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Senesco Technologies, Inc.
has requested that the marked portions of this agreement be granted confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934
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DEVELOPMENT AND LICENSE AGREEMENT
This Development and License Agreement ("Agreement") dated as of March 8,
2004 (the "Effective Date") is entered into by and between Senesco Technologies,
Inc., a Delaware corporation with principal offices at 000 Xxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxxxx, XX 00000 ("STI") and The Scotts Company, an Ohio corporation
with offices at 00000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Scotts").
RECITALS
WHEREAS, STI owns and controls technology, know-how, and United States and
foreign patent applications concerning methods for controlling plant senescence,
cell division, reactions to biotic or abiotic stress, and/or plant growth by
altering the expression of plant genes and their cognate expressed proteins that
are induced during or coincident with the onset of senescence and/or growth;
WHEREAS, Scotts is in the business of developing and distributing
specialized turfgrasses, ornamental plants, seeds, and other lawn care and
garden products for consumers and lawn care professionals;
WHEREAS, STI desires to provide to Scotts access and rights to certain STI
Technology, STI Developments, and Confidential Information so that STI and
Scotts may develop and commercialize Licensed Products in the Field; and
WHEREAS, Scotts desires to obtain from STI access and rights to certain STI
Technology, STI Developments, and Confidential Information so that Scotts and
STI may develop and commercialize Licensed Products in the Field;
NOW THEREFORE, in consideration of the premises and the faithful
performance of the mutual covenants hereinafter set forth, the parties hereto
hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following defined terms shall have the
respective meanings set forth below:
1.1 "Affiliate" means any entity that controls, is controlled by, or is
under common control with another entity. An entity is deemed to be in
control of another entity (controlled entity) if such company directly
or indirectly owns more than 50% in nominal value of the issued equity
share capital of such other company, or more than 50% of the shares
entitled to vote upon the election of:
(i) the directors;
(ii) persons performing functions similar to those performed by
directors; or
(iii) persons otherwise having the right to elect or appoint (a)
directors having the majority vote of the Board of Directors,
or (b) other persons having the majority vote of the highest
and most authoritative directive body of such other company.
1.2 "Confidential Information" means all nonpublic technical or commercial
information, including but not necessarily limited to, inventions,
discoveries, know-how, data, materials, plans, procedures,
descriptions and documents relating to development activities,
commercial activities, STI Technology, and STI Developments, including
the terms and conditions of this Agreement (considered the
Confidential Information of the other party, as to each party), and
shall include, without limitation: research, intellectual property,
field trials, manufacturing, marketing, financial, personnel and other
business or technical information, activities, plans, and results,
that are disclosed hereunder by the "Disclosing Party" in writing,
marked "Confidential", or if disclosed orally or in some other form
and identified as confidential or which reasonably should be
considered as confidential, is then summarized in reasonable detail in
a writing, marked "Confidential", and provided to the "Receiving
Party" within thirty (30) days of initial disclosure. Confidential
Information does not include information which:
(i) is known to the Receiving Party prior to the time of disclosure,
as evidenced by contemporaneous dated written records,
(ii) is received by the Receiving Party from independent sources
having the right to such information without an obligation of
confidence or non-disclosure, and without the information having
been solicited or obtained by any use of the Confidential
Information;
(iii) is, or through no fault of the Receiving Party, becomes part of
public knowledge or literature; or
(iv) is, independently developed by the Receiving Party employee,
agent, or consultant, who had no access to the Confidential
Information, as evidenced by contemporaneous dated written
records.
The obligations of the Receiving Party with regard to Confidential
Information shall terminate ten (10) years from the date of receipt of
any Confidential Information or upon the termination of this
Agreement, whichever is later.
1.3 "Direct Market Approach" means a scenario in which Scotts sells a
Licensed Product together with other Scotts products or services,
directly to the end-user.
1.4 "Field" means the market categories set forth in Appendix A.
1.5 "Indirect Market Approach" means a scenario in which Scotts sells a
Licensed Product to a seed company or grower, but not directly to an
end-user. The Indirect Market Approach will involve only the transfer
of the Licensed Product (including the trait technology).
