Exhibit 10.2


 


Confidential
Treatment has been requested for portions of this exhibit. The copy filed
herewith omits the information subject to the confidentiality request.  Omissions are designated as “***”. A complete
version of this exhibit has been filed separately with the Securities and
Exchange Commission.


 


PATENT
LICENSE AGREEMENT


 


This PATENT LICENSE AGREEMENT (this “Agreement”)
by and between Monsanto Company, a Delaware corporation (“Monsanto”),
and Senesco Technologies, Inc., a Delaware corporation (“Senesco”) and
shall be effective as of the Effective Date.


 


BACKGROUND


 


A.            Senesco
has developed certain patents and technology in the field of improved yield and
stress tolerance in plants.


 


B.            Senesco
desires to license to Monsanto and Monsanto desires to license from Senesco the
patents and technology related to improved yield and stress tolerance in plants
in order for Monsanto to further develop and commercialize this technology.


 


In consideration of the covenants, conditions, and
undertakings hereinafter set forth, it is agreed by and between the parties as
follows:


 


1.             DEFINITIONS


 


1.1           “Advancement
to Commercial Development” means the ***of a***either***the***Technology or
with***with such ***being***by***such***being***in a***so as to ***a ***of***that
there is a ***that a***of ***will be ***to ***for***of a ***for***in ***shall***to
the ***of a***of***of the ***a***of ***of***for which ***has been ***


 


1.2           “Agreement”
has the meaning set forth in the Preamble.


 


1.3           “Affiliate”
means any corporation, association or other entity which directly or indirectly
Controls, is Controlled by or is under common Control with the party in
question.


 


1.4           “Commercially
Reasonable Efforts”  shall mean, with
respect to the efforts expended by Monsanto, those good faith efforts to
research, develop and commercialize Product(s), that Monsanto would normally
use to accomplish a similar objective under similar circumstances taking into
consideration all factors (including, but not limited to market, patent and
regulatory) related to such Product.


 


1.5           “Conceived”
and “Conception” has the meaning as applied under applicable United
States patent law.


 

















 


1.6           “Confidential
Information” means (i) the terms and conditions of this Agreement
(ii) any proprietary or confidential information or material, including
all trade secrets, in tangible form disclosed hereunder that is marked as “Confidential”
at the time it is delivered to the receiving party, or (iii) proprietary
or confidential information or material, including all trade secrets, disclosed
orally hereunder which is identified as confidential or proprietary when
disclosed and such disclosure of confidential information is confirmed in
writing (or by facsimile or email) within thirty (30) days by the disclosing
party; provided however, that the above
information shall not be deemed Confidential Information, to the extent the
receiving party can establish by competent written proof that such information:


 


1.6.1        was already known to the receiving party, other
than under an obligation of confidentiality owed to the disclosing party, at
the time of disclosure;


 


1.6.2        was generally available to the public or
otherwise part of the public domain at the time of its disclosure hereunder to
the receiving party;


 


1.6.3        becomes generally available to the public or
otherwise part of the public domain after its disclosure and other than through
any act or omission of the receiving party in breach of this Agreement;


 


1.6.4        is independently developed by the receiving
party without reference to any Confidential Information disclosed by the
disclosing party; or


 


1.6.5        was subsequently disclosed to the receiving
party by a person other than the disclosing party without breach of any legal
obligation to the disclosing party.


 


1.7           “Control”
means:


 


1.7.1        as to third party Confidential Information or
Intellectual Property that is in-licensed by a party, the possession of the
ability to disclose or grant the licenses or sublicenses as provided for herein
without violating the terms of any agreement or other arrangement with any
third party; 


 


1.7.2        as to the prosecution of patent applications,
the maintenance of patent rights, and the enforcement and/or defense of patent
rights, Control includes the authority to select legal counsel, solicit other expert
advice and assistance, and to make decisions pertaining to the conduct of
patent prosecution, interferences, patent issuance, maintenance, reissue,
reexamination, patent enforcement or defense, as applicable; and


 


1.7.3        as to an entity, (a) ownership of fifty
percent (50%) or more in the aggregate of the voting power of all outstanding
equity interest entitled to vote at a general election of directors of such
entity, or other ability to elect a majority of the directors or other
controlling persons of such entity, (b) ownership of fifty percent (50%)
or more of the equity interests in such entity, or (c) ownership of fifty
percent (50%) or more of the assets of such entity.


 


1.8           “Defense
or Enforcement Matter” has the meaning set forth in Section 5.2.2.


 


2

















 


1.9           “Dispute
Resolution” has the meaning set forth in Section 10.


 


1.10         “Effective
Date” means the date of last signature by the undersigned on the signature
page hereto.


 


1.11         “Exclusive
License” has the meaning set forth in Section 2.1.


