and have an office or offices within or outside of the State of Delaware as the Board of Directors may from time to time determine.

 

3.9

Participation in Meetings by Conference Telephone. Members of the Board of Directors, or of any committee thereof, may participate in a meeting of the Board of Directors or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting.

 

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3.10

Quorum. A majority of the total number of Directors then holding office shall constitute a quorum. If a quorum does not exist, a majority of the Directors present may adjourn the meeting from time to time without notice, other than announcement at the meeting, until a quorum shall be obtained.

 

3.11

Organization. The Chairman, or, in the absence of the Chairman, a member of the Board of Directors selected by the members present, shall preside at meetings of the Board of Directors. The Secretary or an Assistant Secretary of the Company shall act as secretary, but in the absence of the Secretary or an Assistant Secretary, the presiding officer may appoint a secretary.

 

3.12

Compensation of Directors. Directors shall receive such compensation for their services on the Board of Directors and any committee thereof and such reimbursement for their expenses of attending meetings of the Board of Directors and any committee thereof as the Board of Directors may determine from time to time.

 

3.13

Action by Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent to the action in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee thereof. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

3.14

Interested Transactions. No contract or transaction between the Company and one or more of its directors or officers, or between the Company and any other corporation, partnership, association or other organization in which one or more of the Company’s directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction, or solely because any such director’s or officer’s vote is counted for such purpose if: (a) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (b) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Company as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee that authorizes the contract or transaction.

 

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3.15

Committees of the Board of Directors. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Company. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Subject to the rules and regulations of any securities exchange or quotation system on which the securities of the Company are listed for trading, if a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent permitted by applicable law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Company and may authorize the seal of the Company to be affixed to all papers that may require it to the extent so authorized by the Board of Directors. Unless the Board of Directors provides otherwise, at all meetings of such committee, a majority of the then authorized members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. Unless the Board of Directors provides otherwise, each committee designated by the Board of Directors may make, alter and repeal rules and procedures for the conduct of its business. In the absence of such rules and procedures each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to this Article III. Notwithstanding anything to the contrary contained in this Article III, any resolution of the Board of Directors establishing or directing any committee of the Board of Directors or establishing or amending the charter of any such committee may establish requirements or procedures relating to the governance and/or operation of such committee that are different from, or in addition to, those set forth in these Bylaws and, to the extent that there is any inconsistency between these Bylaws and any such resolution or charter, the terms of such resolution or charter shall be controlling. No committee of the Board of Directors shall have the power or authority to (a) approve or adopt, or recommend to stockholders, any action or matter expressly required by the General Corporation Law of the State of Delaware to be submitted to stockholders for approval; or (b) adopt, amend, or repeal these Bylaws. No committee of the Board of Directors shall take any action that is required by these Bylaws, the Certificate of Incorporation or the General Corporation Law of the State of Delaware to be taken by a vote of a specified proportion of the entire Board of Directors.

ARTICLE IV

OFFICERS

 

4.1

Positions and Election. The officers of the Company shall consist of a Chief Executive Officer, a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate. Any two or more offices may be held by the same person. Officers may, but need not, be directors or stockholders of the Company. The salaries of all officers shall be fixed by the Board of Directors.

 

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4.2

Term. Each officer of the Company shall hold office until such officer’s successor is duly elected and qualified or until such officer’s earlier death, resignation or removal. The Board of Directors may remove any officer at any time with or without cause by the majority vote of the members of the Board of Directors.

 

4.3

Resignation. Any officer of the Company may resign at any time by giving written notice of his or her resignation to the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon receipt unless such notice provides that the resignation is effective at some later time or upon the occurrence of some later event.

 

4.4

Vacancies. A vacancy occurring in any office shall be filled in the same manner as provide for the election or appointment to such office.

 

4.5

Chief Executive Officer; President. Unless the Board of Directors has designated another person as the Company’s Chief Executive Officer, the President shall be the Chief Executive Officer of the Company. The Chief Executive Officer shall have general charge and supervision of the business of the Company subject to the direction of the Board of Directors, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board of Directors. The President shall perform such other duties and shall have such other powers as the Board of Directors or the Chief Executive Officer (if the President is not the Chief Executive Officer) may from time to time prescribe.

 

4.6

Vice Presidents. Each Vice President shall have such powers and perform such duties as may be assigned to him or her from time to time by the Board of Directors or the Chief Executive Officer (or the President if there is no Chief Executive Officer). The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors.

 

4.7

Secretary; Assistant Secretary. The Secretary, or an Assistant Secretary, shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for committees when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors, and shall perform such other duties as may be assigned by the Board of Directors. The Secretary, or an Assistant Secretary, shall keep in safe custody the seal of the Company and have authority to affix the seal to all documents requiring it and attest to the same.

 

4.8

Treasurer; Assistant Treasurer. The Treasurer, or an Assistant Treasurer, shall have the custody of the corporate funds and other property of the Company, except as otherwise provided by the Board of Directors, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all

 

27


  moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board of Directors. The Treasurer, or an Assistant Treasurer, shall disburse the funds of the Company as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and whenever requested by the Board of Directors, shall render an account of all his or her transactions as treasurer and of the financial condition of the Company, and shall perform such other duties as may be assigned by the Board of Directors.

 

4.9

Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding the provisions herein.

 

4.10

Voting Securities Owned by the Company. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Company may be executed in the name of and on behalf of the Company by the Chief Executive Officer or any other officer authorized to do so by the Board of Directors and any such officer may, in the name of and on behalf of the Company, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Company may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Company might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

 

4.11

Chairman of the Board of Directors. The Board of Directors, in its discretion, may choose a Chairman (who shall be a director but need not be elected as an officer). The Chairman shall preside at all meetings of the stockholders and the Board of Directors. The Chairman shall perform such other duties and may exercise such other powers as may from time to time be assigned by these Bylaws or by the Board of Directors.

ARTICLE V

INDEMNIFICATION

 

5.1

Mandatory Indemnification. The Company shall indemnify, to the fullest extent permitted by Delaware law, any person who was or is a defendant or is threatened to be made a defendant to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person:

 

  (a)

is or was a Director, officer or employee of the Company;

 

  (b)

is or was a Director, officer or employee of the Company and is or was serving at the request of the Company as a director, trustee, member, member representative, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise; or

 

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  (c)

is or was serving at the request of the Company as a director, trustee, member, member representative or officer of another corporation, partnership, limited liability company, joint venture, trust or other enterprise

 

    

against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

 

5.2

Permitted Indemnification. The Company may indemnify, to the fullest extent permitted by Delaware law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person:

 

  (a)

is or was a Director, officer, employee or agent of the Company; or

 

  (b)

is or was serving at the request of the Company as a director, trustee, member, member representative, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise

 

    

against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

 

5.3

Expenses Payable in Advance. Expenses (including attorneys’ fees) incurred by any person who is or was a Director or officer of the Company, or any person who is or was serving at the request of the Company as a director, trustee, member, member representative or officer of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, in defending or investigating a threatened or pending action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company to the fullest extent permitted by Delaware law in advance of the final disposition of such action, suit or proceeding, upon receipt of

 

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  an undertaking by or on behalf of such person to repay such amount if it ultimately shall be determined that such person is not entitled to be indemnified by the Company as authorized in this Article V. Such expenses (including attorneys’ fees) incurred by any person who is or was an employee or agent of the Company, or any person who is or was serving at the request of the Company as an employee or agent of another corporation, partnership, limited liability company, joint venture, trust or enterprise may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.

 

5.4

Judicial Determination of Mandatory Indemnification or Mandatory Advancement of Expenses. Any person may apply to any court of competent jurisdiction in the State of Delaware to order indemnification or advancement of expenses to the extent mandated under Sections 5.1 or 5.3 above. The basis of such order of indemnification or advancement of expenses by a court shall be a determination by such court that indemnification of, or advancement of expenses to, such person is proper in the circumstances. Notice of any application for indemnification or advancement of expenses pursuant to this Section 5.4 shall be given to the Company promptly upon the filing of such application. The burden of proving that such person is not entitled to such mandatory indemnification or mandatory advancement of expenses, or that the Company is entitled to recover the mandatory advancement of expenses pursuant to the terms of an undertaking, shall be on the Company. If successful in whole or in part in obtaining an order for mandatory indemnification or mandatory advancement of expenses, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, such person shall also be entitled to be paid all costs (including attorneys’ fees and expenses) in connection therewith.

 

5.5

Nonexclusivity. The indemnification and advancement of expenses mandated or permitted by, or granted pursuant to, this Article V shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, any Bylaw, agreement, contract, vote of stockholders or disinterested Directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise both as to action by the person in an official capacity and as to action in another capacity while holding such office it being the policy of the Company that indemnification of the persons specified in Section 5.1 and Section 5.3 shall be made to the fullest extent permitted by law. The provisions of this Article V shall not be deemed to preclude the indemnification of any person who is not specified in Section 5.1 or 5.3, but whom the Company has the power or obligation to indemnify under Delaware law or otherwise.

 

5.6

Insurance. The Company may, but shall not be obligated to, purchase and maintain insurance at its expense on behalf of any person who is or was a Director, officer, employee or agent of the Company, or is or was a director or officer of the Company serving at the request of the Company as a director, officer, trustee, member, member representative, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any liability asserted against and incurred by such person in any such capacity, or arising out of the person’s status as such, whether or not the Company would have the power or the obligation to indemnify such person against such liability under the provisions of this Article V.

 

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5.7

Definitions. For the purposes of this Article V references to “the Company” shall include, in addition to the resulting company, any constituent company (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, trustees, members, member representatives, officers, employees or agents, so that any person who is or was a director, trustee, member, member representative, officer, employee or agent of such constituent company, or is or was serving at the request of such constituent company as a director, trustee, member, member representative, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article V with respect to the resulting or surviving company as such person would have with respect to such constituent company if its separate existence had continued. The term “other enterprise” as used in this Article V shall include employee benefit plans. References to “fines” in this Article V shall include excise taxes assessed on a person with respect to an employee benefit plan. The phrase “serving at the request of the Company” shall include any service as a director, trustee, member, member representative, officer, employee or agent that imposes duties on, or involves services by, such director, trustee, member, member representative, officer, employee or agent with respect to any employee benefit plan, its participants or beneficiaries.

 

5.8

Survival. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article V shall continue as to a person who has ceased to be a Director, officer, employee or agent of the Company, and to a person who has ceased to serve at the request of the Company as a director, trustee, member, member representative, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, and, in each case, shall inure to the benefit of the heirs, executors and administrators of such person.

 

5.9

Repeal, Amendment or Modification. Any repeal, amendment or modification of this Article V shall not affect any rights or obligations then existing between the Company and any person referred to in this Article V with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon such state of facts.

ARTICLE VI

MISCELLANEOUS

 

6.1

Seal. The corporate seal shall have inscribed upon it the name of the Company, the year “2018” and the words “Seal” and “Delaware.” The Secretary shall be in charge of the seal and may authorize a duplicate seal to be kept and used by any other officer or person.

 

6.2

Waiver of Notice. Whenever any notice is required to be given to any stockholder or Director of the Company, a waiver thereof in writing, signed by the person or persons entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

 

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6.3

Forum for Adjudication of Certain Disputes. Unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Company shall be deemed to have notice of and consented to the provisions of this Section 6.3. Failure to enforce the foregoing provisions would cause the Company irreparable harm and the Company shall be entitled to equitable relief, including injunction and specific performance, to enforce the foregoing provisions. The provisions of this Section 6.3 shall not preclude or contract the scope of exclusive federal or concurrent jurisdiction for actions brought under the Exchange Act or the Securities Act or the respective rules and regulations promulgated thereunder.

 

6.4

Offices. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle 19801. The name of its registered agent at that address is The Corporation Trust Company. The Company may also have offices at such other places within or without the State of Delaware as the Board of Directors may from time to time determine or the business of the Company may from time to time require.

 

6.5

Fiscal Year. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the Corporation shall end on December 31.

 

6.6

Contracts. Except as otherwise provide in these Bylaws, the Board of Directors may authorize any officer or officers to enter into any contract or to execute or deliver any instrument on behalf of the Company and such authority may be general or limited to specific instances. Any officer so authorized may, unless the authorizing resolution otherwise provides, delegate such authority to one or more subordinate officers, employees or agents, and such delegation may provide for further delegation.

 

6.7

Checks, Notes, Drafts, Etc. All checks, notes, drafts or other orders for the payment of money of the Company shall be signed, endorsed or accepted in the name of the Company by such officer, officers, person or persons as from time to time may be designated by the Board of Directors or by an officer or officers authorized by the Board of Directors to make such designation.

 

6.8

Dividends. Dividends upon the capital stock of the Corporation, subject to the requirements of the General Corporation Law of the State of Delaware and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section 3.13), and may be paid in cash, in property, or in shares of the Company’s capital stock. Before payment of any dividend, there may be set aside out of any funds of the Company available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the Company, or for equalizing dividends, or for repairing or maintaining any property of the Company, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

 

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6.9

Conflict with Applicable Law or Certificate of Incorporation. These Bylaws are adopted subject to any applicable law and the Certificate of Incorporation. Whenever these Bylaws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation.

ARTICLE VII

AMENDMENT OF BYLAWS

 

7.1

Amendment of Bylaws. The Board of Directors is expressly authorized and shall have the power to amend, alter, change or repeal or to adopt any provision of these Bylaws at any regular or special meeting of the Board of Directors at which there is a quorum by the affirmative vote of a majority of the total number of directors present at such meeting, or by unanimous written consent in accordance with Section 3.13. The stockholders also shall have power to amend, alter, change or repeal or to adopt any provision of these Bylaws of the Company at any annual or special meeting subject to the requirements of these Bylaws and the Certificate of Incorporation by the affirmative vote of the holders of a majority of the voting power of all the shares of capital stock of the Company then entitled to vote generally in the election of directors, voting together as a single class.

 

33

EX-10.3

Exhibit 10.3

AGCO/SPECCO INTELLECTUAL PROPERTY CROSS LICENSE AGREEMENT

by and among

CORTEVA, INC.,

AGCO LICENSORS,

AGCO LICENSEES,

DOWDUPONT INC.,

SPECCO LICENSORS

and

SPECCO LICENSEES

Dated as of June 1, 2019


AGCO/SPECCO INTELLECTUAL PROPERTY CROSS-LICENSE AGREEMENT

This AGCO/SPECCO INTELLECTUAL PROPERTY CROSS-LICENSE AGREEMENT (this “Agreement”), dated as of June 1, 2019 (the “Effective Date”), is entered into by and among Corteva, Inc., a Delaware corporation (“AgCo”), the AgCo Licensors and the AgCo Licensees, on the one hand, and DowDuPont Inc., a Delaware corporation (“SpecCo”), the SpecCo Licensors and the SpecCo Licensees, on the other hand (each of AgCo and SpecCo, a “Party” and together, the “Parties”).

WHEREAS, AgCo and SpecCo are parties to that certain Separation and Distribution Agreement, dated April 1, 2019 (the “Separation Agreement”);

WHEREAS, as of and following the Effective Time (as defined in the Separation Agreement), each Party and its Affiliates have rights to certain Patents, Know-How, Copyrights and Software (each, as defined in the Separation Agreement); and

WHEREAS, in connection with the Separation Agreement, the SpecCo Licensors wish to grant to the AgCo Licensees, and the AgCo Licensors wish to grant to the SpecCo Licensees, a license and other rights to certain of such Patents, Know-How, Copyrights and Software, in each case as and to the extent set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1    General. As used in this Agreement, the following terms shall have the meanings set forth in this Section 1.1. Capitalized terms that are not defined in this Agreement shall have the meanings set forth in the Separation Agreement.

(1)    “Action” means any demand, action, claim, cause of action, suit, countersuit, arbitration, inquiry, case, litigation, subpoena, proceeding or investigation (whether civil, criminal or administrative) by or before any court or grand jury, any Governmental Entity or any arbitration or mediation tribunal or authority.

(2)     “AgCo Field” means the field of the Agriculture Business and natural evolutions thereof.

(3)    “AgCo Licensed Copyrights” means any and all Copyrights to the extent Controlled by AgCo or any of its Affiliates, and Used in the Specialty Products Business, as of the Effective Date, including the Copyrights set forth on Schedule B. Notwithstanding the foregoing, AgCo Licensed Copyrights expressly exclude any and all (i) Know-How, (ii) IT Assets and (iii) Excluded IP.


(4)    “AgCo Licensed Engineering Standards” means Engineering Standards (including as set forth on Schedule E(i)), each, to the extent both (i) owned by AgCo or any of its Affiliates, or with respect to which AgCo or any of its Affiliates has the right to grant the license or other rights granted to SpecCo hereunder without payment obligations to any Third Party, as of the Effective Date and (ii) that is actually used by SpecCo or its Affiliates in the conduct of the Specialty Products Business as of the Effective Date. Notwithstanding the foregoing, the AgCo Licensed Engineering Standards shall expressly exclude (i) Regulatory Data, (ii) Government Approvals, (iii) CRISPR Technology, (iv) TMODS IP, (v) Trademarks, and (vi) the Intellectual Property set forth on Schedule A.

(5)    “AgCo Licensed IP” means the AgCo Licensed Patents, AgCo Licensed Know-How, and AgCo Licensed Copyrights.

(6)    “AgCo Licensed Know-How” means any and all Know-How to the extent Controlled by AgCo or any of its Affiliates, and Used in the Specialty Products Business, as of the Effective Date, including the Know-How set forth on Schedule C. Notwithstanding the foregoing, AgCo Licensed Know-How expressly excludes any and all (i) IT Assets and (ii) Excluded IP.

(7)    “AgCo Licensed Patents” means any and all (i) Patents set forth on Schedule D to the extent Controlled by AgCo or any of its Affiliates as of the Effective Date, (ii) Patents to the extent such Patents Cover any AgCo Licensed Know-How and are Controlled by AgCo or any of its Affiliates following the Effective Date and (iii) to the extent Controlled by AgCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, any Patents described in either of the foregoing subsections (i) or (ii), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents described in either of the foregoing subsections (i) or (ii) (but in all cases expressly excluding any and all Excluded IP).

(8)    “AgCo Licensed SHE Standards” means the DuPont Safety, Health, and Environmental Standards (including as set forth on Schedule E(ii)), each, to the extent both (i) owned by AgCo or any of its Affiliates, or with respect to which AgCo or any of its Affiliates has the right to grant the license or other rights granted to SpecCo hereunder without payment obligations to any Third Party, as of the Effective Date and (ii) that is actually used by SpecCo or its Affiliates in the conduct of the Specialty Products Business as of the Effective Date.    Notwithstanding the foregoing, the AgCo Licensed SHE Standards shall expressly exclude (i) Regulatory Data, (ii) Government Approvals, (iii) CRISPR Technology, (iv) TMODS IP, (v) Trademarks, and (vi) the Intellectual Property set forth on Schedule A.

(9)    “AgCo Licensed Standards” means the AgCo Licensed SHE Standards and the AgCo Licensed Engineering Standards

(10)    “AgCo Licensees” means (a) Pioneer Hi-Bred International, Inc., with respect to the licenses granted hereunder by PM Taiwan, Inc., and (b) E.I. du Pont de Nemours and Company, with respect to the licenses granted hereunder by SP Holding IB, Inc., Specialty Products N&H, Inc., DuPont Electronics, Inc., DuPont Safety & Construction, Inc., and DuPont Polymers, Inc.

(11)    “AgCo Licensors” means Pioneer Hi-Bred International, Inc. and E.I. du Pont de Nemours and Company.

 

2


(12)    “Authorized User” means a Party and its Affiliates, including, for clarity, any Person that becomes an Affiliate of such Party after the Effective Date (but, subject to Section 10.2, only for so long as such Person remains an Affiliate of such Party) and its and their Personnel.

(13)    “Business Software” means with respect to a Licensor, all Software to the extent Controlled by such Licensor or any of its Affiliates as of the Effective Date, which Software is reasonably required as of the Effective Date for the conduct of (i) the Agriculture Business if the Licensee is AgCo, including as listed on section (i) of Schedule I, or (ii) the Specialty Products Business if the Licensee is SpecCo, including as listed on section (ii) of Schedule I, in each case (in respect of the foregoing (i) and (ii)), only if and to the extent such Licensee and its Affiliates have not been granted a license or other rights to use such Software under the Separation Agreement or any other Ancillary Agreement. Notwithstanding the foregoing, Business Software expressly excludes any and all Excluded IP.

(14)    “Confidential Information” shall have the meaning provided to it in the Umbrella Secrecy Agreement.

(15)    “Contract” means any agreement, contract, subcontract, obligation, note, indenture, instrument, option, lease, sublease, promise, arrangement, release, warranty, license, sublicense, insurance policy, purchase order or legally binding commitment or undertaking of any nature (whether written or oral and whether express or implied).

(16)    “Controlled” means, with respect to any Patent, Know-How, Copyright or Software, (a) such Intellectual Property is owned by the applicable Party or any of its Affiliates and (b) such Party or any of its Affiliates has the ability to grant a license or other rights in, to or under such Patent, Know-How, Copyright or Software (respectively) on the terms and conditions set forth herein (other than pursuant to a license or other rights granted pursuant to this Agreement) without violating any Contract entered into as of or prior to the Effective Date between such Party or any of its Affiliates, on the one hand, and any Third Party, on the other hand.

(17)    “Cover” means, with respect to any Patent, in the absence of a license granted under an unexpired claim that has not been adjudicated to be invalid or unenforceable by a final, binding decision of a court or other Governmental Entity of competent jurisdiction that is unappealable or unappealed within the time permitted for appeal of such Patent (or if such Patent is a patent application, a claim in such patent application if such patent application were to issue as a patent), the practice of the applicable invention or technology, or performance of the applicable process, would infringe such claim. For clarity, and by way of example, an issued Patent Covers a product if, in the absence of a license granted under such a claim of such Patent, making, using, selling, offering for sale, importing or exporting such product infringes such claim.

(18)    “CRISPR Technology” means Intellectual Property, Confidential Information and any other Information relating to CRISPRs (Clustered Regularly Interspaced Short Palindromic Repeats) in a nucleic acid and CRISPR-associated proteins (“Cas”) (including Cas9 and other RNA-guided nucleases and other proteins associated with or having a function related to CRISPRs), and applications involving the recognition or function of CRISPRs or Cas proteins.

(19)    “Engineering Models and Databases” means (a) physical property databases, (b) empirical or mathematical dynamic or steady state models of processes, equipment and/or reactions and databases containing data resulting from such models, (c) computations of equipment or unit operation operating conditions including predictive or operational behavior and (d) databases with historical operational data.

 

3


(20)    “Engineering Standards” means standards, protocols, processes and policies, including engineering guidelines, for designing, constructing, maintaining and operating facilities.

(21)    “Excluded IP” means (i) DuPont Safety, Health and Environmental Standards (including AgCo Licensed SHE Standards and SpecCo Licensed SHE Standards), (ii) Engineering Standards (including the AgCo Licensed Engineering Standards and SpecCo Licensed Engineering Standards), (iii) Regulatory Data, (iv) Government Approvals, (v) CRISPR Technology, (vi) the TMODS Systems (as that term is defined in the TMODS License Agreement) (including object code and source code thereof), together with all process operator training simulator data files which contain process and control information for simulating the operation of plants, and all documentation therefor (“TMODS IP”), (vii) microbial production strain microorganisms that are Covered by Patents, or incorporate or are produced using Know-How, owned by a Party and its Affiliates, (viii) Trademarks and (ix) the Intellectual Property set forth on Schedule A.

(22)    “Governmental Approvals” means the consents, registrations, approvals, licenses, permits, notifications or authorizations obtained or to be obtained from, any Governmental Entity.

(23)    “Governmental Entity” means any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign, multinational or supranational exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government and any executive official thereof.

(24)    “Holding Party” has the meaning set forth in Section 2.11(a).

(25)    “Indemnifying Party” has the meaning set forth in Section 6.1(a).

(26)    “Indemnitees” has the meaning set forth in Section 6.1(a).

(27)    “Intellectual Property” means all intellectual property and industrial property rights of any kind or nature, including all U.S. and foreign (i) patents, patent applications, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, priority rights and extensions thereof (collectively “Patents”), (ii) trademarks, service marks, corporate names, trade names, Internet domain names, social media accounts or handles, logos, slogans, trade dress and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (collectively, “Trademarks”), (iii) copyrights and copyrightable subject matter (collectively, “Copyrights”), (iv) rights of privacy and publicity, (v) moral rights and rights of attribution and integrity, (vi) trade secrets and rights in all other confidential and proprietary information, including know-how, inventions (including, for the avoidance of doubt, notices of invention and invention disclosures for which a Patent has not been filed as of the Effective Date (e.g., NOIs and ICDs, as such terms are understood and used by the Parties as of the Effective Date)), algorithms, logic, standard operating conditions and procedures, proprietary processes, formulae, data, databases and other compilations of data, drawings, models and methodologies, including confidential information set forth in laboratory notebooks, laboratory reports, Plant Operating Documents, and Engineering Models and

 

4


Databases (except to the extent such information is Covered by any Patents), in each case of the foregoing, to the extent confidential and proprietary (collectively “Know-How”), (vii) all applications and registrations for the foregoing and (viii) all rights and remedies against past, present, and future infringement, misappropriation, or other violation of the foregoing, in each case (with respect to the foregoing clauses (i) through (viii)), excluding all IT Assets (except Software).

(28)    “Know-How Materials” means those written, electronic, computerized, digital or other similar tangible or intangible media to the extent containing or embodying any SpecCo Licensed Know-How, AgCo Licensed Know-How, SpecCo Licensed Copyrights, AgCo Licensed Copyrights, Licensed Standards or Business Software.

(29)    “Licensed Copyrights” means (i) with respect to the licenses granted to SpecCo hereunder, the AgCo Licensed Copyrights and the Copyrights licensed under Section 2.3(a) hereof, and (ii) with respect to the licenses granted to AgCo hereunder, the SpecCo Licensed Copyrights and the Copyrights licensed under Section 2.3(b) hereof.

(30)    “Licensed Facility” means any facility owned by or operated on behalf of an Authorized User.

(31)    “Licensed IP” means (i) with respect to the licenses granted to SpecCo or the SpecCo Licensees, as applicable, hereunder, the AgCo Licensed IP, the AgCo Licensed Standards, and the Business Software Controlled by AgCo or any of its Affiliates, and (ii) with respect to the licenses granted to AgCo or the AgCo Licensees, as applicable, hereunder, the SpecCo Licensed IP, the SpecCo Licensed Standards, and the Business Software Controlled by SpecCo or any of its Affiliates.

(32)    “Licensed Know-How” means (i) with respect to the licenses granted to SpecCo or the SpecCo Licensees, as applicable, hereunder, the AgCo Licensed Know-How and the Know-How licensed under Section 2.3(a) hereof, and (ii) with respect to the licenses granted to AgCo or the AgCo Licensees, as applicable, hereunder, the SpecCo Licensed Know-How and the Know-How licensed under Section 2.3(b) hereof.

(33)    “Licensed Patents” means (i) with respect to the licenses granted to SpecCo or the SpecCo Licensees, as applicable, hereunder, the AgCo Licensed Patents, and (ii) with respect to the licenses granted to AgCo or the AgCo Licensees, as applicable hereunder, the SpecCo Licensed Patents.

(34)    “Licensed Standards” means (i) with respect to the licenses granted to SpecCo or the SpecCo Licensees, as applicable, hereunder, the AgCo Licensed Standards and (ii) with respect to the licenses granted to AgCo or the AgCo Licensees, as applicable hereunder, the SpecCo Licensed Standards.

(35)    “Licensee” means (i) the relevant AgCo Licensee with respect to the SpecCo Licensed IP and the SpecCo Licensed Standards, and AgCo and its applicable Affiliates with respect to the Business Software Controlled by SpecCo or any of its Affiliates hereunder, and (ii) the relevant SpecCo Licensees with respect to the AgCo Licensed IP and the AgCo Licensed Standards, and SpecCo and its applicable Affiliates with respect to the Business Software Controlled by AgCo or any of its Affiliates hereunder.

 

5


(36)    “Licensor” means (i) the AgCo Licensors with respect to the AgCo Licensed IP and the AgCo Licensed Standards, and AgCo with respect to the Business Software Controlled by AgCo or any of its Affiliates, and (ii) the SpecCo Licensors with respect to the SpecCo Licensed IP and the SpecCo Licensed Standards, and SpecCo with respect to the Business Software Controlled by SpecCo or any of its Affiliates.

(37)    “Merger Time” means the effective time of the mergers of E. I. du Pont de Nemours and Company and the Dow Chemical Company with wholly owned subsidiaries of DowDuPont, Inc.

(38)    “Notifying Party” has the meaning set forth in Section 2.5(a).

(39)    “Personnel” means, with respect to a Party or its Affiliates, such Party’s or Affiliate’s employees, officers, agents, consultants, and contractors, and any other Person over whom such Party or Affiliate exercises control.

(40)    “Receiving Party” has the meaning set forth in Section 2.5(a).

