UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_______________________________
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported):
July 29,
2009
Senesco
Technologies, Inc.
(Exact
Name of Registrant as Specified in Charter)
Delaware
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001-31326
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84-1368850
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
|
|
|
|
303
George Street, Suite 420, New Brunswick, New Jersey
|
08901
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(732) 296-8400
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(Registrant's
telephone number,
including
area code)
|
|
Not applicable
|
(Former
Name or Former Address, if Changed Since Last
Report)
|
Check the
appropriate box below if the Form 8-K is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following
provisions:
¨
|
Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425).
|
x
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12).
|
¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b)).
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c)).
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Item
1.01
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Entry
into a Material Definitive Agreement, Item 3.02 Unregistered Sales of
Equity Securities, and Item 8.01 Other
Events.
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Transaction with Each of
Robert and Tim Forbes
On July
29, 2009, Senesco Technologies, Inc. (the “Company”) entered into a Securities
Purchase Agreement, (the “Forbes Securities Purchase Agreement”) with each of
Robert Forbes and Timothy Forbes, each of whom is an accredited investor,
pursuant to which, subject to stockholder approval, it is anticipated that the
Company will issue and sell an aggregate of 444,444 shares of common stock at
$0.90 (the Shares”) per share and each of a Series A warrant, (the “Forbes
Series A Warrants”), and a Series B warrant (the “Forbes Series B
Warrants”). Each of Robert Forbes and Timothy Forbes are the brothers
of Christopher Forbes who is a director of Senesco. Mr. Christopher
Forbes will not be deemed to be the beneficial owner of, nor will he have a
pecuniary interest in the Shares or Warrants issued to his
brothers.
The
Forbes Series A Warrants entitle the holders to purchase in the aggregate, up to
400,00 shares of the Company’s common stock at $0.01 per warrant share.
The Forbes Series A Warrants have a term of seven years and are exercisable
immediately after the date of grant.
The
Forbes Series B Warrants entitle the holders to purchase in the aggregate, up to
405,556 shares of the Company’s common stock at $0.60 per warrant share.
The Forbes Series B Warrants have a term of seven years and are not exercisable
until after the six-month anniversary after the date of grant.
Transaction with Insiders
and Affiliates
On July
29, 2009, the Company entered into a Securities Purchase Agreement, (the
“Affiliate’s Securities Purchase Agreement”) with each of Harlan W. Waksal,
M.D., Rudolf Stalder, Christopher Forbes, David Rector, John N. Braca, Jack Van
Hulst, Warren Isabelle, and the Thomas C. Quick Charitable Foundation (the
“Affiliate Investors”) each of whom is an accredited investor, pursuant to
which, subject to stockholder approval, it is anticipated that the Company will
issue and sell an aggregate of 144,444 Shares of the Company’s common stock at
$0.90 per share and each of a Series A warrant, (the “Affiliate’s Series A
Warrants”), and a Series B warrant (the “Affiliate’s Series B
Warrants”). Each of Harlan W. Waksal, M.D., Rudolf Stalder,
Christopher Forbes, David Rector, John N. Braca, Jack Van Hulst and Warren
Isabelle serve on the Company’s board. The Thomas C. Quick Charitable Foundation
is an affiliate of our board member Thomas C. Quick.
The
Affiliate’s Series A Warrants entitle the holders to purchase in the aggregate,
up to 130,000 shares of the Company’s common stock at $0.01 per warrant
share. The Affiliate’s Series A Warrants have a term of seven years and
are exercisable immediately after the date of grant.
The
Affiliate’s Series B Warrants entitle the holders to purchase, in the aggregate,
up to 131,807 shares of the Company’s common stock at $0.60 per warrant
share. The Affiliates Series B Warrants have a term of seven years and are
not exercisable until after the six-month anniversary after the date of
grant.
Transaction with Cato
Holding Company
On July
29, 2009, the Company entered into a Securities Agreement with Cato Holding
Company (“Cato”), who is an accredited investor, pursuant to which, subject to
stockholder approval, it is anticipated that the Company will issue an aggregate
of 194,444 Shares of the Company’s common stock at $0.90 per share and each of a
Series A warrant (the “Cato Series A Warrant”) and a Series B warrant (the “Cato
Series B Warrant”). The Shares will be issued to Cato in exchange for
debt which is currently owed by us to Cato Research Ltd. in the amount of
$175,000. Cato Research Ltd. is an affiliate of Cato.
The Cato
Series A Warrant entitles the holder to purchase in the aggregate, up to 175,000
shares of the Company’s common stock at $0.01 per warrant share. The Cato
Series A Warrant has a term of seven years and is exercisable immediately after
the date of grant.
The Cato
Series B Warrant entitles the holder to purchase, in the aggregate, up to
177,431 shares of the Company’s common stock at $0.60 per warrant share.
The Cato Series B Warrant has a term of seven years and is not exercisable until
after the six-month anniversary after the date of grant.
The
foregoing proceeds cannot be closed upon until the Company receives stockholder
approval for certain aspects of the transactions and complies with other
customary closing conditions. Assuming all of the proceeds of the
private placements can be closed upon, the Company anticipates it will
receive gross proceeds equal to $705,000.
The
private placement remains subject to the approval of the NYSE Amex
Exchange.
A
complete copy of each of the Warrants and the Securities Purchase Agreements are
attached hereto as exhibits and such exhibits are incorporated herein by
reference. The related press release of the Company is filed herewith as
Exhibit 99.1 and is incorporated herein by reference. The foregoing descriptions
of the Warrants, the Securities Purchase Agreements and the press
release and any other documents or filings referenced herein are qualified in
their entirety by reference to such exhibits, documents or filings.
Important
Information
The
securities sold or to be sold in the private placement have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), and may not
be offered or sold in the United States in the absence of an effective
registration statement or exemption from the registration requirements under the
Securities Act.
In connection with the private
placement, the Company will prepare a proxy statement for the Company’s
stockholders to be filed with the Securities and Exchange Commission (the
“SEC”). The proxy statement will contain information about the Company, the
private placement and related matters. STOCKHOLDERS ARE URGED TO READ THE PROXY
STATEMENT CAREFULLY WHEN IT IS AVAILABLE, AS IT WILL CONTAIN IMPORTANT
INFORMATION THAT STOCKHOLDERS SHOULD CONSIDER BEFORE MAKING A DECISION
ABOUT APPROVING AN AMENDMENT TO THE COMPANY’S CERTIFICATE OF INCORPORATION TO
INCREASE THE NUMBER OF AUTHORIZED SHARES.
In addition to receiving the proxy
statement from the Company by mail, shareholders will be able to obtain the
proxy statement, as well as other filings containing information about the
Company, without charge, from the SEC’s website (
http://www.sec.gov
)
or, without charge, from the Company’s website at
www.senesco.com
or
by directing such request to Senesco Technologies, Inc. 303 George
St., Suite 420, New Brunswick, New Jersey 08901 Attention: Joel
Brooks.
The Company and its directors and
executive officers and other members of management and employees may be deemed
to be participants in the solicitation of proxies. Information concerning the
Company and its directors and executive officers is set forth in the Company’s
proxy statement and Annual Report on Form 10-K previously filed with the
SEC.
Item
9.01.
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Financial
Statements and Exhibits.
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Exhibit
No
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Description
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4.1
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Form
of Series A Warrant to be issued to each of Robert Forbes, Timothy Forbes
and the Affiliate Investors. (filed herewith)
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4.2
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Form
of Series B Warrant to be issued to each of Robert Forbes, Timothy Forbes
and the Affiliate Investors. (filed herewith)
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4.3
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Form
of Series A Warrant to be issued to Cato. (filed
herewith)
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4.4
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Form
of Series B Warrant to be issued to Cato. (filed
herewith)
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10.1
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Securities
Purchase Agreement by and between the Company and each of Robert Forbes,
Timothy Forbes, Harlan W. Waksal, M.D., Rudolf Stalder, Christopher
Forbes, David Rector, John N. Braca, Jack Van Hulst, Warren Isabelle and
the Thomas C. Quick Charitable Foundation dated as of July 29,
2009 (filed herewith)
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10.2
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Securities
Agreement by and between the Company and Cato Holding Company dated as of
July 29, 2009 (filed herewith)
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99.1
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Press
Release of the Company dated July 30, 2009 (filed
herewith).
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
SENESCO
TECHNOLOGIES, INC.
Dated:
July 30, 2009
Name:
Bruce Galton
Title: President
and Chief Executive Officer
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 4 OF THIS
WARRANT
Warrant
No.
[ ]
|
Number
of Shares: [ ]
(subject
to adjustment)
|
|
|
Date
of Issuance:
[ ]
,
2009
|
|
Original
Issue Date (as defined in subsection
2(a)):
[ ]
,
2009
|
|
Senesco Technologies,
Inc.
Common Stock Purchase
Warrant
(Void
after
[ ]
,
2016
1
)
Senesco
Technologies, Inc., a Delaware corporation (the “Company”), for value received,
hereby certifies that
[ ]
,
or its registered assigns (the “Registered Holder”), is entitled, subject to the
terms and conditions set forth below, to purchase from the Company, at any time
or from time to time on or after
[ ]
2
,
2009 and on or before 5:00 p.m. (New York time) on
[ ]
,
2016,
[ ]
,
shares of Common Stock, $0.01 par value per share, of the Company (“Common
Stock”), at a purchase price of $0.01
per
share. The shares purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the “Warrant Shares”
and the “Purchase Price,” respectively. This Warrant is one of a
series of Warrants issued by the Company in connection with a private placement
of Common Stock and of like tenor, except as to the number of shares of Common
Stock subject thereto (collectively, the “Company Warrants”).
1.
Exercise
.
(a)
Exercise for
Cash
. The Registered Holder may, at its option, elect to
exercise this Warrant, in whole or in part and at any time or from time to time,
by surrendering this Warrant, with the purchase form appended hereto as
Exhibit I
duly
executed by or on behalf of the Registered Holder, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the
Purchase Price payable in respect of the number of Warrant Shares purchased upon
such exercise. A facsimile signature of the Registered Holder on the
purchase form shall be sufficient for purposes of exercising this Warrant,
provided that the Company receives the Registered Holder’s original signature
within three (3) business days thereafter.
1
Seventh
year anniversary of Closing date.
(b)
Exercise
Date
. Each exercise of this Warrant shall be deemed to have
been effected immediately prior to the close of business on the day on which
this Warrant shall have been surrendered to the Company as provided in
subsection 1(a) above (the “Exercise Date”). At such time, the person
or persons in whose name or names any certificates for Warrant Shares shall be
issuable upon such exercise as provided in subsection 1(d) below shall be deemed
to have become the holder or holders of record of the Warrant Shares represented
by such certificates.
(c)
Issuance of
Certificates
. As soon as practicable after the exercise of
this Warrant in whole or in part, and in any event within 10 days thereafter,
the Company, at its expense, will cause to be issued in the name of, and
delivered to, the Registered Holder, or as the Registered Holder (upon payment
by the Registered Holder of any applicable transfer taxes) may
direct:
(i) a
certificate or certificates for the number of full Warrant Shares to which the
Registered Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Registered Holder would otherwise be entitled,
cash in an amount determined pursuant to Section 3 hereof; and
(ii) in
case such exercise is in part only, a new warrant or warrants (dated the date
hereof) of like tenor, calling in the aggregate on the face or faces thereof for
the number of Warrant Shares equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of this Warrant
minus the number of Warrant Shares for which this Warrant was so
exercised.
2.
Adjustments
.
(a)
Adjustment for Stock Splits
and Combinations
. If the Company shall at any time or from
time to time after the date on which this Warrant was first issued (or, if this
Warrant was issued upon partial exercise of, or in replacement of, another
warrant of like tenor, then the date on which such original warrant was first
issued) (either such date being referred to as the “Original Issue Date”) effect
a subdivision of the outstanding Common Stock, the Purchase Price then in effect
immediately before that subdivision shall be proportionately
decreased. If the Company shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock,
the Purchase Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this paragraph shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
(b)
Adjustment for Certain
Dividends and Distributions
. In the event the Company at any
time, or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock, then and in each such event the Purchase Price then in effect immediately
before such event shall be decreased as of the time of such issuance or, in the
event such a record date shall have been fixed, as of the close of business on
such record date, by multiplying the Purchase Price then in effect by a
fraction:
(1) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and
(2) the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution;
provided
,
however
, that if such
record date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Purchase Price
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Purchase Price shall be adjusted pursuant to this paragraph
as of the time of actual payment of such dividends or
distributions.
(c)
Adjustment in Number
of Warrant Shares
. When any adjustment is required to be made
in the Purchase Price pursuant to subsections 2(a) or 2(b), the number of
Warrant Shares purchasable upon the exercise of this Warrant shall be changed to
the number determined by dividing (i) an amount equal to the number of
shares issuable upon the exercise of this Warrant immediately prior to such
adjustment, multiplied by the Purchase Price in effect immediately prior to such
adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(d)
Adjustments for Other
Dividends and Distributions
. In the event the Company at any
time or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
(other than shares of Common Stock) or in cash or other property (other than
regular cash dividends paid out of earnings or earned surplus, determined in
accordance with generally accepted accounting principles), then and in each such
event provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock issuable
hereunder, the kind and amount of securities of the Company, cash or other
property which the Registered Holder would have been entitled to receive had
this Warrant been exercised on the date of such event and had the Registered
Holder thereafter, during the period from the date of such event to and
including the Exercise Date, retained any such securities receivable during such
period, giving application to all adjustments called for during such period
under this Section 2 with respect to the rights of the Registered
Holder.
(e)
Adjustment for
Reorganization
. If there shall occur any reorganization,
recapitalization, reclassification, consolidation or merger involving the
Company in which the Common Stock is converted into or exchanged for securities,
cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)) (collectively, a “Reorganization”), then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. Notwithstanding the foregoing sentence, if
(x) there shall occur any Reorganization in which the Common Stock is
converted into or exchanged for anything other than solely equity securities,
and (y) the common stock of the acquiring or surviving company is publicly
traded, then, as part of such Reorganization, (i) the Registered Holder
shall have the right thereafter to receive upon the exercise hereof such number
of shares of common stock of the acquiring or surviving company as is determined
by multiplying (A) the number of shares of Common Stock subject to this
Warrant immediately prior to such Reorganization by (B) a fraction, the
numerator of which is the Fair Market Value per share of Common Stock as of the
effective date of such Reorganization, as determined below, and the denominator
of which is the fair market value per share of common stock of the acquiring or
surviving company as of the effective date of such transaction, as determined in
good faith by the Board (using the principles set forth below to the extent
applicable), and (ii) the exercise price per share of common stock of the
acquiring or surviving company shall be the Purchase Price divided by the
fraction referred to in clause (B) above. In any such case,
appropriate adjustment (as determined in good faith by the Board) shall be made
in the application of the provisions set forth herein with respect to the rights
and interests thereafter of the Registered Holder, to the end that the
provisions set forth in this Section 2 (including provisions with respect to
changes in and other adjustments of the Purchase Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities, cash
or other property thereafter deliverable upon the exercise of this
Warrant.
The Fair
Market Value per share of Common Stock shall be determined as
follows:
(1) If
the Common Stock is listed on a national securities exchange or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the reported closing price
per share of Common Stock thereon on the trading day immediately preceding the
Exercise Date (
provided
that if no
such price is reported on such day, the Fair Market Value per share of Common
Stock shall be determined pursuant to clause (2) below).