1.6 "Integrated Market Approach" means a scenario in which Scotts delivers
the Licensed Product to one or more Third Parties (including, but not
limited to, seed companies and growers) before the Licensed Product is
sold to the end-user. In the Integrated Market Approach, Scotts will
be actively involved with more than one other level of trade for the
preparation and promotion of Licensed Products for sale.
1.7 "Licensed Product" means any product developed pursuant to this
Agreement which: (i) contains or is derived from an STI Patent and/or
STI Technology and (ii) would infringe upon the rights granted or to
be granted under the STI Patents.
1.8 "Net Sales" means the sum total of the sale price of the License
Products, including Third Party royalties and license fees, actually
sold less standard deductions of such qualifying cost to be limited to
the following:
(i) discounts, in amounts customary in the trade, for quantity
purchases, for prompt payments, and for wholesalers and
distributors;
(ii) credits or refunds, not exceeding the original invoice amount,
for claims or returns;
(iii) government fees, sales and use of taxes, or other price
reductions imposed by government agencies.
1.9 "STI Development" means any modification or improvement on any STI
Technology made by Scotts or anyone acting on behalf of Scotts
pursuant to and during the term of this Agreement. STI Development
shall not include Scotts' inventions resulting from transformation,
line selection, screening, breeding, or product or commercial
development activities that do not modify STI Technology. STI
Developments shall remain the property of STI.
1.10 "STI Patents" means all STI patents pertaining to senescence, cell
division, reactions to biotic or abiotic stress, and/or growth in
plants, including (i) pending (as of the Effective Date of this
Agreement) U.S. and foreign patent applications owned or controlled by
STI or its Affiliates pertaining to senescence, cell division,
reactions to biotic or abiotic stress, and/or growth in plants,
including original applications, provisionals, divisions,
continuations, continuations-in-part, extensions, PCT applications,
renewals, reissues, or reexamination applications or supplemental
prosecution certificates, including, but not limited to, all
applications listed in Appendix B; (ii) U.S. and foreign patents that
have
issued or will issue from any application identified in Section (i) of
this paragraph; and (iii) U.S. and foreign applications pertaining to
controlling senescence, cell division, reactions to biotic or abiotic
stress, and/or growth in plants that claim priority in any way from
any application or patent identified in subparagraphs (i) or (ii) of
this paragraph.
1.11 "STI Technology" means the STI Patents, STI's Confidential
Information, and all of STI's know-how, materials, information and
methods (whether developed by STI or acquired from a Third Party),
including but not limited to, methods for controlling plant senescence
cell division, biotic stress, abiotic stress and/or plant growth
involving altering the expression of plant genes and their cognate
expressed proteins that are induced during or coincident with the
onset of senescence and/or plant growth.
1.12 "Territory" means North America, South America, Europe, Australia, and
New Zealand.
1.13 "Third Party" means all persons and entities other than STI and
Scotts, and their respective Affiliates.
1.14 "Timeline" means the product development timetable for STI's and
Scotts' development of technology relating to Licensed Products in the
Field, as set forth in Appendix C.
2. LICENSE GRANT
2.1 STI hereby grants to Scotts and its Affiliates an exclusive license in
the Field under the STI Technology and the STI Developments to
develop, make, have made, use, sell, offer to sell, and import
Licensed Products in the Territory. Scotts shall have no other rights
under the STI Technology and the STI Developments except as set forth
herein.
2.2 Scotts grants to STI a non-exclusive license in the Field to any
Scotts technology necessary for research and development of Licensed
Products under this Agreement. The granting of these non-exclusive
license rights does not include rights for commercialization.
3. TERM
This Agreement is effective as of the Effective Date, and shall
continue in effect until the expiration of the last to expire patent
among the STI Patents, a claim of which covers a Licensed Product or
the method of making or method of using said Licensed Product, unless
sooner terminated as provided herein. As used in this Agreement, the
"expiration" of a patent in a country includes (i) expiration of the
patent's statutory term; (ii) irrevocable lapse for failure to pay
maintenance fees or the like, (iii) final revocation of the applicable
claims by a national patent office and the exhaustion or expiration of
all appeals of such revocation, and (iv) final adjudication by a court
of competent jurisdiction that the applicable claims of the patent are
invalid or unenforceable and the exhaustion or expiration of all
appeals from said adjudication.
