Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of November 30,
2001, by and between Senesco Technologies, Inc., a Delaware corporation (the
"Company"), and Stanford Venture Capital Holdings, Inc., a Delaware corporation
(the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company desires to sell, transfer and assign to the Purchaser,
and the Purchaser desires to purchase from the Company, 1,142,858 shares (the
"Shares") of the Company's restricted common stock, $0.01 par value per share
(the "Common Stock"), and warrants to purchase 1,000,000 shares of Common Stock
(the "Warrants"), for an aggregate purchase price of $2,000,000 (the Warrants,
together with the Shares, shall be referred to herein as the "Securities");
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION I
PURCHASE, SALE AND REGISTRATION OF THE SECURITIES
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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 Company hereby agrees to sell, transfer, assign
and convey the Securities to the Purchaser, and the Purchaser agrees to
purchase, acquire and accept the Securities from the Company.
B. Purchase Price. The Securities are hereby offered at a price of
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$1.75 per unit, equal to one share of Common Stock and a Warrant to purchase
0.875 shares of Common Stock. The aggregate purchase price for the Securities to
be paid by the Purchaser to the Company is $2,000,000 (the "Aggregate Purchase
Price"). The Aggregate Purchase Price shall be paid by the Purchaser to the
Company on the Closing Date either via certified bank check or irrevocable wire
transfer. The parties to this Agreement agree that, as soon as reasonably
practicable after the date hereof, they shall allocate, in good faith, the
purchase price between the Shares and Warrants so purchased.
C. Warrants. Fifty percent (50%) of the Warrants shall have an exercise
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price of $2.00 per Share and fifty percent (50%) of the Warrants shall have an
exercise price of $3.25 per Share and shall have the terms set forth in the form
of Warrantattached hereto as Exhibit A, which shall each be executed by the
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Company on the Closing Date.
D. Placement Fee and Expenses. On the Closing Date, the Company shall pay
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to the Purchaser a placement fee of $100,000. In addition, the Company shall
reimburse the Purchaser for its reasonable fees and expenses in connection with
the purchase of the Securities, subject to a maximum reimbursement of $10,000.
Such amounts shall be paid via certified bank check or irrevocable wire
transfer.
E. Registration Rights Agreement. On the Closing Date, the Company and
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the Purchaser shall enter into a Registration Rights Agreement in the form
attached hereto as Exhibit B (the "Registration Rights Agreement").
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SECTION II
REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE COMPANY
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The Company represents and warrants to, and covenants and agrees with, the
Purchaser, as of the date hereof and as of the Closing Date, that:
A. Organization, Good Standing and Power. The Company 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 Company 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 Company 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 Company and each such
subsidiary is duly incorporated or duly qualified as a foreign Company to do
business and is in good standing in every jurisdiction of the United States, or
any other country, state, province, or political subdivision 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 on the Company's financial condition.
For purposes of this Agreement, "Material Adverse Effect" shall mean any effect
on the business, operations, properties or financial condition of the Company
that is material and adverse to the Company and its subsidiaries, taken as a
whole and/or any condition, circumstance, or situation that would prohibit the
ability of the Company to enter into and perform any of its obligations under
this Agreement, the Warrant or the Registration Rights Agreement.
B. Authorization; Enforcement. The Company has the corporate power and
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authority to enter into and perform this Agreement, the Warrant and the
Registration Rights Agreement, and to issue and sell the Shares and the Warrants
in accordance with the terms hereof and thereof. The execution, delivery and
performance of this Agreement, the Warrant and the Registration Rights Agreement
by the Company 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 Company or its
Board of Directors or stockholders is required. Each of this Agreement, the
Warrant and the Registration Rights Agreement has been duly executed and
delivered by the Company. Each of this Agreement, the Warrant and the
Registration Rights Agreement constitutes, or shall constitute when executed and
delivered, a valid and binding obligation of the Company enforceable against the
Company 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.
