AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (the "Amendment") is
dated as of February 12, 2004, by and among Senesco Technologies, Inc., a
Delaware corporation (the "Company"), and those persons listed on the signature
pages attached hereto (individually, a "Purchaser" and, collectively, the
"Purchasers").
WHEREAS, the Company and the Purchasers previously entered into a
Registration Rights Agreement in the form attached hereto as Exhibit A (the
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"Agreement") to facilitate the resale of securities purchased in connection with
the sale, transfer and assignment to the Purchasers, severally and not jointly,
of shares (the "Shares") of the Company's authorized but unissued common stock,
$0.01 par value per share (the "Common Stock"), and warrants to purchase shares
of Common Stock (the "Warrants" and, together with the Shares, the
"Securities"); and
WHEREAS, the Company and the Purchasers wish to amend certain terms of the
Agreement.
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:
1. The following subsection is hereby added to Article 2, Section 2.2 of
the Agreement:
(d) In the event that the Company fails to respond in writing
to any comments of the Commission on the Registration
Statement within ten (10) business days following receipt
thereof, the Company will pay to each Purchaser, in cash,
check or by wire transfer, one and one-half percent (1.5%)
of the aggregate purchase price paid by the Purchaser for all
Shares and Warrants sold to each such Purchaser pursuant to
the Securities Purchase Agreement.
2. Except as amended hereby, the terms and provisions of the Agreement
remain in full force and effect.
3. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware applicable in the case of agreements made and
to be performed entirely within such State, without regard to principles of
conflicts of law, and the parties hereto hereby submit to the exclusive
jurisdiction of the state and federal courts located in the State of New Jersey.
4. This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument, and may be executed by facsimile
signatures.
* * * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
COMPANY:
Senesco Technologies, inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
PURCHASERS:
[If an entity]
Entity Name: Crestview Capital Master, L.L.C.
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Managing Member
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Address: 95 Revere Drive, Ste. A
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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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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EXHIBIT A
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FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
December [ ], 2003 by and among Senesco Technologies, Inc., a Delaware
corporation (the "Company"), and those persons listed on the signature pages
attached hereto (individually, a "Purchaser" and, collectively, the
"Purchasers").
RECITALS
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WHEREAS, it is a condition precedent to the obligations of each Purchaser
under that certain Securities Purchase Agreement made by and among the
Purchasers and the Company, dated as of the date hereof (the "Securities
Purchase Agreement"), that the Company grant registration rights for the shares
of common stock of the Company, $0.01 par value per share (the "Common Stock"),
in connection with resales by the Purchasers of the Common Stock; and
WHEREAS, the Company and the Purchasers now desire to enter into this
Agreement in order to facilitate such resales.
AGREEMENT
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The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the following
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meanings.
"Board" means the Board of Directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which banks in New Jersey are authorized by law to close.
"Common Stock" has the meaning given to it in the recitals to this
Agreement.
"Closing Date" shall mean the final Closing Date as defined in the
Securities Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" means Senesco Technologies, Inc., a Delaware corporation.
"Effective Time" means the date of effectiveness of any Registration
Statement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" has the meaning given to it in Section 2.1(b) hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means an individual, corporation, partnership, association, trust
or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
"Prospectus" means the prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"Registration Statement" means a Registration Statement of the Company
relating to the registration for sale of Common Stock, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and materials incorporated by
reference therein.
"Restricted Securities" means any Securities held by the Purchasers until
(i) a Registration Statement covering such Securities has been declared
effective by the Commission and such Securities have been disposed of pursuant
to such effective Registration Statement, (ii) such Securities qualify to be
sold under circumstances in Rule 144(k) (or any similar provisions then in
force), (iii) such Securities are otherwise transferred, the Company has
delivered a new certificate or other evidence of ownership for such Securities
not bearing a legend restricting further transfer and such Securities may be
resold without registration under the Securities Act, or (iv) such Securities
shall have ceased to be outstanding.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities" means the shares of Common Stock held by the Purchaser on the
date hereof, or issued upon the proper exercise of the Warrants issued to the
Purchasers on the date hereof, and any securities issued in respect of such
shares upon any stock split, stock dividend, recapitalization, merger,
consolidation, reorganization or similar event.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Purchase Agreement" has the meaning given to it in the recitals
to this Agreement.
"Warrants" shall have the meaning set forth in the Securities Purchase
Agreement.
