PLACEMENT AGENT AGREEMENT
March 30, 2000
Xxxxxxxxxx & Co. Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The undersigned, Senesco Technologies, Inc., a Delaware corporation (the
"Company"), hereby agrees with Xxxxxxxxxx & Co. Inc. ("Xxxxxxxxxx" or "Placement
Agent") as follows:
1. PRIVATE PLACEMENT. The Company hereby agrees to allow Xxxxxxxxxx to
place, as its agent, up to $1,000,000 of its common stock (the "Stock" or
"Shares") in its current private placement of up to $2,000,000 on terms and
conditions that are mutually satisfactory. The Shares shall be offered without
registration under the Securities Act of 1933, as amended and the rules and
regulations promulgated thereunder (the "Act") pursuant to the exemption from
registration created by Regulation D thereof.
2. PRIVATE PLACEMENT MEMORANDUM. The Company shall, as soon as
practicable, prepare a Private Placement Memorandum covering the proposed
offering which the Company reasonably believes shall meet the anti-fraud and
other requirements of the federal and state securities laws. The Private
Placement Memorandum shall be in form and substance reasonably satisfactory to
Xxxxxxxxxx and to the Company and to their respective counsel. The Company
agrees that it shall modify or supplement the Private Placement Memorandum
during the course of the offering to insure that the Private Placement
Memorandum does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
3. COMPENSATION. Xxxxxxxxxx will be paid at the closing of such sales
a cash commission of seven percent (7%) of the subscription price of each Share
sold by Xxxxxxxxxx.
If, during the term of the offering hereunder, the Placement Agent delivers
a copy of the Private Placement Memorandum to an investor who purchases within
one (1) year after such introduction any securities of the Company in a private
transaction, Xxxxxxxxxx shall be entitled to a cash commission of 7%.
4. EXPENSES. It shall be the Company's obligation to bear all of the
expenses in connection with the proposed offering, including Xxxxxxxxxx'x
reasonable legal expenses, if any, and "blue sky" counsel fees and expenses for
filing in such states as may be agreed upon.
5. FURTHER REPRESENTATIONS AND AGREEMENTS OF THE COMPANY. The Company
represents and agrees that (i) it is authorized to enter into this Agreement and
to carry out the offering contemplated hereunder and this Agreement constitutes
a legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, (ii) the Company will, during the course of the offering, solely
at its expense, provide Xxxxxxxxxx with all information and copies of
documentation with respect to the Company's business, financial condition and
other matters as Xxxxxxxxxx may reasonably deem relevant, and will, make
reasonably available to Xxxxxxxxxx, its auditors, counsel, and officers and
directors to discuss with Xxxxxxxxxx any aspect of the Company or its business
which Xxxxxxxxxx may reasonably deem relevant, (iii) the Company has entered
into an investment banking agreement with Xxxxxxxxxx dated the date hereof, (iv)
the Company will deliver at the closing of sales conducted hereunder (a) a
certificate of each of the Company's President and Treasurer to the effect that
the Private Placement Memorandum meets the requirements hereof and has been
modified or supplemented as required by Paragraph 2 hereof and does not contain
any untrue statement of material fact or fail to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and all necessary corporate approvals have been obtained to enable
the Company to deliver the Shares in accordance with the terms of the offering
and (b) a limited opinion of counsel for the Company substantially in the form
attached hereto in Exhibit A, (v) the Company shall use its "best efforts" to
have the registration statement in which the Shares are included effective
within nine (9) months from the final closing hereunder and (vi) all officers,
directors and holders of Common Stock greater than five percent (5%) shall enter
into a lock-up agreement with Xxxxxxxxxx, in which they will agree not to sell
any shares held by them under Rule 144 or otherwise for a period from the date
hereof until the earlier of (y) nine (9) months from the final closing hereunder
or (z) 30 days following the effective date of a registration statement in which
the Shares are included.
