UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
Filed by
Registrant x
Filed by
a Party other than the Registrant o
Check the
appropriate box:
o Preliminary Proxy
Statement
o Confidential, for Use
of the Commission Only (as permitted by Rule 14a-6(e)(2)
o Definitive Additional
Materials
o Soliciting Material
Pursuant to §240.14a-11(c) or §240.1a-12
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SENESCO
TECHNOLOGIES, INC.
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(Name
of Registrant as Specified In Its Charter)
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_________________________________________________________________
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(Name
of Person(s) Filing Proxy Statement if other than the
Registrant)
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Payment
of Filing Fee (Check the appropriate box):
x No fee
required.
o Fee computed on table
below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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1) Title
of each class of securities to which transaction
applies:
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2) Aggregate
number of securities to which transaction applies:
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3) Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is
calculated and state how it was determined):
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4) Proposed
maximum aggregate value of transaction:
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5) Total
fee paid:
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o Fee paid previously
with preliminary materials.
o Check box if any part
of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify
the filing for which the offsetting fee was paid previously. Identify
the previous filing by registration statement number, or the Form or Schedule
and the date of its filing.
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1) Amount
Previously Paid:
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2) Form,
Schedule or Registration Statement No.:
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3) Filing
Party:
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4) Date
Filed:
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SENESCO
TECHNOLOGIES, INC.
303
George Street, Suite 420
New
Brunswick, New Jersey 08901
To Our
Stockholders:
You are
cordially invited to attend the 2009 Special Meeting of Stockholders of Senesco
Technologies, Inc. at 11:00 A.M., local time, on September 22, 2009, at the
offices of Morgan, Lewis & Bockius LLP at 101 Park Avenue, New York, New
York 10178.
The
Notice of Meeting and Proxy Statement on the following pages describe the
matters to be presented at the meeting.
It is
important that your shares be represented at this meeting to assure the presence
of a quorum. Whether or not you plan to attend the meeting, we hope
that you will have your stock represented by voting as soon as possible, by
signing, dating and returning your proxy card in the enclosed envelope, which
requires no postage if mailed in the United States. Your stock will
be voted in accordance with the instructions you have given in your
proxy.
Thank you
for your continued support.
| Sincerely, | |||
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/s/ Harlan W. Waksal, M.D. | |
| Harlan W. Waksal, M.D. | |||
| Chairman of the Board | |||
SENESCO
TECHNOLOGIES, INC.
303
George Street, Suite 420
New
Brunswick, New Jersey 08901
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
To
Be Held September 22, 2009
The
Special Meeting of Stockholders (the “Meeting”) of Senesco Technologies, Inc., a
Delaware corporation (the “Company”), will be held at the offices of Morgan,
Lewis & Bockius LLP at 101 Park Avenue, New York, New York 10178 on
September 22, 2009, at 11:00 A.M., local time, for the following
purposes:
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(1)
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To
approve an amendment to the Company’s Certificate of Incorporation to
increase the total number of authorized shares of common stock, $0.01 par
value per share, of the Company from 100,000,000 to
120,000,000.
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(2)
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To
approve, for purposes of section 713 of the NYSE Amex Company
Guide, the issuance of our shares of common stock and warrants (and the
shares of common stock issuable upon exercise of the warrants), which in
the aggregate exceed 20% of our currently outstanding shares of common
stock, pursuant to the terms and conditions of the Securities Purchase
Agreement, dated as of July 9, 2009, between Partlet Holdings Limited
and us, the Securities Purchase Agreement, dated as of July 29, 2009,
between each of Robert Forbes, Timothy Forbes, Harlan W. Waksal, M.D.,
Rudolf Stalder, Christopher Forbes, David Rector, John N. Braca, Jack Van
Hulst, Warren Isabelle and the Thomas C. Quick Charitable Foundation and
us and the Securities Purchase Agreement, dated as of July 29, 2009,
between Cato Holding Company and
us.
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(3)
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To
approve, for purposes of section 711 of the NYSE Amex Company
Guide, the issuance of our shares of common stock and warrants (and the
shares of common stock issuable upon exercise of the warrants) pursuant to
the terms and conditions of the Securities Purchase Agreement, dated as of
July 29, 2009, to certain of our insiders and
affiliates.
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(4)
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To
transact such other business as may properly come before the Meeting or
any adjournment or adjournments
thereof.
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The
holders of common stock (the “Stockholders”) of record at the close of business
on August 7, 2009 (the “Record Date”), are entitled to notice of and to vote at
the Meeting, or any adjournment or adjournments thereof. A complete
list of such Stockholders will be open to the examination of any Stockholder at
the Company’ s principal executive offices at 303 George Street, Suite 420, New
Brunswick, New Jersey 08901 for a period of ten (10) days prior to the Meeting
and at the New York offices of Morgan, Lewis & Bockius on the day of the
Meeting. The Meeting may be adjourned from time to time without
notice other than by announcement at the Meeting; provided, however, if the
adjournment is for more than thirty (30) days after the date of the Meeting, or
if after the adjournment a new Record Date is fixed for the adjourned meeting, a
notice of the adjourned meeting is required to be given to each
Stockholder.
Important
Notice Regarding the Availability of Proxy Materials
for
the Special Meeting of Stockholders on September 22, 2009
Our proxy
statement is attached. Financial and other information concerning our
company is incorporated herein by reference and contained in our Annual Report
for the year ended June 30, 2008 and our Quarterly Report for the quarter
ended March 31, 2009, which are being mailed with this proxy statement.
Pursuant to new rules promulgated by the SEC, we have elected to provide
access to our proxy materials both by sending you this full set of proxy
materials, including a proxy card, and by notifying you of the availability of
our proxy materials on the Internet. This proxy statement is available on
our website at www.senesco.com/invest.htm.
IT
IS IMPORTANT THAT YOUR SHARES BE REPRESENTED REGARDLESS OF THE NUMBER OF SHARES
YOU MAY HOLD. WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING IN
PERSON, PLEASE COMPLETE, DATE, SIGN AND RETURN THE ENCLOSED PROXY CARD PROMPTLY
IN THE ENCLOSED RETURN ENVELOPE. THE PROMPT RETURN OF PROXIES WILL
ENSURE A QUORUM AND SAVE THE COMPANY THE EXPENSE OF FURTHER
SOLICITATION. EACH PROXY GRANTED MAY BE REVOKED BY THE STOCKHOLDER
APPOINTING SUCH PROXY AT ANY TIME BEFORE IT IS VOTED. IF YOU RECEIVE
MORE THAN ONE PROXY CARD BECAUSE YOUR SHARES ARE REGISTERED IN DIFFERENT NAMES
OR ADDRESSES, EACH PROXY SHOULD BE SIGNED AND RETURNED TO ENSURE THAT ALL OF
YOUR SHARES WILL BE VOTED.
| By Order of the Board of Directors | |||
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/s/ Sascha P. Fedyszyn | |
| Sascha P. Fedyszyn | |||
| Secretary | |||
New
Brunswick, New Jersey
August
10, 2009
SENESCO
TECHNOLOGIES, INC.
303
George Street, Suite 420
New
Brunswick, New Jersey 08901
PROXY
STATEMENT
This
proxy statement is furnished in connection with the solicitation by the board of
directors, or the board, of Senesco Technologies, Inc., a Delaware corporation,
referred to herein as Senesco, we, us or our, of proxies to be voted at a
special meeting of stockholders to be held on September 22, 2009, referred to
herein as the Meeting, at the offices of Morgan Lewis & Bockius, LLP at 101
Park Avenue, New York, NY 10178, at 11:00 A.M., local time, and at any
adjournment or adjournments thereof. The holders of record of our
common stock, $0.01 par value per share, also referred to herein as common
stock, as of the close of business on August 7, 2009, also referred to herein as
the Record Date, will be entitled to notice of and to vote at the Meeting and
any adjournment or adjournments thereof. As of the Record Date, there
were 21,939,339 shares of our common stock issued and outstanding and entitled
to vote. Each share of our common stock is entitled to one vote on
any matter presented at the Meeting.
If
proxies in the accompanying form are properly voted and received, the shares of
our common stock represented thereby will be voted in the manner specified
therein. If not otherwise specified, the shares of our common stock
represented by the proxies will be voted: (1) FOR a proposal to amend
Senesco’s Certificate of Incorporation to increase the total authorized shares
of common stock, $0.01 par value per share, of Senesco from 100,000,000 to
120,000,000; (2) FOR a proposal to approve, for purposes
of section 713 of the NYSE Amex Company Guide, the issuance of shares
of our common stock and warrants (and the shares of common stock issuable upon
exercise of the warrants), which in the aggregate exceed 20% of our currently
outstanding shares of common stock, pursuant to the terms and conditions of the
Securities Purchase Agreement, dated as of July 9, 2009, between Partlet
Holdings Limited and us the Securities Purchase Agreement, dated as of July 29,
2009, between each of Robert Forbes, Timothy Forbes, Harlan W. Waksal, M.D.,
Rudolf Stalder, Christopher Forbes, David Rector, John N. Braca, Jack Van Hulst,
Warren Isabelle and the Thomas C. Quick Charitable Foundation (which is an
affiliate of our board member Thomas C. Quick), and us, and the Securities
Purchase Agreement, dated as of July 29, 2009, between Cato Holding Company and
us; (3) FOR a proposal to approve, for purposes of section 711 of
the NYSE Amex Company Guide, the issuance of our shares of common stock and
warrants (and the shares of common stock issuable upon exercise of the warrants)
pursuant to the terms and conditions of the Securities Purchase Agreement, dated
as of July 29, 2009, to certain of our insiders and affiliates and (4) in
the discretion of the persons named in the enclosed form of proxy, on any other
proposals which may properly come before the meeting or any adjournment or
adjournments thereof. Any stockholder who has submitted a proxy may
revoke it at any time before it is voted, by written notice addressed to and
received by our Corporate Secretary, by submitting a duly executed proxy bearing
a later date or by electing to vote in person at the meeting. The
mere presence at the meeting of the person appointing a proxy does not, however,
revoke the appointment.
