Exhibit 10.47
REGISTRATION RIGHTS
AGREEMENT
THIS REGISTRATION RIGHTS
AGREEMENT (this “ Agreement ”), dated
as of August 29, 2007, by and among SENESCO TECHNOLOGIES,
INC., a Delaware corporation (the “ Company
”), and the undersigned Buyers listed on Schedule I attached
hereto (each, a “ Buyer ” and collectively,
the “ Buyers ”).
WHEREAS:
A.
In connection with the Securities Purchase Agreement by and among
the parties hereto of even date herewith (the “
Securities Purchase Agreement ”), the Company has
agreed, upon the terms and subject to the conditions of the
Securities Purchase Agreement, to issue and sell to the Buyers (i)
secured convertible debentures (the “ Convertible
Debentures ”) which shall be convertible into shares of
the Company’s common stock, par value $0.01 per share (the
“ Common Stock ,” as converted, the “
Conversion Shares ”) in accordance with the terms of
the Convertible Debentures, and (ii) warrants (the “
Warrants ”), which will be exercisable to purchase
shares of Common Stock (as exercised, collectively, the “
Warrant Shares ”). Capitalized terms not defined
herein shall have the meaning ascribed to them in the Securities
Purchase Agreement.
B.
To induce the Buyers to execute and deliver the Securities Purchase
Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor
statute (collectively, the “ Securities Act
”), and applicable state securities laws.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the
Buyers hereby agree as follows:
1.
DEFINITIONS .
As used in this
Agreement, the following terms shall have the following
meanings:
(a)
“ Effectiveness Deadline ” means, with respect
to the initial Registration Statement required to be filed
hereunder, the 120th calendar day following the Filing Deadline,
provided , however, in the event the Company is notified by
the U.S. Securities and Exchange Commission (“ SEC
”) that one of the above Registration Statements will not be
reviewed or is no longer subject to further review and comments,
the Effectiveness Date as to such Registration Statement shall be
the fifth Trading Day following the date on which the Company is so
notified if such date precedes the dates required above.
(b)
“ Filing Deadline ” means, with respect to the
initial Registration Statement required hereunder, the 30th
calendar day following the earlier of: (i) the date that all of the
Conversion Shares, Warrant Shares and Interest Shares issued by the
Company to YA Global Investments, L.P. (the “ YA Global
Shares ”) have been registered; (ii) the date that all of
the YA Global Shares have been sold in the public market; or (iii)
the date provided by the SEC pursuant to Rule 415 to register the
Conversion Shares, Warrant Shares and Interest Shares issued to
the
Buyer(s) hereunder or the date on which the SEC
otherwise takes the position that such registration is
appropriate.
(c)
“ Person ” means a corporation, a limited
liability company, an association, a partnership, an organization,
a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
(d)
“ Prospectus ” means the prospectus included in
a 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 a 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.
(e)
“ Registrable Securities ” means all of (i) the
Conversion Shares issuable upon conversion of the Convertible
Debentures, (ii) the Warrant Shares issued or issuable upon
exercise of the Warrants, (iii) any shares of Common Stock to be
issued with any interest accrued upon the Convertible Debenture,
(iv) any additional shares issuable in connection with any
anti-dilution provisions in the Warrants or the Convertible
Debentures (without giving effect to any limitations on exercise
set forth in the Warrants or Convertible Debentures) and (v) any
shares of Common Stock issued or issuable with respect to the
Conversion Shares, the Convertible Debentures, the Warrant Shares,
or the Warrants as a result of any stock split, dividend or other
distribution, recapitalization or similar event or otherwise,
without regard to any limitations on the conversion of the
Convertible Debentures or exercise of the Warrants; provided
, however, Registrable Securities shall not include any shares
which may be sold without volume restrictions pursuant to Rule
144(k), as determined by the counsel to the Company pursuant to a
written opinion letter to such effect..
(f)
“ Registration Statement ” means the
registration statements required to be filed hereunder and any
additional registration statements contemplated by Section 3(c),
including (in each case) 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.
