COMMON STOCK PURCHASE AGREEMENT
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COMMON STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of May ----,
2000, by and between Senesco Technologies, Inc., a Delaware corporation (the
"Corporation"), and those purchasers listed on the signature pages hereto (the
"Purchasers").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Corporation desires to sell, transfer and assign to the
Purchasers, and the Purchasers desires to purchase from the Corporation, such
number of shares (the "Shares") of the Corporation's common stock, $0.01 par
value (the "Common Stock"), equal to the dollar amount set forth opposite their
names on the signature pages hereto, for an aggregate investment of up to
$1,500,000, at a price per share calculated by taking approximately 80% of the
average closing price of the Corporation's Common Stock during the ten (10)
trading days ending on May 3, 2000, which is equal to $1.50 per share of Common
Stock (the "Purchase Price"); and
WHEREAS, the Company is entering into similar Common Stock Purchase
Agreements with other purchasers who are purchasing Common Stock on comparable
terms as set forth herein, and whose rights shall vest on a pari passu basis
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with the Purchasers herein;
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, SALE AND REGISTRATION OF THE SHARES
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A. Purchase and Sale. Subject to the terms and conditions of this Agreement
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and on the basis of the representations, warranties, covenants and agreements
herein contained, the Corporation hereby agrees to sell, transfer, assign and
convey the Shares to the Purchasers, and the Purchasers agrees to purchase,
acquire and accept the Shares from the Corporation.
B. Purchase Price. The aggregate purchase price for the Shares to be paid
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by the Purchasers to the Corporation is an aggregate of up to $1,500,000 (the
"Aggregate Purchase Price"). Each of the Purchasers shall pay their respective
portion of the Aggregate Purchase price by certified bank check or irrevocable
wire transfer delivered to the escrow account established by the Corporation and
Xxxxxxxxxx & Co. Inc. (the "Placement Agent"), the placement agent for the
Shares sold hereunder, as per the written instructions delivered to each of the
Purchasers by the Placement Agent.
C. Registration Rights. The Corporation and the Purchasers shall enter into
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a Registration Rights Agreement, substantially in the form attached hereto as
Exhibit A (the "Registration Rights Agreement"), providing that the Corporation
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shall register the Shares, pursuant to the Securities Act of 1933, as amended
(the "1933 Act").
D. Lock-up Agreement. The Corporation shall cause each of the following
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persons who are either directors, executive officers or holders of more than 5%
of the outstanding shares of Common Stock of the Corporation (the "Affiliates"):
Xxxxxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxxxx, Xxxxx Xxxxxxx, Xxxxxx Xxxx,
Xxxxxxxxxxx Xxxxxx, Xxxxxx X. Quick, Xxxx X. Xxxxxxxx, Ph.D., Xxxxxx X. Xxxxxxxx
and Xxxxxxx Xxxxxx, to enter into a Lock-up Agreement with the Placement Agent
for the benefit of the Purchasers in the form attached hereto as Exhibit B (the
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"Lock-up Agreement").
SECTION II
REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE CORPORATION
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The Corporation (for the purposes of this Section II, Corporation shall
include any predecessor corporation, limited liability company or other entity)
represents and warrants to, and covenants and agrees with, the Purchasers, as of
the date hereof, that:
A. Organization, Good Standing and Power. The Corporation is a corporation
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duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power to own, lease and
operate its properties and assets and to conduct its business as it is now being
conducted. The Corporation does not have any subsidiaries (as defined in Section
II G) except as set forth in the reports, schedules, forms, statements and other
documents required to be filed by the Corporation and its predecessors with the
Securities and Exchange Commission (the "Commission"), pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
material filed pursuant to Section 13(a) or 15(d) of the Exchange Act (all of
the foregoing, including filings incorporated by reference therein, being
referred to herein as the "Commission Documents"). The Corporation and each such
subsidiary is duly incorporated or duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction of the United States, or
any other country, state, province, or political subdivision (such subsidiaries
and jurisdictions being named in Schedule II A) in which the nature of the
business conducted or property owned by it makes such qualification necessary
except for any jurisdiction in which the failure to be so qualified will not
have a Material Adverse Effect, as defined, on the Corporation's financial
condition. Material Adverse Effect shall mean any effect on the business,
operations, properties or financial condition of the Corporation that is
material and adverse to the Corporation and its subsidiaries, taken as a whole
and/or any condition, circumstance, or situation that would prohibit or
otherwise interfere with the ability of the Corporation to enter into and
perform any of its obligations under this Agreement or Registration Rights
Agreement in any respect which is material to the Purchasers individually.
