[GRAPHIC OMITTED]
April 18, 2002
Xxxxx X. Xxxxxx
President and CEO
SENESCO TECHNOLOGIES, INC.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Dear Xxxxx:
This letter shall serve to confirm our agreement as follows:
1. SENESCO TECHNOLOGIES, INC. ("Company") hereby retains Xxxxxxx/Xxxxxxxxx &
Associates, Inc., ("LHA") effective as of April 22, 2002 for its FINANCIAL
COMMUNICATIONS SERVICES PROVIDED IN SECTION 2 BELOW.
2. The duties performed by LHA on behalf of the Company may include but are
not limited to:
a. Develop, for approval and implementation, programs designed to achieve
the Company's Financial Communications objectives
b. Advise Company management on Investor Relations aspects of Company's
policies, opportunities and problems
c. Prepare Corporate Fact Sheet
d. Prepare and issue material press releases
e. Assemble and maintain quarterly buy/sell industry peer group matrix
f. Prepare peer materials
g. Arrange periodic meetings with buy/sell analysts, retail brokers, etc.
h. Coordinate conference calls between Management and key investment
professionals
i. Provide professional staff services as may be required to help the
Company carry out program objectives including the use of LHA
proprietary investor database
j. Prepare and distribute letters to shareholders (IF APPLICABLE)
k. Company will be included in LHA Quarterly Client Roster and listed in
LHA's Web Site
l. Company will be included in LHA's monthly Client List sent to all
investors
m. Regular inspection of Company descriptions and coverage to assure
accuracy in Electronic Bulletins, i.e. Bloomberg and Dow Xxxxx.
3. The initial term of this agreement shall be for the period of twelve (12)
months commencing on April 22, 2002 and expiring on April 30, 2003.
However, Company may terminate the agreement at anytime after the initial
ninety- (90) day period with sixty- (60) day notice. During said sixty-
(60) day notice period, the parties shall continue to perform all of their
obligations under this Agreement, including Company's payment of the
monthly retainer fee and reimbursement of disbursements under Paragraph's 4
and 6 hereof.
4. As long as this agreement is in force compensation for the services being
rendered by LHA shall be payable in monthly installments of $10,000.00.
Commencing on May 1, 2003 and each anniversary year thereafter, such fee
shall be increased by 5% to partially offset LHA's increased operating
expenses.
5. In the event LHA is required to perform services outside the scope (Crisis
Communications, and/or Special Situations, i.e. M & A) of the agreed upon
IR services under Paragraph 2 hereof, LHA with written client approval,
will invoice the company at the standard billable hourly rates, as listed
in Appendix 2, for the participating principals and staff, as they are
required to carry out this task; plus reasonable expenses not to exceed
$5,000 without Company's consent. Company shall receive detail of such
expenses.
IN ORDER FOR LHA TO COMMENCE WORK FOR COMPANY, LHA WILL REQUIRE A PRO-RATED
APRIL AND TWO-MONTH ADVANCE RETAINER OF $22,500.00, WHICH SERVES AS PAYMENT
FOR THE LAST WEEK OF APRIL AND PREPAYMENT FOR THE FIRST FULL TWO MONTHS
PROFESSIONAL FEES.
6. In addition, Company shall be responsible for all reasonable and necessary
disbursements made by LHA on your behalf, including but not limited to long
distance telephone calls and in-house expenses (see Appendix 1). At the end
of each month, LHA shall bill Company, and Company shall reimburse LHA for
all expenses (not to exceed $2,000 per month without Company's consent) and
disbursements made on your behalf. All expenses and disbursements incurred
will be itemized in each monthly invoice.
INVOICES ARE DATED THE 1ST OF THE MONTH AND ARE DUE AND PAYABLE WITHIN 30
DAYS.
7. Recognizing that LHA's most highly valued resource is its professional
staff, the Company agrees that it shall not employ, hire or retain, or
recommend to others the employment, hiring or retention of any person
employed by LHA without prior written consent of LHA partners. This
limitation would expire one (1) year after the employee has left LHA. The
liquidated damages due to LHA shall be three (3) times the last annualized
total compensation paid by LHA to any such person in addition to relief at
law or in equity. In return, XXX agrees not to employ, hire or retain, or
recommend to others the employment, hiring or retention of any person
employed by Company without prior written consent of Company. This
limitation would expire one (1) years after employee has left Company. The
liquidated damages due to Company shall be three (3) times the last
annualized total compensation paid by Company to any such person in
addition to relief at law.
