NO SALE OR TRANSFER OF THIS WARRANT OR THE SECURITIES UNDERLYING THIS
WARRANT MAY BE MADE UNTIL THE EFFECTIVENESS OF A REGISTRATION STATEMENT OR
OF A POST-EFFECTIVE AMENDMENT THERETO UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), COVERING THIS WARRANT OR THE SECURITIES UNDERLYING
THIS WARRANT, OR UNTIL THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE
EFFECT THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT. TRANSFER OF THIS WARRANT IS RESTRICTED UNDER
PARAGRAPH 2 BELOW.
WARRANT TO PURCHASE
COMMON STOCK
SENESCO TECHNOLOGIES, INC.
(a Delaware corporation)
Dated: March 30, 2000
THIS CERTIFIES THAT, for value received, Fahnestock & Co. Inc.
("Fahnestock") or its registered assigns (Fahnestock and any such registered
assign, a "Holder") is the owner of this warrant (this "Warrant") to purchase
from Senesco Technologies, Inc., a Delaware corporation (the "Company"), during
the Exercise Period (as defined below) and at the exercise price of $1.50 per
share, as adjusted from time to time as provided in paragraph 5 of this Warrant
(the "Warrant Price"), 100,000 shares of the Company's common stock, par value
$0.01 per share (the "Common Stock").
<PAGE>
1. EXERCISE OF THE WARRANT.
(a) The rights represented by this Warrant shall be exercisable at
the Warrant Price and during the period from the date hereof through the fifth
anniversary of the date hereof, ("the Exercise Period") upon the terms and
subject to the conditions as set forth herein.
(b) The rights represented by this Warrant may be exercised at any
time within the Exercise Period, in whole or in part (but not as to a fractional
share of Common Stock), by (i) the surrender of this Warrant (with a purchase
form properly executed in the form attached as Exhibit A the ("Purchase Form"))
at the principal executive office of the Company or such other office or agency
of the Company as it may designate by notice in writing to the Holder at the
address of the Holder appearing on the books of the Company (a "Designated
Office"); and (ii) payment to the Company of the Warrant Price then in effect
for the number of shares of Common Stock specified in the above-mentioned
purchase form together with applicable stock transfer taxes, if any, and in the
manner specified in such purchase form, which payment shall be (A) in cash or by
bank check for all shares of Common Stock purchased upon such exercise, or (B)
through a "cashless" or "net-issue" exercise ("Cashless Exercise"); the Holder
shall exchange this Warrant subject to a Cashless Exercise for that number of
shares of Common Stock determined by multiplying the number of such shares as to
which this Warrant is then exercised by a fraction, the numerator of which shall
be the difference between (x) the Market Price (as defined in Paragraph 1(d)
hereof) and (y) the Warrant Price (as defined in on the face of this Warrant)
and the denominator of which shall be the Market Price; such purchase form shall
set forth the calculation upon which the Cashless Exercise is based, or (C) a
combination of (A) and (B) above; and (iii) delivery to the Company of a duly
executed agreement signed by the person(s) designated in the purchase form to
the effect that such
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<PAGE>
person(s) agree(s) to be bound by the provisions of the Registration Rights
Agreement referred to in Paragraph 2(a) hereof applicable to the Holder of this
Warrant. If such person is not the Holder exercising this Warrant, the transfer
to such person shall comply with paragraph 2 hereof. This Warrant shall be
deemed to have been exercised, in whole or in part to the extent specified,
immediately prior to the close of business on the date this Warrant (with a
properly executed Purchase Form) is surrendered and payment is made in
accordance with the foregoing provisions of this Paragraph 1, and the person or
persons in whose name or names the certificates for the Common Stock shall be
issuable upon such exercise shall become the Holder or Holders of record of such
Common Stock at that time and date. The Common Stock so purchased shall be
delivered to the Holder within a reasonable time, not exceeding ten business
days, after the rights represented by this Warrant shall have been so exercised.
(c) If this Warrant is exercised in part, the Company shall promptly
execute and return to the exercising Holder a Warrant registered in the name of
such Holder evidencing the right to purchase the number of shares of Common
Stock as to which this Warrant shall not have been exercised and otherwise with
the same terms as the surrendered Warrant.
