THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 5 OF THIS WARRANT
-----------------------------------------------------
Warrant No. [ ] Number of Shares: [ ]
(subject to adjustment)
Date of Issuance: [ ]
Original Issue Date (as defined in subsection
2(a)): March 15, 2002
SENESCO TECHNOLOGIES, INC.
--------------------------
Common Stock Purchase Warrant
-----------------------------
(Void after [ ])
SENESCO TECHNOLOGIES, INC., a Delaware corporation (the "Company"), for
value received, hereby certifies that Pond Equities, Inc., or its registered
assigns (the "Registered Holder"), is entitled, subject to the terms and
conditions set forth below, to purchase from the Company, subject to the vesting
schedule in subsection 1(a) hereof, at any time or from time to time on or after
the date of issuance and on or before 5:00 p.m. (Eastern time) on [ ],
[ ], [ ] shares of Common Stock, $.O1 par value per share, of the Company
("Common Stock"), at a purchase price of $2.00 per share. The shares purchasable
upon exercise of this Warrant, and the purchase price per share, each as
adjusted from time to time pursuant to the provisions of this Warrant, are
hereinafter referred to as the "Warrant Shares" and the "Purchase Price,"
respectively.
l. Exercise.
--------
(a) Vesting. The Warrant Shares shall become exercisable in
-------
accordance with the following schedule (the "Vesting Schedule"):
Date Warrant Shares Number of Warrant Shares
become Exercisable becoming exercisable on such date
------------------ ---------------------------------
[ ] [ ]
(b) Exercise for Cash. The Registered Holder may, at its option,
-----------------
elect to exercise this Warrant, subject to the Vesting Schedule, in whole or in
part and at any time or from time to time, by surrendering this Warrant, with
the purchase form appended hereto as Exhibit I duly executed by or on behalf of
---------
the Registered Holder, at the principal office of the Company, or at such other
office or agency as the Company may designate, accompanied by payment in full,
in lawful money of the United States, of the Purchase Price payable in respect
of the number of Warrant Shares purchased upon such exercise.
(c) Cashless Exercise.
-----------------
(i) The Registered Holder may, at its option, elect to
exercise this Warrant, subject to the Vesting Schedule, in whole or in part and
at any time or from time to time, on a cashless basis, by surrendering this
Warrant, with the purchase form appended hereto as Exhibit I duly executed by or
---------
on behalf of the Registered Holder, at the principal office of the Company, or
at such other office or agency as the Company may designate, by canceling a
portion of this Warrant in payment of the Purchase Price payable in respect of
the number of Warrant Shares purchased upon such exercise. In the event of an
exercise pursuant to this subsection I(c), the number of Warrant Shares issued
to the Registered Holder shall be determined according to the following formula:
X = Y(A-B)
------
A
Where: X = the number of Warrant Shares that shall be issued to the
Registered Holder;
Y = the number of Warrant Shares for which this Warrant is
being exercised (which shall include both the number of
Warrant Shares issued to the Registered Holder and the
number of Warrant Shares subject to the portion of the
Warrant being cancelled in payment of the Purchase
Price);
A = the Fair Market Value (as defined below) of one share of
Common Stock; and
B = the Purchase Price then in effect.
(ii) The Fair Market Value per share of Common Stock shall be
determined as follows:
(1) If the Common Stock is listed on a national
securities exchange, the Nasdaq National Market, the Nasdaq SmallCap Market or
another nationally recognized trading system as of the Exercise Date, including
the NASD OTC Bulletin Board, the Fair Market Value per share of Common Stock
shall be deemed to be the closing sale price per share of Common Stock thereon
on the average for the five (5) trading days immediately preceding the Exercise
Date (provided that if no such price is reported on such day, the Fair Market
--------
Value per share of Common Stock shall be the average of the highest reported bid
and lowest reported ask price, as reported or quoted on such exchange or such
system, for the five (5) trading days immediately preceeding the Exercise Date.