(41)    “Regulatory Data” means any and all regulatory data (including studies, data, raw data, efficacy data, reports, physical samples, reviews (including business risk reviews), opinions, self-GRAS determinations, information or other compliance requirements, including safety, risk and exposure assessments and modeling for product contamination or impurity issues), in written, electronic, computerized, digital, or other tangible or intangible media, actually submitted to, or maintained to support a submission to (whether submitted or not), a Governmental Entity or a Third Party to seek, obtain or maintain a Governmental Approval or demonstrate regulatory compliance.

(42)    “Requesting Party” has the meaning set forth in Section 2.11(a).

(43)    “Seeds and Beads IP” means all Intellectual Property expressly identified on Schedules C and D as relating to “seeds and beads”.

(44)    “Software” means all computer programs (whether in source code, object code, or other form), software implementations of algorithms, and related documentation, including flowcharts and other logic and design diagrams, technical, functional and other specifications, and user and training materials related to any of the foregoing.

(45)    “SpecCo Field” means the field of the Specialty Products Business and natural evolutions thereof.

(46)    “SpecCo Licensed Copyrights” means any and all Copyrights to the extent Controlled by SpecCo or any of its Affiliates, and Used in the Agriculture Business, as of the Effective Date, including the Copyrights set forth on Schedule F. Notwithstanding the foregoing, SpecCo Licensed Copyrights expressly exclude any and all (i) Know-How, (ii) IT Assets and (iii) Excluded IP.

(47)    “SpecCo Licensed Engineering Standards” means Engineering Standards (including as set forth on Schedule E(iii)), each, to the extent both (i) owned by SpecCo or any of its Affiliates, or with respect to which SpecCo or any of its Affiliates has the right to grant the license or other rights granted to AgCo hereunder without payment obligations to any Third Party, as of the Effective Date and (ii) that is actually used by AgCo or its Affiliates in the

 

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conduct of the Agriculture Business as of the Effective Date. Notwithstanding the foregoing, the SpecCo Licensed Engineering Standards shall expressly exclude (i) Regulatory Data, (ii) Governmental Approvals, (iii) CRISPR Technology, (iv) TMODs IP, (v) Trademarks, and (vi) the Intellectual Property set forth on Schedule A.

(48)    “SpecCo Licensed IP” means the SpecCo Licensed Patents, SpecCo Licensed Know-How and SpecCo Licensed Copyrights.

(49)    “SpecCo Licensed Know-How” means any and all Know-How to the extent Controlled by SpecCo or any of its Affiliates, and Used in the Agriculture Business, as of the Effective Date, including the Know-How set forth on Schedule G. Notwithstanding the foregoing, SpecCo Licensed Know-How expressly excludes any and all (i) IT Assets and (ii) Excluded IP.

(50)    “SpecCo Licensed Patents” means any and all (i) Patents set forth on Schedule H to the extent Controlled by SpecCo or any of its Affiliates as of the Effective Date, (ii) Patents to the extent such Patents Cover any SpecCo Licensed Know-How and are Controlled by SpecCo or any of its Affiliates following the Effective Date and (iii) to the extent Controlled by SpecCo or any of its Affiliates as of or following the Effective Date, continuations, divisionals, renewals, continuations-in-part, patents of addition, restorations, extensions, supplementary protection certificates, reissues and re-examinations of, and all other Patents that claim priority to, any Patents described in either of the foregoing subsections (i) or (ii), and foreign equivalents thereof, in each case to the extent the claims are supported by any Patents described in either of the foregoing subsections (i) or (ii) (but in all cases expressly excluding any and all Excluded IP).

(51)    “SpecCo Licensed SHE Standards” means the DuPont Safety, Health, and Environmental Standards (including as set forth on Schedule E(iv)), each, to the extent both (i) owned by SpecCo or any of its Affiliates, or with respect to which SpecCo or any of its Affiliates has the right to grant the license or other rights granted to AgCo hereunder without payment obligations to any Third Party, as of the Effective Date and (ii) that is actually used by AgCo or its Affiliates in the conduct of the Agriculture Business as of the Effective Date. Notwithstanding the foregoing, the SpecCo Licensed SHE Standards shall expressly exclude (i) Regulatory Data, (ii) Governmental Approvals, (iii) CRISPR Technology, (iv) TMODS IP, (v) Trademarks, and (vi) the Intellectual Property set forth on Schedule A.

(52)    “SpecCo Licensed Standards” means the SpecCo Licensed SHE Standards and the SpecCo Licensed Engineering Standards.

(53)    “SpecCo Licensees” means (a) PM Taiwan, Inc., with respect to the licenses granted hereunder by Pioneer Hi-Bred International, Inc., and (b) SP Holding IB, Inc., Specialty Products N&H, Inc., DuPont Electronics, Inc., DuPont Safety & Construction, Inc., and DuPont Polymers, Inc., with respect to licenses granted hereunder by E.I. du Pont de Nemours and Company.

(54)    “SpecCo Licensors” means PM Taiwan, SP Holding IB, Inc., Specialty Products N&H, Inc., DuPont Electronics, Inc., DuPont Safety & Construction, Inc., and DuPont Polymers, Inc.

(55)    “Sublicensee” has the meaning set forth in Section 2.6(a).

 

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(56)    “Term” has the meaning set forth in Section 8.1.

(57)    “Third Party” means any Person other than AgCo, SpecCo, and their respective Affiliates.

(58)    “Third Party Infringement” means (a) any Third Party activities that constitute, or would reasonably be expected to constitute, an infringement, misappropriation or other violation within the field for which Licensee has been granted a license hereunder of any Licensed IP or (b) any Third Party allegations of invalidity or unenforceability of any Licensed IP.

(59)    “Third Party Payments” means any and all obligations on the part of Licensor or its Affiliates to pay royalties, sublicense fees, milestones or other amounts to Third Parties pursuant to Contracts existing as of the Effective Date (or, in the case of Wrong Pockets Patents, Contracts existing as of the date of the Wrong Pockets Notice) to which Licensor or any of its Affiliates is a party or is otherwise bound, in each case to the extent that such obligation to pay arises from, or is a result of the grant to or exercise by Licensee or any Sublicensees of, any license, sublicense or other right to practice granted hereunder.

(60)    “TMODS License Agreement” means that certain DuPont TMODS Dynamic Process Simulation Software Agreement entered into by and between AgCo and SpecCo, dated as of the Effective Date.

(61)    “Umbrella Secrecy Agreement” means the Umbrella Secrecy Agreement, dated as of the Effective Date, between SpecCo, AgCo and the other signatories thereto.

(62)    “Used” means, with respect to the applicable Patent, Copyright or Know-How, that, as of the Effective Date, (i) such Intellectual Property is actually used, or (ii) (1) there is a bona fide plan and intention to use such Intellectual Property with a product that is expected to be commercially launched within eight and one half (8.5) years of the Effective Date or that is set forth on Schedule J, and (2) senior management has agreed to or approved, in writing, a capital investment or commitment to allocate resources or man-hours to implement such plan and intention, in each case in respect of the foregoing subsections (i) and (ii), as established by contemporaneous written records created in the ordinary course of business (which records shall be in a form consistent with the form that actual use, or similar plans and approvals, as applicable, were documented by the applicable Party (or its predecessors in interest) prior to the Merger Time).

(63)    “Wrong Pockets Notice” shall have the meaning set forth in Section 2.5(a).

(64)    “Wrong Pockets Patent” shall have the meaning set forth in Section 2.5(c).

Section 1.2    References; Interpretation. For the purposes of this Agreement, (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, Exhibits and Schedules to this Agreement unless otherwise specified; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) references to “written” or “in writing” include in electronic form;

 

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(h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (i) the Parties have each participated in the negotiation and drafting of this Agreement and, except as otherwise stated herein, if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (j) a reference to any Person includes such Person’s successors and permitted assigns; (k) any reference to “days” means calendar days unless Business Days are expressly specified; (l) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; (m) any statute defined or referred to herein means such statute as from time to time amended, modified or supplemented, unless otherwise specifically indicated; (n) the use of the phrases “the date of this Agreement”, “the date hereof”, “of even date herewith” and terms of similar import shall be deemed to refer to the date set forth in the preamble to this Agreement; (o) the phrase “ordinary course of business” shall be deemed to be followed by the words “consistent with past practice” whether or not such words actually follow such phrase; (p) where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning; and (q) any consent given by any Party pursuant to this Agreement shall be valid only if contained in a written instrument signed by such Party. Unless the context requires otherwise, references in this Agreement to “SpecCo” shall also be deemed to refer to the applicable member of the SpecCo Group, references to “AgCo” shall also be deemed to refer to the applicable member of the AgCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by SpecCo or AgCo shall be deemed to require SpecCo or AgCo, as the case may be, to cause the applicable members of the SpecCo Group or the AgCo Group, respectively, to take, or refrain from taking, any such action.

ARTICLE II

GRANTS OF RIGHTS

Section 2.1    Licenses to SpecCo of AgCo Licensed IP.

(a)    Non-Exclusive License to Know-How and Copyrights. Subject to the terms and conditions of this Agreement, the AgCo Licensors hereby grant, and AgCo shall cause its Affiliates to grant, to the relevant SpecCo Licensees an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section 2.6), transferable (subject to Section 10.2), worldwide, non-exclusive license in, to and under the AgCo Licensed Know-How and the AgCo Licensed Copyrights for any and all uses in the SpecCo Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the applicable AgCo Licensed IP set forth in this Section 2.1(a) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the SpecCo Field, and use, practice, copy, perform, render, develop, improve, display, redistribute, modify, and make derivative works of such AgCo Licensed IP, within the SpecCo Field.

(b)    Non-Exclusive License to Patents. Subject to the terms and conditions of this Agreement, the AgCo Licensors hereby grant to the relevant SpecCo Licensees, an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section 2.6), transferable (subject to Section 10.2), worldwide, non-exclusive license in, to and under the AgCo Licensed Patents for any and all uses in the SpecCo Field. For clarity, subject to

 

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the terms and conditions of this Agreement, the license in, to and under the AgCo Licensed Patents set forth in this Section 2.1(b) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the SpecCo Field.

Section 2.2    Licenses to AgCo of SpecCo Licensed IP.

(a)    Non-Exclusive License to Know-How and Copyrights. Subject to the terms and conditions of this Agreement, the SpecCo Licensors hereby grant, and SpecCo shall cause its Affiliates to grant, to the relevant AgCo Licensees an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section 2.6), transferable (subject to Section 10.2), worldwide, non-exclusive license in, to and under the SpecCo Licensed Know-How and SpecCo Licensed Copyrights for any and all uses in the AgCo Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the applicable SpecCo Licensed IP set forth in this Section 2.2(a) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the AgCo Field, and use, practice, copy, perform, render, develop, improve, display, redistribute, modify, and make derivative works of such SpecCo Licensed IP, within the AgCo Field.

(b)    Non-Exclusive License to Patents. Subject to the terms and conditions of this Agreement, the SpecCo Licensors hereby grant to the relevant AgCo Licensees, an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section 2.6), transferable (subject to Section 10.2), worldwide, non-exclusive license in, to and under the SpecCo Licensed Patents for any and all uses in the AgCo Field. For clarity, subject to the terms and conditions of this Agreement, the license in, to and under the SpecCo Licensed Patents set forth in this Section 2.2(b) shall include the right to practice the same to make (including have made), use, sell, offer for sale, import, and export any and all products within the AgCo Field.

Section 2.3    Licenses to Standards.

(a)    Subject to the terms and conditions of this Agreement, the applicable AgCo Licensors hereby grant, and AgCo shall cause its Affiliates to grant, to the relevant SpecCo Licensees, an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section 2.6), transferable (subject to Section 10.2), non-exclusive license to use the AgCo Licensed Standards at the SpecCo Licensed Facilities solely in connection with the conduct of the Specialty Products Business by SpecCo or any of its Affiliates. Without limiting the foregoing, the grant in this Section 2.3 includes a right and license to use, reproduce, distribute, display, perform, adapt, modify and create derivative works of the AgCo Licensed Standards by and among the Authorized Users only for the licensed uses set forth in this Section 2.3.

(b)    Subject to the terms and conditions of this Agreement, the applicable SpecCo Licensors hereby grant, and SpecCo shall cause its Affiliates to grant, to the relevant AgCo Licensees, an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section 2.6), transferable (subject to Section 10.2), non-exclusive license to use the SpecCo Licensed Standards at the AgCo Licensed Facilities solely in connection with the conduct of the Agriculture Business by AgCo or any of its Affiliates. Without limiting the foregoing, the grant in this Section 2.3 includes a right and license to use, reproduce, distribute, display, perform, adapt, modify and create derivative works of the SpecCo Licensed Standards by and among the Authorized Users only for the licensed uses set forth in this Section 2.3.

 

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(c)    Notwithstanding anything to the contrary herein, neither Licensor nor any of its Affiliates shall have any obligation with respect to training Licensee or any of its Affiliates to implement or use the Licensed Standards. For clarity, the Licensed Standards shall not be subject to any updates by Licensor or its Affiliates (even if Licensor or its Affiliates update the same for their own use). The Parties acknowledge that from time to time applicable Law may conflict with and supersede aspects of Licensed Standards and Licensor shall have no obligation to Licensee with respect thereto in such event. For clarity, as between the Parties, SpecCo shall own all Intellectual Property (including, for clarity, Copyrights) in any DuPont Safety, Health and Environmental Standards or Engineering Standards that constitute Intellectual Property included in the Specialty Products Assets, and AgCo shall own all Intellectual Property (including, for clarity, Copyrights) in any DuPont Safety, Health and Environmental Standards or Engineering Standards that constitute Intellectual Property included in the Agriculture Assets.

Section 2.4    Business Software License. Subject to the terms and conditions of this Agreement, Licensor (or its Affiliate, as applicable) hereby grants, and shall cause its Affiliates to grant, to Licensee (or its Affiliate, as applicable) an irrevocable, royalty-free, fully paid-up, sublicensable (to the extent permitted in Section 2.6), transferable (subject to Section 10.2), worldwide, non-exclusive license to its Business Software for use solely in connection with, if such Licensee is AgCo, the Agriculture Business or, if such Licensee is SpecCo, the Specialty Products Business.

Section 2.5    Wrong Pockets.

(a)     A Party (a “Notifying Party”) shall have the right to provide prompt written notice (a “Wrong Pockets Notice”) to the other Party (a “Receiving Party”), including in response to an inquiry from the Receiving Party, if, following the Effective Date:

(i)    a Notifying Party identifies a Patent Controlled by the other Party as of the Effective Date that is not included in the Licensed Patents licensed to such Notifying Party, and such Notifying Party reasonably believes that such Patent was Used in the Agriculture Business or the Specialty Products Business, as applicable, as of the Effective Date; or

(ii)    a Notifying Party identifies a Use by such Notifying Party of a Licensed Patent (including, for clarity, any Wrong Pockets Patent) that is not within such Notifying Party’s licensed field of use hereunder for such Licensed Patent, and such Notifying Party reasonably believes that the Use of such Licensed Patent as of the Effective Date was within the Agriculture Business (if AgCo is the Notifying Party) or the Specialty Products Business (if SpecCo is the Notifying Party).

(b)    Each Wrong Pockets Notice shall both identify the applicable Patent and describe the Use thereof in the Agriculture Business (if the Notifying Party is AgCo), or the Specialty Products Business (if the Notifying Party is SpecCo), as of the Effective Date.

(c)    Unless otherwise agreed in writing by the Parties, if a Notifying Party provides a Wrong Pockets Notice in accordance with Section 2.5(a), the Notifying Party shall, within sixty (60) days of providing the Wrong Pockets Notice, demonstrate to the

 

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Receiving Party by clear and convincing evidence (the “Evidentiary Requirement”) that the identified Patent was Used in the manner identified in the Wrong Pockets Notice within the Agriculture Business (if the Notifying Party is AgCo) or the Specialty Products Business (if the Notifying Party is SpecCo) as of the Effective Date (such evidence, the “Demonstration of Use”). The Receiving Party shall notify the Notifying Party in writing within thirty (30) days of receipt of the Demonstration of Use whether it reasonably believes in good faith that the Demonstration of Use satisfies the Evidentiary Requirement. Solely to the extent (with respect to the Patent and Use identified in the applicable Wrong Pockets Notice) that the Demonstration of Use satisfies the Evidentiary Requirements (whether determined by the Receiving Party in accordance with the foregoing, or in accordance with Section 9.1), or if the Receiving Party fails to provide the Notifying Party with a response regarding whether the Demonstration of Use satisfies the Evidentiary Requirements within the applicable thirty (30) day period in accordance with the foregoing, such Patent shall be licensed to the Notifying Party for such Use (in the case of a Wrong Pockets Notice described in Section 2.5(a)(i)) (each such Patent, a “Wrong Pockets Patent”), or such Use shall be included in the Notifying Party’s field of use for such Patent (in the case of a Wrong Pockets Notice described in Section 2.5(a)(ii)), as applicable, in each case, as further described in the following subsections (i) and (ii).

(i)    Subject to the foregoing in this Section 2.5(c), unless otherwise agreed in writing by the Parties, with respect to a Wrong Pockets Notice described in Section 2.5(a)(i), each Patent identified in such notice (if the Demonstration of Use therefor satisfies the Evidentiary Requirement or the Receiving Party fails to provide the Notifying Party with a response in accordance with this Section 2.5(c)) shall be a SpecCo Licensed Patent if AgCo is the Notifying Party or an AgCo Licensed Patent if SpecCo is the Notifying Party, and for clarity, the license to the Notifying Party therefor shall be non-exclusive and the field for which it is licensed pursuant to this Agreement (which, notwithstanding anything to the contrary herein, shall be deemed to be the AgCo Field for such Patent if AgCo is the Notifying Party and the SpecCo Field for such Patent if SpecCo is the Notifying Party) shall be limited solely to the Use made by such Notifying Party and its Affiliates as of the Effective Date (to the extent that the Demonstration of Use therefor satisfies the Evidentiary Requirement) and natural evolutions thereof, subject to the terms and conditions of any licenses and other rights granted by or on behalf of Licensor or any of its Affiliates to any Third Parties with respect to such Patent prior to the date of the Wrong Pockets Notice.

(ii)    Subject to the foregoing in this Section 2.5(c), unless otherwise agreed in writing by the Parties, with respect to a Wrong Pockets Notice described in Section 2.5(a)(ii), each Use for a Licensed Patent identified in the Wrong Pockets Notice (to the extent that Demonstration of Use therefor satisfies the Evidentiary Requirement or the Receiving Party fails to provide the Notifying Party with a response in accordance with this Section 2.5(c)) and natural evolutions thereof shall be deemed to be in the AgCo Field for such Licensed Patent if AgCo is the Notifying Party and in the SpecCo Field for such Licensed Patent if SpecCo is the Notifying Party and the license granted to such field shall be nonexclusive; provided that the rights with respect to such Use retained by the Notifying Party shall be subject to the terms and conditions of any licenses and other rights granted by or on behalf of the Receiving Party or any of its Affiliates to any Third Parties with respect to such Patent prior to the date of the Wrong Pockets Notice.

 

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(d)    Notwithstanding anything to the contrary herein, unless otherwise agreed upon by the Parties, each Party shall only have two (2) years after the Effective Date to provide a Wrong Pockets Notice pursuant to Section 2.5(a) to the other Party; provided that, in the case of Section 2.5(a)(i), with respect to Patent applications filed prior to the Effective Date, such period shall extend until the date that is six (6) months after the publication of such Patent application if the expiration of such six (6) month period occurs after such two (2) year period expires.

(e)    Notwithstanding the foregoing Sections 2.5(a) through (d), unless and only to the extent that the Receiving Party provides its prior written consent (which the Receiving Party may withhold in its sole discretion), in the event that the Parties expressly discussed prior to the Effective Date that:

(i)    any Patent would not be included in the Notifying Party’s Licensed Patents in the case of a Wrong Pockets Notice described in Section 2.5(a)(i), such Patent shall not be included in the Notifying Party’s Licensed Patents (provided that, in determining that such Patent would not be a Licensed Patent hereunder, the Parties discussed prior to the Effective Date the Use identified in the Wrong Pockets Notice for such Patent); or

(ii)    any Use would not be included in the Notifying Party’s field of use for a specific Licensed Patent in the case of a Wrong Pockets Notice described in Section 2.5(a)(ii) (as applicable), such Use shall not be included in the Notifying Party’s licensed field of use for such Patent.

(f)     Notwithstanding the foregoing Sections 2.5(a) through 2.5(e), those patents set forth on Schedule K are specifically excluded from and are not subject to a Wrong Pockets Notice.

Section 2.6    Sublicenses.

(a)    Licensee may sublicense the license and rights granted to Licensee under Sections 2.1 through 2.4 (as applicable) to (i) its Affiliates, (ii) in the case of all Licensed IP other than the Seeds and Beads IP, Third Parties in connection with the operation of the business of Licensee or its Affiliates, but not for the independent use of any such Third Party, including distributors that need to practice the applicable Intellectual Property to provide ordinary course distribution services to Licensee and its Affiliates; provided that, with respect to the Licensed Standards, sublicensing to such Third Parties shall be solely for such Third Parties to provide services to the Specialty Products Business or Agriculture Business (as applicable) in the ordinary course at any or all Licensed Facilities (but not for the independent use of such Third Party), (iii) in the case of the Seeds and Beads IP, to Third Parties (1) who are bona fide collaborators or partners of Licensee or any of its Affiliates, or (2) in connection with which sublicense Licensee or any of its Affiliates is also granting a license or other rights to any other Intellectual Property for seed coating and seed treatment technology owned by or licensed to Licensee or any of its Affiliates, in each case (1) and (2), for use in connection with the practice of seed coating and seed treatment technology, and (iv) with the prior written consent of Licensor, other Third Parties (each such Affiliate or Third Party, a “Sublicensee”).

 

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(b)    Each sublicense granted by a Licensee under the license granted to such Licensee in Sections 2.1 through 2.4 shall be granted pursuant to an agreement that (i) is subject to, and consistent with, the terms and conditions of this Agreement and includes provisions at least as protective of Licensor and its Affiliates as the provisions of this Agreement (except that such sublicense shall not be required to provide rights for Licensor to audit Sublicensee in accordance with, and subject to, Section 2.12 (1) if the sublicense is granted to an Affiliate or (2) with respect to sublicenses of Licensed Know-How, Licensed Copyrights or Business Software where the primary purpose of such arrangement with sublicensee is not to grant access to such Licensed Know-How, Licensed Copyrights or Business Software), (ii) to the extent with respect to Licensed Patents or AgCo Licensed Standards and if Sublicensee is a Third Party, provides that Licensor shall be an intended beneficiary thereunder with the right of direct enforcement against the Sublicensee (including, for clarity, with respect to the audit rights set forth in Section 2.12 to the extent applicable), and (iii) to the extent with respect to Licensed Patents or AgCo Licensed Standards, is in writing if the Sublicensee is a Third Party. For clarity, granting a sublicense shall not relieve Licensee of any obligations hereunder and Licensee shall cause each of its Sublicensees to comply, and shall remain responsible for its Sublicensees’ compliance, with the terms hereof applicable to Licensee.

Section 2.7    Third Party Rights.

(a)    Notwithstanding anything to the contrary herein, the terms and conditions of this Agreement (including the licenses granted under Sections 2.1 through 2.4 are subject to any and all rights of and obligations owed to any Third Parties with respect to the Licensed IP under any Contracts existing as of the Effective Date (or in the case of any Wrong Pockets Patents, existing as of or prior to the date of the Wrong Pockets Notice) to which Licensor or any of its Affiliates is a party or is otherwise bound, and to the extent that, as a result of such rights or obligations, any license or other rights granted hereunder: (i) may not be granted without the consent of or payment of a fee or other consideration; or (ii) will cause Licensor or any of its Affiliates to be in breach of any of its or their obligations to any Third Party, the applicable licenses and other rights granted hereunder shall only be granted to the extent such consent has been obtained or such fee or other consideration has been paid. The Parties shall use commercially reasonable efforts to obtain any such consents to the extent required to grant Licensee the rights granted hereunder; provided that, (i) the foregoing shall not require the Parties to duplicate any obligations undertaken under the Separation Agreement and (ii) notwithstanding anything herein to the contrary, Licensor shall have no obligation to agree to or make any payments or other concessions, except as mutually agreed in writing between the Parties, or participate in any act or omission that will cause Licensor to be in breach of its or their obligations to any Third Party. Notwithstanding the foregoing, Licensee shall not be deemed in breach of this Section 2.7(a) only if, and for such time, Licensee is not aware of such rights of or obligations owed to such Third Party.

(b)    Notwithstanding anything to the contrary herein, Third Party Payments, if any, with respect to the Licensed IP shall be Licensee’s sole responsibility. Licensee shall pay the Third Party Payments directly to the applicable Third Party; provided that if such Third Party does not permit Licensee to pay such Third Party Payments to such Third Party directly (whether pursuant to the applicable Contract or otherwise) after the Parties have used commercially reasonable efforts to permit the Licensee to pay the Third Party directly, the Parties shall cooperate in good faith to ensure that such Third Party Payments are paid by Licensee to Licensor in a manner that ensures Licensor’s payment thereof is in compliance with the obligations to the applicable Third Party. Such cooperation shall include Licensee (i)

 

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preparing and providing Licensor with reasonably detailed written reports reflecting calculation of the applicable Third Party Payments and any other information required by the applicable Third Parties and (ii) paying Licensor the applicable Third Party Payments by wire transfer of immediately available funds to the bank account designated by Licensor in writing no less than ten (10) days prior to the due date of such payment pursuant to the terms of the applicable Contract. If either Party becomes aware of any Third Party Payments, it shall reasonably promptly notify the other Party in writing, and notwithstanding anything to the contrary in this Section 2.7(b), Licensee shall not be deemed in breach of this Section 2.7(b) if, and for such time, Licensee is not aware of the applicable Third Party Payments; provided that, upon learning of such Third Party Payments, Licensee shall promptly pay such Third Party Payments to the applicable Third Party directly (or such other Person as reasonably directed by Licensor) to the extent such Third Party Payments are past due.

(c)    Certain agreements subject to Subsections (a) and (b) hereof are set forth on Schedule L hereto.

Section 2.8    No Use Outside Field. Each Party shall not, and shall cause its Affiliates to not, as Licensee, exercise rights under any Licensed IP except to the extent expressly licensed hereunder or expressly agreed upon in advance in writing by Licensor.

Section 2.10    Reservation of Rights. Each Party reserves its and its Affiliates’ rights in and to all Intellectual Property that is not expressly licensed or otherwise granted hereunder. Without limiting the foregoing, this Agreement and the licenses and rights granted herein do not, and shall not be construed to, confer any rights upon either Party, its Affiliates, or its Sublicensees by implication, estoppel, or otherwise as to any of the other Party’s Intellectual Property (including, for clarity, any Excluded IP, except to the extent expressly licensed under Section 2.3).

Section 2.11    Retention and Transfer of Licensed Know-How.

(a)    If AgCo or SpecCo (the “Requesting Party”) reasonably believes that any Know-How Materials are in possession or control of the other Party (such Party, the “Holding Party”) or any of its Affiliates and such Know-How Materials are not in the possession or control of the Requesting Party or any of its Affiliates, and the Requesting Party makes a request in writing during the two (2) year period following the Effective Date that the Holding Party deliver the Know-How Materials to the Requesting Party, the Holding Party shall review such request and, to the extent in the possession or control of the Holding Party or any of its Affiliates and, for purposes of Business Software only, is reasonably accessible to the Holding Party for purposes of transfer to the Requesting Party (provided that, subject to the below provisos, such accessibility shall not take into account whether such Business Software is integrated with other Software), deliver the Know-How Materials to the Requesting Party as promptly as reasonably practicable and in any event within thirty (30) Business Days of receiving such request from the Requesting Party; provided that, the Holding Party shall notify the Requesting Party within such thirty (30) Business Day period if it reasonably believes that such request requires a longer period of review to determine if the request concerns SpecCo Licensed Know-How, AgCo Licensed Know-How, SpecCo Licensed Copyrights, AgCo Licensed Copyrights, AgCo Licensed Standards or Business Software (as applicable) or to locate the applicable Know-How Materials, and the Holding Party shall take all reasonable steps to review and provide such Know-How Materials (as applicable) within an additional sixty (60) days of expiration of such initial thirty (30) Business Day period; provided, further, with respect

 

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to any Business Software requested by a Requesting Party hereunder that is integrated with other Software, the Parties shall discuss in good faith a reasonable deadline in lieu of the foregoing timing for delivering any such Business Software to the Requesting Party, and the Requesting Party agrees that it shall bear all reasonable out-of-pocket costs and expenses of preparing such Software for delivery subject to the Requesting Party’s advance approval of such costs; provided, further, to the extent the request does not constitute SpecCo Licensed Know-How, SpecCo Licensed Copyrights or Business Software (if the Requesting Party is AgCo) or AgCo Licensed Know-How, AgCo Licensed Copyrights, AgCo Licensed Standards, or Business Software (if the Requesting Party is SpecCo), the Holding Party shall not be required to deliver such Know-How Materials to the Requesting Party, but shall provide the Requesting Party with an explanation in reasonable detail of the basis of such determination and shall make itself and its relevant Affiliates available to discuss in good faith with the Requesting Party.

