EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
November 30, 2001 by and between Senesco Technologies, Inc., a Delaware
corporation (the "Company") and Stanford Venture Capital Holdings, Inc. (the
"Purchaser").
RECITALS
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WHEREAS, it is a condition precedent to the obligations of the
Purchaser under that certain Securities Purchase Agreement made by and between
the Purchaser and the Company, dated as of the date hereof (the "Securities
Purchase Agreement"), that the Company grant registration rights for the shares
of common stock of the Company, $0.01 par value per share (the "Common Stock")
and the Warrant Shares (as defined below), in connection with resales by the
Purchaser of the Warrant Shares and Common Stock; and
WHEREAS, the Company and the Purchaser now desire to enter into this
Agreement in order to facilitate such resales.
AGREEMENT
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The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the
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following meanings.
"Board" means the Board of Directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which banks in New Jersey are authorized by law to close.
"Common Stock" has the meaning given to it in the recitals to this
Agreement.
"Closing Date" shall mean the Closing Date as defined in the
Securities Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" means Senesco Technologies, Inc., a Delaware corporation.
"Effective Time" means the date of effectiveness of any Registration
Statement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Xxxxxxxxxx Registration Rights Agreements" means those certain
registration rights agreements executed by the Company and certain investors in
which Xxxxxxxxxx & Co., Inc. acted as the placement agent.
"Holder" has the meaning given to it in Section 2.1(b) hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"Registration Statement" means a Registration Statement of the Company
relating to the registration for sale of Common Stock, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
"Restricted Securities" means any Securities until (i) a Registration
Statement covering such Securities has been declared effective by the Commission
and such Securities have been disposed of pursuant to such effective
Registration Statement, (ii) such Securities qualify to be sold under
circumstances in Rule 144(k) (or any similar provisions then in force), (iii)
such Securities are otherwise transferred, the Company has delivered a new
certificate or other evidence of ownership for such Securities not bearing a
legend restricting further transfer and such Securities may be resold without
registration under the Securities Act, or (iv) such Securities shall have ceased
to be outstanding.
"Securities" means the shares of Common Stock held by the Purchaser on
the date hereof, or issued upon the proper exercise of the Warrants issued to
the Purchaser on the date hereof, and any securities issued in respect of such
shares upon any stock split, stock dividend, recapitalization, merger,
consolidation, reorganization or similar event.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Purchase Agreement" has the meaning given to it in the
recitals to this Agreement.
"Shelf Registration Statement" means the registration statement of the
Company relating to the shelf registration for resale of Warrant Shares (as
defined below) contemplated by Section 2.2 herein, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
"Warrants" shall have the meaning set forth in the Securities Purchase
Agreement.
"Warrant Shares" means the shares of Common Stock issued upon the
proper exercise of the Warrants issued to the Purchaser on the date hereof, and
any securities issued in respect of such shares upon any stock split, stock
dividend, recapitalization, merger, consolidation, reorganization or similar
event.
As used in this Agreement, words in the singular include the plural,
and in the plural include the singular.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Securities Subject to this Agreement.
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(a) The Securities entitled to the benefits of this Agreement are the
Restricted Securities, but only for so long as they remain Restricted
Securities.
(b) A Person is deemed to be a holder of Restricted Securities (each,
a "Holder") whenever such Person is the registered holder of such Restricted
Securities on the Company's books and records.
2.2 Shelf Registration.
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(a) The Company shall:
(i) on or before June 30, 2002, cause to be filed with the
Commission a Shelf Registration Statement on Form S-3 (or, if such form is
superseded by a successor form, such successor form); or if Form S-3 is not
available with respect to the registration of the Warrant Shares, any form which
the Company is permitted to use under the Securities Act, which Shelf
Registration Statement shall provide for resales of all Warrant Shares, the
Holders of which shall have provided to the Company the information required
pursuant to Section 2.2(c) herein; and
(ii) use its best reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission within a
reasonable time after June 30, 2002.