B. Authorization; Enforcement.
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1. The Corporation has the corporate power and authority to enter into
and perform this Agreement and the Registration Rights Agreement attached hereto
as Exhibit A (the
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"Registration Rights Agreement") and to issue and sell the Shares in accordance
with the terms hereof. The execution, delivery and performance of this Agreement
and the Registration Rights Agreement by the Corporation and the consummation by
it of the transactions contemplated hereby and thereby have been duly and
validly authorized by all necessary corporate action, and no further consent or
authorization of the Corporation or its Board of Directors or stockholders is
required. Each of this Agreement and the Registration Rights Agreement has been
duly executed and delivered by the Corporation. Each of this Agreement and the
Registration Rights Agreement constitutes, or shall constitute when executed and
delivered, a valid and binding obligation of the Corporation enforceable against
the Corporation in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, conservatorship, receivership or similar laws relating to, or
affecting generally the enforcement of, creditor's rights and remedies or by
other equitable principles of general application.
2. To the knowledge of the Corporation, the Lock-up Agreement has been
duly executed and delivered by the individual parties thereto and constitutes
the valid and binding obligation of each such party enforceable against such
party in accordance with its terms except as such enforceability may be limited
by applicable bankruptcy, insolvency, moratorium, conservatorship, receivership
or similar laws relating to, or affecting generally the enforcement of,
creditors' rights and remedies or by other equitable principles of general
application.
C. Capitalization. The authorized capital stock of the Corporation and the
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shares thereof issued and outstanding as of the date hereof are set forth in the
Commission Documents and the Memorandum. All of the outstanding shares of the
Corporation's Common Stock have been duly and validly authorized. Except as set
forth in this Agreement, the Lock-up Agreement, the Registration Rights
Agreement or the Commission Documents, no shares of Common Stock are entitled,
from the Corporation, to preemptive rights or registration rights and there are
no outstanding options, warrants, scrip, rights to subscribe to, call or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Corporation. Furthermore,
except as set forth in this Agreement, the Lock-up Agreement, the Registration
Rights Agreement or the Commission Documents, there are no contracts,
commitments, understandings, or arrangements by which the Corporation is or may
become bound to issue additional shares of the capital stock of the Corporation
or options, securities or rights convertible into shares of capital stock of the
Corporation. Except for customary transfer restrictions contained in agreements
entered into by the Corporation in order to sell restricted securities or as
provided in the Commission Documents, the Corporation is not a party to any
agreement granting registration rights to any person with respect to any of its
equity or debt securities. Except for the Lock-up Agreement, the Corporation is
not a party to, and it has no knowledge of, any agreement restricting the voting
or transfer of any shares of the capital stock of the Corporation. Except as set
forth in the Commission Documents, the offer and sale of all capital stock,
convertible securities, rights, warrants, or options of the Corporation issued
prior to the Closing complied with all applicable Federal and state securities
laws, and no stockholder has a right of rescission or damages with respect
thereto which would have a Material Adverse Effect. The Corporation has filed as
exhibits to the Commission Documents true and correct
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copies of the Corporation's Certificate of Incorporation as in effect on the
date hereof (the "Articles"), and the Corporation's Bylaws as in effect on the
date hereof (the "Bylaws").
D. Issuance of Shares. The Shares to be issued under this Agreement have
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been duly authorized by all necessary corporate action and, when paid for or
issued in accordance with the terms hereof, the Shares shall be validly issued
and outstanding, fully paid and nonassessable, and the Purchasers shall be
entitled to all rights accorded to a holder of Common Stock.
