COMMON STOCK PURCHASE AGREEMENT
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COMMON STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of May 11,
1999, by and between Senesco Technologies, Inc., an Idaho corporation (the
"Corporation"), and [Name] (the "Purchaser").
W I T N E S S E T H :
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WHEREAS, the Corporation desires to sell, transfer and assign to the
Purchaser, and the Purchaser desires to purchase from the Corporation, [ ]
shares (the "Shares") of the Corporation's common stock, $0.0015 par value (the
"Common Stock"), equal to an aggregate of $[ ], at a price per share equal to
80% of the average closing bid and ask prices of the Corporation's Common Stock
during the twenty (20) trading days ending three days prior to the Closing Date,
equal to $5.26875 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 the
identical terms as set forth herein for an aggregate offering amount to all
purchasers of $2,000,000, consisting of an aggregate of 379,597 shares of Common
Stock, and whose rights shall vest on a pari passu basis 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
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Agreement 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 Purchaser, and the Purchaser agrees to
purchase, acquire and accept the Shares from the Corporation.
B. Purchase Price. The aggregate purchase price for the Shares to be
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paid by the Purchaser to the Corporation is an aggregate of $[ ] (the "Aggregate
Purchase Price"). The Aggregate Purchase Price shall be paid in cash by the
Purchaser to the Corporation on the Closing Date.
C. Price Protection. Upon the issuance or sale by the Corporation of any
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additional Common Stock or Common Stock equivalents within a period of sixty
(60) days following the Closing Date, other than options or warrants currently
outstanding as of the date of this Agreement, for a consideration per share less
than the Purchase Price (the "Reduced Purchase Price"), the Purchase Price
shall, upon such issuance or sale, be reduced to the amount of consideration per
share received by the Corporation for such stock. Pursuant thereto, the
Corporation shall immediately issue such additional shares of Common Stock to
the Purchaser at the Reduced Purchase Price (the "Additional
Shares"), such that the Shares purchased hereunder plus the Additional Shares,
shall equal the Aggregate Purchase Price.
D. Registration Rights. The Corporation and the Purchaser intend to
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enter into a Registration Rights Agreement providing that the Corporation shall
register the Shares, pursuant to the Securities Act of 1933, as amended (the
"1933 Act").
SECTION II
REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE CORPORATION
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The Corporation represents and warrants to, and covenants and agrees with,
the Purchaser, as of the date hereof, that:
A. Organization; Good Standing. The Corporation is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Idaho and has full corporate power and authority to own its properties and to
conduct the business in which it is now engaged.
B. Authority. The Corporation has the full corporate power, authority and
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legal right to execute and deliver this Agreement and to perform all of its
obligations and covenants hereunder, and no consent or approval of any other
person or governmental authority is required therefore. The execution and
delivery of this Agreement by the Corporation, the performance by the
Corporation of its obligations and covenants hereunder and the consummation by
the Corporation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action. This Agreement constitutes a valid
and legally binding obligation of the Corporation, enforceable against the
Corporation in accordance with its terms.
C. No Legal Bar; Conflicts. Neither the execution and delivery of this
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Agreement, nor the consummation of the transactions contemplated hereby,
violates any provision of the Certificate of Incorporation, as amended, or
By-Laws of the Corporation or any law, statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts with or
results in any breach of any of the terms of or constitutes a default under or
results in the termination of or the creation of any lien pursuant to the terms
of any contract or agreement to which the Corporation is a party or by which the
Corporation or any of its assets is bound.
D. Non-Assessable Shares. The Shares being issued hereunder have been
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duly authorized and, when issued to the Purchaser for the consideration herein
provided, will be validly issued, fully paid and non-assessable.
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SECTION III
REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE PURCHASER
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The Purchaser 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 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
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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
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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
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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
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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
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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.
G. Access to Information. The Purchaser has received a copy of the
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following documents:
(i) The Company's Business Plan;
(ii) The Company's Private Placement Memorandum; and
(iii) The following Company's reports filed with the Commission as of the
date hereof:
1. Registration Statement on Form 10-SB filed on March 27, 1997;
2. Annual Report on Form 10-KSB for the year ended June 30, 1998
filed on September 25, 1998;
3. Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1998 filed on November 12, 1998;
4. Quarterly Report on Form 10-QSB for the quarter ended December
31, 1998 filed on February 17, 1999, together with
Notification of Late Filing on Form 12b-25 filed on February
16, 1999; and
5. Definitive Proxy Statement filed on January 8, 1999.
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.
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H. Suitability. The Purchaser has carefully considered, and has, to the
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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. The Purchaser acknowledges that the certificates evidencing the
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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.
SECTION IV
THE CLOSING AND CONDITIONS TO CLOSING
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A. Time and Place of the Closing. The closing shall be held at the offices
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of Xxxxxxxx Xxxxxxxxx Professional Corporation, 000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000, on May 11, 1999 (the "Closing Date"), or such other
time and place as the Corporation and the Purchaser may mutually agree.
B. Delivery by the Corporation. Delivery of the Shares shall be made by
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the Corporation to the Purchaser on 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 Purchaser. On the Closing Date, the Purchaser shall
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deliver to the Corporation the entire Aggregate Purchase Price by check or by
wire transfer to an account specified in writing to Purchaser by the
Corporation.
D. Other Conditions to Closing.
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(1) As of the Closing Date, all requisite action by the
Corporation's Board of Directors and shareholders shall have been taken pursuant
to the By-Laws of the Corporation.
(2) As of the Closing Date, the Corporation and the Purchaser shall
have entered into the Registration Rights Agreement.
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SECTION V
MISCELLANEOUS
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A. Entire Agreement. This Agreement contains the entire agreement between
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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
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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
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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
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benefit of the parties hereto and their respective successors and assigns.
E. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New Jersey applicable in the case of
agreements made and to be performed entirely within such State.
F. Dispute Resolution. The parties to this Agreement individually and on
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behalf of the Corporation agree to arbitrate all disputes or differences
hereunder or arising from their roles as shareholders, directors or officers
thereof. Such submission to arbitration shall be a condition precedent to the
bringing of any action, suit or proceeding by any such shareholder, director or
officer, either individually or on behalf of the Corporation. All of such
differences or disputes shall be settled and finally determined by arbitration
in the township of Princeton, New Jersey, according to the Rules of American
Arbitration Association (the "AAA") now in force or hereafter adopted, by
arbitrators selected by the AAA.
G. Counterparts. This Agreement may be executed in one or more identical
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counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Common Stock Purchase Agreement has been duly
executed by the parties hereto as of the date first above written.
CORPORATION PURCHASER
Senesco Technologies, Inc.
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By: Xxxxxxx X. Xxxxxxxxxx, Chairman [name]
and Chief Operating Officer [address]
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