As filed with the Securities and Exchange Registration No. 333-
Commission on March 17, 2004 ---------
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SENESCO TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 84-1368850
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(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
303 George Street, Suite 420, New Brunswick, New Jersey 08901
(732) 296-8400
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(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Bruce C. Galton, President and Chief Executive Officer
303 George Street, Suite 420, New Brunswick, New Jersey 08901
(732) 296-8400
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(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies of all communications, including all communications sent to the agent
for service, should be sent to:
David S. Sorin, Esq.
John F. Cinque, Esq.
Hale and Dorr LLP
650 College Road East
Princeton, New Jersey 08540
(609) 750-7600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time, at the discretion of the selling stockholders, as soon as practicable
after this registration statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, check the following box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. [_]
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CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed
Amount Maximum Proposed Maximum Amount Of
Title Of Shares To Be Aggregate Price Aggregate Offering Registration
To Be Registered Registered Per Share Price Fee
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Common Stock,
$0.01 par value......... 2,651,663(1) $2.875(2) $7,623,531.10 $965.90
=====================================================================================================================
(1) Includes 1,114,741 shares of common stock that may be issued upon the
exercise of warrants held by the selling stockholders.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c). Such price is based upon the average of the high
and low prices of the registrant's common stock as reported on the American
Stock Exchange on March 15, 2004.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
The information in this prospectus is not complete and may be changed. The
selling stockholders named in this prospectus may not sell these securities
until the registration statement filed with the securities and Exchange
Commission is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 17, 2004
PROSPECTUS
SENESCO TECHNOLOGIES, INC.
2,651,663 Shares of Common Stock
The stockholders of Senesco listed in this prospectus are offering and
selling an aggregate of 2,651,663 shares of our common stock. Of those shares,
1,114,741 are issuable upon the exercise of warrants held by the selling
stockholders at exercise prices ranging from $2.35 to $3.79 per share and with a
weighted average exercise price of $3.72 per share.
The shares of our common stock may be offered and sold from time to time by
the selling stockholders identified in this prospectus, or their pledgees,
donees, transferees or other successors-in-interest through public or private
transactions at prevailing market prices, at prices related to prevailing market
prices or at privately negotiated prices. The selling stockholders will pay all
underwriting discounts and selling commissions, if any, applicable to the sale
of the shares. We will not receive any proceeds from the sale of the shares
other than the exercise price payable to us upon the potential exercise of
warrants held by the selling stockholders.
Our common stock is traded on the American Stock Exchange under the ticker
symbol "SNT." On March 15, 2004, the last reported sale price of our common
stock was $2.84 per share. You are urged to obtain current market quotations for
the common stock.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS THAT YOU SHOULD
CONSIDER BEFORE YOU INVEST IN ANY OF THE COMMON STOCK BEING OFFERED WITH THIS
PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 2004.
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TABLE OF CONTENTS
Page
----
Prospectus Summary...................................................... 1
The Offering............................................................ 2
Risk Factors............................................................ 3
Special Note Regarding Forward-Looking Statements....................... 12
Use of Proceeds......................................................... 12
Selling Stockholders.................................................... 13
Plan of Distribution.................................................... 18
Legal Matters........................................................... 20
Experts................................................................. 20
Where You Can Find More Information..................................... 20
Incorporation by Reference.............................................. 20
Indemnification of Directors and Officers............................... 22
As used in this prospectus, references to "Senesco," "we," "us," and "our" refer
to Senesco Technologies, Inc. and its subsidiary, Senesco, Inc., unless the
context otherwise requires.
PROSPECTUS SUMMARY
About This Prospectus
---------------------
This prospectus is a part of a registration statement on Form S-3 filed by
us with the Securities and Exchange Commission to register 2,651,663 shares of
our common stock. This prospectus does not contain all of the information set
forth in the registration statement, certain parts of which are omitted in
accordance with the rules and regulations of the SEC. Accordingly, you should
refer to the registration statement and its exhibits for further information
about us and our common stock. Copies of the registration statement and its
exhibits are on file with the SEC. Statements contained in this prospectus
concerning the documents we have filed with the SEC are not intended to be
comprehensive, and in each instance we refer you to the copy of the actual
document filed as an exhibit to the registration statement or otherwise filed
with the SEC.
We have not authorized anyone to provide you with information different
from that contained or incorporated by reference in this prospectus. The selling
stockholders are offering to sell, and seeking offers to buy, shares of our
common stock only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of common stock.
About Senesco
-------------
Our primary business is the research, development and commercial
exploitation of a potentially significant platform technology involving the
identification and characterization of genes that we believe control the aging
of plant cells, or senescence, and the programmed cell death of human cells, or
apoptosis.
Our technology goals for plant applications are to:
o extend the shelf-life of perishable plant products;
o produce larger and more leafy crops;
o increase crop production, or yield, in horticultural and agronomic
crops; and
o reduce the harmful effects of environmental stress.
Our technology goals for human health research are to:
o identify drug targets for treatment of diseases caused by abnormal
apoptosis; and
o develop gene therapies which directly target the symptoms of these
diseases.
Senesco was formed in June 1998. We are a Delaware corporation and our
business is currently operated through Senesco and our wholly-owned subsidiary
Senesco, Inc., a New Jersey corporation.
Our executive offices are located at 303 George Street, Suite 420, New
Brunswick, New Jersey 08901, our telephone number is (732) 296-8400 and our
Internet address is http://www.senesco.com. The information on our Internet
website is not incorporated by reference in this prospectus, and our website
address is included in this prospectus as a textual reference only.
1
THE OFFERING
Number of shares of our common stock
offered by the selling stockholders......... 2,651,663 shares
Use of proceeds............................. We will not receive any proceeds
from the sale of shares in this
offering.
American Stock Exchange symbol.............. SNT
2
RISK FACTORS
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. BEFORE YOU
INVEST IN OUR COMMON STOCK, YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS
AND CAUTIONARY STATEMENTS, AS WELL AS THE OTHER INFORMATION SET FORTH HEREIN.
ADDITIONAL RISKS AND UNCERTAINTIES MAY ALSO IMPAIR OUR BUSINESS OPERATIONS. IF
ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR, OUR BUSINESS, FINANCIAL CONDITION OR
RESULTS OF OPERATIONS MAY SUFFER. AS A RESULT, THE TRADING PRICE OF OUR COMMON
STOCK COULD DECLINE, AND YOU COULD LOSE ALL OR A SUBSTANTIAL PORTION OF YOUR
INVESTMENT IN OUR COMMON STOCK.
RISKS RELATED TO OUR BUSINESS
- -----------------------------
WE HAVE A LIMITED OPERATING HISTORY AND HAVE INCURRED SUBSTANTIAL LOSSES AND
EXPECT FUTURE LOSSES.
We are a developmental stage biotechnology company with a limited operating
history and limited assets and capital. We have incurred losses each year since
inception and have an accumulated deficit of $11,695,327 at December 31, 2003.
We have generated minimal revenues by licensing certain of our technology to
companies willing to share in our development costs. However, our technology may
not be ready for widespread commercialization for several years. We expect to
continue to incur losses over the next two to three years because we anticipate
that our expenditures on research and development, commercialization and
administrative activities will significantly exceed our revenues during that
period. We cannot predict when, if ever, we will become profitable.
WE DEPEND ON A SINGLE PRINCIPAL TECHNOLOGY AND, IF OUR TECHNOLOGY IS NOT
COMMERCIALLY SUCCESSFUL, WE WILL HAVE NO ALTERNATIVE SOURCE OF REVENUE.
Our primary business is the development and commercial exploitation of
technology to identify, isolate, characterize and silence genes that control the
aging and death of cells in plants and mammals. Our future revenue and
profitability critically depend upon our ability to successfully develop
senescence and apoptosis gene technology and later market and license this
technology at a profit. We have conducted experiments on certain crops with
favorable results and have conducted certain preliminary cell-line experiments,
which have provided us with data upon which we have designed additional research
programs. However, we cannot give any assurance that our technology will be
commercially successful or economically viable for all crops or human health
applications.
In addition, we cannot assure you that adverse consequences might not
result from the use of our technology such as the development of negative
effects on plants or humans or reduced benefits in terms of crop yield or
protection. If we fail to obtain market acceptance of our technology or to
successfully commercialize our technology or develop a commercially viable
product, we will have no alternative source of revenue.
WE OUTSOURCE ALL OF OUR RESEARCH AND DEVELOPMENT ACTIVITIES AND, IF WE ARE
UNSUCCESSFUL IN MAINTAINING OUR ALLIANCES WITH THESE THIRD PARTIES, OUR RESEARCH
AND DEVELOPMENT EFFORTS MAY BE DELAYED OR CURTAILED.