E. No Conflicts. Except as may be disclosed in the Commission Documents,
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the execution, delivery and performance of this Agreement and the Registration
Rights Agreement by the Corporation and the consummation by the Corporation of
the transactions contemplated therein do not (i) violate any provision of the
Corporation's Articles or Bylaws, (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, mortgage, deed of trust, indenture,
note, bond, license, lease agreement, instrument or obligation to which the
Corporation is a party, (iii) create or impose a lien, charge or encumbrance on
any property of the Corporation under any agreement or any commitment to which
the Corporation is a party or by which the Corporation is bound or by which any
of its respective properties or assets are bound, or (iv) result in a violation
of any federal, state, local or foreign statute, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Corporation or any of its subsidiaries or by which any
property or asset of the Corporation or any of its subsidiaries are bound or
affected, and except, in all cases, for such conflicts, defaults, terminations,
amendments, acceleration, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect. The
Corporation is not required under federal, state or local law, rule or
regulation to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement and the
Registration Rights Agreement, or issue and sell the Shares in accordance with
the terms hereof (other than any filings which may be required to be made by the
Corporation with the Commission, the National Association of Securities Dealers,
Inc. (the "NASD"), or state securities administrators subsequent or prior to the
Closing hereunder, and, any registration statement which may be filed pursuant
hereto); provided that, for purpose of the representation made in this sentence,
the Corporation is assuming and relying upon the accuracy of the relevant
representations and agreements of the Purchasers herein.
F. Commission Documents, Financial Statements. The Common Stock of the
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Corporation is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, and, except as disclosed in the Commission Documents, since January 1999,
the Corporation has timely filed all Commission Documents. The Corporation has
made available to the Purchasers true and complete copies of the Commission
Documents filed with the Commission since December 31, 1998 and prior to the
Closing Date. The Corporation has not provided to the Purchasers any information
which, according to applicable law, rule or regulation, should have been
disclosed publicly by the Corporation but which has not been so disclosed, other
than with respect to the transactions contemplated by this Agreement. As of
their respective dates, the Form 10KSB for
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the fiscal year ended June 30, 1999 and the Forms 10QSB for the fiscal quarters
ended September 30, 1999 and December 31, 1999 complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder and, as of their respective dates, none of the
Form 10KSB and the Forms 10QSB referred to above 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 light of the
circumstances under which they were made, not misleading. The financial
statements of the Corporation included in the Commission Documents comply as to
form in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles ("GAAP") applied on
a consistent basis 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 not include footnotes or
may be condensed or summary statements), and fairly present in all material
respects the financial position of the Corporation and its subsidiaries as of
the dates thereof and the results of operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end
audit adjustments).
G. Subsidiaries. The Commission Documents set forth each subsidiary of the
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Corporation, showing the jurisdiction of its incorporation or organization and
showing the percentage of each person's ownership of the outstanding stock or
other interests of such subsidiary. For the purposes of this Agreement,
"subsidiary" shall mean any corporation or other entity of which at least 50% of
the securities or other ownership interest having ordinary voting power
(absolutely or contingently) for the election of directors or other persons
performing similar functions are at the time owned directly or indirectly by the
Corporation and/or any of its other subsidiaries. Except as set forth in the
Commission Documents, none of such subsidiaries is a "significant subsidiary" as
defined in Regulation S-X.
H. No Material Adverse Change. Since December 31, 1999, the date through
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which the most recent quarterly report of the Corporation on Form 10QSB has been
and filed with the Commission, a copy of which is included in the Commission
Documents, the Corporation has not experienced or suffered any Material Adverse
Effect.
I. No Undisclosed Liabilities. Except as disclosed in the Commission
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Documents, neither the Corporation nor any of its subsidiaries has any
liabilities, obligations, claims or losses (whether liquidated or unliquidated,
secured or unsecured, absolute, accrued, contingent or otherwise) that would be
required to be disclosed on a balance sheet of the Corporation or any subsidiary
(including the notes thereto) in conformity with GAAP not disclosed in the
Commission Documents, other than those incurred in the ordinary course of the
Corporation's or its subsidiaries respective businesses since December 31, 1999
and which, individually or in the aggregate, do not or would not have a Material
Adverse Effect on the Corporation or its subsidiaries.
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J. No Undisclosed Events or Circumstances. Except for the transactions and
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documents contemplated hereby, no event or circumstance has occurred or exists
with respect to the Corporation or its subsidiaries or their respective
businesses, properties, prospects, operations or financial condition, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by the Corporation but which has not been so publicly announced or
disclosed.
K. Indebtedness. The Commission Documents set forth as of the date hereof
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all outstanding secured and unsecured Indebtedness of the Corporation or any
subsidiary, or for which the Corporation or any subsidiary has commitments. For
the purposes of this Agreement, "Indebtedness" shall mean (a) any liabilities
for borrowed money or amounts owed in excess of $25,000 (other than trade
accounts payable incurred in the ordinary course of business), (b) all
guaranties, endorsements and other contingent obligations in respect of
Indebtedness of others, whether or not the same are or should be reflected in
the Corporation's balance sheet (or the notes thereto), except guaranties by
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (c) the present value of
any lease payments in excess of $25,000 due under leases required to be
capitalized in accordance with GAAP. Neither the Corporation nor any subsidiary
is in default with respect to any Indebtedness.