The
presence, in person or by proxy, of holders of shares of our common stock having
a majority of the votes entitled to be cast at the meeting shall constitute a
quorum. If such a quorum is present, Proposal 1 requires the
affirmative vote of our stockholders possessing a majority of the shares of our
common stock issued and outstanding as of the record date, and Proposals 2 and 3
require the affirmative vote of our stockholders representing a majority of the
votes cast by holders of shares present, or represented by proxy, and entitled
to vote thereon.
Abstentions
are included in the shares present at the meeting for purposes of determining
whether a quorum is present, and are counted as a vote against for purposes of
determining whether any of the foregoing proposals are approved. A
broker non-vote is when shares are represented at the meeting by a proxy
specifically conferring only limited authority to vote on certain matters and no
authority to vote on other matters. Brokers may vote on Proposal 1,
and, therefore, broker non-votes are included in the determination of the number
of shares represented at the meeting for purposes of determining whether a
quorum is present. A broker non-vote will have the same effect as a
vote against Proposal 1. Brokers may not vote on Proposals 2 and 3
and, therefore, broker non-votes will not have an effect on those
proposals.
On or
about August 10, 2009, this proxy statement, together with the related proxy
card, is being mailed to our stockholders of record as of the record
date.
Solicitation
of proxies may be made by directors and officers of Senesco by mail, telephone,
facsimile transmission or other electronic media and in person for which they
will receive no additional compensation. The entire cost of
soliciting proxies will be borne by us.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Our
common stock is the only class of stock entitled to vote at the
Meeting. Only our stockholders of record as of the close of business
on the Record Date are entitled to receive notice of and to vote at the
Meeting. As of the Record Date, there were 242 holders of record of
our common stock, and we had outstanding 21,939,339 shares of our common stock
and each outstanding share is entitled to one (1) vote at the
Meeting. The following table sets forth certain information, as of
the Record Date, with respect to holdings of our common stock by (i) each person
known by us to be the beneficial owner of more than 5% of the total number of
shares of our common stock outstanding as of such date; (ii) each of our
directors and our named executive officers; and (iii) all of our directors and
our current executive officers as a group.
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Name and Address of Beneficial Owner
(1)
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Amount
and Nature of
Beneficial Ownership(2)
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Percent
of Class(3)
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(i)
Certain Beneficial Owners:
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Stanford
Venture Capital Holdings, Inc.
C/O
Baker Botts L.L.P.
2001
Ross Avenue
Dallas,
TX
75201
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13,258,359 | (4) | 40.5 | % | ||||
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Partlet
Holdings Limited
International
House, 1st Floor
41,
The Parade
St.
Helier, JERSEY, Channel
Islands
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2,055,555 | (5) | 9.1 | % | ||||
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(ii)
Directors, Named Executives and Chief Executive Officer:
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Harlan
W. Waksal,
M.D.
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26,584 | (6) | * | |||||
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Rudolf
Stalder.
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988,754 | (7) | 4.4 | % | ||||
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Bruce
C.
Galton.
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756,563 | (8) | 3.4 | % | ||||
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John
E. Thompson, Ph.D.
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844,676 | (9) | 3.8 | % | ||||
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Christopher
Forbes
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2,866,587 | (10) | 12.6 | % | ||||
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Thomas
C.
Quick
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810,124 | (11) | 3.6 | % | ||||
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David
Rector
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295,207 | (12) | 1.3 | % | ||||
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Jack
Van
Hulst
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129,956 | (13) | * | |||||
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John
N.
Braca
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278,407 | (14) | 1.3 | % | ||||
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Warren
Isabelle
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- | * | ||||||
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Sascha
P.
Fedyszyn
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248,560 | (15) | 1.1 | % | ||||
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Joel
P. Brooks
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181,775 | (16) | * | |||||
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Richard
Dondero
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131,924 | (17) | * | |||||
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(iii)
All Directors and current executive officers as a group (13
persons)
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7,559,117 | (18) | 29.1 | % | ||||
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*
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Less
than 1%
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(1)
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Unless
otherwise provided, all addresses should be care of Senesco Technologies,
Inc., 303 George Street, Suite 420, New Brunswick, New Jersey
08901.
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(2)
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Except
as otherwise indicated, all shares of common stock are beneficially owned
and sole investment and voting power is held by the persons
named.
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(3)
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Applicable
percentage of ownership is based on 21,939,339 shares of our common stock
outstanding as of the Record Date, plus any common stock equivalents and
options or warrants held by such holder which are presently or will become
exercisable within sixty (60) days after the Record
Date.
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(4)
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Includes
5,882,353 shares of common stock issuable upon conversion of secured
convertible debentures and 4,916,668 shares of common stock issuable
pursuant to presently exercisable warrants issued to Stanford Venture
Capital Holdings, Inc. and 1,714,287 shares of common stock transferred
from Stanford Venture Capital Holdings, Inc. to Stanford International
Bank Limited.
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(5)
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Excludes
1,952,778 shares underlying warrants which become exercisable more than
sixty (60) days after the Record
Date.
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(6)
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Includes
26,584 shares of common stock issuable pursuant to presently exercisable
options.
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(7)
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Includes
756,983 shares of common stock issuable pursuant to presently exercisable
warrants and options. Excludes 40,000 shares underlying
warrants which become exercisable more than sixty (60) days after the
Record Date.
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(8)
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Includes
658,113 shares of common stock issuable pursuant to presently exercisable
options. Excludes 191,000 shares of common stock underlying
RSU’s which become vested upon the achievement of certain performance
milestones.
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(9)
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Represents
572,000 shares of common stock held by 2091794 Ontario Ltd. and 272,676
shares of common stock issuable pursuant to presently exercisable options
issued to John E. Thompson, Ph.D. Excludes 298,000 shares of
common stock underlying options which become exercisable upon the
achievement of certain performance
milestones.
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(10)
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Includes
772,566 shares of common stock issuable pursuant to presently exercisable
warrants and options. Excludes 25,000 shares underlying
warrants which become exercisable more than sixty (60) days after the
Record Date.
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(11)
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Represents
264,901 shares of common stock and 132,450 shares of common stock issuable
pursuant to warrants issued to Thomas C. Quick Charitable
Foundation. Represents 139,734 shares of common stock and
273,039 shares of common stock issuable pursuant to presently exercisable
options or issued to Thomas C. Quick. Excludes 20,000 shares
underlying warrants which become exercisable more than sixty (60) days
after the Record Date.
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(12)
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Includes
274,207 shares of common stock issuable pursuant to presently exercisable
warrants and options. Excludes 35,000 shares underlying warrants which
become exercisable more than sixty (60) days after the Record
Date.
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(13)
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Includes
129,956 shares of common stock issuable pursuant to presently exercisable
options. Excludes 20,000 shares underlying warrants which
become exercisable more than sixty (60) days after the Record
Date.
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(14)
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Includes
244,207 shares of common stock issuable pursuant to presently exercisable
warrants and options Excludes 35,000 shares underlying warrants
which become exercisable more than sixty (60) days after the Record
Date.
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(15)
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Includes
185,000 shares of common stock issuable pursuant to presently exercisable
options. Excludes 92,000 shares of common stock underlying
RSU’s which become vested upon the achievement of certain performance
milestones.
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(16)
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Includes
157,500 shares of common stock issuable pursuant to presently exercisable
options. Excludes 78,000 shares of common stock underlying
RSU’s which become vested upon the achievement of certain performance
milestones.
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(17)
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Represents
131,924 shares of common stock issuable pursuant to presently exercisable
options. Excludes 380,000 shares of common stock underlying
options which become exercisable upon the achievement of certain
performance milestones.
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(18)
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See
Notes 6 through 17.
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BACKGROUND
INFORMATION
Background
of the Transaction
As
disclosed in our filings with the Securities and Exchange Commission, since
consummating our last financing with certain investors in the fourth quarter of
2007 and first quarter of 2008, we have been seeking additional sources of
capital in order to fund our operations and research and development
projects. While we have been utilizing funds raised in this
previous financing to fund our operations, since the winter of 2009 through the
present time, our board and management have been focusing their efforts on
ascertaining sources of financing.
In
January 2009, our board engaged in formal internal discussions as to the best
course of action which would present the most opportunity for us to ascertain
funding. Our board, along with our management, at that time,
attempted to reach out to several of our current investors as well as engage in
discussions with several investment banks in the hopes that the then current
investors and/or the investment banks could provide us with funding, or at least
sources through which we could raise funds.