(2) If the Common Stock is not listed on a national
securities exchange, the Nasdaq National Market or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the amount most recently determined by the
Board of Directors of the Company (the "Board") to represent the fair market
value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
Stock under any plan, agreement or arrangement with employees of the Company);
and, upon request of the Registered Holder, the Board (or a representative
thereof) shall, as promptly as reasonably practicable but in any event not later
than 10 days after such request, notify the Registered
-2-
Holder of the Fair Market Value per share of Common Stock and furnish the
Registered Holder with reasonable documentation of the Board's determination of
such Fair Market Value. Notwithstanding the foregoing, if the Board has not made
such a determination within the three month period prior to the Exercise Date,
then (A) the Board shall make, and shall provide or cause to be provided to the
Registered Holder notice of, a determination of the Fair Market Value per share
of the Common Stock within 15 days of a request by the Registered Holder that it
do so, and (B) the exercise of this Warrant pursuant to this subsection 1(c)
shall be delayed until such determination is made and notice thereof is provided
to the Registered Holder.
(d) Exercise Date. Each exercise of this Warrant shall be deemed to
-------------
have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company as provided in
subsection 1(b) or 1(c) above (the "Exercise Date"). At such time, the person or
persons in whose name or names any certificates for Warrant Shares shall be
issuable upon such exercise as provided in subsection 1 (e) below shall be
deemed to have become the holder or holders of record of the Warrant Shares
represented by such certificates.
(e) Issuance of Certificates. As soon as practicable after the
-------------------------
exercise of this Warrant in whole or in part, and in any event within 10 days
thereafter, the Company, at its expense, will cause to be issued in the name of,
and delivered to, the Registered Holder, or as the Registered Holder (upon
payment by the Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which the Registered Holder shall be entitled upon such
exercise, which shall include, if applicable, the rounding of any fraction up to
the nearest whole number of shares of Common Stock pursuant to Section 3 hereof;
and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the number of Warrant Shares for which this Warrant
was so exercised (which, in the case of an exercise pursuant to subsection 1(c),
shall include both the number of Warrant Shares issued to the Registered Holder
pursuant to such partial exercise and the number of Warrant Shares subject to
the portion of the Warrant being cancelled in payment of the Purchase Price).
2. Adjustments.
-----------
(a) Adjustment for Stock Splits and Combinations. If the
-----------------------------------------------
Company shall at any time or from time to time after the date on which this
Warrant was first issued (or, if this Warrant was issued upon partial exercise
of, or in replacement of, another warrant of like tenor, then the date on which
such original warrant was first issued) (either such date being referred to as
the "Original Issue Date") effect a subdivision of the outstanding Common Stock,
the Purchase Price then in effect immediately before that subdivision shall be
proportionately decreased. If the Company shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock,
the Purchase Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this paragraph
-3-
shall become effective at the close of business on the date the subdivision or
combination becomes effective.
(b) Adiustment for Certain Dividends and Distributions. In
----------------------------------------------------
the event the Company at any time, or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
(1) the numerator of which shall be the
total number of shares of Common Stock issued and outstanding immediately prior
to the time of such issuance or the close of business on such record date, and
(2) the denominator of which shall be the
total number of shares of Common Stock issued and outstanding immediately prior
to the time of such issuance or the close of business on such record date plus
the number of shares of Common Stock issuable in payment of such dividend or
distribution;
provided, however, that if such record date shall have been fixed and such
-------- -------
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Purchase Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Purchase Price shall be
adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions.
(c) Adiustment in Number of Warrant Shares. When any
-------------------------------------------
adjustment is required to be made in the Purchase Price pursuant to subsections
2(a) or 2(b), the number of Warrant Shares purchasable upon the exercise of this
Warrant shall be changed to the number determined by dividing (i) an amount
equal to the number of shares issuable upon the exercise of this Warrant
immediately prior to such adjustment, multiplied by the Purchase Price in effect
immediately prior to such adjustment, by (ii) the Purchase Price in effect
immediately after such adjustment.