(g)
“ Required Registration Amount ” means (i) with
respect to the initial Registration Statement 7,000,000 shares of
Common Stock issued or to be issued pursuant to the Convertible
Debentures and Warrants, including Interest Shares (as defined in
the Convertible Debenture), or such lesser amount as required by
the SEC pursuant to Rule 415, and (ii) with respect to
subsequent Registration Statements all remaining Registrable
Securities to be filed, in each case subject to any cutback set
forth in Section 3(c). In the event there are cutbacks as
provided for in Section 3(c), preference shall be given in the
following priority: (x) first, to the Common Stock to be issued
upon conversion of the Convertible Debentures, (y) second to shares
of Common Stock to be issued with any interest accrued upon the
Convertible Debentures and (z) finally shares of Common Stock
issued or to be issued upon exercise of the Warrants.
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(h)
“ Rule 415 ” means Rule 415 promulgated by the
SEC pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same purpose and
effect as such Rule.
2.
REGISTRATION .
(a)
Filing and Effectiveness of the Registration Statement.
On or prior to each Filing Deadline, the Company shall
prepare and file with the SEC a Registration Statement on Form S-1
or SB-2 (or, if the Company is then eligible, on Form S-3) covering
the resale of all of the Registrable Securities. The
Registration Statement prepared pursuant hereto shall register for
resale at least the number of shares of Common Stock equal to the
Required Registration Amount as of date the Registration Statement
is initially filed with the SEC. The Registration Statement
shall contain the “ Selling Stockholders ” and
“ Plan of Distribution ” sections in
substantially the form attached hereto as Exhibit A and
contain all the required disclosures set forth on Exhibit B
. The Company shall use its best efforts to have the
Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than the Effectiveness
Deadline. By 9:30 am on the date following the date of
effectiveness, the Company shall file with the SEC in accordance
with Rule 424 under the 1933 Act the final Prospectus to be used in
connection with sales pursuant to such Registration
Statement. The Company shall cause the Registration Statement
to remain effective until all of the Registrable Securities have
been sold or may be sold without volume restrictions pursuant to
Rule 144(k), as determined by the counsel to the Company pursuant
to a written opinion letter to such effect, addressed and
acceptable to the Company’s transfer agent and the affected
Buyers (“ Registration Period ”). Prior to
the filing of the Registration Statement with the SEC, the Company
shall furnish a draft of the Registration Statement to the Buyers
for their review and comment. The Buyers shall furnish
comments on the Registration Statement to the Company within
twenty-four (24) hours of the receipt thereof from the
Company.
(b)
Failure to File or Obtain Effectiveness of the Registration
Statement . If: (i) a Registration
Statement is not filed on or prior to its Filing Date (if the
Company files a Registration Statement without affording the Buyers
the opportunity to review and comment on the same as required by
Section 3(a), the Company shall not be deemed to have satisfied
this clause (i)), or (ii) the Company fails to file with the SEC a
request for acceleration in accordance with Rule 461 promulgated
under the Securities Act, within five Trading Days of the date that
the Company is notified (orally or in writing, whichever is
earlier) by the SEC that a Registration Statement will not be
“reviewed,” or not subject to further review, or (iii)
a Registration Statement filed or required to be filed hereunder is
not declared effective by the SEC by its Effectiveness Deadline, or
(iv) after the effectiveness, a Registration Statement ceases for
any reason to remain continuously effective as to all Registrable
Securities for which it is required to be effective, or the Buyers
are otherwise not permitted to utilize the Prospectus therein to
resell such Registrable Securities for more than 30 consecutive
calendar days or more than an aggregate of 40 calendar days during
any 12-month period (which need not be consecutive calendar days)
(any such failure or breach being referred to as an “
Event ”), then in addition to any other rights the
holders of the Convertible Debentures may have hereunder or under
applicable law, on each such Event date and on each monthly
anniversary of each such Event date (if the applicable Event shall
not have been cured by such date) until the applicable Event is
cured, the Company shall pay to each holder of Convertible
Debentures an amount in cash, as
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partial liquidated damages (“
Liquidated Damages ”) and not as a penalty, equal to
1.0% of the aggregate purchase price paid by such holder pursuant
to the Securities Purchase Agreement for any Convertible Debentures
then held by such holder. The parties agree that (1) the
Company shall not be liable for Liquidated Damages under this
Agreement with respect to any Warrants or Warrant Shares and (2)
the maximum aggregate Liquidated Damages payable to a holder of
Convertible Debentures under this Agreement shall be twelve percent
(12%) of the aggregate Purchase Price paid by such holder pursuant
to the Securities Purchase Agreement. The partial Liquidated
Damages pursuant to the terms hereof shall apply on a daily
pro-rata basis for any portion of a month prior to the cure of an
Event.