In
addition, during our second quarter of 2009, from January through March, our
management attended various investor conferences and engaged in one-on-one
discussions with investors in the hopes that such investors would be interested
in getting to better know and understand our operations. The members
of our board also reached out to various contacts that they had around the
country in an attempt to ascertain if such contacts, or any who they knew of,
had an interest in investing in us.
Further,
during this time, management and the board also engaged in informal discussions
on a routine basis regarding our financial position. While the
company remained focused on moving towards our proposed clinical trial, the
board and management were well aware that such trials would not succeed, or even
occur, if we were unable to secure additional funding.
At a
meeting of our board, on March 23, 2009, we formally retained two investment
banks to assist us in consummating a financing. Formal engagement
letters were signed with each of the banks. Over the course of the
next two months, we worked closely with such banks, and continued to pursue
additional contacts. An extensive search was undertaken, including a
significant effort on the part of the retained investment banks, however,
unfortunately, due partly to the deteriorating equity market conditions and the
demise of Stanford Venture Capital Holdings, Inc. no viable sources of funding
were ascertained during that time.
At a
board meeting, which was held on June 23, 2009, after believing that all
opportunities had been exhausted, we learned that Partlet Holdings Limited was
potentially interested in engaging in a small financing with
us. During the days that ensued, certain members of our board had
one-on-one conversations with their friends and family in the hopes that such
friends and family would consider investing in us.
Finally,
at a board meeting which was held on June 25, 2009, management presented the
board with certain terms that they had negotiated with Partlet Holdings
Limited. Certain members of the board, at that time, believing that
all current alternatives had been exhausted, also informed the board that
certain members of their family desired to invest in the
financing. Finally, several members of the board, understanding that
the funds from Partlet Holdings Limited as well as the funds committed by
friends and family, were insufficient for us to sufficiently progress our
proposed clinical trial, determined to invest in us. Accordingly, on
that date, management and certain members of the board approved the transactions
with each of Partlet (as defined below) and the Remaining Investors (as defined
below) subject to the negotiation of definitive agreements. The terms
of such financing had been previously heavily negotiated with each investor over
the course of several of the following weeks and management and the board agreed
at such meeting, that the terms of such deal, were the best that could be
ascertained. In addition, the Audit Committee of the board approved
any related party transaction.
Description
of the Transaction
Transaction with Partlet
Holdings Limited
As
previously disclosed, on July 9, 2009, we entered into a Securities Purchase
Agreement, referred to herein as the Partlet Securities Purchase Agreement, with
Partlet Holdings Limited, referred to herein as Partlet, which is an accredited
investor, pursuant to which we sold an aggregate of 1,111,111 shares, referred
to herein as the Shares, of our common stock at $0.90 per share and each of a
Series A warrant, referred to herein as the Partlet Series A Warrant, and a
Series B warrant, referred to herein as the Partlet Series B
Warrant.
The
Partlet Series A Warrant entitles the holder to purchase 1,000,000 shares of our
common stock at $0.01 per warrant share. The Partlet Series A Warrant has
a term of seven years and is exercisable immediately after the date of
grant.
The
Partlet Series B Warrant entitles the holder to purchase 2,055,555 shares of our
common stock at $0.60 per warrant share. The Partlet Series B Warrant has
a term of seven years and is not exercisable until after the six-month
anniversary after the date of grant.
On July
9, 2009, we closed on $950,000 of aggregate proceeds of the private placement
and, on that date, issued (i) a total of 1,055,555 Shares (ii) a Partlet Series
A Warrant to purchase 950,000 shares of our common stock and (iii) a Partlet
Series B Warrant to purchase 1,952,778 shares of our common
stock. The remaining $50,000 in proceeds, referred to herein as the
Remaining Partlet Transaction, cannot be closed upon, as described more fully
below, until we receive stockholder approval for certain aspects of the
transaction.
Transaction with Each of
Robert and Timothy Forbes
As
previously disclosed, on July 29, 2009, we entered into a Securities Purchase
Agreement, referred to herein as the Forbes Securities Purchase Agreement, with
each of Robert Forbes and Timothy Forbes, each of whom is an accredited
investor, pursuant to which, subject to stockholder approval, it is anticipated
that we will issue and sell an aggregate of 444,444 Shares of our common stock
at $0.90 per share and each of a Series A warrant, referred to herein as the
Forbes Series A Warrants, and a Series B warrant, referred to herein as the
Forbes Series B Warrants. Each of Robert Forbes and Timothy Forbes
are the brothers of Christopher Forbes who is a director of
Senesco. Mr. Christopher Forbes will not be deemed to be the
beneficial owner of, nor will he have a pecuniary interest in the Shares or
Warrants issued to his brothers.
The
Forbes Series A Warrants entitle the holders to purchase in the aggregate, up to
400,000 shares of our common stock at $0.01 per warrant share. The Forbes
Series A Warrants have a term of seven years and are exercisable immediately
after the date of grant.
The
Forbes Series B Warrants entitle the holders to purchase, in the aggregate, up
to 405,556 shares of our common stock at $0.60 per warrant share. The
Forbes Series B Warrants have a term of seven years and are not exercisable
until after the six-month anniversary after the date of grant.
Transaction with Insiders
and Affiliates
As
previously disclosed, on July 29, 2009, we entered into a Securities Purchase
Agreement, referred to herein as the Affiliates Securities Purchase
Agreement, with each of Harlan W. Waksal, M.D., Rudolf Stalder, Christopher
Forbes, David Rector, John N. Braca, Jack Van Hulst, Warren Isabelle and the
Thomas C. Quick Charitable Foundation (which is an affiliate of our board member
Thomas C. Quick), referred to herein as the Affiliate Investors, each of whom is
an accredited investor, pursuant to which, subject to stockholder approval, it
is anticipated that we will issue and sell an aggregate of 144,444 Shares of our
common stock at $0.90 per share and each of a Series A warrant, referred to
herein as the Affiliates Series A Warrants, and a Series B warrant, referred to
herein as the Affiliates Series B Warrants. Each of Harlan W. Waksal,
M.D., Rudolf Stalder, Christopher Forbes, David Rector, John N. Braca, Jack Van
Hulst and Warren Isabelle serve on our board. The Thomas C. Quick
Charitable Foundation is an affiliate of our board member Thomas C.
Quick.
The
Affiliates Series A Warrants entitle the holders to purchase in the aggregate,
up to 130,000 shares of our common stock at $0.01 per warrant share. The
Affiliates Series A Warrants have a term of seven years and are exercisable
immediately after the date of grant.
The
Affiliates Series B Warrants entitle the holders to purchase, in the aggregate,
up to 131,807 shares of the Company’s common stock at $0.60 per warrant
share. The Affiliates Series B Warrants have a term of seven years and are
not exercisable until after the six-month anniversary after the date of
grant.
Transaction with Cato
Holding Company
On July
29, 2009, we entered into a Securities Purchase Agreement with Cato Holding
Company, referred to herein Cato, who is an accredited investor, pursuant to
which, subject to stockholder approval, it is anticipated that we will issue an
aggregate of 194,444 Shares of our common stock at $0.90 per share and each of a
Series A warrant, referred to herein as the Cato Series A Warrant, and a Series
B warrant, referred to herein as the Cato Series B Warrant. The
Shares will be issued to Cato in exchange for debt which is currently owed by us
to Cato Research Ltd. in the amount of $175,000. Cato Research Ltd. is an affiliate of
Cato.
The Cato
Series A Warrants entitle the holders to purchase in the aggregate, up to
175,000 shares of our common stock at $0.01 per warrant share. The Cato
Series A Warrants have a term of seven years and are exercisable immediately
after the date of grant.
The Cato
Series B Warrants entitle the holders to purchase, in the aggregate, up to
177,431 shares of our common stock at $0.60 per warrant share. The Cato
Series B Warrants have a term of seven years and are not exercisable until after
the six-month anniversary after the date of grant.
As
described above, we have already consummated part of the transaction with
Partlet Holdings Limited, however, in order to consummate the Remaining Partlet
Transaction and to consummate the transactions with each of Robert Forbes, Tim
Forbes, the Affiliated Investors and Cato, collectively referred to herein as
the Remaining Investors, certain conditions must be satisfied,
including:
|
·
|
the
receipt of approvals from our stockholders, as described in this proxy
statement;
|
|
·
|
the
accuracy of the representations and warranties of the parties;
and
|
|
·
|
the
satisfaction of other customary closing
conditions.
|
We have
already received gross proceeds of $950,000 (and net proceeds of approximately
$900,000 after deducting estimated expenses), in connection with our sale of
Securities to Partlet Holdings Limited. We expect to receive
additional net proceeds of approximately $725,000 if we are able to consummate
the Remaining Partlet Transaction as well as the transaction with the Remaining
Investors. We expect the Remaining Partlet Transaction as well
as the transaction with the Remaining Investors to close within five business
days after receipt of any required approvals from our stockholders as well as
approval from the NYSE Amex Exchange. We expect to use the net proceeds for
general corporate purposes.
Purchase
Agreement and Warrants
The
following summary of the Purchase Agreements and the Warrants is qualified in
its entirety by reference to, and should be read in conjunction with, the actual
Purchase Agreements (which includes forms of the Warrant, a copy of which were
filed as exhibits to Current Reports on Form 8-K filed on July 10, 2009 and July
30, 3009 and are incorporated herein by reference.