4. PRODUCT DEVELOPMENT
4.1 STI agrees to carry out its development obligations in each of the
phases as set forth in the Timeline attached hereto as Appendix C.
4.2 Scotts agrees to carry out its development obligations in each of the
phases as set forth in the Timeline attached hereto as Appendix C.
4.3 STI agrees during the term of this Agreement to provide Scotts access
to the STI Technology, pursuant to the terms set forth herein.
4.4 STI shall provide technical support to Scotts, as necessary to enable
Scotts to meet its development obligations as set forth in the
Timeline. STI technical support shall be provided at no cost to
Scotts, except however, travel expenses for any Scotts or STI
technical personnel and any disbursements necessary for such technical
support shall be paid by Scotts, any unusually large disbursements
subject to Scotts' approval. All STI expenses to be reimbursed by
Scotts must be pre-approved by Scotts.
4.5 Scotts shall be responsible and STI shall fully cooperate with Scotts
to obtain any required state, federal, national or international legal
and/or regulatory approval necessary to carry out the terms of this
Agreement.
5. PATENTS, PATENT APPLICATIONS AND PATENT ENFORCEMENT
5.1 Scotts acknowledges that all the STI Technology is and shall remain
the property of STI, and except as provided herein, all right, title,
and interest in the STI Technology is and shall remain with STI.
5.2 Scotts and STI agree that all STI Developments are and shall remain
the property of STI, and except as provided herein, all right, title,
and interest in the STI Developments is and shall remain with STI.
Scotts hereby assigns all patentable inventions relating to any STI
Development to STI and agrees to execute all documents, provide all
information and materials (including any biological materials
necessary for deposit), and do all acts, at STI's sole expense,
necessary to perfect and maintain STI's rights to all patentable STI
Developments.
5.3 Each party shall promptly and fully report to the other any and all
STI Developments which are conceived, made, and/or reduced to practice
by one or more of its employees, agents, consultants, and/or
sublicensees, or jointly by one or more of its employees, agents,
consultants, and/or sublicensees and by one or more employees, agents,
consultants, and/or sublicensees of the other party. STI shall retain
the sole right to prosecute and maintain any and all patents and
patent applications relating to STI Technology and STI Developments in
its sole and absolute discretion. In the event that STI decides not to
prosecute or maintain any patent or patent application, continuation,
renewal, provisional, or extension relating to any STI Technology
and/or any STI Developments, then STI shall promptly, (and in no event
less than thirty (30) days prior to the expiration of such patent,
patent application, continuation, renewal, provisional, or
extension in any country in the Field), offer Scotts a first right of
refusal to pay for prosecution or maintenance of said patent or patent
application, continuation, renewal, provisional, or extension. Scotts
has the right, but not the obligation, to pay for such prosecution or
maintenance. In the event that STI decides not to defend any patent or
patent application, continuation, renewal, provisional, or extension
relating to any STI Technology and/or any STI Developments from a
Third Party's claim of infringement or misuse, then STI shall promptly
(and in no case less more than thirty (30) after the filing of such
claim) offer Scotts the right, but not the obligation, to assume the
defense and cost of defense against such claim of infringement. STI
will use its reasonable efforts to assist Scotts as requested.
5.4 STI shall have sole and absolute discretion over whether to bring any
claims for patent infringement under the STI Patents and have complete
control of any suits, claims or counterclaims it asserts and, except
as provided below, has the right to and shall retain 100% of any
monies received, including all damage awards and settlement payments.
If STI requests, and at STI's sole and absolute discretion, Scotts may
participate in a claim or counterclaim to jointly assert the STI
Patents in the Field. If STI and Scotts agree to jointly to assert the
STI Patents in the Field and to assert claims or counterclaims, STI
shall have complete control of any suits, claims or counterclaims
asserted. Each party agrees to bear its own legal costs. Any monies
received, including all damage awards and settlement payments shall be
shared between Scotts and STI in a fashion to be negotiated at the
time of such suit, claim or counterclaim. In the event that a Third
Party infringes on STI Patent right in the Field and STI decides not
to bring a claim for patent infringement or misuse against such Third
Party, then STI shall assign the right to file such claim to Scotts.