6. INDEMNIFICATION. (a) Subject to the conditions set forth below, the
Company hereby agrees that it will indemnify and hold harmless Xxxxxxxxxx and
each director, officer, shareholder, employee or representative of Xxxxxxxxxx
and each person controlling, controlled by or under common control with
Xxxxxxxxxx within the meaning of Section 15 of the Act or Section 20 of the 1934
Act, (individually, an "Indemnified Person") from and against any and all loss,
claim, damage, liability, cost or expense whatsoever (including, but not limited
to, any and all reasonable legal fees and other expenses and disbursements
incurred in connection with investigating, preparing to defend or defending any
claim, action, suit or proceeding (a "Claim"), including any inquiry or
investigation, commenced or threatened, in appearing or preparing for appearance
as a witness in any Claim, including any inquiry, investigation or pretrial
proceeding such as a deposition) (collectively a "Loss") to which such
Indemnified Person may become subject under the Act, the 1934 Act or any other
federal or state statutory law or regulation at common law or otherwise, arising
out of, based upon, or in any way related or attributed to (i) this Agreement,
(ii) any untrue statement or alleged untrue statement of material fact contained
in the Private Placement Memorandum (except those statements given by an
Indemnified Person for inclusion therein or omission to state a material fact
therein), or (iii) the breach of any
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representation, covenant or warranty made by the Company in this Agreement. The
Company further agrees that upon demand by an Indemnified Person at any time or
from time to time, it will promptly reimburse such Indemnified Person for any
Loss actually and reasonably paid by the Indemnified Person as to which the
Company has indemnified such person pursuant hereto. Notwithstanding the
foregoing provisions of this Paragraph 6, any such payment or reimbursement by
the Company of fees, expenses or disbursements incurred by an Indemnified Person
in any Claim in which a final judgment by a court of competent jurisdiction
(after all appeals or the expiration of time to appeal) is entered against such
Indemnified Person as a direct result of such person's gross negligence, bad
faith or willful misfeasance will be repaid promptly to the Company.
(b) Promptly after receipt by any Indemnified Person under paragraph
(a) above of notice of the commencement of any Claim, such Indemnified Person
will, if a claim in respect thereof is to be made against the Company under
paragraph (a), notify the Company in writing of the commencement thereof, and
the Company shall assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Person; provided, however, that if the
defendants in any such action include both the Indemnified Person and the
Company or any corporation controlling, controlled by or under common control
with the Company, or any director, officer, employee, representative or agent of
any thereof, and the Indemnified Person shall have reasonably concluded that
there may be legal defenses available to it which are different from or
additional to those available to such other defendant, the Indemnified Person
shall have the right to select separate counsel to represent it, and the Company
shall pay the reasonable fees and expenses of such separate counsel. Failure of
the Indemnified Person to so notify us shall not relieve us from any obligation
we may have hereunder, unless and to the extent such failure results in the
forfeiture by us of substantial rights and defenses and will not in any event
relieve us from any other obligation or liability we may have to any Indemnified
Person otherwise than under this Agreement.
We further agree that we will not, without the prior written consent of the
relevant Indemnified Person, settle, compromise or consent to the entry of any
judgment in any pending or threatened Claim in respect of which indemnification
may be sought hereunder (whether or not any Indemnified Person is an actual or
potential party to such Claim), unless such settlement, compromise or consent
includes an unconditional, irrevocable release of each Indemnified Person
hereunder from any and all liability arising out of such Claim.
(c) Xxxxxxxxxx agrees that it will indemnify and hold harmless the Company
and each of its directors and officers, against any Loss whatsoever (including,
but not limited to, any and all legal fees and other expenses) to which the
Company or any such director or officer may be subject solely as a result of
statements made in the Private Placement Memorandum based solely upon
information supplied by Xxxxxxxxxx to the Company in writing or based upon the
improper conduct of Xxxxxxxxxx or any of its employees or agents in acting as
Placement Agent for the offering and sale hereunder.