We rely on third parties to perform all of our research and development
activities. Our primary research and development efforts take place at the
University of Waterloo in Ontario, Canada, where our technology was developed,
at the University of Colorado, at two research hospitals in Canada, at Anawah,
Inc., and with our commercial partners. At this time, we do not have the
internal capabilities to perform our research and development activities.
Accordingly, the failure of third-party research partners, such as the
University of Waterloo, to perform under agreements entered into with us, or our
failure to renew important research agreements with these third parties, may
delay or curtail our research and development efforts.
3
WE HAVE SIGNIFICANT FUTURE CAPITAL NEEDS AND MAY BE UNABLE TO RAISE CAPITAL WHEN
NEEDED, WHICH COULD FORCE US TO DELAY OR REDUCE OUR RESEARCH AND DEVELOPMENT
EFFORTS.
As of December 31, 2003, we had cash and highly-liquid investments valued
at $1,582,062 and working capital of $1,217,546. In January 2004 and February
2004, we received aggregate net proceeds of approximately $3,300,000 from a
private placement of our equity securities. Using our available reserves as of
December 31, 2003 and the net proceeds from the private equity financing, we
believe that we can operate according to our current business plan for at least
the next twelve months. To date, we have generated minimal revenues and
anticipate that our operating costs will exceed any revenues generated over the
next several years. Therefore, we may be required to raise additional capital in
the future in order to operate according to our current business plan, and this
funding may not be available on favorable terms, if at all. In addition, in
connection with any funding, if we need to issue more equity securities than our
certificate of incorporation currently authorizes, or more than 20% of the
shares of our common stock outstanding, we may need stockholder approval. If
stockholder approval is not obtained or if adequate funds are not available, we
may be required to curtail operations significantly or to obtain funds through
arrangements with collaborative partners or others that may require us to
relinquish rights to certain of our technologies, product candidates, products
or potential markets. Investors may experience dilution in their investment from
future offerings of our common stock. For example, if we raise additional
capital by issuing equity securities, such an issuance would reduce the
percentage ownership of existing stockholders. In addition, assuming the
exercise of all options and warrants granted, as of December 31, 2003, we had
11,699,728 shares of our common stock authorized but unissued, which may be
issued from time to time by our board of directors without stockholder approval.
In connection with our private placement of equity securities, in January 2004
and February 2004, we issued an aggregate of an additional 1,536,922 shares of
our common stock and warrants to purchase 842,141 shares of our common stock.
Therefore, assuming the exercise of all options and warrants granted as of
February 13, 2004, we had 9,320,665 shares of our common stock authorized but
unissued, which may be issued from time to time by our board of directors
without stockholder approval. Furthermore, we may need to issue securities that
have rights, preferences and privileges senior to our common stock. Failure to
obtain financing on acceptable terms would have a material adverse effect on our
liquidity.
Since our inception, we have financed all of our operations through private
equity financings. Our future capital requirements depend on numerous factors,
including:
o the scope of our research and development;
o our ability to attract business partners willing to share in our
development costs;
o our ability to successfully commercialize our technology;
o competing technological and market developments;
o our ability to enter into collaborative arrangements for the
development, regulatory approval and commercialization of other
products; and
o the cost of filing, prosecuting, defending and enforcing patent claims
and other intellectual property rights.
OUR BUSINESS DEPENDS UPON OUR PATENTS AND PROPRIETARY RIGHTS AND THE ENFORCEMENT
OF THESE RIGHTS. OUR FAILURE TO OBTAIN AND MAINTAIN PATENT PROTECTION MAY
INCREASE COMPETITION AND REDUCE DEMAND FOR OUR TECHNOLOGY.
As a result of the substantial length of time and expense associated with
developing products and bringing them to the marketplace in the agricultural and
biotechnology industries, obtaining and maintaining patent and trade secret
protection for technologies, products and processes is of vital importance. Our
success will depend in part on several factors, including, without limitation:
o our ability to obtain patent protection for our technologies and
processes;
o our ability to preserve our trade secrets; and
4
o our ability to operate without infringing the proprietary rights of
other parties both in the United States and in foreign countries.
We have been issued one patent by the U.S. Patent and Trademark Office, or
PTO. We have also filed patent applications for our technology in the United
States and in several foreign countries, which technology is vital to our
primary business, as well as several Continuations in Part on these patent
applications. Our success depends in part upon the grant of patents from our
pending patent applications.
Although we believe that our technology is unique and will not violate or
infringe upon the proprietary rights of any third party, we cannot assure you
that these claims will not be made or if made, could be successfully defended
against. If we do not obtain and maintain patent protection, we may face
increased competition in the United States and internationally, which would have
a material adverse effect on our business.
Since patent applications in the United States are maintained in secrecy
until patents are issued, and since publication of discoveries in the scientific
and patent literature tend to lag behind actual discoveries by several months,
we cannot be certain that we were the first creator of the inventions covered by
our pending patent applications or that we were the first to file patent
applications for these inventions.
In addition, among other things, we cannot assure you that:
o our patent applications will result in the issuance of patents;
o any patents issued or licensed to us will be free from challenge and
that if challenged, would be held to be valid;
o any patents issued or licensed to us will provide commercially
significant protection for our technology, products and processes;
o other companies will not independently develop substantially
equivalent proprietary information which is not covered by our patent
rights;
o other companies will not obtain access to our know-how;
o other companies will not be granted patents that may prevent the
commercialization of our technology; or
o we will not require licensing and the payment of significant fees or
royalties to third parties for the use of their intellectual property
in order to enable us to conduct our business.
OUR COMPETITORS MAY ALLEGE THAT WE ARE INFRINGING UPON THEIR INTELLECTUAL
PROPERTY RIGHTS, FORCING US TO INCUR SUBSTANTIAL COSTS AND EXPENSES IN RESULTING
LITIGATION, THE OUTCOME OF WHICH WOULD BE UNCERTAIN.
Patent law is still evolving relative to the scope and enforceability of
claims in the fields in which we operate. We are like most biotechnology
companies in that our patent protection is highly uncertain and involves complex
legal and technical questions for which legal principles are not yet firmly
established. In addition, if issued, our patents may not contain claims
sufficiently broad to protect us against third parties with similar technologies
or products, or provide us with any competitive advantage.
The PTO and the courts have not established a consistent policy regarding
the breadth of claims allowed in biotechnology patents. The allowance of broader
claims may increase the incidence and cost of patent interference proceedings
and the risk of infringement litigation. On the other hand, the allowance of
narrower claims may limit the value of our proprietary rights.
The laws of some foreign countries do not protect proprietary rights to the
same extent as the laws of the United States, and many companies have
encountered significant problems and costs in protecting their proprietary
rights in these foreign countries.
5
We could become involved in infringement actions to enforce and/or protect
our patents. Regardless of the outcome, patent litigation is expensive and time
consuming and would distract our management from other activities. Some of our
competitors may be able to sustain the costs of complex patent litigation more
effectively that we could because they have substantially greater resources.
Uncertainties resulting from the initiation and continuation of any patent
litigation could limit our ability to continue our operations.
IF OUR TECHNOLOGY INFRINGES THE INTELLECTUAL PROPERTY OF OUR COMPETITORS OR
OTHER THIRD PARTIES, WE MAY BE REQUIRED TO PAY LICENSE FEES OR DAMAGES.
If any relevant claims of third-party patents that are adverse to us are
upheld as valid and enforceable, we could be prevented from commercializing our
technology or could be required to obtain licenses from the owners of such
patents. We cannot assure you that such licenses would be available or, if
available, would be on acceptable terms. Some licenses may be non-exclusive and,
therefore, our competitors may have access to the same technology licensed to
us. In addition, if any parties successfully claim that the creation or use of
our technology infringes upon their intellectual property rights, we may be
forced to pay damages, including treble damages.
OUR SECURITY MEASURES MAY NOT ADEQUATELY PROTECT OUR UNPATENTED TECHNOLOGY AND,
IF WE ARE UNABLE TO PROTECT THE CONFIDENTIALITY OF OUR PROPRIETARY INFORMATION
AND KNOW-HOW, THE VALUE OF OUR TECHNOLOGY MAY BE ADVERSELY AFFECTED.