C. Capitalization. The authorized capital stock of the Company and the
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shares thereof issued and outstanding as of the date hereof, including all
options to acquire shares of capital stock issued as of the date hereof, are set
forth in the Company's Proxy Statement for its 2001
Annual Meeting. All of the outstanding shares of the Company's capital stock
have been duly and validly authorized. Except as set forth in this Agreement,
the Warrant, the Registration Rights Agreement or the Commission Documents, no
shares of Common Stock are entitled, from the Company, 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
Company. Furthermore, except as set forth in this Agreement, the Warrant, the
Registration Rights Agreement or the Commission Documents, there are no
contracts, commitments, understandings, or arrangements by which the Company is
or may become bound to issue additional shares of the capital stock of the
Company or options, securities or rights convertible into shares of capital
stock of the Company. Except for customary transfer restrictions contained in
agreements entered into by the Company in order to sell restricted securities or
as provided in the Commission Documents, the Company is not a party to any
agreement granting registration rights to any person with respect to any of its
equity or debt securities. Except as set forth in the Commission Documents, the
offer and sale of all capital stock, convertible securities, rights, warrants,
or options of the Company issued prior to the date hereof 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 Company has filed as exhibits to the Commission Documents true and
correct copies of the Company's Certificate of Incorporation as in effect on the
date hereof (the "Certificate"), and the Company's Bylaws as in effect on the
date hereof (the "Bylaws").
D. Issuance of Shares. The Shares to be issued under this Agreement and
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the shares of Common Stock to be issued under each Warrant (the "Warrant
Shares"), have been duly authorized by all necessary corporate action and, when
paid for or issued in accordance with the terms hereof and thereof, the
Securities and the Warrant Shares shall be validly issued and outstanding, fully
paid and nonassessable, free and clear of all liens, charges, and encumbrances
of any nature whatsoever, except for restrictions on transfer that may exist
under applicable securities laws, and the Purchaser shall be entitled to all
rights accorded to a holder of Common Stock.
E. No Conflicts. The execution, delivery and performance of this
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Agreement, the Warrant and the Registration Rights Agreement by the Company and
the consummation by the Company of the transactions contemplated herein and
therein do not (i) violate any provision of the Certificate 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 Company is a party, (iii) create or impose
a lien, charge or encumbrance on any property of the Company under any agreement
or any commitment to which the Company is a party or by which the Company 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 Company or any of its subsidiaries or by
which any property or asset of the Company 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
Company 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, the Warrant and the Registration Rights Agreement, or
issue and sell the Shares and the Warrants in accordance with the terms hereof
(other than any filings which may be required to be made by the Company with the
Commission, the National Association of Securities Dealers, Inc. (the "NASD"),
or state securities administrators subsequent or prior to the Closing Date
hereunder, and, any registration statement which may be filed pursuant hereto);
provided that, for purpose of the representation made in this sentence, the
Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the Purchaser.
F. Commission Documents; Financial Statements. The Common Stock of the
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Company 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
Company has timely filed all Commission Documents. The Company has made
available to the Purchaser true and complete copies of the Commission Documents
filed with the Commission as set forth in Section III(G) hereof. The Company has
not provided to the Purchaser any information which, according to applicable
law, rule or regulation, should have been disclosed publicly by the Company but
which has not been so disclosed, or for which the Purchaser has not executed a
confidentiality agreement, other than with respect to the transactions
contemplated by this Agreement. As of their respective dates, the Form 10-KSB
for the fiscal year ended June 30, 2001 and the Form l0-QSB for the fiscal
quarter ended September 30, 2001 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
l0-KSB and the Form l0-QSB 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 Company 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 Company 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 Company's Form 10-KSB for the fiscal year ended
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June 30, 2001 sets forth each subsidiary of the Company, showing the
jurisdiction of its incorporation or organization and showing the percentage of
each person's ownership of the outstanding capital stock or other interests of
such subsidiary. For the purposes of this Agreement, "subsidiary" shall mean any
Company 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 Company 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 September 30, 2001, the date through
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which the most recent quarterly report of the Company on Form l0-QSB has been
filed with the Commission, a copy of which is included in the Commission
Documents, the Company 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 Company 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 Company 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 Company's or
its subsidiaries respective businesses since June 30, 2001 and which,
individually or in the aggregate, do not or would not have a Material Adverse
Effect on the Company or its subsidiaries.
J. No Undisclosed Events or Circumstances. Except for the transactions
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and documents contemplated hereby, no event or circumstance has occurred or
exists with respect to the Company 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 Company but which has not been so publicly announced or
disclosed.
K. Indebtedness. The Company's Form 10-QSB for the period ended September
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30, 2001 sets forth, as of the date hereof, all outstanding secured and
unsecured Indebtedness of the Company or any subsidiary, or for which the
Company 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 Company'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 Company nor any
subsidiary is in default with respect to any Indebtedness.