(2) If
the Common Stock is not listed on a national securities exchange or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the amount most recently
determined by the Board of Directors of the Company (the “Board”) to represent
the fair market value per share of the Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under any plan, agreement or arrangement with employees of
the Company); and, upon request of the Registered Holder, the Board (or a
representative thereof) shall, as promptly as reasonably practicable but in any
event not later than 10 days after such request, notify the Registered Holder of
the Fair Market Value per share of Common Stock and furnish the Registered
Holder with reasonable documentation of the Board’s determination of such Fair
Market Value. Notwithstanding the foregoing, if the Board has not
made such a determination within the three-month period prior to the Exercise
Date, then the Board shall make, and shall provide or cause to be provided to
the Registered Holder notice of, a determination of the Fair Market Value per
share of the Common Stock within 15 days of a request by the Registered Holder
that it do so.
(f)
Certificate as to
Adjustments
. Upon the occurrence of each adjustment or
readjustment of the Purchase Price pursuant to this Section 2, the Company at
its expense shall, as promptly as reasonably practicable but in any event not
later than 10 days thereafter, compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, as
promptly as reasonably practicable after the written request at any time of the
Registered Holder (but in any event not later than 10 days thereafter), furnish
or cause to be furnished to the Registered Holder a certificate setting forth
(i) the Purchase Price then in effect and (ii) the number of shares of
Common Stock and the amount, if any, of other securities, cash or property which
then would be received upon the exercise of this Warrant.
3.
Fractional
Shares
. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall pay the value thereof to
the Registered Holder in cash on the basis of the Fair Market Value per share of
Common Stock, as determined pursuant to subsection 2(e) above.
4.
Transfers,
etc
.
(a) This
Warrant and the Warrant Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Securities Act of 1933,
as amended (the “Act”), (ii) such sale or transfer shall be exempt from the
registration requirements of the Act and the Company shall have been furnished
with an opinion of legal counsel, reasonably satisfactory to the Company, to the
effect that such sale or transfer is exempt from the registration requirements
of the Act or (iii) the Company agrees, in writing, to such
transfer. Notwithstanding the foregoing, no registration or opinion
of counsel shall be required for (i) a transfer by a Registered Holder
which is an entity to a wholly owned subsidiary of such entity, a transfer by a
Registered Holder which is a partnership to a partner of such partnership or a
retired partner of such partnership or to the estate of any such partner or
retired partner, or a transfer by a Registered Holder which is a limited
liability company to a member of such limited liability company or a retired
member or to the estate of any such member or retired member,
provided
that the
transferee in each case agrees in writing to be subject to the terms of this
Section 4, or (ii) a transfer made in accordance with Rule 144
under the Act. The Warrant and the Warrant Shares shall not be
transferable for at least six months from the date of issuance.
(b) Each
certificate representing Warrant Shares shall bear a legend substantially in the
following form:
“The
securities represented hereby have not been registered under the Securities Act
of 1933, as amended, or any state securities laws and neither the securities nor
any interest therein may not be offered, sold, transferred, pledged or otherwise
disposed of except pursuant to an effective registration under such act or an
exemption from registration, which, in the opinion of counsel reasonably
satisfactory to counsel for this corporation, is available.”
The
foregoing legend shall be removed from the certificates representing any Warrant
Shares, at the request of the holder thereof, at such time as they become
eligible for resale pursuant to Rule 144 under the Act or at such time as
the Warrant Shares are sold or transferred in accordance with the requirements
of a registration statement of the Company on Form S-3, or such other form as
may then be in effect.
(c) The
Company will maintain a register containing the name and address of the
Registered Holder of this Warrant. The Registered Holder may change
its address as shown on the warrant register by written notice to the Company
requesting such change.
(d) Subject
to the provisions of Section 4 hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant with a
properly executed assignment (in the form of
Exhibit II
hereto) at the principal office of the Company (or, if another office or agency
has been designated by the Company for such purpose, then at such other office
or agency).
5.
No
Impairment
. The Company will not, by amendment of its charter
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Registered Holder against impairment.
6.
Notices of Record Date,
etc.
In the event:
(a) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time deliverable upon the exercise of this Warrant) for the
purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares of
stock of any class or any other securities, or to receive any other right;
or
(b) of
any capital reorganization of the Company, any reclassification of the Common
Stock of the Company, any consolidation or merger of the Company with or into
another corporation, or any transfer of all or substantially all of the assets
of the Company; or
(c) of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will send or cause to be sent
to the Registered Holder a notice specifying, as the case may be, (i) the record
date for such dividend, distribution or right, and the amount and character of
such dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be sent at least 10 days
prior to the record date or effective date for the event specified in such
notice.
7.
Reservation of
Stock
. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this
Warrant.
8.
Exchange or Replacement of
Warrants
.
(a) Upon
the surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions of
Section 4 hereof, issue and deliver to or upon the order of the Registered
Holder, at the Company’s expense, a new Warrant or Warrants of like tenor, in
the name of the Registered Holder or as the Registered Holder (upon payment by
the Registered Holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock (or other securities, cash and/or property) then issuable upon exercise of
this Warrant.
(b) Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company will
issue, in lieu thereof, a new Warrant of like tenor.
9.
Notices.
All
notices and other communications from the Company to the Registered Holder in
connection herewith shall be mailed by certified or registered mail, postage
prepaid, or sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, to the address last furnished to the
Company in writing by the Registered Holder. All notices and other
communications from the Registered Holder to the Company in connection herewith
shall be mailed by certified or registered mail, postage prepaid, or sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery, to the Company at its principal office set forth below. If
the Company should at any time change the location of its principal office to a
place other than as set forth below, it shall give prompt written notice to the
Registered Holder and thereafter all references in this Warrant to the location
of its principal office at the particular time shall be as so specified in such
notice. All such notices and communications shall be deemed delivered one
business day after being sent via a reputable international overnight courier
service guaranteeing next business day delivery.
10.
No Rights as
Stockholder
. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the
event (i) the Company effects a split of the Common Stock by means of a
stock dividend and the Purchase Price of and the number of Warrant Shares are
adjusted as of the date of the distribution of the dividend (rather than as of
the record date for such dividend), and (ii) the Registered Holder
exercises this Warrant between the record date and the distribution date for
such stock dividend, the Registered Holder shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock
acquired upon such exercise, notwithstanding the fact that such shares were not
outstanding as of the close of business on the record date for such stock
dividend.
11.
Amendment or
Waiver
. Any term of this Warrant may be amended or waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the holders of
Company Warrants representing at least two-thirds of the number of shares of
Common Stock then subject to outstanding Company Warrants. Notwithstanding the
foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Registered Holder
only in a manner which applies to all Company Warrants in the same fashion and
(b) the number of Warrant Shares subject to this Warrant and the Purchase Price
of this Warrant may not be amended, and the right to exercise this Warrant may
not be waived, without the written consent of the Registered Holder (it being
agreed that an amendment to or waiver under any of the provisions of Section 2
of this Warrant shall not be considered an amendment of the number of Warrant
Shares or the Purchase Price). The Company shall give prompt written
notice to the Registered Holder of any amendment hereof or waiver hereunder that
was effected without the Registered Holder’s written consent. No
waivers of any term, condition or provision of this Warrant, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
12.
Section
Headings
. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
13.
Governing
Law
. This Warrant will be governed by and construed in
accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
14.
Facsimile Signatures
.
This Warrant may be executed by facsimile signature.
* * * * *
* *
EXECUTED
as of the Date of Issuance indicated above.
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SENESCO
TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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ATTEST:
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EXHIBIT
I
PURCHASE
FORM
To:
Senesco Technologies, Inc.
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Dated:____________
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The
undersigned, pursuant to the provisions set forth in the attached Warrant (No.
___
), hereby elects to
purchase
(check applicable
box)
:
▪ _________
shares of the Common Stock of Senesco Technologies, Inc. covered by such
Warrant.
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant. Such payment takes
the form of
(check applicable
box or boxes)
:
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▪
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$______
in lawful money of the United
States.
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EXHIBIT
II
ASSIGNMENT
FORM
FOR VALUE
RECEIVED, ______________________________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant (No.
____) with respect to the number of shares of Common Stock of Senesco
Technologies, Inc. covered thereby set forth below, unto:
Name of Assignee
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Address
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No. of Shares
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Dated:_____________________
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Signature:________________________________
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Signature
Guaranteed:
By:
_______________________
The
signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER
SET FORTH IN SECTION 4 OF THIS
WARRANT
Warrant
No.
[ ]
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Number
of Shares: [ ]
(subject
to adjustment)
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Date
of Issuance:
[ ]
,
2009
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Original
Issue Date (as defined in subsection
2(a)):
[ ]
,
2009
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Senesco Technologies,
Inc.
Common Stock Purchase
Warrant
(Void
after
[ ]
,
2016
1
)
Senesco
Technologies, Inc., a Delaware corporation (the “Company”), for value received,
hereby certifies that
[ ]
,
or its registered assigns (the “Registered Holder”), is entitled, subject to the
terms and conditions set forth below, to purchase from the Company, at any time
or from time to time on or after
[ ]
2
and on or before 5:00
p.m. (New York time) on
[ ]
,
2016,
[ ]
shares of Common Stock, $0.01 par value per share, of the Company (“Common
Stock”), at a purchase price of $0.60
per
share. The shares purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the “Warrant Shares”
and the “Purchase Price,” respectively. This Warrant is one of a
series of Warrants issued by the Company in connection with a private placement
of Common Stock and of like tenor, except as to the number of shares of Common
Stock subject thereto (collectively, the “Company Warrants”).
1.
Exercise
.
(a)
Exercise for
Cash
. The Registered Holder may, at its option, elect to
exercise this Warrant, in whole or in part and at any time or from time to time,
by surrendering this Warrant, with the purchase form appended hereto as
Exhibit I
duly
executed by or on behalf of the Registered Holder, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the
Purchase Price payable in respect of the number of Warrant Shares purchased upon
such exercise. A facsimile signature of the Registered Holder on the
purchase form shall be sufficient for purposes of exercising this Warrant,
provided that the Company receives the Registered Holder’s original signature
within three (3) business days thereafter.
1
Seventh
anniversary of closing date.
2
Six
months and 1 day after Closing date.
(b)
Exercise
Date
. Each exercise of this Warrant shall be deemed to have
been effected immediately prior to the close of business on the day on which
this Warrant shall have been surrendered to the Company as provided in
subsection 1(a) above (the “Exercise Date”). At such time, the person
or persons in whose name or names any certificates for Warrant Shares shall be
issuable upon such exercise as provided in subsection 1(d) below shall be deemed
to have become the holder or holders of record of the Warrant Shares represented
by such certificates.
(c)
Issuance of
Certificates
. As soon as practicable after the exercise of
this Warrant in whole or in part, and in any event within 10 days thereafter,
the Company, at its expense, will cause to be issued in the name of, and
delivered to, the Registered Holder, or as the Registered Holder (upon payment
by the Registered Holder of any applicable transfer taxes) may
direct:
(i) a
certificate or certificates for the number of full Warrant Shares to which the
Registered Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Registered Holder would otherwise be entitled,
cash in an amount determined pursuant to Section 3 hereof; and
(ii) in
case such exercise is in part only, a new warrant or warrants (dated the date
hereof) of like tenor, calling in the aggregate on the face or faces thereof for
the number of Warrant Shares equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of this Warrant
minus the number of Warrant Shares for which this Warrant was so
exercised.
2.
Adjustments
.
(a)
Adjustment for Stock Splits
and Combinations
. If the Company shall at any time or from
time to time after the date on which this Warrant was first issued (or, if this
Warrant was issued upon partial exercise of, or in replacement of, another
warrant of like tenor, then the date on which such original warrant was first
issued) (either such date being referred to as the “Original Issue Date”) effect
a subdivision of the outstanding Common Stock, the Purchase Price then in effect
immediately before that subdivision shall be proportionately
decreased. If the Company shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock,
the Purchase Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this paragraph shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
(b)
Adjustment for Certain
Dividends and Distributions
. In the event the Company at any
time, or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock, then and in each such event the Purchase Price then in effect immediately
before such event shall be decreased as of the time of such issuance or, in the
event such a record date shall have been fixed, as of the close of business on
such record date, by multiplying the Purchase Price then in effect by a
fraction:
(1) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and
(2) the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution;
provided
,
however
, that if such
record date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Purchase Price
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Purchase Price shall be adjusted pursuant to this paragraph
as of the time of actual payment of such dividends or
distributions.
(c)
Adjustment in Number of
Warrant Shares
. When any adjustment is required to be made in
the Purchase Price pursuant to subsections 2(a) or 2(b), the number of
Warrant Shares purchasable upon the exercise of this Warrant shall be changed to
the number determined by dividing (i) an amount equal to the number of
shares issuable upon the exercise of this Warrant immediately prior to such
adjustment, multiplied by the Purchase Price in effect immediately prior to such
adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(d)
Adjustments for Other
Dividends and Distributions
. In the event the Company at any
time or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
(other than shares of Common Stock) or in cash or other property (other than
regular cash dividends paid out of earnings or earned surplus, determined in
accordance with generally accepted accounting principles), then and in each such
event provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock issuable
hereunder, the kind and amount of securities of the Company, cash or other
property which the Registered Holder would have been entitled to receive had
this Warrant been exercised on the date of such event and had the Registered
Holder thereafter, during the period from the date of such event to and
including the Exercise Date, retained any such securities receivable during such
period, giving application to all adjustments called for during such period
under this Section 2 with respect to the rights of the Registered
Holder.
(e)
Adjustment for
Reorganization
. If there shall occur any reorganization,
recapitalization, reclassification, consolidation or merger involving the
Company in which the Common Stock is converted into or exchanged for securities,
cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)) (collectively, a “Reorganization”), then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. Notwithstanding the foregoing sentence, if
(x) there shall occur any Reorganization in which the Common Stock is
converted into or exchanged for anything other than solely equity securities,
and (y) the common stock of the acquiring or surviving company is publicly
traded, then, as part of such Reorganization, (i) the Registered Holder
shall have the right thereafter to receive upon the exercise hereof such number
of shares of common stock of the acquiring or surviving company as is determined
by multiplying (A) the number of shares of Common Stock subject to this
Warrant immediately prior to such Reorganization by (B) a fraction, the
numerator of which is the Fair Market Value per share of Common Stock as of the
effective date of such Reorganization, as determined below, and the denominator
of which is the fair market value per share of common stock of the acquiring or
surviving company as of the effective date of such transaction, as determined in
good faith by the Board (using the principles set forth below to the extent
applicable), and (ii) the exercise price per share of common stock of the
acquiring or surviving company shall be the Purchase Price divided by the
fraction referred to in clause (B) above. In any such case,
appropriate adjustment (as determined in good faith by the Board) shall be made
in the application of the provisions set forth herein with respect to the rights
and interests thereafter of the Registered Holder, to the end that the
provisions set forth in this Section 2 (including provisions with respect to
changes in and other adjustments of the Purchase Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities, cash
or other property thereafter deliverable upon the exercise of this
Warrant.
The Fair
Market Value per share of Common Stock shall be determined as
follows:
(1) If
the Common Stock is listed on a national securities exchange or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the reported closing price
per share of Common Stock thereon on the trading day immediately preceding the
Exercise Date (
provided
that if no
such price is reported on such day, the Fair Market Value per share of Common
Stock shall be determined pursuant to clause (2) below).
(2) If
the Common Stock is not listed on a national securities exchange or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the amount most recently
determined by the Board of Directors of the Company (the “Board”) to represent
the fair market value per share of the Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under any plan, agreement or arrangement with employees of
the Company); and, upon request of the Registered Holder, the Board (or a
representative thereof) shall, as promptly as reasonably practicable but in any
event not later than 10 days after such request, notify the Registered Holder of
the Fair Market Value per share of Common Stock and furnish the Registered
Holder with reasonable documentation of the Board’s determination of such Fair
Market Value. Notwithstanding the foregoing, if the Board has not
made such a determination within the three-month period prior to the Exercise
Date, then the Board shall make, and shall provide or cause to be provided to
the Registered Holder notice of, a determination of the Fair Market Value per
share of the Common Stock within 15 days of a request by the Registered Holder
that it do so.