Our success depends upon know-how, unpatentable trade secrets, and the
skills, knowledge and experience of our scientific and technical personnel. As a
result, we require all employees to agree to a confidentiality provision that
prohibits the disclosure of confidential information to anyone outside of our
company, during the term of employment and thereafter. We also require all
employees to disclose and assign to us the rights to their ideas, developments,
discoveries and inventions. We also attempt to enter into similar agreements
with our consultants, advisors and research collaborators. We cannot assure you
that adequate protection for our trade secrets, know-how or other proprietary
information against unauthorized use or disclosure will be available.
We occasionally provide information to research collaborators in academic
institutions and request the collaborators to conduct certain tests. We cannot
assure you that the academic institutions will not assert intellectual property
rights in the results of the tests conducted by the research collaborators, or
that the academic institutions will grant licenses under such intellectual
property rights to us on acceptable terms, if at all. If the assertion of
intellectual property rights by an academic institution is substantiated, and
the academic institution does not grant intellectual property rights to us,
these events could limit our ability to commercialize our technology.
AS WE EVOLVE FROM A COMPANY PRIMARILY INVOLVED IN THE RESEARCH AND DEVELOPMENT
OF OUR TECHNOLOGY INTO ONE THAT IS ALSO INVOLVED IN THE COMMERCIALIZATION OF OUR
TECHNOLOGY, WE MAY HAVE DIFFICULTY MANAGING OUR GROWTH AND EXPANDING OUR
OPERATIONS.
As our business grows, we may need to add employees and enhance our
management, systems and procedures. We will need to successfully integrate our
internal operations with the operations of our marketing partners,
manufacturers, distributors and suppliers to produce and market commercially
viable products. We may also need to manage additional relationships with
various collaborative partners, suppliers and other organizations. Although we
do not presently intend to conduct research and development activities in-house,
we may undertake those activities in the future. Expanding our business will
place a significant burden on our management and operations. We may not be able
to implement improvements to our management information and control systems in
an efficient and timely manner and we may discover deficiencies in our existing
systems and controls. Our failure to effectively respond to changes may make it
difficult for us to manage our growth and expand our operations.
6
WE HAVE NO MARKETING OR SALES HISTORY AND DEPEND ON THIRD-PARTY MARKETING
PARTNERS. ANY FAILURE OF THESE PARTIES TO PERFORM WOULD DELAY OR LIMIT OUR
COMMERCIALIZATION EFFORTS.
We have no history of marketing, distributing or selling biotechnology
products, and we are relying on our ability to successfully establish marketing
partners or other arrangements with third parties to market, distribute and sell
a commercially viable product both here and abroad. Our business plan also
envisions creating strategic alliances to access needed commercialization and
marketing expertise. We may not be able to attract qualified sub-licensees,
distributors or marketing partners, and even if qualified, these marketing
partners may not be able to successfully market agricultural products or human
health applications developed with our technology. If we fail to successfully
establish distribution channels, or if our marketing partners fail to provide
adequate levels of sales, our commercialization efforts will be delayed or
limited and we will not be able to generate revenue.
WE WILL DEPEND ON JOINT VENTURES AND STRATEGIC ALLIANCES TO DEVELOP AND MARKET
OUR TECHNOLOGY AND, IF THESE ARRANGEMENTS ARE NOT SUCCESSFUL, OUR TECHNOLOGY MAY
NOT BE DEVELOPED AND THE EXPENSES TO COMMERCIALIZE OUR TECHNOLOGY WILL INCREASE.
In its current state of development, our technology is not ready to be
marketed to consumers. We intend to follow a multi-faceted commercialization
strategy that involves the licensing of our technology to business partners for
the purpose of further technological development, marketing and distribution. We
are seeking business partners who will share the burden of our development costs
while our technology is still being developed, and who will pay us royalties
when they market and distribute products incorporating our technology upon
commercialization. The establishment of joint ventures and strategic alliances
may create future competitors, especially in certain regions abroad where we do
not pursue patent protection. If we fail to establish beneficial business
partners and strategic alliances, our growth will suffer and the continued
development of our technology may be harmed.
COMPETITION IN THE AGRICULTURAL AND HUMAN HEALTH BIOTECHNOLOGY INDUSTRIES IS
INTENSE AND TECHNOLOGY IS CHANGING RAPIDLY. IF OUR COMPETITORS MARKET THEIR
TECHNOLOGY FASTER THAN WE DO, WE MAY NOT BE ABLE TO GENERATE REVENUES FROM THE
COMMERCIALIZATION OF OUR TECHNOLOGY.
Many agricultural and human health biotechnology companies are engaged in
research and development activities relating to senescence and apoptosis. The
market for plant protection and yield enhancement products is intensely
competitive, rapidly changing and undergoing consolidation. We may be unable to
compete successfully against our current and future competitors, which may
result in price reductions, reduced margins and the inability to achieve market
acceptance for products containing our technology. Our competitors in the field
of plant senescence gene technology are companies that develop and produce
transgenic plants and include major international agricultural companies,
specialized biotechnology companies, research and academic institutions and,
potentially, our joint venture and strategic alliance partners. These companies
include: Paradigm Genetics; Aventis Crop Science; Mendel Biotechnology; Renessen
LLC; Exelixis Plant Sciences, Inc.; PlantGenix, Inc.; and Eden Bioscience, among
others. Some of the companies involved in apoptosis research include: Cell
Pathways, Inc.; Trevigen, Inc.; Idun Pharmaceuticals; Novartis; Introgen
Therapeutics, Inc.; Genta, Inc.; and Oncogene, Inc. Many of these competitors
have substantially greater financial, marketing, sales, distribution and
technical resources than us and have more experience in research and
development, clinical trials, regulatory matters, manufacturing and marketing.
We anticipate increased competition in the future as new companies enter the
market and new technologies become available. Our technology may be rendered
obsolete or uneconomical by technological advances or entirely different
approaches developed by one or more of our competitors, which will prevent or
limit our ability to generate revenues from the commercialization of our
technology.
OUR BUSINESS IS SUBJECT TO VARIOUS GOVERNMENT REGULATIONS AND, IF WE ARE UNABLE
TO OBTAIN REGULATORY APPROVAL, WE MAY NOT BE ABLE TO CONTINUE OUR OPERATIONS.
At present, the U.S. federal government regulation of biotechnology is
divided among three agencies:
7
o the USDA regulates the import, field testing and interstate movement
of specific types of genetic engineering that may be used in the
creation of transgenic plants;
o the EPA regulates activity related to the invention of plant
pesticides and herbicides, which may include certain kinds of
transgenic plants; and
o the FDA regulates foods derived from new plant varieties.
The FDA requires that transgenic plants meet the same standards for safety
that are required for all other plants and foods in general. Except in the case
of additives that significantly alter a food's structure, the FDA does not
require any additional standards or specific approval for genetically engineered
foods, but expects transgenic plant developers to consult the FDA before
introducing a new food into the marketplace.
Use of our technology, if developed for human health applications, will
also be subject to FDA regulation. The FDA must approve any drug or biologic
product before it can be marketed in the United States. In addition, prior to
being sold outside of the U.S., any products resulting from the application of
our human health technology must be approved by the regulatory agencies of
foreign governments. Prior to filing a new drug application or biologics license
application with the FDA, we would have to perform extensive clinical trials,
and prior to beginning any clinical trial, we need to perform extensive
preclinical testing which could take several years and may require substantial
expenditures.
We believe that our current activities, which to date have been confined to
research and development efforts, do not require licensing or approval by any
governmental regulatory agency. However, federal, state and foreign regulations
relating to crop protection products and human health applications developed
through biotechnology are subject to public concerns and political
circumstances, and, as a result, regulations have changed and may change
substantially in the future. Accordingly, we may become subject to governmental
regulations or approvals or become subject to licensing requirements in
connection with our research and development efforts. We may also be required to
obtain such licensing or approval from the governmental regulatory agencies
described above, or from state agencies, prior to the commercialization of our
genetically transformed plants and human health technology. In addition, our
marketing partners who utilize our technology or sell products grown with our
technology may be subject to government regulations. If unfavorable governmental
regulations are imposed on our technology or if we fail to obtain licenses or
approvals in a timely manner, we may not be able to continue our operations.
CLINICAL TRIALS ON OUR HUMAN HEALTH APPLICATIONS MAY BE UNSUCCESSFUL IN
DEMONSTRATING EFFICACY AND SAFETY, WHICH COULD DELAY OR PREVENT REGULATORY
APPROVAL.
Clinical trials may reveal that our human health technology is ineffective
or harmful, which would significantly limit the possibility of obtaining
regulatory approval for any drug or biologic product manufactured with our
technology. The FDA requires submission of extensive pre-clinical, clinical and
manufacturing data to assess the efficacy and safety of potential products.
