EXHIBIT 10.1


 


FORM OF
SECURITIES PURCHASE AGGREMENT


 





















 


SECURITIES
PURCHASE AGREEMENT


 


This Securities Purchase Agreement, dated on and as of
the date set forth on the signature page hereto (this “Agreement”),
is made between Senesco Technologies, Inc., a Delaware corporation (the “Company”),
the undersigned purchaser(s) (each a “Purchaser” and collectively, the “Purchasers”)
and each assignee of a Purchaser who becomes a party hereto.


 


WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to Section 4(2) of
the Securities Act of 1933, as amended (the “Securities Act”) and
Regulation D promulgated thereunder, the Company desires to offer, issue and
sell to the Purchasers (the “Offering”), and the Purchasers, severally
and not jointly, desire to purchase from the Company, shares (the “Shares”)
of the Company’s common stock, par value $0.01 per share (the “Common Stock”),
and five-year warrants to purchase shares of Common Stock (the “Warrants”),
with an exercise price per share equal to 120% of the Market Price (as
hereinafter defined), as more fully described in this Agreement.  The Shares and the Warrants are collectively
referred to herein as the “Securities”.


 


NOW, THEREFORE,
in consideration of the mutual covenants and agreements contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which is hereby acknowledged, the Company and each of the
Purchasers agree as follows:


 


A.                                    Subscription.


 


(1)                                  Subject
to the conditions to closing set forth herein, each Purchaser hereby
irrevocably subscribes for and agrees to purchase Securities for the aggregate
purchase price set forth on the signature page of such Purchaser hereto
(the “Subscription Amount”).  The
Securities to be issued to a Purchaser hereunder shall consist of (i) Shares
in an amount equal to the quotient of (x) the Subscription Amount, divided by
(y) the Offering Price, rounded down to the nearest whole number, and (ii) a
Warrant to purchase such number of shares of Common Stock to be determined
based on a ratio of 0.50 shares of Common Stock for every one (1) Share
purchased hereunder.  The aggregate
amount of Securities to be issued pursuant to the Offering shall not exceed
1,700,000 Shares and Warrants to purchase 850,000 shares of Common Stock.  The Company shall allocate the Subscription
Amount between the Shares and the Warrants prior to the Closing and provide
notice to the Purchasers of such allocation.


 


(2)                                  For
purposes of this Agreement, the “Offering Price” shall be the price per
Share to be paid by the Purchasers, determined as the product of (a) .75
multiplied by (b) the average closing price (the “Market Price”) of
the Common Stock for the regular daily trading session as reported by the
American Stock Exchange (“Amex”) for a period of up to five trading days
immediately preceding the pricing date (the “Pricing Date”), to be
determined by Oppenheimer & Co. Inc., the placement agent for the
Offering (the “Placement Agent”). 
On April 29, 2005, the Placement Agent determined the Market Price
was equal to $2.81 per share, and the Offering Price is equal to $2.11 per
share.


 





















 


(3)                                  As
soon as possible, but no later than three (3) business days after the
Pricing Date the Company shall hold the closing of the Offering (the “Closing”).  The Company shall make a press release
regarding the transaction in accordance with Section F(3) hereof.
Upon the Closing, the purchase and sale contemplated hereby with respect to
accepted subscriptions shall be binding, enforceable and irrevocable in
accordance with and subject to the terms hereof.


 


(4)                                  Prior
to the Closing, each Purchaser shall deliver the applicable Subscription Amount
by check payable to the escrow account set forth on Schedule A or
by wire transfer to such escrow account in accordance with the wire transfer
instructions set forth on Schedule A, and such amount shall be held
in the manner described in Paragraph (5) below.


 


(5)                                  All
payments for Securities made by the Purchasers will be deposited as soon as
practicable for the undersigned’s benefit in an interest bearing escrow
account.  Any interest earned on such
payments shall revert back to the escrow agent and shall be used to offset the
escrow account fees.  Payments for
Securities made by the Purchasers will be returned promptly, without interest
or deduction, if, or to the extent, the undersigned’s subscription is rejected
or the Offering is terminated for any reason prior to the public dissemination
of the press release referred to in Section F(3) hereof.


 


(6)                                  Upon
receipt by the Company of the requisite payment for all Securities to be
purchased by the Purchasers whose subscriptions are accepted, the Company
shall, at the Closing:  (i) or
immediately thereafter issue to each Purchaser stock certificates representing
the shares of Common Stock purchased under this Agreement; (ii) or
immediately thereafter issue to each Purchaser a Warrant to purchase such
number of shares of Common Stock calculated in accordance with Paragraph (1) above;
(iii) deliver to the Purchasers and to the Placement Agent a certificate
stating that the representations and warranties made by the Company in Section C
of this Agreement were true and correct in all material respects when made and
are true and correct in all material respects on the date of Closing relating
to the Securities subscribed for pursuant to this Agreement as though made on
and as of the Closing date (provided, however, that representations and
warranties that speak as of a specific date shall continue to be true and
correct as of the Closing with respect to such date), which certificate shall
also represent pursuant to the terms hereof, as of the date of Closing, the
information set forth in Section C(2) hereof as of March 31,
2005; and (iv) cause to be delivered to the Placement Agent and the
Purchasers an opinion of Morgan Lewis & Bockius LLP substantially in
the form of Exhibit A hereto and reasonably acceptable to counsel
for the Placement Agent.


 


(7)                                  Each
Purchaser acknowledges and agrees that this Agreement shall be binding upon
such Purchaser upon the execution and delivery to the Company, in care of the
Placement Agent, of such Purchaser’s signed counterpart signature page to
this Agreement unless and until the Company or the Placement Agent shall reject
the subscription being made hereby by such Purchaser.


 


(8)                                  Each
Purchaser agrees that each of the Company and the Placement Agent may reduce
such Purchaser’s subscription with respect to the number of Shares and Warrants
to be purchased without any prior notice or further consent by such
Purchaser.  If such a reduction occurs,
the part of the Subscription Amount attributable to the reduction shall be
promptly returned, without interest or deduction.


 


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(9)                                  Each
Purchaser acknowledges and agrees that the purchase of Shares and Warrants by
such Purchaser pursuant to the Offering is subject to all the terms and
conditions set forth in this Agreement as well as in the Memorandum (as defined
below).


 


B.                                    Representations
and Warranties of the Purchaser


 


Each of the Purchasers, severally and not jointly,
hereby represents and warrants to the Company and the Placement Agent, and
agrees with the Company as follows:


 


(1)                                  The
Purchaser has been furnished with and has carefully read the Company’s
Confidential Private Placement Memorandum dated March 21, 2005, as
supplemented or amended (together with all documents and filings attached
thereto or incorporated therein by reference, the “Memorandum”), this
Agreement and the form of Warrant attached hereto as Exhibit B
(collectively the “Offering Documents”), and is familiar with and
understands the terms of the Offering. 
Specifically, and without limiting in any way the foregoing
representation, the Purchaser has carefully read and considered (i) the
Company’s annual report on Form 10-KSB for the fiscal year ended June 30,
2004 (the “2004 Form 10-KSB”), (ii) the Company’s quarterly
reports on Form 10-QSB for each of the periods ended September 30,
2004 and December 31, 2004, (iii) the Company’s Definitive Proxy
Statement dated November 5, 2004 on Schedule 14A relating to its 2004
annual meeting of shareholders and (iv) the section of the Memorandum
entitled “Risk Factors,” and fully understands all of the risks related to the
purchase of the Securities.  The
Purchaser has carefully considered and has discussed with the Purchaser’s
professional legal, tax, accounting and financial advisors, to the extent the
Purchaser has deemed necessary, the suitability of an investment in the
Securities for the Purchaser’s particular tax and financial situation and has
determined that the Securities being subscribed for by the Purchaser are a
suitable investment for the Purchaser. 
The Purchaser recognizes that an investment in the Securities involves
substantial risks, including the possible loss of the entire amount of such
investment.


 


(2)                                  The
Purchaser acknowledges that (i) the Purchaser has had the opportunity to
request copies of any documents, records, and books pertaining to this
investment and (ii) any such requested documents, records and books have
been made available for inspection by the Purchaser and the Purchaser’s
attorney, accountant or other advisor(s).


 


(3)                                  The
Purchaser and the Purchaser’s advisor(s) have had a reasonable opportunity to
ask questions of and receive answers from representatives of the Company or
persons acting on behalf of the Company concerning the Offering and all such
questions have been answered to the full satisfaction of the Purchaser.


 


(4)                                  The
Purchaser is not subscribing for Securities as a result of or subsequent to any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio or
presented at any seminar, meeting or conference whose attendees have been
invited by any general solicitation or general advertising.


 


(5)                                  If
the Purchaser is a natural person, the Purchaser has reached the age of
majority or equivalent status in the jurisdiction in which the Purchaser
resides.  Each Purchaser has adequate
means of providing for the Purchaser’s current financial needs and
contingencies, is


 


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able to bear the
substantial economic risks of an investment in the Securities for an indefinite
period of time, has no need for liquidity in such investment and can afford a
complete loss of such investment.


 


(6)                                  The
Purchaser has sufficient knowledge and experience in financial, tax and
business matters to enable the Purchaser to utilize the information made
available to the Purchaser in connection with the Offering, to evaluate the
merits and risks of an investment in the Securities and to make an informed
investment decision with respect to an investment in the Securities on the
terms described in the Offering Documents.


 


(7)                                  The
Purchaser will not sell or otherwise transfer the Securities without
registration under the Securities Act of 1933, as amended (the “Securities
Act”) and applicable state securities laws or an applicable exemption
therefrom.  The Purchaser acknowledges
that neither the offer nor sale of the Securities has been registered under the
Securities Act or under the securities laws of any state.  The Purchaser represents and warrants that
the Purchaser is acquiring the Securities for the Purchaser’s own account, for
investment and not with a view toward resale or distribution within the meaning
of the Securities Act.  The Purchaser has
not offered or sold the Securities being acquired nor does the Purchaser have
any present intention of selling, distributing or otherwise disposing of such
Securities either currently or after the passage of a fixed or determinable
period of time or upon the occurrence or non-occurrence of any predetermined
event or circumstances in violation of the Securities Act.  The Purchaser is aware that (i) the
Securities are not currently eligible for sale in reliance upon Rule 144
promulgated under the Securities Act and (ii) the Company has no
obligation to register the Securities subscribed for hereunder, except as provided
in Section E hereof.