(b) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 2.4 below and shall effect such
registration to permit the sale of the Warrant Shares being sold in accordance
with the intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 2.2.(c)). Subject to
Section 2.2(d), the Company shall use its best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 2.2(d) to the extent necessary to ensure
that it is available for resales of Warrant Shares by the Holders of Warrant
Shares, and to ensure that it conforms with the requirements of this Agreement,
the Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of one (1) year from the Effective
Time or such longer period as required by Section 2.2(d) or such shorter period
that will terminate when all the Warrant Shares covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or otherwise cease to be Warrant Shares. Upon the occurrence of any
event that would cause any Shelf Registration Statement or the Prospectus
contained therein (i) to contain a material misstatement or omission or (ii) not
to be effective and usable for sale or resale of Warrant Shares during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Shelf Registration Statement or the related
Prospectus or any document incorporated therein by reference, in the case of
clause (i),
correcting any such misstatement or omission, and, in the case of either clause
(i) or (ii), use its reasonable efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to become
usable for its intended purpose(s) as soon as practicable thereafter.
(c) No Holder of Warrant Shares may include any of its Warrant Shares
in the Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within ten (10) Business Days
after receipt of a written request therefor, such information specified in Item
507 of Regulation S-K under the Securities Act or such other information as the
Company may reasonably request for use in connection with the Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein and in any
application to the NASD. Each Holder as to which the Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
(d) Notwithstanding anything to the contrary contained herein, if (x)
the Board determines in good faith that the registration and distribution of
Warrant Shares (or the use of such Shelf Registration Statement or the
Prospectus contained therein) would interfere with any proposed or pending
material corporate transaction involving the Company or any of its subsidiaries
or would require premature disclosure thereof or would require the Company to
disclose information that the Company has not otherwise made public and that the
Company reasonably determines is in the best interests of the Company not to
disclose at such time, and (y) the Company notifies the Holders in writing not
later than three (3) days following such determination (such notice a "Blackout
Notice"), the Company may, with prior consent of the Holders, which shall be in
good faith and which shall not be unreasonably withheld, (A) postpone the filing
of such Shelf Registration Statement or (B) allow such Shelf Registration
Statement to fail to be effective and usable or elect that such Shelf
Registration Statement not be usable for a reasonable period of time, but not in
excess of 30 days (a "Blackout Period"); provided, however, that the Blackout
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Periods shall not extend beyond August 15, 2002.
2.3 Piggyback Registration.
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(a) At any time that the Company proposes to file a Registration
Statement within three (3) years from the date hereof (other than a Registration
Statement filed pursuant to Section 2.2 above), the Company shall give the
Holders written notice of its intention to do so and of the intended method of
sale, including the total number of shares proposed to be the subject of such
registration (the "Registration Notice") within a reasonable time prior to the
anticipated filing date of the Registration Statement effecting such
registration but in any event at least thirty (30) days prior to the filing of
such Registration Statement. Each Holder may request inclusion of any Restricted
Securities in such Registration Statement by delivering to the Company, within
ten (10) Business Days after receipt of the Registration Notice, a written
notice (the "Piggyback Notice") stating the number of Restricted Securities
proposed to be included and that such shares are to be included in any
underwriting only on the same terms and conditions as the shares of Common Stock
otherwise being sold through underwriters under such Registration Statement. The
Company shall use its best efforts to cause all Restricted Securities specified
in the Piggyback Notice to be included in the Registration Statement and any
related offering, all to the
extent requisite to permit the sale by the Holders of such Restricted Securities
in accordance with the method of sale applicable to the other shares of Common
Stock included in such Registration Statement; provided, however, that if, at
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any time after giving written notice of its intention to register any securities
and prior to the effective date of the Registration Statement filed in
connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each Holder of
Restricted Securities and, thereupon:
(i) in the case of a determination not to register, shall be
relieved of its obligation to register any Restricted Securities in
connection with such cancelled registration (but not from its
obligation to pay the Registration Expenses, as defined in Section 2.7,
in connection therewith), and
(ii) in the case of a delay in registering, shall be permitted
to delay registering any Restricted Securities for the same period as
the delay in registering such other securities.