L. Title to Assets. Each of the Corporation and the subsidiaries has good
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and marketable title to all of its real and personal property reflected in the
Commission Documents, free of any mortgages, pledges, charges, liens, security
interests or other encumbrances, except for those indicated in the Commission
Documents or such that could not reasonably be expected to cause a Material
Adverse Effect on the Corporation's financial condition or operating results.
All said leases of the Corporation and each of its subsidiaries are valid and
subsisting and in full force and effect in all material respects.
M. Actions Pending. There is no action, suit, claim, investigation or
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proceeding pending or, to the knowledge of the Corporation, threatened against
the Corporation or any subsidiary which questions the validity of this Agreement
or the transactions contemplated hereby or any action taken or to be taken
pursuant hereto or thereto. Except as set forth in the Commission Documents,
there is no action, suit, claim, investigation or proceeding pending or, to the
knowledge of the Corporation, threatened, against or involving the Corporation,
any subsidiary or any of their respective properties or assets and which, if
adversely determined, is reasonably likely to result in a Material Adverse
Effect. To the knowledge of the Corporation, there are no outstanding orders,
judgments, injunctions, awards or decrees of any court, arbitrator or
governmental or regulatory body against the Corporation or any subsidiary.
N. Compliance with Law. The business of the Corporation and the
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subsidiaries has been and is presently being conducted in accordance with all
applicable federal, state and local governmental laws, rules, regulations and
ordinances, except as set forth in the Form 10KSB, Form 10QSB or on Schedule II
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N of the Schedule of Exceptions or such that do not cause a Material Adverse
-
Effect. The Corporation and each of its subsidiaries have all franchises,
permits, licenses, consents and other governmental or regulatory authorizations
and approvals necessary for the conduct of its business as now being conducted
by it unless the failure to
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possess such franchises, permits, licenses, consents and other governmental or
regulatory authorizations and approvals, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. To the knowledge
of the Corporation, the Corporation's technology does not require the premarket
approval of the United States Food and Drug Administration (the "FDA") or the
approval of or any filing with the FDA or the United States Environmental
Protection Agency (the "EPA") under current rules and regulations of the FDA and
EPA, respectively, when used for their intended use as described in the
Confidential Private Placement Memorandum of the Corporation offering the Shares
(the "Memorandum").
O. Certain Fees. Except as disclosed in the Memorandum, no brokers, finders
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or financial advisory fees or commissions will be payable by the Corporation or
any subsidiary with respect to the transactions contemplated by this Agreement.
P. Disclosure. Neither the Memorandum, this Agreement or the Exhibits
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hereto nor any other documents, certificates or instruments furnished to the
Purchasers by or on behalf of the Corporation or any subsidiary in connection
with the transactions contemplated by this Agreement contain any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements made herein or therein, in the light of the
circumstances under which they were made herein or therein, not misleading.
Q. Intellectual Property Operation of Business. The Corporation and each of
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the subsidiaries owns or possesses all patents, trademarks, service marks, trade
names, copyrights, licenses and authorizations as set forth in the Commission
Documents and all rights with respect to the foregoing, which are necessary for
the conduct of its business as now conducted without any conflict with the
rights of others, except to the extent that a Material Adverse Effect could not
reasonably be expected to result from such conflict. The Corporation currently
owns or possesses adequate rights to use all inventions subject to pending
patent applications and all licenses, copyrights, inventions, know-how, trade
secrets, proprietary technologies, including trademarks, service marks, trade
names, processes and substances described in the Memorandum including, without
limitation, the inventions underlying, and the trade names for, the
Corporation's technology; and, except as disclosed in the Memorandum, the
Corporation is not aware of the granting of any patent rights to, or the filing
of applications therefor by, others, nor is the Corporation aware of, or has the
Corporation received notice of, infringement of or conflict with asserted rights
of others with respect to any of the foregoing. All such licenses, trademarks,
service marks, trade names and copyrights are (i) valid and enforceable and (ii)
to the best knowledge of the Corporation, not being infringed upon by any third
parties. None of the inventions described in the pending patent applications
disclosed in the Commission Documents and filed on behalf of original inventors
with respect to the inventions underlying the Corporation's technology has been
described or suggested in either the relevant patent literature or the relevant
scientific literature. To the knowledge of the Corporation, said inventions are
patentable and no other patent is infringed upon by the subject matter of said
inventions. All pertinent prior art references were disclosed to the United
States Patent and Trademark Office (the "PTO") in the pending patent
applications and all information submitted to the PTO in respect thereof was
accurate. The Corporation has not made any representation or concealed any
material fact from the PTO.