 


(8)                                  The
Purchaser acknowledges that the certificates representing the Shares, the
Warrants and, upon the exercise of the Warrants, the shares of Common Stock
issuable upon exercise of the Warrants (the “Warrant Shares”), be stamped
or otherwise imprinted with a legend substantially in the following form:


 


The
securities represented hereby have not been registered under the Securities Act
of 1933, as amended, or any state securities laws and neither the securities
nor any interest therein may be offered, sold, transferred, pledged or
otherwise disposed of except pursuant to an effective registration under such
act or an exemption from registration, which, in the opinion of counsel
reasonably satisfactory to this corporation, is available.


 


Certificates evidencing the Shares and the Warrant
Shares shall not be required to contain such legend or any other legend (i) following
any sale of such Shares or Warrant Shares pursuant to Rule 144, or (ii) if
such Shares or Warrant Shares are eligible for sale under Rule 144(k) or
have been sold pursuant to the Registration Statement (as hereafter defined)
and in compliance with the obligations set forth in Section E(6), below,
or (iii) such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued by
the Staff of the Securities and Exchange Commission), in each such case (i) through
(iii) to the extent reasonably determined by the Company’s legal
counsel.  At such time and to the extent
a legend is no longer required for the Shares or Warrant Shares, the


 


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Company will use its best
efforts to no later than five (5) trading days following the delivery by a
Purchaser to the Company or the Company’s transfer agent of a legended
certificate representing such Shares or Warrant Shares (together with such
accompanying documentation or representations as reasonably required by counsel
to the Company), deliver or cause to be delivered a certificate representing
such Shares or Warrant Shares that is free from the foregoing legend.   If the Company fails to deliver a stock
certificate to the Purchaser without such legend within five (5) trading
days following the delivery by the Purchaser to the Company or the Transfer
Agent of the required documentation and representations (the “Legend Receipt
Date”), then in addition to other equitable and other remedies available to the
Purchaser, the Company will pay the Purchaser, as partial liquidated damages,
an amount in cash equal to 1.5% of the aggregate purchase price paid for the
shares that are being presented for legend removal on the Legend Receipt Date,
and pay to the Purchaser an additional 1.5% of the aggregate purchase price paid
for the shares that are being presented for legend removal on the calendar day
following every successive 30-day period thereafter or any portion thereof
until the legend is removed.  All costs
and expenses related to the removal of the legends and the reissuance of any
Securities shall be borne by the Company. 
Delivery shall be deemed to occur pursuant to this paragraph, one day
after delivery of the required materials to a recognized overnight courier
service.


 


(9)                                  If
this Agreement is executed and delivered on behalf of a partnership,
corporation, trust, estate or other entity: 
(i) such partnership, corporation, trust, estate or other entity
has the full legal right and power and all authority and approval required (a) to
execute and deliver this Agreement and all other instruments executed and
delivered by or on behalf of such partnership, corporation, trust, estate or
other entity in connection with the purchase of its Securities, and (b) to
purchase and hold such Securities; (ii) the signature of the party signing
on behalf of such partnership, corporation, trust, estate or other entity is
binding upon such partnership, corporation, trust, estate or other entity; and (iii) such
partnership, corporation, trust or other entity has not been formed for the
specific purpose of acquiring such Securities, unless each beneficial owner of
such entity is qualified as an accredited investor within the meaning of Rule 501(a) of
Regulation D promulgated under the Securities Act and has submitted information
to the Company substantiating such individual qualification.


 


(10)                            If
the Purchaser is a retirement plan or is investing on behalf of a retirement
plan, the Purchaser acknowledges that an investment in the Securities poses
additional risks, including the inability to use losses generated by an
investment in the Securities to offset taxable income.


 


(11)                            The
information contained in the purchaser questionnaire in the form of Exhibit C
attached hereto (the “Purchaser Questionnaire”) delivered by the
Purchaser in connection with this Agreement is complete and accurate in all
respects, and the Purchaser is an “accredited investor” as defined in Rule 501
of Regulation D under the Securities Act on the basis indicated therein.  The Purchaser shall indemnify and hold harmless
the Company and each officer, director or control person, who is or may be a
party or is or may be threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of or arising from any actual or
alleged misrepresentation or misstatement of facts or omission to represent or
state facts made or alleged to have been made by the Purchaser to the Company
or omitted or alleged to have been omitted by the Purchaser, concerning the
Purchaser or the Purchaser’s authority to invest or financial


 


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position in connection
with the Offering, including, without limitation, any such misrepresentation,
misstatement or omission contained in the Agreement or any other document
submitted by the Purchaser, against losses, liabilities and expenses for which
the Company or any officer, director or control person has not otherwise been
reimbursed (including attorney’s fees, judgments, fines and amounts paid in
settlement) actually and reasonably incurred by the Company or such officer,
director or control person in connection with such action, suit or
proceeding.  For the avoidance of doubt,
such indemnification shall be the several, and not joint, obligation of each
Purchaser with respect to its own action or inaction as provided above.


 


(12)                            The
information contained in the selling stockholder questionnaire in the form of Exhibit D
attached hereto (the “Selling Stockholder Questionnaire”) delivered by the
Purchaser in connection with this Agreement is complete and accurate in all
respects.


 


C.                                    Representations
and Warranties of the Company


 


The Company hereby makes the following representations
and warranties to the Purchasers and the Placement Agent, which representations
and warranties shall survive the Closing and the purchase and sale of the
Securities.


 


(1)                                  Organization,
Good Standing and Qualification.  The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has full corporate power and
authority to conduct its business as currently conducted or proposed to be
conducted as disclosed in the Memorandum. 
The Company is duly qualified to do business as a foreign corporation
and is in good standing in all jurisdictions in which the character of the
property owned or leased or the nature of the business transacted by it makes
qualification necessary, except where the failure to so qualify would not have
any material adverse change in the financial condition, management, business
prospects, technology, or results of operations of the Company (“Material
Adverse Effect”).


 


(2)                                  Capitalization.  The authorized capital stock of the Company
consists of 35,000,000 shares of stock of all classes.  The authorized capital stock is divided into
30,000,000 shares of Common Stock, $0.01 par value per share, and 5,000,000
shares of Preferred Stock, $0.01 par value per share (the “Preferred Stock”).  As of March 31, 2005, there were
13,871,737 shares of Common Stock issued and no
shares of Preferred Stock issued and outstanding.  As of March 31, 2005, the Company had
reserved 3,000,000 shares of Common Stock for issuance to employees, directors
and consultants pursuant to the Company’s 1998 Stock Incentive Plan (the “Plan”),
of which 2,111,500 shares of Common Stock are subject to outstanding,
unexercised options as of such date.  As
of March 31, 2005, the Company had reserved 10,000 shares of Common Stock
for issuance upon outstanding options issued outside its Plan, and 4,928,711
shares of Common Stock for issuance upon outstanding warrants.  Other than as set forth above, as set forth
in footnote 7 to the audited financial statements of the Company contained in
its 2004 Form 10-KSB or as contemplated to be sold pursuant to this
Agreement, there are no other options, warrants, calls, rights, commitments or
agreements of any character to which the Company is a party or by which either
the Company is bound or obligating the Company to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of the Company or obligating the
Company to grant, extend or enter into any such option, warrant, call, right, commitment
or agreement.


 


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(3)                                  Issuance;
Reservation of Shares.  The issuance
of the Shares has been duly and validly authorized by all necessary corporate
and stockholder action, and the Shares, when issued and paid for pursuant to
this Agreement, will be validly issued, fully paid and non-assessable shares of
Common Stock of the Company.  The
issuance of the Warrants has been duly and validly authorized by all necessary
corporate and stockholder action, and the Warrant Shares, when issued upon the
due exercise of the Warrants, will be validly issued, fully paid and
non-assessable shares of Common Stock of the Company.  The Company has reserved, and will reserve at
all times that the Warrants, and all warrants issued to the Placement Agent,
remain outstanding, such number of shares of Common Stock sufficient to enable
the full exercise of the Warrants and all warrants issued to the Placement
Agent.


 


(4)                                  Authorization;
Enforceability.  The Company has all
corporate right, power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby.  All corporate action on the part of the
Company, its directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Company, the
authorization, sale, issuance and delivery of the Securities contemplated
herein and the performance of the Company’s obligations hereunder has been
taken.  This Agreement has been duly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms and subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies,
and to limitations of public policy.  The
issuance and sale of the Securities contemplated hereby will not give rise to
any preemptive rights or rights of first refusal on behalf of any person.


 


(5)                                  No
Conflict; Governmental and Other Consents.


 


(a)                                  The execution and delivery by the
Company of this Agreement and the consummation of the transactions contemplated
hereby will not (i) result in the violation of any law, statute, rule,
regulation, order, writ, injunction, judgment or decree of any court or
governmental authority to or by which the Company is bound, (ii) result in
the violation of any provision of the Amended and Restated Certificate of
Incorporation or Amended and Restated Bylaws of the Company, and (iii) conflict
with, or result in a breach or violation of, any of the terms or provisions of,
or constitute (with due notice or lapse of time or both) a default under, any
lease, loan agreement, mortgage, security agreement, trust indenture or other
agreement or instrument to which the Company is a party or by which it is bound
or to which any of its properties or assets is subject, nor result in the
creation or imposition of any lien upon any of the properties or assets of the
Company, except to the extent that any such violation, conflict or breach
referred to in clauses (i) and (iii) would not be reasonably likely
to have a Material Adverse Effect.


 


(b)                                 No consent, approval, authorization
or other order of any governmental authority or other third party is required
to be obtained by the Company in connection with the authorization, execution
and delivery of this Agreement or with the authorization, issue and sale of the
Securities, except such post-Closing filings as may be required to be made with
the Securities and Exchange Commission (the “SEC”), Amex and any state
or foreign blue sky or securities regulatory authority.


 


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(6)                                  Litigation.  There are no pending, or to the Company’s
knowledge threatened, legal or governmental proceedings against the Company.


 


(7)                                  Accuracy
of Reports.  All reports required to
be filed by the Company within the two years prior to the date of this
Agreement (the “SEC Reports”) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), have been filed with the SEC, complied
at the time of filing in all material respects with the requirements of their
respective forms and were complete and correct in all material respects as of
the dates at which the information was furnished, and contained (as of such
dates) no untrue statements of a material fact nor omitted to state any
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.


 


(8)                                  Financial
Information.  The Company’s financial
statements that appear in the SEC Reports have been prepared in accordance with
United States generally accepted accounting principles (“GAAP”), except in
the case of unaudited statements as permitted by Form 10-QSB of the SEC or
as may be indicated therein or in the notes thereto, applied on a consistent
basis throughout the periods indicated, and such financial statements fairly
present in all material respects the financial condition and results of
operations of the Company as of the dates and for the periods indicated
therein.