As used in this Agreement, words in the singular include the plural, and in
the plural include the singular.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Securities Subject to this Agreement.
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(a) The Securities entitled to the benefits of this Agreement are the
Restricted Securities, but only for so long as they remain Restricted
Securities.
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(b) A Person is deemed to be a holder of Restricted Securities (each, a
"Holder") whenever such Person is the registered holder of such Restricted
Securities on the Company's books and records.
2.2 Required Registration
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(a) Within forty-five (45) days after the Closing Date (or, if the date
that is forty-five (45) days after the Closing Date is not a business day, the
next business day immediately following such date), the Company will prepare and
file with the SEC a registration statement on Form S-3 or any successor form
(except that if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3, then such registration shall be on Form S-1,
or Form S-2, as applicable, or any successor form) for the purpose of
registering under the Securities Act all of the Registrable Securities for
resale by, and for the account of, the Holders as selling stockholders
thereunder (the "Registration Statement"). The Registration Statement shall
permit the Holders to offer and sell, on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act, any or all of the Registrable Securities.
The Company agrees to use commercially reasonable efforts to cause the
Registration Statement to become effective as soon as reasonably practicable.
The Company shall use its commercially reasonable efforts to keep the
Registration Statement effective until such date that is the earlier of (i) the
date when all of the Registrable Securities registered thereunder shall have
been sold or (ii) two (2) years after the Closing Date (the "Mandatory
Registration Termination Date"). Thereafter, the Company shall be entitled to
withdraw the Registration Statement and the Holders shall have no further right
to offer or sell any of the Registrable Securities pursuant to the Registration
Statement (or any prospectus relating thereto). In the event the right of the
selling Holders to use the Registration Statement (and the prospectus relating
thereto) is delayed or suspended pursuant to Sections 4(c) or 10 hereof, if the
events described in subsection (a)(i) or (ii) have not yet occurred, the Company
shall be required to extend the Mandatory Registration Termination Date by the
same number of days as such delay or Suspension Period (as defined in Section 10
hereof), provided that such delay is not the result of the Holders' failure or
delay to furnish information required under Section 5 hereof.
(b) In the event that the Registration Statement is not filed with the SEC
within forty-five (45) days after the Closing Date (or, if the date that is
forty-five (45) days after the Closing Date is not a business day, the next
business day immediately following such date), the Company will pay, in cash,
check or by wire transfer, to each Purchaser, one and one-half percent (1.5%) of
the aggregate purchase price paid by the Purchaser for all Shares and Warrants
sold to each such Purchaser pursuant to the Securities Purchase Agreement. For
every additional forty-five (45) days that the Company continues to be delayed
from filing the Registration Statement with the SEC, the Company will pay, in
cash, check or by wire transfer, to each Purchaser, an additional one and
one-half percent (1.5%) of the aggregate purchase price paid by the Purchaser
for all Shares and Warrants sold to each such Purchaser pursuant to the
Securities Purchase Agreement.
(c) Within three (3) business days after a Registration Statement that
covers applicable Registrable Securities is declared effective by the SEC, the
Company shall deliver, or shall cause legal counsel to deliver, to the transfer
agent for such Registrable Securities (with copies to the Holders whose
Registrable Securities are included in such Registration Statement)
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confirmation that such Registration Statement has been declared effective by the
SEC in such form as agreed to by counsel to the Company and counsel to the
Holders at such time.
