SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of ,
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2004, by and among Senesco Technologies, Inc., a Delaware corporation (the
"Company"), and those accredited investors listed on the signature pages
attached hereto (individually, a "Purchaser" and, collectively, the
"Purchasers").
W I T N E S S E T H :
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WHEREAS, the Company desires to sell, transfer and assign to the
Purchasers, and the Purchasers, severally and not jointly, desire to purchase
from the Company: (i) shares (the "Shares") of the Company's authorized but
unissued common stock, $0.01 par value per share (the "Common Stock"); and (ii)
warrants to purchase shares of Common Stock (the "Warrants", and, together with
the Shares, the "Securities"), having an aggregate purchase price of up to
$4,500,000 (assuming full exercise of the Company's over-allotment option).
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 AND SALE 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 respective number of Securities to each Purchaser as set forth on
the signature pages attached hereto, and each Purchaser, severally and not
jointly, agrees to purchase, acquire and accept their respective number of
Securities from the Company as set forth on the signature pages attached hereto.
B. Purchase Price. The Securities shall be sold hereunder as units
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consisting of one share of Common Stock and one Warrant to purchase 35% of the
Shares sold to each Purchaser hereunder. The purchase price for each unit sold
hereunder shall be $2.37. The purchase price for the Securities shall be
deposited by the Purchasers into an escrow account (the "Escrow Account") at
X.X. Xxxxxx Trust Company, N.A., pursuant to the terms of an escrow agreement,
substantially in the form attached hereto as Exhibit A, in the amounts set forth
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on the signature pages attached hereto. 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. The Warrants shall have an exercise price equal to $3.79 per
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share, shall be exercisable immediately and shall have a term of five years from
the Closing Date.
D. Minimum/Maximum Investment Amount. In no event shall the funds
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deposited in the Escrow Account be released to the Company until such time as
the aggregate funds deposited therein is at least equal to $1,000,000 (the
"Minimum Investment Amount"). In the event the Minimum Investment Amount is not
deposited in the Escrow Account by January 15, 2004, the
escrow agent shall return the deposited funds to the Purchasers as soon as
reasonably practicable. The maximum aggregate purchase price for the Securities
sold hereunder shall be $3,500,000; provided, however, that, the Company, in its
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sole discretion, may allow for an over-allotment option of up to $1,000,000.
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
Purchasers, as of the date hereof, that:
A. Organization; Good Standing. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to own its properties and to
conduct the business in which it is now engaged.
B. Authority. The Company has the full corporate power, authority and
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legal right to execute and deliver this Agreement and to perform all of its
obligations and covenants hereunder, and no consent or approval of any other
person or governmental authority is required therefor. The execution and
delivery of this Agreement by the Company, the performance by the Company of its
obligations and covenants hereunder and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action. This Agreement constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforceability of creditors'
rights in general or by general principles of equity.
C. No Legal Bar; Conflicts. Neither the execution and delivery of this
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Agreement, nor the consummation of the transactions contemplated hereby,
violates any provision of the Certificate of Incorporation, as amended, or
By-Laws of the Company or any law, statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts with or
results in any breach of any of the terms of or constitutes a default under or
results in the termination of or the creation of any lien pursuant to the terms
of any contract or agreement to which the Company is a party or by which the
Company or any of its assets is bound.
D. Non-Assessable Shares. The Securities being issued hereunder have been
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duly authorized and, the Shares, when issued to the Purchasers for the
consideration herein provided, and the shares of Common Stock issued upon the
proper exercise of the Warrants, will be validly issued, fully paid and
non-assessable.
SECTION III
REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS OF THE PURCHASERS
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Each Purchaser, severally, and not jointly, represents and warrants to, and
covenants and agrees with, the Company, as of the date hereof, that:
A. Organization (if applicable). The Purchaser is, and as of the Closing
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Date 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 Date 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 this
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Agreement, nor the consummation by the Purchaser of the transactions
contemplated hereby, violates any law, statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency applicable to the
Purchaser, or violates, or conflicts with, any contract, commitment, agreement,
understanding or arrangement of any kind to which the Purchaser is a party or by
which the Purchaser is bound.
D. No Litigation. No action, suit or proceeding against the Purchaser
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relating to the consummation of any of the transactions contemplated by this
Agreement nor any governmental action against the Purchaser seeking to delay or
enjoin any such transactions is pending or, to the Purchaser's knowledge,
threatened.
E. Investment Intent. The Purchaser: (i) is an accredited investor within
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the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the
"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 shares of the Company 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 shares. The Purchaser represents that the
Accredited Investor Questionnaire provided to the Company is true and complete
in all respects. 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 3 in offering and selling the
Securities to the Purchaser.
F. Economic Risk; Restricted Securities. The Purchaser recognizes that the
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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 2 of this Agreement or the right of the
Purchaser to rely thereon. The Purchaser is able to bear the economic risks of
an investment in the 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.
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(i) The Purchaser has received and reviewed a copy of the following
documents of the Company:
1. Annual Report on Form 10-KSB for the year ended June 30, 2003;
2. Definitive Proxy Statement for the 2003 Annual Meeting of Stockholders;
3. Quarterly Report on Form 10-QSB for the quarter ended September 30,
2003; and
4. Any press releases issued after the Company's most recently filed Form
10-QSB.
