CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Consulting Agreement"), is effective
July 16, 1999 by and between Senesco Technologies, Inc., an Idaho corporation
with a place of business at 00 Xxxxxxxx Xx., Xxxxxxxxx, XX 00000 ("SENESCO"),
and Xxxx X. Xxxxxxx Ph.D., whose address is Xxxx Laboratories, University of
Xxxxxxxxxx, Xxxxx, XX 00000 ("Xxxxxxx"):
WHEREAS, SENESCO is engaged in the business of research and
development on plant genes and their cognate expressed proteins that are induced
during or coincident with the onset of senescence, which may initiate or
facilitate senescence of plants or plant tissues, together with methods for
controlling senescence that involve altering the expression of these genes;
WHEREAS, Xxxxxxx may possess useful knowledge and technical
expertise relating to SENESCO research and product development;
WHEREAS, SENESCO wishes to retain Xxxxxxx for professional
consulting services;
WHEREAS, Xxxxxxx may receive, disclose, learn or acquire valuable
and proprietary technical and commercial trade secrets and confidential
information of SENESCO (collectively, the "Confidential Information"), from
SENESCO or otherwise as a result of performing his consulting services under
this Consulting Agreement;
WHEREAS, SENESCO and Xxxxxxx wish to assure that such information be
held in secrecy and confidence by Xxxxxxx;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained herein, the parties agree as follows:
I. DEFINITIONS.
"Technology and Inventions" shall mean any and all discoveries,
inventions, conceived inventions and know-how, whether or not patentable, and
whether or not reduced to practice, including any and all methods or processes,
test data, findings, designs, machines, devices, apparatus, manufactures, and
any improvements and/or any utility for the foregoing, which are made,
conceived, discovered or developed by Xxxxxxx, whether alone or in conjunction
with others, which arise in any way from, during or as a result of the
performance of Xxxxxxx'x consulting services to SENESCO under this Consulting
Agreement and which relate to the scope of this Consulting Agreement under
Article II. This includes Technology and Inventions arising from any research
and development by Xxxxxxx within the scope of Article II (a) as well
as any technology identified by Xxxxxxx of interest to SENESCO within the scope
of Article II (b) Such Technology and Inventions may or may not be protectable
in the form of a patent, a copyright or as a trade secret.
II. SCOPE OF THE CONSULTING AND EXPERT SERVICES.
Xxxxxxx will provide consulting and expert services relating to: (a)
research and development on plant genes and their cognate expressed proteins
that are induced during or coincident with the onset of senescence, which may
initiate or facilitate senescence of plants or plant tissues, together with
methods for controlling senescence that involve altering the expression of these
genes; and (b) the review of new technologies for potential acquisition,
license, investment, and related activities for SENESCO.
III. SERVICES AND COMPENSATION.
In consideration for a monthly payment of $5,400 (payable at the beginning
of each monthly period) and 7,500 additional stock options (5,000 to vest upon
execution of this agreement and 2,500 to vest upon completion of the services
under this agreement), Xxxxxxx agrees to provide SENESCO with professional
consulting and expert services within the scope provided under Article II for
50% of his usual and reasonable monthly time devoted to his customary
employment, and under the terms and conditions specified in this Consulting
Agreement.
IV. NO USE OF THIRD PARTY'S INFORMATION.
Xxxxxxx represents that he can and will perform all services under this
Consulting Agreement independent of any proprietary information or know-how
received from or belonging to others, including, but not limited to proprietary
information of the University of California. Xxxxxxx represents that he is
empowered by the University of California to perform all services under this
Consulting Agreement independent of any obligations to the University of
California including, but not limited to, rights of assignment and rights of
first refusal within the scope of Article II. Xxxxxxx agrees under no
circumstances to disclose or use proprietary information or know-how of any
third party in performing services for SENESCO. Xxxxxxx will not represent as
unrestricted any processes, designs, plans, models, samples or other writings or
products that Xxxxxxx knows are either covered by a third party's valid patent,
copyright, or other forms of intellectual property protection, or are under an
obligation of assignment to a third party.
Xxxxxxx represents and warrants that he is not rendering any service or
performing any research relating to the scope of this Consulting Agreement under
Article II hereof, and that he
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is not presently employed or engaged as a consultant to render any such services
or perform any such research other than as a consultant to SENESCO.