(b)    For clarity, and notwithstanding anything to the contrary, in no event shall Licensor or its Affiliates be required hereunder to provide any written, electronic, computerized, digital or other tangible or intangible media to the extent comprising, containing, reflecting or embodying any SpecCo Licensed Know-How, AgCo Licensed Know-How, SpecCo Licensed Copyrights, AgCo Licensed Copyrights, AgCo Licensed Standards, or Business Software to Licensee, that has already been provided to, or is in the possession of, Licensee or its Affiliates. For the avoidance of doubt, nothing in this Agreement shall be interpreted as requiring that Licensor or any of its Affiliates transfer or grant access to tangible biological material to Licensee or any of its Affiliates.

Section 2.12    Audit. Not more than once per year, or at any time a Party has a reasonable, good faith belief that the other Party has materially breached this Agreement, or (to the extent with respect to this Agreement) the Umbrella Secrecy Agreement, and provides written notice to such other Party as well as detailed documentation or other evidence of such alleged breach, upon thirty (30) days’ advance written notice, such first Party may cause an independent Third Party auditor that is reasonably acceptable to the audited Party and subject to written confidentiality obligations that are reasonably acceptable to the audited Party to audit, during regular business hours and in a manner that complies with the reasonable building and security requirements of the audited Party and its Affiliates, the books, records and facilities of such audited Party and its Affiliates to the extent reasonably necessary to determine such audited Party’s and its Affiliates’ compliance with this Agreement or (to the extent with respect to this Agreement) the Umbrella Secrecy Agreement. Any audit conducted under this Section 2.12 shall not interfere unreasonably with the operations of such audited Party or any of its Affiliates. The Party requesting the audit shall pay the costs of conducting such audit; provided that if such audit reveals a material breach of this Agreement or (to the extent with respect to this Agreement), the Umbrella Secrecy Agreement, the audited Party shall pay all such costs. Upon conclusion of the audit, the Third Party auditor shall furnish to both Parties a report stating only its findings during such audit as to whether or not the audited Party is in compliance with this Agreement, and if such audit has revealed a breach, shall include no more information than is reasonably necessary to provide the basis for such finding. All information learned or obtained from such audit shall be deemed Confidential Information for purposes of this Agreement. Notwithstanding anything to the contrary in this Section, the audited Party may require that the Third Party conducting the audit pursuant to this Section 2.12 be accompanied by the audited Party’s (and in the case of an audit of its Affiliates or Sublicensees, its Affiliate’s or its Sublicensee’s, respectively) representatives at all times during such audit. For clarity, Licensee shall cause its Affiliates that are Sublicensees to comply with this Section 2.12.

 

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ARTICLE III

OWNERSHIP

Section 3.1    Ownership. As between the Parties (including their respective Affiliates), (a) AgCo acknowledges and agrees that SpecCo and its Affiliates own the SpecCo Licensed IP, the SpecCo Licensed Standards, and the Business Software licensed to AgCo under Section 2.4, (b) SpecCo acknowledges and agrees that AgCo and its Affiliates own the AgCo Licensed IP, the AgCo Licensed Standards, and the Business Software licensed to SpecCo under Section 2.4, and (c) each Party acknowledges and agrees that (i) except to the extent expressly provided herein, neither Party, nor its Affiliates or its Sublicensees, will acquire any ownership rights in the Licensed IP licensed to such Party hereunder, and (ii) such Party shall not, and shall cause its Affiliates and its Sublicensees to not, represent or make any claim that they have ownership of any right, title or interest in any such Licensed IP. To the extent that a Party, its Affiliates or its Sublicensees (as applicable) is assigned or otherwise obtains ownership of any right, title or interest in or to any Licensed IP in contravention of this Section 3.1, such Party hereby assigns, and shall cause its Affiliates and Sublicensees (as applicable) to assign, to the other Party (or to such Affiliate or Third Party designated by such other Party in writing) all such right, title and interest.

ARTICLE IV

PROSECUTION AND MAINTENANCE

Section 4.1    Responsibility and Cooperation.

(a)    Subject to Section 4.1(b), as between the Parties, Licensor shall have sole responsibility (but not the obligation) for filing, prosecuting and maintaining all Patents within the Licensed IP with respect to which such Licensor or any of its Affiliates is granting a license to Licensee hereunder. Licensor shall be solely responsible for all costs and expenses incurred in connection with such filing, prosecution and maintenance.

(b)    If, during the Term, Licensor decides to abandon, or otherwise allow to lapse, any issued AgCo Licensed Patent (if AgCo is the Licensor) or SpecCo Licensed Patent (if SpecCo is the Licensor) or published application therefor (the “First Abandoned Patent”), and substantially simultaneously decides to abandon, or otherwise allow to lapse all foreign equivalents thereof and all other Patents that claim priority to such First Abandoned Patent in all jurisdictions in which such Patents are registered or applied-for (the “Abandoned Patent Family”), Licensor shall use commercially reasonable efforts to notify Licensee of such decision at least thirty (30) days prior to any deadline for taking action to avoid abandonment (or other loss of rights) of such First Abandoned Patent. Upon receipt of such notice, Licensee shall have the right to elect to assume responsibility for prosecution and maintenance of any or all Patents in such Abandoned Patent Family (the “Assumed Patents”) solely by providing Licensor with written notice of such election within thirty (30) days (or such shorter period requested where the final deadline is in less than thirty (30) days) following such notice from Licensor, and Licensor shall either: (i) withdraw its decision to abandon and continue prosecuting or maintaining the Assumed Patents at its expense; or (ii) assign, and hereby does assign, its entire right, title, and interest in all Assumed Patents to Licensee at Licensee’s sole cost and expense (provided that, for clarity, Licensee shall not be required to pay any additional consideration to Licensor in exchange for such assignment, but shall be required to reimburse Licensor for its out-of-pocket costs and expenses incurred in connection with assigning such Patents); provided that, Licensor shall not be in breach of the foregoing if Licensor uses commercially reasonable efforts to notify

 

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Licensee of its decision to abandon (or otherwise lose rights) but inadvertently and in good faith fails to so notify Licensee. In the event that Licensor assigns any Assumed Patents to Licensee in accordance with the foregoing clause (ii), such Patents shall no longer be (i) if the Licensor is AgCo, AgCo Licensed Patents and instead shall be SpecCo Licensed Patents, for which the AgCo Field shall be all fields of use, or (ii) if the Licensor is SpecCo, SpecCo Licensed Patents and instead shall be AgCo Licensed Patents, for which the SpecCo Field shall be all fields of use. Notwithstanding anything to the contrary herein, in the event that any Licensed Patent is assigned to Licensee pursuant to this (b), such Licensed Patent shall be subject to the terms and conditions of any licenses and other rights granted by or on behalf of Licensor or any of its Affiliates with respect to such Licensed Patent prior to the date of such assignment (to the extent that such terms and conditions do not conflict with any of the terms hereof), and unless otherwise agreed in writing, the assignee Party may abandon such Patent without notice or obligation of assignment to the other Party.

(c)    For clarity, Licensor’s obligations under Section 4.1(b) do not apply to the (i) filing or validating of any national or regional applications based on any international or regional Patent applications or filings (including any PCT or EPO applications) whether or not designated under such applications or filings, (ii) filing of any Patent application, including the filing of any divisional, continuation or continuation-in-part application, or (iii) maintaining or prosecuting of any unpublished Patent applications. If any Licensed Patent subject to this Section 4.1 is subject to the terms of any Contract existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound whereby a Third Party has the right to elect to assume responsibility for prosecution or maintenance of, or request assignment of, such Licensed Patent, and such Third Party elects not to exercise all such rights in such Licensed Patent, such Licensed Patent shall become subject to the terms of Section 4.1(b), except if Licensor’s grant of such rights to Licensee, or Licensee’s exercise of such rights, would breach any contractual rights or obligations owed to such Third Party or any of its Affiliates.

Section 4.2    No Additional Obligations. For clarity, this Agreement shall not obligate either Party to disclose to the other Party, or maintain, register, monitor, prosecute, pay for or offer to pay for (including by offering remuneration to any inventors), defend, enforce or otherwise manage any Intellectual Property, except to the extent expressly set forth herein.

Section 4.3    Third Party Agreements. For clarity, and notwithstanding anything to the contrary in this Article IV, the Parties’ rights and obligations set forth in this Article IV shall be subject to the terms of any Contracts existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound, subject to the requirements for Licensor to notify Licensee pursuant to Section 2.7.

ARTICLE V

ENFORCEMENT

Section 5.1    Defense and Enforcement.

(a)    Licensors Right. Subject to the remainder of this Section 5.1, as between the Parties, Licensor shall have the sole right, but not the obligation, at its own cost and expense, to control enforcement or defense against any Third Party Infringement of the Licensed IP under which Licensor is granting a license to Licensee hereunder (including by bringing an Action or entering into settlement discussions).

 

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(b)    Licensees Rights. In the case of any Third Party Infringement, Licensee may request (which request Licensor may deny if Licensor reasonably determines that such Licensed IP should not be enforced or defended, and discusses its reasoning therefor with Licensee) that Licensor enforce or defend (as applicable) such Licensed IP (including by bringing an Action or entering into settlement discussions), and if such request is granted, such enforcement or defense (as applicable) shall be controlled by Licensor at Licensee’s sole cost and expense; provided that Licensee must approve in writing of all such costs and expenses in advance, and Licensor shall have no obligation to enforce or defend (as applicable) such Licensed IP in the event that Licensee does not approve of such costs and expenses in any material respect.

(c)    Cooperation. If Licensor brings an Action with respect to any Third Party Infringement or enters into settlement discussions with respect thereto, Licensee shall provide reasonable assistance in connection therewith, at Licensor’s request and Licensee shall be reimbursed for its reasonable out-of-pocket costs and expenses incurred in connection therewith. Licensor shall keep Licensee regularly informed of the status and progress of such enforcement or defense, as applicable, and shall reasonably consider Licensee’s comments in connection with any Action or settlement discussions with respect thereto. Notwithstanding anything to the contrary herein, Licensee may, at its sole discretion and cost and expense, join as a party to any such Action; provided that, if necessary for standing purposes, Licensee shall join such Action upon Licensor’s reasonable request and Licensor shall reimburse Licensee’s reasonable out-of-pocket costs and expenses incurred in connection therewith. Licensee shall have the right to be represented by counsel (which shall act in an advisory capacity only, except for matters solely directed to Licensee) of its own choice in any such Action at its own cost and expense (subject to reimbursement of Licensee’s costs and expenses as described in, and subject to, the immediately preceding sentence). Notwithstanding the foregoing, in the event of enforcement or defense in accordance with Section 5.1(b), Licensee shall be solely responsible for all costs and expenses incurred pursuant to this Section 5.1(c).

(d)    Settlements. Notwithstanding anything to the contrary herein, Licensor shall not, without the prior written consent (not to be unreasonably withheld, conditioned or delayed) of Licensee, settle any Third Party Infringement with respect to any Licensed IP if doing so would give rise to liability or any other obligations of Licensee, its Affiliates or its Sublicensees for which Licensor is unwilling or unable to, or otherwise does not, provide full indemnification.

(e)    Recoveries. Any and all amounts recovered by Licensor in any Action regarding a Third Party Infringement or settlement with respect thereto shall, unless otherwise agreed (including in an agreement in connection with obtaining consent to settlement), be allocated first to reimburse Licensor’s out-of-pocket costs and expenses incurred in connection with such Action or settlement (including its obligations to Licensee pursuant to Section 5.1(c)) and next to the Licensee’s out-of-pocket costs and expenses incurred in connection with such Action or settlement (including, as applicable, in accordance with Section 5.1(b) and 5.1(c)). Any and all remaining amounts recovered shall be retained by Licensor.

(f)    Interferences, etc. Notwithstanding anything to the contrary in Article IV or this Article V, in the event that any Third Party allegations of invalidity or unenforceability of any Patents included in the Licensed IP licensed to Licensee hereunder arise in an opposition, interference, reissue proceeding, reexamination or other patent office proceeding, Article IV shall govern the Parties’ rights and obligations with respect thereto.

 

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Section 5.2    Third Party Agreements. For clarity, and notwithstanding anything to the contrary in this Article V, the Parties’ rights and obligations set forth in this Article V shall be subject to the terms of any Contracts existing as of the Effective Date to which the Licensor or any of its Affiliates is a party or otherwise bound, subject to the requirements for Licensor to notify Licensee pursuant to Section 2.7.

ARTICLE VI

INDEMNIFICATION

Section 6.1    Indemnification.

(a)    Each Party (the “Indemnifying Party”) agrees to indemnify, release, defend and hold harmless the other Party and its Affiliates and its and their directors, officers, agents, and successors (each, an “Indemnitee” and collectively, the “Indemnitees”) from and against any and all Indemnifiable Losses incurred or suffered by any of the Indemnitees, to the extent arising out of, relating to or resulting from (a) breach by the Indemnifying Party of this Agreement; (b) if the Indemnifying Party is the Licensee, use of the Licensed IP hereunder by or on behalf of such Party or its Sublicensees; and (c) if the Indemnifying Party is the Licensor, breach by or on behalf of Licensee, its Affiliates or its Sublicensees of any contractual rights of or contractual obligations owed to any Third Parties with respect to the Licensed IP; provided that, prior to such breach, Licensor or any of its Affiliates is aware, and Licensee and its Affiliates are not aware, of such contractual rights or obligations, in each case (in respect of the foregoing subsections (a) through (c)), except to the extent that such Indemnifiable Losses (i) are subject to indemnification by the other Party pursuant to this Section 6.1 or (ii) arise out of fraud, bad faith, gross negligence or willful misconduct of the other Party or its Affiliates.

(b)    Except for the entitlement to specific performance or other equitable remedy, each solely as contemplated by Section 10.12, the remedies provided in this Section 6.1 shall be deemed the sole and exclusive remedies of the Parties with respect to the subject matter of this Agreement, and the Parties each hereby waive to the extent permitted by applicable Law any other remedy to which they or any of their respective Indemnitees are entitled to hereunder at law or in equity with respect thereto.

Section 6.2    Indemnification Procedures. The indemnification procedures set forth in Sections 8.5 through 8.10 of the Separation Agreement shall apply to the matters indemnified hereunder, mutatis mutandis.

Section 6.3    Disclaimer of Representations and Warranties. EACH PARTY HEREBY ACKNOWLEDGES THAT, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE SEPARATION AGREEMENT OR IN ANY OF THE OTHER ANCILLARY AGREEMENTS, EACH OF AGCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE AGCO GROUP) AND SPECCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE SPECCO GROUP) UNDERSTANDS AND AGREES THAT NEITHER PARTY IS REPRESENTING OR WARRANTING IN ANY WAY UNDER THIS AGREEMENT (INCLUDING WITH RESPECT TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY OR SCOPE OF THE LICENSED IP) AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. EXCEPT AS MAY EXPRESSLY BE SET FORTH IN THE SEPARATION AGREEMENT OR IN ANY OTHER ANCILLARY AGREEMENT, ALL LICENSED IP IS BEING LICENSED ON AN “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS” BASIS.

 

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Section 6.4    Limitation on Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT (INCLUDING THIS ARTICLE VI), EXCEPT WITH RESPECT TO BREACHES OF ARTICLE VII, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AT LAW OR IN EQUITY, AND “LOSSES” SHALL NOT INCLUDE ANY AMOUNTS FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; PROVIDED THAT NOTHING HEREIN SHALL PREVENT ANY INDEMNITEE FROM BEING INDEMNIFIED PURSUANT TO ARTICLE VI FOR ALL COMPONENTS OF AWARDS AGAINST THEM IN ANY THIRD PARTY CLAIM.

ARTICLE VII

CONFIDENTIALITY

Section 7.1    Disclosure and Use Restrictions. The Parties acknowledge and agree that the Umbrella Secrecy Agreement is hereby incorporated into this Agreement, and shall apply to the transactions contemplated by this Agreement, mutatis mutandis. For the avoidance of doubt, Licensee’s material breach of the Umbrella Secrecy Agreement with respect to Confidential Information shall constitute a material breach of this Agreement.

ARTICLE VIII

TERM

Section 8.1    Term. The terms of the licenses and other grants of rights (and related obligations) under this Agreement (the “Term”) shall remain in effect (a) to the extent with respect to the Licensed Patents and Licensed Copyrights, on a Licensed Patent-by-Licensed Patent and Licensed Copyright-by-Licensed Copyright basis, until expiration, invalidation or abandonment of such Licensed Patent or Licensed Copyright (as applicable), (b) to the extent with respect to any Licensed Know-How, until such Licensed Know-How no longer constitutes Confidential Information; provided that, after expiration of the Term with respect to any Licensed Know-How, the licenses granted hereunder to such Know-How shall survive such expiration in perpetuity, and (c) with respect to Business Software and Licensed Standards, in perpetuity.

Section 8.2    Effect of Termination.

(a)    Accrued Rights. Expiration of this Agreement, in part or in its entirety, shall be without prejudice to any rights which shall have accrued to the benefit of either Party prior to such expiration.

(b)    Survival. The following provisions of this Agreement, together with all other provisions of this Agreement that expressly specify that they survive, shall survive expiration of this Agreement, in part or in its entirety: Articles I, III, VI, VII, IX and X and this Section 8.2.

 

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ARTICLE IX

DISPUTE RESOLUTION

Section 9.1    Negotiation and Arbitration. In the event of a controversy, dispute or Action between the Parties arising out of, in connection with, or in relation to this Agreement or any of the transactions contemplated hereby, including with respect to the interpretation, performance, nonperformance, validity or breach thereof, and including any Action based on contract, tort, statute or constitution, including the arbitrability of such controversy, dispute or Action, the procedures as set forth in Article X of the Separation Agreement shall apply, mutatis mutandis.

ARTICLE X

MISCELLANEOUS

Section 10.1    Complete Agreement; Construction. This Agreement, including the Exhibits and Schedules, together with the Separation Agreement, the Umbrella Secrecy Agreement, other Ancillary Agreements and, solely to the extent and for the limited purpose of effecting the Internal Reorganization, the Conveyancing and Assumption Instruments, shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Exhibit or Schedule hereto, the Exhibit or Schedule shall prevail. In the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of the Separation Agreement, the terms and conditions of this Agreement shall control (except as expressly set forth in Section 12.1 of the Separation Agreement). In the event of any inconsistency between this Agreement and the provisions of (i) any Conveyancing and Assumption Instrument or (ii) that certain Intercompany License Agreement – IB, entered into as of April 30, 2019 by and between Pioneer Hi-Bred International, Inc., E.I. du Pont de Nemours and Company, PM Taiwan, Inc., DuPont US Holding, LLC, and DuPont Industrial Biosciences USA, LLC, the terms and conditions of this Agreement shall control.

Section 10.2    Assignment.

(a)    Neither this Agreement nor any of the rights, interests or obligations of a Party under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by such Party without the prior written consent of the other Party (which consent may be granted or withheld in such other Party’s sole discretion); provided however, that such first Party (i) may assign, in whole or in part, by operation of law or otherwise, any of the foregoing to one or more of its Affiliates and (ii) may assign, in whole or in part, by operation of law or otherwise, any of the foregoing to the successor to all or a portion of the business or assets to which this Agreement relates; provided that, (x) the assigning Party shall promptly notify the non-assigning Party in writing of any assignments it makes under Section 10.2(a)(ii) and (y) in either case of (i) or (ii), the party to whom this Agreement is assigned shall agree in writing to be bound by the terms of this Agreement as if named as a “Party” hereto with respect to all or such portion of this Agreement so assigned.

(b)    Any assignment or other disposition in violation of this Section 10.2 shall be void. No assignment shall relieve the assigning Party of any of its obligations under this Agreement that accrued prior to such assignment unless agreed to by the non-assigning Party.

 

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Section 10.3    Counterparts. This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in more than one counterpart, all of which shall be considered one and the same agreement, each of which when executed shall be deemed to be an original, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties.

Section 10.4    Notices. All notices and other communications to be given to any Party under this Agreement shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service, or five (5) days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or electronically mailed (with a response confirming receipt), and shall be directed to the address set forth below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.4):

To AgCo:

Corteva, Inc.

c/o Corteva, Inc.

974 Centre Road, Building 735

Wilmington, DE 19805

Attn:        General Counsel

Email:      cornel.b.fuerer@corteva.com

with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Attention:        Brandon Van Dyke, Esq.

Email:              Brandon.VanDyke@skadden.com

Facsimile:        (917) 777-3743

To SpecCo:

DowDuPont, Inc.

c/o DuPont de Nemours, Inc.

974 Centre Road, Building 730

Wilmington, DE 19805

Attn: General Counsel

Email: Erik.T.Hoover@dupont.com

with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Attention:        Brandon Van Dyke, Esq.

Email:              Brandon.VanDyke@skadden.com

Facsimile:        (917) 777-3743

 

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Section 10.5    Waivers. Any provision of this Agreement may be waived, if and only if, such waiver is in writing and signed by the Party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder shall operate as a waiver hereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Any consent required or permitted to be given by any Party to any other Party under this Agreement shall be in writing and signed by the Party giving such consent and shall be effective only against such Party (and the members of its Group).

Section 10.6    Amendments. This Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties.

Section 10.7    Affiliates. Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Affiliate of such Party.

Section 10.8    Third Party Beneficiaries. Except as provided in Article VI relating to Indemnitees, this Agreement is solely for the benefit of, and is only enforceable by, the Parties and their permitted successors and assigns and should not be deemed to confer upon Third Parties any remedy, benefit, claim, liability, reimbursement, claim of Action or other right of any nature whatsoever, in excess of those existing without reference to this Agreement.

Section 10.9    Title and Headings. Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 10.10    Exhibits and Schedules. The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.

Section 10.11    Governing Law. This Agreement and any dispute arising out of, in connection with or relating to this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof.

Section 10.12    Specific Performance. The Parties acknowledge and agree that irreparable harm would occur in the event that the Parties do not perform any provision of this Agreement in accordance with its specific terms or otherwise breach this Agreement and the remedies at law for any breach or threatened breach of this Agreement, including monetary damages, are inadequate compensation for any such non-performance or breach. Accordingly, in the event of any actual or threatened default in or breach of, any of the terms, conditions and provisions of this Agreement, the Parties agree that the Party or Parties to this Agreement who are or are to be thereby aggrieved shall, subject and pursuant to the terms of this Article X (including for the avoidance of doubt, after compliance with all notice and negotiation provisions herein), have the right to specific performance and injunctive or other equitable relief of its or their rights under this Agreement in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that any defense

 

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in any action for specific performance that a remedy at law would be adequate is hereby waived, and that any requirements for the securing or posting of any bond with such remedy are hereby waived.

Section 10.13    Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid, legal and enforceable provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 10.14    No Duplication; No Double Recovery. Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances.

Section 10.15    Bankruptcy. All rights and licenses granted under or pursuant to this Agreement by a Licensor are, and will otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101 of the United States Bankruptcy Code regardless of the form or type of intellectual property under or to which such rights and licenses are granted and regardless of whether the intellectual property is registered in or otherwise recognized by or applicable to the United States of America or any other country or jurisdiction. The Parties agree that each Licensee will retain and may fully exercise all of their rights and elections under the United States Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against a Party under the United States Bankruptcy Code, the Party hereto that is not a party to such proceeding will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, which, if not already in the non-subject Party’s possession, will be promptly delivered to it (a) upon any such commencement of a bankruptcy proceeding upon the non-subject Party’s written request therefore, unless the Party subject to such proceeding continues to perform all of its obligations under this Agreement or (b) if not delivered under clause (a) above, following the rejection of this Agreement by or on behalf of the Party subject to such proceeding upon written request therefore by the non-subject Party.

* * * * *

[End of page left intentionally blank]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

 

CORTEVA, INC.
By:  

 

Name:  
Title:  

[Signature Page to AgCo/SpecCo Intellectual Property Cross License Agreement]


DOWDUPONT INC.
By:  

 

Name:  
Title:  

[Signature Page to AgCo/ SpecCo Intellectual Property Cross License Agreement]

 

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EX-10.5

Exhibit 10.5

CORTEVA, INC.

2019 OMNIBUS INCENTIVE PLAN

Section 1. Purpose of Plan.

The name of the Plan is the Corteva, Inc. 2019 Omnibus Incentive Plan. The purposes of the Plan are to (a) provide an additional incentive to selected employees, directors, independent contractors and consultants of the Company or its Affiliates whose contributions are essential to the growth and success of the Company, (b) strengthen the commitment of such individuals to the Company and its Affiliates, (c) motivate those individuals to faithfully and diligently perform their responsibilities and (d) attract and retain competent and dedicated individuals whose efforts will result in the long-term growth and profitability of the Company. In addition, the Plan permits the issuance of Conversion Awards in substitution of certain incentive awards that covered shares of DowDuPont Inc. immediately before the Separation. To accomplish these various purposes, the Plan provides that the Company may grant Options, Share Appreciation Rights, Restricted Shares, Restricted Stock Units, Other Share-Based Awards, Conversion Awards, Cash Awards or any combination of the foregoing.

Section 2. Definitions.

For purposes of the Plan, the following capitalized terms shall be defined as set forth below:

(a) “Administrator” means the Board, or, if and to the extent the Board does not administer the Plan, the Committee.

(b) “Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified as of any date of determination.

(c) “Applicable Laws” means the applicable requirements under U.S. federal and state corporate laws, U.S. federal and state securities laws, including the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where Awards are granted under the Plan, all as are in effect from time to time.

(d) “Award” means any Option, Share Appreciation Right, Restricted Share, Restricted Stock Unit, Other Share-Based Award, Conversion Award or Cash Award granted under the Plan.

(e) “Award Agreement” means any written notice, agreement, contract or other instrument or document evidencing an Award, including through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine, consistent with the Plan.

(f) “Beneficial Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.


(g) “Board” means the Board of Directors of the Company.

(h) “Bylaws” mean the bylaws of the Company, as may be amended and/or restated from time to time.

(i) “Cash Award” means cash awarded under Section 12, including cash awarded as a bonus or upon the attainment of performance goals or otherwise as permitted under the Plan.

(j) “Cause” has the meaning assigned to such term or an analogous term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Cause” or an analogous term, then “Cause” means (i) the conviction, guilty plea or plea of “no contest” by the Participant to any felony or a crime involving moral turpitude or the Participant’s commission of any other act or omission involving dishonesty or fraud, (ii) the substantial and repeated failure of the Participant to perform duties of the office held by the Participant, (iii) the Participant’s gross negligence, willful misconduct or breach of fiduciary duty with respect to the Company or any of its Affiliates, (iv) any breach by the Participant of any restrictive covenants to which the Participant is subject, and/or (v) the Participant’s engagement in any conduct which is or can reasonably be expected to be materially detrimental or injurious to the business or reputation of the Company or its Affiliates. Any voluntary termination of employment or service by the Participant in anticipation of an involuntary termination of the Participant’s employment or service, as applicable, for Cause shall be deemed to be a termination for Cause.

(k) “Change in Capitalization” means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Common Stock or other property), stock split, reverse stock split, share subdivision or consolidation, (iii) combination or exchange of shares or (iv) other change in corporate structure, which, in any such case, the Administrator determines, in its sole discretion, affects the Shares such that an adjustment pursuant to Section 5 is appropriate.

(l) “Change in Control” means the first occurrence of an event set forth in any one of the following paragraphs following the Effective Date:

(1) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person which were acquired directly from the Company or any Affiliate thereof) representing more than thirty percent (30%) of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (i) of paragraph (3) below; or

(2) the date on which individuals who constitute the Board as of the Effective Date and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s stockholders was approved or

 

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recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease for any reason to constitute a majority of the number of directors serving on the Board; or

(3) there is consummated a merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporation or other entity, other than (i) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary, more than fifty percent (50%) of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (B) following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the Company, the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidation is then a Subsidiary, the ultimate parent thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates) representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities; or

(4) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of the Company following the completion of such transaction in substantially the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially all of the Company’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent thereof.

Notwithstanding the foregoing, (i) the Separation shall not constitute a Change in Control, (ii) a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the holders of Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions and (iii) to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to any Award that constitutes deferred compensation under Section 409A of the Code only if a change in the ownership or effective control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under

 

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Section 409A of the Code. For purposes of this definition of Change in Control, the term “Person” shall not include (i) the Company or any Subsidiary thereof, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary thereof, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company.

(m) “Code” means the Internal Revenue Code of 1986, as amended from time to time.

(n) “Committee” means any committee or subcommittee the Board may appoint to administer the Plan. Subject to the discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of a “non-employee director” within the meaning of Rule 16b-3 and any other qualifications required by the applicable stock exchange on which the Common Stock is traded.

(o) “Common Stock” means the common stock of the Company, having a par value of $0.01 per share.

(p) “Company” means Corteva, Inc., a Delaware corporation (or any successor company, except as the term “Company” is used in the definition of “Change in Control” above).

(q) “Conversion Award” shall have the meaning set forth in Section 10.