(f)
Certificate as to
Adjustments
. Upon the occurrence of each adjustment or
readjustment of the Purchase Price pursuant to this Section 2, the Company at
its expense shall, as promptly as reasonably practicable but in any event not
later than 10 days thereafter, compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, as
promptly as reasonably practicable after the written request at any time of the
Registered Holder (but in any event not later than 10 days thereafter), furnish
or cause to be furnished to the Registered Holder a certificate setting forth
(i) the Purchase Price then in effect and (ii) the number of shares of
Common Stock and the amount, if any, of other securities, cash or property which
then would be received upon the exercise of this Warrant.
3.
Fractional
Shares
. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall pay the value thereof to
the Registered Holder in cash on the basis of the Fair Market Value per share of
Common Stock, as determined pursuant to subsection 2(e) above.
4.
Transfers,
etc
.
(a) This
Warrant and the Warrant Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Securities Act of 1933,
as amended (the “Act”), (ii) such sale or transfer shall be exempt from the
registration requirements of the Act and the Company shall have been furnished
with an opinion of legal counsel, reasonably satisfactory to the Company, to the
effect that such sale or transfer is exempt from the registration requirements
of the Act or (iii) the Company agrees, in writing, to such
transfer. Notwithstanding the foregoing, no registration
or
opinion of counsel shall be required for (i) a transfer by a
Registered Holder which is an entity to a wholly owned subsidiary of such
entity, a transfer by a Registered Holder which is a partnership to a partner of
such partnership or a retired partner of such partnership or to the estate of
any such partner or retired partner, or a transfer by a Registered Holder which
is a limited liability company to a member of such limited liability company or
a retired member or to the estate of any such member or retired member,
provided
that the
transferee in each case agrees in writing to be subject to the terms of this
Section 4, or (ii) a transfer made in accordance with Rule 144
under the Act.
The
Warrant
and the Warrant Shares
shall not
be transferable for at least six months from the date of
issuance
.
(b) Each
certificate representing Warrant Shares shall bear a legend substantially in the
following form:
“The
securities represented hereby have not been registered under the Securities Act
of 1933, as amended, or any state securities laws and neither the securities nor
any interest therein may not be offered, sold, transferred, pledged or otherwise
disposed of except pursuant to an effective registration under such act or an
exemption from registration, which, in the opinion of counsel reasonably
satisfactory to counsel for this corporation, is available.”
The
foregoing legend shall be removed from the certificates representing any Warrant
Shares, at the request of the holder thereof, at such time as they become
eligible for resale pursuant to Rule 144 under the Act or at such time as
the Warrant Shares are sold or transferred in accordance with the requirements
of a registration statement of the Company on Form S-3, or such other form as
may then be in effect.
(c) The
Company will maintain a register containing the name and address of the
Registered Holder of this Warrant. The Registered Holder may change
its address as shown on the warrant register by written notice to the Company
requesting such change.
(d) Subject
to the provisions of Section 4 hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant with a
properly executed assignment (in the form of
Exhibit II
hereto) at the principal office of the Company (or, if another office or agency
has been designated by the Company for such purpose, then at such other office
or agency).
5.
No
Impairment
. The Company will not, by amendment of its charter
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Registered Holder against impairment.
6.
Notices of Record
Date, etc.
In the event:
(a) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time deliverable upon the exercise of this Warrant) for the
purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares of
stock of any class or any other securities, or to receive any other right;
or
(b) of
any capital reorganization of the Company, any reclassification of the Common
Stock of the Company, any consolidation or merger of the Company with or into
another corporation, or any transfer of all or substantially all of the assets
of the Company; or
(c) of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will send or cause to be sent
to the Registered Holder a notice specifying, as the case may be, (i) the record
date for such dividend, distribution or right, and the amount and character of
such dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be sent at least 10 days
prior to the record date or effective date for the event specified in such
notice.
7.
Reservation of
Stock
. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this
Warrant.
8.
Exchange or
Replacement of Warrants
.
(a) Upon
the surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions of
Section 4 hereof, issue and deliver to or upon the order of the Registered
Holder, at the Company’s expense, a new Warrant or Warrants of like tenor, in
the name of the Registered Holder or as the Registered Holder (upon payment by
the Registered Holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock (or other securities, cash and/or property) then issuable upon exercise of
this Warrant.
(b) Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company will
issue, in lieu thereof, a new Warrant of like tenor.
9.
Notices.
All
notices and other communications from the Company to the Registered Holder in
connection herewith shall be mailed by certified or registered mail, postage
prepaid, or sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, to the address last furnished to the
Company in writing by the Registered Holder. All notices and other
communications from the Registered Holder to the Company in connection herewith
shall be mailed by certified or registered mail, postage prepaid, or sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery, to the Company at its principal office set forth below. If
the Company should at any time change the location of its principal office to a
place other than as set forth below, it shall give prompt written notice to the
Registered Holder and thereafter all references in this Warrant to the location
of its principal office at the particular time shall be as so specified in such
notice. All such notices and communications shall be deemed delivered one
business day after being sent via a reputable international overnight courier
service guaranteeing next business day delivery.
10.
No Rights as
Stockholder
. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the
event (i) the Company effects a split of the Common Stock by means of a
stock dividend and the Purchase Price of and the number of Warrant Shares are
adjusted as of the date of the distribution of the dividend (rather than as of
the record date for such dividend), and (ii) the Registered Holder
exercises this Warrant between the record date and the distribution date for
such stock dividend, the Registered Holder shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock
acquired upon such exercise, notwithstanding the fact that such shares were not
outstanding as of the close of business on the record date for such stock
dividend.
11.
Amendment or
Waiver
. Any term of this Warrant may be amended or waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the holders of
Company Warrants representing at least two-thirds of the number of shares of
Common Stock then subject to outstanding Company Warrants. Notwithstanding the
foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Registered Holder
only in a manner which applies to all Company Warrants in the same fashion and
(b) the number of Warrant Shares subject to this Warrant and the Purchase Price
of this Warrant may not be amended, and the right to exercise this Warrant may
not be waived, without the written consent of the Registered Holder (it being
agreed that an amendment to or waiver under any of the provisions of Section 2
of this Warrant shall not be considered an amendment of the number of Warrant
Shares or the Purchase Price). The Company shall give prompt written
notice to the Registered Holder of any amendment hereof or waiver hereunder that
was effected without the Registered Holder’s written consent. No
waivers of any term, condition or provision of this Warrant, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
12.
Section
Headings
. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
13.
Governing
Law
. This Warrant will be governed by and construed in
accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
14.
Facsimile Signatures
.
This Warrant may be executed by facsimile signature.
* * * * *
* *
EXECUTED
as of the Date of Issuance indicated above.
SENESCO
TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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EXHIBIT
I
PURCHASE
FORM
To:
Senesco Technologies, Inc.
|
Dated:____________
|
The
undersigned, pursuant to the provisions set forth in the attached Warrant (No.
___
), hereby elects to
purchase
(check applicable
box)
:
▪ _________
shares of the Common Stock of Senesco Technologies, Inc. covered by such
Warrant.
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant. Such payment takes
the form of
(check applicable
box or boxes)
:
|
▪
|
$______
in lawful money of the United
States.
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EXHIBIT
II
ASSIGNMENT
FORM
FOR VALUE
RECEIVED, ______________________________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant (No.
____) with respect to the number of shares of Common Stock of Senesco
Technologies, Inc. covered thereby set forth below, unto:
Name of Assignee
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Address
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No. of Shares
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Dated:_____________________
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Signature:________________________________
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Signature
Guaranteed:
By:
_______________________
The
signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN
SECTION 4 OF THIS WARRANT
Warrant
No.
[ ]
|
Number
of Shares: [ ]
(subject
to adjustment)
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Date
of Issuance:
[ ]
,
2009
Original
Issue Date (as defined in subsection
2(a)):
[ ]
,
2009
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Senesco Technologies,
Inc.
Common Stock Purchase
Warrant
(Void after [ ], 2016
1
)
Senesco
Technologies, Inc., a Delaware corporation (the “Company”), for value received,
hereby certifies that Cato Holding Company, or its registered assigns (the
“Registered Holder”), is entitled, subject to the terms and conditions set forth
below, to purchase from the Company, at any time or from time to time on or
after
[ ]
2
,
2009 and on or before 5:00 p.m. (New York time) on
[ ]
,
2016,
[ ]
shares of Common Stock, $0.01 par value per share, of the Company (“Common
Stock”), at a purchase price of $0.01
per
share. The shares purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the “Warrant Shares”
and the “Purchase Price,” respectively. This Warrant is one of a
series of Warrants issued by the Company in connection with a private placement
of Common Stock and of like tenor, except as to the number of shares of Common
Stock subject thereto (collectively, the “Company Warrants”).
1.
Exercise
.
(a)
Exercise for
Cash
. The Registered Holder may, at its option, elect to
exercise this Warrant, in whole or in part and at any time or from time to time,
by surrendering this Warrant, with the purchase form appended hereto as
Exhibit I
duly
executed by or on behalf of the Registered Holder, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the
Purchase Price payable in respect of the number of Warrant Shares purchased upon
such exercise. A facsimile signature of the Registered Holder on the
purchase form shall be sufficient for purposes of exercising this Warrant,
provided that the Company receives the Registered Holder’s original signature
within three (3) business days thereafter.
1
Seventh
year anniversary of Closing date.
2
Date of
Closing date.
(b)
Exercise
Date
. Each exercise of this Warrant shall be deemed to have
been effected immediately prior to the close of business on the day on which
this Warrant shall have been surrendered to the Company as provided in
subsection 1(a) above (the “Exercise Date”). At such time, the person
or persons in whose name or names any certificates for Warrant Shares shall be
issuable upon such exercise as provided in subsection 1(d) below shall be deemed
to have become the holder or holders of record of the Warrant Shares represented
by such certificates.
(c)
Issuance of
Certificates
. As soon as practicable after the exercise of
this Warrant in whole or in part, and in any event within 10 days thereafter,
the Company, at its expense, will cause to be issued in the name of, and
delivered to, the Registered Holder, or as the Registered Holder (upon payment
by the Registered Holder of any applicable transfer taxes) may
direct:
(i) a
certificate or certificates for the number of full Warrant Shares to which the
Registered Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Registered Holder would otherwise be entitled,
cash in an amount determined pursuant to Section 3 hereof; and
(ii) in
case such exercise is in part only, a new warrant or warrants (dated the date
hereof) of like tenor, calling in the aggregate on the face or faces thereof for
the number of Warrant Shares equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of this Warrant
minus the number of Warrant Shares for which this Warrant was so
exercised.
2.
Adjustments
.
(a)
Adjustment for Stock Splits
and Combinations
. If the Company shall at any time or from
time to time after the date on which this Warrant was first issued (or, if this
Warrant was issued upon partial exercise of, or in replacement of, another
warrant of like tenor, then the date on which such original warrant was first
issued) (either such date being referred to as the “Original Issue Date”) effect
a subdivision of the outstanding Common Stock, the Purchase Price then in effect
immediately before that subdivision shall be proportionately
decreased. If the Company shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock,
the Purchase Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this paragraph shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
(b)
Adjustment for Certain
Dividends and Distributions
. In the event the Company at any
time, or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock, then and in each such event the Purchase Price then in effect immediately
before such event shall be decreased as of the time of such issuance or, in the
event such a record date shall have been fixed, as of the close of business on
such record date, by multiplying the Purchase Price then in effect by a
fraction:
(1) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and
(2) the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution;
provided
,
however
, that if such
record date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Purchase Price
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Purchase Price shall be adjusted pursuant to this paragraph
as of the time of actual payment of such dividends or
distributions.
(c)
Adjustment in Number of
Warrant Shares
. When any adjustment is required to be made in
the Purchase Price pursuant to subsections 2(a) or 2(b), the number of
Warrant Shares purchasable upon the exercise of this Warrant shall be changed to
the number determined by dividing (i) an amount equal to the number of
shares issuable upon the exercise of this Warrant immediately prior to such
adjustment, multiplied by the Purchase Price in effect immediately prior to such
adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(d)
Adjustments for Other
Dividends and Distributions
. In the event the Company at any
time or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
(other than shares of Common Stock) or in cash or other property (other than
regular cash dividends paid out of earnings or earned surplus, determined in
accordance with generally accepted accounting principles), then and in each such
event provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock issuable
hereunder, the kind and amount of securities of the Company, cash or other
property which the Registered Holder would have been entitled to receive had
this Warrant been exercised on the date of such event and had the Registered
Holder thereafter, during the period from the date of such event to and
including the Exercise Date, retained any such securities receivable during such
period, giving application to all adjustments called for during such period
under this Section 2 with respect to the rights of the Registered
Holder.
(e)
Adjustment for
Reorganization
. If there shall occur any reorganization,
recapitalization, reclassification, consolidation or merger involving the
Company in which the Common Stock is converted into or exchanged for securities,
cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)) (collectively, a “Reorganization”), then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. Notwithstanding the foregoing sentence, if
(x) there shall occur any Reorganization in which the Common Stock is
converted into or exchanged for anything other than solely equity securities,
and (y) the common stock of the acquiring or surviving company is publicly
traded, then, as part of such Reorganization, (i) the Registered Holder
shall have the right thereafter to receive upon the exercise hereof such number
of shares of common stock of the acquiring or surviving company as is determined
by multiplying (A) the number of shares of Common Stock subject to this
Warrant immediately prior to such Reorganization by (B) a fraction, the
numerator of which is the Fair Market Value per share of Common Stock as of the
effective date of such Reorganization, as determined below, and the denominator
of which is the fair market value per share of common stock of the acquiring or
surviving company as of the effective date of such transaction, as determined in
good faith by the Board (using the principles set forth below to the extent
applicable), and (ii) the exercise price per share of common stock of the
acquiring or surviving company shall be the Purchase Price divided by the
fraction referred to in clause (B) above. In any such case,
appropriate adjustment (as determined in good faith by the Board) shall be made
in the application of the provisions set forth herein with respect to the rights
and interests thereafter of the Registered Holder, to the end that the
provisions set forth in this Section 2 (including provisions with respect to
changes in and other adjustments of the Purchase Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities, cash
or other property thereafter deliverable upon the exercise of this
Warrant.
The Fair
Market Value per share of Common Stock shall be determined as
follows:
(1) If
the Common Stock is listed on a national securities exchange or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the reported closing price
per share of Common Stock thereon on the trading day immediately preceding the
Exercise Date (
provided
that if no
such price is reported on such day, the Fair Market Value per share of Common
Stock shall be determined pursuant to clause (2) below).
(2) If
the Common Stock is not listed on a national securities exchange or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the amount most recently
determined by the Board of Directors of the Company (the “Board”) to represent
the fair market value per share of the Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under any plan, agreement or arrangement with employees of
the Company); and, upon request of the Registered Holder, the Board (or a
representative thereof) shall, as promptly as reasonably practicable but in any
event not later than 10 days after such request, notify the Registered Holder of
the Fair Market Value per share of Common Stock and furnish the Registered
Holder with reasonable documentation of the Board’s determination of such Fair
Market Value. Notwithstanding the foregoing, if the Board has not
made such a determination within the three-month period prior to the Exercise
Date, then the Board shall make, and shall provide or cause to be provided to
the Registered Holder notice of, a determination of the Fair Market Value per
share of the Common Stock within 15 days of a request by the Registered Holder
that it do so.