 


1.12         “Intellectual
Property” means generally any and all right title and interest in, arising
from, or relating to inventions, ideas, know-how, works of authorship and
confidential information, including copyrights, patents and patent
applications, trade secrets, trademarks, service marks, any registrations or
applications relating to any of the foregoing, and any other rights of a
similar nature or character whether now existing or hereafter created,
developed, arising or otherwise coming into being.


 


1.13         
“Monsanto” has the meaning set forth in the Preamble.


 


1.14         “Monsanto
Field” means corn, soy and any hybrids and varieties thereof, in any
territory in the world.


 


1.15         “Net
Trait Revenue” means, with respect to traits conferred in their entirety to a Royalty Base Product, an amount equal to the gross
trait revenue (e.g., ***)
received by Monsanto ***or***, as reasonably determined by Monsanto consistent
with its then-current custom and practice (e***on a***at the ***are***with***)
all in accordance with generally accepted accounting principles (GAAP), less
all returns, customer rebates, dealer incentives, channel and marketing
programs, volume discounts, seed service fees, cash discounts (pre-pay
discounts), local competitive response, freight and insurance, which ***are***on
a***or if such ***do not ***then as ***of all ***and ***of ***) in the
applicable Royalty Base Product.


 


1.16         “Prime
Rate” means the base lending rate on corporate loans from commercial banks,
as published from time to time in The Wall Street Journal.


 


1.17         “Product”
means any product, good, or service that incorporates, contains, utilizes, is
enabled by or otherwise exploits the Senesco Technology, or the making, using,
selling or importing of which would, absent the Exclusive License granted
hereunder, infringe upon Senesco’s Intellectual Property rights.


 


1.18         “Proof of Concept” means the ***in the ***that at***of the***but
not ***with at ***.


 


1.19         “Reduced
to Practice” and “Reduction to Practice” has the meaning as applied
under applicable United States patent law.


 


1.20         
“Regulatory Submission” means a submission, or submissions, to a U.S.
regulatory authority, or such comparable authority in countries outside of the
U.S., whose purpose is to allow for the commercial production or importation
for food or feed use in the jurisdiction governed by such regulatory authority.


 


3

















 


1.21         “Research
License” has the meaning set forth in Section 2.4.


 


1.22         “Royalty
Base Product” means any product, good, or service that incorporates,
contains, or expresses a Trait embodied in the Senesco Technology and the
making, using, selling or importing of which would, absent the License granted
hereunder, infringe an issued, existing, valid, and unexpired claim under an
issued, existing, valid and unexpired Senesco patent (but not a patent
application).


 


1.23         
“Senesco” has the meaning set forth in the Preamble.


 


1.24         “Senesco
Biological Material” means seeds, vectors, germplasm, and any other cells,
plants, plant tissues, and other material provided by Senesco to Monsanto
pursuant to Section 2.3.  


 


1.25         “Senesco
Patent Rights” means all the patents and patent applications listed in Exhibit
A and any amendements thereto, including any continuations, divisionals,
continuations-in-part, reissues, or foreign equivalents based on any of the
foregoing patents, patent applications or claims in respect thereof. 


 


1.26         
“Senesco Research Crop” means any crop other than ***and any ***and***.


 


1.27         “Senesco
Technology” means (a) the Senesco Patent Rights, (b) any data that
provided proof of concept for the Senesco Patent Rights, including but not
limited to the coding region, promoter guidance, and vectors used for plant
transformations, and (c) any know-how, trade secrets, processes, or other
information necessary or useful to the practice of the Senesco Patent Rights or
use of the knowledge covered in clauses (a), (b), or (c) above, provided
that (b) and (c) above shall only include that data and know-how to which
Senesco has a right to provide under this Agreement.


 


1.28         “Senesco
Trait” means any biochemical, physiological, or physical attribute or
phenotype of a cell, plant, or other organism, which trait is caused or
regulated by one or more genes, and which trait is covered by a claim under the
Senesco Patent Rights.


 


1.29         “Technology
Access Fee” has the meaning set forth in Section 3.1.


 


1.30         “Term”
means the term of this Agreement.


 


2.             LICENSE TO MONSANTO.


 


2.1           Exclusive
License to Monsanto.  Subject to the
terms and conditions of this Agreement, Senesco grants to Monsanto and its
Affiliates, and Monsanto accepts for itself and on behalf of its Affiliates, an
exclusive, perpetual, worldwide, sub-licensable, license under Senesco’s
interest in the Senesco Technology to research, develop, make, have made, use,
have used, import, export, distribute, sell, offer for sale, have sold, and
otherwise exploit Products for all applications in the Monsanto Field (the “Exclusive
License”).  