2.3 Registration Procedures. In connection with any Registration Statement
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and any Prospectus required by this Agreement to permit the sale or resale of
Restricted Securities, the Company shall:
(a) prepare and file with the Commission such amendments and post-
effective amendments to such Registration Statement as may be necessary to keep
such Registration Statement effective until the Mandatory Registration
Termination Date; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A, as applicable, under the Securities Act in a timely manner;
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or
supplement or the Prospectus;
(b) promptly (and in respect of events covered by clause (i) hereof,
within three (3) business days as the Company shall receive notice of
effectiveness) advise the Holders covered by such Registration Statement and, if
requested by such Persons, confirm such advice in writing, (i) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and when the same has become effective, (ii) of any request by the
Commission for post-effective amendments to such Registration Statement or
post-effective amendments to such Registration Statement or post-effective
amendments or supplements to the Prospectus or for additional information
relating thereto, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any such Registration Statement under the
Securities Act or of the suspension by any state securities commission of the
qualification of the Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, and (iv) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in any such Registration
Statement, the related Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that requires the making
of any additions to or changes in any such Registration Statement or the related
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
such Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Restricted Securities under state securities
or Blue Sky laws, the Company shall use its reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(c) promptly furnish to each Holder of Restricted Securities covered by
any Registration Statement, and each underwriter, if any, without charge, at
least one conformed copy of any Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents incorporated
by reference therein and all exhibits (including exhibits incorporated therein
by reference) and any related correspondence between the
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Company and its counsel or accountants and the Commission or staff of the
Commission and such other documents as such Holder may reasonably request;
(d) deliver to each Holder covered by any Registration Statement, and each
underwriter, if any, without charge, as many copies of the Prospectus (including
each preliminary prospectus) and any amendment or supplement thereto as such
Person reasonably may request;
(e) enter into such customary agreements and take all such other
reasonable action in connection therewith (including those reasonably requested
by the selling Holders or the underwriter(s), if any) required in order to
expedite or facilitate the disposition of such Restricted Securities pursuant to
such Registration Statement, including, but not limited to, dispositions
pursuant to an underwritten registration, and in such connection:
(i) make such representations and warranties to the selling Holders
and underwriter(s), if any, in form, substance and scope as are customarily made
by issuers to underwriters in underwritten offerings (whether or not sales of
securities pursuant to such Registration Statement are to be made to an
underwriter(s)) and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company (which counsel and
opinions, in form and substance, shall be reasonably satisfactory to the selling
Holders and the underwriter(s), if any, and their respective counsel) addressed
to each selling Holder and underwriter, if any, covering the matters customarily
covered in opinions requested in underwritten offerings (whether or not sales of
securities pursuant to such Registration Statement are to be made to an
underwriter(s)) and dated the date of effectiveness of any Registration
Statement (and, in the case of any underwritten sale of securities pursuant to
such Registration Statement, each closing date of sales to the underwriter(s)
pursuant thereto);
(iii) use reasonable efforts to obtain comfort letters dated the date
of effectiveness of any Registration Statement (and, in the case of any
underwritten sale of securities pursuant to such Registration Statement, each
closing date of sales to the underwriter(s), if any, pursuant thereto) from the
independent certified public accountants of the Company addressed to each
selling Holder and underwriter, if any, such letters to be in customary form and
covering matters of the type customarily covered in comfort letters in
connection with underwritten offerings (whether or not sales of securities
pursuant to such Registration Statement are to be made to an underwriter(s));
(iv) provide for the indemnification provisions and procedures of
Section 2.7 hereof with respect to selling Holders and the underwriter(s), if
any; and
(v) deliver such documents and certificates as may be reasonably
requested by the selling Holders or the underwriter(s), if any, and which are
customarily delivered in underwritten offerings (whether of not sales of
securities pursuant to such Registration Statement are to be made to an
underwriter(s), with such documents and certificates to be dated the date of
effectiveness of any Registration Statement.
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The actions required by clauses (i) through (v) above shall be done at each
closing under such underwriting or similar agreement, as and to the extent
required thereunder, and if at any time the representations and warranties of
the Company contemplated in clause (i) above cease to be true and correct, the
Company shall so advise the underwriter(s), if any, and each selling Holder
promptly, and, if requested by such Person, shall confirm such advice in
writing;
(f) prior to any public offering of Restricted Securities, cooperate with
the selling Holders, the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the Restricted Securities
under the securities or Blue Sky laws of such U.S. jurisdictions as the selling
Holders or underwriter(s), if any, may reasonably request in writing by the time
any Registration Statement is declared effective by the Commission, and do any
and all other acts or filings necessary or advisable to enable disposition in
such U.S. jurisdictions of the Restricted Securities covered by any Registration
Statement and to file such consents to service of process or other documents as
may be necessary in order to effect such registration or qualification;
provided, however, that the Company shall not be required to register or qualify
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as a foreign corporation in any jurisdiction where it is not then so qualified
or as a dealer in securities in any jurisdiction where it would not otherwise be
required to register or qualify but for this Section 2.3, or to take any action
that would subject it to the general service of process in suits or to general
taxation, in any jurisdiction where it is not then so subject;
(g) in connection with any sale of Restricted Securities that will result
in such securities no longer being Restricted Securities, cooperate with the
selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Restricted Securities to
be sold and not bearing any restrictive legends; and enable such Restricted
Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two (2) Business
Days prior to any sale of Restricted Securities made by such underwriters;
(h) use its reasonable efforts to cause the disposition of the Restricted
Securities covered by any Registration Statement to be registered with or
approved by such other U.S. governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if any,
to consummate the disposition of such Restricted Securities, subject to the
proviso contained in Section 2.3(f);
(i) if any fact or event contemplated by Section 2.3(b) shall exist or
have occurred, prepare a supplement or post-effective amendment to any
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statement therein not misleading;
(j) cooperate and assist in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the rules and
regulations of the NASD, and use its reasonable efforts to cause any
Registration Statement to become effective and approved by such U.S.