L. Title to Assets. Each of the Company and the subsidiaries has good
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and marketable title to all of its real and personal property reflected in the
Company's Form 10-KSB for the fiscal year ended June 30, 2001, 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 Company's
financial condition or operating results. All said leases of the Company 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 Company, threatened against the
Company or any subsidiary which questions the validity of this Agreement, the
Warrant or the Registration Rights Agreement, or the transactions contemplated
hereby or thereby, or any action taken or to be taken pursuant hereto or
thereto. There is no action, suit, claim, investigation or proceeding pending
or, to the knowledge of the Company, threatened, against or involving the
Company, 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 Company, there are no outstanding orders, judgments,
injunctions, awards or decrees of any court, arbitrator or governmental or
regulatory body against the Company or any subsidiary.
N. Compliance with Law. The business of the Company and the subsidiaries
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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 Company's most recent Form 10-KSB and Form 10-QSB or
except where such failure would not cause a Material Adverse Effect. The Company
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
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 Company, the Company'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.
O. Certain Fees. Except as otherwise provided herein, no brokers,
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finders or financial advisory fees or commissions will be payable by the Company
or any subsidiary with respect to the transactions contemplated by this
Agreement.
P. Disclosure. Neither this Agreement or the Exhibits hereto nor any
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other documents, certificates or instruments furnished to the Purchaser by or on
behalf of the Company 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 Company and each
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of the subsidiaries owns or possesses all patents, trademarks, service marks,
trade names, copyrights, licenses and authorizations as set forth in the
Company's Form 10-KSB for the year ended June 30, 2001 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 Company 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 Company's Form 10-KSB for the year ended June 30, 2001
including, without limitation, the inventions underlying, and the trade names
for, the Company's technology; and the Company is not aware of the granting of
any patent rights to, or the filing of applications therefor by, others, nor is
the Company aware of, or has the Company 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 Company, not being
infringed upon by any third parties. To the knowledge
of the Company, none of the inventions described and claimed in the pending
patent applications disclosed in the Commission Documents and filed on behalf of
original inventors with respect to the inventions underlying the Company's
technology has been described or suggested in either the relevant patent
literature or the relevant scientific literature. To the knowledge of the
Company, 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 Company has not made any representation or concealed
any material fact from the PTO.
R. Environmental Compliance. The Company and each of its subsidiaries
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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, except where the failure to obtain such authorizations would not have a
Material Adverse Effect. For purposes of this Agreement, "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 Company
or its subsidiaries that violate or would reasonably be expected to violate any
Environmental Law after the Closing Date hereunder or that would 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 Company 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 Company or any subsidiary were registering securities under
the Securities Act of 1933, as amended, (the "Securities Act"), which has not
been previously filed as an exhibit to the Commission Documents. The Company 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 Company's
knowledge, are not in default under any Material Agreement now in effect, the
result of which would 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 Company, any subsidiary or any of their
respective customers or suppliers on the one hand, and (b) on the other hand,
any person who would be covered by Item 404(a) of Regulation S-K or any company
or other entity controlled by such stockholder, officer, employee, consultant,
director or person.
U. Securities Act. The Company has complied with all applicable federal
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and state securities laws in connection with the offer, issuance and sale of the
Securities hereunder and the Warrant Shares pursuant to the Warrant. Neither the
Company nor anyone acting on its behalf, directly or indirectly, has sold,
offered to sell or solicited offers to buy the Shares, the Warrants 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 Company nor, to the knowledge of the Company, 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 or the
Warrants.
V. Employees. Neither the Company 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 Company 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 Company or such subsidiary. Since
June 30, 2001, except as disclosed in Commission Documents, no officer,
consultant or key employee of the Company or any subsidiary whose termination,
either individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect, has terminated or, to the knowledge of the Company, has
any present intention of terminating his or her employment or engagement with
the Company or any subsidiary.
W. Public Utility Holding Company Act and Investment Company Act Status.
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The Company is not a "holding company" or a "public utility company" as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
The Company is not, and as a result of and immediately upon the Closing Date
will not be, an "investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended.