(b) The Company's obligation to include Restricted Securities in a
Registration Statement pursuant to Section 2.3(a) shall be subject to the
following limitations:
(i) The Company shall not be obligated to include any Restricted
Securities in a Registration Statement filed on Form X-0, Xxxx X-0 or
such other similar successor forms then in effect under the Securities
Act.
(ii) If a Registration Statement involves an underwritten
offering and the managing underwriter advises the Company in writing
that, in its opinion, the number of the Restricted Securities requested
to be included in such Registration Statement exceeds the number which
can be sold in such offering without adversely affecting the offering,
the Company will not include any Restricted Securities in such
Registration Statement, or if some of the requested Restricted
Securities can be included in such Registration Statement, the Company
will only include such number of Restricted Securities which the
Company is so advised can be sold in such offering without adversely
affecting the offering, determined as follows:
(A) first, all securities proposed by the Company to be
sold for its own account shall be included in the Registration
Statement;
(B) second, any securities proposed to be sold pursuant to
the Xxxxxxxxxx Registration Rights Agreements; and
(C) third, any Restricted Securities requested to be
included in such registration on a pari passu basis with any
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other securities of the Company which have been afforded
registration rights by the Company prior to, or as of the date
hereof.
(c) No Holder of Restricted Securities may include any of its
Restricted Securities in the Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to the Company in writing, within ten
(10) Business Days after receipt of a written request therefor,
such information specified in Item 507 of Regulation S-K under the Securities
Act or such other information as the Company may reasonably request for use in
connection with the Registration Statement or Prospectus or preliminary
Prospectus included therein and in any application to the NASD. Each Holder as
to which the Registration Statement is being effected agrees to furnish promptly
to the Company all information required to be disclosed in order to make all
information previously furnished to the Company by such Holder not materially
misleading.
2.4 Registration Procedures. In connection with any Registration
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Statement and any Prospectus required by this Agreement to permit the sale or
resale of Restricted Securities, the Company shall:
(a) prepare and file with the Commission such amendments and
post-effective amendments to such Registration Statement as may be necessary to
keep such Registration Statement effective until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such Registration
Statement; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to comply fully with the applicable provisions of Rules 424
and 430A, as applicable, under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement or the
Prospectus;
(b) promptly (and in respect of events covered by clause (i) hereof,
on the same day as the Company shall receive notice of effectiveness) advise the
Holders covered by such Registration Statement and, if requested by such
Persons, confirm such advice in writing, (i) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and when the
same has become effective, (ii) of any request by the Commission for post-
effective amendments to such Registration Statement or post-effective amendments
to such Registration Statement or post-effective amendments or supplements to
the Prospectus or for additional information relating thereto, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of any
such Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, and (iv) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in any
such Registration Statement, the related Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in any such Registration
Statement or the related Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of such Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Restricted Securities under
state securities or Blue Sky laws, the Company shall use its reasonable efforts
to obtain the withdrawal or lifting of such order at the earliest possible time;
(c) promptly furnish to each Holder of Restricted Securities covered
by any Registration Statement, and each underwriter, if any, without charge, at
least one conformed copy of any Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents incorporated
by reference therein and all exhibits (including exhibits incorporated therein
by reference) and any related correspondence between the Company and its counsel
or accountants and the Commission or staff of the Commission and such other
documents as such Holder may reasonably request;
(d) deliver to each Holder covered by any Registration Statement, and
each underwriter, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Person reasonably may request;
(e) enter into such customary agreements and take all such other
reasonable action in connection therewith (including those reasonably requested
by the selling Holders or the underwriter(s), if any) required in order to
expedite or facilitate the disposition of such Restricted Securities pursuant to
such Registration Statement, including, but not limited to, dispositions
pursuant to an underwritten registration, and in such connection:
(i) make such representations and warranties to the selling
Holders and underwriter(s), if any, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings (whether
or not sales of securities pursuant to such Registration Statement are to be
made to an underwriter(s)) and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company (which counsel
and opinions, in form and substance, shall be reasonably satisfactory to the