 


4

















 


2.2           Sublicenses.  Monsanto is entitled to grant sublicenses
under the Exclusive License.  Each
sublicense granted by Monsanto shall be consistent with all the terms and
conditions of this Agreement. 


 


2.3           Access
to Senesco Biological Materials and Data. 
Senesco agrees to provide Monsanto within thirty (30) days of any
reasonable request by Monsanto, to the extent reasonably available,
representative samples of all Senesco Biological Material and data necessary or
useful for Monsanto to exercise the rights and licenses granted to Monsanto
pursuant to this Section 2 or pertaining to the Senesco Technology.


 


2.4           Grant
Back Obligations .  Monsanto agrees
to grant and hereby grants to Senesco, which Senesco accepts, a nonexclusive,
nonsublicensable, non-transferable, royalty-free, worldwide research license
(the “Research License”)  in the
Senesco Research Crops to any patentable improvements developed by Monsanto
under the Exclusive License to any invention covered by an issued claim of the
Senesco Patent Rights licensed to Monsanto. 
The Research License includes the right to research, develop, make and
use (but not to distribute, sell, offer for sale, have sold, import, export,
have made or otherwise commercially exploit) any patentable improvements
covered by this Section 2.4.   Senesco
acknowledges and agrees that the Research License is not a commercial
license.  


 


2.5           Reservation
of Rights.  Senesco reserves and
retains title to, ownership of, or Control over all rights not expressly
granted to Monsanto pursuant to this Agreement. 



 


3.             PAYMENTS.


 


3.1           Technology
Access Fee.  Monsanto shall pay to
Senesco, within thirty (30) days of the Effective Date, a non-refundable,
non-creditable technology access fee in the amount of ***) (the “Technology
Access Fee”).


 


(a)           Royalty
Payments on Net Trait Revenue. 
Subject to the terms and conditions of this Agreement, Monsanto agrees
to pay to Senesco a royalty on each Royalty Base Product sold by Monsanto, a
Monsanto Affiliate or a Monsanto sublicensee *** for each such Royalty Base
Product sold hereunder.


 


(b)           ***pays ***for***to***for the ***of***then***may***any such ***under***but
in ***of ***of the ***in***of the ***


 


3.2           Milestone
Payments.  Provided the pre-commercial
Products developed by Monsanto contain Senesco Technology or are otherwise
Royalty Base Products, Monsanto agrees to pay Senesco the following fees
(collectively, “Milestone Fees within sixty (60) days of achievement
thereof by Monsanto, a Monsanto Affiliate, or a Monsanto sublicensee:


 


(a)           ***


 


***payable at ***


 


*** payable upon ***


 


5

















 


*** payable upon ***


 


(b)           ***


 


*** payable at ***


 


*** payable upon ***


 


***  payable
upon ***


 


Any and all ***by ***are***any ***made in ***of each ***


 


3.3           Disclaimer.  Senesco agrees and acknowledges that Monsanto
has no obligation under this Section 3 or otherwise under this Agreement to
pursue any regulatory or governmental approval for any particular crop or set of
crops in any particular market or in general. 
Monsanto does not represent, warrant, or assert that any royalties or
Milestone Fee payments will accrue hereunder, and any statement to the contrary
by any agent, employee, officer, director, or shareholder of Monsanto is hereby
disclaimed and not binding on Monsanto. 
Without limiting the generality of the foregoing, Monsanto intends to
use Commercially Reasonable Efforts to evaluate the efficacy of the Senesco
Technology.


 


4.             PAYMENTS; BOOKS AND RECORDS.


 


4.1           Royalty
Reports and Payments.  After the
first commercial sale of a Product, Monsanto shall deliver written reports to
Senesco annually on or before December 31 for the prior twelve (12) month
period ending August 31st, stating in each such report, separately for Monsanto
and each of its Affiliates, the number and description of each Product sold,
the Net Trait Revenue with respect thereto, and the calculation of royalties
due thereon.


 


4.2           Payment
Method.  All payments due under this
Agreement shall be made by check or by Electronic Funds Transfer (EFT) to a
bank account designated by Senesco.  All
payments hereunder shall be made in U.S. dollars.  If the due date of any payment is a Saturday,
Sunday or national holiday, such payment may be paid on the following business
day.  


 


4.3           Late
Payment Penalties.  Interest shall
accrue on any late payment owed to Senesco hereunder not made within sixty (60)
days of the date such payment is due, at an annual interest rate equal to the
lesser of the Prime Rate plus two percent (2%) or the highest rate permissible
by law, with such interest accruing from the date the payment was originally
due, and any late payment pursuant to this Section shall be credited first to
interest and then to any outstanding fees. 