X. ERISA. No liability to the Pension Benefit Guaranty Company has been
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incurred with respect to any Plan by the Company or any of its subsidiaries
which is or would be materially adverse to the Company and its subsidiaries. The
execution and delivery of this Agreement, the Warrant and the Registration
Rights Agreement, and the issue and sale of the Shares and the Warrants, 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 the Purchaser, or any person or entity that owns a beneficial interest
in the Purchaser, is an "employee pension benefit plan" (within the meaning of
Section 3(2) of ERISA) with respect to which the
Company is a "party in interest" (within the meaning of Section 3(14) of 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 "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 Company or any subsidiary or by any trade or business, whether or not
incorporated, which, together with the Company or any subsidiary, is under
common control, as described in Section 414(b) or (c) of the Code.
Y. Taxes. The Company 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
Company and the subsidiaries for all current taxes and other charges to which
the Company 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 Company or its subsidiaries.
None of the federal income tax returns of the Company or any subsidiary for the
last five (5) years has been audited by the Internal Revenue Service. The
Company has no knowledge of any additional assessments, adjustments or
contingent tax liability (whether federal, state, local or foreign) pending or
threatened against the Company or any subsidiary or any person for whose tax
liabilities the Company 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 Records; Internal Accounting Controls. The records and
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documents of the Company and its subsidiaries accurately reflect in all material
respects the information relating to the business of the Company 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
Company or any subsidiary.
AA. Survival. All representations, warranties, covenants and agreements
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made by the Company in this Agreement or in any writing or certificate delivered
in connection with this Agreement shall survive the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby for
a period of one (1) year, except that any representations and warranties related
to taxes shall survive for three (3) years.
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 Company, as of the date hereof and as of the Closing Date, that:
A. Organization; Good Standing. The Purchaser is, and as of the
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Closing will be, duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization.
B. Authorization. The Purchaser has, and as of the Closing will
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have, all requisite power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby, have been duly and validly authorized by all
necessary action on the part of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser and constitutes its legal, valid and
binding obligation, enforceable against the Purchaser in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforceability of creditors'
rights in general or by general principles of equity.
C. No Legal Bar; Conflicts. Neither the execution and delivery of
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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
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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 Act, and is aware that the certificates representing
the Purchaser's respective ownership of the Securities will bear related
restrictive legends; and (iii) except as otherwise set forth herein, is
acquiring the Securities hereunder without registration under the Act in
reliance on the exemption from registration contained in Section 4(2) of the Act
and/or Rule 506 promulgated pursuant to Regulation D of the Act, for investment
for its own account, and not with a view toward, or for sale in connection with,
any distribution thereof, nor with any present intention of distributing or
selling such Securities. The Purchaser has been given the opportunity to ask
questions of, and receive answers from, the officers of the Company regarding
the Company, its current and proposed business operations and the Securities,
and the officers of the Company have made available to the Purchaser all
documents and information that the Purchaser has requested relating to an
investment in the Company. The Purchaser has been given the
opportunity to retain competent legal counsel in connection with the purchase of
the Securities and acknowledges that the Company has relied upon the Purchaser's
representations in this Section III in offering and selling the Securities to
the Purchaser.
F. Economic Risk; Restricted Securities. The Purchaser recognizes
------------------------------------
that the investment in the Securities involves a number of significant risks.
The foregoing, however, does not limit or modify the representations, warranties
and agreements of the Company in Section II of this Agreement or the right of
the Purchaser to rely thereon. The Purchaser is able to bear the economic risks
of an investment in the Securities for an indefinite period of time, has no need
for liquidity in such investment and, at the present time, can afford a complete
loss of such investment.
G. Access to Information.
---------------------
(i) The Purchaser has received and reviewed a copy of the
following documents of the Company:
1. Private Placement Memorandum dated November 1, 2001;
2. Annual Report on Form 10-KSB for the year ended June 30, 2001;
3. Definitive Proxy Statement for the 2001 Annual Meeting of
Stockholders;
4. Quarterly Report on Form 10-QSB for the quarter ended September
30, 2001; and
5. Any press releases issued after the Company's most recently
filed Form 10-QSB.
(ii) The Purchaser represents that it has received the
documents set forth above, and has had the opportunity to ask questions of, and
receive answers from, the Company regarding the foregoing documents.
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 Securities for the Purchaser's particular tax and financial
situation, and the Purchaser has determined that the Securities is a suitable
investment.
I. Legend. The Purchaser acknowledges that the certificates
------
evidencing the Securities will bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER SUCH ACT OR AN OPINION OF COUNSEL TO THE ISSUER THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT.