8. LHA acknowledges its responsibility to preserve the confidentiality of any
confidential information disclosed by Company to LHA, except for such
disclosure as may be required by court order, subpoena or other judicial
process. "Confidential Information" shall mean information, ideas or
materials now or hereafter owned by or otherwise in the possession or
control of, or otherwise relating to, the Company or any of its affiliates,
including inventions, business or trade secrets, know-how, technique, data,
reports, drawings, specifications, blueprints, flow sheets, designs, or
engineering, construction, environment, operations, marketing or other
information, business strategies and plans and other similar business,
technical, or private material whatsoever related to the Company's
business, together with all copies, summaries, analyses, or extracts
thereof, based thereon or derived therefrom in any and all forms.
LHA shall not, without prior written consent of Company, use Confidential
Information for any purpose other than performing the Financial
Communications Services, or disclose in any manner whatsoever Confidential
Information except as provided herein. LHA shall disclose
Confidential Information only to those employees, if any, of LHA who have a
need to know such Confidential Information and are directly involved in
performing the Financial Communications Services and shall ensure that such
employees are bound by the terms and conditions hereof.
For the purpose of this Agreement, "Confidential Information" shall not
include information disclosed by the Company to LHA which: (i) at the time
of disclosure to LHA is already a matter of public knowledge; (ii) after
disclosure to LHA becomes public knowledge by publication or otherwise,
except by breach of these confidentiality provisions by LHA or its agents;
(iii) is or becomes generally available to the public other than as a
result of disclosure by LHA; (iv) is or becomes available to LHA on a
non-confidential basis from a source other than the Company that is not
under an obligation of confidentiality or is demonstrably within LHA's
possession prior to its being furnished to LHA by the Company.
9. All materials and intellectual property associated therewith produced by
LHA on behalf of the Company will be considered work made for hire and
shall be the property of the Company with all rights granted to the
Company. However, materials will not be returned to the Company until LHA's
receipt of final payment. LHA shall assign all rights to such intellectual
property to the Company, and shall at the reasonable request of the
Company, during and after the term of this Agreement, assist and cooperate
with the Company to obtain, maintain, perfect and enforce its rights to
such intellectual property. These materials include all print collateral,
as well as electronic documents such as fax lists and email lists.
10. Company hereby acknowledges that LHA shall rely upon the accuracy of all
information provided by Company to it. Company assumes full and complete
responsibility and liability for the financial and other information
furnished to LHA for its use on your behalf hereunder and Company shall
indemnify and hold harmless LHA from and against any demands, claims, or
liability relating thereto except for any liability resulting from the
gross negligence or willful misconduct of LHA satisfaction. Company shall
pay LHA any amounts payable by LHA in settlement of any claims or in of any
judgements resulting from LHA's use of any financial or other information
furnished by Company in connection with the services rendered by LHA
hereunder, together with all reasonable costs and expenses incurred in
connection therewith, including without limitation, reasonable attorney's
fees and costs of litigation, except for any liability resulting from the
gross negligence or willful misconduct of LHA. In turn, LHA hereby
acknowledges that LHA shall accurately utilize all information provided to
it by the Company. LHA assumes full and complete responsibility and
liability for its utilization of the financial and other information
furnished by the Company and LHA shall indemnify and hold harmless Company
from and against any demands, claims, or liability relating to its
negligent use thereof. LHA shall pay Company any amounts payable by the
Company in settlement of any claims or in satisfaction of any judgements
resulting from LHA's negligent use of any financial or other information
furnished to LHA in connection with the services rendered by LHA hereunder,
together with all costs and expenses incurred in connection therewith,
including without limitation, reasonable attorney's fees and costs of
litigation.
11. LHA will not publicly distribute any material or other information about
the Company without the Company's prior written consent.
12. LHA shall comply with all applicable federal and state securities laws,
including, without limitation, Regulation FD promulgated under the
Securities Act of 1933, as amended and the Securities Exchange Act of 1934
as amended.
13. This Agreement constitutes the entire understanding and agreement between
the parties with respect to the subject matter covered herein and all prior
contemporaneous understandings; negotiations and agreements are herein
merged.
14. The Agreement may not be altered, extended, or modified nor any of its
provisions waived, except by a document in writing signed by the party
against whom such alteration, modification, extension or waiver is sought
to be enforced.
15. A waiver by either party of any breach, act or omission of the other party
is not to be deemed a waiver of any subsequent similar breach, act or
omission.