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R. Environmental Compliance. Except as disclosed in the Commission
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Documents, the Corporation and each of its subsidiaries have obtained all
material approvals, authorization, certificates, consents, licenses, orders and
permits or other similar authorizations of all governmental authorities, or from
any other person, that are required under any Environmental Laws. "Environmental
Laws" shall mean all applicable laws relating to the protection of the
environment including, without limitation, all requirements pertaining to
reporting, licensing, permitting, controlling, investigating or remediating
emissions, discharges, releases or threatened releases of hazardous substances,
chemical substances, pollutants, contaminants or toxic substances, materials or
wastes, whether solid, liquid or gaseous in nature, into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of hazardous
substances, chemical substances, pollutants, contaminants or toxic substances,
material or wastes, whether solid, liquid or gaseous in nature. Except for such
instances as would not individually or in the aggregate have a Material Adverse
Effect, there are no past or present events, conditions, circumstances,
incidents, actions or omissions relating to or in any way affecting the
Corporation or its subsidiaries that violate or could reasonably be expected to
violate any Environmental Law after the Closing hereunder or that could
reasonably be expected to give rise to any environmental liability, or otherwise
form the basis of any claim, action, demand, suit, proceeding, hearing, study or
investigation (i) under any Environmental Law, or (ii) based on or related to
the manufacture, processing, distribution, use, treatment, storage (including
without limitation underground storage tanks), disposal, transport or handling,
or the emission, discharge, release or threatened release of any hazardous
substance.
S. Material Agreements. Except as set forth in the Commission Documents,
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neither the Corporation nor any subsidiary is a party to any written or oral
contract, instrument, agreement, commitment, obligation, plan or arrangement, a
copy of which would be required to be filed with the Commission as an exhibit to
a registration statement on Form S-3 or applicable form (collectively, "Material
Agreements") if the Corporation or any subsidiary were registering securities
under the Securities Act. The Corporation and each of its subsidiaries has in
all material respects performed all the obligations required to be performed by
them to date under the foregoing agreements, have received no notice of default
and, to the best of the Corporation's knowledge are not in default under any
Material Agreement now in effect, the result of which could reasonably be
expected to cause a Material Adverse Effect.
T. Transactions with Affiliates. Except as set forth in the Commission
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Documents, there are no loans, leases, agreements, contracts, royalty
agreements, management contracts or arrangements or other continuing
transactions with aggregate obligations of any party exceeding $25,000 between
(a) the Corporation, any subsidiary or any of their respective customers or
suppliers on the one hand, and (b) on the other hand, any officer, employee,
consultant or director of the Corporation, or any of its subsidiaries, or any
person who would be covered by Item 404(a) of Regulation S-K or any corporation
or other entity controlled by such officer, employee, consultant, director or
person.
U. Securities Act. The Corporation has complied and will comply with all
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applicable Federal and state securities laws in connection with the offer,
issuance and sale of the Shares
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hereunder. Neither the Corporation nor anyone acting on its behalf, directly or
indirectly, has or will sell, offer to sell or solicit offers to buy the Shares
or similar securities to, or solicit offers with respect thereto from, or enter
into any preliminary conversations or negotiations relating thereto with, any
person, so as to bring the issuance and sale of the Shares under the
registration provisions of the Securities Act and applicable state securities
laws. Neither the Corporation nor, to the knowledge of the Corporation, any of
its affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
the Shares.
V. Employees. Neither the Corporation nor any subsidiary has any collective
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bargaining arrangements or agreements covering any of its employees, except as
set forth in the Commission Documents. Except as set forth in the Commission
Documents, neither the Corporation nor any subsidiary has any employment
contract, agreement regarding proprietary information, noncompetition agreement,
nonsolicitation agreement, confidentiality agreement, or any other similar
contract or restrictive covenant, relating to the right of any officer, employee
or consultant to be employed or engaged by the Corporation or such subsidiary.