 


(9)                                  Accounting
Controls.  The Company and each of
its subsidiaries maintains a system of internal accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.


 


(10)                            Sarbanes-Oxley
Act of 2002.  The Company is, and
will be at all times during the period that the Company must maintain
effectiveness of the Registration Statement as provided herein, in compliance,
in all material respects, with all applicable provisions of the Sarbanes-Oxley
Act of 2002 and all rules and regulations of the SEC or other
governmental, regulatory (including self-regulatory) or similar agency or
organization, promulgated thereunder or implementing the provisions thereof
that are in effect and is taking reasonable steps to ensure that it will be in
compliance with other applicable provisions of the Sarbanes-Oxley Act of 2002
not currently in effect upon the effectiveness of such provisions.


 


(11)                            Absence
of Certain Changes.  Since the date
of the Company’s financial statements in Form 10-QSB for the fiscal
quarter ended December 31, 2004, there has not occurred a Material Adverse
Effect, except in each case as expressly described in the Memorandum.


 


(12)                            Investment
Company.  The Company is not an
“investment company” within the meaning of such term under the Investment
Company Act of 1940, as amended, and the rules and regulations of the SEC
thereunder.


 


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(13)                            Subsidiaries.  To the extent required under applicable SEC
rules, Exhibit 21 to the 2004 Form 10-KSB sets forth each subsidiary
of the Company, showing the jurisdiction of its incorporation or
organization.  For the purposes of this
Agreement, “subsidiary” shall mean any company or other entity of which at
least 50% of the securities or other ownership interest having ordinary voting
power for the election of directors or other persons performing similar
functions are at the time owned directly or indirectly by the Company or any of
its other subsidiaries.


 


(14)                            Indebtedness.  The financial statements in the SEC Reports
reflect, to the extent required, as of the date thereof, all outstanding
secured and unsecured Indebtedness (as defined below) of the Company or any
subsidiary, or for which the Company or any subsidiary has commitments.  For purposes of this Agreement,
“Indebtedness” shall mean (a) any liabilities for borrowed money or
amounts owed in excess of $50,000 (other than trade accounts payable incurred
in the ordinary course of business), (b) all guaranties, endorsements and
other contingent obligations in respect of Indebtedness of others, whether or
not the same are or should be reflected in the Company’s balance sheet (or the
notes thereto), except guaranties by endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business; and (c) the present value of any lease payments in excess of
$50,000 due under leases required to be capitalized in accordance with
GAAP.  Neither the Company nor any
subsidiary is in default with respect to any Indebtedness.


 


(15)                            Certain
Fees.  Other than fees payable to the
Placement Agent pursuant to the Placement Agent Agreement, no brokers’, finders’
or financial advisory fees or commissions will be payable by the Company or any
subsidiary with respect to the transactions contemplated by this Agreement.


 


(16)                            Material
Agreements.  Except as set forth in
the SEC Reports, neither the Company nor any subsidiary is a party to any
written or oral contract, instrument, agreement, commitment, obligation, plan
or arrangement, a copy of which would be required to be filed with the SEC as
an exhibit to Form 10-KSB (each, a “Material Agreement”).  The Company and each of its subsidiaries has
in all material respects performed all the obligations required to be performed
by them to date under the foregoing agreements, have received no notice of
default by the Company or the subsidiary that is a party thereto, as the case
may be, and, to the Company’s knowledge, are not in default under any Material
Agreement now in effect.


 


(17)                            Transactions
with Affiliates.  Except as set forth
in the SEC Reports, there are no loans, leases, agreements, contracts, royalty
agreements, management contracts or arrangements or other continuing
transactions with aggregate obligations of any party exceeding $60,000 between (a) the
Company, any subsidiary or any of their respective customers or suppliers on
the one hand, and (b) on the other hand, any person who would be covered
by Item 404(a) of Regulation S-B or any company or other entity controlled
by such person.


 


(18)                            Taxes.  The Company and each of the subsidiaries has
prepared and filed all federal, state, local, foreign and other tax returns for
income, gross receipts, sales, use and other taxes and custom duties (“Taxes”)
required by law to be filed by it, except for tax returns, the failure to file
which, individually or in the aggregate, do not and would not have a Material
Adverse Effect on the Company and its subsidiaries taken as a whole. Such filed
tax returns are


 


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complete and accurate in
all material respects, except for such omissions and inaccuracies which, individually
or in the aggregate, do not and would not have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole. 
The Company and each subsidiary has paid or made provisions for the
payment of all Taxes shown to be due on such tax returns and all additional
assessments, and adequate provisions have been and are reflected in the
financial statements of the Company and the subsidiaries for all current Taxes
to which the Company or any subsidiary is subject and which are not currently
due and payable, except for such Taxes which, if unpaid, individually or in the
aggregate, do not and would not have a Material Adverse Effect on the Company
and its subsidiaries, taken as a whole. 
None of the federal income tax returns of the Company or any subsidiary
for the past five years has been audited by the Internal Revenue Service.  The Company has not received written notice
of any assessments, adjustments or contingent liability (whether federal,
state, local or foreign) in respect of any Taxes pending or threatened against
the Company or any subsidiary for any period which, if unpaid, would have a
Material Adverse Effect on the Company and the subsidiaries taken as a whole.


 


(19)                            Insurance.  The Company and its subsidiaries are insured
by insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company believes are prudent and customary in
the businesses in which the Company and its subsidiaries are engaged.  Neither the Company nor any of its subsidiaries
has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
without an increase in cost significantly greater than general increases in
cost experienced for similar companies in similar industries with respect to
similar coverage.


 


(20)                            Environmental
Matters.  Except as disclosed in the
SEC Reports, all real property owned, leased or otherwise operated by the
Company and its subsidiaries is free of contamination from any substance, waste
or material currently identified to be toxic or hazardous pursuant to, within
the definition of a substance which is toxic or hazardous under, or which may
result in liability under, any Environmental Law (as defined below), including,
without limitation, any asbestos, polychlorinated biphenyls, radioactive
substance, methane, volatile hydrocarbons, industrial solvents, oil or
petroleum or chemical liquids or solids, liquid or gaseous products, or any
other material or substance (“Hazardous Substance”) which has caused or
would reasonably be expected to cause or constitute a threat to human health or
safety, or an environmental hazard in violation of Environmental Law or to
result in any environmental liabilities. 
Neither the Company nor any of its subsidiaries has caused or suffered
to occur any release, spill, migration, leakage, discharge, disposal,
uncontrolled loss, seepage, or filtration of Hazardous Substances that would
reasonably be expected to result in environmental liabilities.  The Company and each subsidiary has
generated, treated, stored and disposed of any Hazardous Substances in
compliance with applicable Environmental Laws. 
The Company and each subsidiary has obtained, or has applied for, and is
in compliance with and in good standing under all permits required under
Environmental and neither the Company nor any of its subsidiaries has any
knowledge of any proceedings to substantially modify or to revoke any such
permit.  There are no investigations,
proceedings or litigation pending or, to the Company’s knowledge, threatened
against the Company, any of its subsidiaries or any of the Company’s or its
subsidiaries’ facilities relating to Environmental Laws or Hazardous
Substances.  “Environmental Laws”
shall mean all federal, national, state, regional and local laws, statutes,
ordinances and regulations, in each case as amended or supplemented from time
to time, and any


 


10





















 


judicial or
administrative interpretation thereof, including orders, consent decrees or
judgments relating to the regulation and protection of human health, safety,
the environment and natural resources.


 


(21)                            Intellectual
Property Rights and Licenses.  The
Company and its subsidiaries own or have the right to use any and all
information, know-how, trade secrets, patents, copyrights, trademarks, trade
names, software, formulae, methods, processes and other intangible properties
that are of a such nature and significance to the business that the failure to
own or have the right to use such items would adversely affect the business now
conducted or proposed to be conducted by the Company or any of its subsidiaries
(“Intangible Rights”).  The
Company (including its subsidiaries) has not received any notice that it is in
conflict with or infringing upon the asserted intellectual property rights of
others in connection with the Intangible Rights, and, to the Company’s
knowledge, neither the use of the Intangible Rights nor the operation of the
Company’s businesses is infringing or has infringed upon any intellectual
property rights of others.  All payments
have been duly made that are necessary to maintain the Intangible Rights in force.  No claims have been made, and to the Company’s
knowledge, no claims are threatened, that challenge the validity or scope of
any Intangible Right of the Company or any of its subsidiaries.  The Company and each of its subsidiaries have
taken reasonable steps to obtain and maintain in force all licenses and other
permissions under Intangible Rights of third parties necessary to conduct their
businesses as heretofore conducted by them, and now being conducted by them,
and as expected to be conducted, and neither the Company nor any of its
subsidiaries is or has been in breach of any such license or other permission.


 


(22)                            Labor,
Employment and Benefit Matters.


 


(a)                                  There are no existing, or to the
best of the Company’s knowledge, threatened strikes or other labor disputes
against the Company or any of its subsidiaries. 
Except as set forth in the SEC Reports, there is no organizing activity
involving employees of the Company or any of its subsidiaries pending or, to the
Company’s or its subsidiaries’ knowledge, threatened by any labor union or
group of employees.  There are no
representation proceedings pending or, to the Company’s or its subsidiaries’
knowledge, threatened with the National Labor Relations Board, and no labor
organization or group of employees of the Company or its subsidiaries has made
a pending demand for recognition.


 


(b)                                 Except as set forth in the SEC
Reports, neither the Company nor any of its subsidiaries is, or during the five
years preceding the date of this Agreement was, a party to any labor or
collective bargaining agreement and there are no labor or collective bargaining
agreements which pertain to employees of the Company or its subsidiaries.


 


(c)                                  Each employee benefit plan is in
compliance with all applicable law.


 


(d)                                 Neither the Company nor any of its
subsidiaries has any liabilities, contingent or otherwise, including without
limitation, liabilities for retiree health, retiree life, severance or
retirement benefits, which are not fully reflected, to the extent required by
GAAP, on the balance sheet contained in the Company’s Form 10-QSB for the
fiscal quarter ended December 31, 2004 or fully funded.  The term “liabilities” used in the preceding
sentence shall be calculated in accordance with reasonable actuarial
assumptions.