Scotts shall have the right, but not the obligation to file and pursue
such a claim of infringement. If Scotts chooses to pursue such a
claim, then Scotts will pay all reasonable fees associated with such
action. All monies received, including all damage awards and
settlement payments, shall first be applied to reimbursement of all
fees incurred by Scotts to pursue the claim of infringement. Scotts
will pay royalties to STI on such net damage awards and settlement
payments as would have been due from Scotts had Scotts made the
infringing sales. STI will use its reasonable efforts to assist Scotts
as requested.
6. PAYMENTS TO STI
6.1 Scotts shall make the following benchmark payments to STI:
(i) $[**] in U.S. dollars to STI upon [**] this Agreement;
(ii) $[**] in U.S. dollars to STI upon [**] of this Agreement;
(iii) $[**] in U.S. dollars to STI upon [**] this Agreement;
(iv) $[**] in U.S. dollars to STI upon [**] this Agreement; and
(v) $[**] in U.S. dollars to STI upon [**].
6.2 Timeline Commitments:
STI will deliver STI Technology for [**] within [**] of signing the
Agreement. [**], preferably [**], within [**] of receiving STI
Technology, then Scotts, [**], will decide to either: (i) have its
exclusive rights as granted in Section 2.1 of the Agreement converted
to non-exclusive rights or (ii) pay $[**]/year to maintain exclusive
rights.
[**] under field trial conditions or [**], then Scotts will have [**].
[**], then Scotts, [**], will decide to either have its exclusive
rights converted to non-exclusive rights or pay $[**]/year to maintain
exclusive rights.
The obligation to pay the $[**]/year or $[**]/year maintenance fees
will be [**].
7. ROYALTIES
7.1 Upon commercialization of any Licensed Products within the Field, then
Scotts shall make royalty payments to STI as provided herein.
7.2 Scotts shall pay a royalty of [**] percent ([**]%) of Net Sales [**].
Scotts shall pay a royalty of [**] ([**]%) of Net Sales [**]. The
royalty is deemed earned as of the earlier of the date the Licensed
Product is actually sold and paid for or the date an invoice is sent
by Scotts.
7.3 In the event that Scotts is required to pay a royalty to any Third
Party for rights to additional technologies incorporated in any
Licensed Products, the royalty payable to STI shall be [**] percent
([**]%) of Net Sales [**] percent ([**]%) of Net Sales through [**].
7.4 In the event that a Licensed Product sold [**] percent ([**]%) of the
total market sales for a given species (as determined by the
agricultural statistics submitted to and reported by the United States
Department of Agriculture), then the royalty due for such Licensed
Product will be [**] percent ([**]%) of Net Sales [**] percent ([**]%)
[**]. In the event that a Licensed Product sold [**] percent ([**]%)
of the total market sales for a given species and Scotts is required
to pay a royalty to a Third Party for rights to
additional technologies incorporated in such Licensed Product, then
the royalty due for such Licensed Product will be [**] percent ([**]%)
of Net Sales [**] percent ([**]%) of the total market sales.
7.5 Royalties shall be paid in U.S. dollars semi-annually, [**] days after
[**]. All royalties owing for Net Sales in countries trading in
currencies other than U.S. dollars shall be converted to U.S. dollars
at the rate shown in the Federal Reserve Noon Valuation - - value of
Foreign currencies on [**] for the respective payments.
7.6 Royalty payments shall be accompanied by a royalty report. Each
royalty report will contain a full accounting of how amounts owed to
STI have been calculated. Such accounting shall be on a per-country
and product line, model, or tradename basis. In the event no payment
is owed to STI, a statement setting forth that fact shall be supplied
to STI.
8. RECORDKEEPING
8.1 STI shall have a right to conduct an annual audit of Scotts' books and
records upon thirty (30) days' prior written notice.