Purchase
Agreement. Under the respective
Purchase Agreements, excluding the Securities which we have already issued to
Partlet, we have agreed to issue the Securities in exchange for payment to us of
aggregate gross proceeds, excluding costs and expenses, of $755,000 and net
proceeds of approximately $725,000. Accordingly, pursuant to the terms of the
Purchase Agreements, excluding the Securities which we have already issued to
Partlet, we have agreed to issue and sell an aggregate of 838,887 Shares of our
common stock, at $0.90 per share and Warrants as more fully described
below. The Securities will not be registered and Senesco and Partlet
and the Remaining Investors have agreed to rely on Rule 144 of the Securities
Act of 1933, as amended, when applicable, in the event Partlet or the Remaining
Investors desires to undertake any resale of any of the Securities.
Series A Warrants. The Series
A Warrants will be exercisable, in full or in part, to purchase an
aggregate of 755,000 shares (which amount does not include the shares underlying
the Series A warrants which were already issued to Partlet) of our common stock
at a cash exercise price of $0.01 per share. The Series A Warrants
have a term of seven years and are immediately exercisable after the date of
grant. The exercise price of the Warrant and the number of shares
issuable upon exercise of the Warrant will be proportionately adjusted for any
stock splits, stock dividends, recapitalization or other combination or
subdivision of the outstanding shares of our common stock.
Series B Warrants. The Series
B Warrants will be exercisable, in full or in part, to purchase an
aggregate of 817,572 shares (which amount does not include the shares underlying
the Series B warrants which were already issued to Partlet) of our common stock
at a cash exercise price of $0.60 per share. The Series B Warrants
have a term of seven years and are not exercisable until after the six-month
anniversary after the date of grant. The exercise price of the Warrant and the
number of shares issuable upon exercise of the Warrant will be proportionately
adjusted for any stock splits, stock dividends, recapitalization or other
combination or subdivision of the outstanding shares of our common
stock.
Representations and
Warranties. Except for its status as the contractual document between the
parties with respect to the agreements described therein, it is not intended to
provide factual information about the parties. The representations and
warranties contained in the Purchase Agreements were made only for purposes of
such agreement and as of specific dates, were solely for the benefit of the
parties to such agreement, and are subject to limitations agreed to by the
contracting parties, including being qualified by disclosures between the
parties. These representations and warranties have been made for the purposes of
allocating contractual risk between the parties to the agreement instead of
establishing these matters as facts, and may be subject to standards of
materiality applicable to the contracting parties that differ from those
applicable to investors. Accordingly, they should not be relied upon by
investors as statements of factual information.
Need for Additional Capital.
We need to raise substantial additional funds, to continue our operations and
fund clinical studies. Our plan is to continue to finance our operations with a
combination of equity issuances (including the possible closings of the
transaction) and other financings. Any future issuance of convertible
debt securities, preferred stock or common stock may be at a discount from the
then-current trading price of our common stock. If we issue additional common or
preferred stock or securities convertible into common stock, our stockholders
will experience additional dilution, which may be significant. If we are unable
to raise substantial additional capital through the possible additional closings
of the transactions covered by Proposals 2 and 3, and otherwise, we may not be
able to continue to operate as a going concern. To the extent the additional
closings of the transactions covered by Proposals 2 and 3 do not occur as a
result of the failure to obtain requisite approval of our stockholders, we do
not know whether additional funding will be available to us on acceptable terms,
or at all, to continue to operate as a going concern.
Interest
of Certain Persons in Matters to be Acted Upon
Each of
Messrs. Harlan W. Waksal, M.D., Rudolf Stalder, Thomas C. Quick, Christopher
Forbes, David Rector, John N. Braca, Jack Van Hulst and Warren Isabelle are
members of our board. It is anticipated that if Proposals 1, 2 and 3
are approved, each of Harlan W. Waksal, M.D., Rudolf Stalder, Thomas C. Quick
(through the Thomas C. Quick Charitable Foundation which is an affiliate of
Thomas C. Quick), Christopher Forbes, David Rector, John N. Braca, Jack Van
Hulst and Warren Isabelle will participate in the transaction and purchase the
Securities on the terms and conditions as set forth in the Purchase
Agreement. For additional information regarding the number of Shares
and Warrants (and shares underlying the Warrants) to be purchased by the
Affiliated Investors, assuming the transaction is consummated, please refer to
the chart contained in Proposal 3.
PROPOSAL
1
APPROVAL
OF AMENDMENT TO SENESCO’S CERTIFICATE OF INCORPORATION
Overview
and Reasons for Amendment
Stockholders
are being asked to approve an amendment to our Amended and Restated Certificate
of Incorporation, as amended to date, referred to herein as our Certificate of
Incorporation, to increase the number of authorized shares of our common stock
from 100,000,000 to 120,000,000. On June 25, 2009, our board adopted
resolutions approving and authorizing the amendment and directing that the
amendment be submitted to a vote of the stockholders at the
meeting.
The board
determined that the amendment is in the best interests of Senesco and its
stockholders and unanimously recommends approval by the stockholders. If the
proposed amendment is approved by the stockholders, the board currently intends
to file, with the Secretary of State of the State of Delaware, a Certificate of
Amendment to the Certificate of Incorporation, referred to herein as the
Certificate of Amendment, reflecting such amendment as soon as practicable
following stockholder approval. The following summary is qualified in its
entirety by reference to the Certificate of Incorporation. Attached hereto as
Appendix A to this
proxy statement is the proposed Certificate of Amendment.
Our board
has proposed this increase in authorized shares of common stock to ensure that
we have sufficient shares of common stock available for general corporate
purposes including, without limitation, sufficient shares available underlying
the securities issued in the financings, equity financings, acquisitions,
establishing strategic relationships with corporate and other partners,
providing equity incentives to employees, and payments of stock dividends, stock
splits or other recapitalizations. As of the date of this proxy
statement, we have plans to issue additional equity as described in the section
entitled “Background Information” beginning on page 4. As
disclosed in our public filings, we are also exploring additional financing
opportunities and will likely issue such equity when an opportunity presents
itself.
Our
Certificate of Incorporation currently authorizes the issuance of up to
100,000,000 shares of common stock and 5,000,000 shares of preferred stock, par
value $0.01 per share, referred to herein as the preferred stock. No shares of
preferred stock are currently issued and outstanding. The proposed amendment
will not, if adopted, result in an increase in the number of authorized shares
of preferred stock.
Of the
100,000,000 shares of common stock currently authorized, as of the close of
business on the record date, there were 21,939,339 shares of common stock issued
and outstanding. Furthermore, we have reserved for future
issuance:
a. 4,661,684
shares of common stock upon the exercise of outstanding options and restricted
stock units granted under the 1998 Stock Plan;
b. 6,137,200
shares of common stock upon the exercise of options and restricted stock units,
of which 249,728 have been granted and 5,887,472 may be granted in the future,
under the 2008 Incentive Compensation Plan;
c. 10,000
shares of common stock upon exercise of options granted outside the 1998 Stock
Plan and 2008 Incentive Compensation Plan;
d. 20,666,221
shares of common stock upon the exercise of warrants issued and
outstanding.
e. 11,064,706
shares of common stock upon conversion, at the current conversion fixed
conversion price of $.85, of the convertible debentures issued pursuant to the
previously disclosed financing which we entered into with each of YA Global
Investments, L.P. and Stanford Venture Capital Holdings, Inc. in
2007/2008;
f. 33,095,854
shares of common stock which may be issued upon conversion, when the conversion
rate is either adjusted in connection with the anti-dilution feature of the
convertible debenture or the conversion price is no longer fixed, of the
convertible debentures issued pursuant to the previously disclosed financing
which we entered into with each of YA Global Investments, L.P. and Stanford
Venture Capital Holdings, Inc. in 2007/2008; and
g. an
estimated 2,000,000 shares of common stock, which may be issued as interest
shares pursuant to the previously disclosed financing which we entered into with
each of YA Global Investments, L.P. and Stanford Venture Capital Holdings, Inc.
in 2007/2008.
If the
proposed amendment is approved, then after the meeting, there will be 22,778,226
shares of common stock issued and outstanding.
Reason
For Request For Stockholder Approval
In
accordance with Delaware law, approval and adoption of an amendment to our
Certificate of Incorporation to increase the authorized shares of our common
stock and preferred stock requires stockholder approval.
Consequences
if Stockholders Approve this Proposal
Dilution. As is the case with
the current authorized but unissued shares of common stock, the additional
shares of common stock authorized by this proposed amendment could be issued
upon approval by our board without further vote of our stockholders except as
may be required in particular cases by our Certificate of Incorporation,
applicable law, regulatory agencies or the NYSE Amex rules. Under our
Certificate of Incorporation, stockholders do not have preemptive rights to
subscribe to additional securities that may be issued by Senesco, which means
that current stockholders do not have a prior right to purchase any new issue of
common stock in order to maintain their proportionate ownership interest in
Senesco. In addition, if we issue additional shares of common stock
or securities convertible into or exercisable for common stock, such issuance
would have a dilutive effect on the voting power and could have a dilutive
effect on the earnings per share of Senesco’s currently outstanding shares of
common stock.