 


4.4           Currency
Conversions.  If any currency
conversion shall be required in connection with the calculation of payments
hereunder, such conversion shall be made using the selling exchange rate for
conversion of the foreign currency into U.S. Dollars, quoted for current
transactions reported in Reuters for the second to last business day of the
month prior to the month in which Monsanto records such sale giving rise to the
payment obligation set forth herein.


 


6

















 


4.5           Records;
Inspection.  Monsanto shall endeavor
reasonably to keep complete, true and accurate books of account and records for
the purpose of determining the royalty amounts payable under this
Agreement.  Such books and records shall
be kept at Monsanto’s principal place of business, for at least two (2) years
following the end of the annual period to which they pertain.  These books and records of Monsanto shall be
open for inspection by Senesco during such two (2) year period by a public
accounting firm for whom Monsanto has no reasonable objection, solely for the
purpose of verifying royalty statements hereunder.  Such inspections may be made no more than
once each calendar year, and no more than once with respect to the period
inspected, at reasonable times and on reasonable notice.  Inspections conducted under this
Section 4.4 shall be at Senesco’s expense and may not be conducted on a
contingent fee basis; provided, however,
that if a variation or error producing an increase exceeding ten percent (10%)
of the royalty amount stated for any period covered by the inspection is
established in the course of any such inspection, then all reasonable third
party inspector’s costs relating to the inspection for such period incurred by
Senesco, and any unpaid amounts that are discovered, shall be paid by Monsanto
to Senesco.


 


4.6           Tax
Matters.  All royalty amounts and
other payments required to be paid pursuant to this Agreement shall be paid
with deduction therefrom for withholding for or on account of any sales tax,
use tax, value-added tax or other similar tax (other than taxes imposed on,
measured by, or credited against net income) or governmental charge imposed
upon such royalties by a jurisdiction other than the United States.  The withholding party shall provide Senesco
with a certificate evidencing payment of any such withholding taxes pursuant to
this Section 4.6.


 


5.             INTELLECTUAL PROPERTY.


 


5.1           Inventorship
and Title.  Inventorship and rights
of ownership and title to improvements and modifications to the Senesco
Technology licensed to Monsanto hereunder that are Conceived or Reduced to
Practice in whole or part by personnel of Monsanto or its Affiliates shall be
determined in accordance with applicable law. Monsanto or its designee shall
own all right, title and interest in any inventions or discoveries, and all
Intellectual Property rights relating to such inventions or discoveries,
Conceived or Reduced to Practice by Monsanto’s or its Affiliates’ employees,
agents or independent contractors (or conceived or reduced to practice jointly
with any third parties under an obligation to assign such Intellectual Property
rights covering such inventions or discoveries to Monsanto or its designee)
under or in the course of exercising the Exclusive License rights hereunder in
respect of the Senesco Technology.


 


5.2           Patent
Rights.  


 


5.2.1        Prosecution and Maintenance.  Senesco shall Control and be solely
responsible for all costs related to the prosecution and maintenance of the
Senesco Patent Rights.  If Senesco elects
not to prosecute or maintain a patent application or patent in a particular
country, Senesco shall provide Monsanto with sixty (60) days notice
thereof.  If Monsanto objects to such
abandonment or withdrawal, at Senesco’s sole discretion, Senesco shall either
(i) continue to prosecute, maintain and defend such patent application or
patent or (ii) give Monsanto the right to take over the prosecution,
maintenance and/or defense of such patent 


 


7

















 


application, at Monsanto’s own discretion and at its own cost and to
have such patent application assigned to Monsanto.  Senesco will execute the appropriate
documents for filing with the relevant government patent office to enable
Monsanto to take over prosecution or maintenance of said patent application or
patent and to assign rights of ownership to Monsanto.  Any such patent or patent application which
Senesco abandons and Monsanto continues to prosecute or maintain will no longer
be considered within the scope of Senesco Patent Rights under the terms of this
Agreement.  


 


5.2.2        Patent Enforcement.  In the event that either party becomes aware
of any infringement of the Senesco Patent Rights or assertion thereof within
the Monsanto Field, it shall promptly and in any case before taking any action
thereon notify the other party, and the parties shall meet and confer regarding
the appropriate action to be taken in respect thereof.  For any enforcement of the Senesco Patent
Rights pertaining to the Monsanto Field (to which Monsanto has retained its
Exclusive License), Monsanto shall have the first option to enforce the Senesco
Patent Rights.  If Monsanto chooses to
enforce said rights, except as provided for in the following sentence, Monsanto
will assume full Control of such matter, at its own cost.  To the extent that Senesco Patent Rights
outside of the Monsanto Field are implicated or at risk, Senesco will be given
the opportunity to participate, at its own cost in the defense of any validity
or enforceability of one or more of the Senesco Patent Rights, and Senesco
shall retain full Control of all decisions regarding the validity and
enforceability of those rights.  Any and
all lost profits damages awards resulting from any enforcement action pursued
by Monsanto within the Monsanto Field, as provided above shall be retained by
Monsanto. If Monsanto declines to assume Control, Senesco shall retain Control
of such matter and shall be solely responsible for all decisions and costs
related to the matter, and shall also own any damages obtained therefrom.  Senesco agrees to assist and cooperate with
Monsanto as may be required in order to perfect Monsanto’s interests hereunder
and to facilitate Monsanto’s enforcement of the Senesco Patent Rights Senesco
acknowledges that it may be a necessary party to any action brought by Monsanto
arising from enforcement of the Senesco Patent Rights, and Senesco will provide
such assistance and cooperation for its participation in such proceedings.
Monsanto agrees to reimburse Senesco any reasonable and necessary documented
out of pocket expenses Senesco may incur for the aforementioned assistance. 