SECTION IV
THE CLOSING AND CONDITIONS TO CLOSING
-------------------------------------
A. Time and Place of the Closing. The closing shall be held at the
-----------------------------
offices of Xxxx and Xxxx LLP, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx
00000, on November ___, 2001 (the "Closing Date"), or such other time and place
as the Company and the Purchaser may mutually agree.
B. Delivery by the Company. Delivery of the Securities shall be made
-----------------------
by the Company, or by its transfer agent, as applicable, to the Purchaser as
soon as reasonably practicable after the Closing Date by delivering certificates
representing the Securities, 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 deliver to the Company the Aggregate Purchase Price, by irrevocable wire
transfer to an account specified in writing to the Purchaser by the Company.
D. Placement Fee and Expenses. As of the Closing Date, the terms and
--------------------------
provisions of Section I(D) above shall have been satisfied.
E. Registration Rights Agreement. The Company shall deliver to the
-----------------------------
Purchaser, and the Purchaser shall deliver to the Company, an executed copy of
the Registration Rights Agreement.
F. Warrant. The Company shall execute and deliver to the Purchaser
-------
the Warrant.
G. Opinion of Counsel. The Purchaser shall receive an opinion from
------------------
Xxxx and Xxxx LLP, counsel for the Company, dated as of the Closing Date,
addressed to the Purchaser and satisfactory in form and substance to the
Purchaser.
H. Other Conditions to Closing. As of the Closing Date, all
---------------------------
requisite action by the Company's Board of Directors and stockholders shall have
been taken pursuant to the Certificate of Incorporation and By-Laws of the
Company, and the representations and warranties made by the Company in Section
II hereof shall be true and correct when made and as of the Closing Date.
SECTION V
INDEMNIFICATION
---------------
A. General Indemnity. The Company agrees to indemnify and hold
-----------------
harmless the 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 Company herein, in the Warrant and the Registration Rights
Agreement, except where such misrepresentation or breach is caused by the
Purchaser. The Purchaser agrees to indemnify and hold harmless the Company and
its directors, officers, affiliates, agents, successors and assigns from and
against any and all actual losses, liabilities, deficiencies, costs, damages and
expenses (including, without limitation, reasonable attorneys fees, charges and
disbursements but excluding consequential damages) incurred by the Company as
result of any breach of the representations and covenants made by the Purchaser
herein, in the Warrant and the Registration Rights Agreement, except where such
misrepresentation or breach is caused by the Company.
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 indemnifying party or others, and (b) any liabilities the
indemnifying party may be subject to pursuant to the law.
SECTION VI
POST CLOSING CONDITIONS
-----------------------
A. Registration of Warrant Shares. The Company shall cause all of
------------------------------
the Warrant Shares to be registered on a Form S-3 registration statement, or
such similar form, under the Securities Act on or before June 30, 2002.
B. Capitalization of Directors' Loans. In connection with those
----------------------------------
certain promissory notes in the aggregate principal amount of $525,000, made by
the Company payable to certain directors of the Company (the "Director Notes"),
such directors have executed a letter agreement providing that the entire
principal amount outstanding under the Director Notes, plus any interest which
has accrued as of the date of conversion, shall be converted into shares of the
Company's restricted Common Stock and Warrant Shares on or before December 31,
2001 on the same terms as provided herein, and the Company shall cause such
directors to have the Director Notes converted by that date.
SECTION VII
MISCELLANEOUS
-------------
A. Entire Agreement. This Agreement contains the entire agreement
----------------
between the parties hereto with respect to the transactions contemplated hereby,
and no modification hereof shall be effective unless in writing and signed by
the party against which it is sought to be enforced.
B. Invalidity, Etc. If any provision of this Agreement, or the
---------------
application of any such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby.
C. Headings. The headings of this Agreement are for convenience
--------
of reference only and are not part of the substance of this Agreement.
D. Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of the parties hereto and their respective successors and
assigns.
E. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware applicable in the
case of agreements made and to be performed entirely within such State, without
regard to principles of conflicts of law.
F. Counterparts. This Agreement may be executed in one or more
------------
identical counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
* * * * * *
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
COMPANY:
SENESCO TECHNOLOGIES, INC.
By:______________________________________
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
PURCHASER:
STANFORD VENTURE CAPITAL HOLDINGS, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
EXHIBIT A
---------
FORM OF WARRANT
EXHIBIT B
---------
FORM OF REGISTRATION RIGHTS AGREEMENT