 


11





















 


(e)                                  None of the Company nor any of its
subsidiaries (i) has terminated any “employee pension benefit plan” as
defined in Section 3(2) of ERISA (as defined below) under
circumstances that present a material risk of the Company or any of its
subsidiaries incurring any liability or obligation that would be reasonably
likely to have a Material Adverse Effect, or (ii) has incurred or expects
to incur any outstanding liability under Title IV of the Employee Retirement
Income Security Act of 1974, as amended and all rules and regulations
promulgated thereunder (“ERISA”).


 


(23)                            Compliance
with Law.  The Company is in
compliance in all material respects with all applicable laws.  The Company has not received any notice of,
nor does the Company have any knowledge of, any material violation (or of any
investigation, inspection, audit or other proceeding by any governmental entity
involving allegations of any violation) of any applicable law involving or
related to the Company which has not been dismissed or otherwise disposed
of.  The Company has not received notice
or otherwise has any knowledge that the Company is charged with, threatened
with or under investigation with respect to, any material violation of any
applicable law.  Neither the Company nor
any of its subsidiaries nor any employee or agent of the Company or any
subsidiary has made any contribution or other payment to any official of, or
candidate for, any federal, state or foreign office in violation of any law.  The Company and its directors, officers,
employees and agents have complied in all material respects with the Foreign
Corrupt Practices Act of 1977, as amended, and any related rules and
regulations.


 


(24)                            Ownership
of Property.  Except as set forth in
the Company’s financial statements included in the SEC Reports, each of the
Company and its subsidiaries has (i) good and marketable fee simple title
to its owned real property, if any, free and clear of all liens; (ii) a
valid leasehold interest in all leased real property, and each of such leases
is valid and enforceable in accordance with its terms (subject to laws of
general application relating to bankruptcy, insolvency and the relief of
debtors and rules of law governing specific performance, injunctive relief
or other equitable remedies, and to limitations of public policy) and is in
full force and effect, and (iii) good title to, or valid leasehold
interests in, all of its other properties and assets free and clear of all
liens.


 


(25)                            Compliance
with Amex Listing Requirements.  The
Company is in compliance in all material respects with all currently effective
Amex continued listing requirements and corporate governance requirements.


 


(26)                            No
Integrated Offering.  Assuming the
accuracy of each Purchaser’s representations and warranties set forth in Section B
hereof, neither the Company, nor any of its affiliates or other person acting
on the Company’s behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security under circumstances
that would cause the Offering of the Securities to be integrated with prior
offerings by the Company for purposes of the Securities Act, when integration
would cause the Offering not to be exempt from the requirements of Section 5
of the Securities Act.


 


(27)                            General
Solicitation.  Neither the Company
nor, its knowledge, any person acting on behalf of the Company, has offered or
sold any of the Securities by any form of “general solicitation” within the
meaning of Rule 502 under the Securities Act.  To the knowledge of the Company, no person
acting on its behalf has offered the Securities for sale other than to the


 


12





















 


Purchasers and certain
other “accredited investors” within the meaning of Rule 501 under the
Securities Act.


 


(28)                            Press
Release; Non-public Information.  The
Company shall make the press release referred to in Section F(3).  The Company is not aware of any non-public
material information that has been provided to any investor in connection with
the Offering.


 


D.                                    Understandings


 


Each of the Purchasers understands, acknowledges and
agrees with the Company as follows:


 


(1)                                  The
Company may in its sole discretion terminate this Offering or reject any
subscription at any time prior to the dissemination of the press release
referred to in Section F(3).  The
execution of this Agreement by the Purchaser or solicitation of the investment
contemplated hereby shall create no obligation on the part of the Company or
the Placement Agent to accept any subscription or complete the Offering.


 


(2)                                  The
Purchaser hereby acknowledges and agrees that the subscription hereunder is
irrevocable by the Purchaser, and that, except as required by law, the
Purchaser is not entitled to cancel, terminate or revoke this Agreement or any
agreements of the Purchaser hereunder and that if the Purchaser is an
individual this Agreement shall survive the death or disability of the
Purchaser and shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives and
permitted assigns.


 


(3)                                  No
federal or state agency or authority has made any finding or determination as
to the accuracy or adequacy of the Offering Documents or as to the fairness of
the terms of the Offering nor any recommendation or endorsement of the
Securities.  Any representation to the
contrary is a criminal offense.  In
making an investment decision, Purchasers must rely on their own examination of
the Company and the terms of the Offering, including the merits and risks
involved.


 


(4)                                  The
Offering is intended to be exempt from registration under the Securities Act by
virtue of Section 4(2) of the Securities Act and the provisions of
Regulation D thereunder, which is in part dependent upon the truth,
completeness and accuracy of the statements made by the Purchaser herein and in
the Purchaser Questionnaire.


 


(5)                                  Notwithstanding
the registration obligations provided herein, there can be no assurance that
the Purchaser will be able to sell or dispose of the Securities.  It is understood that in order not to
jeopardize the Offering’s exempt status under Section 4(2) of the
Securities Act and Regulation D, any transferee may, at a minimum, be required
to fulfill the investor suitability requirements thereunder.


 


(6)                                  The
Purchaser acknowledges that the Offering is confidential and non-public and
agrees that all information about the Offering shall be kept in confidence by
the Purchaser until the public dissemination of the press release referred to
in Section F(3) hereof.


 


13





















 


(7)                                  Although
the Company hereby acknowledges that it is not aware of any material,
non-public information that has been provided to any investor in connection
with the Offering,  the Purchaser
acknowledges that the foregoing restrictions on the Purchaser’s use and
disclosure of any information restricts the Purchaser from trading in the
Company’s securities to the extent such trading is on the basis of such
information of which the Purchaser is aware.


 


(8)                                  The
Purchaser agrees that beginning on the date hereof until the public
dissemination of the press release referred to in section F(3) hereof,
the Purchaser will not enter into any Short Sales.  For purposes of the foregoing sentence, a
“Short Sale” by a Purchaser means a sale of Common Stock that is marked as a
short sale and that is executed at a time when such Purchaser has no equivalent
offsetting long position in the Common Stock, exclusive of the Shares.  For purposes of determining whether a
Purchaser has an equivalent offsetting long position in the Common Stock, all
Common Stock that would be issuable upon exercise in full of all options then
held by such Purchaser (assuming that such options were then fully exercisable,
notwithstanding any provisions to the contrary, and giving effect to any
exercise price adjustments scheduled to take effect in the future) shall be
deemed to be held long by such Purchaser.


 


E.                                      Registration
Rights


 


(1)                                  Certain
Definitions.  For purposes of this Section E,
the following terms shall have the meanings ascribed to them below.


 


(a)                                  “Prospectus” means the
prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
Offering of any portion of the Registrable Securities covered by the
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.


 


(b)                                 “Registrable Securities”
shall mean any Shares and Warrant Shares issued or issuable pursuant to the
Offering Documents together with any securities issued or issuable upon any
stock split, dividend or other distribution, adjustment, recapitalization or
similar event with respect to the foregoing.


 


(c)                                  “Registration Statement”
means the registration statement required to be filed under this Section E,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.


 


(2)                                  Shelf
Registration.


 


(a)                                  The Company shall use its best
efforts to cause to prepare and file with the SEC a “Shelf” Registration
Statement covering the resale of all Registrable Securities for an offering to
be made on a continuous basis pursuant to Rule 415 on or prior to the 30th
day


 


14





















 


following the Closing
date (such date of actual filing, the “Filing Date”).  The Registration Statement shall be on Form S-3
and shall contain (except if otherwise directed by the Purchasers) a “Plan of
Distribution” substantially in the form attached hereto as Exhibit E.  Each Purchaser will furnish to the Company in
writing the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Securities Act for use in connection with the Registration
Statement or prospectus or preliminary prospectus included therein.  Each Purchaser agrees to promptly furnish
additional information required to be disclosed in order to make the
information previously furnished to the Company by such Purchaser not
materially misleading.  The Registration
Statement shall register the Registrable Securities for resale by the holders
thereof.


 


(b)                                 The Company shall use reasonable
efforts to cause the Registration Statement to be declared effective by the SEC
on or prior to the 90th day following the Closing date, and shall use
reasonable efforts to keep the Registration Statement continuously effective
under the Securities Act until the earliest of (i) the second anniversary
of the Closing date or (ii) the date when all Registrable Securities
covered by such Registration Statement have been sold (the “Effectiveness
Period”).


 


(c)                                  The Company shall notify each
Purchaser in writing promptly (and in any event within one business day) after
receiving notification from the SEC that the Registration Statement has been
declared effective.


 


(d)                                 Upon the occurrence of any Event (as
defined below), as partial relief for the damages suffered therefrom by the
Purchasers (which remedy shall not be exclusive of any other remedies which are
available at law or in equity; and provided further that the Purchasers shall
be entitled to pursue an action for specific performance of the Company’s
obligations under Paragraph (2)(b) above and any such actions at law, in
equity, for specific performance or otherwise shall not require the
Purchaser to post a bond), the Company shall pay to each Purchaser, as
liquidated damages and not as a penalty (it being agreed that it would not be
feasible to ascertain the extent of such damages with precision), such amounts
and at such times as shall be determined pursuant to this Paragraph
(2)(d).  For such purposes, each of the following shall constitute an “Event”:


 


(i)                                     the
Filing Date does not occur on or prior to the later of the 30th day following
the Closing date, in which case the Company shall pay (A) on the 31st day
following the Closing date an amount in cash equal to one and one-half percent
(1.5%) of the aggregate purchase price paid by such Purchaser; and (B) on
the calendar day following every successive 30-day period thereafter or any
portion thereof until the Filing Date, one and one-half percent (1.5%) of the
aggregate purchase price paid by such Purchaser; or


 


(ii)                                  the
Registration Statement is not declared effective on or prior to the date that
is 90 days after the Closing date (the “Required Effective Date”), in which
case the Company shall pay (A) on the 31st day following the
Required Effectiveness Date an amount in cash equal to one and one-half percent
(1.5%) of the aggregate purchase price paid by such Purchaser and (B) ) on
the calendar day following every successive 30-day period thereafter or any
portion thereof until the Registration Statement is declared


 


15





















 


effective, one and one-half percent (1.5%) of the aggregate purchase
price paid by such Purchaser, or


 


(iii)                               the
Company’s failure to respond in writing to all comments received from the SEC
within ten (10) business days following receipt thereof (the “Receipt
Date”), in which case the Company shall pay on the 31st day following the
Receipt Date an amount in cash equal to one and one-half percent (1.5%) of the
aggregate purchase price paid by such Purchaser.