The
following table sets forth the total number of: (1) authorized shares of our
common stock, (2) outstanding shares of our common stock, (3) reserved shares of
our common stock, (4) shares of our common stock available for issuance, (5)
proposed shares authorized by this Proposal 1 and (6) common stock available for
issuance if this Proposal 1 is approved by the stockholders.
|
Currently
Authorized
Shares
(1)
|
Currently
Outstanding
Shares
|
Shares
Currently
Reserved
for
Issuance
|
Shares
Currently
Available
for
Issuance
|
Proposed
Authorized
Shares
(2)
|
Shares
Potentially
Available
for
Issuance(3)
|
||||||
|
100,000,000
|
21,939,339 | 77,635,665 | 424,996 | 120,000,000 | 20,424,996 |
|
(1)
|
As
of August 7, 2009.
|
|
(2)
|
The
number of authorized shares of our common stock, if this Proposal 1 is
approved by the stockholders.
|
|
(3)
|
The
number of shares of our common stock available for issuance, if this
Proposal 1 is approved by the
stockholders.
|
Anti-takeover
Effects. The proposed Certificate of Amendment could also,
under certain circumstances, have an anti-takeover effect. The proposed increase
in the number of authorized shares of common stock may discourage or make it
more difficult to effect a change in control of Senesco. For example, we could
issue additional shares to dilute the voting power of, create voting impediments
for, or otherwise frustrate the efforts of persons seeking to take over or gain
control of Senesco, whether or not the change in control is favored by a
majority of our unaffiliated stockholders. We could also privately place shares
of common stock with purchasers who would side with our board in opposing a
hostile takeover bid. The board is not aware of any plans for or attempt to take
control of Senesco.
If
approved, the amendment would amend and restate the first section of the fourth
paragraph of the Certificate of Incorporation, as follows:
FOURTH: The total number of
shares of all classes of stock which the Corporation shall have authority to
issue is One Hundred and Twenty Five Million (125,000,000)
shares. The Corporation is authorized to issue two classes of stock
designated “Common Stock” and “Preferred Stock,” respectively. The
total number of shares of Common Stock authorized to be issued by the
Corporation is One Hundred and Twenty Million (120,000,000), each such share of
Common Stock having a $0.01 par value. The total number of shares of
Preferred Stock authorized to be issued by the Corporation is Five Million
(5,000,000), each such share of Preferred Stock having $0.01 par
value.
The
Certificate of Amendment, which contains the above amendment, is attached to
this proxy statement as Appendix A. The affirmative
vote of a majority of the outstanding shares of common stock is required for
approval of the proposed amendment. Therefore, abstentions and broker non-votes
will have the same effect as votes against this proposal.
Consequences
if Stockholders Do Not Approve this Proposal
We
currently are in need of financing and have a limited of number of shares
available for issuance. Typically capital is raised by issuing shares
in exchange for financing. If our stockholders do not approve this
proposed amendment, it is likely that we will be unable to fully consummate the
transactions described in the section entitled “Background Information”
beginning on page 4. Accordingly, because we could not
consummate the transactions described, we would fall short of the working
capital necessary to complete our corporate objectives and, thus, we would be
required to pursue other strategic alternatives. We may not be able
to realize such alternatives on commercially reasonable terms, if at all, given
the current economic climate.
We have
no additional plans to issue the common stock authorized pursuant to Proposal 1
other than in connection with the transactions described in the section entitled
“Background Information” beginning on page 4. We are however
seeking additional financing, but do not have any potential deals pending, other
than those described in this proxy statement.
No
Appraisal Rights
Under
Delaware law, stockholders are not entitled to appraisal rights with respect to
the actions contemplated by Proposal 1.
Required
Stockholder Approvals
The
following table sets forth the stockholder approvals which are necessary to
consummate the transactions set forth in the section entitled “Background
Information” beginning on page 4.
|
Transaction
|
Proposal
1 approval
required
to consummate
the
transaction?
|
Proposal
2 approval
required
to consummate
the
transaction?
|
Proposal
3 approval
required
to consummate
the
transaction?
|
|||
|
Partlet
Holdings Limited
|
No
|
Yes
|
No
|
|||
|
Robert
Forbes
|
Yes
|
Yes
|
No
|
|||
|
Timothy
Forbes
|
Yes
|
Yes
|
No
|
|||
|
Cato
Holding Company
|
Yes
|
Yes
|
No
|
|||
|
Affiliate
Investors
|
Yes
|
Yes
|
Yes
|
THE BOARD
RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE PROPOSAL TO AMEND
SENESCO’S CERTIFICATE OF INCORPORATION.
PROPOSAL
2
PROPOSAL
TO APPROVE, FOR PURPOSES OF SECTION 713 OF THE NYSE AMEX COMPANY
GUIDE, THE ISSUANCE OF OUR SHARES OF COMMON STOCK AND WARRANTS (AND THE SHARES
OF COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS), WHICH IN THE AGGREGATE
EXCEED 20% OF OUR CURRENTLY OUTSTANDING SHARES OF COMMON STOCK PURSUANT TO THE
TERMS AND CONDITIONS OF THE SECURITIES PURCHASE AGREEMENT, DATED AS OF JULY 9,
2009, BETWEEN PARTLET HOLDINGS LIMITED AND US, THE SECURITIES PURCHASE
AGREEMENT, DATED AS OF JULY 29, 2009, BETWEEN EACH OF ROBERT FORBES, TIMOTHY
FORBES, HARLAN W. WAKSAL, M.D., RUDOLF STALDER, CHRISTOPHER FORBES, DAVID
RECTOR, JOHN N. BRACA, JACK VAN HULST, WARREN ISABELLE AND THE THOMAS C. QUICK
CHARITABLE FOUNDATION AND US AND THE SECURITIES PURCHASE AGREEMENT, DATED AS OF
JULY 29, 2009, BETWEEN CATO HOLDING COMPANY AND US.
Proposal
We are
seeking approval of the issuance of the Securities in connection with the
transactions contemplated pursuant to the terms and conditions of the Securities
Purchase Agreement, dated as of July 9, 2009, between Partlet Holdings
Limited and us, the Securities Purchase Agreement, dated as of July 29, 2009,
between each of Robert Forbes, Timothy Forbes Harlan W. Waksal, M.D., Rudolf
Stalder, Christopher Forbes, David Rector, John N. Braca, Jack Van Hulst, Warren
Isabelle and the Thomas C. Quick Charitable Foundation and us and the Securities
Purchase Agreement, dated as of July 29, 2009, between Cato Holding Company and
us. For information regarding our proposed issuance of the Securities
and the terms of the Purchase Agreements and Warrants, see “Background
Information” beginning on page 4.
Reason
For Request For Stockholder Approval
As of
August 7, 2009, the record date for the Special Meeting, we had One Hundred
Million authorized shares of common stock and approximately 21,939,339 shares of
common stock outstanding. If successfully completed, the transaction,
in the aggregate, will result in the issuance of more than 20% of our currently
outstanding shares of common stock pre-transaction. Section 713
of the NYSE Amex Company Guide requires stockholder approval prior to the
issuance of common stock, or securities convertible into or exercisable for
common stock, in any transaction or series of transactions if (i) the sale,
issuance, or potential issuance by the issuer of common stock (or securities
convertible into common stock) at a price less than the greater of book or
market value which together with sales by officers, directors or principal
stockholders of the issuer equals 20% or more of presently outstanding common
stock; or (ii) the sale, issuance, or potential issuance by the issuer of common
stock (or securities convertible into common stock) equal to 20% or more of
presently outstanding stock for less than the greater of book or market value of
the stock.
Our issuance of the Shares and the
shares and Warrants issuable under the Purchase Agreements will result in the
issuance of common stock, or securities convertible into common stock, equal to
20% or more of our common stock outstanding immediately before we entered into
the Purchase Agreements on each of July 9, 2009 and July 29, 2009. The per share
market price of our common stock (which was greater than book value) was less
than the consolidated closing bid price of $0.73 on July 9, 2009 and immediately
preceding entering into the Partlet Securities Purchase Agreement, which
occurred after the close of market on that date. The per share market price of
our common stock (which was greater than book value) was less than the
consolidated closing bid price of $0.51 on July 29, 2009 and immediately
preceding entering into the Forbes Securities Purchase Agreement and the Cato
Securities Purchase Agreement, which occurred after the close of market on that
date. Accordingly, we are seeking stockholder approval of this proposal in order
to ensure compliance with Section 713(a) of the NYSE Amex Company
Guide.
Completion
of the transaction depends on a number of conditions being satisfied or waived,
including that our stockholders approve the issuance of our shares of common
stock and warrants (and shares of common stock issuable upon exercise of the
warrants) pursuant to the Purchase Agreements for purposes of
Section 713(a) of the NYSE Amex Company Guide. We have already
received gross proceeds of $950,000 (and net proceeds of approximately $900,000
after deducting estimated expenses), in connection with our sale of Securities
to Partlet Holdings Limited. We expect to receive additional net
proceeds of approximately $725,000 if we are able to consummate the Remaining
Partlet Transaction as well as the transaction with the Remaining
Investors. We expect the Remaining Partlet Transaction as well
as the transaction with the Remaining Investors to close within five business
days after receipt of any required approvals from our stockholders. We expect to
use the net proceeds for general corporate purposes.