governmental agencies or authorities as may be necessary to enable the Holders
selling Restricted Securities to consummate the disposition of such Restricted
Securities;
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(k) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders with regard to such Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the requirements of Rule
158 (which need not be audited) for the twelve (12)- month period (i) commencing
at the end of any fiscal quarter in which Restricted Securities are sold to the
underwriter in a firm or best efforts underwritten offering or (ii) if not sold
to an underwriter in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of any
Registration Statement;
(l) provide a CUSIP number for all Restricted Securities not later than
the effective date of any Registration Statement;
(m) use its best efforts to list, not later than the effective date of
such Registration Statement, all Restricted Securities covered by such
Registration Statement on the NASD OTC Electronic Bulletin Board or any other
trading market on which any Common Stock of the Company are then admitted for
trading; and
(n) provide promptly to each Holder covered by any Registration Statement
upon request each document filed with the Commission pursuant to the
requirements of Section 12 and Section 14 of the Exchange Act.
Each Holder agrees by acquisition of a Restricted Security that, upon
receipt of any notice from the Company of the existence of any fact of the kind
described in Section 2.3(b)(iv), such Holder will forthwith discontinue
disposition of Restricted Securities pursuant to any Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 2.3(i), or until it is advised in writing, in
accordance with the notice provisions of Section 3.3 herein (the "Advice"), by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental fillings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company all copies, other than permanent file copies, then in
such Holder's possession, of the Prospectus covering such Restricted Securities
that was current at the time of receipt of such notice.
2.4 Preparation; Reasonable Investigation. In connection with the
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preparation and filing of each Registration Statement under the Securities Act,
the Company will give the Holders of Restricted Securities registered under such
Registration Statement, their underwriter, if any, and their respective counsel
and accountants, the opportunity to participate in the preparation of such
Registration Statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them access to its books and records and such opportunities to discuss the
business, finances and accounts of the Company and its subsidiaries with its
officers, directors and the independent public accountants who have certified
its financial statements as shall be necessary, in the opinion of such Holders
and such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
2.5 Certain Rights of Holders. The Company will not file any Registration
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Statement under the Securities Act which refers to any Holder of Restricted
Securities by name or
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otherwise without the prior approval of such Holder, which consent shall not be
unreasonably withheld or delayed.
2.6 Registration Expenses.
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(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made with the NASD
and reasonable counsel fees in connection therewith); (ii) all reasonable fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws (including all reasonable fees and expenses of one counsel to
the underwriter(s) in any underwriting) in connection with compliance with state
Blue Sky or securities laws for all states in the United States; (iii) all
expenses of printing, messenger and delivery services and telephone calls; (iv)
all fees and disbursements of counsel for the Company; and (v) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance), but excluding from this paragraph, fees and
expenses of counsel to the underwriter(s), if any, unless otherwise set forth
herein.
(b) The Company will not be responsible for any underwriting discounts,
commissions or fees attributable to the sale of Restricted Securities or any
legal fees or disbursements (other than any such fees or disbursements relating
to Blue Sky compliance or otherwise as set forth under Section 2.6(a)) incurred
by any underwriters in any underwritten offering if the underwriter participates
in such underwritten offering at the request of the Holders of Restricted
Securities, or any transfer taxes that may be imposed in connection with a sale
or transfer of Restricted Securities.