V. CONFIDENTIAL INFORMATION.
A. Confidential Information includes all information disclosed by SENESCO
directly or indirectly to Xxxxxxx whether said disclosure is made in writing, by
submission of samples, orally, or otherwise, including without limitation
information relating to the matters which are within the scope and are the
subject of this Agreement and all other information regarding SENESCO's past,
present, or future research, technology, know-how, ideas, concepts, designs,
products, prototypes, processes, machines, business plans, technical
information, drawings, specifications and the like, and any knowledge or
information, including but not limited to Technology and Inventions, developed
by Xxxxxxx as a result of work in connection with this Agreement, except
information which, at the time of disclosure to Xxxxxxx or development under
this Agreement:
1. is established by written records to be in the public domain
other than as a consequence of an act of Xxxxxxx;
2. was in Xxxxxxx'x possession prior to the disclosure and is
demonstrated through written records that such information was
in Xxxxxxx'x possession prior to disclosure from SENESCO, and
was not the subject of an earlier confidential relationship
with SENESCO; or
3. was rightfully acquired by Xxxxxxx from a third party, who was
lawfully in possession of such information after the
disclosure and was under no obligation to SENESCO to maintain
its confidentiality.
B. All Confidential Information of SENESCO disclosed to Xxxxxxx shall
remain the sole property of SENESCO. Xxxxxxx agrees that the Confidential
Information will be kept in strict confidence until such Confidential
Information becomes readily and conveniently available in the trade. Xxxxxxx
agrees that he will not directly or indirectly disclose, furnish, disseminate,
make available or use the Confidential Information except as necessary to
perform the consulting and expert services under the provisions of this
Agreement.
X. Xxxxxxx will promptly inform SENESCO if Xxxxxxx discovers that a
third party is making or threatening to make unauthorized use of Confidential
Information.
X. Xxxxxxx acknowledges that the agreements contained herein are of a
special nature and that any material breach of this Agreement by Xxxxxxx will
result in irreparable harm or injury to SENESCO. Accordingly, SENESCO shall be
entitled to seek an injunction for specific performance, as well as any other
legal or equitable remedy which may be available.
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VI. DISCLOSURE OF INVENTIONS
Xxxxxxx shall disclose fully and promptly to SENESCO in writing any and
all Technology and Inventions pursuant to Articles I and II either: made or
conceived of as set forth in Article II (a) or identified for potential
acquisition, license, or investment as set forth Article II (b), or otherwise
arising under this Consulting Agreement.
VII. TECHNOLOGY AND INVENTIONS.
X. Xxxxxxx hereby assigns and agrees to assign to SENESCO all right, title
and interest in any of the Technology and Inventions made, conceived of,
identified or otherwise arising under this Consulting Agreement. All information
and know-how relating to the Technology and Inventions is also deemed
Confidential Information and shall be kept in confidence by Xxxxxxx pursuant to
this Agreement.
B. SENESCO has control of all right, title and interest to any patent or
patent application drawn to the Technology and Inventions made, conceived of,
identified or otherwise arising during the performance of this Agreement.
SENESCO has the right to decide whether or not to pursue patent protection on
any Technology and Inventions conceived of or made under this Agreement.
X. Xxxxxxx agrees that SENESCO has the right to select an attorney or
patent counsel to help secure patent protection to any Technology and Inventions
made, conceived of, identified, or otherwise arising out of this Agreement.
Xxxxxxx agrees that SENESCO has the right to select an attorney and/or other
professionals necessary to evaluate and/or secure any technology identified by
Xxxxxxx arising under this Agreement.
D. Designation of inventors in a patent application is a matter of patent
law and shall be solely within the discretion of qualified patent counsel or
other legal representatives for SENESCO.
X. Xxxxxxx shall, at the request and expense of SENESCO, at any time
during or after the termination of the Agreement, execute all documents and
perform all such acts as SENESCO may deem necessary or advisable to confirm
SENESCO's sole and exclusive ownership right, title and interest in such
Technology and Inventions in any country. Xxxxxxx agrees to do all acts and
execute all documents at the expense and request of SENESCO that SENESCO may
deem necessary to enforce its rights to the Technology and Inventions, including
but not limited to assisting in the preparation of patent applications,
assisting in litigation, appearing for depositions, and appearing as trial
witnesses.