(f)
Certificate as to
Adjustments
. Upon the occurrence of each adjustment or
readjustment of the Purchase Price pursuant to this Section 2, the Company at
its expense shall, as promptly as reasonably practicable but in any event not
later than 10 days thereafter, compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, as
promptly as reasonably practicable after the written request at any time of the
Registered Holder (but in any event not later than 10 days thereafter), furnish
or cause to be furnished to the Registered Holder a certificate setting forth
(i) the Purchase Price then in effect and (ii) the number of shares of
Common Stock and the amount, if any, of other securities, cash or property which
then would be received upon the exercise of this Warrant.
3.
Fractional
Shares
. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall pay the value thereof to
the Registered Holder in cash on the basis of the Fair Market Value per share of
Common Stock, as determined pursuant to subsection 2(e) above.
4.
Transfers,
etc
.
(a) This
Warrant and the Warrant Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Securities Act of 1933,
as amended (the “Act”), (ii) such sale or transfer shall be exempt from the
registration requirements of the Act and the Company shall have been furnished
with an opinion of legal counsel, reasonably satisfactory to the Company, to the
effect that such sale or transfer is exempt from the registration requirements
of the Act or (iii) the Company agrees, in writing, to such
transfer. Notwithstanding the foregoing, no registration, opinion of
counsel or Company approval shall be required for (i) a transfer by a
Registered Holder which is an entity to a wholly owned subsidiary or member of
senior management of such entity, a transfer by a Registered Holder which is a
partnership to a partner of such partnership or a retired partner of such
partnership or to the estate of any such partner or retired partner, or a
transfer by a Registered Holder which is a limited liability company to a member
of such limited liability company or a retired member or to the estate of any
such member or retired member,
provided
that the
transferee in each case agrees in writing to be subject to the terms of this
Section 4, or (ii) a transfer made in accordance with Rule 144
under the Act and,
provided further
,
that the transferor and transferee provide the Company with the paperwork
necessary to transfer the Warrant and the Warrant Shares including
representations to the effect that the transfer complies with applicable
law.
(b) Each
certificate representing Warrant Shares shall bear a legend substantially in the
following form:
“The
securities represented hereby have not been registered under the Securities Act
of 1933, as amended, or any state securities laws and neither the securities nor
any interest therein may not be offered, sold, transferred, pledged or otherwise
disposed of except pursuant to an effective registration under such act or an
exemption from registration, which, in the opinion of counsel reasonably
satisfactory to counsel for this corporation, is available.”
The
foregoing legend shall be removed from the certificates representing any Warrant
Shares, at the request of the holder thereof, at such time as they become
eligible for resale pursuant to Rule 144 under the Act or at such time as
the Warrant Shares are sold or transferred in accordance with the requirements
of a registration statement of the Company on Form S-3, or such other form as
may then be in effect.
(c) The
Company will maintain a register containing the name and address of the
Registered Holder of this Warrant. The Registered Holder may change
its address as shown on the warrant register by written notice to the Company
requesting such change.
(d) Subject
to the provisions of Section 4 hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant with a
properly executed assignment (in the form of
Exhibit II
hereto) at the principal office of the Company (or, if another office or agency
has been designated by the Company for such purpose, then at such other office
or agency).
5.
No
Impairment
. The Company will not, by amendment of its charter
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Registered Holder against impairment.
6.
Notices of Record Date,
etc.
In the event:
(a) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time deliverable upon the exercise of this Warrant) for the
purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares of
stock of any class or any other securities, or to receive any other right;
or
(b) of
any capital reorganization of the Company, any reclassification of the Common
Stock of the Company, any consolidation or merger of the Company with or into
another corporation, or any transfer of all or substantially all of the assets
of the Company; or
(c) of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will send or cause to be sent
to the Registered Holder a notice specifying, as the case may be, (i) the record
date for such dividend, distribution or right, and the amount and character of
such dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be sent at least 10 days
prior to the record date or effective date for the event specified in such
notice.
7.
Reservation of
Stock
. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this
Warrant.
8.
Exchange or Replacement of
Warrants
.
(a) Upon
the surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions of
Section 4 hereof, issue and deliver to or upon the order of the Registered
Holder, at the Company’s expense, a new Warrant or Warrants of like tenor, in
the name of the Registered Holder or as the Registered Holder (upon payment by
the Registered Holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock (or other securities, cash and/or property) then issuable upon exercise of
this Warrant.
(b) Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company will
issue, in lieu thereof, a new Warrant of like tenor.
9.
Notices.
All
notices and other communications from the Company to the Registered Holder in
connection herewith shall be mailed by certified or registered mail, postage
prepaid, or sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, to the address last furnished to the
Company in writing by the Registered Holder. All notices and other
communications from the Registered Holder to the Company in connection herewith
shall be mailed by certified or registered mail, postage prepaid, or sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery, to the Company at its principal office set forth below. If
the Company should at any time change the location of its principal office to a
place other than as set forth below, it shall give prompt written notice to the
Registered Holder and thereafter all references in this Warrant to the location
of its principal office at the particular time shall be as so specified in such
notice. All such notices and communications shall be deemed delivered one
business day after being sent via a reputable international overnight courier
service guaranteeing next business day delivery.
10.
No Rights as
Stockholder
. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the
event (i) the Company effects a split of the Common Stock by means of a
stock dividend and the Purchase Price of and the number of Warrant Shares are
adjusted as of the date of the distribution of the dividend (rather than as of
the record date for such dividend), and (ii) the Registered Holder
exercises this Warrant between the record date and the distribution date for
such stock dividend, the Registered Holder shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock
acquired upon such exercise, notwithstanding the fact that such shares were not
outstanding as of the close of business on the record date for such stock
dividend.
11.
Amendment or
Waiver
. Any term of this Warrant may be amended or waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the holders of
Company Warrants representing at least two-thirds of the number of shares of
Common Stock then subject to outstanding Company Warrants. Notwithstanding the
foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Registered Holder
only in a manner which applies to all Company Warrants in the same fashion and
(b) the number of Warrant Shares subject to this Warrant and the Purchase Price
of this Warrant may not be amended, and the right to exercise this Warrant may
not be waived, without the written consent of the Registered Holder (it being
agreed that an amendment to or waiver under any of the provisions of Section 2
of this Warrant shall not be considered an amendment of the number of Warrant
Shares or the Purchase Price). The Company shall give prompt written
notice to the Registered Holder of any amendment hereof or waiver hereunder that
was effected without the Registered Holder’s written consent. No
waivers of any term, condition or provision of this Warrant, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
12.
Section
Headings
. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
13.
Governing
Law
. This Warrant will be governed by and construed in
accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
14.
Facsimile Signatures
.
This Warrant may be executed by facsimile signature.
* * * * *
* *
EXECUTED
as of the Date of Issuance indicated above.
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SENESCO
TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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ATTEST:
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EXHIBIT
I
PURCHASE
FORM
To:
Senesco Technologies, Inc.
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Dated:_________
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The
undersigned, pursuant to the provisions set forth in the attached Warrant (No.
___
), hereby elects to
purchase
(check applicable
box)
:
▪ _________
shares of the Common Stock of Senesco Technologies, Inc. covered by such
Warrant.
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant. Such payment takes
the form of
(check applicable
box or boxes)
:
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▪
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$______
in lawful money of the United
States.
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EXHIBIT
II
ASSIGNMENT
FORM
FOR VALUE
RECEIVED, ______________________________________ hereby sells, assigns and/or
transfers all of the rights of the undersigned under the attached Warrant (No.
____) with respect to the number of shares of Common Stock of Senesco
Technologies, Inc. covered thereby set forth below, unto:
Name of Assignee
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Address
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No. of Shares
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Signature
Guaranteed:
The
signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER
SET FORTH IN SECTION 4 OF THIS
WARRANT
Warrant
No.
[ ]
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Number
of Shares: [ ]
(subject
to adjustment)
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Date
of Issuance:
[ ]
,
2009
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Original
Issue Date (as defined in subsection
2(a)):
[ ]
,
2009
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Senesco Technologies,
Inc.
Common Stock Purchase
Warrant
(Void
after
[ ]
,
2016
1
)
Senesco
Technologies, Inc., a Delaware corporation (the “Company”), for value received,
hereby certifies that Cato Holding Company, or its registered assigns (the
“Registered Holder”), is entitled, subject to the terms and conditions set forth
below, to purchase from the Company, at any time or from time to time on or
after
[ ]
2
and on or before 5:00
p.m. (New York time) on
[ ]
,
2016,
[ ]
shares of Common Stock, $0.01 par value per share, of the Company (“Common
Stock”), at a purchase price of $0.60
per
share. The shares purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the “Warrant Shares”
and the “Purchase Price,” respectively. This Warrant is one of a
series of Warrants issued by the Company in connection with a private placement
of Common Stock and of like tenor, except as to the number of shares of Common
Stock subject thereto (collectively, the “Company Warrants”).
1.
Exercise
.
(a)
Exercise for
Cash
. The Registered Holder may, at its option, elect to
exercise this Warrant, in whole or in part and at any time or from time to time,
by surrendering this Warrant, with the purchase form appended hereto as
Exhibit I
duly
executed by or on behalf of the Registered Holder, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the
Purchase Price payable in respect of the number of Warrant Shares purchased upon
such exercise. A facsimile signature of the Registered Holder on the
purchase form shall be sufficient for purposes of exercising this Warrant,
provided that the Company receives the Registered Holder’s original signature
within three (3) business days thereafter.
1
Seventh
anniversary of closing date.
2
Six
months and 1 day after Closing date.
(b)
Exercise
Date
. Each exercise of this Warrant shall be deemed to have
been effected immediately prior to the close of business on the day on which
this Warrant shall have been surrendered to the Company as provided in
subsection 1(a) above (the “Exercise Date”). At such time, the person
or persons in whose name or names any certificates for Warrant Shares shall be
issuable upon such exercise as provided in subsection 1(d) below shall be deemed
to have become the holder or holders of record of the Warrant Shares represented
by such certificates.
(c)
Issuance of
Certificates
. As soon as practicable after the exercise of
this Warrant in whole or in part, and in any event within 10 days thereafter,
the Company, at its expense, will cause to be issued in the name of, and
delivered to, the Registered Holder, or as the Registered Holder (upon payment
by the Registered Holder of any applicable transfer taxes) may
direct:
(i) a
certificate or certificates for the number of full Warrant Shares to which the
Registered Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Registered Holder would otherwise be entitled,
cash in an amount determined pursuant to Section 3 hereof; and
(ii) in
case such exercise is in part only, a new warrant or warrants (dated the date
hereof) of like tenor, calling in the aggregate on the face or faces thereof for
the number of Warrant Shares equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of this Warrant
minus the number of Warrant Shares for which this Warrant was so
exercised.
2.
Adjustments
.
(a)
Adjustment for Stock Splits
and Combinations
. If the Company shall at any time or from
time to time after the date on which this Warrant was first issued (or, if this
Warrant was issued upon partial exercise of, or in replacement of, another
warrant of like tenor, then the date on which such original warrant was first
issued) (either such date being referred to as the “Original Issue Date”) effect
a subdivision of the outstanding Common Stock, the Purchase Price then in effect
immediately before that subdivision shall be proportionately
decreased. If the Company shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock,
the Purchase Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this paragraph shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
(b)
Adjustment for Certain
Dividends and Distributions
. In the event the Company at any
time, or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock, then and in each such event the Purchase Price then in effect immediately
before such event shall be decreased as of the time of such issuance or, in the
event such a record date shall have been fixed, as of the close of business on
such record date, by multiplying the Purchase Price then in effect by a
fraction:
(1) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and
(2) the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution;
provided
,
however
, that if such
record date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Purchase Price
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Purchase Price shall be adjusted pursuant to this paragraph
as of the time of actual payment of such dividends or
distributions.
(c)
Adjustment in Number of
Warrant Shares
. When any adjustment is required to be made in
the Purchase Price pursuant to subsections 2(a) or 2(b), the number of
Warrant Shares purchasable upon the exercise of this Warrant shall be changed to
the number determined by dividing (i) an amount equal to the number of
shares issuable upon the exercise of this Warrant immediately prior to such
adjustment, multiplied by the Purchase Price in effect immediately prior to such
adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(d)
Adjustments for Other
Dividends and Distributions
. In the event the Company at any
time or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
(other than shares of Common Stock) or in cash or other property (other than
regular cash dividends paid out of earnings or earned surplus, determined in
accordance with generally accepted accounting principles), then and in each such
event provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock issuable
hereunder, the kind and amount of securities of the Company, cash or other
property which the Registered Holder would have been entitled to receive had
this Warrant been exercised on the date of such event and had the Registered
Holder thereafter, during the period from the date of such event to and
including the Exercise Date, retained any such securities receivable during such
period, giving application to all adjustments called for during such period
under this Section 2 with respect to the rights of the Registered
Holder.
(e)
Adjustment for
Reorganization
. If there shall occur any reorganization,
recapitalization, reclassification, consolidation or merger involving the
Company in which the Common Stock is converted into or exchanged for securities,
cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)) (collectively, a “Reorganization”), then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. Notwithstanding the foregoing sentence, if
(x) there shall occur any Reorganization in which the Common Stock is
converted into or exchanged for anything other than solely equity securities,
and (y) the common stock of the acquiring or surviving company is publicly
traded, then, as part of such Reorganization, (i) the Registered Holder
shall have the right thereafter to receive upon the exercise hereof such number
of shares of common stock of the acquiring or surviving company as is determined
by multiplying (A) the number of shares of Common Stock subject to this
Warrant immediately prior to such Reorganization by (B) a fraction, the
numerator of which is the Fair Market Value per share of Common Stock as of the
effective date of such Reorganization, as determined below, and the denominator
of which is the fair market value per share of common stock of the acquiring or
surviving company as of the effective date of such transaction, as determined in
good faith by the Board (using the principles set forth below to the extent
applicable), and (ii) the exercise price per share of common stock of the
acquiring or surviving company shall be the Purchase Price divided by the
fraction referred to in clause (B) above. In any such case,
appropriate adjustment (as determined in good faith by the Board) shall be made
in the application of the provisions set forth herein with respect to the rights
and interests thereafter of the Registered Holder, to the end that the
provisions set forth in this Section 2 (including provisions with respect to
changes in and other adjustments of the Purchase Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities, cash
or other property thereafter deliverable upon the exercise of this
Warrant.
The Fair
Market Value per share of Common Stock shall be determined as
follows:
(1) If
the Common Stock is listed on a national securities exchange or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the reported closing price
per share of Common Stock thereon on the trading day immediately preceding the
Exercise Date (
provided
that if no
such price is reported on such day, the Fair Market Value per share of Common
Stock shall be determined pursuant to clause (2) below).
(2) If
the Common Stock is not listed on a national securities exchange or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the amount most recently
determined by the Board of Directors of the Company (the “Board”) to represent
the fair market value per share of the Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under any plan, agreement or arrangement with employees of
the Company); and, upon request of the Registered Holder, the Board (or a
representative thereof) shall, as promptly as reasonably practicable but in any
event not later than 10 days after such request, notify the Registered Holder of
the Fair Market Value per share of Common Stock and furnish the Registered
Holder with reasonable documentation of the Board’s determination of such Fair
Market Value. Notwithstanding the foregoing, if the Board has not
made such a determination within the three-month period prior to the Exercise
Date, then the Board shall make, and shall provide or cause to be provided to
the Registered Holder notice of, a determination of the Fair Market Value per
share of the Common Stock within 15 days of a request by the Registered Holder
that it do so.
(f)
Certificate as to
Adjustments
. Upon the occurrence of each adjustment or
readjustment of the Purchase Price pursuant to this Section 2, the Company at
its expense shall, as promptly as reasonably practicable but in any event not
later than 10 days thereafter, compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, as
promptly as reasonably practicable after the written request at any time of the
Registered Holder (but in any event not later than 10 days thereafter), furnish
or cause to be furnished to the Registered Holder a certificate setting forth
(i) the Purchase Price then in effect and (ii) the number of shares of
Common Stock and the amount, if any, of other securities, cash or property which
then would be received upon the exercise of this Warrant.
