EXHIBIT 10.2


 


PLACEMENT AGENT
AGREEMENT


 





















 


	
  

  	
  Oppenheimer &
  Co. Inc.

  125 Broad Street

  New York, NY  10014

  800-221-5588

  
	
   

  	
   

  
	
   

  	
  Member
  of All Principal Exchanges

  



 


Placement Agent Agreement


 


February 15, 2005


 


Oppenheimer &
Co. Inc.


125 Broad Street


New York, NY 10004


 


Dear Sirs:


 


The undersigned, Senesco Technologies, Inc., a Delaware
corporation (the “Company”), hereby agrees (the “Agreement”) with Oppenheimer &
Co. Inc. (“Oppenheimer” or “Placement Agent”) as follows:


 


1.  Best Efforts Offering.  The Company hereby engages Oppenheimer to act
as its exclusive agent during the term of the offering as outlined herein to
sell shares of Common Stock and Warrants (the “Securities”), on a “best
efforts” basis (the “Offering”). Oppenheimer intends to market the Offering on
the terms as set forth in the Term Sheet attached hereto as Exhibit A.  The Securities shall be offered without
registration under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the “Act”) pursuant to the exemption from
registration created by Regulation D thereof.


 


2.
 Offering Documentation.  The Company shall, as
soon as practicable, prepare offering documentation (the “Offering
Documentation”), which shall meet the anti-fraud and other requirements of the
federal and state securities laws,
be in form and substance reasonably satisfactory to the parties and include the
Company’s public documents, an executive summary (including offering terms),
investment highlights, risk factors and appropriate updated information.


 


3.  Compensation.  Oppenheimer will be paid at closing of the
Offering a cash commission of 7.0% of the aggregate amount of the proceeds
received at closing for the Securities sold. 
In addition, Oppenheimer shall receive five year non-callable warrants
to purchase such number of shares of the Company’s Common Stock equal to 7.0%
of the number of Securities sold hereunder, exercisable at 120% of the Market
Price (as defined in the Term Sheet) at closing of the Offering.


 


Notwithstanding
anything to the contrary herein, if, during the term of the Offering hereunder,
the Placement Agent contacts an investor who closes on a purchase within twelve
months after the close or termination of the Offering any securities of the
Company in a private transaction, Oppenheimer shall be entitled to the
compensation as outlined in this Paragraph 3.  
At closing, Oppenheimer will provide to the Company a list of investors
contacted for the purpose of investing in the Offering.


 


4.  Expenses. Whether or not the Offering
is successfully completed, it shall be the Company’s obligation to bear all of
its expenses in connection with the proposed Offering.  In addition, the Company shall reimburse
Oppenheimer for its reasonable actual out of pocket expenses, including
reasonable legal fees and disbursements up to a maximum aggregate amount of
$35,000, of which $15,000 is payable to Oppenheimer upon execution of this
agreement.  At the closing or termination
of the Offering, Oppenheimer will provide the Company with a detailed statement
of expenses incurred in connection with the proposed Offering along with
documentation for all individual expenses in excess of $500 and a detailed
billing statement for legal fees and disbursements, at which time the Company
will reimburse Oppenheimer for the difference between actual expenses incurred,
not to exceed $35,000, and the $15,000 previously paid to Oppenheimer.  In the event that expenses are less than
$15,000,


 





















 


Oppenheimer shall
reimburse the Company for the difference between actual expenses incurred and
the $15,000 previously paid to Oppenheimer.  



 