8.2 Scotts shall keep books and records sufficient to verify the accuracy
and completeness of Scotts' accounting referred to above, including
without limitation inventory, purchase and invoice records relating to
the Licensed Products and their manufacture. Such books and records
shall be preserved for a period of not less than three (3) years after
they are created, during and after the term of this Agreement.
8.3 Scotts shall take all steps necessary so that STI may within thirty
(30) days of its request review and copy all books and records at
Scotts' relevant facilities to verify the accuracy of Scotts'
accounting. Such review may be performed by any employee of STI as
well as by an attorney or registered CPA designated by STI, upon
reasonable prior written notice and during regular business hours.
Such review shall be conducted at STI's expense.
8.4 If a royalty payment deficiency is determined, Scotts shall pay the
royalty deficiency outstanding within thirty (30) days of receiving
written notice thereof, plus prime plus 4% interest on outstanding
amounts.
8.5 If a royalty payment deficiency for a calendar year exceeds five
percent (5%) of the royalties paid for that year, then Scotts shall be
responsible for paying STI's reasonable out-of-pocket expense incurred
with respect to such review.
9. ASSIGNMENT
9.1 All rights granted under this Agreement are personal to Scotts. Except
as provided in Paragraph 9.2, Scotts may not assign this Agreement or
its rights or obligations hereunder without STI's written consent.
9.2 This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and permitted assigns.
10. CONFIDENTIALITY
10.1 Each party including its respective agents, contractors,
representatives, Affiliates, and employees agrees that it will respect
the other's Confidential Information and treat it in the same manner
as if it were its own Confidential Information. Each party shall limit
the dissemination of and access to the Confidential Information to
those who require access for the purpose of carrying out this
Agreement. Such Confidential Information shall not be disclosed to any
Third Party or entity or to the public except as provided herein. Each
party shall assume liability for unlawful disclosure of Confidential
Information by its respective agents, contractors, representatives,
Affiliates, and employees
10.2 Each party agrees to treat and hold as confidential and not disclose
to or provide access to any Third Party or entity or to the public all
Confidential Information received pursuant to this Agreement and will
cause its respective agents, representatives, Affiliates, and
employees to do likewise.
10.3 Each party shall use Confidential Information only for the uses as
agreed upon in this Agreement and only in connection with the
development of Licensed Products in the Field, the development of
processes for the production of such Licensed Products, and any other
purpose incidental or convenient to the foregoing or mutually
agreeable to the parties.
10.4 Each party may disclose Confidential Information received, to the
extent it is required to do so pursuant to a final court order;
provided, however, that the Receiving Party (i) promptly notifies the
Disclosing Party upon its receipt of any pleading, discovery request,
interrogatory, motion or other paper that requests or demands
disclosure of the Confidential Information, (ii) opposes any request
for disclosure, and that failing, seeks to have access and use limited
by a protective order, and (iii) provides the Disclosing Party a
reasonable opportunity to contest and assist in opposing any
requirement of disclosure, to seek judicial protection against the
disclosure and to have such disclosure as is required made under a
protective secrecy order.
10.5 Each party agrees that, at any time upon the request of the Disclosing
Party, it will return or destroy any materials containing Confidential
Information (and destroy its notes and copies related thereto). If
destroyed, the Receiving Party shall provide the Disclosing Party with
written certification of destruction of the materials containing said
Confidential Information, said certification to be signed by an
officer of Scotts.
10.6 Each party acknowledges that Confidential Information is of a unique
character, contains trade secrets and has other substantial
proprietary value such that, if a party does not uphold its
obligations with regard to Confidential Information, the other will be
irreparably harmed. The parties therefore agree that each party shall
have the right to
have the courts specifically enforce this Section and seek injunctive
relief to prevent unauthorized disclosure of the Confidential
Information.
10.7 STI and Scotts each agree not to disclose the terms of this Agreement
other than as required by law to any regulatory or judicial body, or
as necessary to potential investors or financiers (provided such
potential investors or financiers are subject to confidentiality
undertakings) without the prior written consent of the other party,
which consent shall not be unreasonably withheld. The parties,
however, shall be permitted to prepare press releases disclosing the
existence of the Agreement in accordance with the provisions of
Paragraph 10.8.