(ii) The Purchaser represents that it has not received any
confidential information about the Company other than what has been disclosed in
the public 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
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extent the Purchaser deems it necessary, discussed with the Purchaser's own
professional legal, tax and financial advisers the suitability of an investment
in the 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
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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
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A. Time and Place of the Closing. The initial closing shall be held at the
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offices of Xxxx and Xxxx LLP, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx
00000, on January 15, 2004. The Company may have subsequent closings at such
other time and place as the Company and the Purchasers may mutually agree until
February 2, 2004 (each, the "Closing Date").
B. Delivery by the Company. Delivery of the Securities shall be made by
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the Company, or by its transfer agent, as applicable, to the Purchasers as soon
as reasonably practicable after the Closing Date by delivering certificates
representing their respective portion of Securities as set forth on the
signature pages attached hereto, each such certificate to be accompanied by any
requisite documentary or transfer tax stamps.
C. Delivery by the Purchasers. On or before the Closing Date, each
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Purchaser shall deliver to the Company its respective portion of the aggregate
purchase price, based on the number of Securities purchased by such Purchaser as
set forth on the signature pages attached hereto, by certified bank check or by
irrevocable wire transfer to the Company's escrow agent as per the escrow
instructions attached hereto as Exhibit B; provided, however, that once the
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amount deposited in the Escrow Account equals the Minimum Investment Amount (as
defined below), the Purchasers shall deliver the purchase price directly to the
Company as per the instructions attached hereto as Exhibit C.
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D. Minimum Investment. The consummation of the sale and issuance of the
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Securities hereunder shall be conditioned upon the Company receiving
subscriptions of at least $1,000,000.
E. Registration Rights Agreement. The Company shall deliver to each
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Purchaser, and each Purchaser shall deliver to the Company, an executed copy of
that certain Registration Rights Agreement made by and among the Company and the
Purchasers of even date herewith, substantially in the form attached hereto as
Exhibit D.
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F. Other Conditions to Closing. As of the Closing Date, all requisite
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action by the Company's Board of Directors shall have been taken pursuant to the
By-Laws of the Company.
G. Expenses. The Company and each of the Purchasers shall bear their own
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costs and expenses incurred in connection with the transactions contemplated
hereby; provided, however, that the Company shall reimburse the lead investor
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for their BONA FIDE expenses (including reasonable attorneys' fees) incurred in
connection with the transactions contemplated hereby up to an amount not to
exceed $10,000. A Purchaser shall be deemed the lead investor if such Purchaser
purchases Securities hereunder for an aggregate amount not less than $1,000,000
and invests more than any other Purchaser. In the event two or more Purchasers
invest an equal amount greater than $1,000,000, the Company shall reimburse each
of such Purchasers equally in an amount not to exceed $10,000 in the aggregate.
SECTION V
MISCELLANEOUS
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A. Entire Agreement. This Agreement contains the entire agreement between
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the parties hereto with respect to the transactions contemplated hereby, and no
modification hereof shall be effective unless in writing and signed by the party
against which it is sought to be enforced.
B. Invalidity, Etc. If any provision of this Agreement, or the application
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of any such provision to any person or circumstance, shall be held invalid by a
court of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
C. Headings. The headings of this Agreement are for convenience of
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reference only and are not part of the substance of this Agreement.
D. Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and assigns.
E. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware applicable in the case of
agreements made and to be performed entirely within such State, without regard
to principles of conflicts of law, and the parties hereto hereby submit to the
exclusive jurisdiction of the state and federal courts located in the State of
New Jersey.
F. Counterparts. This Agreement may be executed in one or more identical
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counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
* * * * * *
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:
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Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
PURCHASERS:
[If an entity]
Entity Name:
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By:
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Name:
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Title:
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Address:
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Telecopy:
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[If an individual]
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Name:
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Address:
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Telecopy:
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(a) Investment Amount: $
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(b) shares of Common Stock.
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(c) Warrant to purchase shares of Common Stock.
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EXHIBIT A
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FORM OF ESCROW AGREEMENT
EXHIBIT B
ESCROW WIRE TRANSFER INSTRUCTIONS
EXHIBIT C
COMPANY TRANSFER INSTRUCTIONS
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF PARTIES TO THE SECURITIES PURCHASE AGREEMENT
Shares of Shares
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Investment Common Stock Underlying
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Name of Purchaser Amount Issued Warrants Issued
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Seneca Capital International Ltd. $670,000 282,700 98,945
Heartland Advisors, Inc., on behalf of the
Raytheon Master Pension Trust Account $355,500 150,000 52,500
Seneca Capital L.P. $330,000 139,241 48,734
Heartland Group, Inc., on behalf of the
Heartland Value Fund $237,000 100,000 35,000
Wm. Xxxxxxx Xxxxxxx $150,000 63,291 22,152
St. Alban's Global Management $125,000 52,743 18,460
McLennan Holdco Inc. $125,000 52,743 18,460
Xxxx May $125,000 52,743 18,460
Spectra Capital Management, LLC $125,000 52,743 18,460
Xxxxxxx Xxxx $100,000 42,194 14,768
Xxxxx Xxxxxxx $75,000 31,646 11,076
Xxxxxxxxxxx Xxxxxx $75,000 31,646 11,076