Furthermore, the success of preliminary studies does not ensure commercial
success, and later-stage clinical trials may fail to confirm the results of the
preliminary studies.
EVEN IF WE RECEIVE REGULATORY APPROVAL, CONSUMERS MAY NOT ACCEPT OUR TECHNOLOGY,
WHICH WILL PREVENT US FROM BEING PROFITABLE SINCE WE HAVE NO OTHER SOURCE OF
REVENUE.
We cannot guarantee that consumers will accept products containing our
technology. Recently, there has been consumer concern and consumer advocate
activism with respect to genetically engineered consumer products. The adverse
consequences from heightened consumer concern in this regard could affect the
markets for products developed with our technology and could also result in
increased government regulation in response to that concern. If the public or
potential customers perceive our technology to be genetic modification or
genetic engineering, agricultural products grown with our technology may not
gain market acceptance.
8
WE DEPEND ON OUR KEY PERSONNEL AND, IF WE ARE NOT ABLE TO ATTRACT AND RETAIN
QUALIFIED SCIENTIFIC AND BUSINESS PERSONNEL, WE MAY NOT BE ABLE TO GROW OUR
BUSINESS OR DEVELOP AND COMMERCIALIZE OUR TECHNOLOGY.
We are highly dependent on our scientific advisors, consultants and
third-party research partners. Dr. Thompson is the inventor of our technology
and the driving force behind our current research. The loss of Dr. Thompson
would severely hinder our technological development. Our success will also
depend in part on the continued service of our key employees and our ability to
identify, hire and retain additional qualified personnel in an intensely
competitive market. Although we have employment agreements with several of our
key employees and a research agreement with Dr. Thompson, these agreements may
be terminated upon no or short notice. We do not maintain key person life
insurance on any member of management. The failure to attract and retain key
personnel could limit our growth and hinder our research and development
efforts.
CERTAIN PROVISIONS OF OUR CHARTER, BY-LAWS AND DELAWARE LAW COULD MAKE A
TAKEOVER DIFFICULT.
Certain provisions of our certificate of incorporation and by-laws could
make it more difficult for a third party to acquire control of us, even if the
change in control would be beneficial to stockholders. Our certificate of
incorporation authorizes our board of directors to issue, without stockholder
approval, except as may be required by the rules of the American Stock Exchange,
5,000,000 shares of preferred stock with voting, conversion and other rights and
preferences that could adversely affect the voting power or other rights of the
holders of our common stock. Similarly, our by-laws do not restrict our board of
directors from issuing preferred stock without stockholder approval.
In addition, we are subject to the Business Combination Act of the Delaware
General Corporation Law which, subject to certain exceptions, restricts certain
transactions and business combinations between a corporation and a stockholder
owning 15% or more of the corporation's outstanding voting stock for a period of
three years from the date such stockholder becomes a 15% owner. These provisions
may have the effect of delaying or preventing a change of control of us without
action by our stockholders and, therefore, could adversely affect the value of
our common stock.
Furthermore, in the event of our merger or consolidation with or into
another corporation, or the sale of all or substantially all of our assets in
which the successor corporation does not assume outstanding options or issue
equivalent options, our board of directors is required to provide accelerated
vesting of outstanding options.
INCREASING POLITICAL AND SOCIAL TURMOIL, SUCH AS TERRORIST AND MILITARY ACTIONS,
INCREASE THE DIFFICULTY FOR US AND OUR STRATEGIC PARTNERS TO FORECAST ACCURATELY
AND PLAN FUTURE BUSINESS ACTIVITIES.
Recent political and social turmoil, including the terrorist attacks of
September 11, 2001, the conflict in Iraq and the current crisis in the Middle
East, can be expected to put further pressure on economic conditions in the
United States and worldwide. These political, social and economic conditions may
make it difficult for us to plan future business activities. Specifically, if
the current crisis in Israel continues to escalate, our joint venture with Rahan
Meristem Ltd. could be adversely affected.
RISKS RELATED TO OUR COMMON STOCK
- ---------------------------------
OUR MANAGEMENT AND OTHER AFFILIATES HAVE SIGNIFICANT CONTROL OF OUR COMMON STOCK
AND COULD SIGNIFICANTLY INFLUENCE OUR ACTIONS IN A MANNER THAT CONFLICTS WITH
OUR INTERESTS AND THE INTERESTS OF OTHER STOCKHOLDERS.
As of December 31, 2003, our executive officers, directors and affiliates
together beneficially own approximately 37.5% of the outstanding shares of our
common stock, assuming the exercise of options and warrants which are currently
exercisable, held by these stockholders. As of February 13, 2004, upon the
closing of our private placement of equity securities, our executive officers,
directors and affiliated entities together beneficially own approximately 35.5%
of the outstanding shares of our
9
common stock, assuming the exercise of options and warrants which are currently
exercisable, held by these stockholders. As a result, these stockholders, acting
together, will be able to exercise significant influence over matters requiring
approval by our stockholders, including the election of directors, and may not
always act in the best interests of other stockholders. Such a concentration of
ownership may have the effect of delaying or preventing a change in control of
us, including transactions in which our stockholders might otherwise receive a
premium for their shares over then current market prices.
OUR STOCKHOLDERS MAY EXPERIENCE SUBSTANTIAL DILUTION AS A RESULT OF THE EXERCISE
OF OUTSTANDING OPTIONS AND WARRANTS TO PURCHASE OUR COMMON STOCK.
As of December 31, 2003, we have granted options outside of our stock
option plan to purchase 10,000 shares of our common stock and outstanding
warrants to purchase 4,358,194 shares of our common stock. In addition, as of
December 31, 2003, we have reserved 3,000,000 shares of our common stock for
issuance upon the exercise of options granted pursuant to our stock option plan,
1,946,000 of which have been granted and 1,054,000 of which may be granted in
the future. As of February 13, 2004, upon the closing of our private placement
of equity securities, we have outstanding warrants to purchase 5,135,961 shares
of our common stock. The exercise of these options and warrants will result in
dilution to our existing stockholders.
A SIGNIFICANT PORTION OF OUR TOTAL OUTSTANDING SHARES OF COMMON STOCK MAY BE
SOLD IN THE MARKET IN THE NEAR FUTURE, WHICH COULD CAUSE THE MARKET PRICE OF OUR
COMMON STOCK TO DROP SIGNIFICANTLY.
As of December 31, 2003, we had 11,992,179 shares of our common stock
issued and outstanding, of which approximately 8,000,000 shares are registered
pursuant to a registration statement on Form S-3, which was declared effective
on June 28, 2002, and the remainder of which are in the public float. In
addition, we have registered 3,000,000 shares of our common stock underlying
options granted or to be granted under our stock option plan. As of February 13,
2004, upon the closing of our private placement of equity securities, we had
issued and outstanding 13,593,475 shares of our common stock and warrants to
purchase 5,127,586 shares of our common stock. Pursuant to the terms of such
equity offering, we are obligated to file a registration statement on Form S-3
by March 18, 2004 to register such shares of common stock. Consequently, sales
of substantial amounts of our common stock in the public market, or the
perception that such sales could occur, may have a material adverse effect on
our stock price.
OUR COMMON STOCK HAS A LIMITED TRADING MARKET, WHICH COULD LIMIT YOUR ABILITY TO
RESELL YOUR SHARES OF COMMON STOCK AT OR ABOVE YOUR PURCHASE PRICE.
Our common stock is quoted on the American Stock Exchange and currently has
a limited trading market. We cannot assure you that an active trading market
will develop or, if developed, will be maintained. As a result, our stockholders
may find it difficult to dispose of shares of our common stock and, as a result,
may suffer a loss of all or a substantial portion of their investment.
THE MARKET PRICE OF OUR COMMON STOCK MAY FLUCTUATE AFTER THIS OFFERING AND MAY
DROP BELOW THE PRICE YOU PAID.
We cannot assure you that you will be able to resell the shares of our
common stock at or above your purchase price. The market price of our common
stock may fluctuate significantly in response to a number of factors, some of
which are beyond our control. These factors include:
o quarterly variations in operating results;
o the progress or perceived progress of our research and development
efforts;
o changes in accounting treatments or principles;
o announcements by us or our competitors of new technology, product and
service offerings, significant contracts, acquisitions or strategic
relationships;
o additions or departures of key personnel;
o future offerings or resales of our common stock or other securities;
10
o stock market price and volume fluctuations of publicly-traded
companies in general and development companies in particular; and
o general political, economic and market conditions.