(c) The Company shall, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
2.7 Indemnification; Contribution.
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(a) The Company agrees to indemnify and hold harmless (i) each Holder
covered by any Registration Statement, (ii) each other Person who participates
as an underwriter in the offering or sale of such securities, (iii) each Person,
if any, who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) any such Holder or underwriter (any of the
Persons referred to in this clause (iii) being hereinafter referred to as a
"controlling Person"), and (iv) the respective officers, directors, partners,
employees, representatives and agents of any such Holder or underwriter or any
controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv)
may hereinafter be referred to as an "indemnified Person"), to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments or expenses, joint or several (or actions or proceedings,
whether commenced or threatened, in respect thereof) (collectively, "Claims"),
to which such indemnified Person may become subject under either Section 15 of
the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as
such Claims arise out of or are based upon, or are caused
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by any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement or Prospectus (or any amendment or supplement
thereto), or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or a violation by the Company of the Securities Act or any state
securities law, or any rule or regulation promulgated under the Securities Act
or any state securities law, or any other law applicable to the Company relating
to any such registration or qualification, except insofar as such losses,
claims, damages, liabilities, judgments or expenses of any such indemnified
Person; (x) are caused by any such untrue statement or omission or alleged
untrue statement or omission that is based upon information relating to such
indemnified Person furnished in writing to the Company by or on behalf of any of
such indemnified Person expressly for use therein; (y) with respect to the
preliminary Prospectus, result from the fact that such Holder sold Securities to
a Person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus, as amended or supplemented,
if the Company shall have previously furnished copies thereof to such Holder in
accordance with this Agreement and said Prospectus, as amended or supplemented,
would have corrected such untrue statement or omission; or (z) as a result of
the use by an indemnified Person of any Prospectus when, upon receipt of a
notice from the Company of the existence of any fact of the kind described in
Section 2.3(b)(iv), the indemnified Person or the related Holder was not
permitted to do so. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any indemnified Person
and shall survive the transfer of such securities by such Holder.
In case any action shall be brought or asserted against any of the
indemnified Persons with respect to which indemnity may be sought against the
Company, such indemnified Person shall promptly notify the Company and the
Company shall assume the defense thereof. Such indemnified Person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified Person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel, or (iii) the
named parties to any such action (including any implied parties) include both
the indemnified Person and the Company and the indemnified Person shall have
been advised in writing by its counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company (in which case the Company shall not have the right to
assume the defense of such action on behalf of the indemnified Person), it being
understood, however, that the Company shall not, in connection with such action
or similar or related actions or proceedings arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for all the indemnified Persons, which firm shall be (x) designated by
such indemnified Persons; and (y) reasonably satisfactory to the Company. The
Company shall not be liable for any settlement of any such action or proceeding
effected without the Company's prior written consent, which consent shall not be
withheld unreasonably, and the Company agrees to indemnify and hold harmless any
indemnified Person from and against any loss, claim, damage, liability, judgment
or expense by reason of any settlement of any action effected with the written
consent of the Company. The Company shall not, without the prior written consent
of each indemnified Person, settle or compromise or consent to the entry of
judgment on or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which
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indemnification or contribution may be sought hereunder (whether or not any
indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each indemnified
Person from all liability arising out of such action, claim litigation or
proceeding.
(b) Each Holder of Restricted Securities covered by any Registration
Statement agrees, severally and not jointly, to indemnify and hold harmless the
Company and its directors, officers and any Person controlling (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
the Company, and the respective officers, directors, partners, employees,
representatives and agents of each, to the same extent as the foregoing
indemnity from the Company to each of the indemnified Persons, but only (i) with
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respect to actions based on information relating to such Holder furnished in
writing by or on behalf of such Holder expressly for use in any Registration
Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any,
received by such Purchaser from the sale or other disposition of his or its
Restricted Securities covered by such Registration Statement. In case any action
or proceeding shall be brought against the Company or its directors or officers
or any such controlling Person in respect of which indemnity may be sought
against a Holder of Restricted Securities covered by any Registration Statement,
such Holder shall have the rights and duties given the Company in Section 2.7(a)
(except that the Holder may but shall not be required to assume the defense
thereof), and the Company or its directors or officers or such controlling
Person shall have the rights and duties given to each Holder by Section 2.7(a).