3.
Fractional
Shares
. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall pay the value thereof to
the Registered Holder in cash on the basis of the Fair Market Value per share of
Common Stock, as determined pursuant to subsection 2(e) above.
4.
Transfers,
etc
.
(a) This
Warrant and the Warrant Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Securities Act of 1933,
as amended (the “Act”), (ii) such sale or transfer shall be exempt from the
registration requirements of the Act and the Company shall have been furnished
with an opinion of legal counsel, reasonably satisfactory to the Company, to the
effect that such sale or transfer is exempt from the registration requirements
of the Act or (iii) the Company agrees, in writing, to such
transfer. Notwithstanding the foregoing, no registration, opinion of
counsel or Company approval shall be required for (i) a transfer by a
Registered Holder which is an entity to a wholly owned subsidiary or member of
senior management of such entity, a transfer by a Registered Holder which is a
partnership to a partner of such partnership or a retired partner of such
partnership or to the estate of any such partner or retired partner, or a
transfer by a Registered Holder which is a limited liability company to a member
of such limited liability company or a retired member or to the estate of any
such member or retired member,
provided
that the
transferee in each case agrees in writing to be subject to the terms of this
Section 4, or (ii) a transfer made in accordance with Rule 144
under the Act
provided
further
, that the transferor and transferee provide the Company with the
paperwork necessary to transfer the Warrant and the Warrant Shares including
representations to the effect that the transfer complies with applicable
law.
(b) Each
certificate representing Warrant Shares shall bear a legend substantially in the
following form:
“The
securities represented hereby have not been registered under the Securities Act
of 1933, as amended, or any state securities laws and neither the securities nor
any interest therein may not be offered, sold, transferred, pledged or otherwise
disposed of except pursuant to an effective registration under such act or an
exemption from registration, which, in the opinion of counsel reasonably
satisfactory to counsel for this corporation, is available.”
The
foregoing legend shall be removed from the certificates representing any Warrant
Shares, at the request of the holder thereof, at such time as they become
eligible for resale pursuant to Rule 144 under the Act or at such time as
the Warrant Shares are sold or transferred in accordance with the requirements
of a registration statement of the Company on Form S-3, or such other form as
may then be in effect.
(c) The
Company will maintain a register containing the name and address of the
Registered Holder of this Warrant. The Registered Holder may change
its address as shown on the warrant register by written notice to the Company
requesting such change.
(d) Subject
to the provisions of Section 4 hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant with a
properly executed assignment (in the form of
Exhibit II
hereto) at the principal office of the Company (or, if another office or agency
has been designated by the Company for such purpose, then at such other office
or agency).
5.
No
Impairment
. The Company will not, by amendment of its charter
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Registered Holder against impairment.
6.
Notices of Record
Date, etc.
In the event:
(a) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time deliverable upon the exercise of this Warrant) for the
purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares of
stock of any class or any other securities, or to receive any other right;
or
(b) of
any capital reorganization of the Company, any reclassification of the Common
Stock of the Company, any consolidation or merger of the Company with or into
another corporation, or any transfer of all or substantially all of the assets
of the Company; or
(c) of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will send or cause to be sent
to the Registered Holder a notice specifying, as the case may be, (i) the record
date for such dividend, distribution or right, and the amount and character of
such dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be sent at least 10 days
prior to the record date or effective date for the event specified in such
notice.
7.
Reservation of
Stock
. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this
Warrant.
8.
Exchange or
Replacement of Warrants
.
(a) Upon
the surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions of
Section 4 hereof, issue and deliver to or upon the order of the Registered
Holder, at the Company’s expense, a new Warrant or Warrants of like tenor, in
the name of the Registered Holder or as the Registered Holder (upon payment by
the Registered Holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock (or other securities, cash and/or property) then issuable upon exercise of
this Warrant.
(b) Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company will
issue, in lieu thereof, a new Warrant of like tenor.
9.
Notices.
All
notices and other communications from the Company to the Registered Holder in
connection herewith shall be mailed by certified or registered mail, postage
prepaid, or sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, to the address last furnished to the
Company in writing by the Registered Holder. All notices and other
communications from the Registered Holder to the Company in connection herewith
shall be mailed by certified or registered mail, postage prepaid, or sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery, to the Company at its principal office set forth below. If
the Company should at any time change the location of its principal office to a
place other than as set forth below, it shall give prompt written notice to the
Registered Holder and thereafter all references in this Warrant to the location
of its principal office at the particular time shall be as so specified in such
notice. All such notices and communications shall be deemed delivered one
business day after being sent via a reputable international overnight courier
service guaranteeing next business day delivery.
10.
No Rights as
Stockholder
. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the
event (i) the Company effects a split of the Common Stock by means of a
stock dividend and the Purchase Price of and the number of Warrant Shares are
adjusted as of the date of the distribution of the dividend (rather than as of
the record date for such dividend), and (ii) the Registered Holder
exercises this Warrant between the record date and the distribution date for
such stock dividend, the Registered Holder shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock
acquired upon such exercise, notwithstanding the fact that such shares were not
outstanding as of the close of business on the record date for such stock
dividend.
11.
Amendment or
Waiver
. Any term of this Warrant may be amended or waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the holders of
Company Warrants representing at least two-thirds of the number of shares of
Common Stock then subject to outstanding Company Warrants. Notwithstanding the
foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Registered Holder
only in a manner which applies to all Company Warrants in the same fashion and
(b) the number of Warrant Shares subject to this Warrant and the Purchase Price
of this Warrant may not be amended, and the right to exercise this Warrant may
not be waived, without the written consent of the Registered Holder (it being
agreed that an amendment to or waiver under any of the provisions of Section 2
of this Warrant shall not be considered an amendment of the number of Warrant
Shares or the Purchase Price). The Company shall give prompt written
notice to the Registered Holder of any amendment hereof or waiver hereunder that
was effected without the Registered Holder’s written consent. No
waivers of any term, condition or provision of this Warrant, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
12.
Section
Headings
. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
13.
Governing
Law
. This Warrant will be governed by and construed in
accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
14.
Facsimile Signatures
.
This Warrant may be executed by facsimile signature.
* * * * *
* *
EXECUTED
as of the Date of Issuance indicated above.
SENESCO
TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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EXHIBIT
I
PURCHASE
FORM
To:
Senesco Technologies, Inc.
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Dated:____________
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The
undersigned, pursuant to the provisions set forth in the attached Warrant (No.
___
), hereby elects to
purchase
(check applicable
box)
:
▪ _________
shares of the Common Stock of Senesco Technologies, Inc. covered by such
Warrant.
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant. Such payment takes
the form of
(check applicable
box or boxes)
:
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▪
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$______
in lawful money of the United
States.
|
EXHIBIT
II
ASSIGNMENT
FORM
FOR VALUE
RECEIVED, ______________________________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant (No.
____) with respect to the number of shares of Common Stock of Senesco
Technologies, Inc. covered thereby set forth below, unto:
Name of Assignee
|
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Address
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No. of Shares
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Dated:_____________________
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Signature:________________________________
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Signature
Guaranteed:
By:
_______________________
The
signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
EXHIBIT 10.1
SECURITIES
PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT
(this “Agreement”), dated as of July 29, 2009, by and among Senesco
Technologies, Inc., a Delaware corporation (the “Company”), and the investors
listed on the signature page attached hereto (the “Purchasers”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS
, the Company desires
to sell, transfer and assign to the Purchasers, and the Purchasers desires to
purchase from the Company 588,888 shares (the “Shares”) of the Company’s
common stock, $0.01 par value per share (the “Common Stock”), and certain
warrants, (“Warrant A” and “Warrant B”) to purchase, in the aggregate, up
to 1,067,363 shares of Common Stock (collectively Warrant A and Warrant B
shall be referred to herein as the “Warrants”) for an aggregate purchase price
of $530,000 (the Warrants, together with the Shares, shall be referred to herein
as the “Securities”);
NOW, THEREFORE
, in
consideration of the promises and the mutual covenants contained herein, the
parties hereto, intending to be legally bound, hereby agree as
follows:
SECTION
I
PURCHASE AND SALE OF THE
SECURITIES
A.
Purchase and
Sale
. Subject to the terms and conditions of this Agreement
and on the basis of the representations, warranties, covenants and agreements
herein contained, the Company hereby agrees to sell, transfer, assign and convey
the respective number of Securities to the Purchasers as set forth on the
signature pages attached hereto, and the Purchasers agree to purchase, acquire
and accept their respective number of Securities from the Company as set forth
on the signature pages attached hereto.
B.
Purchase
Price
. The Securities are hereby offered at a price of (i)
$0.90 per share of Common Stock, (ii) $0.01 for each share underlying Warrant A
to purchase shares of Common Stock as more fully described below and (iii) $0.60
for each share underlying Warrant B to purchase shares of Common Stock as more
fully described below. The aggregate purchase price for the
Securities to be paid by the Purchasers to the Company is $530,000 (the
“Aggregate Purchase Price”). The Aggregate Purchase Price shall be
paid by the Purchasers to the Company on the Closing Date either via certified
bank check or irrevocable wire transfer and shall be paid by the Purchasers in
the amounts set forth on the signature pages attached hereto.
C.
Warrant
A
. Warrant A shall be in the form of
Exhibit A
attached
hereto shall have a seven year term and shall be exercisable immediately at an
exercise price of $0.01 per share. The Purchasers shall be entitled
to purchase, in the aggregate, 530,000 shares of Common Stock underlying
Warrant A.
D.
Warrant
B
. Warrant B shall be in the form of
Exhibit B
attached
hereto shall have a seven-year term and shall be exercisable six months from the
date of issuance at an exercise price of $0.60 per share. The
Purchasers shall be entitled to purchase, in the aggregate, 537,363 shares
of Common Stock underlying Warrant B.
SECTION
II
REPRESENTATIONS,
WARRANTIES, COVENANTS
AND AGREEMENTS OF THE
COMPANY
Except as
set forth in the accompanying disclosure schedules, or as disclosed in, and
reasonably apparent from, any report, schedule, form or other document filed
with, or furnished to, the SEC and publicly available prior to the date of this
Agreement, the Company represents and warrants to, and covenants and agrees
with, the Purchasers, as of the date hereof, that:
A.
Organization; Good
Standing
. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to own its properties and to conduct the
business in which it is now engaged.
B.
Authority
. Except
as set forth on Schedule IIB, the Company has the full corporate power,
authority and legal right to execute and deliver this Agreement and to perform
all of its obligations and covenants hereunder, and no consent or approval of
any other person or governmental authority is required therefore. The
execution and delivery of this Agreement by the Company, the performance by the
Company of its obligations and covenants hereunder and the consummation by the
Company of the transactions contemplated hereby have been duly authorized by all
necessary corporate action. This Agreement constitutes a valid and
legally binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or other similar laws affecting the enforceability of
creditors’ rights in general or by general principles of equity.
C.
No Legal Bar;
Conflicts
. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
violates any provision of the Certificate of Incorporation, as amended, or
By-Laws of the Company or any law, statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts with or
results in any breach of any of the terms of or constitutes a default under or
results in the termination of or the creation of any lien pursuant to the terms
of any contract or agreement to which the Company is a party or by which the
Company or any of its assets is bound.
D.
Non-Assessable
Shares
. The Securities being issued hereunder, subject to the
receipt of stockholder approval for an increase in the number of authorized
shares, will be duly authorized and, the Shares, when issued to the Purchasers
for the consideration herein provided, and the shares of Common Stock issued
upon the proper exercise of the Warrants, will be validly issued, fully paid and
non-assessable.
E.
SEC Documents; Financial
Statements
. During the two years prior to the date hereof, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Securities and Exchange Commission
(the “SEC”) pursuant to the reporting requirements of the Securities Exchange
Act of 1934 (the “1934 Act”) (all of the foregoing filed prior to the date
hereof or prior to the Closing Date, and all exhibits
included
therein and financial statements and schedules thereto and documents
incorporated by reference therein being hereinafter referred to as the “SEC
Documents”). The Company has made available to the Purchasers or
their respective representatives true, correct and complete copies of the SEC
Documents not available on the EDGAR system. As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the 1934 Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time they
were filed with the SEC, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. As of their respective dates,
the financial statements of the Company included in the SEC Documents complied
as to form in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments). No other
information provided by or on behalf of the Company to the Purchasers which is
not included in the SEC Documents, including, without limitation, information
provided to any Purchaser by the Company in anticipation of this transaction,
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstance under which they are or were made, not misleading.
F.
Absence of Certain
Changes
. Except in the ordinary course of business, since July
28, 2009, there has been no material adverse change and no material adverse
development in the business, properties, operations, condition (financial or
otherwise), results of operations or prospects of the Company or its
subsidiaries. Since July 28, 2009, the Company has not (i) declared
or paid any dividends, (ii) sold any assets, individually or in the aggregate,
in excess of $500,000 outside of the ordinary course of business or (iii) had
capital expenditures, individually or in the aggregate, in excess of
$500,000. The Company has not taken any steps to seek protection
pursuant to any bankruptcy law nor does the Company have any knowledge or reason
to believe that its creditors intend to initiate involuntary bankruptcy
proceedings or any actual knowledge of any fact which would reasonably lead a
creditor to do so.
G.
No Undisclosed Events,
Liabilities, Developments or Circumstances
. Except as set
forth on Schedule IIG, no event, liability, development or circumstance has
occurred or exists, or is contemplated to occur, with respect to the Company or
its subsidiaries or their respective business, properties, prospects, operations
or financial condition, that would be required to be disclosed by the Company
under applicable securities laws on a registration statement on Form S-1 filed
with the SEC relating to an issuance and sale by the Company of its Common Stock
and which has not been publicly announced.
H.
Foreign Corrupt
Practices
. Neither the Company, nor any of its subsidiaries,
nor any director, officer, agent, employee or other person acting on behalf of
the Company or any of its subsidiaries has, in the course of its actions for, or
on behalf of, the Company (i) used any
corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expenses relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment to
any foreign or domestic government official or employee.
I.
Sarbanes-Oxley
Act
. The Company is in compliance with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date
hereof, and any and all applicable rules and regulations promulgated by the SEC
thereunder that are effective as of the date hereof, except where such
noncompliance would not have, individually or in the aggregate, a material
adverse effect.
J.
Intellectual Property
Rights
. The Company and its subsidiaries own or possess
adequate rights or licenses to use all trademarks, trade names, service marks,
service mark registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and
other intellectual property rights (“Intellectual Property Rights”) necessary to
conduct their respective businesses as now conducted. None of the
Company’s Intellectual Property Rights have expired or terminated, or are
expected to expire or terminate within three years from the date of this
Agreement, except for rights which are not necessary to conduct its business as
now conducted. The Company does not have any knowledge of any
infringement by the Company or its subsidiaries of Intellectual Property Rights
of others. There is no claim, action or proceeding being made or
brought, or to the knowledge of the Company, being threatened, against the
Company or any of its subsidiaries regarding its Intellectual Property
Rights. The Company is unaware of any facts or circumstances which
might give rise to any of the foregoing infringements or claims, actions or
proceedings. The Company and its subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of
their Intellectual Property Rights.
SECTION
III
REPRESENTATIONS,
WARRANTIES, COVENANTS
AND AGREEMENTS OF THE
PURCHASERS
The
Purchasers, jointly and severally, represent and warrant to, and covenants and
agrees with, the Company, as of the date hereof, that:
A.
Organization (if
applicable)
. The Purchaser is, and as of the Closing will be,
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization.