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(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Paragraph 6 is due in accordance with its terms, but is for any reason held by a
court to be unavailable from the Company to Xxxxxxxxxx on grounds of policy or
otherwise, the Company and Xxxxxxxxxx shall contribute to the aggregate Loss to
which the Company and Xxxxxxxxxx may be subject in such proportion so that
Xxxxxxxxxx is responsible for that portion represented by the percentage that
the aggregate of its commission and expenses under this Agreement bears to the
aggregate offering price received by the Company for all Shares sold under the
Private Placement Memorandum, and the Company is responsible for the balance,
except as the Company may otherwise agree to reallocate a portion of such
liability with respect to such balance with any other person; provided, however,
that no person guilty of fraudulent misrepresentation within the meaning of
Section 11(f) of the Act shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), any person controlling, controlled by or under common control
with Xxxxxxxxxx, or any partner, director, officer, employee, representative or
any agent of any thereof, shall have the same rights to contribution as
Xxxxxxxxxx and each person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the 1934 Act, each director and officer
of the Company shall have the same rights to contribution as the Company. Any
party entitled to contribution hereunder, promptly after receipt of notice of
commencement of any Claim against such party in respect of which a claim for
contribution may be made against the other party under this paragraph (d), shall
notify such party from whom contribution may be sought, but the omission to so
notify such party shall not relieve the party from whom contribution may be
sought from any obligation it or they may have hereunder or otherwise than under
this paragraph (d). The indemnity and contribution agreements contained in this
Paragraph 6 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any Indemnified Person or any
termination of this Agreement.
7. TERMINATION. The Company and Xxxxxxxxxx may terminate or extend the
Agreement at any time by mutual written consent.
8. COMPETING CLAIMS. The Company acknowledges and agrees there are no
claims or payments for services in the nature of a finder's fee or any other
arrangements, agreements, payments, issuances or understandings that may effect
Xxxxxxxxxx'x compensation.
9. MISCELLANEOUS.
(a) Governing Law. This Agreement and the transactions contemplated hereby
shall be governed in all respects by the laws of the State of New York, without
giving effect to its conflict of laws principles.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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(c) Notices. Whenever notice is required to be given pursuant to this
Agreement, such notice shall be in writing and shall either be (i) mailed by
certified first class mail, postage prepaid, addressed (a) if to Xxxxxxxxxx, at
the address set forth at the head of this Agreement, Attention: Xxxxx X.
Xxxxxxxx, Senior Vice President; (b) if to the Company, at 00 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, Attention: Xxxxxx Xxxx, President and Chief Operating
Officer; and (c) if to Company's counsel, Xxxxxxxx Ingersoll Professional
Corporation at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxx X.
Xxxxx, Esq. or (ii) delivered personally or by express courier. The notice shall
be deemed given, if sent by mail, on the third day after deposit in a United
States post office receptacle, or if delivered personally or by express courier,
then upon receipt.
(d) Dispute. In the event of any action at law, suit in equity or
arbitration proceeding in relation to this Agreement or the transactions
contemplated by this Agreement, the prevailing party, or parties, shall be paid
its reasonable attorney's fees and expenses arising from such action, suit or
proceeding by the other party.
If the foregoing correctly sets forth the understanding between Xxxxxxxxxx
and the Company, please so indicate in the space provided below for that purpose
whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
Senesco Technologies, Inc.
By: /s/ Xxxxxx Xxxx
------------------------
Xxxxxx Xxxx
President and Chief
Operating Officer
Confirmed and agreed to:
Xxxxxxxxxx & Co. Inc.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
Senior Vice President
Date: March 30, 2000
-------------------
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Exhibit A
ANNEX TO SECURITIES PURCHASE AGREEMENT
, 2000
-------
Purchasers of [Company] [Describe Securities]
c/o [F & Co. Counsel]
Re: [Company]
Ladies and Gentlemen:
We have acted as counsel to [Company], a corporation incorporated under the
laws of the State of (the "Company"), in connection with
the proposed issuance and sale of (the "Securities") pursuant to
the Securities Purchase Agreement , dated between the Company and
(the "Buyer"), including all Exhibits and Appendices annexed
thereto and all documents and instruments executed and delivered as contemplated
thereby (collectively, the "Agreements").