(r) “Disability” has the meaning assigned to such term or an analogous term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Disability” or an analogous term, then “Disability” means that a Participant, as determined by the Administrator in its sole discretion, (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company or an Affiliate thereof.

(s) “Effective Date” has the meaning set forth in Section 19.

(t) “Eligible Recipient” means an employee, director, independent contractor or natural person consultant of the Company or any Affiliate of the Company who has been selected as an eligible participant by the Administrator; provided, however, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means an employee, non-employee director, independent contractor or consultant of the Company or any Affiliate of the Company with respect to whom the Company is an “eligible issuer of service recipient stock” within the meaning of Section 409A of the Code.

(u) “Employee Matters Agreement” has the meaning set forth in Section 10.

 

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(v) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

(w) “Exempt Award” means the following:

(1) A Conversion Award.

(2) An Award granted in assumption of, or in substitution for, outstanding awards previously granted by a corporation or other entity acquired by the Company or any of its Affiliates or with which the Company or any of its Affiliates combines by merger or otherwise. The terms and conditions of any such Awards may vary from the terms and conditions set forth in the Plan to the extent the Administrator at the time of grant may deem appropriate, subject to Applicable Laws.

(3) An “employment inducement” award as described in the applicable stock exchange listing manual or rules as may be granted under the Plan from time to time. The terms and conditions of any “employment inducement” award may vary from the terms and conditions set forth in the Plan to such extent as the Administrator at the time of grant may deem appropriate, subject to Applicable Laws.

(4) An award that an Eligible Recipient purchases at Fair Market Value (including awards that an Eligible Recipient elects to receive in lieu of fully vested compensation that is otherwise due) whether or not the Shares are delivered immediately or on a deferred basis.

(x) “Exercise Price” means, (i) with respect to any Option, the per-share price at which a holder of such Option may purchase Shares issuable upon exercise of such Award and (ii) with respect to a Share Appreciation Right, the base price per share of such Share Appreciation Right.

(y) “Fair Market Value” of a share of Common Stock or another security as of a particular date means the fair market value as determined by the Administrator in its sole discretion; provided, that, (i) if the Common Stock or other security is admitted to trading on a national securities exchange, the fair market value on any date shall be the closing sale price reported on such date, or if no shares were traded on such date, on the last preceding date for which there was a sale of a share of Common Stock on such exchange, or (ii) if the Common Stock or other security is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing bid and asked prices for such share in such over-the-counter market for the last preceding date on which there was a sale of such share in such market.

(z) “Free Standing Rights” has the meaning set forth in Section 8.

(aa) “Good Reason” has the meaning assigned to such term or an analogous term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Good Reason” or an analogous term, then “Good Reason” shall mean (i) a material diminution in the Participant’s base compensation, (ii) a material diminution in the Participant’s authority, duties, or responsibilities, or (iii) a material change in the geographic location at which the Participant must perform his/her services for the Company.

 

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(bb) “Incentive Compensation” means annual cash bonus and any Award.

(cc) “ISO” means an Option intended to be and designated as an “incentive stock option” within the meaning of Section 422 of the Code.

(dd) “Nonqualified Stock Option” means an Option that is not designated or that otherwise does not qualify as an ISO.

(ee) “Option” means an option to purchase shares of Common Stock granted pursuant to Section 7. The term “Option” as used in the Plan includes the terms “Nonqualified Stock Option” and “ISO.”

(ff) “Other Share-Based Award” means a right or other interest granted pursuant to Section 11 that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Common Stock, including without limitation unrestricted Shares, dividend equivalents or performance units, each of which may be subject to the attainment of performance goals or a period of continued provision of service or employment or other terms or conditions as permitted under the Plan.

(gg) “Participant” means any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s authority provided for in Section 3, to receive grants of Awards, and, upon his or her death, his or her successors, heirs, executors and administrators, as the case may be.

(hh) “Person” shall (except as provided in the definition of “Change in Control” above) have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.

(ii) “Plan” means this 2019 Omnibus Incentive Plan, as amended from time to time.

(jj) “Related Rights” has the meaning set forth in Section 8.

(kk) “Restricted Period” has the meaning set forth in Section 9.

(ll) “Restricted Share” means a Share granted pursuant to Section 9 subject to certain restrictions that lapse at the end of a specified period (or periods) of time and/or upon attainment of specified performance objectives.

(mm) “Restricted Stock Unit” means the right granted pursuant to Section 9 to receive a Share (or the cash value thereof) at the end of a specified restricted period (or periods) of time and/or upon attainment of specified performance objectives.

(nn) “Rule 16b-3” has the meaning set forth in Section 3(a).

 

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(oo) “Securities Act” means the Securities Act of 1933, as amended from time to time.

(pp) “Separation” means the separation of the Company from DowDuPont Inc. pursuant to which the Company became a separate publicly traded company.

(qq) “Share Appreciation Right” means a right granted pursuant to Section 8 to receive an amount equal to the excess, if any, of (i) the aggregate Fair Market Value, as of the date such Award or portion thereof is surrendered, of the Shares covered by such Award or such portion thereof, over (ii) the aggregate Exercise Price of such Award or such portion thereof.

(rr) “Shares” means Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor (pursuant to a merger, consolidation or other reorganization) security.

(ss) “Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member or similar interest of such other Person.

(tt) “Transfer” has the meaning set forth in Section 17.

Section 3. Administration.

(a) The Plan shall be administered by the Administrator and shall be administered, to the extent applicable, in accordance with Rule 16b-3 under the Exchange Act (“Rule 16b-3”). To the extent permitted by Applicable Laws, the Administrator may delegate, subject to such limitations as it may provide, some or all of its power and authority under the Plan to one or more of its members or to one or more officers of the Company, or to one or more agents or advisors, or a combination thereof, and the Administrator or any individuals to whom it has delegated duties or powers may employ one or more individuals to render advice with respect to any responsibility that the Administrator or such individuals may have under the Plan.

(b) Pursuant to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to it by the Board, shall have the power and authority, without limitation:

(1) to select those Eligible Recipients who shall be Participants;

(2) to determine whether and to what extent Options, Share Appreciation Rights, Restricted Shares, Restricted Stock Units, Cash Awards, Other Share-Based Awards or a combination of any of the foregoing, are to be granted hereunder to Participants;

(3) to determine the number of Shares to be covered by each Award granted hereunder;

(4) to determine the terms and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including without limitation (i) the restrictions

 

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applicable to Restricted Shares or Restricted Stock Units and the conditions under which restrictions applicable to such Restricted Shares or Restricted Stock Units shall lapse, (ii) the performance goals and periods applicable to Awards, (iii) the Exercise Price of each Option and each Share Appreciation Right or the purchase price of any other Award, (iv) the vesting schedule and terms applicable to each Award, (v) the number of Shares or amount of cash or other property subject to each Award and (vi) subject to the requirements of Section 409A of the Code (to the extent applicable), amendments to the terms and conditions of outstanding Awards, including without limitation extending the exercise period of such Awards and accelerating the vesting and/or payment schedules of such Awards; provided, however, that such acceleration may only occur in the event of the Participant’s death or Disability).

(5) to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing Awards;

(6) to determine Fair Market Value in accordance with the terms of the Plan;

(7) to determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of the Participant’s service or employment for purposes of Awards granted under the Plan;

(8) to adopt, alter and repeal such administrative rules, regulations, guidelines and practices governing the Plan as it shall from time to time deem advisable;

(9) to construe and interpret the terms and provisions of, and supply or correct omissions in, the Plan and any Award issued under the Plan (and any Award Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan; and

(10) to prescribe, amend and rescind rules and regulations relating to sub-plans established for the purpose of satisfying applicable non-United States laws or for qualifying for favorable tax treatment under applicable non-United States laws, which rules and regulations may be set forth in an appendix or appendixes to the Plan.

(c) Subject to Section 5, the Administrator shall not have the authority to reprice or cancel and regrant any Award at a lower exercise, base or purchase price or cancel any Award with an exercise, base or purchase price of less than Fair Market Value in exchange for cash, property or other Awards without first obtaining the approval of the Company’s shareholders.

(d) All decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons, including the Company and the Participants.

(e) The expenses of administering the Plan shall be borne by the Company and its Affiliates.

 

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(f) If at any time or to any extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall be exercised by the Committee. Except as otherwise provided in the Certificate of Incorporation or Bylaws of the Company or any applicable Committee charter, any action of the Committee with respect to the administration of the Plan shall be taken by a majority vote at a meeting at which a quorum is duly constituted or by unanimous written consent of the Committee’s members.

Section 4. Shares Reserved for Issuance Under the Plan.

(a) Subject to Section 5, the number of shares of Common Stock that are reserved and available for issuance pursuant to Awards granted under the Plan shall be equal to 20,000,000 ;shares; provided that shares of Common Stock issued under the Plan with respect to an Exempt Award shall not count against such share limit.

(b) Shares issued under the Plan may, in whole or in part, be authorized but unissued Shares or Shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise. If an Award entitles the Participant to receive or purchase Shares, the number of Shares covered by such Award or to which such Award relates shall be counted on the date of grant of such Award against the aggregate number of Shares available for granting Awards under the Plan. If any Shares subject to an Award (other than an Exempt Award) are forfeited, cancelled, exchanged or surrendered or if an Award (other than an Exempt Award) otherwise terminates or expires without a distribution of shares to the Participant, the Shares with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for granting Awards under the Plan. Notwithstanding the foregoing, except with respect to an Exempt Award, Shares surrendered or withheld as payment of either the Exercise Price of an Award (including Shares underlying a Share Appreciation Right that are retained by the Company to account for the Exercise Price of such Share Appreciation Right) and/or withholding taxes in respect of an Award shall no longer be available for grant under the Plan. In addition, (i) to the extent an Award (other than an Exempt Award) is denominated in shares of Common Stock, but paid or settled in cash, the number of shares of Common Stock with respect to which such payment or settlement is made shall again be available for grants of Awards pursuant to the Plan and (ii) shares of Common Stock underlying Awards that can only be settled in cash shall not be counted against the aggregate number of shares of Common Stock available for Awards under the Plan. Upon the exercise of any Award granted in tandem with any other Awards, such related Awards shall be cancelled to the extent of the number of Shares as to which the Award is exercised.

(c) All Shares available for issuance under the Plan may be issued pursuant to the exercise of ISOs.

(d) Notwithstanding any other provision of the Plan to the contrary, Awards granted under the Plan (other than cash-based Awards and Conversion Awards) shall vest no earlier than the first anniversary of the date on which the Award is granted; provided, that the following Awards shall not be subject to the foregoing minimum vesting requirement: any (i) substitute Awards granted in connection with awards that are assumed, converted or substituted pursuant to a merger, acquisition or similar transaction entered into by the Company or any of its Subsidiaries, (ii) Shares delivered in lieu of fully vested cash Awards, (iii) Awards to non-

 

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employee directors that vest on earlier of the one-year anniversary of the date of grant and the next annual meeting of stockholders which is at least 50 weeks after the immediately preceding year’s annual meeting, and (iv) any additional Awards the Administrator may grant, up to a maximum of five percent (5%) of the available share reserve authorized for issuance under the Plan pursuant to Section 4(a) (subject to adjustment under Section 5); and, provided, further, that the foregoing restriction does not apply to the Administrator’s discretion to provide for accelerated exercisability or vesting of any Award, including in cases of retirement, death, Disability or a Change in Control, in the terms of the Award Agreement or otherwise.

Section 5. Equitable Adjustments.

In the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made in (i) the aggregate number and kind of securities reserved for issuance under the Plan pursuant to Section 4, (ii) the kind, number of securities, and the Exercise Price subject to outstanding Options and Share Appreciation Rights granted under the Plan, (iii) the kind, number and purchase price of Shares or other securities or the amount of cash or amount or type of other property subject to outstanding Restricted Shares, Restricted Stock Units or Other Share-Based Awards granted under the Plan; and/or (iv) the terms and conditions of any outstanding Awards (including without limitation any applicable performance targets or criteria with respect thereto); provided, however, that any fractional shares resulting from the adjustment shall be eliminated. Without limiting the generality of the foregoing, in connection with a Change in Capitalization, the Administrator may provide, in its sole discretion, but subject in all events to the requirements of Section 409A of the Code, for the cancellation of any outstanding Award granted hereunder in exchange for payment in cash or other property having an aggregate Fair Market Value equal to the Fair Market Value of the Shares, cash or other property covered by such Award, reduced by the aggregate Exercise Price or purchase price thereof, if any; provided, however, that if the Exercise Price or purchase price of any outstanding Award is equal to or greater than the Fair Market Value of the shares of Common Stock, cash or other property covered by such Award, the Administrator may cancel such Award without the payment of any consideration to the Participant. Further, without limiting the generality of the foregoing, with respect to Awards subject to non-United States laws, adjustments made hereunder shall be made in compliance with applicable requirements. Except to the extent determined by the Administrator, any adjustments to ISOs under this Section 5 shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of the Code. The Administrator’s determinations pursuant to this Section 5 shall be final, binding and conclusive. The Administrator is further authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or infrequent events (including without limitation the events described in this Section 5) affecting the Company or the financial statements of the Company, or of changes in applicable laws, regulations, or accounting principles, whenever the Administrator determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan.

Section 6. Eligibility.

The Participants in the Plan shall be selected from time to time by the Administrator, in its sole discretion, from those individuals that qualify as Eligible Recipients.

 

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Section 7. Options.

(a) General. Options granted under the Plan shall be designated as Nonqualified Stock Options or ISOs. Each Participant who is granted an Option shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award Agreement has no such designation, the Option shall be a Nonqualified Stock Option). The provisions of each Option need not be the same with respect to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement.

(b) Exercise Price. The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market Value of a share of Common Stock on the date of grant (exclusive of Conversion Awards and any substitute Awards granted in connection with awards that are assumed, converted or substituted pursuant to a merger, acquisition or similar transaction entered into by the Company or any of its Subsidiaries).

(c) Option Term. The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten (10) years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions in the Plan and the Award Agreement.

(d) Exercisability. Each Option shall be exercisable at such time or times and subject to such terms and conditions, including the attainment of performance goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator may also provide that any Option shall be exercisable only in installments.

(e) Method of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of whole Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the form of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator and permitted by Applicable Laws or (iv) any combination of the foregoing.

 

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(f) ISOs. The terms and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions, limitations and administrative procedures established by the Administrator from time to time in accordance with the Plan. ISOs may be granted only to an employee of the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code), if any, or a Subsidiary of the Company.

(1) ISO Grants to 10% Stockholders. Notwithstanding anything to the contrary in the Plan, if an ISO is granted to a Participant who owns shares representing more than ten percent (10%) of the voting power of all classes of shares of the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code), if any, or a Subsidiary of the Company, the term of the ISO shall not exceed five (5) years from the time of grant of such ISO and the Exercise Price shall be at least one hundred and ten percent (110%) of the Fair Market Value of the Shares on the date of grant.

(2) $100,000 Per Year Limitation For ISOs. To the extent the aggregate Fair Market Value (determined on the date of grant) of the Shares for which ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds $100,000, such excess ISOs shall be treated as Nonqualified Stock Options.

(3) Disqualifying Dispositions. Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after the date the Participant makes a “disqualifying disposition” of any Share acquired pursuant to the exercise of such ISO. A “disqualifying disposition” is any disposition (including any sale) of such Shares before the later of (i) two years after the date of grant of the ISO and (ii) one year after the date the Participant acquired the Shares by exercising the ISO. The Company may, if determined by the Administrator and in accordance with procedures established by it, retain possession of any Shares acquired pursuant to the exercise of an ISO as agent for the applicable Participant until the end of the period described in the preceding sentence, subject to complying with any instructions from such Participant as to the sale of such Shares.

(g) Rights as Stockholder. A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder with respect to the Shares subject to an Option until the Participant has given written notice of the exercise thereof, and has paid in full for such Shares and has satisfied the requirements of Section 16.

(h) Termination of Employment or Service. Treatment of an Option upon termination of employment of a Participant shall be provided for by the Administrator in the Award Agreement.

(i) Other Change in Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and unprotected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment status or service status of a Participant, as and to the extent determined in the discretion of the Administrator.

 

12


Section 8. Share Appreciation Rights.

(a) General. Share Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of any Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after the time of the grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of Share Appreciation Rights shall be made. Each Participant who is granted a Share Appreciation Right shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded, the Exercise Price per Share, and all other conditions of Share Appreciation Rights. Notwithstanding the foregoing, no Related Right may be granted for more Shares than are subject to the Option to which it relates. The provisions of Share Appreciation Rights need not be the same with respect to each Participant. Share Appreciation Rights granted under the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable Award Agreement.

(b) Awards; Rights as Stockholder. A Participant shall have no rights to dividends or any other rights of a stockholder with respect to the shares of Common Stock, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the exercise thereof and has satisfied the requirements of Section 16.

(c) Exercise Price. The Exercise Price of Shares purchasable under a Share Appreciation Rights shall be determined by the Administrator in its sole discretion at the time of grant, but in no event shall the exercise price of a Share Appreciation Rights be less than one hundred percent (100%) of the Fair Market Value of a share of Common Stock on the date of grant (exclusive of Conversion Awards and any substitute Awards granted in connection with awards that are assumed, converted or substituted pursuant to a merger, acquisition or similar transaction entered into by the Company or any of its Subsidiaries).

(d) Exercisability.

(1) Share Appreciation Rights that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator in the applicable Award Agreement.

(2) Share Appreciation Rights that are Related Rights shall be exercisable only at such time or times and to the extent that the Options to which they relate shall be exercisable in accordance with the provisions of Section 7 and this Section 8.

(e) Payment Upon Exercise.

(1) Upon the exercise of a Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price per share specified in the Free Standing Right multiplied by the number of Shares in respect of which the Free Standing Right is being exercised.

 

13


(2) A Related Right may be exercised by a Participant by surrendering the applicable portion of the related Option. Upon such exercise and surrender, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price specified in the related Option multiplied by the number of Shares in respect of which the Related Right is being exercised. Options which have been so surrendered, in whole or in part, shall no longer be exercisable to the extent the Related Rights have been so exercised.

(3) Notwithstanding the foregoing, the Administrator may determine to settle the exercise of a Share Appreciation Right in cash (or in any combination of Shares and cash).

(f) Termination of Employment or Service. Treatment of a Share Appreciation Right upon termination of employment of a Participant shall be provided for by the Administrator in the Award Agreement.

(g) Term.

(1) The term of each Free Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten (10) years after the date such right is granted.

(2) The term of each Related Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than ten (10) years after the date such right is granted.

(h) Other Change in Employment or Service Status. Share Appreciation Rights shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment or service status of a Participant, as and to the extent determined in the discretion of the Administrator.

Section 9. Restricted Shares and Restricted Stock Units.

(a) General. Restricted Shares or Restricted Stock Units may be issued under the Plan. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, Restricted Shares or Restricted Stock Units shall be made. Each Participant who is granted Restricted Shares or Restricted Stock Units shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded; the price, if any, to be paid by the Participant for the acquisition of Restricted Shares or Restricted Stock Units; the period of time restrictions, performance goals or other conditions that apply to Transferability, delivery or vesting of such Awards (the “Restricted Period”); and all other conditions applicable to the Restricted Shares and Restricted Stock Units. If the restrictions, performance goals or conditions established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Shares or Restricted Stock Units, in accordance with the terms of the grant. The provisions of the Restricted Shares or Restricted Stock Units need not be the same with respect to each Participant.

 

14


(b) Awards and Certificates.

(1) In the Administrator’s sole discretion, as a condition of any Award of Restricted Shares, the Participant shall be required to deliver a share transfer form, endorsed in blank, relating to the Shares covered by such Award. Restricted Shares and, upon the expiration of the Restricted Period, Shares, may be issued in either certificated or uncertificated form, in the Administrator’s sole discretion.

(2) With respect to Restricted Stock Units at the expiration of the Restricted Period, Shares or cash, as applicable, shall promptly be issued to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section 409A of the Code. Shares issued upon the expiration of the Restricted Period of a Restricted Stock Unit Award may be issued in either certificated or uncertificated form, in the Administrator’s sole discretion.

(3) Any certificate issued pursuant to this Section 9(b) shall be registered in the name of the Participant, shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to the underlying Award, if any, and shall, in the Administrator’s sole discretion, be held in the custody of the Company until the restrictions thereon shall have lapsed.

(c) Restrictions and Conditions. The Restricted Shares or Restricted Stock Units granted pursuant to this Section 9 shall be subject to the following restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or, subject to Section 409A of the Code where applicable, thereafter:

(1) The Administrator may, in its sole discretion, provide for the lapse of restrictions in installments.

(2) Except as provided in the applicable Award Agreement, the Participant shall generally have the rights of a stockholder of the Company with respect to Restricted Shares during the Restricted Period; provided, however, that dividends declared during the Restricted Period with respect to a Restricted Share Award shall only become payable if (and to the extent) the underlying Restricted Shares vest. Except as provided in the applicable Award Agreement, the Participant shall generally not have the rights of a stockholder with respect to Shares subject to Restricted Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the Code, an amount equal to dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units shall, unless otherwise set forth in an Award Agreement, be paid to the Participant at the time (and to the extent) Shares or cash in respect of the related Restricted Stock Units are delivered to the Participant.

(3) The rights of Participants granted Restricted Shares or Restricted Stock Units upon termination of employment or service as a director, independent contractor or consultant to the Company or to any Affiliate thereof terminates for any reason during the Restricted Period shall be set forth in the Award Agreement.

(d) Form of Settlement. The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that any Restricted Stock Unit represent the right to receive the amount of cash per unit that is determined by the Administrator in connection with the Award.

 

15


Section 10. Conversion Awards.

Effective upon consummation of the Separation, the Company shall be deemed to have issued Awards under the Plan (“Conversion Awards”) to the extent, and on the terms, required to satisfy the obligations imposed on it under Section 1.09 of that certain Employee Matters Agreement dated as of April 1, 2019, by and among DowDuPont Inc., Dow Holdings Inc. and the Company (the “Employee Matters Agreement”). The Conversion Awards shall be administered in accordance with the terms and conditions of the underlying DowDuPont Inc. award as of immediately before the Separation, as such terms and conditions were modified by Section 1.09 of the Employee Matters Agreement, and the Conversion Awards shall otherwise be administered as an Award granted under this Plan to the extent not inconsistent with such terms and conditions as modified.

Section 11. Other Share-Based Awards.

Other Share-Based Awards may be issued under the Plan. Subject to the provisions of the Plan, the Administrator shall have sole and complete authority to determine the individuals to whom and the time or times at which such Other Share-Based Awards shall be granted. Each Participant who is granted an Other Share-Based Award shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, which may include, among other things, the number of shares of Common Stock to be granted pursuant to such Other Share-Based Awards, or the manner in which such Other Share-Based Awards shall be settled (e.g., in shares of Common Stock, cash or other property), or the conditions to the vesting and/or payment or settlement of such Other Share-Based Awards (which may include, but not be limited to, achievement of performance criteria) and all other terms and conditions of such Other Share-Based Awards. In the event that the Administrator grants a bonus in the form of Shares, the Shares constituting such bonus shall, as determined by the Administrator, be evidenced in uncertificated form or by a book entry record or a certificate issued in the name of the Participant to whom such grant was made and delivered to such Participant as soon as practicable after the date on which such bonus is payable. Notwithstanding anything set forth in the Plan to the contrary, any dividend or dividend equivalent Award issued hereunder shall be subject to the same restrictions, conditions and risks of forfeiture as apply to the underlying Award.

Section 12. Cash Awards.

The Administrator may grant Awards that are denominated in, or payable to Participants solely in, cash, as deemed by the Administrator to be consistent with the purposes of the Plan, and, such Cash Awards shall be subject to the terms, conditions, restrictions and limitations determined by the Administrator, in its sole discretion, from time to time.

Section 13. Change in Control.

(a) Unless otherwise determined by the Administrator and evidenced in an Award Agreement, notwithstanding Section 4(d), in the event that (i) a Change

 

16


in Control occurs and (ii) either (x) an outstanding Award is not assumed or substituted in connection therewith, or (y) an outstanding Award is assumed or substituted in connection therewith and the Participant’s employment or service is terminated by the Company, its successor or an Affiliate thereof without Cause or by the Participant for Good Reason (if applicable) on or after the effective date of the Change in Control but prior to twenty-four (24) months following the Change in Control, then: (1) any unvested or unexercisable portion of such Award carrying a right to exercise shall become fully vested and exercisable, and (2) the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to such Award granted under the Plan shall lapse and be treated as satisfied, in each case with any performance conditions imposed in respect of such Award deemed achieved at target performance levels and payment in respect of such Award pro-rated based on the elapsed proportion of the applicable performance period.

(b) For purposes of this Section 13, an Award shall be considered assumed or substituted for if, following the Change in Control, the Award remains subject to the same terms and conditions that were applicable to the Award immediately prior to the Change in Control except that, if the Award related to shares, the Award instead confers the right to receive common stock of the acquiring entity.

Section 14. Amendment and Termination.

The Board may amend, alter or terminate the Plan at any time, but no amendment, alteration or termination shall be made that would impair the rights of a Participant under any Award theretofore granted without such Participant’s consent. The Board shall obtain approval of the Company’s stockholders for any amendment that would require such approval in order to satisfy the requirements of any rules of the stock exchange on which the Common Stock is traded or other Applicable Law. The Administrator may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Section 5 and the immediately preceding sentence, no such amendment shall materially impair the rights of any Participant without his or her consent.

Section 15. Unfunded Status of Plan.

The Plan is intended to constitute an “unfunded” plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general unsecured creditor of the Company.

Section 16. Withholding Taxes.

Each Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross income of such Participant for purposes of applicable taxes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of, an amount up to the maximum statutory tax rates in the Participant’s applicable jurisdiction with respect to the Award, as determined by the Company. The obligations of the Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent permitted by Applicable Laws, have the right to deduct any such

 

17


taxes from any payment of any kind otherwise due to such Participant. Whenever cash is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any applicable withholding tax requirements related thereto. Whenever Shares or property other than cash are to be delivered pursuant to an Award, the Company shall have the right to require the Participant to remit to the Company in cash an amount, or to withhold from delivery Shares or other property with a value, sufficient to satisfy any related taxes to be withheld and applied to the tax obligations; provided, that, with the approval of the Administrator, a Participant may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery of Shares or other property, as applicable, or (ii) delivering already owned unrestricted shares of Common Stock, in each case, having a value not exceeding the applicable taxes to be withheld and applied to the tax obligations. Such already owned and unrestricted shares of Common Stock or Shares withheld from delivery shall be valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any fractional share amounts resulting therefrom shall be settled in cash. Such an election may be made with respect to all or any portion of the Shares to be delivered pursuant to an award. The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by Applicable Laws, to satisfy its withholding obligation with respect to any Award.

Section 17. Transfer of Awards.

Until such time as the Awards are fully vested and/or exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment, mortgage, hypothecation, transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”) by any holder thereof will be valid, except with the prior written consent of the Administrator, which consent may be granted or withheld in the sole discretion of the Administrator. Any purported Transfer of an Award or any economic benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio and shall not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit or interest therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of such Shares or other property underlying such Award. Unless otherwise determined by the Administrator, an Option or a Share Appreciation Right may be exercised, during the lifetime of the Participant, only by the Participant or, during any period during which the Participant is under a legal disability, by the Participant’s guardian or legal representative.

Section 18. Continued Employment or Service.

Neither the adoption of the Plan nor the grant of an Award shall confer upon any Eligible Recipient any right to continued employment or service with the Company or any Affiliate thereof, as the case may be, nor shall it interfere in any way with the right of the Company or any Affiliate thereof to terminate the employment or service of any of its Eligible Recipients at any time.

 

18


Section 19. Effective Date.

The Plan was adopted by the Board on May 6, 2019 and shall become effective on the Separation Date (the “Effective Date”).

Section 20. Electronic Signature.

A Participant’s electronic signature of an Award Agreement shall have the same validity and effect as a signature affixed by hand.

Section 21. Term of Plan.

No Award shall be granted pursuant to the Plan on or after the tenth anniversary of the date of its adoption by the Board, but Awards theretofore granted may extend beyond that date.

Section 22. Securities Matters and Regulations.

(a)    Notwithstanding anything herein to the contrary, the obligation of the Company to sell or deliver Shares with respect to any Award granted under the Plan shall be subject to all Applicable Laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Administrator. The Administrator may require, as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient of such shares make such agreements and representations, and that such certificates bear such legends, as the Administrator, in its sole discretion, deems necessary or advisable.

(b)    Each Award is subject to the requirement that, if at any time the Administrator determines that the listing, registration or qualification of Shares is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Shares, no such Award shall be granted or payment made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval has been effected or obtained free of any conditions not acceptable to the Administrator.

(c)    In the event that the disposition of Shares acquired pursuant to the Plan is not covered by a then current registration statement under the Securities Act and is not otherwise exempt from such registration, such Shares shall be restricted against transfer to the extent required by the Securities Act or regulations thereunder, and the Administrator may require a Participant receiving Common Stock pursuant to the Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the Common Stock acquired by such Participant is acquired for investment only and not with a view to distribution.