 


5.2.3  Defense Against Third Party Infringement.  In the event either party is sued for
infringement of a third party patent based in whole or in part on use of the
Senesco Technology or the Senesco Patent Rights, each party will retain Control
of its own defense and bear its own cost of defense.  Monsanto assumes full liability for any
damages assessed or awarded based upon Monsanto’s making, using, selling,
offering to sell, or importing Products or Royalty Base Products. 


 


6.             REPRESENTATIONS, WARRANTIES AND COVENANTS;
DISCLAIMERS.


 


6.1           Representations
and Warranties.


 


6.1.1        By Senesco.  Senesco represents, warrants and covenants to
Monsanto that (i) it has the full right and authority to enter into this
Agreement and grant the rights and licenses granted herein; (ii) as of the
Effective Date and to the knowledge of Senesco, there are no 


 


8

















 


existing or
threatened actions, suits or claims pending against it with respect to the
license granted hereunder, or its right to enter into and perform its
obligations under this Agreement; (iii) as of the Effective Date Senesco is not
aware of any allegation by a third party that the Senesco Technology is
invalid, unenforceable or infringes the Intellectual Property rights of a third
party; (iv) Senesco has not previously granted, and shall not grant during the
Term, any rights in or to the Senesco Technology which are in conflict with the
rights granted to Monsanto hereunder; (v) the list of patents in Exhibit A
contains all patents and pending applications known to and Controlled by
Senesco and its Affiliates which are or shall be required in order to create or
practice any invention, product, method, or process comprising the Senesco
Technology without infringement or violation of any Intellectual Property
rights owned or Controlled by Senesco; and (vi) Senesco and its Affiliates do
not and shall not at any point in the future assert that any patent currently
or in the future owned, licensed or Controlled by such parties is directly or
indirectly infringed by any good, service, process or method offered or used by
Monsanto in a case, lawsuit, to any third party, or otherwise in any manner
provided such product, good, service or process is treated by Monsanto as a
Royalty Base Product hereunder.  


 


6.1.2        By Monsanto.  Monsanto warrants and represents to Senesco
that (i) it has the full right and authority to enter into this Agreement,
and (ii) as of the Effective Date and to the knowledge of Monsanto, there
are no existing or threatened actions, suits or claims pending against it with
respect to its right to enter into and perform its obligations under this Agreement.


 


6.2           Disclaimer of Warranties.  Except as expressly provided in Section 6.1,
Senesco and Monsanto each expressly disclaim any warranties, including without
limitation any implied warranties of merchantability or fitness for a
particular purpose, or any warranty that any patent licensed hereunder shall be
valid or enforceable.  Each party
acknowledges that it is not relying on any warranties other than those set
forth in this Section 6. 


 


7.             CONFIDENTIALITY.


 


7.1           Confidential
Information.  Except as expressly
provided in this Agreement, the parties agree that, for the Term and for five
(5) years thereafter, the receiving party shall keep completely confidential
and shall not publish or otherwise disclose and shall not use for any purpose
except for the purposes contemplated by this Agreement any Confidential
Information furnished to it by the disclosing party hereto pursuant to this
Agreement.  Without limiting any
provision of this Agreement, each of the parties hereto shall be responsible
for the observance by its employees of the confidentiality obligations set
forth in this Section 7 and this Agreement, generally.