10.8 Prior to issuing any reports, statements, press releases or other
disclosures to third parties regarding this Agreement or the
transactions contemplated herein, STI and Scotts shall exchange copies
of such documents and shall consult with each other regarding their
content. Except as otherwise required by law, neither STI nor Scotts
shall issue any such disclosure without the prior approval of the
other.
11. REPRESENTATIONS AND WARRANTIES
STI represents to the best of its knowledge that it is legally
entitled to disclose the Confidential Information disclosed by it, and
that to the best of its knowledge the disclosure of the Confidential
Information under this Agreement does in no event violate any right of
any Third Party. No other warranties concerning the Confidential
Information are made, whether express or implied, and STI EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES CONCERNING, INCLUDING WITHOUT
LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT.
12. DEFAULT AND TERMINATION
12.1 STI may terminate this Agreement at any time, without cause, upon
sixty (60) days' prior written notice
(i) if Scotts fails to materially fulfill or perform one or more of
its duties, obligations, or responsibilities pursuant to this
agreement and does not cure said failure within thirty (30) days
after receiving notice of said failure; or
(ii) if Scotts declares or petitions for bankruptcy, is the subject
of a bankruptcy petition filed against it, makes an assignment
for the benefit of creditors or seeks similar relief under state
law, or becomes insolvent.
12.2 Scotts may terminate the Agreement, at any time, without cause upon
sixty (60) days prior written notice to STI.
12.3 Upon termination of this Agreement pursuant to this Section 12, (i)
Scotts shall cease to be licensed under the STI Patents and will not
be authorized to distribute Licensed
Products in the Field; provided, however, that (contingent upon
compliance with this Agreement) Scotts may sell, within a reasonable
amount of time, all Licensed Product in its inventory at the time of
termination; (ii) all moneys owed by Scotts to STI through the date of
termination shall become immediately due and payable; (iii) all
Confidential Information disclosed pursuant to this Agreement shall be
returned immediately to STI; (iv) neither party to this Agreement
shall be responsible to the other for any damages arising from the
termination of this Agreement, including any claim for lost or
anticipated profits, expenditures, reliance, or other damages.
13. PATENT MARKING
Scotts shall insure that it and its distributors apply any patent
markings that meet all requirements of U.S. law, 35 U.S.C. 287, with
respect to all Licensed Products subject to this Agreement.
14. MERGER
STI's rights and obligations hereunder shall be transferred upon any
merger, acquisition or sale of all or substantially all of STI's
assets relating to the Field to a Third Party purchaser. Any such
transfer or sale shall be subject to the rights granted herein to
Scotts and the obligations of Scotts to STI.
15. PRODUCT LIABILITY
Scotts shall, at all times during the term of this Agreement and
thereafter, indemnify, defend and hold STI and the inventors of the
STI Patents harmless against all claims and expenses, including legal
expenses and reasonable attorney's fees, arising out of the death of
or injury to any person or persons or out of any damage to property
and against any other claim, proceeding, demand, expense and liability
of any kind (other than patent infringement claims and claims
resulting from STI's own negligence or the negligence of the inventors
of the licensed patents) resulting from the production, manufacture,
sale, use, lease, consumption or advertisement of Licensed Products
arising from any right or obligation of Scotts hereunder. STI at all
times reserves the right to select and retain counsel of its own to
defend STI's interests.
16. USE OF NAMES
Scotts shall not use STI's name, the name of any inventor of
inventions governed by this Agreement in sales promotion, advertising,
or any other form of publicity without the prior written approval of
the entity or person whose name is being used.
17. CHOICE OF LAW; CHOICE OF FORUM
This Agreement shall be construed and interpreted in accordance with
the laws of the State of New York without reference to its choice of
law principles. The state and federal courts in Southern District of
New York shall have exclusive jurisdiction of any dispute arising
under this Agreement.