(d) Adiustments for Other Dividends and Distributions. In
----------------------------------------------------
the event the Company at any time or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than regular cash dividends paid out of earnings or earned
surplus, determined in accordance with generally accepted accounting
principles), then and in each such event provision shall be made so that the
Registered Holder shall receive upon exercise hereof, in addition to the number
of shares of Common Stock issuable hereunder, the kind and amount of securities
of the Company, cash or other property which the Registered Holder would have
been entitled to receive had this Warrant been exercised on the date of such
event and had the Registered Holder thereafter, during the period from the date
of such event to and including the Exercise Date, retained any such securities
receivable during such period, giving application to all adjustments called for
during such period under this Section 2 with respect to the rights of the
Registered Holder.
-4-
(e) Adiustment for Reorganization. If there shall occur any
-----------------------------
reorganization, recapitalization, reclassification, consolidation or merger
involving the Company in which the Common Stock is converted into or exchanged
for securities, cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)) (collectively, a "Reorganization"), then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. In any such case, appropriate adjustment (as determined in good
faith by the Board) shall be made in the application of the provisions set forth
herein with respect to the rights and interests thereafter of the Registered
Holder, to the end that the provisions set forth in this Section 2 (including
provisions with respect to changes in and other adjustments of the Purchase
Price) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any securities, cash or other property thereafter deliverable upon
the exercise of this Warrant.
(f) Certificate as to Adjustments. Upon the occurrence of
-------------------------------
each adjustment or readjustment of the Purchase Price pursuant to this Section
2, the Company at its expense shall, as promptly as reasonably practicable but
in any event not later than 10 days thereafter, compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the Registered
Holder a certificate setting forth such adjustment or readjustment (including
the kind and amount of securities, cash or other property for which this Warrant
shall be exercisable and the Purchase Price) and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, as
promptly as reasonably practicable after the written request at any time of the
Registered Holder (but in any event not later than 10 days thereafter), furnish
or cause to be furnished to the Registered Holder a certificate setting forth
(i) the Purchase Price then in effect and (ii) the number of shares of Common
Stock and the amount, if any, of other securities, cash or property which then
would be received upon the exercise of this Warrant.
3. Fractional Shares. The Company shall not be required upon the
-----------------
exercise of this Warrant to issue any fractions of shares of Common Stock or
fractional Warrants; provided, however, that if the Registered Holder exercises
-------- -------
this Warrant, any fractional shares of Common Stock shall be eliminated by
rounding any fraction up to the nearest whole number of shares of Common Stock.
The Registered Holder of this Warrant, by acceptance hereof, expressly waives
his right to receive any fractional share of Common Stock or fractional Warrant
upon exercise of this Warrant.
4. Investment Representations. The initial Registered Holder
---------------------------
represents and warrants to the Company as follows:
(a) Investment. It is acquiring the Warrant, and (if and
----------
when it exercises this Warrant) it will acquire the Warrant Shares, for its own
account for investment and not with a view to, or for sale in connection with,
any distribution thereof, nor with any present intention of distributing or
selling the same; and the Registered Holder has no present or contemplated
agreement, undertaking, arrangement, obligation, indebtedness or commitment
providing for the disposition thereof;
(b) Federal and State Compliance. The Registered Holder
------------------------------
understands that this Warrant and any Warrant Shares purchased upon its exercise
are securities, the issuance of which requires compliance with federal and state
securities law, including the Securities Act of 1933, as amended (the "Act");
-5-
(c) [Accredited Investor. The Registered Holder is an
--------------------
"accredited investor" as defined in Rule 501(a) under the Securities Act of
1933, as amended (the "Act");]
(d) Experience. The Registered Holder has made such inquiry
----------
concerning the Company and its business and personnel as it has deemed
appropriate; and the Registered Holder has sufficient knowledge and experience
in finance and business that it is capable of evaluating the risks and merits of
its investment in the Company; and
(e) Restricted Securities. The Registered Holder
------------------------
acknowledges and understands that the Warrant and Warrant Shares constitute
restricted securities under the Act and must be held indefinitely unless
subsequently registered under the Act or an exemption from such registration is
available.