Ability to Complete the
Transaction. Assuming that our stockholders also approve
(i) Proposal 1 relating to the amendment to our Certificate of
Incorporation and (ii) Proposal 3 relating to the consummation of the
transaction with the Affiliate Investors, the approval by the stockholders of
the issuance the Securities pursuant to the terms and conditions of the Purchase
Agreements will allow us, subject to the satisfaction or waiver of the other
conditions contained in the Purchase Agreements, to complete the Remaining
Partlet Transaction as well as the transaction with all of the Remaining
Investors. Should stockholders not approve this Proposal 2 then we will not be
able to consummate the Remaining Partlet Transaction as well as the transaction
with all of the Remaining Investors.
Dilution. The
issuance of our shares of common stock in connection with the Remaining Partlet
Transaction as well as the transaction with the Remaining Investors would have a
dilutive effect on our earnings per share and on each stockholder’s percentage
voting power. In addition, such issuance could, under certain circumstances,
have the effect of delaying or preventing a change in control by increasing the
number of outstanding shares entitled to vote and by increasing the number of
votes required to approve a change in control or remove incumbent directors from
office. Moreover, any dividends paid per common share could be lower, as the
funds available to pay dividends would be spread among a greater number of
shares upon completion of the Remaining Partlet Transaction as well as the
transaction with the Remaining Investors.
The
following table summarizes (1) the total number of shares which will be issued
and outstanding pursuant to the Purchase Agreements (not including the
Warrants), (2) the number of shares each investor will be issued pursuant to
Remaining Partlet Transaction as well as the transaction with the Remaining
Investors assuming the Warrants are fully exercised at the current applicable
exercise price and (3) the percentage of outstanding shares that the investors
could potentially own after all securities anticipated by the Remaining Partlet
Transaction as well as the transaction with the Remaining Investors are
issued.
|
Investor
|
Total
Number of Shares of Common Stock to be issued under the
Purchase
Agreement(1)
|
Total
Number of Shares Underlying
Warrants(2)
|
Underlying
Shares as a Percent of Outstanding Shares Post Transaction
(3)
|
|||||||||
|
Partlet
Holdings Limited
|
55,555 | 208,333 | 16.7 | % | ||||||||
|
Robert
Forbes
|
333,333 | 937,500 | 4.0 | % | ||||||||
|
Timothy
Forbes
|
111,111 | 312,500 | 2.0 | % | ||||||||
|
Harlan
W. Waksal, M.D.
|
15,000 | 42,188 | 0.3 | % | ||||||||
|
Rudolf
Stalder
|
15,000 | 42,188 | 4.5 | % | ||||||||
|
Christopher
Forbes
|
97,778 | 275,000 | 13.3 | % | ||||||||
|
David
Rector
|
3,333 | 9,375 | 1.5 | % | ||||||||
|
John
N. Braca
|
2,222 | 6,250 | 1.4 | % | ||||||||
|
Jack
Van Hulst
|
1,111 | 3,125 | 0.7 | % | ||||||||
|
Warren
Isabelle
|
2,222 | 6,250 | 0.1 | % | ||||||||
|
Thomas
C. Quick Charitable Foundation
|
7,778 | 21,875 | 3.7 | % | ||||||||
|
Cato
Holding Company
|
194,444 | 546,875 | 2.4 | % | ||||||||
|
(1)
|
Represents
the total number of shares outstanding assuming all shares are issued
under the terms of the Purchase Agreements (not including the
Warrants).
|
|
(2)
|
Represents
the total number of shares which will be issued and outstanding assuming
(a) all shares are issued under the terms of the Purchase Agreements and
(b) upon the full exercise of the Warrants at the current applicable
exercise price.
|
|
(3)
|
Represents
the percentage of outstanding shares that the Investors could potentially
own, calculated on a post-transaction basis, after all securities
anticipated by the Remaining Partlet Transaction as well as the
transaction with the Remaining Investors are
issued.
|
Consequences
if Stockholders Fail to Approve this Proposal 2
If our
stockholders do not approve the issuance of the Securities pursuant to the
Purchase Agreements, we will fail to satisfy one of the conditions contained in
the Purchase Agreement, and we will not be able to complete the Remaining
Partlet Transaction as well as the transaction with the Remaining
Investors. Accordingly, because we could not consummate the Remaining
Partlet Transaction as well as the transaction with the Remaining Investors, we
would fall short of the working capital necessary to further our immediate
corporate objectives and, thus, we would be required to pursue other strategic
alternatives. We may not be able to realize such alternatives on
commercially reasonable terms, if at all, given the current economic
climate.
Financial
and other information concerning our company is incorporated herein by reference
and contained in our Annual Report for the year ended June 30, 2008 and our
Quarterly Report for the quarter ended March 31, 2009 which are being mailed
with this proxy statement.
No
Appraisal Rights
Under
Delaware law, stockholders are not entitled to appraisal rights with respect to
the actions contemplated by Proposal 2.
Required
Stockholder Approvals
The NYSE
Amex Company Guide requires that this proposal be approved by our stockholders
representing a majority of the votes cast on the proposal (provided that a
quorum is present).
The
following table sets forth the proposals which are necessary to consummate the
transactions set forth in the section entitled “Background Information”
beginning on page 4.
|
Transaction
|
Proposal
1 approval
required
to consummate
the transaction?
|
Proposal
2 approval
required
to consummate
the transaction?
|
Proposal
3 approval
required
to consummate
the
transaction?
|
|||
|
Partlet
Holdings Limited
|
No
|
Yes
|
No
|
|||
|
Robert
Forbes
|
Yes
|
Yes
|
No
|
|||
|
Timothy
Forbes
|
Yes
|
Yes
|
No
|
|||
|
Cato
Holding Company
|
Yes
|
Yes
|
No
|
|||
|
Affiliate
Investors
|
Yes
|
Yes
|
Yes
|
THE BOARD
RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE PROPOSAL TO APPROVE,
FOR PURPOSES OF SECTION SECTION 713 OF THE NYSE AMEX COMPANY GUIDE,
THE ISSUANCE OF OUR SHARES OF COMMON STOCK AND WARRANTS (AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS), WHICH IN THE AGGREGATE
EXCEED 20% OF OUR CURRENTLY OUTSTANDING SHARES OF COMMON STOCK, PURSUANT TO THE
TERMS AND CONDITIONS OF THE SECURITIES PURCHASE AGREEMENT, DATED AS OF JULY 29,
2009, BETWEEN PARTLET HOLDINGS LIMITED AND US, THE SECURITIES PURCHASE
AGREEMENT, DATED AS OF JULY 29, 2009, BETWEEN EACH OF ROBERT FORBES, TIMOTHY
FORBES, HARLAN W. WAKSAL, M.D., RUDOLF STALDER, CHRISTOPHER FORBES, DAVID
RECTOR, JOHN N. BRACA, JACK VAN HULST, WARREN ISABELLE AND THE THOMAS
C. QUICK CHARITABLE FOUNDATION AND US AND THE SECURITIES PURCHASE AGREEMENT,
DATED AS OF JULY 29, 2009, BETWEEN CATO HOLDING COMPANY AND US.
PROPOSAL
3
PROPOSAL
TO APPROVE, FOR PURPOSES OF SECTION 711 OF THE NYSE AMEX COMPANY
GUIDE, THE ISSUANCE OF OUR SHARES OF COMMON STOCK AND WARRANTS (AND THE SHARES
OF COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS) PURSUANT TO THE TERMS
AND CONDITIONS OF THE SECURITIES PURCHASE AGREEMENT, DATED AS OF JULY 29, 2009,
TO CERTAIN OF OUR INSIDERS AND AFFILIATES.
Proposal
We are
seeking approval of the issuance of the Securities to the Affiliated
Investors. For information regarding our proposed issuance of the
Securities and the terms of the Affiliates Purchase Agreement and Warrant, see
“Background Information” beginning on page 4.
Reason
For Request For Stockholder Approval
Pursuant
to Section 711 of the NYSE Amex Company Guide, we are required to obtain
stockholder approval when an equity compensation arrangement is made, pursuant
to which stock may be acquired by officers, directors, employees, or
consultants. NYSE Amex guidance indicates that the issuance of common stock or
securities convertible into or exercisable for common stock by a company to
affiliated entities of the company’s officers, directors, employees or
consultants other than in a public offering at a price less than the greater of
the book or market value of the common stock may be deemed to be equity
compensation requiring stockholder approval under Section
711. Because each of Harlan W. Waksal, M.D., Rudolf Stalder, Thomas
C. Quick, Christopher Forbes, David Rector, John N. Braca, Jack Van Hulst and
Warren Isabelle serve as directors of Senesco, we need to seek approval of this
proposal in order to ensure compliance with Section 711 of the NYSE Amex Company
Guide.
Consequences
if Stockholders Approve this Proposal
Ability to Complete the
Transaction. Assuming that our stockholders also approve
(i) Proposal 1 relating to the amendments to our Certificate of
Incorporation and (ii) Proposal 2 relating to our ability to issue
Securities which, in the aggregate (assuming the Warrants are fully exercised),
exceed 20% of our currently outstanding shares of common stock, the approval by
the stockholders of the issuance of Securities pursuant to the terms and
conditions of the Purchase Agreements will allow us, subject to the satisfaction
or waiver of the other conditions contained in the Purchase Agreements, to
complete the transaction with the Affiliated Investors.