In connection with rendering the opinions set forth herein, we have
examined drafts of the Agreement, the Company's Certificate of Incorporation,
and its Bylaws, each as amended to date [other documents - describe], the
proceedings of the Company's Board of Directors taken in connection with
entering into the Agreements, and such other documents, agreements and records
as we deemed necessary to render the opinions set forth below.
In conducting our examination, we have assumed the following: (i) that each
of the Agreements has been executed by each of the parties thereto in the same
form as the forms which we have examined, (ii) the genuineness of all
signatures, the legal capacity of natural persons, the authenticity and accuracy
of all documents submitted to us as originals, and the conformity to originals
of all documents submitted to us as copies, (iii) that each of the Agreements
has been duly and validly authorized, executed, and delivered by the party or
parties thereto other than the Company, and (iv) that each of the Agreements
constitutes the valid and binding agreement of the party or parties thereto
other than the Company, enforceable against such party or parties in accordance
with the Agreements' terms.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of , is
duly qualified to do business as a foreign corporation and is in good standing
in all jurisdictions where the Company owns or leases properties, maintains
employees or conducts business, except for jurisdictions in which the failure to
so qualify
would not have a material adverse effect on the Company, and has all requisite
corporate power and authority to own its properties and conduct its business.
2. The authorized capital stock of the Company consists of shares
of Common Stock, par value per share, ("Common Stock") and shares
of Preferred Stock, par value $ per share; [describe classes if
applicable].
3. The Common Stock is registered pursuant to Section 12(b) or Section
12(g) of the Securities Exchange Act of 1934, as amended and the Company has
timely filed all the material required to be filed pursuant to Sections 13(a) or
15(d) of such Act for a period of at least twelve months preceding the date
hereof.
4. When duly countersigned by the Company's transfer agent and registrar,
and delivered to you or upon your order against payment of the agreed
consideration therefor in accordance with the provisions of the Agreements, the
Securities [and any Common Stock to be issued upon the conversion of the
Securities] as described in the Agreements represented thereby will be duly
authorized and validly issued, fully paid and nonassessable.
5. The Company has the requisite corporate power and authority to enter
into the Agreements and to sell and deliver the Securities and the Common Stock
to be issued upon the conversion of the Securities as described in the
Agreements; each of the Agreements has been duly and validly authorized by all
necessary corporate action by the Company to our knowledge, no approval of any
governmental or other body is required for the execution and delivery of each of
the Agreements by the Company or the consummation of the transactions
contemplated thereby; each of the Agreements has been duly and validly executed
and delivered by and on behalf of the Company, and is a valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by general equitable principles, bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other laws
affecting creditors rights generally, and except as to compliance with federal,
state, and foreign securities laws, as to which no opinion is expressed.
6. To the best of our knowledge, after due inquiry, the execution, delivery
and performance of the Agreements by the Company and the performance of its
obligations thereunder do not and will not constitute a breach or violation of
any of the terms and provisions of, or constitute a default under or conflict
with or violate any provision of (i) the Company's Certificate of Incorporation
or By-Laws, each as currently in effect, (ii) any indenture, mortgage, deed of
trust, agreement or other instrument to which the Company is a party or by which
it or any of its property is bound, (iii) any applicable statute or regulation,
or (iv) any judgment, decree or order of any court or governmental body having
jurisdiction over the Company or any of its property.
7. The issuance of Common Stock upon conversion of the Securities in
accordance with the terms and conditions of the Agreements, will not violate the
applicable listing agreement between the Company and any securities exchange or
market on which the Company's securities are listed.
8. The Company complies with the eligibility requirements for the use of
Form S-3, under the Securities Act of 1933, as amended.
9. To the best of our knowledge, after due inquiry, there is no pending or
threatened litigation, investigation or other proceedings against the Company
[except as described in Exhibit A hereto].