5. Transfers, etc.
---------------
(a) This Warrant and the Warrant Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Act, or (ii) the Company first shall have been furnished with an opinion of
legal counsel, reasonably satisfactory to the Company, to the effect that such
sale or transfer is exempt from the registration requirements of the Act.
Notwithstanding the foregoing, no registration or opinion of counsel shall be
required for (i) a transfer by a Registered Holder which is an entity to a
wholly owned subsidiary of such entity, a transfer by a Registered Holder which
is a partnership to a partner of such partnership or a retired partner of such
partnership or to the estate of any such partner or retired partner, or a
transfer by a Registered Holder which is a limited liability company to a member
of such limited liability company or a retired member or to the estate of any
such member or retired member, provided that the transferee in each case agrees
--------
in writing to be subject to the terms of this Section 5, or (ii) a transfer made
in accordance with Rule 144 under the Act.
(b) Each certificate representing Warrant Shares shall bear
a legend substantially in the following form:
"The securities represented by this certificate
have not been registered under the Securities Act
of 1933, as amended (the "Act"), and may not be
offered, sold or otherwise transferred, pledged
or hypothecated unless and until such securities
are registered under such Act or an opinion of
counsel satisfactory to the Company is obtained
to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates representing
any Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act.
(c) The Company will maintain a register containing the name
and address of the Registered Holder of this Warrant. The Registered Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change.
-6-
(d) Subject to the provisions of Section 5 hereof, this
Warrant and all rights hereunder are transferable, in whole or in part, upon
surrender of this Warrant with a properly executed assignment (in the form of
Exhibit II hereto) at the principal office of the Company (or, if another office
----------
or agency has been designated by the Company for such purpose, then at such
other office or agency).
6. Notices of Record Date, etc. In the event:
----------------------------
(a) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to
receive any dividend or other distribution, or to receive any right to subscribe
for or purchase any shares of stock of any class or any other securities, or to
receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the Common Stock of the Company, any consolidation or merger
of the Company with or into another corporation (other than a consolidation or
merger in which the Company is the surviving entity and its Common Stock is not
converted into or exchanged for any other securities or property), or any
transfer of all or substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company,
then, and in each such case, the Company will send or cause to be sent to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be sent at least 10 days prior to
the record date or effective date for the event specified in such notice.
7. Reservation of Stock. The Company will at all times reserve and
---------------------
keep available, solely for issuance and delivery upon the exercise of this
Warrant, such number of Warrant Shares and other securities, cash and/or
property, as from time to time shall be issuable upon the exercise of this
Warrant.
-7-
8. Exchange or Replacement of Warrants.
-----------------------------------
(a) Upon the surrender by the Registered Holder, properly
endorsed, to the Company at the principal office of the Company, the Company
will, subject to the provisions of Section 5 hereof, issue and deliver to or
upon the order of the Registered Holder, at the Company's expense, a new Warrant
or Warrants of like tenor, in the name of the Registered Holder or as the
Registered Holder (upon payment by the Registered Holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock (or other securities, cash
and/or property) then issuable upon exercise of this Warrant.
(b) Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and (in
the case of loss, theft or destruction) upon delivery of an indemnity agreement
(with surety if reasonably required) in an amount reasonably satisfactory to the
Company, or (in the case of mutilation) upon surrender and cancellation of this
Warrant, the Company will issue, in lieu thereof, a new Warrant of like tenor.
9. Agreement in Connection with Public Offering. The Registered
-----------------------------------------------
Holder agrees, in connection with an underwritten public offering of the
Company's securities pursuant to a registration statement under the Act, (i) not
to sell, make short sale of, loan, grant any options for the purchase of, or
otherwise dispose of any shares of Common Stock held by the Registered Holder
(other than any shares included in the offering) without the prior written
consent of the Company or the underwriters managing such underwritten public
offering of the Company's securities for a period of 180 days from the effective
date of such registration statement, and (ii) to execute any agreement
reflecting clause (i) above as may be requested by the Company or the managing
underwriters at the time of such offering.