B.
Authorization
. The
Purchaser has, and as of the Closing will have, all requisite power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
action on the part of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser and constitutes its legal, valid and
binding obligation, enforceable against the Purchaser in accordance with its
terms, except as the enforceability
thereof
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforceability of creditors’ rights in general or by general principles of
equity.
C.
No Legal Bar;
Conflicts
. Neither the execution and delivery of this
Agreement, nor the consummation by the Purchaser of the transactions
contemplated hereby, violates any law, statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency applicable to the
Purchaser, or violates, or conflicts with, any contract, commitment, agreement,
understanding or arrangement of any kind to which the Purchaser is a party or by
which the Purchaser is bound.
D.
No
Litigation
. No action, suit or proceeding against the
Purchaser relating to the consummation of any of the transactions contemplated
by this Agreement nor any governmental action against the Purchaser seeking to
delay or enjoin any such transactions is pending or, to the Purchaser’s
knowledge, threatened.
E.
Investment
Intent
. The Purchaser: (i) is an accredited investor within
the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the
“Act”); (ii) is aware of the limits on resale imposed by virtue of the nature of
the transactions contemplated by this Agreement, specifically the restrictions
imposed by Rule 144 of the Act, and is aware that the certificates representing
the Purchaser’s respective ownership of the Securities will bear related
restrictive legends; and (iii) except as otherwise set forth herein, is
acquiring the shares of the Company hereunder without registration under the Act
in reliance on the exemption from registration contained in Section 4(2) of the
Act and/or Rule 506 promulgated pursuant to Regulation D of the Act, for
investment for its own account, and not with a view toward, or for sale in
connection with, any distribution thereof, nor with any present intention of
distributing or selling such shares. The information contained in the
Accredited Investor Questionnaire in the form of
Exhibit C
attached
hereto and delivered by the Purchaser in connection with this Agreement is true
and complete in all respects. The Purchaser has been given the
opportunity to ask questions of, and receive answers from, the officers of the
Company regarding the Company, its current and proposed business operations and
the Securities, and the officers of the Company have made available to the
Purchaser all documents and information that the Purchaser has requested
relating to an investment in the Company. The Purchaser has been
given the opportunity to retain competent legal counsel in connection with the
purchase of the Securities and acknowledges that the Company has relied upon the
Purchaser’s representations in this Section 3 in offering and selling the
Securities to the Purchaser.
G.
Economic Risk; Restricted
Securities
. The Purchaser recognizes that the investment in
the Securities involves a number of significant risks. The foregoing,
however, does not limit or modify the representations, warranties and agreements
of the Company in Section 2 of this Agreement or the right of the Purchaser to
rely thereon. The Purchaser is able to bear the economic risks of an
investment in the Securities for an indefinite period of time, has no need for
liquidity in such investment and, at the present time, can afford a complete
loss of such investment.
H.
Access to
Information
.
(i) The
Purchaser has had access to all reports required to be filed by the Company (the
“
SEC Reports
”)
under the Securities Exchange Act of 1934, as amended.
(ii) The
Purchaser represents that it has not received any information about the Company
other than what has been disclosed in the documents set forth above, and has had
the opportunity to ask questions of, and receive answers from, the Company
regarding the foregoing documents.
(iii) The
Company has engaged each of RAMPartners SA and Midtown Partners & Co., LLC
to act as its financial advisors (the “Financial Advisors”). The
Financial Advisors are entitled to receive compensation only if the funds
raised in a financing are provided by investors who are introduced to the
Company solely through the efforts of the Financial Advisors. In
connection with the transaction contemplated by this Agreement, the Financial
Advisors shall not receive any compensation.
I.
Suitability
. The
Purchaser has carefully considered, and has, to the extent the Purchaser deems
it necessary, discussed with the Purchaser’s own professional legal, tax and
financial advisers the suitability of an investment in the Securities for the
Purchaser’s particular tax and financial situation, and the Purchaser has
determined that the Securities is a suitable investment.
J.
Legend
. The
Purchaser acknowledges that the certificates evidencing the Securities will bear
the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER SUCH ACT OR AN OPINION OF COUNSEL TO THE ISSUER THAT REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge
pursuant to a bona fide margin agreement with a registered broker-dealer or
grant a security interest in some or all of the Securities to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Act and who agrees in writing to be bound by the provisions of this Agreement
and, if required under the terms of such arrangement, such Purchaser may
transfer pledged or secured Securities to the pledgees or secured
parties. Such a pledge or transfer would not be subject to approval
of the Company and no legal opinion of legal counsel of the pledgee, secured
party or pledgor shall be required in connection therewith, provided that any
such transfer would comply with federal and state securities
laws. Further, no notice shall be required of such
pledge. At the appropriate Purchaser’s expense, the Company will
execute and deliver such reasonable documentation as a pledgee or secured party
of Securities may reasonably request in connection with a pledge or transfer of
the Securities.
Certificates
evidencing the Securities shall not be required to contain such legend or any
other legend (i) following any sale of such Securities pursuant to Rule 144,
(ii) if such Securities are eligible for sale under Rule 144, or (iii) such
legend is not required under applicable requirements of the Act (including
judicial interpretations and pronouncements issued by the staff of the SEC), in
each such case (i) through (iii) to the extent reasonably determined by the
Company’s legal counsel. At such time and to the extent a legend is
no longer required for the Securities, the Company will use its best efforts to
no later than five (5) trading days following the delivery by a Purchaser to the
Company or the Company’s transfer agent of a legended certificate representing
such Securities (together with such accompanying documentation or
representations as reasonably required by counsel to the Company) (such fifth
trading day, the “Legend Removal Date”), deliver or cause to be delivered a
certificate representing such Securities that is free from the foregoing
legend.
In
addition to a Purchaser’s other available remedies, the Company shall pay to a
Purchaser, in cash, as partial liquidated damages and not as a penalty, for each
$1,000 of Securities (based on the VWAP of the Common Stock on the date such
Securities are submitted to the Company’s transfer agent) delivered for removal
of the restrictive legend and subject to this section, $10 per trading day
(increasing to $20 per trading day five (5) trading days after such damages have
begun to accrue) for each trading day after the second trading day following the
Legend Removal Date until such certificate is delivered without a
legend. Nothing herein shall limit such Purchaser’s right to pursue
actual damages for the Company’s failure to deliver certificates representing
any Securities as required, and such Purchaser shall have the right to pursue
all remedies available to it at law or in equity including, without limitation,
a decree of specific performance and/or injunctive
relief. Notwithstanding anything herein to the contrary, in no event
will the Company be obligated to make payments to any Purchaser under this
section in excess of 5% of the aggregate amount invested by such
Purchaser.
The
Purchaser agrees that the removal of the restrictive legend from certificates
representing Securities as set forth in this Section is predicated upon the
Company’s reliance that the Purchaser will sell any Securities pursuant to
either the registration requirements or the Act, including any applicable
prospectus delivery requirements, or an exemption therefrom, and that if
Securities are sold pursuant to a Registration Statement, they will be sold in
compliance with the plan of distribution set forth therein.
K.
Registration of the
Securities.
The
Securities have
not been and are not being registered under the
Securities Act of 1933, as
amended (the “Securities Act”)
or any state securities laws, and may not
be offered for sale, sold, assigned or transferred. The Company and
the Purchaser agree to
rely on Rule 144 of the
Securities Act, when applicable, in the event a Purchaser desires to undertake
any resale of any of the Securities.
SECTION
IV
THE CLOSING AND CONDITIONS
TO CLOSING
A.
Time and Place of the
Closing
. The closing shall be held at the offices of Morgan,
Lewis & Bockius, 502 Carnegie Center, Princeton, New Jersey 08540 as soon a
practible
following
the satisfaction of the Company of all of the conditions to closing, as set
forth below, (the “Closing Date”), or such other time and place as the Company
and the Purchasers may mutually agree.
(i)
Delivery by the
Company
. Delivery of the Securities shall be made by the
Company, or by its transfer agent, as applicable, to the Purchasers as soon as
reasonably practicable after the Closing Date by delivering certificates
representing their respective portion of Securities as set forth on the
signature pages attached hereto, each such certificate to be accompanied by any
requisite documentary or transfer tax stamps.
(ii)
Delivery by the
Purchasers
. On
or before the Closing Date, the Purchasers shall deliver to the Company the
Aggregate Purchase Price, based on the number of Securities purchased by such
Purchasers as set forth on the signature pages attached hereto, by certified
bank check or by irrevocable wire transfer to the Company.
(iii)
Other Conditions to
Closing
. As of the Closing Date:
(a) all
requisite action by the Company’s Board of Directors shall have been taken
pursuant to the By-Laws of the Company; and
(b) the
Company shall have obtained the requisite stockholder vote necessary to legally
consummate the transactions contemplated hereby. Should this
condition to closing no longer be legally necessary, then the parties can
mutually agree to waive this condition to closing.
In the event the Company is unable to
obtain, if necessary, the requisite stockholder vote necessary to legally
consummate the transactions contemplated hereby by December 31, 2009, then the
obligations of the Purchasers and the Company to each other pursuant to this
Agreement shall terminate.
SECTION
V
MISCELLANEOUS
A.
Entire
Agreement
. This Agreement contains the entire agreement
between the parties hereto with respect to the transactions contemplated hereby,
and no modification hereof shall be effective unless in writing and signed by
the party against which it is sought to be enforced.
B.
Invalidity,
Etc
. If any provision of this Agreement, or the application of
any such provision to any person or circumstance, shall be held invalid by a
court of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
C.
Headings
. The
headings of this Agreement are for convenience of reference only and are not
part of the substance of this Agreement.
D.
Binding
Effect
. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
E.
Governing
Law
. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware
applicable in the case
of agreements made and to be performed entirely within such State, without
regard to principles of conflicts of law, and the parties hereto hereby submit
to the exclusive jurisdiction of the state and federal courts located in the
State of New Jersey.
F.
Counterparts
. This
Agreement may be executed in one or more identical counterparts, each of which
shall be deemed an original but all of which together will constitute one and
the same instrument.
* * * * *
*
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
By:
/s/ Christoper Forbes
Name: Christopher
Forbes
Title:
Address:
Telecopy:
(a)
|
Investment
Amount: $88,000
|
(b)
|
Number
of shares of Common Stock:97,778
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 88,000 warrant shares
Warrant
B: 89,222 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
Name: Rudolf
Stalder
Title:
Address:
(a)
|
Investment
Amount: $13,500
|
(b)
|
Number
of shares of Common Stock:15,000
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 13,500 warrant shares
Warrant
B: 13,688 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
By:
/s/ Harlan W. Waksal, M.D.
Name: Harlan
W. Waksal, M.D.
Title:
Address:
(a)
|
Investment
Amount: $13,500
|
(b)
|
Number
of shares of Common Stock:15,000
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 13,500 warrant shares
Warrant
B: 13,688 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
By:
/s/ Thomas C. Quick Charitable Foundation
Name: Thomas
C. Quick Charitable Foundation
Title:
Address:
(a)
|
Investment
Amount: $7,000
|
(b)
|
Number
of shares of Common Stock:7,778
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 7,000 warrant shares
Warrant
B: 7,097 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
Name: David
Rector
Title:
Address:
(a)
|
Investment
Amount: $3,000
|
(b)
|
Number
of shares of Common Stock:3,333
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 3,000 warrant shares
Warrant
B: 3,042 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
Name: John
N. Braca
Title:
Address:
(a)
|
Investment
Amount: $2,000
|
(b)
|
Number
of shares of Common Stock:2,222
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 2,000 warrant shares
Warrant
B: 2,028 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
Name: Warren
Isabelle
Title:
Address:
(a)
|
Investment
Amount: $2,000
|
(b)
|
Number
of shares of Common Stock:2,222
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 2,000 warrant shares
Warrant
B: 2,028 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
Name: Jack
Van Hulst
Title:
Address:
(a)
|
Investment
Amount: $1,000
|
(b)
|
Number
of shares of Common Stock:1,111
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 1,000 warrant shares
Warrant
B: 1,014 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
Name: Robert
Forbes
Title:
Address:
(a)
|
Investment
Amount: $300,000
|
(b)
|
Number
of shares of Common Stock: 333,333
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 300,000 warrant shares
Warrant
B: 304,167 warrant shares
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASERS:
Name: Timothy
Forbes
Title:
Address:
(a)
|
Investment
Amount: $100,000
|
(b)
|
Number
of shares of Common Stock: 111,111
shares
|
(c)
|
Warrants
to purchase shares of Common
Stock:
|
Warrant
A: 100,000 warrant shares
Warrant
B: 101,389 warrant shares
Exhibit
A
Form
of Warrant
Exhibit
B
Form
of Warrant
Exhibit
C
Senesco
Technologies, Inc.
Confidential
Purchaser Questionnaire
Before
any sale of securities in the above-captioned Company can be made to you, this
Questionnaire must be completed and returned to Joel Brooks. Defined
terms herein shall have the same meaning as set forth in the underlying
Securities Purchase Agreement.
1. Please
check one of the following that accurately describes your status as either an
accredited investor (Item 1, A through H) or a nonaccredited investor (Item 2)
at the time of your purchase of the securities. Only accredited
investors may participate in this offering.
(1) Purchaser
is an “accredited investor” as that term is defined in Regulation D adopted
pursuant to the Securities Act of 1933, as amended (the “Securities Act”) (
i.e.
qualifying for one
or more of the categories set forth below):
|
______
|
(A)
|
an
individual whose individual net worth, or joint net worth with that
individual’s spouse, exceeds
$1,000,000;
|
|
______
|
(B)
|
an
individual who had an individual income in excess of $200,000 in each of
the last two calendar years or joint income with that person’s spouse in
excess of $300,000 in each of those years and who reasonably expects to
reach the same income level in the current calendar year. For
purposes of this offering, individual income shall equal adjusted gross
income, as reported in the investor’s federal income tax return, less any
income attributable to a spouse or to property owned by the spouse, and as
may be further adjusted in accordance with the rules, regulations, and
releases of the Securities and Exchange
Commission;
|
|
______
|
(C)
|
a
bank as defined in Section 3(a)(2) of the Securities Act, or a savings and
loan association or other institution as defined in Section 3(a)(5)(A) of
the Securities Act, whether acting in its individual or fiduciary
capacity; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment
Company Act of 1940 (the “1940 Act”) or a business development company as
defined in Section 2(a)(48) of the 1940 Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; or an employee
benefit plan within the meaning of Title I of the Employee Retirement
Income Security Act of 1974 (“ERISA”), if the investment decision is made
by a plan fiduciary, as defined in Section 3(21) of ERISA, which is either
a bank, savings and loan association, insurance company or registered
investment adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or if a self
directed
plan, with investment decisions made solely by persons that are accredited
investors;
|
|
______
|
(D)
|
a
private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of
1940;
|
|
______
|
(E)
|
an
organization described in Section 501(c)(3) of the Internal Revenue Code,
a corporation, a Massachusetts or similar business trust, or a
partnership, not formed for the specific purpose of acquiring the
Securities;
|
|
______
|
(F)
|
an
entity in which all of the equity owners are accredited investors as set
forth above;
|
|
______
|
(G)
|
a
trust (other than a Massachusetts or similar business trust) with total
assets in excess of $5 million, not formed for the specific purpose of
investing in the Company, whose purchase is directed by a person who has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the prospective investment;
or
|
|
______
|
(H)
|
an
individual who is a director or executive officer of the
Company.
|
IF
YOU ARE NOT AN ACCREDITED INVESTOR AS DESCRIBED ABOVE, PLEASE MARK
HERE:
______ (2) Purchaser
is not an accredited investor as set forth in the criteria in (1) above, but is
otherwise equally qualified, sophisticated and able to make the investment
contemplated hereby.