16. The terms and provisions of this Agreement shall be binding upon and shall
inure to the benefit of each of us and our respective successors and
assigns.
17. Any controversy or claim arising out of or relating to this agreement, or
the breach thereof, shall be settled by arbitration in New York, New York
in accordance with the rules of the American Arbitration Association, and
judgement upon the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction.
The arbitration shall be governed by the Commercial Arbitration Rules of
the American Arbitration Association; provided, however, the Federal Rules
of Evidence shall apply with regard to the admissibility of evidence.
Within 30 days after receipt of such notice, the parties shall designate in
writing one arbitrator to resolve the dispute; provided that if the parties
cannot agree on an arbitrator within such 30 day period, the arbitrator
shall be selected by the New York City office of the American Arbitration
Association. Such person shall be a person with experience in matters
related to the dispute arising under this Agreement and shall not be an
affiliate employee, consultant, officer, director or stockholder of any
party to this Agreement. Within 30 days after designation of the arbitrator
and the parties shall meet at which time the parties shall be required to
set forth in writing all disputed issues and proposed ruling on the merits
of each such issue. The arbitrator shall set a date for hearing, which
shall be no later than 45 days after the submission of written proposals.
The arbitrator shall use his or her best efforts to rule on each disputed
issue within 30 days after the completion of the hearings. The
determination by the arbitrator as to the resolution of any dispute shall
be binding and conclusive upon all parties hereto. All rulings of the
arbitrator shall be in writing and shall be delivered to the parties. The
parties shall initially be responsible for their own costs and expenses
associated with the arbitration; provided that, the losing party ultimately
bear the cost of the arbitration and shall promptly reimburse the other
party for all reasonable costs and expenses associated therewith.
Notwithstanding the foregoing, nothing contained herein shall be construed
to Limit the right of any party to seek injunctive relief with respect to
an actual or threatened breach of this Agreement from a court of competent
jurisdiction.
If the foregoing correctly states our understandings please execute the enclosed
copies of this letter in the spaces provided below and return a duplicate to the
undersigned. We look forward to a long and mutually successful relationship and
to our association with your exciting company.
Very truly yours,
XXXXXXX/XXXXXXXXX & ASSOCIATES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx
Agreed to and Approved
this 26th day of April 2002.
---- -----
SENESCO TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Title: President & CEO
-------------------------------------
APPENDIX 1
MEMORANDUM
TO: CLIENTS
FROM: XXXXXXX/XXXXXXXXX & ASSOCIATES, INC.
ACCOUNTING DEPARTMENT
SUBJECT: IN-HOUSE EXPENSES
LHA provides documentation, in the form of receipts and back up, for all
expenses incurred by Third-Party Vendors utilized on clients' behalf. In house
expenses, including photocopying, local telephone, mailing list maintenance, and
access to Bloomberg Business News on-line service are expenses, which are,
incurred monthly by LHA on clients' behalf. The following is an explanation of
these expenses for which documentation is not provided in monthly invoices.
PHOTOCOPYING
Photocopying costs are charged to clients at the rate of $0.15 per sheet of
standard white paper and $0.20 per sheet of LHA bonded letterhead. This rate
covers the costs of paper, machinery and photocopier operator utilized in the
production of client informational kits, distribution of press releases, press
articles, etc.
LOCAL TELEPHONE
Local telephone costs are charged to clients on a pro rated weighted basis. The
partner's weighting of the average is determined by the client's activity during
the billing period. These activities pertain to investor inquiries,
telemarketing press releases, conference call marketing and investor meetings.
MAILING LIST
Mailing list costs reflect the up-keep of maintaining LHA's database and
printing of client mailing lists on paper and/or labels for dissemination of
press releases/articles and Fact Sheet mailings. These costs are charged at
$40.00 per thousand, with a minimum of $40.00.
BLOOMBERG BUSINESS NEWS SERVICE
On-line access to Bloomberg Business News Service is allocated to clients at a
rate of $150.00 per month.
THIRD - PARTY VENDORS
Due to the volume of business LHA provides to its vendors, the agency has been
successful in obtaining volume discounts.
APPENDIX 2
Listed below, are the hourly rates for LHA Principals and Staff whom, if
required, will perform services outside of the scope of IR services outlined in
Paragraph 2 of this Agreement:
o Partner: $350
o Managing Director/Group Leader $285
o Vice President: $225
o Assistant Vice President: $205
o Senior Account Executive: $185
o Account Executive: $135