 


The payment obligations of the Company under this
Paragraph (2)(d) shall be cumulative.


 


(3)                                  Registration
Procedures.  In connection with the
Company’s registration obligations hereunder, the Company shall use reasonable
efforts:


 


(a)                                  (i) prepare and file with the
SEC such amendments, including post-effective amendments, to the Registration
Statement as may be necessary to keep the Registration Statement continuously
effective as to the Registrable Securities for the Effectiveness Period; (ii) cause
the related Prospectus to be amended or supplemented by any required Prospectus
supplement, and as so supplemented or amended to be filed pursuant to Rule 424;
and (iii) respond as promptly as reasonably possible, and in any event
within ten (10) business days, to any comments received from the SEC with
respect to the Registration Statement or any amendment thereto and as promptly
as reasonably possible provide the Placement Agent true
and complete copies of all correspondence from and to the SEC relating to the
Registration Statement.


 


(b)                                 Notify the Placement Agent as
promptly as reasonably possible, and (if requested by the Placement Agent)
confirm such notice in writing no later than one (1) trading day
thereafter, of any of the following events: 
(i) the SEC notifies the Company whether there will be a “review”
of the Registration Statement; (ii) the SEC comments in writing on the
Registration Statement (in which case the Company shall deliver to the
Placement Agent a copy of such comments and of all written responses thereto); (iii) the
SEC or any other Federal or state governmental authority in writing requests
any amendment or supplement to the Registration Statement or Prospectus or
requests additional information related thereto; (iv) if the SEC issues
any stop order suspending the effectiveness of the Registration Statement or
initiates any action, claim, suit, investigation or proceeding (a “Proceeding”)
for that purpose; (v) the Company receives notice in writing of any
suspension of the qualification or exemption from qualification of any
Registrable Securities for sale in any jurisdiction, or the initiation or
threat of any Proceeding for such purpose; or (vi) the financial
statements included in the Registration Statement become ineligible for
inclusion therein or any statement made in the Registration Statement or Prospectus
or any document incorporated or deemed to be incorporated therein by reference
is untrue in any material respect or any revision to the Registration
Statement, Prospectus or other document is required so that it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
If the Registration Statement is not effective for more than 40 trading days in
any 12-month period as a result of the events set


 


16





















 


forth in this Section E(3)(b) and/or
Section E(3)(g) below, then in addition to other equitable and other
remedies available to the Purchaser, the Company will pay the Purchaser on the
41st trading day, as partial liquidated damages, an amount in cash equal to
1.5% of the aggregate purchase price paid by that Purchaser and pay to the
Purchaser an additional 1.5% of the aggregate purchase price paid on the
calendar day following every successive 30-day period thereafter or any portion
thereof that the Registration Statement is not effective


 


(c)                                  Use reasonable efforts to avoid the
issuance of or, if issued, obtain the withdrawal of (i) any order
suspending the effectiveness of the Registration Statement or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.


 


(d)                                 Promptly deliver to each Purchaser,
without charge, such reasonable number of copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Purchasers may reasonably request.  The Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
Purchasers in connection with the offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or supplement thereto.


 


(e)                                  (i)  In the time and manner
required by Amex, prepare and file with Amex an additional shares listing
application covering all of the Registrable Securities and a notification form
regarding the change in the number of the Company’s outstanding Shares; (ii) use
its reasonable best efforts, regardless of listing or similar costs, to take
all steps necessary to cause such Registrable Securities to be approved for
listing on Amex as soon as possible thereafter; (iii) provide to the
Purchasers notice of such listing; and (iv) use its reasonable best
efforts, regardless of listing or similar costs, to maintain the listing of
such Registrable Securities on Amex.


 


(f)                                    Prior to any public offering of
Registrable Securities, use reasonable efforts to register or qualify or
cooperate with the selling Purchasers in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or “blue sky”
laws of such jurisdictions within the United States as any Purchaser requests
in writing, to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a Registration
Statement; provided, however, that the Company shall not be required for
any such purpose to (i) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not be otherwise required to
qualify but for the requirements of this Paragraph (3)(f), or (ii) subject
itself to taxation.


 


(g)                                 Upon the occurrence of any event
described in Paragraph (3)(b)(vi) above, as promptly as reasonably
possible, prepare a supplement or amendment, including a post-effective
amendment, to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as thereafter
delivered, neither the Registration Statement nor such Prospectus will contain
an untrue statement of a material fact or omit to state a material fact


 


17





















 


required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company may suspend sales pursuant to the Registration Statement for a
period of up to sixty (60) days (unless the holders of at least two-thirds of
the Registrable Securities consent in writing to a longer delay of up to an
additional thirty (30) days) no more than once in any twelve-month period if
the Company furnishes to the holders of the Registrable Securities a
certificate signed by the Company’s Chief Executive Officer stating that in the
good faith judgment of the Company’s Board of Directors, (i) the offering
could reasonably be expected to interfere in any material respect with any
acquisition, corporate reorganization or other material transaction under
consideration by the Company or (ii) there is some other material
development relating to the operations or condition (financial or other) of the
Company that has not been disclosed to the general public and as to which it is
in the Company’s best interests not to disclose such development; provided
further, however, that the Company may not so suspend sales more than once in
any calendar year without the written consent of the holders of at least
two-thirds of the Registrable Securities.


 


(h)                                 Comply with all applicable rules and
regulations of the SEC and Amex in all material respects.


 


(4)                                  Registration
Expenses.  The Company shall pay (or
reimburse the Purchasers for) all fees and expenses incident to the performance
of or compliance with this Agreement by the Company, including without
limitation (a) all registration and filing fees and expenses, including
without limitation those related to filings with the SEC, Amex and in
connection with applicable state securities or “Blue Sky” laws, (b) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities and of printing copies of Prospectuses reasonably
requested by the Purchasers), (c) messenger, telephone and delivery
expenses, (d) fees and disbursements of counsel for the Company, and (e) fees
and expenses of all other Persons retained by the Company in connection with
the consummation of the transactions contemplated by this Agreement.  Notwithstanding the foregoing, each Purchaser
shall pay any and all costs, fees, discounts or commissions attributable to the
sale of its respective Registrable Securities.


 


(5)                                  Indemnification.


 


(a)                                  Indemnification by the Company. 
The Company shall, notwithstanding any termination of this Agreement,
indemnify and hold harmless each Purchaser, its officers and directors,
partners, members, agents, brokers and employees of each of them, each Person
who controls any such Purchaser (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers,
directors, partners, members, agents and employees of each such controlling
Person, and each underwriter of Registrable Securities, to the fullest extent
permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, settlement costs and expenses, including without
limitation costs of preparation and reasonable attorneys’ fees (collectively, “Losses”),
as incurred, arising out of or relating to any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
Prospectus or form of prospectus or in any amendment or supplement thereto, or
arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
(in the case of any Prospectus or form of prospectus or


 


18





















 


supplement thereto, in
light of the circumstances under which they were made) not misleading, except
to the extent, but only to the extent, that (i) such untrue statements or
omissions are based upon information regarding such Purchaser furnished in
writing to the Company by such Purchaser expressly for use therein, or to the
extent that such information related to such Purchaser or such Purchaser’s
proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Purchaser expressly for use in the Registration
Statement, such Prospectus or such form of Prospectus or in any amendment or
supplement thereto (which shall, however, be deemed to include disclosure
substantially in accordance with the “Plan of Distribution” attached hereto),
or (ii) in the case of an occurrence of an event of the type specified in
Paragraph (3)(b) above, the use by such Purchaser of an outdated or
defective Prospectus after the Company has notified such Purchaser in writing
that the Prospectus is outdated or defective and prior to the receipt by such
Purchaser of the Advice contemplated in Paragraph (6) below.  The Company shall notify the Purchasers
promptly of the institution, threat or assertion of any Proceeding of which the
Company is aware in connection with the transactions contemplated by this
Agreement.


 


(b)                                 Indemnification by Purchasers. 
Each Purchaser shall, severally and not jointly, indemnify and hold
harmless the Company, its directors, officers, agents and employees, and each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling Persons, to the fullest
extent permitted by applicable law, from and against all Losses (as determined
by a court of competent jurisdiction in a final judgment not subject to appeal
or review) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, any
Prospectus, or any form of prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading to the extent, but only to the extent, that such untrue statement or
omission is contained in any information furnished in writing by such Purchaser
to the Company specifically for inclusion in such Registration Statement or
Prospectus or to the extent that (i) such untrue statements or omissions
are based upon information regarding such Purchaser furnished in writing to the
Company by such Purchaser expressly for use therein, or to the extent that such
information related to such Purchaser or such Purchaser’s proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Purchaser expressly for use in the Registration Statement,
such Prospectus or such form of Prospectus or in any amendment or supplement
thereto (which shall, however, be deemed to include disclosure substantially in
accordance with the “Plan of Distribution” attached hereto), or (ii) in
the case of an occurrence of an event of the type specified in Paragraph (3)(b) above,
the use by such Purchaser of an outdated or defective Prospectus after the
Company has notified such Purchaser in writing that the Prospectus is outdated
or defective and prior to the receipt by such Purchaser of the Advice
contemplated in Paragraph (6) below. 
In no event shall the liability of any selling Purchaser hereunder be
greater in amount than the dollar amount of the net proceeds received by such
Purchaser upon the sale of the Registrable Securities giving rise to such
indemnification obligation.


 


(c)                                  Conduct of Indemnification
Proceedings.  If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the Person from whom
indemnity is sought (the


 


19





















 


“Indemnifying Party”)
in writing, and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with defense
thereof, provided, that the failure of any Indemnified Party to give such
notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that
such failure shall have prejudiced the Indemnifying Party.  An Indemnified Party shall have the right to
employ separate counsel in any such Proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or Parties unless: (i) the Indemnifying
Party has agreed in writing to pay such fees and expenses; or (ii) the
Indemnifying Party shall have failed promptly to assume the defense of such
Proceeding and to employ counsel reasonably satisfactory to such Indemnified
Party in any such Proceeding; or (iii) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party and the Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that a conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the Indemnifying Party (in
which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense thereof and such counsel shall be at the expense of the
Indemnifying Party; provided, however, that in the event that the
Indemnifying Party shall be required to pay the fees and expenses of separate
counsel, the Indemnifying Party shall only be required to pay the fees and
expenses of one separate counsel for such Indemnified Party or Parties.  The Indemnifying Party shall not be liable
for any settlement of any such Proceeding affected without its written consent,
which consent shall not be unreasonably withheld.  No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such
Proceeding.  All fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent
incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten trading days of written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the Indemnifying Party may require such Indemnified Party
to undertake to reimburse all such fees and expenses to the extent it is
finally judicially determined that such Indemnified Party is not entitled to
indemnification hereunder).