 


7.2           Permitted
Disclosures.  Except as otherwise
limited by this Agreement, each party hereto may disclose the other party’s
Confidential Information and scientific data resulting from the activities
conducted under this Agreement only (a) to its Affiliates, or to its
advisors, financial investors, including prospective financial investors, and
the agents or advisors of the foregoing and other similarly situated third
parties on a need to know basis, if such Affiliates and other permitted
recipients agree to be bound by the terms of this Section 7 or have a
fiduciary duty of confidentiality, and (b) to the extent such disclosure
is reasonably necessary in connection with filing or prosecuting patent
applications, prosecuting or defending litigation, complying with applicable
governmental regulations, submitting information to tax or other 


 


9

















 


governmental authorities, making a permitted sublicense or otherwise
exercising its rights hereunder, provided that if a party is required to make
any such disclosure of another party’s Confidential Information, other than
pursuant to a confidentiality agreement, it shall give reasonable advance
notice to the other party of such disclosure and, save to the extent
inappropriate in the case of patent applications, shall cooperate with the
disclosing party to secure a protective order blocking the disclosure of, or
otherwise affording confidential treatment to, such Confidential
Information.  Without limiting the
generality of the preceding, Monsanto and Senesco agree that no press release
or other public statement concerning the negotiation, execution and delivery of
this Agreement and any other agreements and transactions contemplated hereby
shall be issued or made without the prior written approval of both
parties.   Further, the parties agree
that neither party shall make any other press release or public disclosures
relating to the terms of this Agreement without obtaining the prior written
consent of the other party. The party wishing to make said other press release
or public disclosures shall submit a copy of the proposed release or disclosure
at least two weeks prior to wishing to make such disclosure or release.  Notwithstanding the foregoing, the parties
shall be entitled to issue a press release to announce the execution of this
Agreement, as approved by both parties. 
Consent shall not be unreasonably withheld or delayed.


 


Notwithstanding the terms of this Article 7, either
party shall be permitted to disclose the existence and terms of this Agreement,
to the extent required, in the reasonable opinion of such party’s counsel, to
comply with applicable laws, rules or regulations, including, without
limitation, the rules and regulations promulgated by the U.S. Securities and
Exchange Commission or any other governmental agency.  Prior to disclosing the Agreement or the
terms hereof, the parties shall consult with one another on the terms of this
Agreement for which confidential treatment will be sought in making such
disclosure.  If a party wishes to
disclose this Agreement or any of the terms hereof in accordance with this
paragraph, such party agrees, at its own expense, to seek confidential
treatment of the portions of this Agreement or such other terms as may be
reasonably requested by the other party, provided that the disclosing party
shall always be entitled to comply with legal requirements.


 


8.             EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY.


 


In no
event shall either party be liable under this Agreement to the other party for
any incidental, consequential, indirect or exemplary damages, including damages
from loss of profits or opportunities, even if advised of the possibility of
such damages.  In no event shall Monsanto’s
liability to Senesco arising out of or in connection with this Agreement, the
Senesco Technology, or Monsanto’s use or other exploitation thereof, whether in
contract, tort or any other theory of liability, including strict liability,
exceed in the aggregate the amounts actually paid by Monsanto to Senesco during
the one (1) year period before such liability first accrues.


 


9.             TERM AND TERMINATION.


 


9.1           Term.  The term of this Agreement shall commence on
the Effective Date and, unless terminated earlier as provided for herein, shall
continue until the expiration of the last to expire Senesco Patent Rights.  Without limiting the foregoing, the term of
this Agreement shall 


 


10

















 


survive the
non-renewal or termination of any particular license granted hereunder, but not
the Agreement in its entirety.


 


9.2           Termination by
Monsanto.  Monsanto may terminate
this Agreement at any time upon sixty (60) prior notice to Senesco.


 


9.3           Termination for
Cause.  


 


9.3.1        Termination of the Agreement.  Subject to the limitations set forth in
Section 9.3.2 regarding Senesco’s right to terminate any licenses granted
under this Agreement, either party may, upon notice to the other party,
terminate this Agreement in its entirety if the other party materially breaches
this Agreement and fails to cure such breach within ninety (90) days after
receiving written notice thereof from the party seeking to terminate.  


 


9.3.2        Termination of License.  Senesco may, upon notice to Monsanto and
Monsanto’s failure to cure within a ninety (90) day period, terminate any
license to a Senesco Patent Right following Monsanto’s unauthorized use thereof
or nonpayment of undisputed fees accrued and payable under Section 3.


 


9.3.3        For avoidance of doubt, termination of the
Agreement or of a license hereunder pursuant to this Section 9.3 shall be
effective only if the party seeking to terminate provides notice of breach,
such breach is not cured within ninety (90) days, and such party then provides
notice of termination upon expiration of such cure period. 


 


9.4           Accrued Obligations.  Termination of this Agreement or any license
granted hereunder for any reason shall not release any party from any liability
which, at the time of such termination, has already accrued to the other
party.  Subject to the limitations set
forth in Sections 6.2 and 8, neither party is precluded from pursuing any
rights and remedies it may have under this Agreement and at law and in equity
which accrued or are based upon any event occurring prior to such termination.