selling Holders and the underwriter(s), if any, and their respective counsel)
addressed to each selling Holder and underwriter, if any, covering the matters
customarily covered in opinions requested in underwritten offerings (whether or
not sales of securities pursuant to such Registration Statement are to be made
to an underwriter(s)) and dated the date of effectiveness of any Registration
Statement (and, in the case of any underwritten sale of securities pursuant to
such Registration Statement, each closing date of sales to the underwriter(s)
pursuant thereto);
(iii) use reasonable efforts to obtain comfort letters dated
the date of effectiveness of any Registration Statement (and, in the case of any
underwritten sale of securities pursuant to such Registration Statement, each
closing date of sales to the underwriter(s), if any, pursuant thereto) from the
independent certified public accountants of the Company addressed to each
selling Holder and underwriter, if any, such letters to be in customary form and
covering matters of the type customarily covered in comfort letters in
connection with underwritten offerings (whether or not sales of securities
pursuant to such Registration Statement are to be made to an underwriter(s));
(iv) provide for the indemnification provisions and procedures
of Section 2.8 hereof with respect to selling Holders and the underwriter(s), if
any, and;
(v) deliver such documents and certificates as may be
reasonably requested by the selling Holders or the underwriter(s), if any, and
which are customarily delivered in underwritten offerings (whether of not sales
of securities pursuant to such Registration Statement are to be made to an
underwriter(s), with such documents and certificates to be dated the date of
effectiveness of any Registration Statement.
The actions required by clauses (i) through (v) above shall be done at
each closing under such underwriting or similar agreement, as and to the extent
required thereunder, and if at any time the representations and warranties of
the Company contemplated in clause (i) above cease to be true and correct, the
Company shall so advise the underwriter(s), if any, and each selling Holder
promptly, and, if requested by such Person, shall confirm such advice in
writing;
(f) prior to any public offering of Restricted Securities, cooperate
with the selling Holders, the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the Restricted
Securities under the securities or Blue Sky laws of such U.S. jurisdictions as
the selling Holders or underwriter(s), if any, may reasonably request in writing
by the time any Registration Statement is declared effective by the Commission,
and do any and all other acts or filings necessary or advisable to enable
disposition in such U.S. jurisdictions of the Restricted Securities covered by
any Registration Statement and to file such consents to service of process or
other documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required to
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register or qualify as a foreign corporation in any jurisdiction where it is not
then so qualified or as a dealer in securities in any jurisdiction where it
would not otherwise be required to register or qualify but for this Section 2.4,
or to take any action that would subject it to the general service of process in
suits or to general taxation, in any jurisdiction where it is not then so
subject;
(g) in connection with any sale of Restricted Securities that will
result in such securities no longer being Restricted Securities, cooperate with
the selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Restricted Securities to
be sold and not bearing any restrictive legends; and enable such Restricted
Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two (2) Business
Days prior to any sale of Restricted Securities made by such underwriters;
(h) use its reasonable efforts to cause the disposition of the
Restricted Securities covered by any Registration Statement to be registered
with or approved by such other U.S. governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Restricted Securities, subject to the
proviso contained in Section 2.4(f);
(i) if any fact or event contemplated by Section 2.4(b) shall exist
or have occurred, prepare a supplement or post-effective amendment to any
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the Purchaser of Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statement therein not misleading;
(j) cooperate and assist in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the rules and
regulations of the NASD, and use its reasonable efforts to cause any
Registration Statement to become effective and approved by such U.S.
governmental agencies or authorities as may be necessary to enable the Holders
selling Restricted Securities to consummate the disposition of such Restricted
Securities;
(k) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders with regard to such Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the requirements of Rule
158 (which need not be audited) for the twelve (12)- month period (i) commencing
at the end of any fiscal quarter in which Restricted Securities are sold to the
underwriter in a firm or best efforts underwritten offering or (ii) if not sold
to an underwriter in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of any
Registration Statement;
(l) provide a CUSIP number for all Restricted Securities not later than
the effective date of any Registration Statement;
(m) use its best efforts to list, not later than the effective date of
such Registration Statement, all Restricted Securities covered by such
Registration Statement on the NASD OTC Electronic Bulletin Board or any other
trading market on which any Common Stock of the Company are then admitted for
trading; and
(n) provide promptly to each Holder covered by any Registration
Statement upon request each document filed with the Commission pursuant to the
requirements of Section 12 and Section 14 of the Exchange Act.
