March 30, 2000
CONFIDENTIAL
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Senesco Technologies, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
President and Chief Operating Officer
Ladies and Gentlemen:
This is to confirm our agreement whereby Senesco Technologies, Inc., a
Delaware corporation (the "Company"), has requested Xxxxxxxxxx & Co. Inc.
("Xxxxxxxxxx") to render investment banking services to it on an exclusive basis
as to the terms and conditions as set forth herein, and Xxxxxxxxxx has agreed to
render such services as follows:
1. The Company hereby engages Xxxxxxxxxx for the six (6) month period
commencing the date hereof to render advice to the Company as an investment
banker relating to financial and similar business matters. During the term
of this Agreement, Xxxxxxxxxx will provide the Company with financial
consulting advice as is reasonably requested by the Company primarily with
respect to the consideration and implementation of its strategic
alternatives, including evaluating financing alternatives. In addition, the
Company and Xxxxxxxxxx have entered into a separate agreement dated the
date hereof, which provides for Xxxxxxxxxx to raise up to $1,000,000 in the
Company's current private placement of common stock.
2. In consideration for the services rendered by Xxxxxxxxxx to the Company
pursuant to this Agreement, the Company shall compensate Xxxxxxxxxx as
follows:
(a) A monthly fee of $7,500, of which $22,500 is payable upon the execution
of this Agreement and $22,500 is payable three (3) months from the date
hereof.
(b) Five-year Warrants to purchase 100,000 shares of common stock at an
exercise price per share equal to the market price as determined by the
average of the closing bid price for the 30-day trading period prior to the
date hereof, 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.
(c) If, during the term of this Agreement, the Company enters into an
agreement to be acquired, merge, sell all or substantially all of its
assets or otherwise effect a corporate reorganization with any other
entity, the Company shall engage Xxxxxxxxxx as its financial advisor and
shall pay a transaction fee to Xxxxxxxxxx to be determined at that time,
but in any event such fee shall be reasonable and customary for the size
and nature of such a transaction.
(d) In the event the Company requests Xxxxxxxxxx to assist in discussions
regarding joint ventures or strategic alliances and an agreement develops,
the Company agrees to pay Xxxxxxxxxx a fee of five percent (5%) of any cash
received by the Company from such agreement including any up front payment
and any milestone payments. The fee paid to Xxxxxxxxxx pursuant to
paragraph 2(a) hereof shall be credited to any fee due Xxxxxxxxxx pursuant
to this paragraph 2(d).
(e) Xxxxxxxxxx shall have a right of first refusal for any investment
banking services of the Company, including merger and acquisition advisory
services and the sale or distribution of securities in a private or public
offering, until December 31, 2000. In such event, the Company and
Xxxxxxxxxx will enter into a separate agreement at such time and the fee
payable to Xxxxxxxxxx will be determined at such time on terms that are
standard and customary.
(f) In the event the Company requires a fairness opinion or valuation, the
fee payable to Xxxxxxxxxx will be determined at such time on terms that are
standard and customary.
3. In addition to the fees payable hereunder, the Company shall reimburse
Xxxxxxxxxx for its reasonable travel and out-of-pocket expenses incurred in
connection with the services performed by Xxxxxxxxxx pursuant to this
Agreement.
4. The Company acknowledges that all opinions and advice (written or oral)
given by Xxxxxxxxxx to the Company in connection with Xxxxxxxxxx'x
engagement are intended solely for the benefit and use of the Company in
considering the transaction to which they relate, and the Company agrees
that no such opinion or advice shall be used for any other purpose or
reproduced, disseminated, quoted or referred to at any time, in any manner
or for any purpose, nor may the Company make any public references to
Xxxxxxxxxx, or use Xxxxxxxxxx'x name in any annual reports or any other
reports or releases of the Company without Xxxxxxxxxx'x prior written
consent unless otherwise required by law. Xxxxxxxxxx acknowledges that the
Company intends to publicly announce that it has entered into this
Agreement; however any press release referring to Xxxxxxxxxx must be
approved by Xxxxxxxxxx prior to its release.
5. The Company acknowledges and agrees that there will be no claims or
payments for services in the nature of a finder's fee with respect to
Xxxxxxxxxx'x engagement or any other arrangements, agreements, payments,
issuances or understandings that may effect Xxxxxxxxxx'x compensation.