(d) For the sole purpose of determining the number of shares issued
upon a Cashless Exercise, Market Price means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including the National
Association of Securities Dealers, Inc. ("NASD") Automated Quotation
System ("Nasdaq") National Market, or Nasdaq SmallCap market, or
NASD OTC Bulletin Board, its Market Price shall be the closing sales
price for such stock on the last trading day prior to the Company's
receipt of the Warrant and Purchase Form
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<PAGE>
(the "Market Closing Date"), or if no closing sales price is
reported, it shall be the average of the highest reported bid and
lowest reported ask price, as reported or quoted on such exchange or
such system on the Market Closing Date; or
(ii) In the absence of an established market, or if the Common
Stock is not listed on any exchange or quotation system, the Market
Price shall be the highest price per share which the Company could
obtain from a willing buyer (not a current employee or director)
for shares of Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by its Board of
Directors (and promptly upon any request therefore by the Holder).
2. RESTRICTIONS ON TRANSFER.
(a) By receipt of this Warrant, by its execution and by its exercise
in whole or in part, Holder represents to the Company the following:
(i) Holder understands that this Warrant and any shares
of Common Stock purchased upon its exercise (collectively, the
"Securities") are securities, the issuance of which requires
compliance with federal and state securities laws, including the
Act.
(ii) Holder is aware of the Company's business affairs
and financial condition and has acquired sufficient information
about the Company to reach an informed and knowledgeable decision to
acquire the Securities. Holder is acquiring these securities for
investment only for Holder's own account and for possible transfers
to employees of Fahnestock consistent with Section 2(a)(iii) below
and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Act.
(iii) Holder acknowledges and understands that the
securities constitute "restricted securities" under the Act and must
be held indefinitely unless they are
4
<PAGE>
subsequently registered under the Act (the Company and Fahnestock
having entered into a Registration Rights Agreement of even date
herewith with respect to the rights of the Holder to have the
underlying Common Stock registered for resale in certain events) or
an exemption from such registration is available. Holder understands
that this Warrant is, and the certificate evidencing the shares of
Common Stock issued upon exercise of this Warrant will be, imprinted
with a legend which prohibits the transfer of the applicable
Securities unless they are registered or such registration is not
required in the opinion of counsel satisfactory to the Company and
may bear any other legend required under applicable state securities
laws.
(iv) Holder is familiar with the provisions of Rule 144,
promulgated under the Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof, in a non-public offering
subject to the satisfaction of certain conditions. Rule 144
requires, among other things: (1) the availability of certain public
information about the Company; (2) the resale occurring not earlier
than the time period prescribed by Rule 144 after the party has
purchased, and made full payment for, within the meaning of Rule
144, the securities to be sold; and (3) in the case of an affiliate,
or of a non-affiliate who has held the securities less than the time
period prescribed by Rule 144, the sale being made through a broker
in an unsolicited "broker's transaction" or in transactions directly
with a market maker (as said term is defined under the Securities
Exchange Act of 1934, as amended) and the amount of securities being
sold during any three month period not exceeding the specified
limitations stated therein, if applicable.
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<PAGE>
(b) A transfer of this Warrant in compliance with the foregoing may be
made by presenting this Warrant accompanied by a Transfer Form in the form of
Exhibit B hereto, properly executed, at the principal executive office of the
Company or other Designated Office, in exchange for which the Company will
promptly issue a Warrant registered in the name of the transferee with the same
terms as the presented Warrant.
3. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees that all Common Stock issuable
upon the exercise of this Warrant will, upon issuance thereof and payment
therefor in accordance with the terms hereof, be duly and validly issued, fully
paid and nonassessable and no personal liability will attach to the Holder
thereof by reason of being such a Holder, other than as set forth herein.
(b) The Company covenants and agrees that during the period within
which this Warrant may be exercised, the Company will at all times have
authorized and reserved a sufficient number of shares of Common Stock to provide
for the exercise of this Warrant.
4. NO RIGHTS AS STOCKHOLDER. This Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the Company, either at law or
in equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
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<PAGE>
5. ADJUSTMENTS OF WARRANT PRICE AND NUMBER OF SHARES OF COMMON STOCK.
(a) Subdivision and Combination. In case the Company shall at any
time after the date hereof subdivide or combine the outstanding shares of Common
Stock, the Warrant Price shall forthwith be proportionately decreased in the
case of subdivision or increased in the case of combination.