BECAUSE WE DO NOT INTEND TO PAY, AND HAVE NOT PAID, ANY CASH DIVIDENDS ON OUR
SHARES OF COMMON STOCK, OUR STOCKHOLDERS WILL NOT BE ABLE TO RECEIVE A RETURN ON
THEIR SHARES UNLESS THE VALUE OF OUR COMMON STOCK APPRECIATES AND THEY SELL
THEIR SHARES.
We have never paid or declared any cash dividends on our common stock and
we intend to retain any future earnings to finance the development and expansion
of our business. We do not anticipate paying any cash dividends on our common
stock in the foreseeable future. Therefore, our stockholders will not be able to
receive a return on their investment unless the value of our common stock
appreciates and they sell their shares.
IF OUR COMMON STOCK IS DELISTED FROM THE AMERICAN STOCK EXCHANGE, IT MAY BE
SUBJECT TO THE "PENNY STOCK" REGULATIONS WHICH MAY AFFECT THE ABILITY OF OUR
STOCKHOLDERS TO SELL THEIR SHARES.
In general, regulations of the SEC define a "penny stock" to be an equity
security that is not listed on a national securities exchange or the NASDAQ
Stock Market and that has a market price of less than $5.00 per share or with an
exercise price of less than $5.00 per share, subject to certain exceptions. If
the American Stock Exchange delists our common stock, it could be deemed a penny
stock, which imposes additional sales practice requirements on broker-dealers
that sell such securities to persons other than certain qualified investors. For
transactions involving a penny stock, unless exempt, a broker-dealer must make a
special suitability determination for the purchaser and receive the purchaser's
written consent to the transaction prior to the sale. In addition, the rules on
penny stocks require delivery, prior to and after any penny stock transaction,
of disclosures required by the SEC.
If our common stock were subject to the rules on penny stocks, the market
liquidity for our common stock could be severely and adversely affected.
Accordingly, the ability of holders of our common stock to sell their shares in
the secondary market may also be adversely affected.
11
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes and incorporates forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1955, Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934 based upon the beliefs of our management, as well as assumptions made by,
and the information currently available to, our management. All statements,
other than statements of historical facts, included or incorporated in this
prospectus regarding our strategy, future operations, financial position, future
revenues, projected costs, prospects, plans and objectives of management are
forward-looking statements. The words "anticipates," "believes," "estimates,"
"expects," "intends," "may," "plans," "projects," "will," "would" and similar
expressions are intended to identify forward-looking statements, although not
all forward-looking statements contain these identifying words. We cannot assure
you that we actually will achieve the plans, intentions or expectations
disclosed in our forward-looking statements and you should not place undue
reliance on our forward-looking statements. Actual results or events could
differ materially from the plans, intentions and expectations disclosed in the
forward-looking statements we make. We have included important factors in the
cautionary statements included or incorporated in this prospectus, particularly
under the heading "Risk Factors," that we believe could cause actual results or
events to differ materially from the forward-looking statements that we make.
Our forward-looking statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or investments we may make.
You are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date of this prospectus. Except for
special circumstances in which a duty to update arises when prior disclosure
becomes materially misleading in light of subsequent circumstances, we do not
intend to update any of these forward-looking statements to reflect events or
circumstances after the date of this prospectus or to reflect the occurrence of
unanticipated events.
USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by the
selling stockholders. We will receive the proceeds from the exercise of warrants
held by the selling stockholders, if any are exercised. The warrants entitle the
selling stockholders to purchase shares of our common stock at exercise prices
ranging from $2.35 to $3.79 per share and with a weighted average exercise price
of $3.72 per share.
The selling stockholders will pay any underwriting discounts and
commissions and expenses incurred by the selling stockholders in disposing of
the shares. We will bear all other costs, fees and expenses incurred in
effecting the issuance and registration of the shares covered by this
prospectus, including, without limitation, all registration and filing fees,
American Stock Exchange listing fees and fees and expenses of our counsel and
our accountants.
12
SELLING STOCKHOLDERS
The following table sets forth, to our knowledge, the common stock
ownership of the selling stockholders, as of March 15, 2004, as adjusted to
reflect the sale of the common stock in this offering. Except as described in
this prospectus, the selling stockholders have not held any position or office
or had any other material relationship with us or any of our predecessors or
affiliates within the past three years.
The 2,651,663 shares covered by this prospectus represent approximately
15.6% of our common stock, based on 17,031,364 shares of common stock
outstanding as of March 15, 2004, which includes an aggregate of 3,429,514
shares of our common stock issuable upon the exercise of options and warrants
held by the selling stockholders. We considered the following factors and made
the following assumptions regarding the table:
o beneficial ownership is determined under Section 13(d) of the
Securities Exchange Act of 1934 and generally includes voting or
investment power with respect to securities and including any
securities that grant the selling stockholder the right to acquire
common stock within 60 days of March 15, 2004;
o unless otherwise indicated below, to our knowledge, the selling
stockholders named below have sole voting and investment power with
respect to their shares of common stock, except to the extent
authority is shared by spouses under applicable law; and
o the selling stockholders may sell all of the securities offered by
this prospectus under certain circumstances.
Notwithstanding these assumptions, the selling stockholders may sell less
than all of the shares listed on the table. In addition, the shares listed below
may be sold pursuant to this prospectus or in privately negotiated transactions.
Accordingly, we cannot estimate the number of shares of common stock that the
selling stockholders will sell under this prospectus.
13
Each of the selling stockholders listed below has sole voting and
investment power with respect to the shares beneficially owned by the
stockholder unless noted otherwise, subject to community property laws where
applicable.
BENEFICIAL OWNERSHIP OF NUMBER OF BENEFICIAL OWNERSHIP
SELLING STOCKHOLDERS SHARES OFFERED OF SHARES AFTER
NAME OF SELLING STOCKHOLDERS PRIOR TO OFFERING(1) HEREBY(2) OFFERING(1)(2)
---------------------------- --------------------- --------- --------------
Number Percent Number Number Percent
------ ------- ------ ------ -------
Seneca Capital L.P.(3) 958,861(4) 6.65 208,861(5) 750,000 5.23
Forbes, Christopher(6) 873,498(7) 6.29 47,469(8) 826,029 5.95
Crestview Capital Master L.L.C.(9) 727,848(10) 5.26 727,848(10) -- --
Seneca Capital International Ltd.(3) 424,050(11) 3.09 424,050(11) -- --
Bost & Co.
FBO Raytheon Master Pension(12) 225,000(13) 1.65 225,000(13) -- --
Bogar, Daniel T. 189,063(14) 1.37 1,563(15) 187,500 1.36
Stein, Ronald M. 189,063(14) 1.37 1,563(15) 187,500 1.36
Pi, Osvaldo 189,063(14) 1.37 1,563(15) 187,500 1.36
Fusselmann, William R. 189,063(14) 1.37 1,563(15) 187,500 1.36
Forbes, Inc. 171,667(16) 1.25 35,000(17) 136,667 1.00
Brown Brothers Harriman & Co.
FBO Heartland Value Fund(18) 150,000(19) 1.10 150,000(19) -- --
Stalder, Ruedi(20) 514,136(21) 3.67 47,469(22) 466,667 3.33
Phippen, Wm. Michael 143,272(23) 1.05 94,937(24) 48,335 *
May, John Wesley 99,114(25) * 79,114(26) 20,000 *
St. Albans Global Management(27) 79,114(26) * 79,114(26) -- --
McLennan Holdco, Inc.(28) 79,114(26) * 79,114(26) -- --
Spectra Capital Management, LLC(29) 79,114(26) * 79,114(26) -- --
Plue, Richard 76,391(30) * 63,291(31) 13,100 *
MSS Descendants Trust 59,400(32) * 59,400(32) -- --
Julios Trust 59,400(32) * 59,400(32) -- --
Walters, William G. 59,400(32) * 59,400(32) -- --
Orlansky, Aharon 73,541(33) * 73,541(33) -- --
Stanford Group Company(34) 2,470,535(35) 17.21 6,248(36) 2,464,287 17.17
Targhee Trust 15,296(37) * 15,296(37) -- --
KWG Trust dated 01/01/04 15,296(37) * 15,296(37) -- --
Cooper, Jordan 9,065(38) * 9,065(38) -- --
Lawrence, Jonathan 7,384(39) * 7,384(39) -- --
* Less than one percent.
(1) Shares of common stock issuable under stock options and warrants that are
exercisable within 60 days after March 15, 2004 are deemed outstanding for
computing the percentage ownership of the selling stockholder holding the
options or warrants, prior to and after giving effect to the offering, but are
not deemed outstanding for computing the percentage ownership of any other
selling stockholder.