6. The Company recognizes and confirms that, in advising the Company and in
fulfilling its engagement hereunder, Xxxxxxxxxx will use and rely on data,
material and other information furnished to Xxxxxxxxxx by the Company. The
Company acknowledges and agrees that in performing its services under this
engagement, Xxxxxxxxxx may rely upon the data, material and other
information supplied by the Company without independently verifying the
accuracy, completeness or veracity of same.
7. Since Xxxxxxxxxx will be acting on behalf of the Company in connection with
its engagement hereunder, the Company and Xxxxxxxxxx have entered into a
separate indemnification agreement substantially in the form attached
hereto as Exhibit A and dated the date hereof, providing for the
indemnification of Xxxxxxxxxx by the Company. Xxxxxxxxxx has entered into
this Agreement in reliance on the indemnities set forth in such
indemnification agreement.
If the foregoing correctly sets forth the understanding between Xxxxxxxxxx
and the Company with respect to the foregoing, please so indicate your agreement
by signing in the place provided below, at which time this letter shall become a
binding contract.
Sincerely,
Xxxxxxxxxx & Co. Inc.
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Senior Vice President
Accepted and Agreed:
Senesco Technologies, Inc.
BY: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
President and Chief Operating Officer
Exhibit A
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March 30, 2000
Xxxxxxxxxx & Co. Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Senior Vice President
Dear Xx. Xxxxxxxx:
In connection with our engagement of Xxxxxxxxxx & Co. Inc. ("Xxxxxxxxxx")
as our financial advisor and investment banker, we hereby agree to indemnify and
hold harmless Xxxxxxxxxx and its affiliates, and the respective directors,
officers, shareholders, agents and employees of any of the foregoing
(collectively the "Indemnified Persons"), from and against any and all claims,
actions, suits, proceedings (including those of shareholders), damages,
liabilities and expenses incurred by any of them (including the reasonable fees
and expenses of counsel), (collectively a "Claim"), which are (A) related to or
arise out of (i) any actions taken or omitted to be taken (including any untrue
statements made or any statements omitted to be made) by the Company, or (ii)
any actions taken or omitted to be taken by any Indemnified Person in connection
with our engagement of Xxxxxxxxxx, or (B) otherwise relate to or arise out of
Xxxxxxxxxx'x activities on our behalf under Xxxxxxxxxx'x engagement, and we
shall reimburse any Indemnified Person for all expenses (including the
reasonable fees and expenses of counsel) incurred by such Indemnified Person in
connection with investigating, preparing or defending any such claim, action,
suit or proceeding, whether or not in connection with pending or threatened
litigation in which any Indemnified Person is a party. We will not, however, be
responsible for any Claim, which is finally judicially determined to have
resulted exclusively from the gross negligence or willful misconduct of any
person seeking indemnification hereunder. We further agree that no Indemnified
Person shall have any liability to us for or in connection with our engagement
of Xxxxxxxxxx except for any Claim incurred by us as a result of any Indemnified
Person's gross negligence or willful misconduct or as set forth in the
indemnification provisions of the Placement Agent Agreement entered into by
Xxxxxxxxxx and the Company dated the date hereof.
We further agree that we will not, without the prior written consent of
Fahnestock, 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.
Promptly upon receipt by an Indemnified Person of notice of any complaint
or the assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person shall notify
us in writing of such complaint or of such assertion or institution but failure
to so notify us shall not relieve us from any obligation we may have hereunder,
unless and only to the extent such failure results in the forfeiture by us of
substantial rights and defenses. If we so elect or are requested by such
Indemnified Person, we will assume the defense of such Claim, including the
employment of counsel reasonably satisfactory to such Indemnified Person and the
payment of the fees and expenses of such counsel. In the event, however, that
legal counsel to such Indemnified Person reasonably demonstrates to us, that
having common counsel would present such counsel with a conflict of interest or
if the defendant in, or target of, any such Claim, includes an Indemnified
Person and us, and legal counsel to such Indemnified Person reasonably concludes
that there may be legal defenses available to it or other Indemnified Persons
different from or in addition to those available to us, then such Indemnified
Person may employ its own separate counsel to represent or defend it in any such
Claim and we shall pay the reasonable fees and expenses of such counsel.
Notwithstanding anything herein to the contrary, if we fail timely or diligently
to defend, contest, or otherwise protect against any Claim, the relevant
Indemnified Party shall have the right, but not the obligation, to defend,
contest, compromise, settle, assert crossclaims, or counterclaims or otherwise
protect against the same, and shall be fully indemnified by us therefor,
including without limitation, for the reasonable fees and expenses of its
counsel and all amounts paid as a result of such Claim or the compromise or
settlement thereof. In any Claim in which we assume the defense, the Indemnified
Person shall have the right to participate in such Claim and to retain its own
counsel therefor at its own expense.