 


9.5           Insolvency.  The parties agree that the licenses granted
hereunder are of intellectual property covered by 11 U.S.C. § 365(n) and that
if a trustee of Senesco rejects the Agreement as an executory contract,
Monsanto has the right to continue its rights under the Agreement following
notice and assumption of its obligations. 
They further agree that in the event of such rejection, failure by the
Monsanto to assert its rights to “retain its benefits” under the Agreement
pursuant to 11 U.S.C. § 365(n)(1)(B) shall not be construed by either party or
by a court as a termination of the Agreement by Monsanto under 11 U.S.C. §
Section 365(n)(1)(A).  


 


9.6           Survival.  Sections 1, 2.1, 2.2, 2.5, 3.1(a), 3.1(a)
3.3, 4, 5.1, 6, 7, 8, 9.4, 9.5, 9.6, 10 and 11 shall survive the expiration or
termination of this Agreement.


 


10.          DISPUTE RESOLUTION.  


 


10.1         If a dispute arises out
of or relates to this Agreement or a breach thereof, the parties shall first
try to resolve their dispute through informal and good faith negotiation
between the Chief Executive Officer of Senesco and the Executive Vice President
of Technology of Monsanto.  If said
officers cannot resolve the dispute within three business days, then the
parties 


 


11

















 


agree first to try
in good faith to settle the dispute by mediation under the Commercial Mediation
Rules of the American Arbitration Association, before resorting to arbitration,
litigation, or some other dispute resolution procedure.


 


11.          MISCELLANEOUS.


 


11.1         Governing Law.  This Agreement and any dispute arising from
the performance or breach hereof shall be governed by and construed in
accordance with the internal laws of the State of Missouri applicable to
contracts entered into and performed in Missouri by residents thereof, except
in respect of matters arising under patent law, which matters shall be governed
by and construed in accordance with Title 35, United States Code, and patent
law as interpreted by the U.S. Court of Appeals for the Federal Circuit and the
U.S. Supreme Court.  Any action or
lawsuit brought relating to this agreement shall be brought in the state and
federal courts of St. Louis, Missouri, and any objection to venue or personal
jurisdiction in such courts is hereby irrevocably waived.


 


11.2         Waiver.  Neither party may waive or release any of its
rights or interests in this Agreement except in writing.  The failure of either party to assert a right
hereunder or to insist upon compliance with any term or condition of this
Agreement shall not constitute a waiver of that right or excuse a similar
subsequent failure to perform any such term or condition.


 


11.3         Amendment.  This Agreement may be modified or amended
only pursuant to a writing executed by both parties.


 


11.4         Assignment.  Except as otherwise provided herein, this
Agreement and the licenses granted herein shall not be assignable by either
party to any third party hereto without the prior written consent of the other
party hereto, provided, however, Monsanto may assign this Agreement, without
such consent, to an Affiliate, upon a change of Control, or in connection
with the reorganization, consolidation, spin-off, sale or transfer of
substantially all of the stock or assets related to that portion of its
business pertaining to the subject matter of this Agreement, either alone or in
conjunction with other businesses as part of an overall reorganization.  The terms and conditions of this Agreement
shall be binding on and inure to the benefit of the permitted successors and
assigns of the parties.


 


11.5         Notices.  All notices, requests and other
communications hereunder shall be in writing and shall be personally delivered
or sent by international express delivery service, registered or certified
mail, return receipt requested, postage prepaid, in each case to the respective
address specified below, or such other address as may be specified in writing
to the other parties hereto:


 


	
  Monsanto:

  	
   

  	
  Monsanto Company

  
	
   

  	
   

  	
  Attn.: Vice President,
  Biotechnology

  
	
   

  	
   

  	
  800 N. Lindbergh Blvd.

  
	
   

  	
   

  	
  St. Louis, Missouri 63167

  



 


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  with a copy to:

  	
   

  	
  General Patent Counsel

  
	
   

  	
   

  	
  Monsanto Company

  
	
   

  	
   

  	
  800
  N. Lindbergh Boulevard

  
	
   

  	
   

  	
  St. Louis, Missouri 63167

  
	
   

  	
   

  	
   

  
	
  Senesco:

  	
   

  	
  Senesco Technologies, Inc

  
	
   

  	
   

  	
  Sascha Fedyszyn

  
	
   

  	
   

  	
  Vice President, Corporate Development

  
	
   

  	
   

  	
  303 George St., Suite 420

  
	
   

  	
   

  	
  New Brunswick, NJ 08901

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
   

  



 


Except for a notice of a change of address, which
shall be effective only upon receipt thereof, all such notices, requests,
demands, waivers and communications properly addressed shall be effective:  (i) if sent by U.S. mail (or if
internationally, by air mail), three (3) business days after deposit in the
U.S. mail or air mail, postage prepaid; (ii) if sent with overnight
delivery by Federal Express or other overnight delivery service, one (1)
business day after delivery to such service; (iii) if sent by personal
courier, upon receipt; and (iv) if sent by facsimile (if the receiving
machine confirms receipt through answerback and the sending machine prints a
paper copy of the answerback message), upon receipt.