 


(d)                                 Contribution. 
If a claim for indemnification under Paragraph (5)(a) or (b) is
unavailable to an Indemnified Party (by reason of public policy or otherwise),
then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. 
The relative fault of such Indemnifying Party and Indemnified Party
shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by,
or related to information supplied by, such Indemnifying Party or Indemnified
Party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission.


 


20





















 


The amount paid or
payable by a party as a result of any Losses shall be deemed to include,
subject to the limitations set forth in Paragraph (5)(c), any reasonable
attorneys’ or other reasonable fees or expenses incurred by such party in
connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Paragraph 5(d) was available to such party in accordance with its
terms.


 


The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Paragraph (5)(d) were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to in the immediately preceding
paragraph.  Notwithstanding the provision
of this Paragraph (5)(d), no Purchaser shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the proceeds actually
received by such Purchaser from the sale of the Registrable Securities subject
to the Proceeding exceeds the amount of any damages that such Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 
No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.


 


The indemnity
and contribution agreements contained in this Section are in addition to
any liability that the Indemnifying Parties may have to the Indemnified
Parties.


 


(6)                                  Dispositions.  Each Purchaser agrees that it will comply
with the prospectus delivery requirements of the Securities Act as applicable
to it in connection with sales of Registrable Securities pursuant to the
Registration Statement.  Each Purchaser
further agrees that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Paragraphs (3)(b), such
Purchaser will discontinue disposition of such Registrable Securities under the
Registration Statement until such Purchaser’s receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement contemplated by
Paragraph (3)(g), or until it is advised in writing (the “Advice”) by
the Company that the use of the applicable Prospectus may be resumed, and, in
either case, has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus
or Registration Statement.  The Company
may provide appropriate stop orders to enforce the provisions of this
paragraph.


 


(7)                                  No
Piggy-Back on Registrations.  Neither
the Company nor any of its security holders (other than the Purchasers in such
capacity and the Placement Agent, with respect to the shares of Common Stock
issuable upon the exercise of the Warrant issued to the Placement Agent in
connection with the Offering, in such capacities pursuant hereto) may include
securities of the Company, including shares issuable upon exercise of
outstanding employee stock options, in the Registration Statement other than
the Registrable Securities, and the Company shall not after the date hereof
enter into any agreement providing any such right with respect to the
Registration Statement to any of its security holders; provided, however, that
the Company may decide to include the shares of Common Stock underlying
outstanding warrants on a subsequent registration statement without the consent
of the Purchasers or the Placement Agent.


 


(8)                                  Piggy-Back
Registrations.  If at any time during
the Effectiveness Period, other than any suspension period referred to in
Paragraph (3)(g), there is not an effective Registration


 


21





















 


Statement covering all of
the Registrable Securities and the Company shall determine to prepare and file
with the SEC a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, then the Company shall send to each Purchaser
written notice of such determination and if, within fifteen (15) days after
receipt of such notice, any such Purchaser shall so request in writing, the
Company shall include in such registration statement all or any part of such
Registrable Securities not already covered by an effective Registration
Statement such Purchaser requests to be registered.


 


F.                                      Covenants
of the Company


 


(1)                                  The
Company hereby agrees that until ninety (90) days following effectiveness of
the Registration Statement, it shall not issue or sell any Common Stock of the
Company, any warrants or other rights to acquire Common Stock or any other
securities that are convertible into Common Stock, with the exception of
issuances or sales pursuant to the Company’s 2002 Stock Incentive Plan or
warrants which are currently outstanding.


 


(2)                                  Until
the later of (i) one hundred eighty (180) days following the Closing and (ii) ninety (90) days following effectiveness of
the Registration Statement, the Company shall not cause any registration
statement to become effective, other than the Registration Statement contemplated
hereby, or any registration statement related to securities issued or to be
issued pursuant to any option or other plan for the benefit of the Company’s
employees, officers or directors.


 


(3)                                  Prior
to 9:00 a.m. EST on the next business day following the date on which all
signature pages by all parties have been executed and delivered with
respect hereto, the Company shall issue a press release disclosing the
Offering.  As soon as practicable, and in
accordance with applicable rules and regulations, the Company shall, by
filing a Current Report on Form 8-K, disclose the Offering and any
material, non-public information disclosed to the Purchasers in connection
therewith.


 


G.                                    Miscellaneous


 


(1)                                  All
pronouns and any variations thereof used herein shall be deemed to refer to the
masculine, feminine, singular or plural, as identity of the person or persons
may require.


 


(2)                                  Any
notice or other document required or permitted to be given or delivered to the
Purchasers shall be in writing and sent (a) by fax if the sender on the
same day sends a confirming copy of such notice by an internationally
recognized overnight delivery service (charges prepaid) or (b) by an
internationally recognized overnight delivery service (with charges prepaid):


 


22





















 


(i)                                     if
to the Company, at


 


Senesco Technologies, Inc.


303 George Street


Suite 420


New Brunswick, New Jersey 08901


Fax No.:  (732) 296-9292


Attention:  Chief Executive Officer


 


or such other address as it shall
have specified to the Purchaser in writing, with a copy (which shall not
constitute notice) to:


 


Morgan Lewis & Bockius LLP


502
Carnegie Center


Princeton,
NJ 08540-6241


Fax:
(609) 919-6701


Attention:  Emilio Ragosa, Esq.


 


(ii)                                  if to the Purchaser, at its
address set forth on the signature page to this Agreement, or such other
address as it shall have specified to the Company in writing.


 


(3)                                  Failure of the Company to exercise any
right or remedy under this Agreement or any other agreement between the Company
and the Purchaser, or otherwise, or delay by the Company in exercising such
right or remedy, will not operate as a waiver thereof.  No waiver by the Company will be effective
unless and until it is in writing and signed by the Company.


 


(4)                                  This Agreement shall be enforced, governed
and construed in all respects in accordance with the laws of the State of New
York, as such laws are applied by the New York courts to agreements entered
into and to be performed in New York by and between residents of New York, and
shall be binding upon the Purchaser, the Purchaser’s heirs, estate, legal
representatives, successors and assigns and shall inure to the benefit of the
Company, its successors and assigns.


 


(5)                                  If any provision of this Agreement is held
to be invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed modified to conform with such statute
or rule of law.  Any provision
hereof that may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provisions hereof.


 


(6)                                  The parties understand and agree that,
unless provided otherwise herein, money damages would not be a sufficient
remedy for any breach of the Agreement by the Company or the Purchaser and that
the party against which such breach is committed shall be entitled to equitable
relief, including injunction and specific performance, as a remedy for any such
breach.  Such remedies shall not, unless
provided otherwise herein, be deemed to be the exclusive remedies for a breach
by either party of the Agreement but shall be in addition to all other remedies
available at law or equity to the party against which such breach is committed.


 


(7)                                  The obligations of each Purchaser under
this Agreement are several and not joint with the obligations of any other
Purchaser, and no Purchaser shall be responsible in any way for the performance
of the obligations of any other Purchaser hereunder, except as may result from


 


23





















 


the actions of any such Purchaser other than through the execution
hereof.  Nothing contained herein solely
by virtue of being contained herein shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any similar
entity, or create a presumption that the Purchasers are in any way acting in
concert or as a group with respect to such obligations or the transactions
contemplated hereby.


 


(8)                                  This Agreement, together with the
agreements and documents executed and delivered in connection with this
Agreement, constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof.


 


H.                                    Signature


 


The signature page of this Agreement is contained as part of the
applicable subscription package, entitled “Signature Page”.


 


* * * * * * *


 


24





















 


SIGNATURE PAGE


 


The Purchaser hereby subscribes for such number of Shares as shall equal
the Subscription Amount as set forth below, divided by the Offering Price, and
shall also receive a Warrant to purchase such number of shares of Common Stock
calculated as set forth in this Agreement, and agrees to be bound by the terms
and conditions of this Agreement.


 


PURCHASER


 


1.                                       Dated:             May     , 2005


 


2.                                       Total Subscription Amount:  $                    


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature of Subscriber

  	
   

  	
  Signature of Joint Purchaser

  
	
   

  	
  (and title, if applicable)

  	
   

  	
  (if any)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Taxpayer Identification or Social

  	
   

  	
  Taxpayer Identification or Social

  
	
   

  	
  Security Number

  	
   

  	
  Security Number of Joint Purchaser (if any)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name (please print as name will appear

  	
   

  	
   

  
	
   

  	
  on stock certificate)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Number and Street

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  City, State

  	
  Zip Code

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ACCEPTED BY:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SENESCO
  TECHNOLOGIES, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  	
   

  
							



 





















 


Schedule A


 


Escrow Instructions


 


PLEASE SEND WIRE TRANSFERS TO THE ESCROW ACCOUNT AS
FOLLOWS:


 


	
   

  	
  Bank:

  	
  Bank of New York

  
	
   

  	
   

  	
   

  
	
   

  	
  ABA No.

  	
  021000018

  
	
   

  	
   

  	
   

  
	
   

  	
  General Ledger Account #:

  	
  111-565

  
	
   

  	
   

  	
   

  
	
   

  	
  Customer Account #:

  	
  275987

  
	
   

  	
   

  	
   

  
	
   

  	
  Account Name:

  	
  Oppenheimer & Co./Senesco

  



 





















 


Exhibit A


 


Legal Matters


 


Morgan Lewis &
Bockius LLP shall deliver an opinion covering the following matters.  The opinion shall be subject to and include
customary assumptions, limitations and qualifications.


 


1.                                       The Company is a corporation, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority under the laws of the State of
Delaware to conduct its business as it is described in the Memorandum and in
the Company’s Form 10-QSB for the quarter ended December 31, 2004 and
in the Company’s Form 10-KSB for the year ended June 30, 2004 and the
Definitive Proxy Statement dated November 5, 2004, and
to enter into and perform its obligations under the Agreement.


 


2.                                       The authorized capital stock of the
Company consists of 35,000,000 shares of stock of all classes.  The authorized capital stock is divided into
30,000,000 shares of Common Stock, $0.01 par value per share (the “Common
Stock”), and 5,000,000 shares of Preferred Stock, $0.01 par value per share
(the “Preferred Stock”).  As of
the date of the Memorandum, there were 13,812,696 shares
of Common Stock issued and outstanding, and no shares of Preferred Stock issued
and outstanding.