We agree that if any indemnity sought by an Indemnified Person hereunder is
held by a court to be unavailable for any reason, except for gross negligence or
willful misconduct by such Indemnified Person, then (whether or not Xxxxxxxxxx
is the Indemnified Person), we and Xxxxxxxxxx shall contribute to the Claim for
which such indemnity is held unavailable in such proportion as is appropriate to
reflect the relative benefits to us, on the one hand, and Xxxxxxxxxx on the
other, in connection with Xxxxxxxxxx'x engagement referred to above, subject to
the limitation that in no event shall the amount of Xxxxxxxxxx'x contribution to
such Claim exceed the amount of fees actually received by Xxxxxxxxxx from us
pursuant to Xxxxxxxxxx'x engagement. We hereby agree that the relative benefits
to us, on the one hand, and Xxxxxxxxxx on the other, with respect to
Xxxxxxxxxx'x engagement shall be deemed to be in the same proportion as (a) the
total value paid or proposed to be paid or received by us or our stockholders as
the case may be, pursuant to the transaction (whether or not consummated) for
which you are engaged to render services bears to (b) the fee paid or proposed
to be paid to Xxxxxxxxxx in connection with such engagement.
Our indemnity, reimbursement and contribution obligations under this
Agreement shall be in addition to, and shall in no way limit or otherwise
adversely affect any rights that any Indemnified Party may have at law or at
equity.
The validity and interpretation of this agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be fully performed therein (excluding the
conflicts of laws rules.) Each of Xxxxxxxxxx and the Company hereby irrevocably
submits to the jurisdiction of any court of the State of New York, County of New
York or the United States District Court for the Southern District of New York
for the purpose of any suit, action or other proceeding arising out of this
agreement or the transactions contemplated hereby, which is brought by or
against Xxxxxxxxxx or the Company and in connection therewith, each of
Xxxxxxxxxx and the Company (i) hereby irrevocably agrees that all claims in
respect of any such suit, action or proceeding may be heard and determined in
any such court, (ii) to the extent that it has acquired, or hereafter may
acquire, any immunity from jurisdiction of any such court or from any legal
process therein, it hereby waives, to the fullest extent permitted by law, such
immunity and (iii) agrees not to commence any action, suit or proceeding
relating to this agreement other than in any such court. Each of Xxxxxxxxxx and
the Company hereby waives and agrees not to assert in any such action, suit or
proceeding, to the fullest extent permitted by applicable law, any claim that
(a) it is not personally subject to the jurisdiction of any such court, (b) it
is immune from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to its property or (c) any suit, action or proceeding is brought in an
inconvenient forum.
It is understood that, in connection with Xxxxxxxxxx'x engagement,
Xxxxxxxxxx may be engaged to act in one or more additional capacities and that
the terms of the original engagement or any such additional engagement may be
embodied in one or more separate written agreements. The provisions of this
Agreement shall apply to the original engagement, any such additional engagement
and any modification of the original engagement or such additional engagement
and shall remain in full force and effect following the completion or
termination of Xxxxxxxxxx'x engagement(s).
Very truly yours,
Senesco Technologies, Inc.
By:
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Xxxxxx Xxxx
President and Chief Operating Officer
Confirmed and agreed to:
Xxxxxxxxxx & Co. Inc.
By:
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Xxxxx X. Xxxxxxxx
Senior Vice President
Date:
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AMENDMENT NO. 1 TO
INVESTMENT BANKING AGREEMENT
This Amendment No. 1 dated July 25, 2000 (this "Amendment") is made to
that certain Investment Banking Agreement dated as of March 30, 2000 (the
"Investment Banking 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, the Company and Xxxxxxxxxx are parties to 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, Xxxxxxxxxx and the Company are party to that certain Placement
Agent Agreement, dated as of March 30, 2000 (the "Placement Agent Agreement"),
whereby 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 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 2 of the Investment Banking Agreement is hereby amended by
deleting subsection (b) in its entirety and all references to such subsection,
if any, shall be amended accordingly.
2. RATIFICATION.
Except as amended hereby, all of the terms and conditions of the
Investment Banking 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 Investment Banking Agreement as of the date first written above.
SENESCO TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: President
XXXXXXXXXX & CO., INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President