(b) Adjustment in Number of Shares. Upon each adjustment of the
Warrant Price pursuant to the provisions of this Paragraph 5, the number of
shares of Common Stock issuable upon the exercise of the Warrant shall be
adjusted to the nearest full whole number by multiplying a number equal to the
Warrant Price in effect immediately prior to such adjustment by the number of
shares of Common Stock issuable upon exercise of the Warrant immediately prior
to such adjustment and dividing the product so obtained by the adjusted Warrant
Price.
(c) Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or in the case of any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger which does not result in any reclassification or
change of the outstanding shares of Common Stock, except a change as a result of
a subdivision or combination of such shares or a change in par value, as
aforesaid), or in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the Holder shall thereafter have the
right to purchase the kind and number of shares of stock and other securities
and property receivable upon such reclassification, change, consolidation,
merger, sale or conveyance as if the Holder were the owner of the shares of
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<PAGE>
Common Stock underlying the Warrant immediately prior to any such events at a
price equal to the product of (x) the number of shares issuable upon exercise of
the Warrant and (y) the Warrant Price in effect immediately prior to the record
date for such reclassification, change, consolidation, merger, sale or
conveyance as if such Holder had exercised the Warrant.
(d) Redemption of Warrant. Notwithstanding anything to the contrary
contained in this Agreement or elsewhere, the Warrant cannot be redeemed by the
Company under any circumstances.
(e) Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time after the date
hereof and prior to the exercise and expiration of the Warrant declare a
dividend (other than a dividend consisting solely of shares of Common Stock or a
cash dividend or distribution payable out of current or retained earnings) or
otherwise distribute to the Holders of Common Stock any monies, assets,
property, rights, evidences of indebtedness, securities (other than such a cash
dividend or distribution or dividend consisting solely of shares of Common
Stock), whether issued by the Company or by another person or entity, or any
other thing of value, the Holders of the unexercised Warrant shall thereafter be
entitled, in addition to the shares of Common Stock or other securities
receivable upon the exercise thereof, to receive, upon the exercise of such
Warrant, the same monies, property, assets, rights, evidences of indebtedness,
securities or any other thing of value that they would have been entitled to
receive at the time of such dividend or distribution as if the Holders were the
owners of the shares of Common Stock underlying the Warrant. At the time of and
as a condition precedent to any such dividend or distribution, the Company shall
make appropriate reserves to ensure the timely performance of the provisions of
this Paragraph 5(e).
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<PAGE>
(f) Subscription Rights for Shares of Common Stock or Other
Securities. In case the Company or an affiliate of the Company shall at any time
after the date hereof and prior to the exercise of the Warrant in full issue any
rights to subscribe for shares of Common Stock or any other securities of the
Company or of such affiliate to all the holders of Common Stock, the Holders of
the unexercised Warrant shall be entitled, in addition to the shares of Common
Stock or other securities receivable upon the exercise of the Warrant, to
receive such rights at the time such rights are distributed to the other
stockholders of the Company but only to the extent of the number of shares of
Common Stock, if any, for which the Warrant remains exercisable.
(g) Certain Notice Requirements. (i) If at any time prior to the
expiration of this Warrant and its exercise, any of the events described in this
Paragraph 5 shall occur, then, in each of said events, the Company shall give
written notice of such event at least ten (10) days prior to the date fixed as a
record date or the date of closing the transfer books for the determination of
the stockholders entitled to such dividend, distribution, conversion or exchange
of securities or subscription rights, or entitled to vote on such proposed
dissolution, liquidation, winding up or sale. Such notice shall specify such
record date or the date of the closing of the transfer books, as the case may
be.
(ii) The Company shall be required to give the notice
described in this Paragraph 5 upon one or more of the following
events:
(A) if the Company shall declare a record
date to identify the holders of its shares of Common
Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash,
or a cash dividend or distribution payable otherwise
than out of retained earnings, as
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<PAGE>
indicated by the accounting treatment of such dividend
or distribution on the books of the Company; or
(B) the Company shall offer to all the
holders of its Common Stock any additional shares of
capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe
therefor; or
(C) a dissolution, liquidation or winding up
of the Company (other than in connection with a
consolidation or merger) or a sale of all or
substantially all of its property, assets and business
shall be proposed; or
(D) a merger or consolidation referred to in
this Paragraph 5.