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F. Nothing contained herein shall be considered as granting any license,
immunity or other right with respect to any invention, patent, trade secret,
know-how or confidential information of SENESCO (apart from the right to make
necessary use of the same in rendering Xxxxxxx'x services hereunder) or as
requiring either SENESCO or Xxxxxxx to enter into any subsequent agreement.
VIII. INDEPENDENT CONTRACTOR.
Xxxxxxx'x relationship to SENESCO during the term of this Consulting
Agreement shall be that of an independent contractor, and not as an employee or
agent. Xxxxxxx may not make any commitments, or bind or purport to bind or
represent SENESCO or any of its affiliates in any manner either as its agent or
in any other capacity.
IX. NO CONFLICTING OBLIGATIONS.
Xxxxxxx represents and warrants that he has the full power to enter into
and perform the services pursuant to this Consulting Agreement, and that Xxxxxxx
is under no obligation or restriction and will not assume any obligation or
restriction that would in any way interfere with, be inconsistent with, or
present a conflict of interest concerning his services in connection with this
Consulting Agreement.
In view of the highly confidential nature of the services to be rendered
by Xxxxxxx under this Consulting Agreement, Xxxxxxx hereby agrees that he will
not conduct any research, act as a consultant, or perform any other services,
either directly or indirectly, for any entity in the world which is competitive
with SENESCO relating to the subject matter provided in Article II herein during
the term of work under this Consulting Agreement and for a period of one (1)
year after the termination of this Agreement with regard to subject matter
within the scope of Article II(a) and for a period of six (6) months with regard
to subject matter within the scope of Article II(b). The parties hereby agree
that the period of time and scope of the restrictions specified herein are both
reasonable and justifiable to prevent harm to the legitimate business interests
of SENESCO, including but not limited to preventing transfer of Confidential
Information to SENESCO's competitors and/or preventing other unauthorized
disclosures or use of SENESCO's Technology and Inventions.
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X. RETURN OF CONFIDENTIAL INFORMATION AND TANGIBLE PROPERTY.
The parties agree that all tangible property provided to or generated by
Xxxxxxx in connection with this Consulting Agreement, including without
limitation all samples, Confidential Information, reports, communications,
analyses, memoranda, notes, contact lists, and any other information produced in
connection with this Consulting Agreement (collectively "SENESCO Property")
shall, upon the expiration or termination of the consulting work, be returned to
SENESCO unless otherwise directed in writing.
XI. EFFECTIVE DATE AND LENGTH OF OBLIGATION.
This Consulting Agreement shall terminate one (1) year from its effective
date. However, if Xxxxxxx dies or becomes incapacitated to the extent that he
cannot perform the services specified in this Consulting Agreement, SENESCO has
the right to terminate this Consulting Agreement. Xxxxxxx'x obligation of
confidentiality and non-use of Confidential Information shall continue from the
effective date, or the date that SENESCO discloses such Confidential Information
to Xxxxxxx, and shall survive the expiration or termination of this Consulting
Agreement until the Confidential Information becomes part of the public domain
through no actions of Xxxxxxx. SENESCO's rights under Articles V, VI, VII, and
IX shall survive termination of this Consulting Agreement.
XII. SEVERABILITY.
If any provision of this Consulting Agreement should be determined by any
court of competent jurisdiction to be invalid, illegal or unenforceable in whole
or in part, and such determination should become final, such provision or
portion thereof shall be deemed to be severed or limited to the extent required
to render the remaining provisions and portions of this Consulting Agreement
enforceable, and the Consulting Agreement shall be enforced to give effect to
the intention of the parties insofar as possible.
XIII. APPLICABLE LAW.
This Consulting Agreement shall be interpreted and construed, and the
legal relations created herein shall be determined in accordance with the laws
of the State of New Jersey. Any provision or provisions of this Agreement which
in any way contravenes the laws of any state or country in which this Agreement
is effective shall, in such state or country as the case may be, and to the
extent of such contravention of local law, be deemed separable and shall not
affect any other provision or provisions of this Agreement.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have executed and delivered this Consulting Agreement as of the day and year
first above written.
SENESCO TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxx, Ph.D. By: /s/ Xxxxxxx Xxxxxxxxxx
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Xxxx X. Xxxxxxx, Ph.D. Xxxxxxx Xxxxxxxxxx
Chairman
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