View:
As filed
with the Securities and Exchange Commission on June 8, 2010
333-______
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SENESCO
TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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84-1368850
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(State
or other jurisdiction of incorporation or
organization)
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(I.R.S.
Employer Identification Number)
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303
George Street, Suite 420, New Brunswick, New Jersey 08901
(732)
296-8400
(Address,
including zip code, and telephone number, including area code, of registrant's
principal
executive
offices)
Amended
and Restated 2008 Incentive Compensation Plan
(Full
title of the plan)
Leslie
J. Browne, Ph.D, President and Chief Executive Officer
303
George Street, Suite 420, New Brunswick, New Jersey 08901
(732)
296-8400
(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:
Emilio
Ragosa, Esq.
Morgan
Lewis & Bockius, LLP
502
Carnegie Center
Princeton,
New Jersey 08540
(609)
919-6600
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definitions of “large accelerated filer”, “accelerated filer”, and “smaller
reporting company” in Rule 12b-2 of the Exchange Act:
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Large
accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated filer
¨
(Do
not check if a smaller
reporting
company)
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Smaller
reporting
company
þ
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CALCULATION
OF REGISTRATION FEE
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Title of
Securities to be
Registered
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Amount to be
Registered(1) (2)
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Proposed
Maximum
Offering Price Per
Share(3)
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Proposed
Maximum
Aggregate
Offering Price(3)
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Amount of
Registration Fee
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||||||||||
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Common
Stock, $0.01 par value per share
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5,000,000
shares
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$ | 0.49 | $ | 2,450,000 | $ | 174.69 | |||||||
(1) On May 25, 2010, an additional
5,000,000 shares of common stock became available for issuance under the Senesco
Technologies, Inc. 2008 Incentive Compensation Plan, as amended and restated in
accordance with the provisions of the plan.
(2) Pursuant
to Rule 416 of the Securities Act of 1933, as amended, this registration
statement shall also cover any additional shares of common stock which become
issuable under the Senesco Technologies, Inc. 2008 Incentive Compensation Plan,
as amended and restated, by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares, spin-off
transaction or other change affecting the outstanding Common Stock as a class
without the Company’s receipt of consideration, or should the value of
outstanding shares of Common Stock be substantially reduced as a result of a
spin-off transaction or an extraordinary dividend or distribution, or should
there occur any merger, consolidation or other reorganization.
(3) Estimated
solely for the purposes of calculating the registration fee pursuant to Rules
457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the
average of the reported high and low sales prices per share of the common stock
of Senesco Technologies, Inc. on June 3, 2010, as reported by the NYSE
Amex. Pursuant to Rule 457(h)(2) of the Securities Act of 1933, as
amended, no separate registration fee is required with respect to the plan
interests.
PART
I
Information
Required in the Section 10(a) Prospectus
As
permitted by the rules of the Securities and Exchange Commission, referred to
herein as the Commission, under the Securities Act of 1933, as amended, this
Registration Statement on Form S-8 omits the information specified in Part I of
Form S-8.
PART
II
Information
Required in the Registration Statement
Item
3. Incorporation of Documents
by Reference
Senesco Technologies, Inc. (the
“Registrant”) hereby incorporates by reference into this Registration Statement
on Form S-8 (the “Registration Statement”) the following documents previously
filed with the Securities and Exchange Commission (the
“Commission”):
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(a)
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Our Annual
Report on Form 10-K, as amended and restated on Form 10-K/A, for the
fiscal year ended June 30, 2009 (Commission File No. 001-31326), filed on
September 28, 2009, with such amended and restated 10-K/A filed on October
28, 2009, pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), in which there is set forth
the audited financial statements for the Registrant’s fiscal year ended
June 30, 2009;
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(b)
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Our Quarterly
Report on Form 10-Q for each of the quarters ended September 30, 2009 and
December 31, 2009 and March 31,
2010;
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(c)
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Our Current
Reports on Form 8-K, filed with the Commission on July 10, 2009, July 10,
2009, July 30, 2009, November 4, 2009, November 9, 2009, November 16,
2009, November 25, 2009, January 11, 2010, January 19, 2010,
February 4, 2010, February 22, 2010, February 22, 2010, February 22, 2010,
March 4, 2010, March 5, 2010, March 29, 2010, April 5, 2010, April 8, 2010
(as amended by Form 8-K/A on April 8, 2010), May 5, 2010,
May 25, 2010, May 28, 2010;
and
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(d)
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Our registration
statement on Form 8-A filed with the Commission on May 14, 2002, in which
there is described the terms, rights and provisions applicable to the
Registrant’s outstanding common
stock.