(c)
Liquidated Damages . The Company and the Buyer hereto
acknowledge and agree that the sums payable under subsection 2(b)
above shall constitute liquidated damages and not penalties and are
in addition to all other rights of the Buyer, including the right
to call a default. The parties further acknowledge that (i)
the amount of loss or damages likely to be incurred is incapable or
is difficult to precisely estimate, (ii) the amounts specified in
such subsections bear a reasonable relationship to, and are not
plainly or grossly disproportionate to, the probable loss likely to
be incurred in connection with any failure by the Company to obtain
or maintain the effectiveness of a Registration Statement, (iii)
one of the reasons for the Company and the Buyer reaching an
agreement as to such amounts was the uncertainty and cost of
litigation regarding the question of actual damages, and (iv) the
Company and the Buyer are sophisticated business parties and have
been represented by sophisticated and able legal counsel and
negotiated this Agreement at arm’s length.
Notwithstanding the foregoing, there shall be no liquidated damages
for Cut-Back Securities (as defined in Section 3(c) below).
3.
RELATED OBLIGATIONS .
(a)
The Company shall, not less than three (3) Trading Days prior to
the filing of each Registration Statement and not less than one (1)
Trading Day prior to the filing of any related amendments and
supplements to all Registration Statements (except for annual
reports on Form 10-K or Form 10-KSB), furnish to each Buyer copies
of all such documents proposed to be filed, which documents (other
than those incorporated or deemed to be incorporated by reference)
will be subject to the reasonable and prompt review of such Buyers,
The Company shall not file a Registration Statement or any such
Prospectus or any amendments or supplements thereto to which the
Buyers shall reasonably object in good faith; provided,
that, the Company is notified of such objection in writing no later
than two (2) Trading Days after the Buyers have been so furnished
copies of a Registration Statement.
(b)
The Company shall (i) prepare and file with the SEC such
amendments (including post-effective amendments) and
supplements to a Registration Statement and the Prospectus used in
connection with such Registration Statement, which prospectus is to
be filed pursuant to Rule 424 promulgated under the Securities Act,
as may be necessary to keep such Registration Statement effective
at all times during the Registration Period, and prepare and file
with the SEC such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable
Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement (subject to the
terms of this Agreement), and as so supplemented or amended to be
filed pursuant to Rule 424; (iii) respond as promptly as reasonably
possible to any comments received from the SEC with respect to a
Registration
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Statement or any amendment thereto and as
promptly as reasonably possible provide the Buyers true and
complete copies of all correspondence from and to the SEC relating
to a Registration Statement ( provided that the Company may
excise any information contained therein which would constitute
material non-public information as to any Buyer which has not
executed a confidentiality agreement with the Company); and (iv)
comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities of the Company
covered by such Registration Statement until such time as all of
such Registrable Securities shall have been disposed of in
accordance with the intended methods of disposition by the seller
or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to a
Registration Statement which are required to be filed pursuant to
this Agreement (including pursuant to this Section 3(b)) by reason
of the Company’s filing a report on Form 10-KSB, Form 10-QSB
or Form 8-K or any analogous report under the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
the Company shall incorporate such report by reference into the
Registration Statement, if applicable, or shall file such
amendments or supplements with the SEC on the same day on which the
Exchange Act report is filed which created the requirement for the
Company to amend or supplement the Registration
Statement.