Since December 31, 1999, except as disclosed in Commission Documents, no
officer, consultant or key employee of the Corporation or any subsidiary whose
termination, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, has terminated or, to the knowledge
of the Corporation, has any present intention of terminating his or her
employment or engagement with the Corporation or any subsidiary.
W. Public Utility Holding Corporation Act and Investment Corporation Act
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Status. The Corporation is not a "holding company" or a "public utility company"
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as such terms are defined in the Public Utility Holding Corporation Act of 1935,
as amended. The Corporation is not, and as a result of and immediately upon
Closing will not be, an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Corporation Act of
1940, as amended.
X. ERISA. No liability to the Pension Benefit Guaranty Corporation has been
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incurred with respect to any Plan by the Corporation or any of its subsidiaries
which is or would be materially adverse to the Corporation and its subsidiaries.
The execution and delivery of this Agreement and the issue and sale of the
Shares will not involve any transaction which is subject to the prohibitions of
Section 406 of ERISA or in connection with which a tax could be imposed pursuant
to Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"),
provided that, if any of the Purchasers, or any person or entity that owns a
beneficial interest in any of the Purchasers, is an "employee pension benefit
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plan" (within the meaning of Section 3(2) of ERISA) with respect to which the
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Corporation is a "party in interest" (within the meaning of Section 3(14) of
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ERISA), the requirements of Sections 407(d)(5) and 408(e) of ERISA, if
applicable, are met. As used in this paragraph, the term "Plan" shall mean an
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"employee pension benefit plan" (as defined in Section 3 of ERISA) which is or
has been established or maintained, or to which contributions are or have been
made, by the Corporation or any subsidiary or by any trade or business, whether
or not incorporated, which, together with the Corporation or any subsidiary, is
under common control, as described in Section 414(b) or (c) of the Code.
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Y. Taxes. The Corporation and each of the subsidiaries has accurately
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prepared and filed all federal, state, local, foreign and other tax returns for
income, gross receipts, sales, use and other taxes and custom duties ("Taxes")
required by law to be filed by it, has paid or made provisions for the payment
of all taxes shown to be due and all additional assessments, and adequate
provisions have been and are reflected in the financial statements of the
Corporation and the subsidiaries for all current taxes and other charges to
which the Corporation or any subsidiary is subject and which are not currently
due and payable, except for taxes, if unpaid, individually or in the aggregate,
do not and would not have a Material Adverse Effect on the Corporation or its
subsidiaries. None of the federal income tax returns of the Corporation or any
subsidiary for the years has been audited by the Internal Revenue Service. The
Corporation has no knowledge of any additional assessments, adjustments or
contingent tax liability (whether federal, state, local or foreign) pending or
threatened against the Corporation or any subsidiary or any person for whose tax
liabilities the Corporation is or may be jointly or contingently liable for any
period, nor of any basis for any such assessment, adjustment or contingency.
Z. Books and Record Internal Accounting Controls. The records and documents
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of the Corporation and its subsidiaries accurately reflect in all material
respects the information relating to the business of the Corporation and the
subsidiaries, the location and collection of their assets, and the nature of all
transactions giving rise to the obligations or accounts receivable of the
Corporation or any subsidiary.
AA. Predecessor Entities. The transactions by which the Corporation and its
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subsidiaries were organized and succeeded to the assets, liabilities, properties
and business of its and their respective predecessors were duly authorized and
consummated in accordance with compliance with applicable law, with the effect
of making the Corporation and its subsidiaries the effective successors to the
assets, liabilities, properties and business of the respective predecessors. The
foregoing representations and warranties, the Exhibits hereto, the Commission
Documents and the Memorandum disclose all information relating to such
transactions which might have a Material Adverse Effect.
SECTION III
REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE PURCHASERS
Each of the Purchasers represents and warrants to, and covenants and agrees
with, the Corporation, as of the date hereof, that:
A. Organization (if applicable). The Purchaser is, and as of the Closing
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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
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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
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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, (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
Securities Act, and is aware that the certificates representing the Purchaser's
respective ownership of Common Stock will bear related restrictive legends and
(iii) except as otherwise set forth herein, is acquiring the shares of the
Corporation hereunder without registration under the Securities Act in reliance
on the exemption from registration contained in Section 4(2) of the Securities
Act and/or Rule 506 promulgated pursuant to Regulation D of the Securities 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 Purchaser represents that the
Accredited Investor Questionnaire 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 Corporation regarding the Corporation, its
current and proposed business operations and the Common Stock, and the officers
of the Corporation have made available to the Purchaser all documents and
information that the Purchaser has requested relating to an investment in the
Corporation. The Purchaser has been represented by competent legal counsel in
connection with its purchase of the Common Stock and acknowledges that the
Corporation has relied upon the Purchaser's representations in this Section 3 in
offering and selling Common Stock to the Purchaser.