(c) If the indemnification provided for in this Section 2.7 is unavailable
to an indemnified party under Section 2.7(a) or (b) (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities, judgments or expenses referred to therein, then each
applicable indemnifying party (in the case of the Holders severally and not
jointly), in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims damages, liabilities, judgments or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Holder on the other hand from sale of Restricted Securities, or
(ii) if such allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and such Holder in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities, judgments or expenses, as
well as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of such Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by such Holder and the parties
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid to a party as a result of
the losses, claims, damages, liabilities judgments and expenses referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of Section 2.7(a), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
The Company and each Holder of Restricted Securities covered by any
Registration Statement agree that it would not be just and equitable if
contribution pursuant to this Section
10
2.7(c) were determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
2.7(c), no Holder (and none of its related indemnified Persons) shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the dollar amount of proceeds received by such Holder upon the sale of the
Restricted Securities exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentations (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution provisions contained in this Section 2.7 are
in addition to any liability which the indemnifying Person may otherwise have to
the indemnified Persons referred to above.
2.8 Participation in Underwritten Registrations. No Holder may participate
-------------------------------------------
in any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Restricted Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
2.9 Selection of Underwriters. The Holders of Restricted Securities
---------------------------
covered by any Registration Statement who desire to do so may sell such
Restricted Securities in an underwritten offering. In any such underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Company. Such
investment bankers and managers are referred to herein as the "underwriters."
ARTICLE 3
MISCELLANEOUS
3.1 Entire Agreement. This Agreement, together with the Securities
-----------------
Purchase Agreement, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreement and
understandings, both oral and written, between the parties with respect to the
subject matter hereof.
3.2 Successors and Assigns and Heirs. This Agreement shall inure to the
--------------------------------
benefit of and be binding upon the successors and assigns and heirs of each of
the parties, including, without limitation and without the need for an express
assignment, subsequent Holders of Restricted Securities; provided, however, that
-------- -------
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign or heirs
acquired Restricted Securities from such Holder at a time when such Holder could
not transfer such Restricted Securities pursuant to any Registration Statement
or pursuant to Rule 144(k) under the Securities Act as contemplated by clause
(ii) of the definition of Restricted Securities.
11
3.3. Notices. All notices and other communications given or made pursuant
-------
hereto or pursuant to any other agreement among the parties, unless otherwise
specified, shall be in writing and shall be deemed to have been duly given or
made if sent by telecopy (with confirmation in writing), delivered personally or
by overnight courier or sent by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the telecopy number, if any, or
address set forth below or at such other addresses as shall be furnished by the
parties by like notice. Notices sent by telecopier shall be effective when
receipt is acknowledged, notices delivered personally or by overnight courier
shall be effective upon receipt and notices sent by registered or certified mail
shall be effective three (3) days after mailing:
if to a Holder: to such Holder at the address set forth on the
records of the Company as the record owners of
the Common Stock
if to the Company: Senesco Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
with copies to: ▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
3.4 Headings. The headings contained in this Agreement are for convenience
--------
only and shall not affect the meaning or interpretation of this Agreement.
3.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
3.6 Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Delaware applicable in the case of
agreements made and to be performed entirely within such State, without regard
to principles of conflicts of law, and the parties hereto hereby submit to the
exclusive jurisdiction of the state and federal courts located in the State of
New Jersey.
3.7 Specific Enforcement. Each party hereto acknowledges that the remedies
--------------------
at law of the other parties for a breach or threatened breach of this Agreement
would be inadequate, and, in recognition of this fact, any party to this
Agreement, without posting any bond, and in addition to all other remedies which
may be available, shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary to permanent
injunction or any other equitable remedy which may then be available.
12
3.8 Amendment and Waivers; Subordination. The provisions of this Agreement
------------------------------------
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of the Holders of a majority of the Restricted
Securities affected thereby.
3.9 Eligibility under Rule 144. With a view to making available to the
---------------------------
Purchasers the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the Commission that may at any time permit
the Purchasers to sell securities of the Company to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Exchange Act so long as the Company
remains subject to such requirements and the filing of such reports and other
documents is required for the applicable provisions of Rule 144; and
(c) furnish to each Purchaser so long as such Purchaser owns Restricted
Securities, promptly upon request (i) a written statement by the Company that it
has complied with the reporting requirements of the Exchange Act, (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested to permit the investors to sell such securities pursuant
to Rule 144 without registration.
* * * * * * * *
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COMPANY:
SENESCO TECHNOLOGIES, INC.
By:
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
PURCHASERS:
[If an entity]
Entity Name:
------------------------------------
By:
---------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Address:
--------------------------------------
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Telecopy:
-----------------------------------
[If an individual]
--------------------------------------------
Name:
---------------------------------------
Address:
------------------------------------
--------------------------------------------
Telecopy:
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