2. Purchaser
has reviewed such Purchaser’s financial condition and commitments, alone and
together with Purchaser’s advisors, and, based on such review, Purchaser is
satisfied that (a) Purchaser has adequate means of providing for
Purchaser’s financial needs and possible contingencies and has assets or sources
of income which, taken together, are more than sufficient so that Purchaser
could bear the risk of loss of the entire investment in the Stock, (b) Purchaser
has no present or contemplated future need to dispose of all or any portion of
the Securities to satisfy any existing or contemplated undertaking, need or
indebtedness, and (c) Purchaser is capable of bearing the economic risk of
an investment in the Securities for the indefinite future.
3. Purchaser
understands that the Securities that may be issued to Purchaser will not have
been registered under the Securities Act or any state securities law by reason
of specific exemptions under the provisions thereof which depend in part upon
the other representations and warranties made by Purchaser in this letter,
including Purchaser’s state of residency indicated on the signature page to this
letter. Purchaser understands that the Company is relying upon Purchaser’s
representations and warranties contained in this letter for the purpose of
determining whether this transaction meets the requirements for such exemptions.
Purchaser will furnish any
additional
information requested by the Company to assure the compliance of this
transaction with applicable federal and state securities laws.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
SIGNATURE PAGE TO ACCREDITED
INVESTOR QUESTIONNAIRE
PURCHASER:
____________________________________
Name
(print):_________________________
State of
Residency: ___________________
Mailing
Address:
____________________________________
____________________________________
____________________________________
EXHIBIT
10.2
SECURITIES
PURCHASE AGREEMENT
This SECURITIES PURCHASE
AGREEMENT
(this "Agreement"), dated as of July 29, 2009, by and among
Senesco Technologies, Inc., a Delaware corporation (the "Company"), and Cato
Holding Company, a North Carolina corporation ( the "Purchaser").
W
I
T
N
E
S
S
E
T
H
:
WHEREAS
, the Company is
currently indebted to Purchaser in an amount in excess of one hundred
seventy-five thousand dollars (US$175,000); and
WHEREAS
, the Purchaser is
willing to purchase certain securities from the Company in exchange for the
indebtedness and the Company is willing to issue such securities pursuant to the
terms of this Agreement; ;
NOW, THEREFORE
, in
consideration of the promises and the mutual covenants contained herein, the
parties hereto, intending to be legally bound, hereby agree as
follows:
SECTION
I
PURCHASE AND SALE OF THE
SECURITIES
A.
Purchase and
Sale
. Subject to the terms and conditions of this Agreement
and on the basis of the representations, warranties, covenants and agreements
herein contained, the Purchaser agrees to purchase at the Closing and the
Company hereby agrees to sell and issue to the Purchaser at the Closing the
following securities: (a) one hundred ninety-four thousand four
hundred forty-four (194,444) shares (the "Shares") of the Company's common
stock, $0.01 par value per share (the "Common Stock"); (b) a warrant to purchase
one hundred seventy-five thousand (175,000) shares of Common Stock at an
exercise price of $0.01 per share (“Warrant A”); and (c) a warrant to purchase
one hundred seventy-seven thousand, four hundred thirty-one (177,431) shares of
Common Stock at an exercise price of $0.60 per share (“Warrant B” and
collectively with Warrant A, the
"Warrants"). The Warrants, together with the Shares,
shall be referred to herein collectively as the "Securities."
B.
Price
. The
purchase price for the Securities shall be one hundred seventy-five thousand
dollars (US$175,000).
C.
Warrant
A
. Warrant A shall (i) be in the form of
Exhibit A
attached
hereto, (ii) have a seven (7) year term, (iii) be exercisable
immediately, and (iv) entitle the Purchaser and/or its designees, as the case
may be, to purchase an aggregate of 175,000 shares of the Company’s
Common Stock at an exercise price of $0.01 per share.
D.
Warrant
B
. Warrant B shall (i) be in the form of
Exhibit B
attached
hereto, (ii) have a seven (7) year term, (iii) be exercisable in full beginning
six (6) months from the date of issuance, and (iv) entitle the Purchaser and/or
its designees, as the case may be, to purchase an aggregate of 177,431 shares of
the Company’s Common Stock at an exercise price of $0.60 per
share..
SECTION
II
REPRESENTATIONS,
WARRANTIES, COVENANTS
AND AGREEMENTS OF THE
COMPANY
Except as
disclosed in the Schedules attached hereto (“Schedules”) or as disclosed in, and
reasonably apparent from, any report, schedule, form or other document filed
with, or furnished to, the U.S. Securities and Exchange Commission (“SEC”) and
publicly available prior to the date of this Agreement, the Company represents
and warrants to, and covenants and agrees with, the Purchaser, as of the date
hereof, that:
A.
Organization; Good
Standing
. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to own its properties and to conduct the
business in which it is now engaged.
B.
Authority
. Except
as set forth on Schedule IIB, the Company has the full corporate power,
authority and legal right to execute and deliver this Agreement and to perform
all of its obligations and covenants hereunder, and no consent or approval of
any other person or governmental authority is required therefore. The
execution and delivery of this Agreement by the Company, the performance by the
Company of its obligations and covenants hereunder and the consummation by the
Company of the transactions contemplated hereby have been duly authorized by all
necessary corporate action. This Agreement constitutes a valid and
legally binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or other similar laws affecting the enforceability of
creditors' rights in general or by general principles of equity.
C.
No Legal Bar;
Conflicts
. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
violates any provision of the Certificate of Incorporation, as amended, or
By-Laws of the Company or any law, statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts with or
results in any breach of any of the terms of or constitutes a default under or
results in the termination of or the creation of any lien pursuant to the terms
of any contract or agreement to which the Company is a party or by which the
Company or any of its assets is bound.
D.
Non-Assessable
Shares
. The Securities being issued hereunder, subject to the
Company’s receipt of stockholder approval for an increase in the number of its
authorized shares, will be duly authorized and, the Shares, when issued to the
Purchaser for the consideration herein provided, and the shares of Common Stock
issued upon the proper exercise of the Warrants, will be validly issued, fully
paid and non-assessable.
E.
SEC Documents; Financial
Statements
. During the two years prior to the date hereof, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934 (the “1934 Act”) (all of the
foregoing filed prior to the date
hereof or
prior to the Closing Date, and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference therein
being hereinafter referred to as the "SEC Documents"). The Company
has made available to the Purchaser or their respective representatives true,
correct and complete copies of the SEC Documents not available on the EDGAR
system. As of their respective dates, the SEC Documents complied in
all material respects with the requirements of the 1934 Act and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. As of their respective dates, the financial statements of
the Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except (i) as may
be otherwise indicated in such financial statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the
Company to the Purchaser which is not included in the SEC Documents, including,
without limitation, information provided to any Purchaser by the Company in
anticipation of this transaction, contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstance under which they are or
were made, not misleading.
F.
Absence of Certain
Changes
. Except in the ordinary course of business, since July
28, 2009, there has been no material adverse change and no material adverse
development in the business, properties, operations, condition (financial or
otherwise), results of operations or prospects of the Company or its
subsidiaries. Since July 28, 2009, the Company has not (i) declared
or paid any dividends, (ii) sold any assets, individually or in the aggregate,
in excess of $500,000 outside of the ordinary course of business or (iii) had
capital expenditures, individually or in the aggregate, in excess of
$500,000. The Company has not taken any steps to seek protection
pursuant to any bankruptcy law nor does the Company have any knowledge or reason
to believe that its creditors intend to initiate involuntary bankruptcy
proceedings or any actual knowledge of any fact which would reasonably lead a
creditor to do so.
G.
No Undisclosed Events,
Liabilities, Developments or Circumstances
. Except as set
forth on Schedule IIG, no event, liability, development or circumstance has
occurred or exists, or is contemplated to occur, with respect to the Company or
its subsidiaries or their respective business, properties, prospects, operations
or financial condition, that would be required to be disclosed by the Company
under applicable securities laws on a registration statement on Form S-1 filed
with the SEC relating to an issuance and sale by the Company of its Common Stock
and which has not been publicly announced.
H.
Foreign Corrupt
Practices
. Neither the Company, nor any of its subsidiaries,
nor any director, officer, agent, employee or other person acting on behalf of
the Company or any of
its
subsidiaries has, in the course of its actions for, or on behalf of, the Company
(i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expenses relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv)
made any unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or
employee.
I.
Sarbanes-Oxley
Act
. The Company is in compliance with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date
hereof, and any and all applicable rules and regulations promulgated by the SEC
thereunder that are effective as of the date hereof, except where such
noncompliance would not have, individually or in the aggregate, a material
adverse effect.
J.
Intellectual Property
Rights
. The Company and its subsidiaries own or possess
adequate rights or licenses to use all trademarks, trade names, service marks,
service mark registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and
other intellectual property rights ("Intellectual Property Rights") necessary to
conduct their respective businesses as now conducted. None of the
Company's Intellectual Property Rights have expired or terminated, or are
expected to expire or terminate within three years from the date of this
Agreement, except for rights which are not necessary to conduct its business as
now conducted. The Company does not have any knowledge of any
infringement by the Company or its subsidiaries of Intellectual Property Rights
of others. There is no claim, action or proceeding being made or
brought, or to the knowledge of the Company, being threatened, against the
Company or any of its subsidiaries regarding its Intellectual Property
Rights. The Company is unaware of any facts or circumstances which
might give rise to any of the foregoing infringements or claims, actions or
proceedings. The Company and its subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of
their Intellectual Property Rights.
SECTION
III
REPRESENTATIONS,
WARRANTIES, COVENANTS
AND AGREEMENTS OF THE
PURCHASER
The
Purchaser represents and warrants to, and covenants and agrees with, the
Company, as of the date hereof, that:
A.
Organization
. The
Purchaser is, and as of the Closing will be, duly organized, validly existing
and in good standing under the laws of its jurisdiction of
organization.
B.
Authorization
. The
Purchaser has, and as of the Closing will have, all requisite power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
action on the part of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser and constitutes its legal, valid and
binding obligation, enforceable against the Purchaser in accordance with its
terms, except as the enforceability
thereof
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforceability of creditors' rights in general or by general principles of
equity.
C.
No Legal Bar;
Conflicts
. Neither the execution and delivery of this
Agreement, nor the consummation by the Purchaser of the transactions
contemplated hereby, violates any law, statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency applicable to the
Purchaser, or violates, or conflicts with, any contract, commitment, agreement,
understanding or arrangement of any kind to which the Purchaser is a party or by
which the Purchaser is bound.
D.
No
Litigation
. No action, suit or proceeding against the
Purchaser relating to the consummation of any of the transactions contemplated
by this Agreement nor any governmental action against the Purchaser seeking to
delay or enjoin any such transactions is pending or, to the Purchaser's
knowledge, threatened.
E.
Investment
Intent
. The Purchaser: (i) is an accredited investor within
the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the
"Act"); (ii) is aware of the limits on resale imposed by virtue of the nature of
the transactions contemplated by this Agreement, specifically the restrictions
imposed by Rule 144 of the Act, and is aware that the certificates representing
the Purchaser's respective ownership of the Securities will bear related
restrictive legends; and (iii) except as otherwise set forth herein, is
acquiring the shares of the Company hereunder without registration under the Act
in reliance on the exemption from registration contained in Section 4(2) of the
Act and/or Rule 506 promulgated pursuant to Regulation D of the Act, for
investment for its own account, and not with a view toward, or for sale in
connection with, any distribution thereof, nor with any present intention of
distributing or selling such shares. The information contained in the
Accredited Investor Questionnaire in the form of
Exhibit C
attached
hereto and delivered by the Purchaser in connection with this Agreement is true
and complete in all respects. The Purchaser has been given the
opportunity to ask questions of, and receive answers from, the officers of the
Company regarding the Company, its current and proposed business operations and
the Securities, and the officers of the Company have made available to the
Purchaser all documents and information that the Purchaser has requested
relating to an investment in the Company. The Purchaser has been
given the opportunity to retain competent legal counsel in connection with the
purchase of the Securities and acknowledges that the Company has relied upon the
Purchaser's representations in this Section 3 in offering and selling the
Securities to the Purchaser.
G.
Economic Risk; Restricted
Securities
. The Purchaser recognizes that the investment in
the Securities involves a number of significant risks. The foregoing,
however, does not limit or modify the representations, warranties and agreements
of the Company in Section 2 of this Agreement or the right of the Purchaser to
rely thereon. The Purchaser is able to bear the economic risks of an
investment in the Securities for an indefinite period of time, has no need for
liquidity in such investment and, at the present time, can afford a complete
loss of such investment.
H.
Access to
Information
.
(i) The
Purchaser has had access to all reports required to be filed by the Company (the
“
SEC Reports
”)
under the 1934 Act.
(ii) The
Purchaser represents that it has had the opportunity to ask questions of, and
receive answers from, the Company regarding the foregoing
documents.
I.
Suitability
. The
Purchaser has carefully considered, and has, to the extent the Purchaser deems
it necessary, discussed with the Purchaser's own professional legal, tax and
financial advisers the suitability of an investment in the Securities for the
Purchaser's particular tax and financial situation, and the Purchaser has
determined that the Securities is a suitable investment.
J.
Legend
. The
Purchaser acknowledges that the certificates evidencing the Securities will bear
the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER SUCH ACT OR AN OPINION OF COUNSEL TO THE ISSUER THAT REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
The
Company acknowledges and agrees that Purchaser may from time to time, after the
Closing Date (as defined below), pledge pursuant to a bona fide margin agreement
with a registered broker-dealer, or grant a security interest in some or all of
the Securities to a financial institution that is an “accredited investor” as
defined in Rule 501(a) under the Act and who agrees in writing to be bound by
the provisions of this Agreement and, if required under the terms of such
arrangement, such Purchaser may transfer pledged or secured Securities to the
pledgees or secured parties. In addition, the Company acknowledges and agrees
that Purchaser may from time to time assign and transfer certain Warrants to
members of Purchaser’s senior management, provided that each such assignee is an
“accredited investor” as defined in Rule 501(a) under the Act and agrees in
writing to be bound by the provisions of this Agreement, Warrant A and/or
Warrant B, as the case may be. Any such assignment, pledge or transfer would not
be subject to approval of the Company and no legal opinion of legal counsel of
the assignee, pledgee, secured party or pledgor shall be required in connection
therewith, provided that any such transfer would comply with applicable federal
and state securities laws. Further, no notice shall be required of
such pledge. At the appropriate Purchaser’s expense, the Company will
execute and deliver such reasonable documentation as an assignee, pledgee or
secured party of Securities may reasonably request in connection with an
assignment, pledge or transfer of the Securities.
Certificates
evidencing the Securities shall not be required to contain such legend or any
other legend (i) following any sale of such Securities pursuant to Rule 144,
(ii) if
such
Securities are eligible for sale under Rule 144, or (iii) such legend is not
required under applicable requirements of the Act (including judicial
interpretations and pronouncements issued by the staff of the SEC), in each such
case (i) through (iii) to the extent reasonably determined by the Company’s
legal counsel. At such time and to the extent a legend is no longer
required for the Securities, the Company will use its best efforts to no later
than five (5) trading days following the delivery by a Purchaser to the Company
or the Company’s transfer agent of a legended certificate representing such
Securities (together with such accompanying documentation or representations as
reasonably required by counsel to the Company) (such fifth trading day, the
“Legend Removal Date”), deliver or cause to be delivered a certificate
representing such Securities that is free from the foregoing legend or any other
legend.