F. Economic Risk; Restricted Securities. The Purchaser recognizes that the
------------------------------------
investment in the Common Stock involves a number of significant risks. The
foregoing, however, does not limit or modify the representations, warranties and
agreements of the Corporation 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 Common Stock 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.
11
G. Access to Information. The Purchaser has received a copy of the
-----------------------
following documents:
(i) The Company's Private Placement Memorandum; and
(ii) The following Company's reports filed with the Securities and Exchange
Commission:
1. Annual Report on Form 10-KSB for the year ended June 30, 1999;
2. Definitive Proxy Statement for the 1999 Annual Meeting of
Stockholders;
3. Quarterly Report on Form 10-QSB for the quarter ended September
30, 1999;
4. Quarterly Report on Form 10-QSB for the quarter ended December
31, 1999; and
5. Any press releases issued after the Company's most recently filed
Form 10-QSB.
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
the Exhibits to this Agreement.
H. 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 Common Stock for the Purchaser's particular tax and financial situation,
and the Purchaser has determined that the Common Stock is a suitable investment.
I. Legend. he Purchaser acknowledges that the certificates evidencing the
------
Shares will bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. 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.
12
SECTION IV
THE CLOSING AND CONDITIONS TO CLOSING
-------------------------------------
A. Time and Place of the Closing. The closing shall be held at the offices
-----------------------------
of Xxxxxxxx Xxxxxxxxx Professional Corporation, 000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000, on May ---, 2000 (the "Closing Date"), or such
other time and place as the Corporation and the Purchasers may mutually agree.
B. Delivery by the Corporation. Delivery of the Shares shall be made by the
---------------------------
Corporation, or by its transfer agent, to the Purchasers as soon as reasonably
practicable after the Closing Date by delivering a certificate representing the
Shares with an executed stock power, each such certificate to be accompanied by
any requisite documentary or transfer tax stamps.
C. Delivery by the Purchasers. On the Closing Date, the Purchasers, or the
--------------------------
escrow agent, as the case may be, shall deliver to the Corporation the entire
Aggregate Purchase Price by certified bank check or by irrevocable wire transfer
to an account specified in writing to the Purchasers or the escrow agent, as the
case may be, by the Corporation.
D. Other Conditions to Closing.
---------------------------
(1) As of the Closing Date, all requisite action by the Corporation's
Board of Directors and stockholders shall have been taken pursuant to the
By-Laws of the Corporation.
(2) As of the Closing Date, the Corporation and the Purchasers shall
have entered into the Registration Rights Agreement.
(3) As of the Closing Date, the Affiliates and the Placement Agent
shall have entered into the Lock-up Agreements.
(4) As of the Closing Date, the Placement Agent shall have received an
opinion of counsel for the Corporation and other closing certificates reasonably
requested by counsel for the Placement Agent.
SECTION V
INDEMNIFICATION
---------------
A. General Indemnity. The Corporation agrees to indemnify and hold
------------------
harmless each Purchaser and its agents, heirs, successors and assigns (but
excluding consequential damages) from and against any and all actual losses,
liabilities, deficiencies, costs, damages and reasonable expenses (including,
without limitation, reasonable attorney's fees, charges and disbursements)
incurred as a result of any misrepresentation or breach of the warranties and
covenants made by the Corporation herein and the Registration Rights Agreement.
Each Purchaser agrees, severally and not jointly, to indemnify and hold harmless
the Corporation and its directors, officers, affiliates, agents, successors and
assigns from and against any and all actual losses, liabilities,
13
deficiencies, costs, damages and expenses (including, without limitation,
reasonable attorneys fees, charges and disbursements but excluding consequential
damages) incurred by the Corporation as result of any breach of the
representations and covenants made by such Purchaser herein.