 


3.                                       The Shares have been duly authorized or
reserved for issuance by all necessary corporate action on the part of the
Company; and the Shares, when issued and delivered against payment therefor in
accordance with the provisions of the Agreement, will be validly issued, fully
paid and non-assessable.  The Warrants
have been duly authorized by all necessary corporate action on the part of the
Company, and the Warrant Shares have been duly reserved for issuance and, when
issued and delivered against payment therefor upon the due exercise of the
Warrants in accordance with the provisions thereof, will be validly issued,
fully paid and non-assessable shares of Common Stock.


 


4.                                       The execution and delivery by the Company
of the Agreement, and the consummation by the Company of the transactions
contemplated thereby, have been duly authorized by all necessary corporate
action on the part of the Company.  The
Agreement constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnification and contribution thereunder may be limited by applicable law
and except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors’ rights generally or by general equitable principles.


 


5.                                       The execution and delivery by the Company
of the Agreement, and the consummation by the Company of the transactions
contemplated thereby, do not (a) violate the provisions of any federal law
of the United States of America or the General Corporation Law of the State of
Delaware applicable to the Company; (b) violate the provisions of the
Company’s Amended and Restated Certificate of Incorporation or Amended and
Restated By-laws; or


 





















 


(c) violate any existing obligation of the Company under any judgment,
decree, order or award of any court, governmental body or arbitrator
specifically naming the Company and of which we are aware.


 


6.                                       Assuming (a) the accuracy of the
representations made by each Purchaser in the Agreement; (b) that neither
the Company, the Placement Agent nor any person acting on behalf of either the
Company or the Placement Agent has offered or sold the Securities by any form
of general solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D promulgated (the “Regulation D”) under the Securities Act; (c) that
no offerings or sales of securities of the Company after the date hereof in a
transaction can be “integrated” with any sales of the Securities; and (d) that
each person or entity that purchased securities of the Company directly from
the Company or its agents and without registration between the date six months
prior to the Closing of the Offering and the date of the Agreement was, as of
the date of such purchase, an “accredited investor” as defined in Rule 501
of Regulation D, the sale of the Securities to the Purchasers at the Closing
under the circumstances contemplated by this Agreement are exempt from the
registration and prospectus delivery requirements of Section 5 of the
Securities Act.


 


7.                                       To our knowledge, without any inquiry
(including, without limitation, without any docket search or other inquiry),
there is no action, proceeding or litigation pending or threatened against the
Company before any court, governmental or administrative agency or body
required to be described in the Company’s Form 10-QSB for the quarter
ended December 31, 2004, Form 10-KSB for the fiscal year ended June 30,
2004, and the Definitive Proxy Statement dated November 5, 2004, which is
not otherwise disclosed therein.


 





















 


Exhibit B


 


Form of
Warrant


 





















 


Exhibit C


Senesco Technologies, Inc.


Confidential Purchaser
Questionnaire


 


Before any sale of securities in
the above-captioned Company can be made to you, this Questionnaire must be
completed and returned to OPPENHEIMER & CO. INC., Attn: Investment
Banking Dept., 125 Broad St., New York, NY 10004.


 


The purpose of this Questionnaire
is to substantiate that you meet the standards imposed by Section 4(2) of
the Securities Act of 1933, as amended (the “Securities Act”).


 


(1)                                  Name:


 


(2)                                  Principal Business Address:


 


 


Telephone: ( )


 


(3)                                  Home Address (for individual investors):


 


 


Telephone: ( )


 


(4)                                  Social Security Number or Tax ID Number:


 


(5)                                  Occupation (for individual investors):


 


(6)                                  Age (for individual investors):


 


(7)                                  The following information is required to
substantiate that you qualify as an “accredited investor” as defined in Rule 501
of Regulation D under the Securities Act. Please check which of the following
you are:


 


(a)                                  A bank as defined in Section 3(a)(2) of
the Securities Act, or any savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities Act whether acting in
its individual or fiduciary capacity; any broker or dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as amended; any
insurance company as defined in Section 2(13) of the Securities Act; any
investment company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of that act;
any Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; any plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefits of its employees if such plan has
total assets in


 





















 


excess of $5,000,000; any employee benefit plan within
the meaning of Title I of the Employee Retirement Income Security Act of 1974
if the investment decision is made by a plan fiduciary, as defined in Section 3(21)
of such act, which is either a bank, savings and loan association, insurance
company, or registered investment adviser, or if the employee benefit plan has
total assets in excess of $5,000,000, or, if a self-directed plan, with
investment decisions made solely by persons that are accredited investors;


 


	
   

  	
  Yes  o

  	
  No  o

  



 


(b)                                 A private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940;


 


	
   

  	
  Yes  o

  	
  No  o

  



 


(c)                                  An organization described in Section 501(c)(3) of
the Internal Revenue Code, corporation, Massachusetts or similar business trust
or partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;


 


	
   

  	
  Yes  o

  	
  No  o

  



 


(d)                                 A director or executive officer of the Company;


 


	
   

  	
  Yes  o

  	
  No  o

  



 


(e)                                  A natural person whose individual net worth, or
joint net worth with your spouse, at the time of your purchase exceeds
$1,000,000;


 


	
   

  	
  Yes  o

  	
  No  o

  



 


(f)                                    A natural person who had an individual income in
excess of $200,000 in each of the two most recent years or joint income with
your spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;


 


	
   

  	
  Yes  o

  	
  No  o

  



 


(g)                                 A trust, with total assets in excess of $5,000,000
not formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii);
or


 


	
   

  	
  Yes  o

  	
  No  o

  



 


(h)                                 Any entity in which all of the equity owners are
accredited investors.


 


	
   

  	
  Yes  o

  	
  No  o

  



 





















 


(8)                                              Investment, business, and educational
experience (for individual investors):


 


(a)                                  Educational background:


 


 


 


(b)                                 Principal employment positions held during
last five years:


 


 


 


(c)                                  Frequency of prior investment (check one
in each column):


 


	
   

  	
   

  	
  Stocks & Bonds

  	
   

  	
  Venture Capital

  Investments

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Frequently

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Occasionally

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Never

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(9)                                  Please list the name and address of your
(for individual investors):


 


(a)                                  Bank


 


 


 


(b)                                 Accountant


 


 


 


	
  I represent that the
  foregoing information is true and correct.

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
  , 2005

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Name of Investor -
  Please Print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Signature)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Name)

  	
  (Title)

  
					



 





















 


Exhibit D


 


Selling Stockholder Questionnaire


 


To:                              Senesco Technologies, Inc.

c/o Emilio Ragosa, Esq.

Morgan Lewis & Bockius LLP

502 Carnegie Center

Princeton, New Jersey 08540-6241


 


Reference is made to the
Securities Purchase Agreement (the “Agreement”), made between Senesco
Technologies, Inc., a Delaware corporation (the “Company”), and the
Purchasers noted therein.


 


Pursuant to Section B(12)
of the Agreement, the undersigned hereby furnishes to the Company the following
information for use by the Company in connection with the preparation of the
Registration Statement contemplated by Section E of the Agreement.


 


(1)                                 Name and Contact Information:


 


	
  Full legal name of record holder:

  	
   

  
	
   

  	
   

  
	
  Address of record holder:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Social Security Number or Taxpayer
 identification number of record
  holder:

  	
   

  
	
   

  	
   

  
	
  Identity of beneficial owner (if

  different than record holder):

  	
   

  
	
   

  	
   

  
	
  Name of contact person:

  	
   

  
	
   

  	
   

  
	
  Telephone number of contact person:

  	
   

  
	
   

  	
   

  
	
  Fax number of contact person:

  	
   

  
	
   

  	
   

  
	
  E-mail address of contact person:

  	
   

  



 


(2)                                 Beneficial Ownership of
Registrable Securities:


 


(a)          Number of Registrable Securities owned by Selling
Stockholder:


 


 





















 


(b)                                 Number of Registrable Securities requested
to be registered:


 


 


 


(3)                                 Beneficial Ownership of Other
Securities of the Company Owned by the Selling Stockholder:


 


Except as set forth below in this Item (3), the
undersigned is not the beneficial or registered owner of any securities of the
Company other than the Registrable Securities listed above in Item (2)(a).


 


Type and amount of other securities beneficially owned by
the Selling Stockholder:


 


 


 


(4)                                 Relationships with the
Company:


 


Except as set forth below, neither the undersigned nor
any of its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during the
past three years.


 


State any exceptions here:


 


 


 


(5)                                 Plan of Distribution:


 


Except as set forth below, the undersigned intends to
distribute pursuant to the Registration Statement the Registrable Securities
listed above in Item (2) in accordance with the “Plan of Distribution” section set
forth therein:


 


State any exceptions here:


 


 


 


(6)                                 Selling Stockholder
Affiliations:


 


(a)          Is the Selling Stockholder a registered
broker-dealer?


 


 





















 


(b)         Is the Selling Stockholder an affiliate of a
registered broker-dealer(s)?  (For
purposes of this response, an “affiliate” of, or person “affiliated” with, a
specified person, is a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified.)


 


 


(c)          If the answer to Item (6)(b) is yes, identify
the registered broker-dealer(s) and describe the nature of the affiliation(s):


 


 


(d)         If the answer to Item (6)(b) is yes, did the
Selling Stockholder acquire the Registrable Securities in the ordinary course
of business (if not, please explain)?


 


 


(e)          If the answer to Item (6)(b) is yes, did the
Selling Stockholder, at the time of purchase of the Registrable Securities,
have any agreements, plans or understandings, directly or indirectly, with any
person to distribute the Registrable Securities (if yes, please explain)?


 


 


(7)                                 Voting or Investment Control
over the Registrable Securities:


 


If the Selling Stockholder is not a natural person,
please identify the natural person or persons who have voting or investment
control over the Registrable Securities listed in Item (2) above:


 


 


Pursuant to Section E(3) of
the Agreement, the undersigned acknowledges that the Company may, by notice to
the Placement Agent and to each Purchaser at its last known address, suspend or
withdraw the Registration Statement and require that the undersigned
immediately cease sales of Registrable Securities pursuant to the Registration
Statement under certain circumstances described in the Agreement.  At any time that such notice has been given,
the undersigned may not sell Registrable Securities pursuant to the
Registration Statement.