Dilution. The
issuance of our shares of common stock in connection with the transaction with
the Affiliated Investors would have a dilutive effect on our earnings per share
and on each stockholder’s percentage voting power. In addition, such issuance
could, under certain circumstances, have the effect of delaying or preventing a
change in control by increasing the number of outstanding shares entitled to
vote and by increasing the number of votes required to approve a change in
control or remove incumbent directors from office. Moreover, any dividends paid
per common share could be lower, as the funds available to pay dividends would
be spread among a greater number of shares upon completion of the transaction
with the Affiliated Investors.
The
following table summarizes (1) the total number of shares which will be issued
and outstanding pursuant to the Purchase Agreement (not including the Warrants),
(2) the number of shares each Affiliated Investor will be issued pursuant to the
transaction with the Affiliated Investors assuming the Warrants are fully
exercised at the current applicable exercise price and (3) the
percentage of outstanding shares that the Affiliated Investors could potentially
own after all securities anticipated by the transaction with the Affiliated
Investors are issued.
|
Investor
|
Total
Number of Shares of Common Stock to be issued under the
Purchase
Agreement(1)
|
Total
Number of Shares Underlying
Warrants(2)
|
Underlying
Shares as a Percent of Outstanding Shares (3)
|
|||||||||
|
Harlan
W. Waksal, M.D.
|
15,000 | 42,188 | 0.3 | % | ||||||||
|
Rudolf
Stalder
|
15,000 | 42,188 | 4.5 | % | ||||||||
|
Christopher
Forbes
|
97,778 | 275,000 | 13.3 | % | ||||||||
|
David
Rector
|
3,333 | 9,375 | 1.5 | % | ||||||||
|
John
N. Braca
|
2,222 | 6,250 | 1.4 | % | ||||||||
|
Jack
Van Hulst
|
1,111 | 3,125 | 0.7 | % | ||||||||
|
Warren
Isabelle
|
2,222 | 6,250 | 0.1 | % | ||||||||
|
Thomas
C. Quick Charitable Foundation
|
7,778 | 21,875 | 3.7 | % | ||||||||
|
(1)
|
Represents
the total number of shares outstanding assuming all shares are issued
under the terms of the Purchase Agreement (not including
warrants).
|
|
(2)
|
Represents
the total number of shares which will be issued and outstanding assuming
(a) all shares are issued under the terms of the Purchase Agreement and
(b) upon the full exercise of the warrants at the current applicable
exercise price.
|
|
(3)
|
Represents
the percentage of outstanding shares, calculated on a post-transaction
basis, that the Affiliated Investors could potentially own after all
securities anticipated by the Transaction with the Affiliated Investors
are issued.
|
Consequences
if Stockholders Fail to Approve this Proposal 3
If our
stockholders do not approve the issuance of our shares of common stock and
warrants (including the shares of common stock issuable upon exercise of the
Warrants) pursuant to the Purchase Agreement with the Affiliated Investors, we
will fail to satisfy one of the conditions contained in the Purchase Agreement
which is applicable to the Affiliated Investors and will not be able to complete
the transaction with the Affiliated Investors in its
entirety. Because stockholder approval is needed to consummate the
transaction with the Affiliated Investors in its entirety, the Company, pursuant
to the terms of the Purchase Agreement with the Affiliated Investors would not
be able to close on the sale of any of Securities. Accordingly,
because we could not consummate the transaction with the Affiliated Investors in
its entirety, we would fall short of the working capital necessary to further
our immediate corporate objectives and, thus, we would be required to pursue
other strategic alternatives. We may not be able to realize such
alternatives on commercially reasonable terms, if at all, given the current
economic climate.
We have
already received gross proceeds of $950,000 (and net proceeds of approximately
$900,000 after deducting estimated expenses), in connection with our sale of
Securities to Partlet Holdings Limited. We expect to receive
additional net proceeds of approximately $110,000 if we are able to consummate
the transaction with the Affiliated Investors. We expect the
transaction with the Affiliated Investors to close within five business days
after receipt of any required approvals from our stockholders. We expect to use
the net proceeds for general corporate purposes.
Financial
and other information concerning our company is incorporated herein by reference
and contained in our Annual Report for the year ended June 30, 2008 and our
Quarterly Report for the quarter ended March 31, 2009 which are being mailed
with this proxy statement.
No
Appraisal Rights
Under
Delaware law, stockholders are not entitled to appraisal rights with respect to
the actions contemplated by Proposal 3.
Required
Stockholder Approvals.
The NYSE
Amex Company Guide requires that this proposal be approved by our stockholders
representing a majority of the votes cast on the proposal (provided that a
quorum is present).
The
following table sets forth the proposals which are necessary to consummate the
transactions set forth in the section entitled “Background Information”
beginning on page 4.
|
Transaction
|
Proposal
1 approval
required
to consummate
the transaction?
|
Proposal
2 approval
required
to consummate
the
transaction?
|
Proposal
3 approval
required
to consummate
the
transaction?
|
|||
|
Partlet
Holdings Limited
|
No
|
Yes
|
No
|
|||
|
Robert
Forbes
|
Yes
|
Yes
|
No
|
|||
|
Timothy
Forbes
|
Yes
|
Yes
|
No
|
|||
|
Cato
Holding Company
|
Yes
|
Yes
|
No
|
|||
|
Affiliate
Investors
|
Yes
|
Yes
|
Yes
|
THE BOARD
RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE PROPOSAL TO APPROVE FOR PURPOSES
OF SECTION 711 OF THE NYSE AMEX COMPANY GUIDE, THE ISSUANCE OF OUR
SHARES OF COMMON STOCK AND WARRANTS (AND THE SHARES OF COMMON STOCK ISSUABLE
UPON EXERCISE OF THE WARRANTS) PURSUANT TO THE TERMS AND CONDITIONS OF THE
SECURITIES PURCHASE AGREEMENT, DATED AS OF JULY 29, 2009, TO CERTAIN OF OUR
INSIDERS AND AFFILIATES.
STOCKHOLDERS’
PROPOSALS-2009 ANNUAL MEETING
Stockholders
may submit proposals on matters appropriate for stockholder action at annual
meetings in accordance with the rules and regulations adopted by the
Securities and Exchange Commission. Any proposal that an eligible
stockholder wished to submit for inclusion in our 2009 annual meeting proxy
statement must have advised our Secretary of such proposals in writing by
July 5, 2009 (120 calendar days prior to the anniversary of the mailing
date of our 2008 annual meeting proxy statement). Such proposal would have
been included if it complied with Securities and Exchange Commission
rules regarding inclusion of proposals in proxy statements.
We did
not receive notice of a stockholder proposal within this
timeframe. If we had received notice of a stockholder proposal within
this timeframe, our management would have used its discretionary authority to
vote the shares they represent, as our board may recommend. We reserve the
right to reject, rule out of order, or take other appropriate action with
respect to any proposal that does not comply with these
requirements.
OTHER
MATTERS
Our board
of directors is not aware of any matter to be presented for action at the
meeting other than the matters referred to above and does not intend to bring
any other matters before the meeting. However, if other matters
should come before the meeting, it is intended that holders of the proxies will
vote thereon in their discretion.
MULTIPLE
STOCKHOLDERS SHARING ONE ADDRESS
In
accordance with Rule 14a-3(e)(1) under the Exchange Act, one proxy
statement will be delivered to two or more stockholders who share an address,
unless we have received contrary instructions from one or more of the
stockholders. We will deliver promptly upon written or oral request a separate
copy of the proxy statement to a stockholder at a shared address to which a
single copy of the proxy statement was delivered. Requests for additional copies
of the proxy statement, and requests that in the future separate proxy
statements be sent to stockholders who share an address, should be directed to
Senesco Technologies, Inc., 303 George Street, Suite 420, New Brunswick, New
Jersey 08901, telephone: (732) 296-8400. In addition, stockholders who
share a single address but receive multiple copies of the proxy statement may
request that in the future they receive a single copy by contacting us at the
address and phone number set forth in the prior sentence.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any reports, proxy statements or other
information that we file with the SEC at its Public Reference Room, 100 F
Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. You may also obtain
copies of this information by mail from the Public Reference Section of the SEC,
100 F Street, N.E., Washington, D.C. 20549, at prescribed rates. Our public
filings are also available to the public from document retrieval services and
the Internet website maintained by the SEC at www.sec.gov.
INCORPORATION
BY REFERENCE
The
following sections of our Annual Report on Form 10-K, which is enclosed with
this proxy statement, for the fiscal year ended June 30, 2008, as filed on
September 26, 2009 (File No 001-31326), are incorporated by reference into this
proxy statement:
|
·
|
Financial
Statements and Supplementary Data (Part II, Item
8);
|
|
·
|
Management’s
Discussion and Analysis of Financial Condition and Results of Operations
(Part II, Item 7); and
|
|
·
|
Qualitative
and Quantitative Disclosures About Market Risk (Part II, Item
7A).
|
The following sections of our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2009, as filed on May 1,
2009 (File No 001-31326), which is enclosed with this proxy statement, are
incorporated by reference into this proxy statement:
|
·
|
Unaudited
condensed consolidated financial statements, including the Notes thereto
(Part I, Item 1);
|
|
·
|
Management’s Discussion and
Analysis of Financial Condition and Results of Operations (Part I, Item
2); and
|
|
·
|
Qualitative
and Quantitative Disclosures About Market Risk (Part I, Item
3).
|
A
representative of McGladrey & Pullen, LLP is expected to attend the
special meeting, will have an opportunity to make a statement if they desire to
do so and will be available to respond to appropriate questions.