(2) We do not know when or in what amounts a selling stockholder may offer
shares for sale. The selling stockholders might not sell any or all of the
shares offered by this prospectus. Because the selling stockholders may offer
all or some of the shares pursuant to this offering and because there are
currently no agreements, arrangements
14
or understandings with respect to the sale of any of the shares, we cannot
estimate the number of the shares that will be held by the selling stockholders
after completion of the offering. However, for purposes of this table, we have
assumed that, after completion of the offering, none of the shares covered by
this prospectus will be held by the selling stockholders.
(3) Doug Hirsch has voting and investment control over the shares of common
stock and warrants to purchase common stock held by each of Seneca Capital L.P.
and Seneca Capital International Ltd., but he disclaims beneficial ownership of
such shares and warrants, except to the extent of any pecuniary interest
therein.
(4) Consists of 139,241 shares of common stock; warrants to purchase 819,620
shares of common stock, 69,620 of which were issued with an exercise price equal
to $3.79 per share, with all such warrants vesting on the date of grant; and
warrants to purchase 750,000 shares of common stock, fifty percent with an
exercise price equal to $2.00 per share and fifty percent with an exercise price
equal to $3.25 per share, with all such warrants vesting on the date of grant.
(5) Consists of 139,241 shares of common stock and warrants to purchase 69,620
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(6) Christopher Forbes is a member of the Board of Directors of Senesco.
(7) Consists of 579,569 shares of common stock; options to purchase 100,000
shares of common stock with various exercise prices ranging from $2.05 to $3.50;
and warrants to purchase 193,929 shares of common stock, 15,823 of which were
issued with an exercise price equal to $3.79 per share, 89,053 of which were
issued with an exercise price equal to $2.00 per share and 89,053 of which were
issued with an exercise price equal to $3.25 per share, with all such warrants
vesting on the date of grant.
(8) Consists of 31,646 shares of common stock and warrants to purchase 15,823
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(9) Stew Flink and Richard Levy have voting and investment control over the
shares of common stock and warrants to purchase common stock held by Crestview
Capital Master L.L.C., but they disclaim beneficial ownership of such shares and
warrants, except to the extent of any pecuniary interest therein.
(10) Consists of 485,232 shares of common stock and warrants to purchase 242,616
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(11) Consists of 282,700 shares of common stock and warrants to purchase 141,350
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(12) The board of directors of Heartland Advisors, Inc. has voting and
investment control over the shares of common stock and warrants to purchase
common stock held by Bost & Co. FBO Raytheon Master Pension, but they disclaim
beneficial ownership of such shares and warrants, except to the extent of any
pecuniary interest therein.
(13) Consists of 150,000 shares of common stock and warrants to purchase 75,000
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(14) Consists of warrants to purchase 189,063 shares of common stock, 1,563 of
which were issued with an exercise price equal to $3.79 per share, with all such
warrants vesting on the date of grant, and warrants to purchase 187,500 shares
of common stock, fifty percent with an exercise price equal to $2.00 per share
and fifty percent with an exercise price equal to $3.25 per share, with all such
warrants vesting on the date of grant.
(15) Consists of warrants to purchase 1,563 shares of common stock with an
exercise price equal to $3.79 per share, with all such warrants vesting on the
date of grant.
(16) Consists of warrants to purchase 80,000 shares of common stock with an
exercise price equal to $3.50 per share, all of which are fully vested; warrants
to purchase 80,000 shares of common stock with an exercise price equal to $2.15
per share, all of which are fully vested; warrants to purchase 5,000 shares of
common stock with an exercise price equal to $2.35 per share, the vested portion
of a warrant to purchase 15,000 shares of common stock, which will be fully
vested on January 7, 2006; and warrants to purchase 6,667 shares of common stock
with an
15
exercise price equal to $3.15 per share, the vested portion of a warrant to
purchase 20,000 shares of common stock, which will be fully vested on December
16, 2005.
(17) Consists of warrants to purchase 15,000 shares of common stock with an
exercise price equal to $2.35 per share, one-third of which are fully vested,
one-third of which will vest on January 7, 2005 and one-third of which will vest
on January 7, 2006, and warrants to purchase 20,000 shares of common stock with
an exercise price equal to $3.15 per share, one-third of which were fully vested
on the date of grant, one-third of which will vest on December 16, 2004 and
one-third of which will vest on December 16, 2005.
(18) The board of directors of Heartland Advisors, Inc. has voting and
investment control over the shares of common stock and warrants to purchase
common stock held by Brown Brothers Harriman & Co. FBO Heartland Value Fund, but
they disclaim beneficial ownership of such shares and warrants, except to the
extent of any pecuniary interest therein.
(19) Consists of 100,000 shares of common stock and warrants to purchase 50,000
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(20) Ruedi Stalder is a director of Senesco and is the Chairman of the Board of
Directors of Senesco.
(21) Consists of 98,313 shares of common stock, options to purchase 400,000
shares of common stock with various exercise prices ranging from $1.50 to $4.00
and warrants to purchase 15,823 shares of common stock with an exercise price
equal to $3.79 per share, with all such warrants vesting on the date of grant.
(22) Consists of 31,646 shares of common stock and warrants to purchase 15,823
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(23) Consists of 111,626 shares of common stock and warrants to purchase 31,646
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(24) Consists of 63,291 shares of common stock and warrants to purchase 31,646
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(25) Consists of 72,743 shares of common stock and warrants to purchase 26,371
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(26) Consists of 52,743 shares of common stock and warrants to purchase 26,371
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(27) Paul A. Novelly and Douglas D. Hommert have voting and investment control
over the shares of common stock and warrants to purchase common stock held by
St. Albans Global Management, but they disclaim beneficial ownership of such
shares and warrants, except to the extent of any pecuniary interest therein.
(28) John A. McLennan has voting and investment control over the shares of
common stock and warrants to purchase common stock held by McLennan Holdco,
Inc., but he disclaims beneficial ownership of such shares and warrants, except
to the extent of any pecuniary interest therein.
(29) Gregory I. Porges has voting and investment control over the shares of
common stock and warrants to purchase common stock held by Spectra Capital
Management, LLC, but he disclaims beneficial ownership of such shares and
warrants, except to the extent of any pecuniary interest therein.
(30) Consists of 55,294 shares of common stock and warrants to purchase 21,097
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(31) Consists of 42,194 shares of common stock and warrants to purchase 21,097
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant.
(32) Consists of warrants to purchase 59,400 shares of common stock with an
exercise price equal to $3.79 per share, with all such warrants vesting on the
date of grant.
16
(33) Consists of warrants to purchase 59,400 shares of common stock with an
exercise price equal to $3.59 per share, and warrants to purchase 14,141 shares
of common stock with an exercise price equal to $3.79 per share, with all such
warrants vesting on the date of grant.
(34) James M. Davis has voting and investment control over the shares of common
stock and warrants to purchase common stock held by Stanford Venture Capital
Holdings, Inc., but he disclaims beneficial ownership of such shares and
warrants, except to the extent of any pecuniary interest therein. Daniel T.
Bogar has voting and investment control over the warrants to purchase common
stock held by Stanford Group Company, but he disclaims beneficial ownership of
such warrants, except to the extent of any pecuniary interest therein.
(35) Consists of 1,714,287 shares of common stock, warrants to purchase 6,248
shares of common stock with an exercise price equal to $3.79 per share, with all
such warrants vesting on the date of grant and warrants to purchase 750,000
shares of common stock, fifty percent with an exercise price equal to $2.00 per
share and fifty percent with an exercise price equal to $3.25 per share, with
all such warrants vesting on the date of grant. The 1,714,287 shares of common
stock and the warrants to purchase 750,000 shares of common stock are held by
Stanford Venture Capital Holdings, Inc., an affiliate of Stanford Group Company.
(36) Consists of warrants to purchase 6,248 shares of common stock with an
exercise price equal to $3.79 per share, with all such warrants vesting on the
date of grant.
(37) Consists of warrants to purchase 15,296 shares of common stock with an
exercise price equal to $3.79 per share, with all such warrants vesting on the
date of grant.
(38) Consists of warrants to purchase 9,065 shares of common stock with an
exercise price equal to $3.79 per share, with all such warrants vesting on the
date of grant.
(39) Consists of warrants to purchase 7,384 shares of common stock with an
exercise price equal to $3.79 per share, with all such warrants vesting on the
date of grant.