(iii) The Company shall, promptly after the Board of
Directors has determined that an event requiring a change in the
Warrant Price has occurred, send notice to the Holder of such event
and change. Such notice shall describe the event causing the change
and the method of calculating same and shall be certified as being
true and accurate by the Company's Chief Executive Officer and Chief
Financial Officer.
(h) Computations. The Company may retain a firm of independent
public accountants (who may be any such firm regularly employed by the Company)
to make any computation required under this Paragraph 5, and any certificate
setting forth such computation signed by such firm shall be conclusive evidence
of the correctness of any computation made under this Paragraph 5.
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<PAGE>
6. FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of shares
of Common Stock or fractional Warrants on the exercise of this Warrant;
provided, however, that if the Holder exercises this Warrant, any fractional
shares of Common Stock shall be eliminated by rounding any fraction up to the
nearest whole number of shares of Common Stock.
(b) The Holder of this Warrant, by acceptance hereof, expressly
waives his right to receive any fractional share of Common Stock or fractional
Warrant upon exercise of this Warrant.
7. MISCELLANEOUS.
(a) This Warrant shall be governed by and in accordance with the
laws of the State of New York without regard to the conflicts of law principles
thereof.
(b) All notices, requests, consents and other communications
hereunder shall be made in writing and shall be deemed to have been duly made
when delivered, or mailed by registered or certified mail, return receipt
requested: (i) if to a Holder, to the address of such Holder as shown on the
books of the Company, or (ii) if to the Company as follows:
Senesco Technologies, Inc.
34 Chambers Street
Princeton, NJ 08542
Attn: Steven Katz, President
Tel. No.: (609) 252-0680
Fax. No. (609) 252-0049
with a copy to:
Buchanan Ingersoll
650 College Road East
4th Floor
Princeton, NJ 08540
Attn: Emilio Ragosa, Esq.
Tel. No.: (609) 987-6800
Fax. No. (609) 520-0360
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<PAGE>
or such other address as the Company may notify to the Holder of this Warrant at
this time.
(c) All the covenants and provisions of this Warrant by or for the
benefit of the Company and the Holders shall bind and inure to the benefit of
their respective successors and assigns hereunder.
(d) Nothing in this Warrant shall be construed to give to any person
or corporation other than the Company and any registered Holder or Holders, any
legal or equitable right, and this Warrant shall be for the sole and exclusive
benefit of the Company and any Holder or Holders.
* * * * * * *
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer and to be dated as of March 30, 2000.
SENESCO TECHNOLOGIES, INC.
By: /s/ Steven Katz
-----------------------------------------
Name: Steven Katz
Title: President and Chief Operating Officer
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<PAGE>
EXHIBIT A
PURCHASE FORM
-------------
(To be signed only upon exercise of the Warrant)
The undersigned, the Holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, shares of Common Stock of Senesco
Technologies, Inc. and herewith makes payment of $ therefor and/or in
the form of Cashless Exercise as to such shares and requests that the
certificates for Common Stock be issued in the name(s) of, and delivered to
whose addresses is (are)
and whose social security or taxpayer
identification number(s) is (are) .
Dated:
-------------------------
-----------------------------------------
(Name of Holder)
-----------------------------------------
Address
-----------------------------------------
Telephone
----------
Signature must conform in all respects to name of registered Holder.
<PAGE>
EXHIBIT B
TRANSFER FORM
-------------
(To be signed only upon transfer of the Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto the right to purchase shares of Common
Stock of Senesco Technologies, Inc. represented by the foregoing Warrant to the
extent of shares of Common Stock, and appoints
, attorney to transfer such rights on the books of
Senesco Technologies, Inc., with full power of substitution in the premises.
Dated:
-------------------------
-----------------------------------------
(Name of Holder)
-----------------------------------------
Address
-----------------------------------------
Telephone
In the presence of:
-----------------------------------------
-----------------------------------------