In
addition to a Purchaser’s other available remedies, the Company shall pay to a
Purchaser, in cash, as partial liquidated damages and not as a penalty, for each
$1,000 of Securities (based on the VWAP of the Common Stock on the date such
Securities are submitted to the Company’s transfer agent) delivered for removal
of the restrictive legend and subject to this section, $10 per trading day
(increasing to $20 per trading day five (5) trading days after such damages have
begun to accrue) for each trading day after the second trading day following the
Legend Removal Date until such certificate is delivered without a
legend. Nothing herein shall limit such Purchaser’s right to pursue
actual damages for the Company’s failure to deliver certificates representing
any Securities as required, and such Purchaser shall have the right to pursue
all remedies available to it at law or in equity including, without limitation,
a decree of specific performance and/or injunctive
relief. Notwithstanding anything herein to the contrary, in no event
will the Company be obligated to make payments to any Purchaser under this
section in excess of 5% of the aggregate amount invested by such
Purchaser.
The
Purchaser agrees that the removal of the restrictive legend from certificates
representing Securities as set forth in this Section is predicated upon the
Company’s reliance that the Purchaser will sell any Securities pursuant to
either the registration requirements of the Act, including any applicable
prospectus delivery requirements, or an exemption therefrom, and that if
Securities are sold pursuant to a Registration Statement, they will be sold in
compliance with the plan of distribution set forth therein.
K.
Registration of the
Securities.
The
Securities have not been and are not being registered under the
Act
or any state
securities laws, and may not be offered for sale, sold, assigned or
transferred. The Company and the Purchaser agree to
rely on Rule 144 of the
Securities Act, when applicable, in the event a Purchaser desires to undertake
any resale of any of the Securities.
SECTION
IV
THE CLOSING AND CONDITIONS
TO CLOSING
A.
Time and Place of the
Closing
. The closing shall be held at the offices of Morgan,
Lewis & Bockius, 502 Carnegie Center, Princeton, New Jersey 08540 as soon a
practicable following the satisfaction of the Company of all of the conditions
to closing, as set forth below,
(the
"Closing Date"), or such other time and place as the Company and the Purchaser
may mutually agree.
(i)
Delivery by the
Company
. Delivery of the Securities shall be made by the
Company, or by its transfer agent, as applicable, to the Purchaser as soon as
reasonably practicable after the Closing Date by delivering certificates
representing their respective portion of Securities as set forth on the
signature pages attached hereto, each such certificate to be accompanied by any
requisite documentary or transfer tax stamps.
(ii)
Other Conditions to
Closing
. As of the Closing Date
(a)
all
requisite action by the Company's Board of Directors shall have been taken
pursuant to the By-Laws of the Company;
(b)
The
representations and warranties of the Company set forth herein shall be true and
correct; and
(c)
the Company
shall have obtained the requisite stockholder vote necessary to legally
consummate the transactions contemplated hereby. Should this
condition to closing no longer be legally necessary, then the parties can
mutually agree to waive this condition to closing.
In the event the Company is unable to
obtain, if necessary, the requisite stockholder vote necessary to legally
consummate the transactions contemplated hereby (the "Stockholder Approval”) by
December 31, 2009, then the obligations of the Purchaser and the Company to each
other pursuant to this Agreement shall terminate. In the event
that Stockholder Approval is not obtained by the Company by December 31, 2009,
then the indebtedness shall be reinstated in full and become due and owing to
the Purchaser on December 31, 2009, with interest thereon at the rate otherwise
due under the documents of indebtedness between the Purchaser and the
Company.
SECTION
V
MISCELLANEOUS
A.
Entire
Agreement
. This Agreement contains the entire agreement
between the parties hereto with respect to the transactions contemplated hereby,
and no modification hereof shall be effective unless in writing and signed by
the party against which it is sought to be enforced.
B.
Invalidity,
Etc
. If any provision of this Agreement, or the application of
any such provision to any person or circumstance, shall be held invalid by a
court of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
C.
Headings
. The
headings of this Agreement are for convenience of reference only and are not
part of the substance of this Agreement.
D.
Binding
Effect
. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
E.
Governing
Law
. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware
applicable in the case
of agreements made and to be performed entirely within such State, without
regard to principles of conflicts of law, and the parties hereto hereby submit
to the exclusive jurisdiction of the state and federal courts located in the
State of Delaware.
F.
Counterparts
. This
Agreement may be executed in one or more identical counterparts, each of which
shall be deemed an original but all of which together will constitute one and
the same instrument.
* * * * *
*
IN WITNESS WHEREOF
, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
COMPANY:
SENESCO
TECHNOLOGIES, INC.
Name:
Bruce C. Galton
Title:
President and Chief Executive Officer
PURCHASER:
CATO
HOLDING COMPANY
By:
/s/ Shawn K. Singh, JD
Name:
Shawn K. Singh, JD
Title:
Managing Principal
Address:
Telecopy:
(a)
|
Investment
Amount: Purchaser’s cancellation of $175,000 of the Company’s
indebtedness to Purchaser
|
(b)
|
Number
of shares of Common Stock: 194,444
shares
|
(c)
|
Warrants
to purchase shares of Common Stock:
|
Warrant
A: 175,000 warrant shares
Warrant
B: 177,431 warrant shares
Exhibit
A
Form
of Warrant
Exhibit
B
Form
of Warrant
Exhibit
C
Senesco
Technologies, Inc.
Confidential
Purchaser Questionnaire
Before
any sale of securities in the above-captioned Company can be made to you, this
Questionnaire must be completed and returned to Joel Brooks. Defined
terms herein shall have the same meaning as set forth in the underlying
Securities Purchase Agreement.
1. Please
check one of the following that accurately describes your status as either an
accredited investor (Item 1, A through H) or a nonaccredited investor (Item 2)
at the time of your purchase of the securities. Only accredited
investors may participate in this offering.
(1) Purchaser
is an "accredited investor" as that term is defined in Regulation D adopted
pursuant to the Securities Act of 1933, as amended (the "Securities Act") (
i.e.
qualifying for one
or more of the categories set forth below):
|
______
|
(A)
|
an
individual whose individual net worth, or joint net worth with that
individual's spouse, exceeds $1,000,000;
|
|
|
|
|
|
______
|
(B)
|
an
individual who had an individual income in excess of $200,000 in each of
the last two calendar years or joint income with that person's spouse in
excess of $300,000 in each of those years and who reasonably expects to
reach the same income level in the current calendar year. For
purposes of this offering, individual income shall equal adjusted gross
income, as reported in the investor's federal income tax return, less any
income attributable to a spouse or to property owned by the spouse, and as
may be further adjusted in accordance with the rules, regulations, and
releases of the Securities and Exchange Commission;
|
|
|
|
|
|
______
|
(C)
|
a
bank as defined in Section 3(a)(2) of the Securities Act, or a savings and
loan association or other institution as defined in Section 3(a)(5)(A) of
the Securities Act, whether acting in its individual or fiduciary
capacity; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment
Company Act of 1940 (the "1940 Act") or a business development company as
defined in Section 2(a)(48) of the 1940 Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; or an employee
benefit plan within the meaning of Title I of the Employee Retirement
Income Security Act of 1974 ("ERISA"), if the investment decision is made
by a plan fiduciary, as defined in Section 3(21) of ERISA, which is either
a bank, savings and loan association, insurance company or registered
investment adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or if a self-directed plan, with investment decisions
made solely by persons that are accredited
investors;
|
|
______
|
(D)
|
a
private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of
1940;
|
|
______
|
(E)
|
an
organization described in Section 501(c)(3) of the Internal Revenue Code,
a corporation, a Massachusetts or similar business trust, or a
partnership, not formed for the specific purpose of acquiring the
Securities;
|
|
______
|
(F)
|
an
entity in which all of the equity owners are accredited investors as set
forth above;
|
|
______
|
(G)
|
a
trust (other than a Massachusetts or similar business trust) with total
assets in excess of $5 million, not formed for the specific purpose of
investing in the Company, whose purchase is directed by a person who has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the prospective investment;
or
|
|
______
|
(H)
|
an
individual who is a director or executive officer of the
Company.
|
IF
YOU ARE NOT AN ACCREDITED INVESTOR AS DESCRIBED ABOVE, PLEASE MARK
HERE:
______ (2) Purchaser
is not an accredited investor as set forth in the criteria in (1) above, but is
otherwise equally qualified, sophisticated and able to make the investment
contemplated hereby.
2. Purchaser
has reviewed such Purchaser's financial condition and commitments, alone and
together with Purchaser's advisors, and, based on such review, Purchaser is
satisfied that (a) Purchaser has adequate means of providing for
Purchaser's financial needs and possible contingencies and has assets or sources
of income which, taken together, are more than sufficient so that Purchaser
could bear the risk of loss of the entire investment in the Stock, (b) Purchaser
has no present or contemplated future need to dispose of all or any portion of
the Securities to satisfy any existing or contemplated undertaking, need or
indebtedness, and (c) Purchaser is capable of bearing the economic risk of
an investment in the Securities for the indefinite future.
3. Purchaser
understands that the Securities that may be issued to Purchaser will not have
been registered under the Securities Act or any state securities law by reason
of specific exemptions under the provisions thereof which depend in part upon
the other representations and warranties made by Purchaser in this letter,
including Purchaser's state of residency indicated on the signature page to this
letter. Purchaser understands that the Company is relying upon Purchaser's
representations and warranties contained in this letter for the purpose of
determining whether this transaction meets the requirements for such exemptions.
Purchaser will furnish any
additional
information requested by the Company to assure the compliance of this
transaction with applicable federal and state securities laws.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
SIGNATURE PAGE TO ACCREDITED
INVESTOR QUESTIONNAIRE
|
PURCHASER:
____________________________________
Name
(print):_________________________
State
of Residency: ___________________
Mailing
Address:
____________________________________
____________________________________
____________________________________
|
Company
Contact:
|
Investor Relations
Contact:
|
Media Relations
Contact:
|
Senesco Technologies, Inc.
|
FD
|
FD
|
Joel Brooks
|
Brian Ritchie
|
Irma Gomez-Dib
|
Chief Financial Officer
|
brian.ritchie@fd.com
|
irma.gomez-dib@fd.com
|
jbrooks@senesco.com
|
(212) 850-5600
|
(212) 850-5600
|
(732) 296-8400
|
|
|
SENESCO
TECHNOLOGIES ENTERS INTO AGREEMENTS FOR ADDITIONAL $700,000 IN
FINANCING
NEW BRUNSWICK, N.J. (July
30
, 2009)—Senesco
Technologies, Inc.
(“Senesco” or the “Company”) (NYSE Amex: SNT)
today announced that, on July 29, 2009, the Company entered into definitive
purchase agreements with certain members of Senesco’s Board of Directors and
certain accredited investors, including Cato Holding Company, which is the
venture capital affiliate of Cato Research Ltd., a global contract research and
development organization currently assisting Senesco with its SNS-101
development program with the emphasis on initiating a Phase I clinical trial for
multiple myeloma.
Pursuant
to the respective purchase agreements, Senesco will issue and sell (i) up to
783,332 shares of its common stock (the “Shares”) at a price of $0.90 per share,
(ii) warrants to purchase an aggregate of up to 705,000 shares of common stock,
which warrants are exercisable immediately at an exercise price of $0.01 per
share (the “Series A Warrants”) and (iii) warrants to purchase an aggregate of
up to 714,794 shares of common stock, which warrants are exercisable 6 months
from the date of issuance at an exercise price of $0.60 per share (the “Series B
Warrants”). In connection with the private placement, the Company
anticipates that it will receive aggregate proceeds, excluding costs and
expenses, in the amount of $530,000. In addition, Cato Holding
Company has agreed to cancel $175,000 of the Company’s indebtedness to Cato
Research, Ltd., bringing the proceeds of the offering, excluding costs and
expenses, to approximately $705,000.
The
closing of the foregoing transactions is contingent upon Senesco receiving
stockholder approval for certain aspects of the transactions as well as other
customary closing conditions. There are no registration rights
associated with the securities to be issued and sold in the private placement
and no placement agent was used in connection with the private
placement.
Senesco
primarily intends to utilize the net proceeds of these transactions to further
advance its multiple myeloma research and development program with the goal of
initiating a Phase I clinical trial.
“We are
excited by the potential of SNS-101 as a novel treatment alternative for
multiple myeloma,” said Allen Cato, MD, PhD, CEO of Cato Research. “Our recent
investment reflects our confidence in the Company’s regulatory and development
plans. We look forward to significant progress in the months
ahead.”
“We are
gratified by the confidence expressed in us by our CRO, the Board members and
accredited investors involved in this transaction,” commented Joel Brooks, Chief
Financial Officer. “This funding, along with the $1 million in
financing secured several weeks ago, enables us to continue moving forward
efficiently with our goal of filing an Investigational New Drug Application and
initiating a Phase I clinical trial for SNS-01.”
Important
Information
This
press release shall not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sale of these securities in any state in
which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state. The shares
of common stock have been sold pursuant to an exemption from state and federal
securities laws.
In
connection with the private placement, the Company will prepare a proxy
statement for the Company’s stockholders to be filed with the Securities and
Exchange Commission (the “SEC”). The proxy statement will contain information
about the Company, the private placement and related matters. STOCKHOLDERS
ARE URGED TO READ THE PROXY STATEMENT CAREFULLY WHEN IT IS AVAILABLE, AS IT WILL
CONTAIN IMPORTANT INFORMATION THAT STOCKHOLDERS SHOULD CONSIDER BEFORE
MAKING A DECISION ABOUT APPROVING AN AMENDMENT TO THE COMPANY’S CERTIFICATE OF
INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES.
In
addition to receiving the proxy statement from the Company by mail, shareholders
will be able to obtain the proxy statement, as well as other filings containing
information about the Company, without charge, from the SEC’s website (
http://www.sec.gov
)
or, without charge, from the Company’s website at
www.senesco.com
or
by directing such request to Senesco Technologies, Inc. 303 George
St., Suite 420, New Brunswick, New Jersey 08901 Attention: Joel
Brooks.
The
Company and its directors and executive officers and other members of management
and employees may be deemed to be participants in the solicitation of proxies.
Information concerning the Company and its directors and executive
officers is set forth in the Company’s proxy statement and Annual Report on Form
10-K previously filed with the SEC.
About
Senesco Technologies, Inc.
Senesco
Technologies, Inc. is a U.S. biotechnology company, headquartered in New
Brunswick, NJ. Senesco has initiated preclinical research to trigger or delay
cell death in mammals (apoptosis) to determine if the technology is applicable
in human medicine. Accelerating apoptosis may have applications to development
of cancer treatments. Delaying apoptosis may have applications to certain
diseases inflammatory and ischemic diseases. Senesco takes its name from the
scientific term for the aging of plant cells: senescence. Delaying cell
breakdown in plants extends freshness after harvesting, while increasing crop
yields, plant size and resistance to environmental stress. The Company
believes that its technology can be used to develop superior strains of crops
without any modification other than delaying natural plant senescence.
Senesco has partnered with leading-edge companies engaged in agricultural
biotechnology and earns research and development fees for applying its
gene-regulating platform technology to enhance its partners’
products.
Certain
statements included in this press release are forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995.
Actual results could differ materially from such statements expressed or implied
herein as a result of a variety of factors, including, but not limited to: the
Company’s ability to consummate this financing as well as additional financings;
the development of the Company’s gene technology; the approval of the Company’s
patent applications; the successful implementation of the Company’s research and
development programs and joint ventures; the success of the Company’s license
agreements; the acceptance by the market of the Company’s products; success of
the Company’s preliminary studies and preclinical research; competition and the
timing of projects and trends in future operating performance, as well as other
factors expressed from time to time in the Company’s periodic filings with the
SEC. As a result, this press release should be read in conjunction with the
Company’s periodic filings with the SEC. The forward-looking statements
contained herein are made only as of the date of this press release, and the
Company undertakes no obligation to publicly update such forward-looking
statements to reflect subsequent events or circumstances.
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