REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of May
---, 2000 between Senesco Technologies, Inc., a Delaware corporation (the
"Company"), and those persons listed on the signature pages attached hereto
(individually, a "Purchaser" and collectively, the "Purchasers").
RECITALS
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WHEREAS, it is a condition precedent to the obligations of each Purchaser
under the stock purchase agreement made by and among the Purchasers and the
Company, dated as of the date hereof (the "Stock Purchase Agreement"), that the
Company grant registration rights for the shares of common stock of the Company,
$0.01 par value (the "Common Stock"), in connection with resales by the
Purchasers of the Common Stock; and
WHEREAS, the Company is entering into similar Registration Rights
Agreements and Stock Purchase Agreements with other purchasers who are
purchasing Common Stock on the identical terms as set forth herein and whose
rights shall vest on a pari passu basis with the Purchasers herein (the "Private
Placement");
WHEREAS, the Company and the Purchasers 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 following
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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" means the Common Stock of the Company, $0.01 par value per
share.
"Closing Date" shall mean the Closing Date as defined in the Stock Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" means Senesco Technologies, Inc., a Delaware corporation.
"Company Registration Statement" means the Registration Statement of the
Company relating to the registration for sale of Common Stock, including the
Prospectus included therein, all
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amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein, but excluding the
current registration statement on Form S-3 to be filed with the Commission in
connection with the registration of shares of Common Stock issued and sold by
the Company as part of the private placement consummated in May 1999 and certain
other shares of Common Stock sold by affiliates of the Company.
"Effective Time" means the date of effectiveness of any Registration
Statement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holders" 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 Statements" means the Company Registration Statement and the
Shelf Registration Statement.
"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 and any
securities issues 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.
"Shelf Registration Statement" means the registration statement of the
Company relating to the shelf registration for resale of Restricted Securities
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.
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"Stock Purchase Agreement" has the meaning given to it in the recitals to
this Agreement.
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) 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 Restricted Securities, any form on which the Company is
permitted under the Securities Act, which Shelf Registration Statement shall
provide for resales of all Restricted Securities, 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 nine (9) months from
the last Closing Date.
(b) In connection with the Shelf Registration Statement, the Company shall
comply with all the provisions of Section 2.4 below and shall use its reasonable
efforts to effect such registration to permit the sale of the Restricted
Securities 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
Restricted Securities by the Holders of Restricted Securities, 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 Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or otherwise cease to be Restricted
Securities. Upon the occurrence of any event that would cause any Shelf
Registration Statement or the
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Prospectus contained therein (i) to contain a material misstatement or omission
or (ii) not to be effective and usable for sale or resale of Restricted
Securities 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 Restricted Securities may include any of its Restricted
Securities 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
Restricted Securities (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 (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 aggregate number of days included in all Blackout
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Periods shall not exceed 90 during any consecutive 12 months and shall not
exceed 150 during the period specified in Section 2.2(b) of this Agreement; and
provided, further, that the period referred to in Section 2.2(b) during which
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the Shelf Registration Statement is required to be effective and usable shall be
extended by the aggregate number of days during which the Shelf Registration
Statement was not effective or usable pursuant to the foregoing provisions.
2.3 Piggyback Registration.
-----------------------
(a) At any time that the Company proposes to file a Company Registration
Statement within three (3) years from the date hereof, plus the aggregate number
of days during which the Shelf Registration Statement was not effective or
usable pursuant to Section 2.2(d), the Company shall give the Holders written
notice of its intention to do so and of the intended method of sale (the
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"Registration Notice") within a reasonable time prior to the anticipated filing
date of the Company Registration Statement effecting such Company Registration.
Each Holder may request inclusion of any Restricted Securities in such Company
Registration 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 Company Registration Statement. The Company shall use
its best efforts to cause all Restricted Securities specified in the Piggyback
Notice to be included in the Company 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 Company Registration Statement;
provided, however, that if, at any time after giving written notice of its
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intention to register any securities and prior to the effective date of the
Company 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 registration (but not from its obligation to pay
the Registration Expenses 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 Company
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 Company 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 Company 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 Company Registration Statement, or
if some of the requested Restricted Securities can be included in such
Company 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 Company
Registration Statement, and
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(B) second, any Restricted Securities requested to
be included in such registration on a pari passu basis with any
other securities of the Company which have been afforded
registration rights by the Company as of the date hereof, as set
forth in the Memorandum.