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All
reports and definitive proxy or information statements filed pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
registration statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
de-registers all securities then remaining unsold, shall be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the date of filing of such documents. Unless expressly
incorporated into this registration statement, a report furnished on Form 8-K
under the Exchange Act shall not be incorporated by reference into this
registration statement. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this registration statement to the extent that a
statement contained herein or in any subsequently filed document which also is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item
4. Description of
Securities
Not
applicable.
Item
5. Interests of Named Experts
and Counsel
Not
applicable.
Item
6. 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 SEC 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
$10,000,000.
Item
7. Exemption from Registration
Claimed
Not
applicable.
Item
8. Exhibits
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Exhibit
Number
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Exhibit
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5.1*
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Opinion
of Morgan, Lewis & Bockius LLP, counsel to
Registrant.
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23.1*
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Consent
of Goldstein Golub Kessler LLP.
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23.2*
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Consent
of McGladrey & Pullen, LLP.
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23.3*
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Consent
of Morgan, Lewis & Bockius LLP (included in Exhibit
5.1).
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24*
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Power
of Attorney (included on the signature pages of this Registration
Statement).
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99.1
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2008 Incentive Compensation Plan, as amended and
restated (Incorporated by reference to exhibit 10.1 to Form 8-K filed on
May 28,
2010).
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* Filed
herewith
Item
9. Undertakings
A. The undersigned Registrant hereby
undertakes:
(i) To file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration
Statement:
(a) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(b) To reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in 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 Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement;
and
(c) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided,
however, that paragraphs
(i) and (ii) of this section do not apply if the Registration Statement is on
Form S-8 and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(ii) That, for the purpose of determining any
liability under the Securities Act, 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.
(iii) 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, each filing of the Registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act 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 and will be governed by the final adjudication of such
issue.
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-8 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
this 8th day of
June, 2010.
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SENESCO TECHNOLOGIES,
INC.
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By:
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/s/ Leslie J.
Browne
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Name:
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Leslie J.
Browne
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Title:
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President and Chief Executive
Officer
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Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Leslie J. Browne 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.
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Signature
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Title
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Date
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||
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/s/ Leslie J. Browne
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President,
Chief Executive Officer and Director
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June
8, 2010
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Leslie
J. Browne, Ph.D.
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(Principal
Executive Officer)
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/s/ Joel Brooks
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Chief
Financial Officer, Secretary and Treasurer
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June
8, 2010
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Joel
Brooks
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(Principal
Financial and Accounting Officer)
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/s/ Harlan W. Waksal, M.D.
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Chairman
of the Board and Director
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June
8, 2010
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Harlan
W. Waksal, M.D.
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||||
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/s/ John E. Thompson
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Executive
Vice President of Research and
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June
8, 2010
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John
E. Thompson, Ph.D.
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Development
and Director
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/s/ John N. Braca
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Director
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June
8, 2010
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John
N. Braca
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/s/ Christopher Forbes
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Director
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June
8, 2010
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Christopher
Forbes
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/s/ Jack Van Hulst
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Director
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June
8, 2010
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Jack
Van Hulst
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/s/ Warren J. Isabelle
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Director
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June
8, 2010
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Warren
J. Isabelle
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/s/ Thomas C. Quick
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Director
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June
8, 2010
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Thomas
C. Quick
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/s/ David Rector
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Director
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June
8, 2010
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||
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David
Rector
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/s/ Rudolf Stalder
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Director
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June
8, 2010
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Rudolf
Stalder
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EXHIBIT
INDEX
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Exhibit
Number
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Exhibit
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5.1*
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Opinion
of Morgan, Lewis & Bockius LLP, counsel to
Registrant.