10. Notices. All notices and other communications from the Company
-------
to the Registered Holder in connection herewith shall be mailed by certified or
registered mail, postage prepaid, or sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery, to the address last
furnished to the Company in writing by the Registered Holder. All notices and
other communications from the Registered Holder to the Company in connection
herewith shall be mailed by certified or registered mail, postage prepaid, or
sent via a reputable nationwide overnight courier service guaranteeing next
business day delivery, to the Company at its principal office set forth below.
If the Company should at any time change the location of its principal office to
a place other than as set forth below, it shall give prompt written notice to
the Registered Holder and thereafter all references in this Warrant to the
location of its principal office at the particular time shall be as so specified
in such notice. All such notices and communications shall be deemed delivered
(i) two business days after being sent by certified or registered mail, return
receipt requested, postage prepaid, or (ii) one business day after being sent
via a reputable nationwide overnight courier service guaranteeing next business
day delivery.
11. No Rights as Stockholder. Until the exercise of this Warrant,
--------------------------
the Registered Holder shall not have or exercise any rights by virtue hereof as
a stockholder of the Company.
12. Amendment or Waiver. Any term of this Warrant may be amended
--------------------
or waived only by an instrument in writing signed by the party against which
enforcement of the change or waiver is sought. No waivers of any term, condition
or provision of this Warrant, in any one or
-8-
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
13. Section Headings. The section headings in this Warrant are for
----------------
the convenience of the parties and in no way alter, modify, amend, limit or
restrict the contractual obligations of the parties.
-9-
14. Governing Law. This Warrant will be governed by and construed
-------------
in accordance with the internal laws of the State of New Jersey (without
reference to the conflicts of law provisions thereof).
15. Facsimile Signatures. This Warrant may be executed by facsimile
--------------------
signature.
EXECUTED as of the Date of Issuance indicated above.
SENESCO TECHNOLOGIES, INC.
By:
--------------------------------------
Title:
ATTEST:
----------------------------
-10-
EXHIBIT I
PURCHASE FORM
-------------
To: Dated:
----------------------- ------------------
The undersigned, pursuant to the provisions set forth in the
attached Warrant (No. ), hereby elects to purchase (check applicable box):
---
o shares of the Common Stock of SENESCO TECHNOLOGIES, INC. covered
-----
by such Warrant; or
o the maximum number of shares of Common Stock covered by such Warrant
pursuant to the cashless exercise procedure set forth in subsection 1(c).
The undersigned herewith makes payment of the full purchase price for
such shares at the price per share provided for in such Warrant. Such payment
takes the form of (check applicable box or boxes):
o $ in lawful money of the United States; and/or
-----
o the cancellation of such portion of the attached Warrant as is
exercisable for a total of Warrant Shares (using a Fair Market
-----
Value of $ per share for purposes of this calculation); and/or
-----
o the cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in subsection 1 (c), to
exercise this Warrant with respect to the maximum number of Warrant
Shares purchasable pursuant to the cashless exercise procedure set
forth in subsection 1(c).
Signature:
-----------------------------
Address:
-------------------------------
-------------------------------
-11-
EXHIBIT II
ASSIGNMENT FORM
---------------
FOR VALUE RECEIVED, hereby sells, assigns and transfers
------------------
all of the rights of the undersigned under the attached Warrant (No. with
-------
respect to the number of shares of Common Stock of SENESCO TECHNOLOGIES, INC.
covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
---------------- ------- -------------
Dated: Signature:
------------------- -------------------------
Signature Guaranteed:
By:
----------------------
The signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad- 15
under the Securities Exchange Act of 1934.
-12-
Schedule of Terms
-------------------
to
--
Warrants Issued to Pond Equities, Inc.
--------------------------------------
Warrant Date of Warrant Number of Exercise
No. Issuance Holder Shares Price
-------------- ----------------- --------------------------------------- ---------------- -----------------
78 03/15/02 Pond Equities, Inc. 6,888 2.00
89 03/15/02 Pond Equities, Inc. 11,682 2.00
