SALES REPRESENTATIVE AGREEMENT
THIS SALES REPRESENTATIVE AGREEMENT (this "Agreement") is made this 14th day of
October, 2002 by and between Senesco Technologies, Inc., a Delaware corporation,
having its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000 ("Senesco"), and DP, Inc., a Maryland corporation,
having its principal place of business at 0000 Xxxxxxx Xxxx Xxx, Xxxxxxxxx,
Xxxxxxxx 00000 ("DP").
WITNESSETH
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WHEREAS, Senesco is the owner of certain intellectual property, including, but
not limited to, trade secrets, proprietary formulas, technology, patent
applications, and processes and procedures utilized in, among other areas, the
development of agricultural products (the "Technology"); and
WHEREAS, Senesco desires to have its Technology licensed (the "License") in the
People's Republic of China (hereinafter "PRC");
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Senesco and DP do hereby agree as follows:
1. APPOINTMENT OF DP IN THE PRC - (a) Senesco hereby grants DP the
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non-exclusive right to market and promote Senesco's Technology solely
within the PRC, Taiwan, Hong Kong and Macau, and DP hereby agrees to
use reasonable efforts to market and promote Senesco's Technology
solely within the PRC for the purpose of consummating the License. DP
understands that this is a non-exclusive agreement, such that Senesco
shall have the right to appoint other non-exclusive representatives.
(b) DP will be charged with the task of promoting, marketing and
handling negotiations with any and all potential licensors of
Senesco's Technology. This includes, but is not limited to, private
industry, central government, provincial government, and individuals.
It is understood that all negotiations will be handled with the
complete approval of Senesco, and that any agreements generated by DP
will not be binding to Senesco.
(c) Senesco reserves the right to directly negotiate a License inside
and outside the PRC. Any License is subject to acceptance or rejection
by Senesco in its sole discretion. DP understands that it is granted
only the authority to solicit and handle negotiations of the License.
DP is neither expressly nor impliedly authorized to enter into written
or oral contracts or agreements of any nature on behalf of Senesco.
2. MARKETING SUPPORT - Senesco agrees to provide to DP such literature,
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brochures, information and training as is required in the judgment of
Senesco.
3. PRICE AND TERM OF PAYMENT - (a) It is completely understood that
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Senesco will determine any and all terms relating to the License of
its Technology. DP shall not receive any payment except as outlined
below based upon the gross license fees received by Senesco in
connection with the License.
(b) Payment Schedule:
o 5% of the gross license fees paid to Senesco up to $50 Million
($50,000,000 U.S.).
o 6% of the gross license fees paid to Senesco from $50 Million to
$100 Million ($50,000,000-$100,000,000 U.S.).
o 7% of the gross license fees paid to Senesco in excess of $100
Million ($100,000,000 U.S.).
o By way of example, should Senesco receive a total of $150
Million in aggregate license fees from all licenses signed as a
result of DP's involvement, DP will receive 5% of the first $50
Million, or $2.5 Million, 6% of the next $50 Million, or $3
Million and 7% of the final $30 Million, or $3.5 Million, for a
total of $9 Million.
(c) Such gross license fee shall be determined at the time of
executing the License by the Board of Directors of Senesco, in its
sole discretion. Senesco shall make such payments to DP only upon the
time when Senesco receives payment under the License, on a pro-rata
portion based upon the amount actually received as compared to the
gross license fee. All transactions will occur through letters of
credit in U.S. funds drawn on U.S. banks that are issued by bona fide
financial institutions.
(d) Each party is completely and solely responsible for their
respective expenses incurred in connection with this Agreement.
4. TERM OF AGREEMENT - The term of this Agreement shall be for a period
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of one year from the date above, and shall automatically renew for
successive one-year periods unless either party gives the other party
written notice of its intention not to renew the Agreement within 60
days of such anniversary; provided, however, that this Agreement
(other than Section 3 and Section 6 hereunder which shall survive the
termination of this Agreement) shall automatically terminate upon the
execution of a License.
5. TERMINATION - (a) Senesco may terminate this Agreement without
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liability at any time by serving DP with a written notice of
termination. DP may terminate this Agreement for breach by Senesco, of
any of its terms and conditions, which breach is not cured by Senesco,
within 30 days after receipt of written notice of such breach from DP.
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(b) In the event of termination, DP shall promptly return to Senesco
or its designee all sales literature, brochures, technical
information, price lists, samples, evaluation units and all other
materials supplied by Senesco to DP without charge.
6. RELATIONSHIP BETWEEN PARTIES - (a) The relationship between DP and
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Senesco established by this Agreement is solely that of an independent
sales representative, and neither party is in any way the legal
representative, joint venture partner or agent of the other, and
nothing in this Agreement shall be construed to constitute DP as an
employee, partner or agent of Senesco. Without limiting the foregoing,
DP shall have no authority to act for or to bind Senesco in any way,
to alter any of the terms or conditions of any standard forms or other
agreements of Senesco, to make representations or warranties or to
execute agreements on behalf of Senesco, or to represent that Senesco
is in any way responsible for the acts or omissions of DP. DP shall
indemnify and hold Senesco harmless for any liability or damage to
Senesco resulting from a violation of this Agreement.