Each Holder agrees by acquisition of a Restricted Security that, upon
receipt of any notice from the Company of the existence of any fact of the kind
described in Section 2.4(b)(iv), such Holder will forthwith discontinue
disposition of Restricted Securities pursuant to any Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 2.4(i), or until it is advised in writing, in
accordance with the notice provisions of Section 3.3 herein (the "Advice"), by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company all copies, other than permanent file copies, then in
such Holder's possession, of the Prospectus covering such Restricted Securities
that was current at the time of receipt of such notice.
2.5 Preparation; Reasonable Investigation. In connection with the
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preparation and filing of each Registration Statement under the Securities Act,
the Company will give the Holders of Restricted Securities registered under such
Registration Statement, their underwriter, if any, and their respective counsel
and accountants, the opportunity to participate in the preparation of such
Registration Statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them access to its books and records and such opportunities to discuss the
business, finances and accounts of the Company and its subsidiaries with its
officers, directors and the independent public accountants who have certified
its financial statements as shall be necessary, in the opinion of such Holders
and such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
2.6 Certain Rights of Holders. The Company will not file any
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Registration Statement under the Securities Act which refers to any Holder of
Restricted Securities by name or otherwise without the prior approval of such
Holder, which consent shall not be unreasonably withheld or delayed.
2.7 Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made with the NASD and reasonable counsel fees in connection therewith); (ii)
all reasonable fees and expenses of compliance with federal securities and state
Blue Sky or securities laws (including all reasonable fees and expenses of one
counsel to the underwriter(s) in any underwriting) in connection with compliance
with state Blue Sky or securities laws for all states in the United States;
(iii) all expenses of printing, messenger and delivery services and telephone
calls; (iv) all fees and disbursements of counsel for the Company; and (v) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance), but excluding from this paragraph,
fees and expenses of counsel to the underwriter(s), if any, unless otherwise set
forth herein.
(b) The Company will not be responsible for any underwriting
discounts, commissions or fees attributable to the sale of Restricted Securities
or any legal fees or disbursements (other than any such fees or disbursements
relating to Blue Sky compliance or otherwise as set forth under Section 2.7(a))
incurred by any underwriters in any underwritten offering if the underwriter
participates in such underwritten offering at the request of the Holders of
Restricted Securities, or any transfer taxes that may be imposed in connection
with a sale or transfer of Restricted Securities.
(c) The Company shall, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
2.8 Indemnification; Contribution.
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(a) The Company agrees to indemnify and hold harmless (i) each Holder
covered by any Registration Statement, (ii) each other Person who participates
as an underwriter in the offering or sale of such securities, (iii) each Person,
if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) any such
Holder or underwriter (any of the Persons referred to in this clause (iii) being
hereinafter referred to as a "controlling Person"), and (iv) the respective
officers, directors, partners, employees, representatives and agents of any such
Holder or underwriter or any controlling Person (any Person referred to in
clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an
"indemnified Person"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments or expenses, joint or
several (or actions or proceedings, whether commenced or threatened, in respect
thereof) (collectively, "Claims"), to which such indemnified Person may become
subject under either Section 15 of the Securities Act or Section 20 of the
Exchange Act or otherwise, insofar as such Claims arise out of or are based
upon, or are caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (or any
amendment or supplement thereto), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or a violation by the Company of the
Securities Act or any state securities law, or any rule or regulation
promulgated under the Securities Act or any state securities law, or any other
law applicable to the Company relating to any such registration or
qualification, except insofar as such losses, claims, damages, liabilities,
judgments or expenses of any such indemnified Person; (x) are caused by any such
untrue statement or omission or alleged untrue statement or omission that is
based upon information relating to such indemnified Person furnished in writing
to the Company by or on behalf of any of such indemnified Person expressly for
use therein; (y) with respect to the preliminary Prospectus, result from the
fact that such Holder sold Securities to a Person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus, as amended or supplemented, if the Company shall have previously
furnished copies thereof to such Holder in accordance with this Agreement and
said Prospectus, as amended or supplemented, would have corrected such untrue
statement or omission; or (z) as a result of the use by an indemnified Person of
any Prospectus when, upon receipt of a notice from the Company of the existence
of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person
or the related Holder was not permitted to do so. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
any indemnified Person and shall survive the transfer of such securities by such
Holder.