 

19


Section 23. Section 409A of the Code.

The Plan as well as payments and benefits under the Plan are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments described in the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless Applicable Law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or benefit to be provided under the Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code. The Company makes no representation that any or all of the payments or benefits described in the Plan will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A of the Code.

Section 24. Notification of Election Under Section 83(b) of the Code.

If any Participant shall, in connection with the acquisition of shares of Common Stock under the Plan, make the election permitted under Section 83(b) of the Code, such Participant shall notify the Company of such election within ten (10) days after filing notice of the election with the Internal Revenue Service.

Section 25. No Fractional Shares.

No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Administrator shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.

Section 26. Beneficiary.

A Participant may file with the Administrator a written designation of a beneficiary on such form as may be prescribed by the Administrator and may, from time to time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s estate shall be deemed to be the Participant’s beneficiary.

 

20


Section 27. Paperless Administration.

In the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.

Section 28. Severability.

If any provision of the Plan is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected but shall be applied as if the invalid or unenforceable provision had not been included in the Plan.

Section 29. Applicable Policies.

The Plan and all Awards and Shares issued hereunder shall be subject to the terms of the Company’s clawback policy, insider trading policy and/or share ownership guidelines, if any, in each case as may exist from time to time and pursuant to the terms thereunder.

Section 30. Governing Law.

The Plan shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles of conflicts of law of such state.

Section 31. Indemnification.

To the extent allowable pursuant to applicable law, each member of the Board and the Administrator and any officer or other employee to whom authority to administer any component of the Plan is delegated shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her; provided, however, that he or she gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such individuals may be entitled pursuant to the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.

Section 32. Titles and Headings, Statutory References.

The titles and headings of the sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. References to sections of the Code, the Securities Act or the Exchange Act shall include any amendment or successor thereto.

 

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Section 33. Successors.

The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.

Section 34. Relationship to other Benefits.

No payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare, or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.

 

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EX-10.6

Exhibit 10.6

FONDATION DE PREVOYANCE EN FAVEUR DU PERSONNEL DE DUPONT DE NEMOURS INTERNATIONAL SÀRL

PENSION PLAN RULES

 

CONTENTS        PAGE  

INTRODUCTION

       1  

SECTION 1

 

DEFINITIONS

     1  

SECTION 2

 

PARTICIPATION

     4  

SECTION 3

 

PARTICIPATION CREDIT

     4  

SECTION 4

 

CONTRIBUTIONS

     5  

SECTION 5

 

RETIREMENT AND DISABILITY PENSIONS

     10  

SECTION 6

 

SURVIVORS’ PENSIONS

     15  

SECTION 7

 

LUMP-SUM DEATH BENEFIT

     18  

SECTION 8

 

PORTABLE BENEFIT

     19  

SECTION 9

 

APPLICATION FOR AND PAYMENT OF PENSIONS

     21  

SECTION 10

 

GENERAL RULES

     22  

SECTION 11

 

DIVORCE

     24  

SECTION 12

 

AMENDMENT OR TERMINATION OF THE PENSION PLAN

     26  

Approved on 20 April 2017

PENSION PLAN RULES


FONDATION DE PREVOYANCE EN FAVEUR DU PERSONNEL DE DUPONT DE NEMOURS INTERNATIONAL SàrI

INTRODUCTION

By deed dated January 25, 1962, DuPont de Nemours International Sàrl (hereinafter referred to as the Founder) has established a Foundation for the purpose of providing economic protection to its employees, their dependants and survivors, against the effects of old age, death and disability. This Foundation, which is organised under the provisions of the Swiss Civil Code, is known as the “Foundation for the Pension Plan of DuPont de Nemours International Sàrl” (hereinafter referred to as the Foundation). It is administered in accordance with the statutes by a board (hereinafter referred to as the Board of the Foundation) made up of representatives of the employer and of its active participants. Further to Article 6 of the deed of Foundation, the Board of the Foundation has adopted the regulations detailed below hereinafter referred to as the Plan) to supplement benefits payable under the various government plans.

The Foundation for the Pension Plan of DuPont de Nemours International Sàr1 shall enforce the Swiss minimum compulsory legal requirements on pension plans. The Foundation is registered with the Geneva Cantonal Authority and undertakes to fulfil all LPP requirements, more especially the provisions on the administration of Individual Retirement Accounts and Termination benefits. In the event of any conflict with these Rules, the LPP legal provisions shall prevail.

SECTION 1 – DEFINITIONS

Unless expressly stated otherwise, all references to persons in these regulations refer equally to both genders.

For the purposes of this pension plan, the following definitions shall apply:

 

1.1

Founder means DuPont de Nemours International Sàrl, represented by its Chairman or any of his delegated representatives.

 

1.2

Employer means the Founder and any Company affiliated to the Foundation.

 

1.3

Group Company means any enterprise wholly owned by the Founder, E.I. DuPont de Nemours and Company or any of its wholly owned or at least 50% owned subsidiaries.

 

PENSION PLAN RULES    Page 1


1.4

Plan means the Pension Plan for the Personnel of DuPont de Nemours International Sàrl as set forth, herein.

 

1.5

Employee means any person who works for the employer.

 

1.6

Participant means an Employee or a former Employee insured by the Foundation.

 

1.7

Active Participant means an Employee insured by the Foundation.

 

1.8

Disabled Participant means an insured recognised as disabled by the AI.

 

1.9

Pensioner means a former Participant who has received a retirement pension from the Foundation.

 

1.10

Portable Benefit means a capital amount to which a former Participant is entitled under the provisions of Section 8.

 

1.11

Surviving Spouse means the surviving spouse of a deceased Participant.

 

1.12

Registered partner of the same gender: A partnership registered under the federal law of June 18, 2004 regarding registered partnership is treated as a marriage. This applies in particular to the eligibility for lump sum benefits, for the right to survivor benefits and the sharing of pension assets in case of cancellation of the partnership.

 

1.13

Child means the child in the sense of the Swiss Civil Code as well as a foster child for whom the Participant participated substantially to his care (or did at the time of the Participant’s death).

 

1.14

Orphan means the child of a deceased Participant, which child is under age of 20, or 25 if receiving training as an apprentice or continuing in school as a full-time student.

 

1.15

Half Orphan means an Orphan who has one surviving parent or stepparent. Remarriage of the surviving parent or stepparent shall not change the status of Half Orphan.

 

1.16

Whole Orphan means an Orphan who, at any time, has neither living parent nor stepparent.

 

1.17

Survivor(s) means the surviving Spouse and/or Orphan(s).

 

1.18

Heir(s) means the heir(s) as described by the Swiss Civil Code.

 

1.19

Leave of Absence means any absence approved in writing by the employer for a maximum of two years.

 

1.20

Disability means the incapacity to work as recognised by the AI of at least 25%.

 

PENSION PLAN RULES    Page 2


1.21

Social Security means the AVS and the AI.

 

1.22

Monthly pay means the Participant’s monthly gross base salary, before deductions, based on his regular working schedule, or for part-time employees the schedule adjusted for average percentage time worked as specified in Section 1.25, as paid by the employer or paid from another source during an unpaid leave of absence in accordance with Section 3.2, plus an increment equal to 1/12 of said monthly gross salary to reflect the payment of a thirteenth month, but excluding any overtime, annual lump sum awards, family allowances, or other awards or perquisites.

For sales employees rewarded under the Sales Incentive Compensation Policy (SICP), Monthly pay will be set as the Theoretical Monthly pay for pension purposes.

Payments by the employer and by government or government-required sources made during a paid leave of absence shall be treated as Monthly Pay.

The salary exceeding 10 times the maximum LPP salary shall not be taken into account under this Pension Plan

The Foundation does not insure the pay received by the Participant from another employer.

 

1.23

Social Security-Covered Pay means that portion of Monthly Pay, which equals 100% of the monthly individual AVS pension.

 

1.24

Pension-Bearing Pay means that portion of Monthly Pay in excess of Social Security-Covered Pay. Pension Bearing Pay is not reduced in the event of an increase in the maximum AVS pension according to Section 1.23.

 

1.25

Final Three-Year Pension-Bearing Pay means average Pension-Bearing Pay during the final 36 months, or actual number of months if less than 36, in which Monthly Pay was received. For purposes of determining this average only, Pension-Bearing Pay applicable to each month of paid Leave of Absence shall be calculated in accordance with Section 1.24. However, the base Monthly Pay shall not be less than the Monthly Pay earned for the last complete month immediately preceding the paid Leave of Absence. The Final Three-Year Pension-Bearing Pay of employees working or having worked part-time will correspond to the amount calculated assuming an activity rate of 100% and be adjusted on the basis of the average percentage of time worked during the entire duration of the Participation Credit.

 

1.26

Participation Credit means the sum of months in which Pension-Bearing Pay applies, increased by purchase of benefits in accordance with Section 4.3 and reduced by withdrawal to finance home ownership or withdrawal due to a divorce.

 

PENSION PLAN RULES    Page 3


1.27

Normal Retirement Date means the first day of the calendar month following the date at which the Participant attains age 65.

 

1.28

Effective Date of Retirement means the first day of the calendar month in which actual retirement with pension occurs.

 

1.29

LPP means the Swiss Federal Law on Retirement, Dependants and Disability Pensions of June 25, 1982, and any relevant implementing regulations.

 

1.30

AVS means the Swiss old-age and survivors’ insurance established by the federal law of December 20, 1946.

 

1.31

AVS Retirement Age means age 65 for men and age 64 for women.

 

1.32

AI means the Swiss disability insurance established by the federal law of June 19, 1959.

SECTION 2 – PARTICIPATION

 

2.1

This Defined Benefit Pension plan covers all employees who were Active Participants as at 30 June 2012 in the Foundation.

 

2.2

Participation ceases as of termination of employment when the employee leaves the Foundation; Section 8.5 a) remains applicable in the case of a transfer of the employee to a Group company while maintaining the Participation Credit already acquired.

SECTION 3 – PARTICIPATION CREDIT

 

3.1

An active Participant shall receive Participation Credit for each month in which he receives Pension-Bearing Pay. For employees working or having worked part-time, an example is illustrated in the attachment 6 to the present rules. In order to calculate the average and amount of benefits in case of disability or death, future insurance years are taken into consideration on the basis of the part-time worked at the time of such disability or death.

The Participation Credit is increased by purchase of benefits in accordance with Section 4.3 and reduced by withdrawal to finance home ownership or withdrawal due to a divorce.

 

PENSION PLAN RULES    Page 4


3.2

An active Participant placed on unpaid Leave of Absence while temporarily performing duties outside the employer at its request and with its approval who continues to contribute shall receive Participation Credit for such periods on the basis of Pension-Bearing Pay calculated in accordance with Sections 1.23 and 1.24.

 

3.3

An active Participant placed on unpaid Leave of Absence who ceases to contribute shall also cease to receive Participation Credit but he shall retain all Participation Credit previously accrued.

 

3.4

A Participant who becomes disabled as defined in Section 1.20 shall be granted a Disability pension under Section 5.5 and remains eligible for survivor benefits. He will benefit from a Participation Credit for the period during which he receives a disability pension pro rata to the degree of the AI.

 

3.5

An Employee transferred to the employer from a Group Company may, subject to the approval of the Board of the Foundation acting on prior notice of the employer, receive credit for all prior continuous participation in one or more pension plans of Group Companies in determining employee and survivor benefit participation eligibility under this Plan.

 

3.6

Prior Participation Credit, in addition to that acquired as a Participant, may be granted by the Board of the Foundation on prior notice of the employer. Unless otherwise specified in this Plan, the Board of the Foundation on prior notice of the employer shall determine Pension-Bearing Pay applicable to grants of Participation credit.

 

3.7

Apprentices shall receive Participation Credit for periods of contractual apprenticeship carried out at the employer after age 20 upon attaining the status of Employee. The pension for such periods shall be calculated on the same basis as the Monthly Pay actually paid to the employee as a Participant.

SECTION 4 – CONTRIBUTIONS

 

4.1

Participant Contributions

 

  a)

Active Participants shall contribute to this Plan an amount equal to 8% of Pension-Bearing Pay. Whenever possible, payroll deductions shall be utilised to obtain the contributions and will be transmitted by the employer to the Foundation.

 

PENSION PLAN RULES    Page 5


  b)

Participants who become disabled as defined in Section 1.20 shall have no obligation to make contributions to the Plan after their Monthly Pay ceases. Such obligation shall resume should they again receive Monthly Pay.

 

4.2

Employer Contributions

The employer’s contributions shall be at least equal to the aggregate contributions paid by Participants. They may be withdrawn by the Foundation, from contributions reserves accounted for and destined for this use.

 

4.3

Buying in of benefits

 

  A.

All active Participants must transfer in the Foundation their portable benefits from their previous pension funds and from any other recognized institutions.

If the transfer is made within 6 months after the date of entry in the Foundation, these portable benefits will be used to buy in participation credits, according to the table of present value of annual pension published in attachment 1.

If the transfer is made after the 6 months following the date of entry in the Foundation, these portable benefits will be kept in the Foundation in favour of the Participant and credited with an interest equal to this credited on voluntary contributions, according to Section 4.4 C.

Any excess of portable benefits will be transferred to a blocked account with a recognized institution.

 

  B.

All active Participants may also buy in additional participation credit, by submitting, within 6 months joining the Foundation, a financial plan outlining such buying in, which must be scrupulously followed or any future participation credit that the Participant committed to buy could no longer be acquired. This buying in of participation credit will be made according to the table of actual annual values published as attachment 1. The total buying in of participation credits may not exceed the normal retirement pension, which would have been accumulated in participating to the present plan as from the age of 20. The number of years of participation credit cannot exceed 45.

All remaining amounts to be paid from financial plans for the buying in of benefits can be financed by a one time-payment.

During an unpaid Leave of Absence, the active Participant must make the payments according to his financing plan. Failing them, the financing plan will end.

 

PENSION PLAN RULES    Page 6


4.4

Voluntary contributions from Participants

Any active participant who has been a Participant of the Foundation for more than 6 months and who has already completed the payment schedule he committed to for buying benefits according to Section 4.3 B may make voluntary contributions to the Foundation in order to buy complementary pension benefits.

An active Participant on unpaid Leave of Absence who ceases to contribute can not make voluntary contributions during the Leave of Absence.

For the calculation of the present value of the accrued pension, the number of years of participation credit cannot exceed 45.

 

  A.

The maximum amount for these voluntary contributions is equal to the difference between the following two amounts:

 

  a)

Present value of maximum accrued pension, with participation credit calculated from age 20 until the date of payment, based on the pensionable salary and present value factor at the date of payment (see attachment 1).

 

  b)

Present value of accrued pension plus voluntary contributions with interest accrued at the date of payment.

 

  B.

Active Participants, who made voluntary contributions up to the maximum amount according to Section 4.4 A, may make additional contributions into a separate account to pre-finance the reduction of benefits resulting from early retirement (retirement account).

The maximum value in this account is equal to the amount required to allow a Participant to retire as early as from age 58 with the same pension he would have received at normal retirement age (based on the same pensionable salary at the retirement date). The exact amount is calculated using the actuarial basis adopted by the Foundation on the calculation date (an example is illustrated in the attachment 5 to the present rules).

If a Participant has pre-financed the entire reduction of his retirement pension and continues to work for the employer beyond the retirement age initially planned, the Participant and the employer stop making contributions.

The retirement pension of a Participant, who has pre-financed the reduction of his pension and doesn’t retire at the retirement age initially planned, shall be reduced to the extent that it exceeds 105% of the projected pension for Normal Retirement Date.

 

PENSION PLAN RULES    Page 7


  C.

The interest credited on the voluntary contributions will be calculated as follows:

 

  a)

For all voluntary contributions made on or after March 1st 2012, the interest will be credited based on the rolling average net investment return of the whole Foundation over the previous 5 calendar years, less 0.15% to cover administration charges. Should the rolling return calculation be negative, zero interest credit will be applied.

 

  b)

For all voluntary contributions made prior to March 1st 2012, along with all interest credited to these funds: the interest credited on these voluntary contributions is equal to the net return of the whole Foundation portfolio less 1% for administration fees and investment risks, subject to at least the minimum LPP interest rate.

The interest credited is subject to the discretion of the Board of the Foundation, which retains the right to withhold any interest credit on voluntary contributions if such an interest credit would risk the financial stability of the overall fund.

 

  D.

These voluntary contributions give eligibility to the following benefits:

 

  a)

At the normal or early retirement date, to a pension, the amount of which is calculated based on the accumulated capital plus interests and attachment 2. The Participant may request the payment of all or part of this pension as a lump sum. The request is irrevocable and must reach the Board of the Foundation at least three months before the normal or early retirement date. If the Participant is married, the spouse’s signature is required for a lump sum payment.

 

  b)

In the case of disability as defined in Section 1.20, to an accumulated capital plus interests at the time of disability, when the Foundation begins the payment of the disability pension. If the Participant is married, the spouse’s signature is required for a lump sum payment.

 

  c)

In case of death before retirement date, to an accumulated capital plus interests to be paid to survivors at the time of death, in accordance with Section 7.1.

 

  d)

Should the Participant leave the employment of the employer, the accumulated capital plus interests would be paid in addition to the benefit defined in Section 8, as of his leaving from the Foundation.

 

PENSION PLAN RULES    Page 8


4.5

General provisions for buying in benefits and voluntary contributions

 

  A.

The Participant must transfer in the Foundation all his vested benefits from previous pension funds and from any other recognized institutions before he can buy in benefits and/or make voluntary contributions.

 

  B.

The maximum amounts for buying in benefits and making voluntary contributions will be offset by:

 

  a)

The accrued assets from 3rd pillar a by independent persons

 

  b)

Any vested benefits from previous pension funds which could not have been transferred in the Foundation.

 

  C.

Benefits resulting from additional contributions as defined in Sections 4.3 B and 4.4 cannot be paid as a lump sum before a three year waiting period from receipt of payment.

 

  D.

When anticipated payments have been made to finance home ownership, additional contributions as defined in Sections 4.3 B and 4.4 will be first considered as a reimbursement of these anticipated payments, and only amounts above these anticipated payments as a true voluntary contribution.

 

  E.

For Participants coming from abroad and who have never been affiliated to a Swiss pension plan, the maximum voluntary contributions as defined in Section 4.3 B and Section 4.4 cannot exceed 20% of the pensionable salary for the 5 years following their date of entry in a Swiss pension fund. The limit of 20% does not apply when the transfer is made directly from a foreign pension plan and the employee does not claim any fiscal advantages on the transferred amount.

 

4.6

Underfunding

 

  A.

If and for as long as the Foundation is underfunded according to the LPP, the Board of the Foundation may require a supplementary contribution from the employer, Participants and Pensioners. It may also carry out appropriate benefit reductions or use any other measure permitted by law.

 

  B.

The supplementary contribution from the employer should only be charged with its consent to the extent that this will be used to finance extra-mandatory benefits.

 

  C.

The supplementary contribution is not included in the calculation of the Portable Benefit.

 

PENSION PLAN RULES    Page 9


  D.

If a supplementary contribution is demanded, the Board of the Foundation will inform the Participants about:

 

  a)

its rate or amount;

 

  b)

the expected period to be paid;

 

  c)

distribution between the employer and Participants.

SECTION 5 – RETIREMENT AND DISABILITY PENSION

 

5.1

Normal Retirement Pension

 

  A.

Eligibility - A Participant who reaches his Normal Retirement Date shall become eligible for a normal retirement pension. Retirement shall be compulsory upon reaching the Normal Retirement Date.

 

  B.

Pension Amount - The monthly normal retirement pension for each Participant shall be:

Monthly Pension = [1.8% x Sdf x S] / 12

Sdf = Final Three-Year Pension-Bearing Pay as defined in Section 1.25.

S = Months of Participation Credit, at most 540, or 45 years.

The monthly pension calculated under this section shall be in addition to any pension payable by Social Security.

 

5.2

Early Retirement Pension

Eligibility - An active Participant who is at least aged 58 shall become eligible for voluntary early retirement upon his request and provided he ceases to earn an income from the employer.

Pension Amount - The early retirement pension shall be determined by:

 

  1.

Calculating a basic pension amount, as provided in Section 5.1 B and

 

  2.

Reducing this amount by 4% per year preceding the normal retirement date (for example, at age 58 the reduction is 28% and at age 61 the reduction is 16%).

 

PENSION PLAN RULES    Page 10


The following transition measures will be applied:

 

  A.

For the Participants aged 58 or above as at 31 December 2012, the pension amount is reduced by 4% per year between age 58 and 59, 3% per year between age 59 and 62 and no reduction between age 62 and age 65 (for example, at age 58 the reduction is 13% and at age 61 the reduction is 3%).

 

  B.

For the Participants aged between 50 and 57 as at 31 December 2012, the pension amount is reduced by 2% per year preceding the normal retirement date (for example, at age 58 the reduction is 14% and at age 61 the reduction is 8%).

The reduction is pro rated when the number of years is fractional.

 

5.3

Facilitated Retirement

Upon the employer’s request, the Foundation can waive, partially or entirely, the reduction applied to the retirement pension in case of early retirement (Section 5.2). The employer bears the costs resulting from this waiver.

 

5.4

Lump Sum Option for Retirement Pension

In respect of the Normal or Early Retirement Pension as provided in Sections 5.1 and 5.2, a Participant may require that a part, maximum 50%, of his pension be converted into a lump sum payment at the date of retirement.

The same actuarial and technical bases used to define the level of funding of the pension plan will also be applied to calculate the lump sum, see Table attachment 2 of the present rules.

In case of conversion of part of the pension, only the remaining portion will be taken into consideration for future survivors’ pensions (Section 6) and any future post-retirement pension adjustments, which may be granted.

The Participants who so elect shall give notice of their intention in writing to the Board of the Foundation with the percentage of pension they wish to convert to a lump sum. This request is irrevocable and must reach the Board of the Foundation at least one month before the normal or early retirement date in accordance with Sections 5.1 & 5.2. For married Participants, the written agreement of their spouse is required. The Foundation may require an authenticated signature.

Any Retirement Pension which annual amount is less than 10% of the minimum AVS retirement pension will be paid as a lump sum.

 

PENSION PLAN RULES    Page 11


5.5

Disability Pension

 

  A.

Eligibility - A Participant who becomes disabled as defined in Section 1.20 shall be retired as a Disability Pensioner. Should such a Pensioner no longer be disabled in the sense of Section 1.20 before reaching Normal Retirement, his Disability retirement pension shall cease and the provisions of Section 8.6 shall apply.

At normal retirement date, the disability retirement pension will be converted into a normal retirement pension of the same amount.

 

  B.

Pension Amount - The monthly Disability retirement pension shall be the sum of two parts as follows:

 

  1.

An amount based on pension retirement entitlement at the date of Disability Retirement, calculated as provided in Section 5.1B,

Plus

 

  2.

An amount equal to [1.8% x Sdf x Sp] / 12

Sdf = Final Three-Year Pension-Bearing Pay as defined in Section 1.25.

Sp = Months of projected Participation Credit assuming the Pensioner had continued as a Participant until reaching Normal Retirement Date, at most 540, or 45 years.

 

  C.

The disabled participant has the right to a disability orphan pension for each child who would have an orphan pension under Section 6.2. The child disability pension will amount to the minimum LPP benefit.

 

  D.

In case of partial disability the pension amount calculated under Section 5.5. B will be adjusted as follows in accordance with the degree of disability determined by the AI:

 

Disability according to AI    Disability benefits of the Foundation
Less than 25%    No pension
as from 25%    one quarter of a pension
as from 50%    half a pension
as from 60%    three-quarters of a pension
as from 70%    full pension

The disability pension is not paid as long as the Participant receives his salary or any allowances in lieu of his salary provided that these allowances represent at least 80% of the salary lost and that they have been funded to at least 50% by the employer.

 

PENSION PLAN RULES    Page 12


In the event of reduction or elimination of the disability pension due to a reduction of the degree of disability, the previous disability pension shall be kept as long as the Participant qualifies according to the article 26a LPP. The revision of the disability pension granted because of a syndrome pathogenesis without deficit and without clear organic remains reserved (as per final disposition of LPP from 18 March 2011). The Foundation reduces its disability pension up to the new disability rates of AI, provided that such reduction is offset by additional income realized by the Participant.

 

  E.

Maximum Total Disability Pensions - In no event shall the combined total of Disability Pensions due (children pension included) in respect to any month from a) this plan, b) the Social Security, c) the employer’s insurance plans and d) the old age benefits paid by Swiss or foreign social insurances or pension funds after the AVS Retirement Age exceed the greater of:

 

  a)

100% of the disabled participant’s final Monthly Pay or

 

  b)

100% of his three-year average monthly pay.

For purposes of calculation, benefits, which are not in the form of a monthly pension, shall be converted to such form in accordance with the actuarial rules of this Plan.

The following items are also taken into account:

 

  a)

Salary possibly paid by the employer or allowances paid to replace the loss of income;

 

  b)

The income received by a disabled Participant from exercising a gainful occupation as well as all income that a disabled Participant could still reasonably achieve. However, the additional income realised during the execution of a new measure of rehabilitation proposed by the AI is not taken into account.

The allowances for disabled persons and the compensations for breach of integrity are not taken into account.

 

PENSION PLAN RULES    Page 13


The Foundation will not compensate any benefits denied or refused relying on Article 25 OPP2, Article 20 (2ter) and (2quarter) LAA, or Article 47(1) LAM. This paragraph applies by analogy to foreign benefits.

If benefits are reduced following a divorce, the benefits to which the Participant would have been entitled without the reduction shall be authoritative.

 

5.6

Temporary complementary pension

 

  A.

A pensioner eligible for an early retirement pension as defined in Section 5.2 and who has not yet attained the normal AVS retirement age may upon request receive a temporary complementary pension.

 

  B.

The amount of the temporary complementary pension shall be chosen by the pensioner but it may not exceed an amount equal to that of the Swiss federal single person old-age pension (AVS) acquired by the pensioner during employment with the employer, nor may result in a reduction of the pension of more than 30%. The amount chosen may not be later modified.

 

  C.

The temporary complementary pension shall cease as of the normal AVS retirement age but at the latest following the pensioner’s death. Survivors shall not be eligible for the temporary complementary pension.

 

  D.

The amount necessary to finance the temporary complementary pension shall be determined by an actuarial calculation according to a table using the same actuarial basis and techniques used to define the level of pension funding - see attachment 3; it shall be levied by equal deductions from the pension payable to the beneficiary of the temporary complementary pension as of normal AVS retirement age and during the entire period of such payment of pension or eventual payment of widow or orphan pensions.

 

  E.

Requests for temporary complementary pensions must be made prior to the first payment of early retirement pension.

 

5.7

Pension payable to the Child of a Pensioner

 

  A.

Entitlement - The beneficiary of a retirement pension (early or normal) is entitled to a pension payable for each child who would be entitled to an Orphan Pension under Section 6.2.

 

  B.

Pension amount - The child pension of a Pensioner amounts to the minimum LPP benefit.

 

PENSION PLAN RULES    Page 14


SECTION 6 - SURVIVORS’ PENSIONS

 

6.1

Surviving Spouse Pension

 

  A.

Eligibility - When a Participant dies, his surviving Spouse shall receive a pension.

 

  B.

Pension Amount

 

  1.

The pension for the Surviving Spouse of a deceased retirement Pensioner shall be 60% of the pension formerly paid to the deceased Pensioner.

 

  2.

The monthly pension for the Surviving Spouse of an active or disabled Participant shall be 60% of his presumed normal retirement pension. The presumed normal retirement pension equals the sum of:

 

  a)

An amount based on the deceased’s pension entitlement at the time he ceased to be a Participant, calculated as provided in Section 5.1 B,

Plus

 

  b)

An amount equal to [1.8% x Sdf x Sp] / 12

Sdf = Final Three-Year Pension-Bearing Pay as defined in Section 1.25.

Sp = Months of projected Participation Credit assuming the deceased had continued as a Participant until reaching Normal Retirement Date, at most 540, or 45 years.

 

  3.

The Surviving Spouse pension shall be subject to reductions as provided in Sections 6.1 C and D and 6.3.

 

  C.

Reduction of Surviving Spouse Pension - If the Surviving Spouse is at least 10 years younger than the deceased spouse, the annual survivor’s pension shall be reduced by 1% per year for each year or fraction thereof exceeding the 10 years’ age difference

 

  D.

Marriage after reaching the age of 65 - When a deceased Pensioner has contracted marriage after reaching the age of 65, the Surviving Spouse’s pension, reduced if appropriate according to C above, shall be further reduced according to the following scale:

 

PENSION PLAN RULES    Page 15


Age at marriage    Rate of reduction  
66      20
67      40
68      60
69      80

No Surviving Spouse’s pension shall be payable if the marriage was contracted after the age of 69, or if at the time of the marriage, the Pensioner had reached age 65 and suffered from a serious disease which was known to him and of which he died.

 

  E.

Termination of Surviving Spouse Pension - A Surviving Spouse’s pension shall cease with payment made for the quarter in which he dies or remarries. If he remarries, he will be paid a settlement allowance equal to 3 years of Surviving Spouse pension payments in lieu of further pension payments.