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||
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23.1*
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Consent
of Goldstein Golub Kessler LLP.
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23.2*
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Consent
of Consent of McGladrey & Pullen, LLP.
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23.3*
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Consent
of Morgan, Lewis & Bockius LLP (included in Exhibit
5.1).
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24*
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Power
of Attorney (included on the signature pages of this Registration
Statement).
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99.1
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2008 Incentive Compensation Plan
(Incorporated by reference to exhibit 10.1 to Form 8-K filed on May 28,
2010)
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* Filed
herewith
EXHIBIT
5.1
June 8,
2010
Senesco Technologies,
Inc.
303 George Street, Suite
420
New Brunswick, New Jersey
08901
Re: Senesco Technologies, Inc. –
Registration Statement on Form S-8
Dear
Ladies and Gentlemen:
We have
acted as counsel to Senesco Technologies, Inc., a Delaware corporation (the
“Company”), in connection with the preparation of a Registration Statement on
Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as
amended (the “Act”). The Registration Statement relates to the
registration of up to 5,000,000 shares of the Company’s common stock, par value
$0.01, issuable under the Company’s 2008 Incentive Compensation Plan, as amended
and restated (collectively, the “Shares”).
In
connection with this opinion letter, we have examined the Registration Statement
and originals, or copies certified or otherwise identified to our satisfaction,
of the Certificate of Incorporation and Bylaws of the Company and such other
documents, records and other instruments as we have deemed appropriate for
purposes of the opinion set forth herein.
We have
assumed the genuineness of all signatures, the legal capacity of all natural
persons, the authenticity of the documents submitted to us as originals, the
conformity with the originals of all documents submitted to us as certified,
facsimile or photostatic copies and the authenticity of the originals of all
document submitted to us as copies.
Based
upon the foregoing, we are of the opinion that the Shares have been duly
authorized by the Company and, when issued and sold by the Company and delivered
by the Company against receipt of the purchase price therefor, in the manner
contemplated by the Company’s 2008 Incentive Compensation Plan, as amended and
restated, as the case may be, will be validly issued, fully paid and
non-assessable.
The
opinions expressed herein are limited to the Delaware General Corporation
Law.
We hereby
consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement. In giving such consent, we do not hereby admit that we are
acting within the category of persons whose consent is required under Section 7
of the Act or the rules or regulations of the Securities and Exchange Commission
thereunder.
Very
truly yours,
/s/
Morgan, Lewis & Bockius LLP
CONSENT OF INDEPENDENT PUBLIC
ACCOUNTING FIRM
To the
Board of Directors
Senesco
Technologies, Inc.
We
consent to the incorporation by reference in this Registration Statement on Form
S-8 of Senesco Technologies, Inc. of our report dated September 26, 2007 on the
consolidated statements of operations, stockholders’ equity and cash flows of
Senesco Technologies, Inc and Subsidiary for the year ended June 30, 2007 and
the cumulative amounts from July 1, 1998 (inception) to June 30, 2007, which
appears in the June 30, 2009 Annual Report on Form 10-K of Senesco Technologies,
Inc. Our report dated September 26, 2007 relating to the consolidated
financial statements includes an emphasis paragraph relating to the uncertainty
as to the Company’s ability to continue as a going concern.
/S/
Goldstein Golub Kessler LLP
GOLDSTEIN GOLUB KESSLER
LLP
New York, New York
June 8, 2010
Consent of Independent Registered Public
Accounting Firm
We consent to the incorporation by
reference in this Registration Statement on Form S-8 of Senesco Technologies, Inc. of our
report dated September 25, 2009, relating to our audit of the consolidated
financial statements as of
June 30, 2009 and 2008 and for the years then ended, which appear in the Annual Report on
Form 10-K of Senesco Technologies, Inc. for the year ended June 30, 2009. Our
report dated September 25, 2009, relating to the consolidated financial
statements includes an emphasis paragraph relating to an uncertainty as to the
Company's ability to continue as a going concern.
/S/ McGladrey & Pullen,
LLP
New York, New York
June 8, 2010