17
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time to
time by the selling stockholders. The term "selling stockholders" includes
donees, pledgees, transferees or other successors-in-interest selling shares
received after the date of this prospectus from a selling stockholder as a gift,
pledge, partnership distribution or other non-sale related transfer. The selling
stockholders will act independently of us in making decisions with respect to
the timing, manner and size of each sale. Such sales may be made on one or more
exchanges or in the over-the-counter market or otherwise, at prices and under
terms then prevailing or at prices related to the then current market price or
in negotiated transactions. The selling stockholders may sell their shares by
one or more of, or a combination of, the following methods:
o purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
o block trades in which the broker-dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
o a distribution in accordance with the rules of the American Stock
Exchange;
o in privately negotiated transactions; and
o in options transactions.
In addition, any shares that qualify for sale pursuant to Rule 144 may be sold
under Rule 144 rather than pursuant to this prospectus.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In connection with
distributions of the shares or otherwise, the selling stockholders may enter
into hedging transactions with broker-dealers or other financial institutions.
In connection with such transactions, broker-dealers or other financial
institutions may engage in short sales of the common stock in the course of
hedging the positions they assume with selling stockholders. The selling
stockholders may also sell the common stock short and redeliver the shares to
close out such short positions. The selling stockholders may also enter into
option or other transactions with broker-dealers or other financial institutions
which require the delivery to such broker-dealer or other financial institution
of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus, as supplemented or
amended to reflect such transaction. The selling stockholders may also pledge
shares to a broker-dealer or other financial institution, and, upon a default,
such broker-dealer or other financial institution, may effect sales of the
pledged shares pursuant to this prospectus, as supplemented or amended to
reflect such transaction.
In effecting sales, broker-dealers or agents engaged by the selling
stockholders may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
stockholders in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling stockholders
and any broker-dealers who execute sales for the selling stockholders may be
deemed to be "underwriters" within the meaning of the Securities Act in
connection with such sales. Any profits realized by the selling stockholders and
the compensation of any broker-dealer may be deemed to be underwriting discounts
and commissions.
In order to comply with the securities laws of certain states, if
applicable, the shares must be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
We have advised the selling stockholders that the anti-manipulation rules
of Regulation M under the Exchange Act may apply to sales of shares in the
market and to the activities of the selling stockholders and their affiliates.
In addition, we will make copies of this prospectus available to the
18
selling stockholders for the purpose of satisfying the prospectus delivery
requirements of the Securities Act. The selling stockholders may indemnify any
broker-dealer that participates in transactions involving the sale of the shares
against certain liabilities, including liabilities arising under the Securities
Act.
At the time a particular offer of shares is made, if required, a prospectus
supplement will be distributed that will set forth the number of shares being
offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any discount, commission or
concession allowed or reallowed or paid to any dealer, and the proposed selling
price to the public.
We have agreed to indemnify the selling stockholders against certain
liabilities, including certain liabilities under the Securities Act.
We have agreed with the selling stockholders to keep the registration
statement of which this prospectus constitutes a part effective until the
earlier of:
o such time as all of the shares covered by this prospectus have been
disposed of pursuant to and in accordance with the Registration
Statement; or
o February 2, 2006.
19
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus have
been passed upon for us by Hale and Dorr LLP, Princeton, New Jersey. We have
granted to Hale and Dorr LLP a warrant to purchase 15,000 shares of our common
stock.
EXPERTS
The audited consolidated financial statements and schedules incorporated by
reference in this prospectus and elsewhere in the registration statement have
been audited by Goldstein Golub Kessler LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated by
reference in reliance upon the authority of said firm as experts in accounting
and auditing in giving said report.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the SEC. You may
read and copy any document we file at the SEC's public reference room at
Judiciary Plaza Building, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549. You should call 1-800-SEC-0330 for more information on the public
reference room. Our SEC filings are also available to you on the SEC's Internet
site at http://www.sec.gov.
This prospectus is part of a registration statement that we filed with the
SEC. The registration statement contains more information than this prospectus
regarding us and our common stock, including certain exhibits and schedules. You
can obtain a copy of the registration statement from the SEC at the address
listed above or from the SEC's Internet site.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" much of the information we
file with them (former Commission File No. 0-22307 and current Commission File
No. 001-31326), which means that we can disclose important information to you by
referring you to those publicly available documents. The information that we
incorporate by reference is considered to be part of this prospectus, and any of
our subsequent filings with the SEC will automatically update and supersede this
information. This prospectus incorporates by reference the documents listed
below and any future filings made by us with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, until the filing of a post-effective
amendment to this prospectus which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold:
o our registration statement on Form 8-A, dated May 14, 2002;
o our annual report on Form 10-KSB for the fiscal year ended June 30,
2003, filed on September 29, 2003;
o our proxy statement filed on October 28, 2003 for our annual meeting
of stockholders held on December 15, 2003;
o our quarterly report on Form 10-QSB for the quarter ended September
30, 2003, filed on November 14, 2003;
o our quarterly report on Form 10-QSB for the quarter ended December 31,
2003, filed on February 17, 2004;
o our current report on Form 8-K, dated February 3, 2004;
o our current report on Form 8-K, dated February 13, 2004; and
20
o all of our filings pursuant to the Exchange Act after the date of
filing the initial registration statement and prior to effectiveness
of the registration statement.
You may request a copy of any or all of these filings, at no cost, by
writing or telephoning us at: Senesco Technologies, Inc., 303 George Street,
Suite 420, New Brunswick, New Jersey 08901; telephone (732) 296-8400, attention:
Joel Brooks.
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. The selling stockholders will
not make an offer of these shares in any state where the offer is not permitted.
You should not assume that information in this prospectus or any supplement is
accurate as of any date other than the date on the front of these documents.
21
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation) by reason of the fact that such person
is or was a director, officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. A corporation may, in advance of
the final disposition of any civil, criminal, administrative or investigative
action, suit or proceeding, pay the expenses (including attorneys' fees)
incurred by any officer, director, employee or agent in defending such action,
provided that the director or officer undertakes to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
corporation. A corporation may indemnify such person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses (including attorneys fees) which he actually and reasonably
incurred in connection therewith. The indemnification provided is not deemed to
be exclusive of any other rights to which an officer or director may be entitled
under any corporation's by-law, agreement, vote or otherwise.
Our certificate of incorporation includes a provision that eliminates the
personal liability of our directors to us or our stockholders for monetary
damages for breach of their fiduciary duty to the maximum extent permitted by
the DGCL. The DGCL does not permit liability to be eliminated (i) for any breach
of a director's duty of loyalty to us or our stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions, as provided in Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal benefit. In
addition, as permitted in Section 145 of the DGCL, our certificate of
incorporation and by-laws provide that we shall indemnify our directors and
officers to the fullest extent permitted by the DGCL, including those
circumstances in which indemnification would otherwise be discretionary, subject
to certain exceptions. Our by-laws also provide that we shall advance expenses
to directors and officers incurred in connection with an action or proceeding as
to which they may be entitled to indemnification, subject to certain exceptions.
Each of our indemnification agreements with each of our executive officers
and directors provides for indemnification to the maximum extent permitted by
applicable law. We also indemnify each of our directors and executive officers
with the maximum indemnification allowed to directors and executive officers by
the DGCL, subject to certain exceptions, as well as certain additional
procedural protections. In addition, we will generally advance expenses incurred
by directors and executive officers in any action or proceeding as to which they
may be entitled to indemnification, subject to certain exceptions.
The indemnification provisions in our certificate of incorporation and
by-laws also permit indemnification for liabilities arising under the Securities
Act of 1933. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable.
We currently carry director and officer liability insurance in the amount
of $3,000,000.
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses payable by the registrant in connection with the issuance and
distribution of the securities being registered hereby are as follows:
Amount
------
SEC Registration Fee ................................ $ 966
Amex Additional Listing Fee.......................... 45,000
Legal Expenses ...................................... 50,000*
Accounting Expenses ................................. 5,000*
Printing Expenses ................................... 1,000*
Miscellaneous Expenses............................... 2,000*
---------
Total................................................ $ 103,966*
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation) by reason of the fact that such person
is or was a director, officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. A corporation may, in advance of
the final disposition of any civil, criminal, administrative or investigative
action, suit or proceeding, pay the expenses (including attorneys' fees)
incurred by any officer, director, employee or agent in defending such action,
provided that the director or officer undertakes to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
corporation. A corporation may indemnify such person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses (including attorneys fees) which he actually and reasonably
incurred in connection therewith. The indemnification provided is not deemed to
be exclusive of any other rights to which an officer or director may be entitled
under any corporation's by-law, agreement, vote or otherwise.