To the extent any of the foregoing opinions is based on information or
representations of one or more specified individuals, organizations, agencies or
entities or is stated to be "to the best of our knowledge," we hereby confirm
that, after due inquiry which we consider to be appropriate for the issues
involved in rendering such opinion, we are aware of no information inconsistent
with such opinion there expressed.
This opinion is rendered only with regard to the matters set out in the
numbered paragraphs above. No other opinions are intended nor should they be
inferred. This opinion is based solely upon the laws of the United States and
the State OF STATE IDENTIFIED IN GOVERNING LAW SECTION (IF YOU ARE ADMITTED
THERE); OTHERWISE THE STATE WHERE YOU ARE ADMITTED, as currently in effect, and
the SPECIFY PROPER TITLE OF [GENERAL] CORPORATION LAW of the State of [WHERE
COMPANY INCORPORATED] and does not include an interpretation or statement
concerning the laws of any other state or jurisdiction. Insofar as the
enforceability of the Agreements may be governed by the laws of other states, we
have assumed that such laws are identical in all respects to the laws of the
State of IDENTIFY THE STATE WHERE YOU ARE ADMITTED NAMED IN THE FIRST BLANK IN
THIS PARAGRAPH.
The opinions expressed herein are given to you solely for your use in
connection with the transaction contemplated by the Agreements and may not be
relied upon by any other person or entity or for any other purpose without our
prior consent.
Very truly yours,
By:
------------------------------------
AMENDMENT NO. 1 TO
PLACEMENT AGENT AGREEMENT
This Amendment No. 1 dated July 25, 2000 (this "Amendment") is made to
that certain Placement Agent Agreement dated as of March 30, 2000 (the
"Placement Agent Agreement"), made by and between Senesco Technologies, Inc.,
a Delaware corporation (the "Company"), and Xxxxxxxxxx & Co. Inc.
("Xxxxxxxxxx"). This Amendment is to be effective as of March 30, 2000.
WITNESSETH:
WHEREAS, Xxxxxxxxxx, acting as the Company's placement agent pursuant to
the Placement Agent Agreement, assisted the Company in a private placement (the
"Private Placement") raising $2,207,550 in gross proceeds; and
WHEREAS, the Company and Xxxxxxxxxx are also parties to that certain
Investment Banking Agreement, dated as of March 30, 2000 (the "Investment
Banking Agreement"), whereby Xxxxxxxxxx shall provide the Company with financial
advisory services on an exclusive basis; and
WHEREAS, the Investment Banking Agreement provides for the payment of a
monthly fee by the Company to Xxxxxxxxxx and the issuance of warrants (the
"Warrants") to purchase one hundred thousand (100,000) shares of the Company's
common stock; and
WHEREAS, the parties now desire to amend both the Placement Agent
Agreement and the Investment Banking Agreement, such that the Warrants will be
part of the consideration given to Xxxxxxxxxx under the Placement Agent
Agreement, instead of being part of the consideration given to Xxxxxxxxxx under
the Investment Banking Agreement;
NOW THEREFORE, in consideration of the premises, and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged by the parties, the parties hereto agree as follows:
1. AMENDMENTS.
Section 3 of the Placement Agent Agreement is hereby amended by adding to
the end of such Section the following paragraph:
"In addition, Xxxxxxxxxx shall be granted five-year Warrants to
purchase one hundred thousand (100,000) shares of common stock of the
Company at an exercise price per share equal to $1.50 per share, which
shall be issued upon execution of this Agreement. The Warrants will
contain certain registration rights on terms substantially as set forth in
the Company's registration rights agreement."
2. RATIFICATION.
Except as amended hereby, all of the terms and conditions of the Placement
Agent Agreement, shall remain in full force and effect, and are hereby ratified
and confirmed in all respects.
3. GOVERNING LAW.
This Amendment shall be governed by and construed under the laws of the
State of New York as such laws are applied to contracts made and to be fully
performed entirely within that state between residents of that state.
4. COUNTERPARTS.
This Amendment may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
* * * * *
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 to
the Placement Agent Agreement as of the date first written above.
SENESCO TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
Title: President
XXXXXXXXXX & CO., INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