 


The undersigned hereby
acknowledges receipt of the Registration Statement draft dated
            , 2005
and confirms that the undersigned has reviewed such draft including, without
limitation, the sections captioned “Selling Stockholders” and “Plan of
Distribution,” and confirms that, to the best of the undersigned’s knowledge,
the same is true, complete and accurate in every respect except as indicated in
this Questionnaire.  The undersigned
hereby further acknowledges that pursuant to Section B(12) of the
Agreement, the undersigned shall


 





















 


indemnify the Company and each of its directors and officers against, and
hold the Company and each of its directors and officers harmless from, any losses,
claims, damages, expenses or liabilities (including reasonable attorneys fees)
to which the Company or its directors and officers may become subject by reason
of any statement or omission in the Registration Statement made in reliance
upon, or in conformity with, a written statement by the undersigned, including
the information furnished in this Questionnaire by the undersigned.


 


By signing below, the undersigned consents to the
disclosure of the information contained herein in its answers to Items (1) through
(7) above and the inclusion of such information in the Registration
Statement, any amendments thereto and the related prospectus.  The undersigned understands that such
information will be relied upon by the Company in connection with the preparation
or amendment of the Registration Statement and the related prospectus.


 


The undersigned has
reviewed the answers to the above questions and affirms that the same are true,
complete and accurate.  THE UNDERSIGNED
AGREES TO NOTIFY THE COMPANY IMMEDIATELY OF ANY CHANGES IN THE FOREGOING
INFORMATION.


 


 


	
  Dated:

  	
   

  	
  , 2005

  	
   

  
	
   

  	
  Signature of Record Holder

  (Please sign your name in exactly the same

  manner as the certificate(s) for the shares being

  registered)

  



 





















 


Exhibit E


 


Plan of Distribution


 


The Selling Stockholders and any of their pledges, assignees, donees
selling shares received from such Selling Stockholders as a gift, and
successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. 
These sales may be at fixed or negotiated prices.  The Selling Stockholders may use any one or
more of the following methods when selling shares:


 


•                                          ordinary brokerage transactions and transactions
in which the broker-dealer solicits purchasers;


 


•                                          block trades in which the broker-dealer
will attempt to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;


 


•                                          purchases by a broker-dealer as principal
and resale by the broker-dealer for its account;


 


•                                          an exchange distribution in accordance
with the rules of the applicable exchange;


 


•                                          privately negotiated transactions;


 


•                                          broker-dealers may agree with the Selling
Stockholders to sell a specified number of such shares at a stipulated price
per share;


 


•                                          a combination of any such methods of sale;
and


 


•                                          any other method permitted pursuant to
applicable law.


 


The Selling Stockholders may also sell shares under Rule 144
under the Securities Act of 1933, as amended, if available, rather than under
this prospectus.


 


Broker-dealers engaged by the Selling Stockholders may
arrange for other broker-dealers to participate in sales.  Broker-dealers may receive commissions or
discounts from the Selling Stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be
negotiated.  The Selling Stockholders do
not expect these commissions and discounts to exceed what is customary in the
types of transactions involved.


 


The Selling Stockholders and any broker-dealers or agents
that are involved in selling the shares may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales.  In such event, any commissions received by
such broker-dealers or agents and any profit on the resale of the shares
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act.


 





















 


The Company is required to pay all fees and expenses incident
to the registration of the shares, including certain fees and disbursements of
counsel to the Selling Stockholders.  The
Company has agreed to indemnify the Selling Stockholders against certain
losses, claims, damages and liabilities, including liabilities under the
Securities Act.


 


To the extent required, the Company will amend or
supplement this prospectus to disclose material arrangements regarding the plan
of distribution.


 


To comply with the securities laws of certain
jurisdictions, registered or licensed brokers or dealers may need to offer or
sell the shares offered by this prospectus. 
The applicable rules and regulations under the Securities Exchange
Act of 1934, as amended, may limit any person engaged in a distribution of the
shares of common stock covered by this prospectus in its ability to engage in
market activities with respect to such shares. 
A selling stockholder, for example, will be subject to applicable
provisions of the Exchange Act and the rules and regulations under it,
which provisions may limit the timing of purchases and sales of any shares of
common stock by that selling stockholder.


 





















 


Senesco
Technologies, Inc.

Schedule of Accredited Investors


 


	
   

  	
   

  	
   

  	
   

  	
  Amount

  	
   

  	
  # Shares

  	
   

  	
  Warrants

  	
   

  
	
  1

  	
   

  	
  Hyme Akst

  	
   

  	
  50,000

  	
   

  	
  23,697

  	
   

  	
  11,849

  	
   

  
	
  2

  	
   

  	
  Stephen M.
  Bragin

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  3

  	
   

  	
  Yvonne Briggs

  	
   

  	
  10,550

  	
   

  	
  5,000

  	
   

  	
  2,500

  	
   

  
	
  4

  	
   

  	
  Robert Castille

  	
   

  	
  15,000

  	
   

  	
  7,109

  	
   

  	
  3,555

  	
   

  
	
  5

  	
   

  	
  Frank Kee Colen

  	
   

  	
  25,320

  	
   

  	
  12,000

  	
   

  	
  6,000

  	
   

  
	
  6

  	
   

  	
  Paul S. Dennis

  	
   

  	
  50,000

  	
   

  	
  23,697

  	
   

  	
  11,849

  	
   

  
	
  7

  	
   

  	
  Doris Dworkin

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  8

  	
   

  	
  Roger D. Elsas

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  9

  	
   

  	
  Lou Fidanza

  	
   

  	
  20,000

  	
   

  	
  9,479

  	
   

  	
  4,740

  	
   

  
	
  10

  	
   

  	
  Joel Friedman

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  11

  	
   

  	
  Morton E.
  Goulder Rev Trust

  	
   

  	
  50,000

  	
   

  	
  23,697

  	
   

  	
  11,849

  	
   

  
	
  12

  	
   

  	
  Richard Grobman

  	
   

  	
  10,550

  	
   

  	
  5,000

  	
   

  	
  2,500

  	
   

  
	
  13

  	
   

  	
  Hartzmark
  Investment, LLC

  	
   

  	
  100,000

  	
   

  	
  47,393

  	
   

  	
  23,697

  	
   

  
	
  14

  	
   

  	
  Alice Hechter
  Trust

  	
   

  	
  50,000

  	
   

  	
  23,697

  	
   

  	
  11,849

  	
   

  
	
  15

  	
   

  	
  Marian Heiser

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  16

  	
   

  	
  Jo-Bar
  Enterprises, LLC / Russell Stone

  	
   

  	
  50,000

  	
   

  	
  23,697

  	
   

  	
  11,849

  	
   

  
	
  17

  	
   

  	
  Marvin Kogod

  	
   

  	
  100,000

  	
   

  	
  47,393

  	
   

  	
  23,697

  	
   

  
	
  18

  	
   

  	
  Daryl E.
  Lowenthal

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  19

  	
   

  	
  Lisa Lowenthal
  Pruzan

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  20

  	
   

  	
  Robert E.
  Lowenthal

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  21

  	
   

  	
  Bennett Marks

  	
   

  	
  20,000

  	
   

  	
  9,479

  	
   

  	
  4,740

  	
   

  
	
  22

  	
   

  	
  Cherie Mintz

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  23

  	
   

  	
  Dr. Stephen
  Mintz

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  24

  	
   

  	
  Zubin R. Mory

  	
   

  	
  5,000

  	
   

  	
  2,370

  	
   

  	
  1,185

  	
   

  
	
  25

  	
   

  	
  Robert Neuhoff

  	
   

  	
  25,320

  	
   

  	
  12,000

  	
   

  	
  6,000

  	
   

  
	
  26

  	
   

  	
  Arlene Noble

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  27

  	
   

  	
  Robert and Susan
  Okin

  	
   

  	
  25,320

  	
   

  	
  12,000

  	
   

  	
  6,000

  	
   

  
	
  28

  	
   

  	
  Kenneth M
  Reichle, Jr.

  	
   

  	
  75,000

  	
   

  	
  35,545

  	
   

  	
  17,773

  	
   

  
	
  29

  	
   

  	
  Rafael Rojas

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  30

  	
   

  	
  Lawrence J.
  Rubinstein and Camille S. Rubinstein

  	
   

  	
  14,770

  	
   

  	
  7,000

  	
   

  	
  3,500

  	
   

  
	
  31

  	
   

  	
  Edward L. Ruch

  	
   

  	
  50,000

  	
   

  	
  23,697

  	
   

  	
  11,849

  	
   

  
	
  32

  	
   

  	
  Andrew E. Sandor

  	
   

  	
  15,000

  	
   

  	
  7,109

  	
   

  	
  3,555

  	
   

  
	
  33

  	
   

  	
  Victor J.
  Scaravilli

  	
   

  	
  50,000

  	
   

  	
  23,697

  	
   

  	
  11,849

  	
   

  
	
  34

  	
   

  	
  James A. Schoke
  Revocable Trust

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  35

  	
   

  	
  Mark Schwartz

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  36

  	
   

  	
  E. Donald
  Shapiro

  	
   

  	
  100,000

  	
   

  	
  47,393

  	
   

  	
  23,697

  	
   

  
	
  37

  	
   

  	
  Howard Synenberg

  	
   

  	
  50,000

  	
   

  	
  23,697

  	
   

  	
  11,849

  	
   

  
	
  38

  	
   

  	
  Lynn M. Taussig

  	
   

  	
  25,000

  	
   

  	
  11,848

  	
   

  	
  5,924

  	
   

  
	
  39

  	
   

  	
  Oscar Zimmerman

  	
   

  	
  35,000

  	
   

  	
  16,588

  	
   

  	
  8,294

  	
   

  
	
  40

  	
   

  	
  Capital Ventures
  International

  	
   

  	
  500,000

  	
   

  	
  236,967

  	
   

  	
  118,484

  	
   

  
	
  41

  	
   

  	
  Castle Creek Healthcare
  Partners LLC

  	
   

  	
  250,000

  	
   

  	
  118,483

  	
   

  	
  59,242

  	
   

  
	
  42

  	
   

  	
  Iroquos Master
  Fund Ltd.

  	
   

  	
  600,000

  	
   

  	
  284,360

  	
   

  	
  142,180

  	
   

  
	
  43

  	
   

  	
  Nite Capital, LP

  	
   

  	
  250,000

  	
   

  	
  118,483

  	
   

  	
  59,242

  	
   

  
	
  44

  	
   

  	
  Omicron Master
  Trust

  	
   

  	
  399,999

  	
   

  	
  189,573

  	
   

  	
  94,787

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  3,371,829

  	
   

  	
  1,598,020

  	
   

  	
  799,020

  	
   

  



 


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