5.  Further Representations and Agreements of
the Company.  The Company further
represents and agrees that (i) it is authorized to enter into this
Agreement and to carry out the Offering contemplated hereunder and this
Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, (ii) the Company shall not issue
any additional shares (other than shares pursuant to the exercise of warrants),
options (other than pursuant to its existing stock option plan or successor
plan covering no more securities than the existing plan) or warrants during the
term of the Offering, (iii) the Company will, during the course of the
Offering, provide Oppenheimer with all information and copies of documentation
with respect to the Company’s business, financial condition and other matters
as Oppenheimer may reasonably deem relevant, including copies of all documents
sent to stockholders or filed with any federal authorities, and will make
reasonably available to Oppenheimer, its auditors, counsel, and officers and
directors to discuss with Oppenheimer any aspect of the Company or its business
which Oppenheimer may reasonably deem relevant, (iv)  all executive
officers and directors shall enter into a lock up agreement with Oppenheimer,
in the form reasonable acceptable to all parties, in which they will agree not
to sell any shares held by them under Rule 144 or otherwise for a period
from the date hereof until the later of (y) six (6) months from the
closing hereunder or (z) 90 days following the effective date of a Registration
Statement (as defined below) in which the Securities are included, (v) the
Company agrees that for a period of 90 days after the effectiveness of the
Registration Statement, it shall not issue or sell any equity linked securities
of the Company, unless the issuance or sale is related to a strategic
transaction or an employee, consultant, supplier, lender, lessor or option grant
or issuance (vi) the Company shall use its best efforts to file with the
SEC an S-3 registration statement (the “Registration Statement”) for the
Securities within 30 days of the Closing Date (defined as the date the Offering
is priced and agreed to by investors) and the Company shall use its
commercially reasonable efforts to cause such Registration Statement to be
declared effective within 90 days of the Closing Date; if the Company does not
file the Registration Statement within 30 days of the Closing Date or respond
in writing to comments received from the Securities and Exchange Commission
(the “SEC”) within 10 business days following receipt thereof, the Company
shall pay the investors a cash penalty on a monthly basis of 1.5% for as long
as the Registration Statement is not filed or comments from the SEC are not
responded to in writing within 10 business days, and (vii) the Company
will deliver at each closing of the Offering (a) a certificate of each of
the Company’s CEO and CFO to the effect that the Offering Documentation meets
the requirements hereof and does not contain any untrue statement of material
fact or fail to state any material fact required to be stated therein or
necessary to make the statements therein not misleading  and all necessary corporate approvals have
been obtained to enable the Company to deliver the Securities in accordance
with the terms of the Offering and (b) an opinion of counsel for the
Company in customary form.


 


6.  Indemnification. – See Exhibit B
attached hereto.


 


 


7.  No-Shop
Provision.  Until the Offering
contemplated hereby is closed or terminated, the Company agrees that it will
not negotiate with any other person relating to a possible public or private
offering or placement of the Company’s securities.  In addition, if during the Offering period
the Company engages in discussions to be acquired, merge, sell all or
substantially all of its assets or otherwise effect a corporate reorganization
with any other entity and as a result the Offering is terminated, Oppenheimer
shall be engaged as the Company’s financial advisor on terms that are
reasonable and customary for the size and nature of such a transaction.


 


8.  Termination.  The Company shall have the right to terminate
the Offering in the event it is not completed within 30 days from the date of
the Offering Documentation.  The Company
and Oppenheimer may terminate or extend the Agreement at any time by mutual
written consent.


 





















 


9.  Competing Claims. The Company
acknowledges and agrees that no entity has any claims or is entitled to any
payments for services in the nature of a finder’s fee or any other
arrangements, agreements, payments or understandings pursuant to this Offering.


 


10. Miscellaneous.


 


(a) 
Governing Law.  This Agreement and
the transactions contemplated hereby shall be governed in all respects by the
laws of the State of New York, without giving effect to its conflict of laws
principles.


 


(b) 
Counterparts.  This Agreement may
be executed in any number of counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.


 


(c) 
Notices.  Whenever notice is
required to be given pursuant to this Agreement, such notice shall be in
writing and shall either be (i) mailed by certified first class mail,
postage prepaid, addressed (a) if to Oppenheimer, at the address set forth
at the head of this Agreement, Attention: Kee Colen, Senior Vice President; and
(b) if to the Company, at Senesco Technologies, Inc., Attention: Bruce C. Galton, President and CEO; or
(ii) delivered personally or by express courier.  The notice shall be deemed given, if sent by
mail, on the third day after deposit in a United States post office receptacle,
or if delivered personally or by express courier, then upon receipt.


 


(d) 
Dispute.  In the event of any
action at law, suit in equity or arbitration proceeding in relation to this
Agreement or the transactions contemplated by this Agreement, the prevailing
party, or parties, shall be paid its reasonable attorney’s fees and expenses
arising from such action, suit or proceeding by the other party.


 





















 


If the
foregoing correctly sets forth the understanding between Oppenheimer and the
Company, please so indicate in the space provided below for that purpose
whereupon this letter shall constitute a binding agreement between us.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  Senesco
  Technologies, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce C.
  Galton

  	
   

  
	
   

  	
   

  	
  Bruce C. Galton

  
	
   

  	
   

  	
  President and
  CEO

  
	
   

  	
   

  
	
  Confirmed and
  agreed to:

  	
   

  
	
   

  	
   

  
	
  Oppenheimer &
  Co. Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Kee Colen

  	
   

  	
   

  
	
   

  	
  Kee Colen

  	
   

  
	
   

  	
  Senior Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  March 3, 2005