In case any action shall be brought or asserted against any of the
indemnified Persons with respect to which indemnity may be sought against the
Company, such indemnified Person shall promptly notify the Company and the
Company shall assume the defense thereof. Such indemnified Person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified Person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel, or (iii) the
named parties to any such action (including any implied parties) include both
the indemnified Person and the Company and the indemnified Person shall have
been advised in writing by its counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company (in which case the Company shall not have the right to
assume the defense of such action on behalf of the indemnified Person), it being
understood, however, that the Company shall not, in connection with such action
or similar or related actions or proceedings arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than
one separate firm of attorneys (in addition to any local counsel) at any time
for all the indemnified Persons, which firm shall be (x) designated by such
indemnified Persons; and (y) reasonably satisfactory to the Company. The Company
shall not be liable for any settlement of any such action or proceeding effected
without the Company's prior written consent, which consent shall not be withheld
unreasonably, and the Company agrees to indemnify and hold harmless any
indemnified Person from and against any loss, claim, damage, liability, judgment
or expense by reason of any settlement of any action effected with the written
consent of the Company. The Company shall not, without the prior written consent
of each indemnified Person, settle or compromise or consent to the entry of
judgment on or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any indemnified Person is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each indemnified Person from all liability
arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration
Statement agrees, severally and not jointly, to indemnify and hold harmless the
Company and its directors, officers and any Person controlling (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
the Company, and the respective officers, directors, partners, employees,
representatives and agents of each such Person, to the same extent as the
foregoing indemnity from the Company to each of the indemnified Persons, but
only (i) with respect to actions based on information relating to such Holder
furnished in writing by or on behalf of such Holder expressly for use in any
Registration Statement or Prospectus, and (ii) to the extent of the gross
proceeds, if any, received by such Holder from the sale or other disposition of
his or its Restricted Securities covered by such Registration Statement. In case
any action or proceeding shall be brought against the Company or its directors
or officers or any such controlling Person in respect of which indemnity may be
sought against a Holder of Restricted Securities covered by any Registration
Statement, such Holder shall have the rights and duties given the Company in
Section 2.8(a) (except that the Holder may but shall not be required to assume
the defense thereof), and the Company or its directors or officers or such
controlling Person shall have the rights and duties given to each Holder by
Section 2.8(a).
(c) If the indemnification provided for in this Section 2.8 is
unavailable to an indemnified party under Section 2.8(a) or (b) (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities, judgments or expenses referred to therein, then
each applicable indemnifying party (in the case of the Holders severally and not
jointly), in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities, judgments or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Holder on the other hand from sale of Restricted Securities, or
(ii) if such allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and such Holder in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities, judgments or expenses, as
well as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of such Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by such Holder and the parties
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid to a party as a result of
the losses, claims, damages, liabilities judgments and expenses referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of Section 2.8(a), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
The Company and each Holder of Restricted Securities covered by any
Registration Statement agree that it would not be just and equitable if
contribution pursuant to this Section 2.8(c) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 2.8(c), no Holder (and none of
its related indemnified Persons) shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the dollar amount of
proceeds received by such Holder upon the sale of the Restricted Securities
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of such untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution provisions contained in this Section 2.8
are in addition to any liability which the indemnifying Person may otherwise
have to the indemnified Persons referred to above.