 

  F.

The benefits for a divorced Spouse are limited to that of the minimum LPP benefit.

 

6.2

Orphan Pensions

 

  A.

Eligibility - When a Participant dies, each of his Orphans shall receive a pension.

 

  B.

Orphan Status - Orphans shall be designated as Half or Whole Orphans in accordance with Sections 1,15 and 1.16 except that a Half Orphan may be declared a Whole Orphan by the Board of the Foundation on the recommendation of the employer when no support is available from the surviving parent or step-parent.

 

  C.

Pension Amount - Orphan pension shall be the following percentage of the actual or presumed employee pension used to calculate Surviving Spouse Pension as provided in Section 6.1 B:

 

Each Half Orphan      15
Each Whole Orphan      30

The Orphan pension shall be subject to reductions as provided in Section 6.3.

 

PENSION PLAN RULES    Page 16


  D.

Termination of Orphan Pension - An Orphan’s pension shall cease with the payment made for the quarter in which he reaches age 20, or 25 if receiving training as an apprentice or continuing in school as a full-time student. If an Orphan, who is receiving an orphan pension is permanently disabled when he reaches the age mentioned above, the Orphan pension will continue to be payable according to the degree of disability, and as long as the disability continues.

 

6.3

Maximum Total Surviving Spouse and Orphan Pensions

In no case shall the combined total of Surviving Spouse and Orphan pensions due in respect of any month from this Plan, Lump Sum Death Benefit under Section 7, Social Security and employer Insurance plans exceed the greater of 100% of the deceased’s final Monthly Pay or his final three-year average Monthly Pay. The combined total of the Surviving Spouse and Orphan pensions paid in any month from this Plan only shall not exceed 100% of:

 

  a)

the deceased’s actual normal or early retirement pension from this Plan or

 

  b)

his presumed normal retirement pension calculated according to Section 5.1 B. Any necessary reductions shall be applied pro rata to each Foundation pension. For purpose of calculation, benefits, which are not in the form of a monthly pension, shall be converted to such form in accordance with the actuarial rules of this Plan.

After the normal AVS retirement age, the old age benefits paid by Swiss or foreign social insurances or pension funds are also taken into account.

The Foundation will not compensate any benefits denied or refused relying on Article 25 OPP2, Article 20 (2ter) and (2quarter) LAA, or Article 47(1) LAM. This paragraph applies by analogy to foreign benefits..

 

PENSION PLAN RULES    Page 17


If benefits are reduced following a divorce, the benefits to which beneficiaries would have been entitled without the reduction shall be authoritative.

Survivor pensions, after reflecting any applicable reductions, are generally fixed as of the time they are first payable. However, such pensions will be reviewed and recalculated as necessary whenever there is a change in a) the calculation basis for benefits paid from the above sources, or b) the number of beneficiaries. For the purpose of this calculation, the last monthly salary or the average monthly salary of the last three years before death will be indexed to the cost of living.

SECTION 7 - LUMP-SUM DEATH BENEFIT

 

7.1

Lump-sum Death Benefit

 

  A.

Entitlement - When an active or disabled Participant dies due to a cause other than an accident, his or her beneficiaries shall receive a lump sum payment.

The beneficiaries are understood to be, in the following order:

 

  a)

the surviving spouse,

 

  b)

failing him, the Participant’s children who are in receipt of an Orphan’s Pension, in equal shares,

 

  c)

failing him, the dependants of the Participant, or the person who cohabitated with the latter for an uninterrupted period of at least 5 years immediately before his death, or who supports one or more common child, in equal shares,

 

  d)

failing them, any children of the Participant who are not beneficiaries of an Orphan’s pension, parents or brothers and sisters in equal shares,

 

  e)

failing them, other legal heirs, excluding public bodies, in the amount of 50% of the lump-sum benefit.

The Participant may modify the foregoing order of beneficiaries by sending during his or her lifetime a written appointment, to the Foundation:

 

  a)

he may grant all or part of the lump-sum death benefits to the surviving spouse, or his children who are beneficiaries of an Orphan’s Pension.

 

PENSION PLAN RULES    Page 18


  b)

instead of the granting of equal shares, he may provide for a different distribution of the lump-sum death benefit in favour of persons in one of the categories provided in paragraphs a) et seq. above.

Failing an appointment, beneficiaries must claim their entitlement from the Foundation within 6 months of the Participant’s death. They must show that they meet the required conditions. If there are no beneficiaries, within the meaning of this Section, the lump-sum death benefits shall vest with the Foundation.

 

  B.

Amount - The lump-sum death benefit is 13 times the Participant’s gross Monthly Pay at the time of death.

 

7.2

Minimum lump-sum death capital - In the event of the death of a Participant, entitlement to a lump-sum death benefit is established. If the deceased’s own contributions exceed the benefits already paid and benefits due under this Plan, the difference is paid as a lump-sum death capital. The term “own contributions of the deceased” is understood to mean contributions to Portable Benefits, buying in credits and personal contributions, including voluntary contributions, all with interest until the end of the month in which the contributions were paid. The term “benefits paid and benefits due” is understood to mean benefits paid to the insured and his survivors in the form of a pension or capital, as well as the capitalised value of survivors’ pensions which begin to run after the death. The lump-sum death benefit is paid to a beneficiary defined under Section 7.1.

SECTION 8 - PORTABLE BENEFIT

 

8.1

Entitlement

If an active Participant leaves the Foundation prior to an insured event (retirement, disability or death), he is entitled to a portable benefit. The portable benefit earns interest at the minimum LPP rate from that date. Once the Foundation has paid the portable benefit it is released from all benefit obligations. During one month after leaving the Foundation a Participant remains covered for disability and death risks. Should the Participant take up new employment before the end of this period, the new pension institution is liable.

 

8.2

Amount of the portable benefit

The portable benefit is equivalent to the actual value of the acquired vested rights (on the principle of defined benefits). The actual value factors are shown in attachment 1 to the present rules. The vested rights are composed of:

 

  a)

An annual retirement pension equal to 1.8% of the last three years average pension bearing pay at the time the employee leaves the company, multiplied by the number of years and months of participation accumulated or bought (participation credit) at that date.

 

PENSION PLAN RULES    Page 19


  b)

An annual Surviving Spouse’s pension equal to 60% of the retirement pension.

The portable benefit will be at least equivalent to:

 

  a)

Portable benefits brought in plus any participation credit plus interest,

 

  b)

The amount of contributions paid by the Participant, with interest, increased by 4% per annum as of age 20, but not more than 100% as of age 45 (see table on attachment 4 to the present rules).

The interest rate generally equals to the LPP minimum rate; in case of an underfunding, the LPP minimum rate can be decreased by 0.5%.

 

8.3

Attribution of a portable benefit

The amount of the portable benefit is transferred to the pension institution of the new employer in accordance with the instructions given to the Foundation by the Participant.

If the Participant does not start work with a new employer, he may choose between subscribing a portable benefits policy and opening a portable benefits account with a pension fund.

If the Foundation fails to transfer these benefits within 30 days of receipt of all the relevant information, it shall pay default interest from that time.

If the Participant fails to provide the requisite information within the specified time limit, the Foundation shall transfer the Portable Benefits, including interest, to the Substitute Pension Plan at the earliest 6 months, and at the latest 2 years, after termination of employment.

 

8.4

Payment in cash

Cash payment may be made only if the Participant

 

  a)

is entitled to portable benefits of less than the equivalent of one year of participation,

 

  b)

leaves Switzerland permanently, subject to restrictions imposed by international agreements.

 

  c)

leaves the employer to become self-employed, and produces appropriate justification such as registration to the Commercial Register.

If the Participant is married, for any payment in cash, the written agreement of the spouse must be obtained. The Foundation may require an authenticated signature.

 

PENSION PLAN RULES    Page 20


8.5

Transfer to a Group Company

If Plan participation is terminated because of transfer of the Participant to a Group Company, the employer may direct that:

 

  a)

instead of obtaining a right to future benefits, he retains the Participation Credit already accrued provided, however, that he leaves his own contributions with the Foundation and does not acquire any new benefit participation credit under this Plan; or

 

  b)

his Participation Credit be transferred to the Group Company.

The Plan participation of any Participant, who has retained his Participant Credit with the Foundation according letter a) above, shall end when he starts a new employment with the employer.

 

8.6

Disabled Participants

A Disabled Participant who is no longer considered as disabled and who is re-employed by the employer shall again become eligible for participation in the Plan, in which event he shall retain all prior Participation Credit (including participation credit accumulated during the period of disability) as if he had contributed to the plan until the end of disability. If he is not re-employed by the employer he shall receive the Portable Benefit to which he would have been entitled had his employment been terminated at the time he became a Disabled Participant.

SECTION 9 - APPLICATION FOR AND PAYMENT OF PENSION

 

9.1

Beneficiaries entitled to payment of benefits under this Plan shall be required to execute application forms and provide reasonable proof of facts as the Foundation may require.

 

9.2

Retirement pensions shall be paid monthly in advance beginning with the month of effective date of retirement and terminating at the end of the month in which the Pensioner dies.

 

9.3

Pensions payable to the Survivor(s) shall be paid monthly in advance and shall terminate in accordance with the provision of Section 6.

 

9.4

If a Pensioner is re-employed by the employer as an Employee, he may with the consent of the employer retain all rights of a Pensioner, but without accruing additional Participation Credit.

 

9.5

The amount of the monthly pension computed in accordance with this Plan, if not in whole Swiss francs, shall be increased to the next higher Swiss franc.

 

PENSION PLAN RULES    Page 21


SECTION 10 - GENERAL RULES

 

10.1

This Plan shall not be construed as giving any person the right of employment with the employer or any Group Company.

 

10.2

Pension and other benefits derived from this Plan are for the sole benefit of the beneficiaries thereof and are not subject to assignment, transfer, enforcement, or levy of any kind except to the extent required by law.

 

10.3

All contributions and benefits payable under this Plan shall be calculated and paid out in Swiss Francs. In the event a Participant’s Monthly Pay is in a currency other than Swiss Francs, his Monthly Pay for the purposes of this Plan shall be the Swiss Franc equivalent of such Monthly Pay converted at the official rate of exchange at the time it is due.

 

10.4

The Foundation, following a decision of the Board of the Foundation, may reduce the benefits accordingly if the AI refuses, reduces or stops benefits because the beneficiary has provoked his death or disability by a serious offence or refuses to follow rehabilitation measure proposed by the AI. However, the reduction may not exceed the extent of the reduction, withdrawal or refusal decided by the AVS / AI.

 

10.5

The current pensions in payment are inflation-adjusted according to the financial capabilities of the Foundation. The Board of the Foundation shall decide each year if and to what extent current pensions should be adjusted. The Foundation will include these decisions in its annual report. The minimum provisions of the LPP are reserved.

 

10.6

All Participants may pledge their portable benefits (maximum accumulated until age 50 or if above, half of that accumulated at the time of the request should it be after age 50) and at the latest at age 62 either by pledge or early withdrawal for

 

  a)

Acquisition or construction of a residence,

 

  b)

Acquisition of part of a co-operative habitable residence,

 

  c)

Redemption of existing mortgages.

Only the principal domicile is covered by such an arrangement.

The payment incurs simultaneously a reduction of benefits calculated under the present Plan. For the married Participant, the agreement of his spouse is required. The Foundation may require an authenticated signature.

The Participant or his heirs must reimburse the amount received from the Foundation if:

 

  a)

the property is sold,

 

PENSION PLAN RULES    Page 22


  b)

equivalent economic transfer rights are granted on the property,

 

  c)

no benefits are payable under this plan in the event of the Participant’s death.

 

10.7

All circumstances not covered by the present Rules will be settled by the Board of the Foundation according to its statutes and according to any laws or orders of the Supervisory Authority

 

10.8

Claims between insured persons, beneficiaries, an employer and the Foundation shall  be brought before the competent Cantonal tribunal.

These Plan Rules have been established in French; they can be translated into other languages. In case of any discrepancies between the French text and the translation, the French text is binding.

 

10.9

When the Foundation, as the last known pension plan, has a temporary obligation to assume payment of disability or survivors’ benefits, the entitlement is limited to the minimal LPP requirements. If it is later established with certainty that the Foundation is not responsible for payment of benefits, it will reclaim such benefits.

 

10.10

Each Participant receives a benefits statement at the time of joining the Foundation, when there is an insurance modification, and in the case of marriage, but at least once a year.

The benefits statement contains information about the Participant’s individual insurance conditions, particularly the following amounts: insured benefits, Pension Bearing Pay, contributions, and portable benefits. In the event of discrepancy between the benefits statement and these Pension Plan Rules, the Rules shall take precedence.

At least once a year, the Foundation shall inform each Participant, in an appropriate manner, about the Foundation’s organisation, funding, and the composition of the Board of the Foundation.

The Foundation, upon request, shall send Participants a copy of the annual report and financial statements and inform them about the return on capital, the trend in actuarial risk, administration costs, principles for calculating the liabilities, supplemental provisions and coverage ratio.

 

10.11

Benefits are generally paid into an account in Switzerland; in case of payments made into an account abroad, benefits are reduced by the bank service charges. However, beneficiaries domiciled in a member state of EU or EFTA may request payment on an account in their country of residence without any reduction.

 

10.12

The Foundation can claim repayment of benefits wrongfully obtained or paid, in particular portable benefits which have been provided to eligible disabled participants. If no repayment occurs, the Foundation shall reduce its benefits accordingly.

 

PENSION PLAN RULES    Page 23


10.13

The Foundation may require to an eligible disabled participant or survivors of a Participant that they surrender their rights to a third party civil liability for the disability or death to the extent of the benefits of the Foundation, and provided that it is not, under the LPP, subrogated to the rights of the insured person’s survivors or other rightful claimants. The Foundation is authorized to suspend its services until the assignment is reached.

 

10.14

The benefits of the Foundation cannot be sold or pledged as long as they are not payable. The right to pledge remains reserved as part of encouraging home ownership. Entitlement to benefits cannot be offset against claims that the employer has transferred to the Foundation that if these claims are intended contributions that have not been deducted from salary.

SECTION 11 - DIVORCE

 

11.1

The Foundation only executes final divorce judgments (decrees absolute) delivered by Swiss courts.

 

11.2

If an active Participant is liable under a pension-sharing order, the Foundation shall reduce his benefits as follows:

 

  a.

the amount decided by the court shall first be deducted from the voluntary contributions account; the balance, if any, shall be deducted from the participation credit based on the rates in Annex 1; as a result, all benefits calculated on the basis of the voluntary contribution account and participation credit are reduced; all the Participant’s other individual accounts shall be reduced proportionately;

 

  b.

if a Participant retires before the end of the divorce proceedings, the Foundation may temporarily pay retirement benefits based on the information available; the exact amount of the retirement benefits will be determined at the end of the divorce procedure; any excess retirement benefits paid shall be deducted from the pension-sharing benefit to the extent they cannot be offset against the Participant’s future benefits.

 

11.3

If a disabled Participant is liable under a pension-sharing order, the Foundation shall reduce his benefits as follows:

 

  a.

the participation credit used to calculate the disability pension in payment will be reduced by the amount decided by the court; the rates set in the Rules applicable at the start of the entitlement to a pension shall apply; all the Participant’s other accounts shall be reduced proportionately;

 

PENSION PLAN RULES    Page 24


  b.

the disability pension will then be recalculated (reduced) based on the reduced participation credit; the Rules applicable at the start of the entitlement to the pension shall apply; any disabled Participant’s child’s pensions in payment will not be reduced; any future disabled Participant’s child’s pensions will be calculated on the reduced disability pension;

 

  c.

any other pension benefits determined on the basis of the participation credit will also be recalculated (reduced) based on the reduced participation credit.

 

11.4

If the beneficiary of a retirement pension (including the former beneficiaries of disability pensions) is liable under a pension-sharing order, the Foundation shall reduce his benefits as follows:

 

  a.

the retirement pension in payment shall be reduced by the amount decided by the court; the reduction will be converted into a lifelong pension in accordance with Article 19h OLP which the Foundation shall pay to the beneficiary spouse (divorce pension);

 

  b.

the reduction in the retirement pension does not affect any Pensioner’s child’s pensions in payment, or any orphan’s pensions superseding Pensioner’s child’s pensions. However, any new child’s pensions or orphan’s pensions shall be calculated based on the reduced retirement pension.

 

11.5

As a rule, the pension-sharing benefit (vested termination benefit or divorce pension) shall be paid to the occupational benefits institution of the beneficiary spouse or, if he has none, to a vested benefits institution. However:

 

  a.

if the beneficiary spouse satisfies the conditions of Article 5 LFLP, or if he is drawing a full disability pension, the pension-sharing benefit will be paid to him directly at his request;

 

  b.

if the beneficiary spouse has reached the age of 58, the divorce pension will be paid to him directly at his request;

 

  c.

if the beneficiary spouse has reached the LPP normal retirement age, the pension-sharing benefit will be paid to him directly unless he asks for it to be transferred to his occupational benefits institution if the latter accepts such transfers;

 

  d.

at the request of the beneficiary spouse, the divorce pension will be replaced by a single lump-sum settlement calculated in accordance with the principles set forth in Article 19h OLP;

 

  e.

the divorce pension is payable until the death of the beneficiary spouse; from this time, no other benefits (survivor benefits, indemnities, etc.) shall be due to the beneficiary spouse.

 

PENSION PLAN RULES    Page 25


11.6

Active Participants whose participation credit was reduced in connection with a divorce may increase their participation credit at any time, but not after the occurrence of an insured event, through voluntary contributions. The restrictions in Section 4.3 are not applicable. However, such purchases may not exceed the amount transferred in connection with the divorce. Purchases made after the effective date of the decree absolute shall reduce the purchase allowance in connection with the divorce. Pensioners and disabled Participants cannot make voluntary contributions to compensate the reduction in their pension following a divorce.

 

11.7

If an active or disabled Participant is the beneficiary of a pension-sharing order (lump sum or pension), the Foundation shall apply the amounts received in the same way as a portable benefit The corresponding provisions apply by analogy. The minimum LPP pension assets shall be increased insofar as the Foundation receives such benefits. If a Pensioner is the beneficiary of a pension-sharing order, the corresponding benefits shall be disbursed directly to him and shall not affect the benefits under these Rules.

 

11.8

In the event of a divorce, the Foundation shall provide the information under Article 24 LFLP and Article 19k OLP to the Participant or the court on request.

 

11.9

At the request of the Participant or the court, the Foundation will examine a pension-sharing proposal and express its opinion in writing (feasibility statement).

SECTION 12 - AMENDMENT OF THE PENSION PLAN

These Plan Rules may be amended at any time by the Board of the Foundation.

These rules replace all previous plan rules and become effective on 1 January 2017.

Encs. ment.

 

PENSION PLAN RULES    Page 26


ATTACHMENT 1 - In force as of 1 January 2017

FACTORS TO CONVERT CHF.1.- OF ACCRUED ANNUAL PENSION

INTO PORTABLE BENEFIT

 

AGE

  

MEN

  

AGE

  

WOMEN

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

  

3.333

3.566

3.800

4.033

4.267

4.500

4.734

4.967

5.201

5.434

5.668

5.901

6.135

6.368

6.602

6.835

7.069

7.302

7.536

7.769

8.003

8.236

8.470

8.703

8.937

9.170

9.447

9.733

10.028

10.333

10.647

10.972

11.308

11.655

12.014

12.385

12.770

13.169

13.583

14.013

14.460

14.924

15.407

15.909

16.430

16.971

  

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

  

3.333

3.548

3.763

3.978

4.193

4.408

4.623

4.838

5.053

5.268

5.483

5.698

5.913

6.129

6.344

6.559

6.774

6.989

7.204

7.419

7.634

7.849

8.064

8.279

8.494

8.709

8.974

9.248

9.530

9.822

10.123

10.435

10.756

11.089

11.433

11.789

12.158

12.541

12.937

13.347

13.773

14.214

14.672

15.146

15.638

16.148

EXAMPLES :   

In case of arrival :

  

Man aged 28 years & 5 months :

     5.298  

Final Three-Year Pension Bearing Pay :

     70’000  

Portable benefit from previous pension fund :

     19’695  
Cost of one year of service :   

1.8% x 70’000 x 5.298 =

     6’676  
Participation credit bought :   

19’695 / 6’676 =

     3 years  

************************************************

 

In case of departure :

  

Man aged 29 years & 7 months :

     5.571  

Final Three-Year Pension Bearing Pay :

     75’000  
Accrued participation credit :      4 years and 8 months  
Accrued annual pension :   

1.8% x 75’000 x (4 + 8/12) =

     6’300  
Portable benefit at departure :   

6’300 x 5.571 =

     35’097  

Mortality table LPP2015 (P 2015)

  

Technical interest rate: 3.0 % p.a.

  
 


ATTACHMENT 2 - In force as of 1 January 2017

FACTORS TO CONVERT CHF.1.- OF ANNUAL PENSION

INTO A LUMP SUM

MEN

AGE

  

MARRIED

  

NOT MARRIED

58

59

60

61

62

63

64

65

66

  

19.911

19.530

19.143

18.748

18.346

17.936

17.520

17.095

16.663

  

17.625

17.211

16.792

16.369

15.942

15.510

15.074

14.632

14.185

WOMEN

AGE

  

MARRIED

  

NOT MARRIED

58

59

60

61

62

63

64

65

66

  

19.654

19.262

18.861

18.452

18.034

17.606

17.170

16.724

16.269

  

18.756

18.359

17.953

17.540

17.118

16.689

16.251

15.805

15.351

 

EXAMPLE :

  

Married man retiring at the age of 62 years & 2 months :

     18.278  

Accrued annual pension :

     60’000  

Participant’s choice :             lump sum

                                                pension

    

40

60


Lump sum :

  

60’000 x 40% x 18.278 =

     438’672  

Annual pension :

  

60’000 x 60% =

     36’000  

Mortality table LPP2015 (P 2015)

  

Technical interest rate: 3.0 % p.a.

  


ATTACHMENT 3 - In force as of 1 January 2017

FACTORS TO REDUCE THE BASE PENSION TO FINANCE THE

TEMPORARY COMPLEMENTARY PENSION

 

AGE

  

MEN

  

AGE

  

WOMEN

58

59

60

61

62

63

64

65

  

0.470

0.396

0.324

0.254

0.187

0.123

0.060

0.000

  

58

59

60

61

62

63

64

  

0.401

0.329

0.258

0.191

0.125

0.061

0.000

 

EXAMPLE :

  

Man retiring at the age of 62 years & 2 months :

     0.176  

Years of AVS contributions with the employer :

     32 years  

Maximum monthly AVS pension for 44 years of contributions :

     2’350  

Monthly temporary complementary pension until age 65 :

  

2’350 x 32 / 44 =

     1’709  

Deduction from the monthly base pension as of age 65 for life :

  

1’709 x 0.176 =

     301  

Mortality table LPP2015 (P 2015)

  

Technical interest rate : 3.0 % p.a.

  


ATTACHMENT 5 - In force as of 1 January 2017

EXAMPLE FOR THE PREFINANCING OF EARLY RETIREMENT

 

EXAMPLE:

  

Married man of :

     40 years old  

Accrued participation credit :

     20 years  

Maximum participation credit until age 65 :

     45 years  

Request for the prefinancing of an early retirement at age :

     age 58  

Final Three-Year Pension

  

Bearing Pay :

     120’000  

Retirement pension projected at age 65 :

  

1.8% x 120’000 x 45 =

     97’200  

Actuarial reduction at age 58 :

  

(65-58) x 4% =

     28.00

Retirement pension projected at age 58 :

  

1.8% x 120’000 x 38 x (1-28%) =

     59’098  

Maximum retirement pension that could be financed :

  

97’200 - 59’098 =

     38’102  

Factor according to attachment 2 for a married man of age 58 :

     19.911  

Capital requested at age 58 :

  

38’102 x 19.911

     758’649  

Maximum amount for the prefinancing at age 40 :

  

758’649 x (1+3.0%) ^ (-(58-40)) =

     445’627  

This is for an illustration purpose only. The actual retirement pension will depend on the actual interest rate credited on the voluntary contributions.

Mortality table LPP2015 (P 2015)

Technical interest rate: 3.0 % p.a.

EX-21.1

Exhibit 21.1

Corteva, Inc.

SUBSIDIARIES OF THE REGISTRANT

The following is a list of subsidiaries of Corteva, Inc. as of the separation from DowDuPont Inc.

 

Subsidiary   

Organized Under

Laws Of

3044873 Nova Scotia Company

   Canada

3319858 Nova Scotia Company

   Canada

AG China, Inc.

   Delaware

AG EMEA Cooperatief U.A.

   The Netherlands

AG EMEA Holding 1 BV

   The Netherlands

AG EMEA Holding 2 BV

   The Netherlands

AG EMEA Holding 3 BV

   The Netherlands

AG EMEA Holding 4 BV.

   The Netherlands

AG EMEA Holding 6 BV (f/k/a SP EMEA Holding 5 BV)

   The Netherlands

AG EMEA Holding B.V.

   The Netherlands

AG Holdco Mexico, S. DE R.L. DE C.V.

   Mexico

AG Mexico, LLC

   Delaware

AG MX 2, Inc.

   Delaware

AG Orion Holding B.V.

   The Netherlands

Agar Cross Paraguaya S.A.

   Paraguay

Agrigenetics Molokai LLC

   Hawaii

Agrigenetics, Inc.d/b/a Mycogen Seeds

   Delaware

Agroservicios de Mexico DDM, S de R.L. de C.V.

   Mexico

Agrovet S.A.

   Guatemala

AgSurf Corporation

   Delaware

AgVenture, Inc.

   Indiana

Alforex Seeds LLC

   Delaware

Ambito DAS S.A.

   Argentina

Brodbeck Seeds LLC

   Delaware

Cal/West Seeds S.R.L.

   Argentina

Centen AG LLC

   Delaware

ChacoDAS S.A.

   Argentina

Christiana Insur Llc

   Delaware

Coodetec Desenvolviment Produção e Comercializaçã Agrícola Ltda.

   Brazil

Corteva Finance Company B.V.

   The Netherlands

Cruz del Sur Duwest, S.A.

   Panama

DairyLand Seed Co., Inc.

   Wisconsin

DAS Agricultural Investment Holding Company Ltd

   Mauritius

DasAgro Uruguay S.A.

   Uruguay

Daser Agro S.A.

   Argentina


Dcm Marketing Corp

   Delaware

DDP Agro Morocco SARL

   Morocco

DDP Agro Netherlands Holding B.V.

   The Netherlands

DDP Agro Switzerland Holding GmbH

   Switzerland

DDP Agro US Holding LLC

   Delaware

DDP AgroSciences Kenya Limited

   Kenya

DDP AgroSciences Nigeria Limited

   Nigeria

DDP AgroSciences S.R.L.

   Peru

DDP AgroSciences Switzerland GmbH

   Switzerland

DDP AgroSciences US DCOMCO, Inc.

   Delaware

DDP AgroSciences US, Inc.

   Delaware

Desab S.A.

   Argentina

Dikanka Nasinnia LLC

   Ukraine

Doeblers Pennsylvania Hybrids, Inc.

   Pennsylvania

Dow AgroSciences (China) Company Limited

   China

Dow AgroSciences (China) Company Limited Beijing Branch Office

   China

Dow AgroSciences (China) Company Limited Shanghai Branch Office

   China

Dow AgroSciences (Jiangsu) Co.,Ltd.

   China

Dow AgroSciences (Malaysia) Sdn Bhd

   Malaysia

Dow AgroSciences (NZ) Limited

   New Zealand

Dow AgroSciences (Thailand) Ltd.

   Thailand

Dow AgroSciences A.S.

   Turkey

Dow AgroSciences Agricultural Products Limited

   Mauritius

Dow AgroSciences Argentina SRL

   Argentina

Dow AgroSciences Asia Sdn. Bhd

   Malaysia

Dow AgroSciences Australia Limited

   Australia

Dow AgroSciences B.V.

   The Netherlands

Dow AgroSciences B.V. (Belgium branch)

   Belgium

Dow AgroSciences B.V. (Philippines branch)

   Philippines

Dow AgroSciences Bolivia S.A.

   Bolivia

Dow AgroSciences Canada Inc.

   Canada

Dow AgroSciences Chile S.A.

   Chile

Dow AgroSciences China Ltd.

   Hong Kong

Dow AgroSciences China Ltd. - Beijing Rep. Office

   China

Dow AgroSciences Costa Rica S.A.

   Costa Rica

Dow AgroSciences Danmark A/S

   Denmark

Dow AgroSciences de Colombia S.A.

   Colombia

Dow AgroSciences de Mexico S.A. de C.V.

   Mexico

Dow AgroSciences Distribution S.A.S.

   France

Dow AgroSciences Export S.A.S.

   France

Dow AgroSciences Export S.A.S. – Egypt Rep. Office

   Egypt

Dow AgroSciences Export S.A.S. Bulgarian Representive Office

   Bulgaria

Dow AgroSciences Export S.A.S. Greece Branch Office

   Greece

 

2


Dow AgroSciences Export S.A.S. Romanian Representive Office

   Romania

Dow AgroSciences GmbH

   Germany

Dow AgroSciences Guatemala S.A.