(iii) The Company shall not be obligated to include
Restricted Securities in more than two (2) Company Registration
Statement(s).
(c) No Holder of Restricted Securities may include any of its Restricted
Securities in the Company 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
Company Registration Statement or Prospectus or preliminary Prospectus included
therein and in any application to the NASD. Each Holder as to which the Company
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 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 (i) if such Registration Statement is a Company
Registration Statement, until the earlier of 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 Company Registration Statement
or (ii) if such Registration Statement is a Shelf Registration Statement, for
the applicable period set forth in Section 2.2(b) herein; 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, to confirm such advice in writing, (i) when the Prospectus or any
Prospectus supplement or post-
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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 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
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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) 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 register or qualify
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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
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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 2.2(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 purchasers 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-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.
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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) or the commencement of a Blackout Period, 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 5.3
herein (the "Advice"), by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental fillings 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. In
the event the Company shall give any such notice, the time period regarding the
effectiveness of the Shelf Registration Statement set forth in Section 2.2(b)
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 2.4(b)(iv) or the
commencement of a Blackout Period to and including the date when each selling
Holder covered by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 2.4(i) or shall
have received (in accordance with the notice provisions of Section 3.3) the
Advice.
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
to 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 registration
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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;
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(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) In addition, in connection with the filing of the Shelf Registration
Statement required to be filed by this Agreement, the Company will reimburse the
Holders of the Restricted Securities being registered pursuant to any Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel to review such Registration Statement.
(c) Notwithstanding the foregoing, 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 for
the under Section 2.7(a)) incurred by any underwriter(s) in any underwritten
offering if the underwriter(s) 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.
(d) 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,
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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 Blackout Notice or 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.
12
(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 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 Purchaser 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
13
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 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 Holders of a majority
of the Restricted Securities included in such offering if such registration is
pursuant to the Shelf Registration Statement, and by the Company if such
registration is pursuant to a Company Registration Statement; provided, however,
--------- --------
that such investment bankers and managers must be reasonably satisfactory to the
Company or the Holders, respectively. The Company hereby agrees that Xxxxxxxxxx
& Co. Inc. is acceptable for purposes hereof. Such investment bankers and
managers are referred to herein as the "underwriters".
ARTICLE 3
MISCELLANEOUS
3.1 Entire Agreement. This Agreement, together with the Stock 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
14
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 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 among 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 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
with a copy to: Xxxxxxxxxx & Co. Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx (Xxx) Xxxxx
if to the Company: Senesco Technologies, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone Number: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxx, President,
Chief Operating Officer and Treasurer
with copies to: Xxxxxxxx Ingersoll Professional Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone Number: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx, 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.
15
3.6 Applicable Law. This Agreement shall be governed by and construed in
----------------
accordance with the internal laws of the State of New York without giving effect
to the choice law provisions, and the Company hereby consents to the
jurisdiction of the courts of the State of New York for any matters arising out
of this Agreement.
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. 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 Company may only grant registration rights to such other purchasers of
capital stock of the Company which are junior to the registration rights of the
Purchasers hereunder.
3.9 Eligibility for Form S-3. The Company represents and warrants that, as
-------------------------
of the date hereof, it meets the requirements for the use of Form S-3 for
registration of the sale by the Purchasers of the Restricted Securities and the
Company has filed all reports required to be filed by the Company with the
Commission in a timely manner so as to obtain such eligibility for the use of
Form S-3. The Company shall use its best efforts to meet the requirements for
use of Form S-3 for registration of the sale by the Purchasers of the Restricted
Securities and the Company shall file all reports required to be filed by the
Company with the Commission in a timely manner so as to maintain eligibility for
the use of Form S-3.
3.9 Eligibility under Rule 144. With a view to making available to the
----------------------------
Purchasers 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 Purchasers to sell securities of the Company to the public without
registration ("Rule 144"), 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
16
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.
* * * * * * * *
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
COMPANY:
SENESCO TECHNOLOGIES, INC.
By:
------------------------------------------
Name: Xxxxxx Xxxx
Title: President, Chief Operating Officer
and Treasurer
PURCHASERS:
By:
------------------------------------------
Name:
-------------------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
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