2.9 Participation in Underwritten Registrations. No Holder may
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participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
2.10 Selection of Underwriters. The Holders of Restricted Securities
-------------------------
covered by any Registration Statement who desire to do so may sell such
Restricted Securities in an underwritten offering. In any such underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Company. Such
investment bankers and managers are referred to herein as the "underwriters."
ARTICLE 3
MISCELLANEOUS
3.1 Entire Agreement. This Agreement, together with the Securities
----------------
Purchase Agreement, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreement and
understandings, both oral and written, between the parties with respect to the
subject matter hereof.
3.2 Successors and Assigns and Heirs. This Agreement shall inure to
--------------------------------
the benefit of and be binding upon the successors and assigns and heirs of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders of Restricted Securities; provided,
--------
however, that this Agreement shall not inure to the benefit of or be binding
-------
upon a successor or assign of a Holder unless and to the extent such successor
or assign or heirs acquired Restricted Securities from such Holder at a time
when such Holder could not transfer such Restricted Securities pursuant to any
Registration Statement or pursuant to Rule 144(k) under the Securities Act as
contemplated by clause (ii) of the definition of Restricted Securities.
3.3. Notices. All notices and other communications given or made
-------
pursuant hereto or pursuant to any other agreement between the parties, unless
otherwise specified, shall be in writing and shall be deemed to have been duly
given or made if sent by telecopy (with confirmation in writing), delivered
personally or by overnight courier or sent by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the telecopy
number, if any, or address set forth below or at such other addresses as shall
be furnished by the parties by like notice. Notices sent by telecopier shall be
effective when receipt is acknowledged, notices delivered personally or by
overnight courier shall be effective upon receipt and notices sent by registered
or certified mail shall be effective three (3) days after mailing:
if to a Holder: to such Holder at the address set forth on
the records of the Company as the record
owners of the Common Stock
if to the Company: Senesco Technologies, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
President and Chief Executive Officer
with copies to: Xxxx and Xxxx LLP
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
3.4 Headings. The headings contained in this Agreement are for
--------
convenience only and shall not affect the meaning or interpretation of this
Agreement.
3.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
3.6 Applicable 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.
3.7 Specific Enforcement. Each party hereto acknowledges that the
--------------------
remedies at law of the other parties for a breach or threatened breach of this
Agreement would be inadequate, and, in recognition of this fact, any party to
this Agreement, without posting any bond, and in addition to all other remedies
which may be available, shall be entitled to obtain equitable relief in the form
of specific performance, a temporary restraining order, a temporary to permanent
injunction or any other equitable remedy which may then be available.
3.8 Amendment and Waivers; Subordination. The provisions of this
------------------------------------
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless the Company
has obtained the written consent of the Holders of a majority of the Restricted
Securities affected thereby. It is hereby understood and agreed to by the
parties hereto that the registration rights granted hereunder are subordinate to
the registration rights granted by the Company pursuant to the Xxxxxxxxxx
Registration Rights Agreements.
3.9 Eligibility under Rule 144. With a view to making available to the
--------------------------
Purchaser the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the Commission that may at any time permit
the Purchaser to sell securities of the Company to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Exchange Act so long as the Company
remains subject to such requirements and the filing of such reports and other
documents is required for the applicable provisions of Rule 144; and
(c) furnish to each Purchaser so long as such Purchaser owns
Restricted Securities, promptly upon request (i) a written statement by the
Company that it has complied with the reporting requirements of the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and (iii) such
other information as may be reasonably requested to permit the investors to sell
such securities pursuant to Rule 144 without registration.
* * * * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COMPANY:
SENESCO TECHNOLOGIES, INC.
By:_____________________________
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
PURCHASER:
STANFORD VENTURE CAPITAL
HOLDINGS, INC.
By:__________________________
Name:_____________________
Title:____________________