   Guatemala

Dow AgroSciences Hungary Kft.

   Hungary

Dow AgroSciences Hungary Kft. Branch Office Szeged

   Hungary

Dow AgroSciences Hungary Kft. Branch Office Szolnok

   Hungary

Dow AgroSciences Iberica S.A.

   Spain

Dow AgroSciences India Pvt. Ltd.

   India

Dow AgroSciences Industrial Ltda.

   Brazil

Dow AgroSciences International Ltd

   Delaware

Dow AgroSciences International Ltd.(Korean Branch)

   Korea

Dow AgroSciences Italia s.r.l.

   Italy

Dow AgroSciences Japan Limited

   Japan

Dow AgroSciences Limited

   United Kingdom

Dow AgroSciences Lithuania UAB

   Lithuania

Dow AgroSciences LLC

   Delaware

Dow AgroSciences OOO

   Russia

Dow AgroSciences Pacific Limited

   Hong Kong

Dow AgroSciences Paraguay S.A.

   Paraguay

Dow AgroSciences Polska Sp.z.o.o.

   Poland

Dow AgroSciences S.A.S.

   France

Dow AgroSciences s.r.o.

   Czech Republic

Dow AgroSciences s.r.o. Slovakian Representation Office

   Slovakia

Dow AgroSciences Singapore Pte. Ltd.

   Singapore

Dow AgroSciences Southern Africa (Proprietary) Limited

   South Africa

Dow AgroSciences Sverige A/B

   Sweden

Dow AgroSciences Switzerland S.A.

   Switzerland

Dow AgroSciences Switzerland S.A. Croatia Representative Office

   Croatia

Dow AgroSciences Taiwan Ltd.

   Taiwan

Dow AgroSciences Technology GmbH

   Switzerland

Dow AgroSciences Ukraine LLC

   United Kingdom

Dow AgroSciences Vertriebsgesells chaft m.b.H.

   Austria

Dow AgroSciences Vertriebsgesells chaft m.b.H. Russian Representation Office

   Russia

Dow AgroSciences Vertriebsgesells chaft m.b.H. Serbian Representation Office

   Serbia

Dow AgroSciences Vertriebsgesells chaft m.b.H. Ukraine Representation Office

   Ukraine

Dow AgroSciences Export SAS Ivory Coast Representative Office

   Ivory Coast

Dow Venezuela, C.A.

   Venezuela

DP AgroSciences Finland OY

   Finland

DPM Netherlands B.V.

   The Netherlands

Ducoragro S.A. de C.V.

   Mexico

Dup Bulgaria Eood

   Bulgaria

Dup Cap Mgmt Corp

   Delaware

Dup Kazakhstan

   Kazakhstan

 

3


Dup Srb Doo Beograd

   Serbia

DuPont (Cambodia) Company Limited

   Cambodia

DuPont (Myanmar) Company Ltd

   Myanmar

DuPont (New Zealand) Limited

   New Zealand

DuPont (South America), Holdings LLC

   Delaware

DuPont (Taiwan) Agriscience Co. Ltd.

   Taiwan

DuPont (Thailand) Limited

   Thailand

DuPont AGR Services Sàrl

   Switzerland

DuPont Argentina S.R.L.

   Argentina

DuPont Asturias, S.L.U.

   Spain

DuPont Bangladesh Limited

   Bangladesh

DuPont Belgian Capital, LLC

   Delaware

DuPont Belgium North America Finance Company

   Belgium

DuPont Chemical and Energy Operations, Inc.

   Delaware

DuPont Chile S.A.

   Chile

DuPont Company (Singapore) Pte Ltd.

   Singapore

DuPont Conid S.p.A.

   Italy

DuPont Contern (Luxembourg) SARL

   Luxembourg

DuPont CZ s.r.o.

   Czech Republic

DuPont Danmark ApS

   Denmark

DuPont de Colombia, S.A.

   Colombia

DuPont de Ecuador SA

   Ecuador

DuPont De Nemours (France) S.A.S.

   France

DuPont de Nemours Groupe SAS

   France

DUPONT DE NEMOURS HOLDING LLC (DUPONT DE NEMOURS HOLDING SARL)

   Switzerland

DuPont de Nemours Investments SARL

   Switzerland

DuPont de Nemours Italiana S.r.l.

   Italy

DuPont de Nemours South Africa (Pty) Ltd.

   South Africa

DuPont de Peru S.A.C.

   Peru

DuPont Deutschland Real Estate Partner GmbH

   Germany

DuPont do Brasil S.A.

   Brazil

DuPont Eastern Europe BV

   The Netherlands

DuPont Energy Company, LLC

   Delaware

DuPont Far East Inc.

   Philippines

DuPont Far East, Inc.

   Delaware

DuPont Feedstocks Company

   Delaware

DuPont Global Operations, Inc.

   Delaware

DuPont Hellas S.A.

   Greece

DuPont Holdco Spain III SL

   Spain

DUPONT HOLDING NEDERLAND B.V.

   The Netherlands

DuPont Ibérica, S.L.U.

   Spain

DUPONT India LIMITED, LLC

   Delaware

 

4


DuPont International BV

   The Netherlands

DuPont International Operations Sarl

   Switzerland

DuPont Magyarorszag Kft

   Hungary

DUPONT MEXICANA S. DE R.L. DE C.V.

   Mexico

DuPont North America Inc.

   Delaware

DuPont Operations Italia S.r.L.

   Italy

DuPont Operations Worldwide, LLC

   Delaware

DUPONT OPERATIONS, INC.

   Delaware

DuPont Orient Operations Ltd.

   Hong Kong

DuPont Overseas Operations, Inc.

   Delaware

DuPont Phi Nigeria Limited

   Nigeria

DuPont Pioneer Egypt Holding, B.V.

   The Netherlands

DuPont Pioneer Investment Co., Ltd.

   China

DuPont Poland Sp z.o.o.

   Poland

DuPont Portugal Unipessoal LDA

   Portugal

DuPont Production Agriscience (Malaysia) SDN. BHD

   Malaysia

DuPont Production Agriscience Deutschland GmbH

   Germany

DuPont Production Agriscience Kabushiki Kaisha

   Japan

DuPont Quimica de Venezuela, C.A.

   Venezuela

DuPont Romania S.R.L.

   Romania

DuPont Science and Technologies LLC

   Russia

DuPont Solutions (France) SAS

   France

DUPONT South Africa HOLDCO (PTY) LTD

   South Africa

DuPont Specialty Products (Shanghai) Co., Ltd.

   China

DUPONT SVERIGE AB

   Sweden

DuPont Textiles & Interiors Delaware, Inc.

   Delaware

DuPont Turkey Endustri Urunleri Limited Sirketi

   Turkey

DuPont Ukraine LLC

   Ukraine

DuPont Vietnam Co., Ltd.

   Vietnam

Duwest Recubrimientos Costa Rica

   Costa Rica

Duwest, Inc.

   Cayman Islands

E. I. du Pont de Nemours and Company

   Delaware

E. I. DuPont Services Center India Private Limited

   India

E.I. DuPont India Private Limited

   India

Eyal Sa

   Uruguay

Farms Technology , LLC

   Delaware

Fedea S.A.

   Argentina

Granular, Inc.

   Delaware

Green Meadows, Ltd.

   Iowa

Griffin L.L.C.

   Delaware

Hickory Holdings, Inc.

   Delaware

Hickory Securities, LLC

   Delaware

 

5


Hoegemeyer Hybrids, Inc.

   Nebraska

Imp Mtl & Chem Co

   Delaware

MISR Pioneer Seeds Company S.A.E.

   Egypt

Mycogen LLC

   California

Mycogen Plant Science, Inc

   Delaware

Mycogen Seeds-Puerto Rico Corporation

   Puerto Rico

NuTech Seed, LLC (SMLLC of PHI)

   Iowa

Orion Mexico, LLC

   Delaware

P.T. DuPont Indonesia

   Indonesia

Pannar Industrial Holdings (Pty) Ltd.

   South Africa

Pannar International (Pty) Ltd.

   South Africa

Pannar Ltd.

   United Kingdom

Pannar Research Farms (Pty) Ltd.

   South Africa

Pannar Seed (Pty) Ltd.

   South Africa

Pannar Seed Holdings (Pty) Ltd.

   South Africa

Pannar Seed Inc. - USA

   Delaware

Pannar Seed Kenya Ltd.

   Kenya

Pannar Seed Lda

   Mozambique

Pannar Seed Lesotho (Pty) Ltd.

   Lesotho

Pannar Seed Malawi Ltd.

   Malawi

Pannar Seed Swaziland (Pty) Ltd.

   Swaziland

Pannar Seed Tanzania Ltd.

   Tanzania

PD Glycol LP

   Texas

Performance Materials Danmark ApS

   Denmark

Performance Materials Hungary Kft.

   Hungary

Pfister Seeds LLC

   Delaware

PHI Financial Services Canada Ltd.

   Canada

PHI Financial Services, Inc.

   Iowa

PHI Mexico, S.A. de C.V.

   Mexico

PHI Seeds Pvt. Ltd.

   India

PHI Servicios S de R.L. de C.V. f/k/a PHI Servicios S.A. de C.V.

   Mexico

Phytogen Seed Company, LLC

   Delaware

Pioneer Agro Servicios Chile Ltda

   Chile

Pioneer Argentina, S.R.L. (formerly Pioneer Argentina, S.A.)

   Argentina

Pioneer Blé Sarl

   France

Pioneer China Business Trust

   Hong Kong

Pioneer Génétique Sarl

   France

Pioneer HB Production Company

   Canada

Pioneer Hi-Bred Agro Servicios Spain SL

   Spain

Pioneer Hi-Bred Australia, Pty Ltd.

   Australia

Pioneer Hi-Bred Canada Company

   Canada

Pioneer Hi-Bred Europe, Inc.

   Iowa

 

6


Pioneer Hi-Bred International, Inc.

   Iowa

Pioneer Hi-Bred Italia Servizi Agronomici SRL

   Italy

Pioneer Hi-Bred Italia SRL

   Italy

Pioneer Hi-Bred Italia Sementi SRL

   Italy

Pioneer Hi-Bred Kenya Limited

   Kenya

Pioneer HI-Bred Private Limited

   India

Pioneer Hi-Bred Puerto Rico, Inc.

   Iowa

Pioneer Hi-Bred R.S.A. (Pty) Ltd.

   South Africa

Pioneer Hi-Bred Rus Limited

   Russia

Pioneer Hi-Bred Seed Agro S.R.L.

   Romania

Pioneer Hi-Bred Seeds Ethiopia PLC

   Ethiopia

Pioneer Hi-Bred Spain, S.L.

   Spain

Pioneer Hi-Bred SRB LLC

   Serbia

Pioneer Hi-Bred Ukraine

   Ukraine

Pioneer Hi-Bred (Switzerland) S.A.

   Switzerland

Pioneer Hi-Bred (Thailand) Co. Limited

   Thailand

Pioneer Hi-Bred Foundation

   Iowa

Pioneer Hi-Bred Holding Spain, SL

   Spain

Pioneer Hi-Bred International Production Limited

   Turks and Caicos

Pioneer Hi-Bred Magyarorszag Kft

   Hungary

Pioneer Hi-Bred Northern Europe Sales Division GmbH

   Germany

Pioneer Hi-Bred Northern Europe Service Division GmbH

   Germany

Pioneer Hi-Bred Philippines, Inc.

   Philippines

Pioneer Hi-Bred Production and Service Company Limited

   Hungary

Pioneer Hi-Bred Research R.S.A. (Proprietary) Ltd.

   South Africa

Pioneer Hi-Bred Romania S.R.L.

   Romania

Pioneer Hi-Bred S.A.R.L.

   France

Pioneer Hi-Bred Sementes de Portugal, S.A.

   Portugal

Pioneer Hi-Bred Services GmbH (formerly known as Pioneer Saaten GmbH)

   Austria

Pioneer Hi-Bred Slovensko, Spol S.R.O.

   Slovakia

Pioneer Mexico Holdings, LLC

   Iowa

Pioneer Mexico Operations, S. de R.L. de C.V.

   Mexico

Pioneer Overseas Corp (Branch in Belgium)

   Belgium

Pioneer Overseas Corp (Branch in Egypt)

   Egypt

Pioneer Overseas Corp (Branch in India)

   India

Pioneer Overseas Corp (Branch in Turkey)

   Turkey

Pioneer Overseas Corporation

   Iowa

Pioneer Overseas Corporation (Hong Kong) Holdings Limited

   Hong Kong

Pioneer Overseas Corporation (Hong Kong) Holdings No 1 Limited

   Hong Kong

Pioneer Overseas Corporation (Hong Kong) Holdings No 2 Limited

   Hong Kong

Pioneer Overseas Corporation (Singapore) PTE LTD

   Singapore

Pioneer Overseas Investors, LLC

   Iowa

Pioneer Overseas Research Corporation

   Iowa

 

7


Pioneer Pakistan Seed Limited

   Pakistan

Pioneer Seed Holding Nederland B.V.

   The Netherlands

Pioneer Seed Holding Participations B.V.

   The Netherlands

Pioneer Seeds, Inc.

   Iowa

Pioneer Semena GmbH

   Austria

Pioneer Semena Bulgaria EOOD

   Bulgaria

Pioneer Semences S.A.S

   France

Pioneer Service Holding B.V.

   The Netherlands

Pioneer Sjeme D.o.o

   Croatia

Pioneer Tohumculuk A.S.

   Turkey

Pioneer Tohumculuk Disribution and Marketing

   Turkey

Pioneer Turks & Caicos, LLC

   Turks and Caicos

Pitt-Consol Chemical Company

   Delaware

Prairie Brand Seeds LLC

   Delaware

Production Agriscience (Australia) Pty Ltd

   Australia

Production Agriscience Belgium BVBA

   Belgium

Production Agriscience Canada Company

   Canada

Production Agriscience Diamond, LLC

   Delaware

Production Agriscience Korea Ltd.

   Korea

Production Agriscience Netherlands BV

   The Netherlands

Production Agriscience UK LTD

   United Kingdom

PT Dow AgroSciences Commerce Indonesia

   Indonesia

PT Dow AgroSciences Indonesia

   Indonesia

PT DuPont Agricultural Products Indonesia

   Indonesia

Renwick Duwest Inc.

  

Puerto Rico

Renwick Duwest PR Inc.

   Puerto Rico

Rindes y Cultivos DAS S.A.

   Argentina

Seed Consultants, Inc.

   Ohio

Semillas Pioneer Chile Ltda.

   Chile

Semillas Pioneer de Venezuela C.A.

   Venezuela

Sociedad Comercial Agar Cross S.A.

   Bolivia

SP International Holding 3 BV

   The Netherlands

Sptg Gds Prop Inc

   Delaware

Stasi Nasinnia LLC

   Ukraine

SUMIDAS JV S.A.

   Argentina

Suministros Agropecuarios de El Salvador S.A. de C.V.

   El Salvador

Taxon Biosciences, Inc.

   Delaware

Teiling PioneerSeed Research Co Ltd.

   China

Terral Seed, Inc.

   Louisiana

Terramar JV S.A.

   Argentina

The Advantage Corp. (d/b/a PHI Marketing Services, Inc.)

   Iowa

 

8


The Representative Office of Dow AgroSciences B.V. in Ho Chi Minh City

   Vietnam

The Representative Office of Du Pont Far East Inc. In Ho Chi Minh City

   Vietnam

The Union Metallic Cartridge Company

   Connecticut

Ubajay DAS S.A.

   Argentina

Village Court, Inc.

   Iowa

Westrade Management Inc.

   Cayman Islands

Westrade Services Inc.

   Guatemala

 

9

EX-99.1
Table of Contents

Exhibit 99.1

 

LOGO

Dear DowDuPont Stockholder:

We are pleased to deliver to you this information statement to inform you that on May 6, 2019, the board of directors of DowDuPont Inc. (“DowDuPont”) approved the distribution of all the then issued and outstanding shares of common stock of Corteva, Inc. (“Corteva”), a wholly owned subsidiary of DowDuPont, to DowDuPont stockholders. At the time of the distribution, Corteva will hold DowDuPont’s agriculture business.

As previously announced, DowDuPont intends to separate into three independent, publicly traded companies—one for each of its agriculture, materials science and specialty products businesses. The distribution to DowDuPont stockholders of all the shares of common stock of Corteva is expected to be one of two distributions to effectuate this separation plan. The other distribution, which was completed on April 1, 2019, involved Dow Inc. (“Dow”), the DowDuPont subsidiary that, at the time of its distribution, held the assets and liabilities associated with DowDuPont’s materials science business. It is expected that after the distribution of Corteva, DowDuPont will be renamed “DuPont de Nemours, Inc.” (“New DuPont”). Once renamed, New DuPont is expected to change its symbol to “DD,” and the DowDuPont name and DWDP symbol are expected to be retired. Until such time, DowDuPont will continue to trade on the New York Stock Exchange (the “NYSE”) under the symbol “DWDP.”

The distribution of Corteva common stock will occur on June 1, 2019 by way of a pro rata dividend to DowDuPont stockholders. Each DowDuPont stockholder will be entitled to receive one share of Corteva common stock for every three shares of DowDuPont common stock held by such stockholder at the close of business on May 24, 2019, the record date of the distribution.

Immediately following the distribution of Corteva, DowDuPont stockholders as of the record date for the distribution will own 100% of the Corteva common stock being distributed and Corteva will become a publicly traded company. Immediately following the distribution of Corteva, New DuPont will continue to hold DowDuPont’s specialty products business. The DowDuPont board of directors believes that creating three focused companies is the best way to drive value for all of DowDuPont’s stakeholders. They also believe that the separation of the agriculture business from DowDuPont will better position both companies to capitalize on significant growth opportunities and focus their resources on their respective businesses and strategic priorities.

We expect the distribution of Corteva common stock to be tax-free for U.S. federal income tax purposes, except for any cash received in lieu of fractional shares. You should consult your own tax advisor as to the particular tax consequences of the distribution of Corteva common stock to you, including potential tax consequences under state, local and non-U.S. tax laws.

Stockholder approval of the distribution is not required. You are not required to take any action to receive your Corteva common stock and you do not need to pay any consideration or surrender or exchange your DowDuPont shares to receive your Corteva common stock.

Immediately following the distribution, you will own shares in both New DuPont and Corteva. Corteva’s common stock will be listed on the NYSE under the symbol “CTVA.”

The enclosed information statement is being made available to all DowDuPont stockholders who held shares of DowDuPont common stock as of the record date for the distribution of Corteva common stock. This statement describes the distribution in detail and contains important information about DowDuPont, Corteva and the distribution. We urge you to read the information statement carefully.

We want to thank you for your continued support of DowDuPont, and we look forward to your support of Corteva in the future.

 

             Sincerely,

 

   

 

 

Edward D. Breen

Chief Executive Officer

DowDuPont Inc.


Table of Contents

LOGO

Dear Corteva Shareholder:

Corteva combines the DuPont Pioneer, Dow AgroSciences and DuPont Crop Protection businesses to create a pure-play agriculture company. We are recognized by farmers as a leader in the seed and crop protection markets globally. Our seed platform develops and supplies high quality germplasm combined with advanced traits to produce higher yields for farmers around the world. Our crop protection platform supplies products to protect crop yields against weeds, insects and disease, enabling farmers to achieve optimal results. The combination of these leading platforms creates one of the broadest portfolios of agriculture solutions in the industry, fueling farmer productivity in more than 140 countries and generating pro forma annual sales of $14.3 billion for the year ended December 31, 2018. Our strategy is to provide farmers with the right mix of innovative seeds, crop protection and digital solutions to maximize their yields and improve their profitability, while strengthening customer relationships and ensuring an abundant food supply for a growing global population. We also have the opportunity, through our merger, to drive synergy benefits totaling nearly $1.7 billion, including approximately $1.2 billion in cost synergies and $500 million in growth synergies. Our synergy project, along with our ongoing productivity efforts, are aimed at achieving a best-in-class cost structure versus our peers, as well as a sharper focus on the customer.

We expect to create shareholder value by continuing to advance our science-based innovation focused on delivering a wide range of improved products and services to our customers. Through our merger of the Historical DuPont and Historical Dow innovations pipelines, we have created one of the broadest and most productive new product pipelines in the agriculture industry. We intend to leverage our rich heritage of over 275 combined years of scientific achievement to advance our robust innovation pipeline and continue to shape the future of responsible agriculture. We intend to launch 21 new products, balanced between seeds and crop protection, between 2017 and 2021, including the U.S. launch of Enlist E3 soybeans for 2019 planting and Qrome® corn products. New products are crucial to solving farmers’ productivity challenges amid a growing global population while addressing natural resistance, regulatory changes, safety requirements and competitive dynamics. Our investment in technology-based and solution-based product offerings allow us to meet farmers’ evolving needs while ensuring that our investments generate sufficient returns. Meanwhile, through our unique routes to market, we continue to work face-to-face with farmers around the world to deeply understand their needs.

Corteva common stock will be listed on the NYSE under the symbol “CTVA”.

We believe Corteva will be a unique company in the agriculture industry, with a global footprint, broad product offerings, a lean cost structure and an advantaged route to market that provides unmatched customer access. We strive to make an impact for our customers, while focusing on five priorities for shareholder value creation: (1) instill a strong culture, (2) drive disciplined capital resource allocation, (3) develop innovative solutions, (4) attain best-in-class cost structure and (5) deliver above market growth. We invite you to learn more about Corteva by reviewing the enclosed information statement. We hope it conveys our excitement and allows you to understand our plans to stand and spin Corteva successfully this year. We look forward to our future as an independent, publicly traded company and to your support as a shareholder of Corteva common stock.

Sincerely,

James C. Collins, Jr.

Chief Executive Officer


Table of Contents

Preliminary and Subject to Completion, dated May 6, 2019

 

LOGO

INFORMATION STATEMENT

Corteva, Inc.

Common Stock, Par Value $0.01 Per Share

This information statement is being furnished to the holders of common stock of DowDuPont Inc. (“DowDuPont”) in connection with the distribution of shares of common stock of Corteva, Inc. (“Corteva”). Corteva is a wholly owned subsidiary of DowDuPont that, at the time of the distribution, will hold DowDuPont’s agriculture business. DowDuPont will distribute all the outstanding shares of Corteva common stock on a pro rata basis to its common stockholders.

Corteva is organized as a corporation under the laws of the State of Delaware.

For every three shares of DowDuPont common stock held of record by you as of the close of business on May 24, 2019, the record date for the distribution, you will receive one share of Corteva common stock. No fractional shares of Corteva common stock will be issued. Instead, you will receive cash in lieu of any fractional shares. As discussed under “The Distribution—Trading Between the Record Date and Distribution Date,” if you sell your DowDuPont common stock in the “regular-way” market after the record date and before the separation and distribution, you will also be selling your right to receive shares of Corteva common stock in connection with the separation and distribution. We expect the shares of Corteva common stock to be distributed by DowDuPont to you on June 1, 2019. We refer to the date of distribution of Corteva common stock as the “distribution date.” After the distribution, we will be an independent, publicly traded company.

No vote of DowDuPont stockholders is required to effect the distribution. Therefore, you are not being asked for a proxy to vote on the separation or the distribution, and you are requested not to send us a proxy. You do not need to pay any consideration, exchange or surrender your existing shares of DowDuPont common stock or take any other action to receive your shares of Corteva common stock.

The distribution is intended to be tax-free to DowDuPont stockholders for United States federal income tax purposes, except for cash received in lieu of fractional shares. The distribution is subject to the satisfaction or waiver by DowDuPont of certain conditions, including the receipt of an opinion of Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”) confirming that the distribution and certain transactions entered into in connection with the distribution generally will be tax-free to DowDuPont and its shareholders for U.S. federal income tax purposes, except for cash received in lieu of fractional shares. Cash received in lieu of any fractional shares of DowDuPont common stock will generally be taxable to you.

DowDuPont currently owns all the outstanding shares of Corteva. Accordingly, there is no current trading market for Corteva common stock, although we expect that a limited market, commonly known as a “when-issued” trading market, will develop as early as the trading day prior to the record date for the distribution, and we expect “regular-way” trading of Corteva common stock to begin on the distribution date (or, if the distribution date is not a trading day, the first trading day after the distribution date). Corteva’s common stock will be listed on the New York Stock Exchange (the “NYSE”) under the symbol “CTVA.”

 

 

In reviewing this information statement, you should carefully consider the matters described under the caption “Risk Factors” beginning on page 30.

Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this information statement is truthful or complete. Any representation to the contrary is a criminal offense.

This information statement does not constitute an offer to sell or the solicitation of an offer to buy any securities.

The date of this information statement is May     , 2019

Notice of Internet Availability with instructions for how to access this information statement is first being mailed to DowDuPont stockholders on or about May     , 2019.


Table of Contents

TABLE OF CONTENTS

 

     Page  

MERGER, INTENDED SEPARATIONS, REORGANIZATION AND FINANCIAL STATEMENT PRESENTATION

     3  

INFORMATION STATEMENT SUMMARY

     7  

SUMMARY OF THE SEPARATION AND DISTRIBUTION

     12  

QUESTIONS AND ANSWERS ABOUT THE SEPARATION AND DISTRIBUTION

     17  

RISK FACTORS

     30  

CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

     52  

THE DISTRIBUTION

     53  

DIVIDEND POLICY

     61  

CAPITALIZATION

     62  

UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS

     63  

NOTES TO THE UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS

     71  

SUPPLEMENTAL MANAGEMENT’S DISCUSSION AND ANALYSIS OF PRO FORMA SEGMENT RESULTS

     90  

SUPPLEMENTAL LIQUIDITY & CAPITAL RESOURCES

     94  

SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA

     95  

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     97  

BUSINESS

     129  

MANAGEMENT

     149  

COMPENSATION DISCUSSION AND ANALYSIS

     159  

EXECUTIVE COMPENSATION

     173  

CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS

     184  

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

     186  

OUR RELATIONSHIP WITH NEW DUPONT AND DOW FOLLOWING THE DISTRIBUTION

     188  

MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE DISTRIBUTION

     205  

DESCRIPTION OF MATERIAL INDEBTEDNESS

     209  

DESCRIPTION OF OUR CAPITAL STOCK

     209  

WHERE YOU CAN FIND MORE INFORMATION

     214  


Table of Contents

The following is a summary of material information discussed in this information statement. This summary may not contain all the details concerning the separation and distribution or other information that may be important to you. To better understand the separation, distribution and our business and financial position, you should carefully review this entire information statement.

Unless otherwise indicated or the context otherwise requires, references in this information statement to:

 

   

“Business Realignment” has the meaning set forth in the section titled “Merger, Intended Separations, Reorganization and Financial Statement Presentation;”

 

   

“distribution” refers to the transaction in which DowDuPont will distribute to its stockholders all of the then issued and outstanding shares of Corteva common stock;

 

   

“distribution date” refers to the date of the distribution, which is expected to be on June 1, 2019;

 

   

“Corteva,” “we,” “us,” “our” and “the company” refer to Corteva Parent and its consolidated subsidiaries (including EID) after giving effect to the Internal Reorganization and Business Realignment, resulting in Corteva Parent holding the agriculture business of DowDuPont;

 

   

“Corteva common stock” refers to the shares of common stock, par value $0.01 per share, of Corteva Parent;

 

   

“Corteva Parent” refers to Corteva, Inc., the newly formed holding company for DowDuPont’s agriculture business;

 

   

“Dow” refers to Dow Parent and its consolidated subsidiaries (including TDCC) after giving effect to the Internal Reorganization and Business Realignment, resulting in Dow Parent holding the materials science business of DowDuPont;

 

   

“Dow AgroSciences” refers to the agriculture business of Historical Dow;

 

   

“Dow Parent” refers to Dow Inc., the newly formed holding company for DowDuPont’s materials science business;

 

   

“DowDuPont” refers to DowDuPont Inc., a Delaware corporation, and its consolidated subsidiaries, prior to the distribution of Corteva;

 

   

“DowDuPont stockholders” refers to holders of record of the common stock of DowDuPont in their capacity as such;

 

   

“EID” refers to E. I. du Pont de Nemours and Company, exclusive of its subsidiaries;

 

   

“Historical Dow” refers to TDCC and its consolidated subsidiaries prior to the Business Realignment;

 

   

“Historical DuPont” refers to EID and its consolidated subsidiaries prior to the Business Realignment;

 

   

“Internal Reorganization” has the meaning set forth in the section titled “Merger, Intended Separations, Reorganization and Financial Statement Presentation;”

 

   

“New DuPont” refers to DowDuPont and its consolidated subsidiaries, following the distribution of Corteva, at which time New DuPont will hold the specialty products business of DowDuPont and is expected to be renamed “DuPont de Nemours, Inc.;”

 

   

“record date” refers to the close of business on May 24, 2019, the date set by the DowDuPont board of directors to determine the DowDuPont stockholders eligible to receive the distribution of Corteva common stock;

 

   

“separation” refers to the transaction in which Corteva will be separated from DowDuPont; and

 

   

“TDCC” refers to The Dow Chemical Company, exclusive of its subsidiaries.