Our certificate of incorporation includes a provision that eliminates the
personal liability of our directors to us or our stockholders for monetary
damages for breach of their fiduciary duty to the maximum extent permitted by
the DGCL. The DGCL does not permit liability to be eliminated (i) for any breach
of a director's duty of loyalty to us or our stockholders, (ii) for acts or
omissions not in good
II-1
faith or that involve intentional misconduct or a knowing violation of law,
(iii) for unlawful payments of dividends or unlawful stock repurchases or
redemptions, as provided in Section 174 of the DGCL, or (iv) for any transaction
from which the director derived an improper personal benefit. In addition, as
permitted in Section 145 of the DGCL, our certificate of incorporation and
by-laws provide that we shall indemnify our directors and officers to the
fullest extent permitted by the DGCL, including those circumstances in which
indemnification would otherwise be discretionary, subject to certain exceptions.
Our by-laws also provide that we shall advance expenses to directors and
officers incurred in connection with an action or proceeding as to which they
may be entitled to indemnification, subject to certain exceptions.
Each of our indemnification agreements with each of our executive officers
and directors provides for indemnification to the maximum extent permitted by
applicable law. We also indemnify each of our directors and executive officers
with the maximum indemnification allowed to directors and executive officers by
the DGCL, subject to certain exceptions, as well as certain additional
procedural protections. In addition, we will generally advance expenses incurred
by directors and executive officers in any action or proceeding as to which they
may be entitled to indemnification, subject to certain exceptions.
The indemnification provisions in our certificate of incorporation and
by-laws also permit indemnification for liabilities arising under the Securities
Act of 1933. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable.
We currently carry director and officer liability insurance in the amount
of $3,000,000.
II-2
ITEM 16. EXHIBITS.
4.1 Form of Warrant issued to certain accredited investors (with
attached schedule of parties and terms thereto). Incorporated by
reference to Exhibit 4.1 of our Current Report on Form 8-K, filed
on February 3, 2004.
10.1 Form of Securities Purchase Agreement by and between Senesco
Technologies, Inc. and certain accredited investors (with
attached schedule of parties and terms thereto). Incorporated by
reference to Exhibit 10.1 of our Current Report on Form 8-K,
filed on February 3, 2004.
10.2 Form of Registration Rights Agreement by and between Senesco
Technologies, Inc. and certain accredited investors (with
attached schedule of parties and terms thereto). Incorporated by
reference to Exhibit 10.2 of our Current Report on Form 8-K,
filed on February 3, 2004.
10.3 Amendment No. 1 to the Securities Purchase Agreement by and
between Senesco Technologies, Inc. and Crestview Capital Master,
L.L.C. Incorporated by reference to Exhibit 10.1 of our Current
Report on Form 8-K, filed on February 13, 2004.
10.4 Amendment No. 1 to the Registration Rights Agreement by and
between Senesco Technologies, Inc. and Crestview Capital Master,
L.L.C. Incorporated by reference to Exhibit 10.2 of our Current
Report on Form 8-K, filed on February 13, 2004.
5.1* Opinion of Hale and Dorr LLP.
23.1* Consent of Goldstein Golub Kessler LLP.
23.2* Consent of Hale and Dorr LLP (included in Exhibit 5.1).
24.1* Power of Attorney (included on signature page).
- ----------
* Filed herewith.
II-3
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or together, represent a fundamental change in
the information in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
the volume of securities offered (if the total dollar value
of securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than twenty percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Brunswick, State of New Jersey, on March 17,
2004.
SENESCO TECHNOLOGIES, INC.
(Registrant)
By: /s/ Bruce C. Galton
-----------------------------------------------
Bruce C. Galton
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bruce C. Galton and Joel Brooks, jointly and
severally, his true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
registration statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Bruce C. Galton President, Chief Executive Officer and Director March 17, 2004
- -----------------------------------
Bruce C. Galton
/s/ Joel Brooks Chief Financial Officer and Treasurer (Principal March 17, 2004
- ----------------------------------- Financial and Accounting Officer)
Joel Brooks
/s/ Ruedi Stalder Chairman of the Board and Director March 17, 2004
- -----------------------------------
Ruedi Stalder
/s/ John E. Thompson Executive Vice President of Research and March 17, 2004
- ----------------------------------- Development and Director
John E. Thompson, Ph.D.
/s/ Christopher Forbes Director March 17, 2004
- -----------------------------------
Christopher Forbes
/s/ Thomas C. Quick Director March 17, 2004
- -----------------------------------
Thomas C. Quick
/s/ David Rector Director March 17, 2004
- -----------------------------------
David Rector
/s/ John Braca Director March 17, 2004
- -----------------------------------
John Braca
INDEX OF EXHIBITS
4.1 Form of Warrant issued to certain accredited investors (with
attached schedule of parties and terms thereto). Incorporated by
reference to Exhibit 4.1 of our Current Report on Form 8-K, filed
on February 3, 2004.
10.1 Form of Securities Purchase Agreement by and between Senesco
Technologies, Inc. and certain accredited investors (with
attached schedule of parties and terms thereto). Incorporated by
reference to Exhibit 10.1 of our Current Report on Form 8-K,
filed on February 3, 2004.
10.2 Form of Registration Rights Agreement by and between Senesco
Technologies, Inc. and certain accredited investors (with
attached schedule of parties and terms thereto). Incorporated by
reference to Exhibit 10.2 of our Current Report on Form 8-K,
filed on February 3, 2004.
10.3 Amendment No. 1 to the Securities Purchase Agreement by and
between Senesco Technologies, Inc. and Crestview Capital Master,
L.L.C. Incorporated by reference to Exhibit 10.1 of our Current
Report on Form 8-K, filed on February 13, 2004.
10.4 Amendment No. 1 to the Registration Rights Agreement by and
between Senesco Technologies, Inc. and Crestview Capital Master,
L.L.C. Incorporated by reference to Exhibit 10.2 of our Current
Report on Form 8-K, filed on February 13, 2004.
5.1* Opinion of Hale and Dorr LLP.
23.1* Consent of Goldstein Golub Kessler LLP.
23.2* Consent of Hale and Dorr LLP (included in Exhibit 5.1).
24.1* Power of Attorney (included on signature page).
- ----------
* Filed herewith.
HALE AND DORR LLP
(a Massachusetts Limited Liability Partnership)
COUNSELORS AT LAW
650 College Road East
Princeton, New Jersey 08540
March 17, 2004
Senesco Technologies, Inc.
303 George Street, Suite 420
New Brunswick, New Jersey 08901
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), for the registration of an aggregate
of 2,651,663 shares of Common Stock, $0.01 par value per share (the "Shares"),
of Senesco Technologies, Inc., a Delaware corporation (the "Company"). All of
the Shares are being registered on behalf of certain stockholders of the Company
(the "Selling Stockholders").
We are acting as counsel for the Company in connection with the
registration for resale of the Shares. We have examined signed copies of the
Registration Statement to be filed with the Commission. We have also examined
and relied upon minutes of meetings of the stockholders and the Board of
Directors of the Company as provided to us by the Company, stock record books of
the Company as provided to us by the Company, the Amended and Restated
Certificate of Incorporation and Amended and Restated By-Laws of the Company,
and such other documents as we have deemed necessary for purposes of rendering
the opinions hereinafter set forth.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the Shares, to register and qualify the Shares for sale under all
applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the laws of the State of New Jersey, the General Corporation Law of
the State of Delaware and the federal laws of the United States of America.
Based upon and subject to the foregoing, and assuming the receipt of the
appropriate consideration for the Shares, we are of the opinion that the Shares
have been duly authorized and are validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters. This opinion
is based upon currently existing statutes, rules, regulations and judicial
decisions, and we disclaim any obligation to advise you of any change in any of
these sources of law or subsequent legal or factual developments which might
affect any matters or opinions set forth herein.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein and in the related prospectus under the caption "Legal Matters." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
INDEPENDENT AUDITOR'S CONSENT To the Board of Directors Senesco Technologies, Inc. We hereby consent to the incorporation by reference in this Registration Statement of Senesco Technologies, Inc. on Form S-3 our report dated August 20, 2003, on the consolidated financial statements of Senesco Technologies, Inc. and Subsidiary as of June 30, 2003 and for each of the two years in the period then ended appearing in the Annual Report on Form 10-KSB for the year ended June 30, 2003. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ Goldstein Golub Kessler LLP GOLDSTEIN GOLUB KESSLER LLP New York, New York March 17, 2004