No
persons have been authorized to give any information or to make any
representations other than those contained in this proxy statement and, if given
or made, such information or representations must not be relied upon as having
been authorized by us or any other person. This proxy statement is dated August
10, 2009. You should not assume that the information contained in this proxy
statement is accurate as of any date other than that date, and the mailing of
this proxy statement to stockholders shall not create any implication to the
contrary.
GENERAL
The
accompanying proxy is solicited by and on behalf of our board of directors,
whose notice of meeting is attached to this proxy statement, and the entire cost
of such solicitation will be borne by us.
In
addition to the use of the mails, proxies may be solicited by personal
interview, telephone and telegram by our directors, officers and other employees
who will not be specially compensated for these services. We will also request
that brokers, nominees, custodians and other fiduciaries forward soliciting
materials to the beneficial owners of shares held of record by such brokers,
nominees, custodians and other fiduciaries. We will reimburse such
persons for their reasonable expenses in connection therewith.
Certain
information contained in this proxy statement relating to the security holdings
of our directors and officers is based upon information received from the
individual directors and officers.
WE
WILL FURNISH, WITHOUT CHARGE, A COPY OF OUR REPORT ON FORM 10-K FOR THE YEAR
ENDED JUNE 30, 2008, INCLUDING FINANCIAL STATEMENTS AND SCHEDULES THERETO, BUT
NOT INCLUDING EXHIBITS, TO EACH OF OUR STOCKHOLDERS OF RECORD ON AUGUST 7, 2009
AND TO EACH BENEFICIAL STOCKHOLDER ON THAT DATE UPON WRITTEN REQUEST MADE TO OUR
SECRETARY. A REASONABLE FEE WILL BE CHARGED FOR COPIES OF REQUESTED
EXHIBITS.
PLEASE
DATE, SIGN AND RETURN THE PROXY CARD AT YOUR EARLIEST CONVENIENCE IN THE
ENCLOSED RETURN ENVELOPE. A PROMPT RETURN OF YOUR PROXY CARD WILL BE
APPRECIATED AS IT WILL SAVE THE EXPENSE OF FURTHER MAILINGS.
|
By
Order of the Board of Directors
|
|||
|
/s/
Sascha P. Fedyszyn
|
|||
|
Sascha
P. Fedyszyn
|
|||
|
Secretary
|
|||
New
Brunswick, New Jersey
August
10, 2009
Appendix
A
Certificate
of Amendment
CERTIFICATE
OF AMENDMENT
OF
THE
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
SENESCO
TECHNOLOGIES, INC.
Pursuant
to Sections 228 and 242
of
the
Delaware
General Corporation Law
Senesco
Technologies, Inc. (the “Corporation”), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
“DGCL”);
DOES
HEREBY CERTIFY THAT:
FIRST: The
name of the corporation (hereinafter, the “Corporation”) is:
Senesco
Technologies, Inc.
SECOND: The
Amended and Restated Certificate of Incorporation of the Corporation was filed
with the office of the Secretary of State of Delaware on January 22, 2007 (the
“Restated Certificate”) and a Certificate of Amendment of the Restated
Certificate was filed with the office of the Secretary of State of Delaware on
December 13, 2007 (the “Amendment” together with the Restated Certificate, the
“Charter”).
THIRD: The
Charter is hereby amended as follows:
|
(a)
|
The
first section of Article FOURTH of the Charter is hereby deleted in its
entirety and replaced by the following new
paragraph:
|
“The
total number of shares of all classes of stock which the Corporation shall have
authority to issue is One Hundred and Twenty Five Million (125,000,000)
shares. The Corporation is authorized to issue two classes of stock
designated “Common Stock” and “Preferred Stock,” respectively. The
total number of shares of Common Stock authorized to be issued by the
Corporation is One Hundred and Twenty Million (120,000,000), each such share of
Common Stock having a $0.01 par value. The total number of shares of
Preferred Stock authorized to be issued by the Corporation is Five Million
(5,000,000), each such share of Preferred Stock having a $0.01 par
value.”
FOURTH: That
the foregoing amendments have been duly adopted in accordance with the
provisions of Sections 228 and 242 of the DGCL.
FIFTH: This
Certificate of Amendment shall be deemed effective upon its filing with the
Secretary of State of the State of Delaware.
IN
WITNESS WHEREOF, this Certificate of Amendment of the Certificate of
Incorporation has been duly executed by the undersigned officer of the
Corporation this ___ day of ______, 2009.
| SENESCO TECHNOLOGIES, INC. | |||
|
|
By:
|
||
| Name: | |||
| Title: | President and Chief Executive Officer | ||
SPECIAL
MEETING OF STOCKHOLDERS OF
SENESCO
TECHNOLOGIES, INC.
SEPTEMBER
22, 2009
NOTICE
OF INTERNET AVAILABILITY OF PROXY MATERIAL
The
Notice of Meeting, proxy statement and proxy card
are
available at – www. Senesco.com/invest.htm
Please
sign, date and mailyour proxy card in the
envelope
provided as soonas possible.
Please
detach along perforated line and mail in the envelope provided.
|
PLEASE
SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR
VOTE IN BLUE OR BLACK INK AS SHOWN HERE
|
x
|
|
FOR
|
AGAINST
|
ABSTAIN
|
|||
| 1. |
To
approve an amendment to the Company’s Certificate of Incorporation to
increase the total number of authorized shares of common stock, $0.01 par
value per share, of the Company from 100,000,000 to
120,000,000.
|
o
|
o
|
o
|
|
|
FOR
|
AGAINST
|
ABSTAIN
|
|||
|
2.
|
To
approve, for purposes of section 713 of the NYSE Amex Company
Guide, the issuance of our shares of common stock and warrants (and the
shares of common stock issuable upon exercise of the warrants), which in
the aggregate exceed 20% of our currently outstanding shares of common
stock, pursuant to the terms and conditions of the Securities Purchase
Agreement, dated as of July 9, 2009, between Partlet Holdings Limited and
us, the Securities Purchase Agreement, dated as of July 29, 2009, between
each of Robert Forbes, Timothy Forbes, Harlan W. Waksal, M.D., Rudolf
Stalder, Christopher Forbes, David Rector, John N. Braca, Jack Van Hulst,
Warren Isabelle and the Thomas C. Quick Charitable Foundation and us and
the Securities Purchase Agreement, dated as of July 29, 2009, between Cato
Holding Company and us.
|
o
|
o
|
o
|
|
|
FOR
|
AGAINST
|
ABSTAIN
|
|||
|
3
|
To
approve, for purposes of section 711 of the NYSE Amex Company
Guide, the issuance of our shares of common stock and warrants (and the
shares of common stock issuable upon exercise of the warrants) pursuant to
the terms and conditions of the Securities Purchase Agreement, dated as of
July 29, 2009, to certain of our insiders and affiliates.
|
o
|
o
|
o
|
|
|
4.
|
In
his discretion, the proxy is authorized to vote upon other matters as may
properly come before the Meeting.
|
||||
|
MARK
“X” HERE IF YOU PLAN TO ATTEND THE MEETING o
|
|||||
|
To
change the address on your account, please check the box at right and
indicate your new address in the address space above. Please note that
changes to the registered name(s) on the account may not be submitted
via this method.
|
o
|
|||||||||||
|
Signature
of Stockholder
|
Date:
|
Signature
of Stockholder
|
Date:
|
|||||||||
|
Note:
|
Please
sign exactly as your name or names appear on this Proxy. When shares are
held jointly, each holder should sign. When signing as executor,
administrator, attorney, trustee or guardian, please give full title as
such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If signer is a
partnership, please sign in partnership name by authorized
person.
|
SENESCO
TECHNOLOGIES, INC.
PROXY
SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF
THE CORPORATION FOR THE SPECIAL MEETING OF STOCKHOLDERS
The
undersigned hereby constitutes and appoints Bruce C. Galton and Joel Brooks, and
each of them, his or her true and lawful agent and proxy with full power of
substitution in each, to represent and to vote on behalf of the undersigned all
of the shares of Senesco Technologies, Inc. (the “Company”) which the
undersigned is entitled to vote at the Special Meeting of Stockholders of the
Company to be held at the New York offices of Morgan, Lewis & Bockius
LLP at 101 Park Avenue, New York, NY 10178 on September 22, 2009, at 11:00 A.M,
and at any adjournment or adjournments thereof, upon the following proposals
more fully described in the Notice of Special Meeting of Stockholders and Proxy
Statement for the Meeting (receipt of which is hereby
acknowledged).
This
proxy when properly executed will be voted in the manner directed herein by the
undersigned stockholder. If no direction is made, this proxy will be voted FOR
proposals 1, 2 and 3.
(Continued
and to be signed on the reverse side)