 

1


Table of Contents

Unless otherwise indicated or the context otherwise requires, this information statement describes Corteva as if the Internal Reorganization and Business Realignment have been completed and as if Corteva held the agriculture business of DowDuPont during all periods described. As a result, references in this information statement to Corteva’s historical assets, liabilities, products, businesses or activities are generally references to the applicable assets, liabilities, products, business or activities of Historical DuPont and Historical Dow on a pro forma basis as if the Internal Reorganization and Business Realignment had already occurred and Corteva was a standalone company holding DowDuPont’s agriculture business. See the section entitled “Merger, Intended Separations, Reorganization and Financial Statement Presentation” for further information.

You should carefully read this entire information statement, which forms a part of the registration statement on Form 10 (the “Form 10”), as well as the financial information contained in Historical DuPont’s annual financial statements, and the audited annual combined financial statements of Dow AgroSciences, which are incorporated by reference herein and filed as Exhibits 99.2 and 99.3, respectively, to the Form 10 of which this information statement forms a part. Some of the statements in this information statement constitute forward-looking statements. See the section entitled “Cautionary Statement Concerning Forward-Looking Statements.”

You should not assume that the information contained in this information statement is accurate as of any date other than the date set forth on the cover. Changes to the information contained in this information statement may occur after that date, and we undertake no obligation to update the information, except in the normal course of our public disclosure obligations.

Trademarks indicated by use of the symbols ® or ™ are trademarks of Historical DuPont, Pioneer, Dow AgroSciences or their affiliated companies or respective owners.

 

2


Table of Contents

MERGER, INTENDED SEPARATIONS, REORGANIZATION AND FINANCIAL STATEMENT PRESENTATION

Merger

DowDuPont is a Delaware corporation that was formed on December 9, 2015, for the purpose of effecting the all-stock merger of equals transaction between Historical DuPont and Historical Dow. On August 31, 2017, Historical DuPont and Historical Dow each merged with wholly owned subsidiaries of DowDuPont and, as a result, became subsidiaries of DowDuPont (the “Merger”). Upon completion of the Merger, each share of EID Preferred Stock—$4.50 Series and EID Preferred Stock—$3.50 Series (collectively, the “EID Preferred Stock”) issued and outstanding immediately prior to 11:59 pm Eastern Time on August 31, 2017 (the “Effective Time of the Merger”) remained issued and outstanding and was unaffected by the Merger.

Intended Separations

Prior to the Merger, Historical DuPont and Historical Dow were each publicly traded companies that were listed on the NYSE, with Historical DuPont operating a global business that included agriculture, electronics and communications, industrial biosciences, nutrition and health, performance materials and protection solutions segments, and Historical Dow operating a global business that included agricultural sciences, consumer solutions, infrastructure solutions, performance materials and chemicals and performance plastics segments. In connection with the signing of the agreement and plan of merger for the Merger (the “merger agreement”), Historical DuPont and Historical Dow announced their intention to pursue, subject to the approval of the DowDuPont board of directors and any required regulatory approvals, the separation of the combined company, DowDuPont, into three independent publicly traded companies—one for each of the combined company’s agriculture, materials science and specialty products businesses.

Internal Reorganization

In furtherance of DowDuPont’s planned separation into three independent, publicly traded companies, prior to, but in connection with, the separation and distribution, Historical DuPont and Historical Dow have completed a series of internal reorganization transactions to align their respective businesses into three subgroups: agriculture, materials science and specialty products. DowDuPont also formed two wholly owned subsidiaries: Corteva Parent, to serve as a holding company for its agriculture business, and Dow Parent, to serve as a holding company for its materials science business. Following the distribution of Dow, DowDuPont, as the remaining company, continues to hold the agriculture and specialty products businesses. DowDuPont is expected to complete the distribution of Corteva, resulting in DowDuPont holding the specialty products business of DowDuPont and being renamed “DuPont de Nemours, Inc.”

This series of reorganization transactions, which we refer to as the “Internal Reorganization,” involves:

 

   

the transfer or conveyance by Historical DuPont of its assets and liabilities that are (i) aligned with DowDuPont’s agriculture business to legal entities that remain with us following the Business Realignment, (ii) aligned with DowDuPont’s specialty products business (including Historical DuPont’s specialty products business) to legal entities that will be subsidiaries of New DuPont following the Business Realignment and (iii) aligned with DowDuPont’s materials science business (including Historical DuPont’s ethylene and ethylene copolymers business (other than its ethylene acrylic elastomers business)) to legal entities that became subsidiaries of Dow following the Business Realignment (and prior to the distribution of Dow); and

 

   

the transfer or conveyance by Historical Dow of its assets and liabilities that are (i) aligned with DowDuPont’s agriculture business (including Historical Dow’s agriculture business) to legal entities that remained subsidiaries of DowDuPont at the time of the distribution of Dow and will become our subsidiaries prior to our expected distribution, (ii) aligned with DowDuPont’s specialty products business (including those portions of Historical Dow’s business that are aligned with the specialty

 

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products business) to legal entities that will remain subsidiaries of New DuPont at the time of our expected distribution and (iii) aligned with DowDuPont’s materials science business to legal entities that remained subsidiaries of Dow in connection with the distribution of Dow.

Following the Internal Reorganization, Historical DuPont and Historical Dow transferred and conveyed among us, Dow and legal entities that will be subsidiaries of New DuPont all of the equity interests of the applicable subsidiaries such that, in addition to any assets and liabilities allocated to us, Dow and New DuPont pursuant to the separation agreement, we hold the assets and liabilities related to DowDuPont’s agriculture business, Dow holds the assets and liabilities related to DowDuPont’s materials science business and the legal entities that will comprise New DuPont hold the assets and liabilities related to DowDuPont’s specialty products business (other than certain transactions to be completed by DowDuPont and us prior to the distribution to make the applicable members of Historical Dow and Historical DuPont aligned with the agriculture business our subsidiaries (and to make those aligned with the specialty products business the subsidiaries of DowDuPont but not us)). These transfers and conveyances, which we refer to in this information statement as the “Business Realignment,” include:

 

   

the transfer or conveyance of Historical DuPont’s interests in the capital stock of, or any other equity interests in, the entities that are subsidiaries of Dow or are to be subsidiaries of New DuPont to Dow or the legal entities that will comprise New DuPont, as applicable (which, with respect to Dow, was completed prior to the distribution of Dow);

 

   

the transfer or conveyance of Historical Dow’s interests in the capital stock of, or any other equity interests in, the entities that are to be subsidiaries of us or New DuPont to us or the legal entities that will comprise New DuPont, as applicable (which, with respect to members of Historical Dow, was implemented prior to the distribution of Dow by making such entities subsidiaries of DowDuPont (and not Dow), but which remain to be made our subsidiaries); and

 

   

certain transfers and conveyances of Historical DuPont’s or DowDuPont’s interests in the capital stock of, or any other equity interests in, the entities that are to be subsidiaries of us or New DuPont to us or the legal entities that will comprise New DuPont, as applicable, which may occur after the Business Realignment but prior to our expected distribution.

As a result of the Internal Reorganization and Business Realignment, at the time of the separation and distribution, Corteva Parent will hold all the outstanding common stock of EID. EID will continue to be a subsidiary of Corteva Parent and will remain a reporting issuer with the U.S. Securities and Exchange Commission (the “SEC”). The EID Preferred Stock will be unaffected by the separation and distribution.

The diagrams below depict DowDuPont’s organizational structure after the Merger, DowDuPont’s anticipated organizational structure after the Internal Reorganization and Business Realignment and Corteva’s anticipated organizational structure following its distribution. These diagrams are provided for illustrative purposes only and do not purport to represent all legal entities within the organizational structure of DowDuPont or Corteva, as applicable.

DowDuPont Post-Merger

 

LOGO                 

 

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DowDuPont Post-Internal Reorganization and Business Realignment

 

LOGO             

Corteva Post-Distribution

 

                     LOGO

For further information, see the section entitled “Our Relationship with New DuPont and Dow Following the Distribution—Separation Agreement.”

Financial Statement Presentation

This information statement generally describes Corteva as if the Internal Reorganization and Business Realignment have already been completed and Corteva holds the agriculture business of DowDuPont that it will hold at the time of the distribution. Accordingly, this information statement includes an unaudited pro forma consolidated balance sheet for Corteva as well as unaudited pro forma consolidated statements of income for Corteva, which present our financial position and results of operations to give pro forma effect to the Merger, the Internal Reorganization, the Business Realignment, the distribution of all the common stock of Corteva, and the other transactions described under “Unaudited Pro Forma Combined Financial Statements.” The unaudited pro forma combined financial statements are presented for illustrative purposes only and should not be viewed as an indication of current or future results of operations, financial position or cash flows as if Corteva had been a separate, standalone company holding DowDuPont’s agriculture business during the periods presented.

This information statement also includes certain historical consolidated financial information related to, and discusses the results of operations, financial condition and business of, Historical DuPont. For example, the historical financial statements incorporated by reference herein reflect Historical DuPont’s business as it has been

 

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conducted prior to the Internal Reorganization and Business Realignment. These financial statements therefore reflect the business of Historical DuPont, which includes those portions of Historical DuPont’s business that form part of DowDuPont’s materials science business that were transferred to Dow and those portions of Historical DuPont’s business that form part of DowDuPont’s specialty products business that will ultimately remain with New DuPont. The financial statements also do not reflect the portions of Historical Dow’s business related to DowDuPont’s agriculture business that will be transferred to us. As such, Historical DuPont’s financial information and results are not representative of the financial results that we would have achieved as a separate, publicly traded company holding DowDuPont’s agriculture business nor indicative of the results we expect for any future period. Information in this information statement that does not reflect Corteva as it will be comprised at the time of the separation and distribution is generally identified by reference to “Historical DuPont.” For further information, see the sections entitled “Selected Historical Consolidated Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

Corteva Parent is a wholly owned subsidiary of DowDuPont that was formed on March 16, 2018 to serve as a holding company for Corteva. Corteva Parent has engaged in no business operations to date and has no assets or liabilities of any kind, other than those incident to its formation.

 

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INFORMATION STATEMENT SUMMARY

Distributing Company

DowDuPont is a holding company comprised of Historical DuPont and Historical Dow. DowDuPont conducts its operations worldwide through the following eight segments: Agriculture; Performance Materials & Coatings; Industrial Intermediates & Infrastructure; Packaging & Specialty Plastics; Electronics & Imaging; Nutrition & Biosciences; Transportation & Advanced Polymers; and Safety & Construction. DowDuPont has approximately 98,000 employees.

In connection with the signing of the merger agreement, Historical DuPont and Historical Dow announced their intention, subject to the approval of the DowDuPont board of directors and any required regulatory approvals, to separate DowDuPont into three independent, publicly traded companies—one for each of the combined company’s agriculture, materials science and specialty products businesses.

The distribution of Dow, which at the time of its distribution on April 1, 2019 held DowDuPont’s materials science business, is the first of the two distributions to effectuate DowDuPont’s plan to separate into three strong, independent, publicly traded companies. The remaining company is expected to complete, subject to the approval of its board of directors, the distribution of Corteva, which will hold the assets and liabilities associated with DowDuPont’s agriculture business, resulting in New DuPont holding the specialty products business of DowDuPont. The separation of Corteva is expected to be completed on June 1, 2019 through the distribution to DowDuPont stockholders of all issued and outstanding shares of Corteva common stock.

The DowDuPont board of directors believes that the completion of these separations will result in three independent, publicly traded companies that will lead their respective industries through productive, science-based innovation to meet the needs of customers and help solve global challenges, and is the best available opportunity to unlock the value of DowDuPont’s businesses.

Our Company

Corteva combines the DuPont Pioneer, Dow AgroSciences and DuPont Crop Protection businesses to create a stronger global provider of agricultural products. We are recognized by farmers as a leader in the seed and crop protection markets globally. Our seed platform develops and supplies high quality germplasm combined with advanced traits to produce higher yields for farmers around the world. Our crop protection platform supplies products to protect crop yields against weeds, insects and disease enabling farmers to achieve optimal results. The combination of these leading platforms creates one of the broadest portfolios of agriculture solutions in the industry, fueling farmer productivity in more than 140 countries and generating pro forma annual sales of $14.3 billion for the year ended December 31, 2018. Our strategy is to provide farmers with the right mix of seeds, crop protection and digital solutions to maximize their yields and improve their profitability, while strengthening customer relationships and ensuring an abundant food supply for a growing global population. We have the opportunity to enhance our returns by completing the delivery of nearly $1.7 billion from merger-related synergies, including approximately $1.2 billion in cost synergies and $500 million in growth synergies. Our goal is to achieve a best-in-class cost structure, versus our peers, creating a lean organization more focused on the customer.

We will operate in two reportable segments: seed and crop protection. Our seed segment is a global leader in developing and supplying advanced germplasm and traits that produce optimum yield for farms around the world. We are a leader in many of our key seed markets, including North America corn and soybeans, Europe corn and sunflower, as well as Brazil, India, South Africa and Argentina corn. We offer trait technologies that improve resistance to weather, disease, insects and weeds, and trait technologies that enhance food and



 

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nutritional characteristics. We also provide digital solutions that assist farmer decision-making with a view to optimize product selection and, ultimately, maximize yield and profitability. We compete in a wide variety of agricultural markets. Our crop protection segment serves the global agricultural input industry with products that protect against weeds, insects and other pests, and disease, and that improve overall crop health both above and below ground via nitrogen management and seed-applied technologies. We are a leader in global herbicides, insecticides, below-ground nitrogen stabilizers and pasture and range management herbicides.

We expect to create shareholder value by continuing to work to achieve a best-in-class cost structure versus our peers (as further explained in the section entitled “Business—Our Company”) while advancing our science-based innovation, which is focused on delivering a wide range of improved products and services to our customers. Through our merger of the Historical DuPont and Historical Dow innovations pipelines, we have created one of the broadest and most productive new product pipelines in the agriculture industry. We intend to leverage our rich heritage of over 275 combined years of scientific achievement to advance our robust innovation pipeline and continue to shape the future of responsible agriculture. We intend to launch 21 new products, balanced between seeds and crop protection, between 2017 and 2021. New products are crucial to solving farmers’ productivity challenges amid a growing global population while addressing natural resistance, regulatory changes, safety requirements and competitive dynamics. Our investments in technology-based and solution-based product offerings allow us to meet farmers’ evolving needs while ensuring that our investments generate sufficient returns. Meanwhile, through our unique routes to market, we continue to work face-to-face with farmers around the world to deeply understand their needs.

Our Strengths

We believe the following attributes provide us with a competitive advantage in our industry:

 

   

Leadership position in key markets. We are a leader in many of our key seed markets, including North America corn and soybeans, Europe corn and sunflower, as well as Brazil, India, South Africa and Argentina corn. We are also a crop protection market leader in global herbicides, insecticides, biologics, below-the-ground nitrogen stabilizers and pasture and range management herbicides.

 

   

Strong customer relationships. We are a trusted partner in the global agriculture and food community, having earned the confidence of those who produce as well as those who consume. Our combination of market penetration, strong brand portfolio and robust germplasm allows us to serve as a trusted partner addressing a wide range of farmer needs in all major geographic regions and in many major crops.

 

   

Holistic solutions for farmers. We deliver a complete end-to-end farm management solution with integrated seed and crop protection offerings that provide farmers with an integrated approach to crop management. Through the combination of Historical DuPont’s and Historical Dow’s complementary seed and crop protection portfolios, we are now able to serve farmers year-round, offering products covering more than 100 crops that give farmers expanded choice and greater value.

 

   

Enhanced seed and crop protection pipelines. We have historically invested and will continue to invest significant funds in research and development. By integrating the Historical DuPont and Historical Dow pipelines, we have created one of the broadest and most innovative pipelines in the agricultural input industry.

 

   

Deep industry expertise. We have a strong management team that combines in-depth industry experience and demonstrated leadership. Our leadership team represents leaders from both Historical DuPont and Historical Dow as we retained the top talent during the Merger and separation process.



 

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Our Strategy

Our strategy is to combine our proven innovation capability with our unmatched customer access to provide farmers with a portfolio of products that enable continued improvements in yield and profitability, while improving environmental sustainability. We plan to leverage the work already done by DuPont Pioneer, Dow AgroSciences and DuPont Crop Protection, while enhancing their existing strategies, operating priorities and business focus through a more streamlined, efficient and focused operating structure. We also continue to believe that by operating as a pure play agriculture business, we can be more sharply focused on the needs of farmers and instill a culture that best supports our strategy.

To drive industry-leading value creation, we will continue to pursue the following five priorities:

 

   

Instill a strong, performance-based, inclusive, customer-centric culture.

 

   

Drive disciplined capital and resource allocation with a strong focus on return on invested capital.

 

   

Develop innovative solutions that improve farmer productivity and global food security.

 

   

Work to attain a best-in-class cost structure.

 

   

Deliver above-market growth via our robust new product pipeline and best-in-class routes to market.

More broadly, we believe the following key pillars will enable us to create significant value for our customers while delivering strong financial returns to our shareholders:

 

   

Developing and launching new offerings that address market needs by continuing to leverage our robust pipeline to introduce new proprietary seed traits and crop protection formulations that anticipate and meet evolving customer needs.

 

   

Utilizing our multi-channel and multi-brand capabilities to drive profitable growth by strategically aligning our brands and capabilities across different sales channels and creating a comprehensive multi-channel, multi-brand strategy.

 

   

Continuing to develop and maintain close connections with our customers by working closely with farmers throughout the entire growing season to ensure all their seed and crop protection needs are anticipated and satisfied.

 

   

Focusing on operational excellence by integrating our operations and continuing to drive operating efficiencies, enabling a streamlined, efficient and focused organization while working to achieve a best-in-class cost structure and creating a strong culture based on productivity.

 

   

Furthering our commitment to sustainable and responsible agriculture by focusing on integrating sustainability criteria early in the product discovery and development phases as well as promoting the development of responsible solutions focused on reducing the environmental impact of agriculture over time.

Risks Associated with Our Business

An investment in Corteva common stock is subject to several risks, including the following:

 

   

We participate in an industry that is highly competitive and has undergone consolidation, which could increase competitive pressures.

 

   

The successful development and commercialization of our pipeline products will be necessary for our growth.



 

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We may not be able to obtain or maintain the necessary regulatory approvals for some of our products, including our seed and crop protection products, which could restrict our ability to sell those products in some markets.

 

   

Enforcing our intellectual property rights, or defending against intellectual property claims asserted by others, could adversely affect our business, results of operations and financial condition.

 

   

Our business may be adversely affected by competition from manufacturers of generic products.

 

   

The costs of complying with evolving regulatory requirements could negatively impact our business, results of operations and financial condition.

 

   

The degree of public understanding and acceptance or perceived public acceptance of our biotechnology and other agricultural products and technologies can affect our sales and results of operations by affecting planting approvals, regulatory requirements and customer purchase decisions.

 

   

As a result of our current and past operations, as well as the discontinued and divested businesses and operations of Historical DuPont, we could incur significant environmental liabilities.

 

   

Our results of operations could be adversely affected by litigation and other commitments and contingencies.

 

   

Changes in agricultural and related policies of governments and international organizations may prove unfavorable.

The above list of risk factors is not exhaustive. Please read the information in the section entitled “Risk Factors” for a more thorough description of these and other risks.

The Separation and Distribution

The separation and distribution of Corteva is the second step in DowDuPont’s intended separation of its agriculture, materials science and specialty products divisions into three independent, publicly traded companies. The separation and distribution of Dow, which at the time of its distribution on April 1, 2019 held DowDuPont’s materials science business, preceded the separation and distribution of Corteva.

On May 6, 2019 the DowDuPont board of directors approved the distribution of all the then issued and outstanding shares of common stock of Corteva Parent, the newly formed holding company for Corteva that at the time of the distribution will hold DowDuPont’s agriculture business, to DowDuPont stockholders on the basis of one share of Corteva common stock for every three shares of DowDuPont common stock held at the close of business on May 24, 2019, the record date for the distribution. As a result of the distribution, we will become an independent, publicly traded company. The distribution is intended to be generally tax-free to DowDuPont stockholders for U.S. federal income tax purposes, except for any cash received in lieu of fractional shares.

The distribution is subject to the satisfaction or waiver of certain conditions. The DowDuPont board of directors has the discretion to abandon the distribution and to alter the terms of the distribution. See the section entitled “The Distribution—Conditions to the Distribution.” As a result, Corteva cannot provide any assurances that the distribution will be completed.

Internal Reorganization

In advance of the distributions, DowDuPont has completed the Internal Reorganization and will continue to undertake the Business Realignment so that (1) Dow held, prior to the distribution of Dow, directly or indirectly, DowDuPont’s materials science business; (2) we will hold, prior to our expected distribution, directly or



 

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indirectly, DowDuPont’s agriculture business; and (3) the legal entities that will comprise New DuPont will hold, prior to our expected distribution, directly or indirectly, DowDuPont’s specialty products business. See the section entitled “Merger, Intended Separations, Reorganization and Financial Statement Presentation—Internal Reorganization” and “Our Relationship with New DuPont and Dow Following the Distribution—Separation Agreement” for further discussion.

Corteva’s Relationship with New DuPont and Dow Following the Distribution

Substantially simultaneously with the distribution of Dow on April 1, 2019, we entered into a separation and distribution agreement with DowDuPont (which will, after the separation of Corteva, become New DuPont) and Dow, which is referred to in this information statement as the “separation agreement,” to effect the separation (including the Internal Reorganization and Business Realignment) and provide a framework for our relationship with New DuPont and Dow after the separation and distribution. In connection with the separation and distribution, we have also entered and will also enter into various other agreements with DowDuPont and Dow, including a tax matters agreement, an employee matters agreement, intellectual property cross-license agreements, trademark license agreements and certain other intellectual property, services, supply and real estate-related agreements. These agreements collectively provide for the terms of the allocation among us, New DuPont and Dow of the assets, liabilities and obligations of DowDuPont and its subsidiaries (including investments, property and employee benefits and tax-related assets and liabilities) attributable to the periods prior to, at and after Dow’s and our respective separations, and will govern certain relationships among us, New DuPont and Dow after the separation and distribution. In connection with the separation of Dow and us from DowDuPont, we have assumed and will assume, and will indemnify New DuPont and Dow for, certain liabilities including, among others, certain environmental liabilities and litigation liabilities relating to our business and the discontinued and divested businesses and operations of Historical DuPont. Most of these indemnification obligations are uncapped, and may include, among other items, associated defense costs, settlement amounts and judgments. Payments pursuant to these indemnities may be significant and could negatively impact our business, financial condition, results of operations and cash flows. For a discussion of these arrangements, including the indemnification arrangements, see the sections entitled “Risk Factors—Risks Related to the Separation” and “Our Relationship with New DuPont and Dow Following the Distribution.”

Regulatory Approvals

We must complete the necessary registration under U.S. federal securities laws of Corteva common stock to be issued in the distribution, as well as the applicable listing requirements of the NYSE for such shares.

Other than these requirements, we do not believe that any other material governmental or regulatory filings or approvals will be necessary to consummate the distribution.

DowDuPont stockholders will not have any appraisal rights in connection with the distribution.

Corporate Information

Corteva Parent was organized in the State of Delaware on March 16, 2018 as Corteva, Inc. EID was founded in 1802 and was incorporated in the state of Delaware in 1915. The current address of Corteva’s principal executive offices is 974 Centre Road, Wilmington, Delaware 19805. Corteva can be contacted by calling (302) 774-1000.



 

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SUMMARY OF THE SEPARATION AND DISTRIBUTION

The following is a summary of the material terms of the separation, distribution and other related transactions.

 

Distributing company

DowDuPont Inc.

 

Distributed company

Corteva, Inc., a Delaware corporation and a wholly owned subsidiary of DowDuPont that will be the holding company for DowDuPont’s agriculture business. Following the distribution, Corteva will be an independent, publicly traded company.

 

Distribution ratio

Each DowDuPont stockholder will receive one share of Corteva common stock for every three shares of DowDuPont common stock held at the close of business on May 24, 2019, the record date for the distribution. DowDuPont stockholders may also receive cash in lieu of any fractional shares, as described below.

 

Distributed securities

In the distribution, DowDuPont will distribute to DowDuPont stockholders all of the then issued and outstanding shares of Corteva common stock. Following the separation and distribution, Corteva will be a separate company, and New DuPont will not retain any ownership in Corteva.

 

  The actual number of shares of Corteva common stock that will be distributed will depend on the number of shares of DowDuPont common stock outstanding on the record date.

 

  Immediately following the distribution, DowDuPont stockholders will own shares in both Corteva and New DuPont.

 

Fractional shares

DowDuPont will not distribute any fractional shares of Corteva common stock. Instead, if you are a registered holder, Computershare Trust Company, N.A. (“Computershare”), the distribution agent, will aggregate all fractional shares that would have otherwise been issued in the distribution into whole shares and sell the whole shares in the open market at prevailing market prices on behalf of all DowDuPont stockholders entitled to receive a fractional share. The distribution agent will then distribute the aggregate cash proceeds of the sales, net of brokerage fees and other costs, pro rata to those stockholders (net of any required withholding for taxes applicable to each stockholder) who otherwise would have been entitled to receive a fractional share in the distribution. DowDuPont stockholders who receive cash in lieu of fractional shares will not be entitled to any interest on amounts paid in lieu of fractional shares. Any cash received in lieu of fractional shares generally will be taxable to DowDuPont stockholders as described in the section entitled “Material U.S. Federal Income Tax Consequences of the Distribution.”

 

Record date

The record date for the distribution is the close of business on May 24, 2019.


 

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Distribution date

The distribution date is expected to be on June 1, 2019.

 

Distribution

On the distribution date, DowDuPont will issue shares of Corteva common stock to all DowDuPont stockholders as of the record date based on the distribution ratio. The shares of Corteva common stock will be issued electronically in direct registration or book-entry form and no certificates will be issued.

 

Commencing on or shortly following the distribution date, the distribution agent will mail to stockholders who hold their shares directly with DowDuPont (registered holders) a direct registration account statement that reflects the shares of Corteva common stock that have been registered in their name.

 

For shares of DowDuPont common stock that are held through a bank, the bank will credit the stockholder’s account with the Corteva common stock they are entitled to receive in the distribution.

 

DowDuPont stockholders will not be required to make any payment, to surrender or exchange their shares of DowDuPont common stock or to take any other action to receive their shares of Corteva common stock in the distribution.

 

If you are a DowDuPont stockholder on the record date and decide to sell your shares on or before the distribution date, you may choose to sell your DowDuPont common stock with or without your entitlement to receive Corteva common stock in the distribution. Beginning on or shortly before the record date and continuing through the last trading day prior to the distribution, it is expected that there will be two markets in DowDuPont common stock: a “regular-way” market and an “ex-distribution” market. Shares of DowDuPont common stock that are traded in the “regular-way” market will trade with the entitlement to receive the Corteva common stock that is distributed pursuant to the distribution. Shares that trade in the “ex-distribution” market will trade without the entitlement to receive the shares of Corteva common stock distributed pursuant to the distribution. Consequently, if you sell your shares of DowDuPont common stock in the “regular-way” market on or prior to the last trading day prior to the distribution date, you will also be selling your right to receive Corteva common stock in the distribution.

 

Conditions to the distribution

The distribution is subject to the satisfaction of the following conditions, among other conditions described in this information statement:

 

   

The SEC having declared effective the Form 10 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (or the Form 10 having otherwise become effective pursuant to and in accordance with Section 12(d) of the Exchange Act), no stop order relating to the Form 10 being in effect, no proceedings seeking such a stop order being pending



 

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before or threatened by the SEC and this information statement (or notice of interest availability hereof) having been distributed to DowDuPont stockholders;

 

   

the listing of Corteva common stock on the NYSE having been approved, subject to official notice of issuance;

 

   

the DowDuPont board of directors having received an opinion from a nationally recognized independent appraisal firm, to the effect that, following the distribution, Corteva and DowDuPont will each be solvent and adequately capitalized, and that DowDuPont has adequate surplus under Delaware law to declare the dividend of Corteva common stock;

 

   

the Internal Reorganization and Business Realignment as they relate to Corteva having been effectuated prior to the distribution date;

 

   

the DowDuPont board of directors having declared the dividend of Corteva common stock to effect the distribution and having approved the distribution and all related transactions, which approval may be given or withheld in the board’s absolute and sole discretion (and such declaration or approval not having been withdrawn);

 

   

DowDuPont having elected the individuals to be members of our board of directors following the distribution, and certain directors as set forth in the separation agreement having resigned from the DowDuPont board of directors;

 

   

each of us, DowDuPont and Dow and each of our or their applicable subsidiaries having entered into all ancillary agreements to which it and/or any such subsidiary is contemplated to be a party;

 

   

no events or developments having occurred or existing that make it inadvisable to effect the distribution or that would result in the distribution and related transactions not being in the best interest of DowDuPont or its stockholders;

 

   

no order, injunction or decree by any governmental entity of competent jurisdiction or other legal restraint or prohibition preventing consummation of the distribution or any