B. Indemnification Procedure. Any party entitled to indemnification under
--------------------------
this Section (an "indemnified party") will give written notice to the
indemnifying party of any matters giving rise to a claim for indemnification;
provided, that the failure of any party entitled to indemnification hereunder to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under this Section except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any action,
proceeding or claim is brought against an indemnified party in respect of which
indemnification is sought hereunder, the indemnifying party shall be entitled to
participate in and, unless in the reasonable judgment of the indemnified party a
conflict of interest between it and the indemnifying party may exist with
respect of such action, proceeding or claim, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. In the event that the
indemnifying party advises an indemnified party that it will contest such a
claim for indemnification hereunder, or fails, within thirty (30) days of
receipt of any indemnification notice to notify, in writing, such person of its
election to defend, settle or compromise, at its sole cost and expense, any
action, proceeding or claim (or discontinues its defense at any time after it
commences such defense), then the indemnified party may, at its option, defend,
settle or otherwise compromise or pay such action or claim. In any event, unless
and until the indemnifying party elects in writing to assume and does so assume
the defense of any such claim, proceeding or action, the indemnified party's
costs and expenses arising out of the defense, settlement or compromise of any
such action, claim or proceeding shall be losses subject to indemnification
hereunder. The indemnified party shall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such action or claim
by the indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the indemnified party which relates to such
action or claim. The indemnifying party shall keep the indemnified party fully
apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. If the indemnifying party elects to defend
any such action or claim, then the indemnified party shall be entitled to
participate in such defense with counsel of its choice at its sole cost and
expense. The indemnifying party shall not be liable for any settlement of any
action, claim or proceeding effected without its prior written consent.
Notwithstanding anything in this Section to the contrary, the indemnifying party
shall not, without the indemnified party's prior written consent (which consent
shall not be unreasonably withheld), settle or compromise any claim or consent
to entry of any judgment in respect thereof which imposes any future obligation
on the indemnified party or which does not include, as an unconditional term
thereof, the giving by the claimant or the plaintiff to the indemnified party of
a release from all liability in respect of such claim. The indemnification
required by this Section shall be made by periodic payments of the amount
thereof during the course of investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred, so long as the
indemnified party irrevocably agrees to refund such moneys if it is ultimately
determined by a court of competent jurisdiction that such party was not entitled
to indemnification. The indemnity agreements contained herein shall be in
addition to (a) any cause of action or similar rights of the indemnified party
against the
14
indemnifying party or others, and (b) any liabilities the indemnifying party may
be subject to pursuant to the law.
SECTION VI
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 New York applicable in the case of
agreements made and to be performed entirely within such State, and the
Corporation hereby consents to the jurisdiction of the courts of the State of
New York for any matters arising out of this Agreement.
F. Successors and Assigns. Except as otherwise provided herein, the
------------------------
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto;
provided, however, that the rights of the Purchasers to purchase the Shares
-------- -------
shall not be assignable without the prior written consent of the Corporation.
G. Notices. All notices and other communications required or permitted
-------
hereunder shall be in writing and shall be effectively given: (i) upon personal
delivery; (ii) upon confirmed transmission by telecopy; or (iii) five (5) days
following deposit with the United States Post Office, by registered or certified
mail, postage prepaid, addressed (a) if to a Purchaser, at such Purchaser's
address or telecopy number as set forth on the signature pages to this
Agreement; with a copy to the Placement Agent at Xxxxxxxxxx & Co. Inc., 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx (Xxx) Xxxxx, with a copy to
counsel for the Placement Agent at Xxxxxx Xxxxxx LLP, The Chrysler Building, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxx Xxxxx, Esq.; or (b) if to
the Corporation, at Senesco Technologies, Inc., 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000, Attn: Xxxxxx Xxxx; with a copy to counsel for the Corporation
at Xxxxxxxx Ingersoll Professional Corporation, 000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000, Attn: Xxxxx X. Xxxxx, Esq.
15
H. Agency. Each of the Purchasers hereby appoints the Placement Agent as
------
its agent under this Agreement to consummate any of the transactions
contemplated hereby.
I. 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.
*****
16
IN WITNESS WHEREOF, this Common Stock Purchase Agreement has been duly
executed by the parties hereto as of the date first above written.
CORPORATION PURCHASERS
SENESCO TECHNOLOGIES, INC.
----------------------------------------- -------------------------------
By: Xxxxxx Xxxx, President, Name:
Chief Operating Officer and Treasurer --------------------------
Address:
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-----------------------
-----------------------
Telecopy:
----------------------
Amount of Investment: $--------
17
EXHIBIT A
Registration Rights Agreement
-----------------------------
18
EXHIBIT B
Lock-up Agreement
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19