18. ENTIRE AGREEMENT; NO ORAL MODIFICATIONS; WAIVER
18.1 This Agreement contains the entire understanding and agreement between
STI and Scotts with respect to the subject matter hereof, and
supersedes all prior oral or written understandings and agreements
relating thereto. Neither party shall be bound by any conditions,
definitions, warranties, understandings, or representations concerning
the subject matter hereof except as are (i) provided in this
Agreement, (ii) contained in any prior existing written agreement
between the parties, or (iii) duly set forth on or after the Effective
Date of this Agreement in a written instrument subscribed by an
authorized representative of the party to be bound thereby.
18.2 No waiver by either party, whether express or implied, of any
provision of this Agreement, or of any breach or default thereof,
shall constitute a continuing waiver of such provision or of any other
provision of this Agreement. Either party's acceptance of payments by
the other under this Agreement shall not be deemed a waiver of any
violation of or default under any of the provisions of this Agreement.
19. RELATIONSHIP OF THE PARTIES
Nothing herein contained shall be construed to constitute the parties
hereto as partners or as joint venturers, or either as agent or
employee of the other. Neither party shall take any action that
purports to bind the other.
20. SEVERABILITY
If any provision or any portion of any provision of this Agreement
shall be held to be void or unenforceable, the remaining provisions of
this Agreement and the remaining portion of any provision held void or
unenforceable in part shall continue in full force and effect.
21. CONSTRUCTION
This Agreement shall be construed without regard to any presumption or
other rule requiring construction against the party causing this
Agreement to be drafted. If any words or phrases in this Agreement
shall have been stricken out or otherwise eliminated, whether or not
any other words or phrases have been added, this Agreement shall be
construed as if those words or phrases were never included in this
Agreement, and no
implication or inference shall be drawn from the fact that the words
or phrases were so stricken out or otherwise eliminated.
22. HEADINGS
The captions and paragraph headings appearing in this Agreement are
inserted for convenience and reference only and in no way define,
limit or describe the scope or intent of this Agreement or any of the
provisions thereof.
23. NOTICES
All reports, approvals, requests, demands and notices required or
permitted by this Agreement to be given to a party (hereafter
"Notices") shall be in writing. Notices shall be hand delivered, sent
by certified or registered mail, return receipt requested, or sent via
a reputable private express service which requires the addressee to
acknowledge receipt thereof. Notices may also be transmitted by fax,
provided that a confirmation copy is also sent by one of the above
methods. Except as otherwise provided in this Agreement, Notices shall
be effective upon dispatch. Notices shall be sent to the party
concerned as follows (or at such other address as a party may specify
by notice to the other):
As to STI:
Senesco Technologies, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, President and Chief Executive Officer
As to Scotts:
The Scotts Company
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxx Xxxxxxxx
Vice President, Biotechnology
24. SURVIVAL OF TERMS
The obligations set forth in Sections 8, 11, and Paragraph 13.2 shall
survive the termination of this Agreement.
25. APPENDICES
All Appendices referenced herein are hereby made a part of this
Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
by its duly authorized representative as of the day and year first above
written.
SENESCO TECHNOLOGIES, INC. THE SCOTTS COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- ---------------------------
Title: President and CEO Title: Vice Chairman, EVP
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APPENDIX A
FIELD OF LICENSE
GARDEN PLANTS
Bedding plants are flowering plants used in outdoor garden, container and
hanging basket settings. Some examples of bedding plants include, but are not
limited to, Petunia, Begonia, Impatiens, Marigold, Geranium, Vinca and Pansy.
POTTED PLANTS
Potted plants are herbaceous or woody flowering plants used in indoor pot
situations for aesthetic purposes. Some examples of potted plants include, but
are not limited to, Poinsettia, Lilly, potted Rose, Azalea, African Violet,
Chrysanthemum, Kalanchoe and Cyclamen.
TURF GRASS, EXCLUDING GRASSES USED FOR FORAGE
Fine Turf
Amenity turf grass
Recreational Turf
APPENDIX B
STI PATENTS
LIPASE FAMILY
Title: Plant lipase gene, senescence induced expression and a method for
controlling senescence
U.S. Cases
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Foreign cases
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EIF-5A FAMILY
Title: DNA encoding a plant DHS, transgenic plants and a method for controlling
programmed cell death in plants.
U.S. Cases
U.S. Patent 6,538,182
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APPENDIX C
TIMELINE
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