(b) Except as expressly set forth in this Agreement, this Agreement
shall not be construed as granting to DP any license or right in or to
any patent, copyright, trademark or other proprietary right of
Senesco.
(c) DP shall maintain the confidentiality of, and not disclose to
others, any confidential or proprietary information of Senesco which
it may now have or may hereafter obtain, including, without
limitation, specifications, technical reports, customer lists,
research and development initiatives and commercialization plans
relating to the Senesco's Technology, business or products. DP shall
cause each of its employees and/or agents to execute such agreements
as may be necessary to assure compliance with this provision.
(d) It is also understood that Senesco may alter or modify its
Technology or change its business in any way without the consent of
DP.
(e) DP shall conduct its business under its own name. DP shall not use
any trademarks or tradenames of Senesco in any manner, except as
authorized in writing by Senesco or in connection with the use of
literature supplied by Senesco. DP shall discontinue such usage upon
the termination of this Agreement.
(f) DP shall not, during the term of this Agreement, market or engage
in any business that competes with Senesco, without the prior written
consent of Senesco.
7. ASSIGNMENT - Neither party shall assign any of its rights or
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obligations under this Agreement without the written consent of the
non-moving party, which consent shall not be unreasonably withheld;
provided, however, Senesco shall be entitled to assign this Agreement
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to its successor-in-interest without the consent of DP upon a merger,
sale of all or substantially all of its assets, or the sale or
exchange of a majority of the capital stock of Senesco.
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8. GOVERNING LAW - This Agreement shall be governed, interpreted and
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enforced in accordance with the laws of the State of New Jersey, and
each party hereto consents to the exclusive jurisdiction of the state
and federal courts or arbitration proceedings located within the State
of New Jersey.
9. ENFORCEABILITY - If any provision of this Agreement is determined by
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a court of competent jurisdiction to be unenforceable or invalid, the
remainder of this Agreement shall continue to be in full force and
effect. The failure of either DP or Senesco to enforce any provision
herein shall in no event be considered a waiver thereof by either of
them.
10. NOTICES - Any notice or consent required by this Agreement shall be
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in writing and either personally delivered or mailed by registered or
certified mail, return receipt requested, to such party at its address
specified below or to such other address as such party may designate
by notice given in accordance herewith. Such notices shall be deemed
delivered on the date of receipt, or upon attempted delivery if
acceptance of delivery is refused. The initial addresses at which the
parties shall receive notice shall be:
XXXX XXXXX XXXXXX XXXXXXXX
DP, Inc. Senesco Technologies, Inc.
0000 Xxxxxxx Xxxx Xxx 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Md. 20852 Xxx Xxxxxxxxx, XX 00000
11. AMENDMENTS - No alteration, modification or amendment of this
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Agreement will be effective unless it is in writing and signed by both
parties hereto.
12. BINDING AND SUCCESSORS - This Agreement shall be binding upon the
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successors and assigns of the parties hereto.
13. FURTHER ASSURANCES - Each party to this Agreement represents, agrees
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and warrants that it will perform all other acts and execute and
deliver all other documents that may be necessary or appropriate to
carry out the intent and purpose of this Agreement.
14. ENTIRE AGREEMENT - This Agreement constitutes the entire agreement
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between the parties with reference to the subject matter hereof and
supersedes all prior negotiations, understandings, representations,
and agreements, if any. Each of the parties acknowledges that it is
entering into this Agreement as a result of its own independent
investigation and not as a result of any representations of any other
party not contained herein.
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15. ARBITRATION - Any controversy or claim arising out of or relating to
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this Agreement, or any breach thereof, including, without limitation,
any claim that this Agreement, or any part thereof, is invalid,
illegal, or otherwise voidable or void, may be submitted to final and
binding arbitration before, and in accordance with, the rules of the
American Arbitration Association, and judgment upon the award may be
entered in any court having jurisdiction thereof upon mutual agreement
of the parties hereto; provided, however, that this clause shall not
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be construed to limit any rights which either party may have to bring
an action in a court of law or equity. Such arbitration shall be
conducted by the American Arbitration Association at its offices in
New Jersey with one arbitrator; provided, that, any claim for an
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amount greater than $250,000 shall be heard by a panel of three (3)
arbitrators. All fees and expenses for this Arbitration shall be borne
equally between the parties hereto; provided, however, that the
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prevailing party shall be entitled to be reimbursed for all reasonable
fees and expenses.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
their names by their duly authorized representatives as of the date of this
Agreement.
AGREED AND ACCEPTED,
SENESCO TECHNOLOGIES, INC.
/s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President of Corporate Development
DP, INC.
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
President
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