 


11.6         Performance Warranty.  Monsanto and Senesco hereby warrant and
guarantee the performance of any and all rights and obligations of this
Agreement by their Affiliates.


 


11.7         Force Majeure.  Neither party shall be liable to the other
for failure or delay in the performance of any of its obligations under this
Agreement (other than obligations to pay money) for the time and to the extent
such failure or delay is caused by riot, civil commotion, war, terrorist act,
hostilities between nations, governmental law, order or regulation, embargo,
action by the government or any agency thereof, act of God, storm, fire,
earthquake, accident, labor dispute or strike, sabotage, explosion or other
similar or different contingencies, in each case, beyond the reasonable control
of such party.  The party affected by
Force Majeure shall provide the other party with full particulars thereof as
soon as it becomes aware of the same (including its best estimate of the likely
extent and duration of the interference with its activities), and shall use its
best endeavors to overcome the difficulties created thereby and to resume
performance of its obligations as soon as practicable.


 


11.8         Independent
Contractors.  Nothing contained in
this Agreement is intended implicitly, or is to be construed, to constitute
Monsanto or Senesco as partners in the legal sense.  No party hereto shall have any express or
implied right or authority to assume or create any obligations on behalf of or
in the name of any other party or to bind any other party to any contract,
agreement or undertaking with any third party.


 


11.9         Advice of Counsel.  Monsanto and Senesco each have had the
opportunity to consult with counsel of their choice regarding this Agreement,
and each acknowledges and agrees that this Agreement shall not be deemed to
have been drafted by one party or another and shall be construed accordingly.


 


13

















 


11.10       Other Obligations.  Except as expressly provided in this
Agreement or as separately agreed upon in writing between Senesco and Monsanto,
each party shall bear its own costs incurred in connection with the
implementation of the obligations under this Agreement.


 


11.11       Severability.  If any provisions of this Agreement are
determined to be invalid or unenforceable by an arbitrator or court of
competent jurisdiction, the remainder of this Agreement shall remain in full
force and effect without said provision. 
The parties shall in good faith negotiate a substitute clause for any
provision declared invalid or unenforceable, which shall most nearly
approximate the intent of the parties in entering this Agreement.


 


11.12       Further Assurances.  At any time or from time to time on and after
the date of this Agreement, either party shall at the request of the other
party (i) deliver to the requesting party such records, data or other documents
consistent with the provisions of this Agreement, (ii) execute, and
deliver or cause to be delivered, all such consents, documents or further
instruments of assignment, transfer or license, and (iii) take or cause to
be taken all such actions, as the requesting party may reasonably deem
necessary or desirable in order for the requesting party to obtain the full
benefits of this Agreement and the transactions contemplated hereby.


 


11.13       Approvals.  Monsanto shall be responsible, at its
expense, for obtaining any approvals from the governmental entities which may
be required under applicable law for the commercial exploitation of Products.


 


11.14       Entire Agreement.  This Agreement together with the Exhibit
hereto constitutes the entire agreement, both written or oral, with respect to
the subject matter hereof, and supersedes all prior or contemporaneous
understandings or agreements, whether written or oral, between Monsanto and
Senesco with respect to such subject matter.


 


11.15       Headings.  The headings to the Sections hereof are not a
part of this Agreement, but are included merely for convenience of reference
only and shall not affect its meaning or interpretation.


 


11.16       Construction.  Whenever examples are used in this Agreement
with the words “including,” “for example,” “e.g.,” “such as,” “etc.” or any
derivation of such words, such examples are intended to be illustrative and not
limiting.


 


11.17       Counterparts.  This Agreement may be executed in two
counterparts and by facsimile, each of which shall be deemed an original and
which together shall constitute one instrument.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their authorized representatives
effective as of the Effective Date.


 


	
  MONSANTO COMPANY

  	
   

  	
   

  	
  SENESCO TECHNOLOGIES,
  INC.

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Robert T. Fraley

  	
   

  	
   

  	
  By:

  	
  /s/ Bruce C. Galton

  	
   

  
	
  Its:

  	
  EVP and Chief
  Technology Officer

  	
   

  	
   

  	
  Its:

  	
  President and Chief
  Executive Officer

  	
   

  
	
  Date of Execution:

  	
  8/06/07

  	
   

  	
   

  	
  Date of Execution:

  	
  8/06/07

  	
   

  
															



 


14

















 


EXHIBIT
A


 


***


 


Exhibit A 1