(c)
Reduction of Registrable Securities Included in a Registration
Statement . Notwithstanding anything contained herein, in the
event that the SEC requires the Company to reduce the number of
Registrable Securities to be included in a Registration Statement
in order to allow the Company to rely on Rule 415 with respect to a
Registration Statement, then the Company shall be obligated to
include in such Registration Statement (which may be a subsequent
Registration Statement if the Company needs to withdraw the initial
Registration Statement and refile a new Registration Statement in
order to rely on Rule 415) only such limited portion of the
Registrable Securities as the SEC shall permit. Any
Registrable Securities that are excluded in accordance with the
foregoing terms are hereinafter referred to as “ Cut Back
Securities .” To the extent Cut Back Securities
exist, as soon as may be permitted by the SEC, the Company shall be
required to file a Registration Statement covering the resale of
the Cut Back Securities and shall use best efforts to cause such
Registration Statement to be declared effective as promptly as
practicable thereafter.
(d)
The Company shall furnish to each Buyer whose Registrable
Securities are included in any Registration Statement, without
charge, (i) at least one (1) copy of such Registration Statement as
declared effective by the SEC and any amendment(s) thereto,
including financial statements and schedules, all documents
incorporated therein by reference, all exhibits and each
preliminary prospectus, (ii) ten (10) copies of the final
prospectus included in such Registration Statement and all
amendments and supplements thereto (or such other number of copies
as such Buyer may reasonably request) and (iii) such other
documents as such Buyer may reasonably request from time to time in
order to facilitate the disposition of the Registrable Securities
owned by such Buyer.
(e)
The Company shall use its best efforts to (i) register and qualify
the Registrable Securities covered by a Registration Statement
under such other securities or “blue sky” laws of such
jurisdictions in the United States as any Buyer reasonably
requests, (ii) prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements to
such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be
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necessary to maintain such registrations and
qualifications in effect at all times during the Registration
Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided , however, that the Company shall
not be required in connection therewith or as a condition thereto
to (w) make any change to its articles of incorporation or by-laws,
(x) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (y)
subject itself to general taxation in any such jurisdiction, or (z)
file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify each Buyer
who holds Registrable Securities of the receipt by the Company of
any notification with respect to the suspension of the registration
or qualification of any of the Registrable Securities for sale
under the securities or “blue sky” laws of any
jurisdiction in the United States or its receipt of actual notice
of the initiation or threat of any proceeding for such
purpose.
(f)
As promptly as practicable after becoming aware of such event or
development, the Company shall notify each Buyer in writing of the
happening of any event as a result of which the Prospectus included
in a Registration Statement, as then in effect, includes an untrue
statement of a material fact or omission to state a 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 ( provided that in no event shall such notice
contain any material, nonpublic information), and promptly prepare
a supplement or amendment to such Registration Statement to correct
such untrue statement or omission, and deliver ten (10) copies of
such supplement or amendment to each Buyer. The Company shall
also promptly notify each Buyer in writing (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been
filed, and when a Registration Statement or any post-effective
amendment has become effective (notification of such effectiveness
shall be delivered to each Buyer by facsimile on the same day of
such effectiveness), (ii) of any request by the SEC for amendments
or supplements to a Registration Statement or related prospectus or
related information, and (iii) of the Company’s
reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(g)
The Company shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of
any of the Registrable Securities for sale in any jurisdiction
within the United States of America and, if such an order or
suspension is issued, to obtain the withdrawal of such order or
suspension at the earliest possible moment and to notify each Buyer
who holds Registrable Securities being sold of the issuance of such
order and the resolution thereof or its receipt of actual notice of
the initiation or threat of any proceeding for such purpose.
(h)
If, after the execution of this Agreement, a Buyer believes, after
consultation with its legal counsel, that it could reasonably be
deemed to be an underwriter of Registrable Securities, at the
request of any Buyer, the Company shall furnish to such Buyer, on
the date of the effectiveness of the Registration Statement and
thereafter from time to time on such dates as a Buyer may
reasonably request (i) a letter, dated such date, from the
Company’s independent certified public accountants in form
and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public
offering, and (ii) an opinion, dated as of such date, of counsel
representing the Company for purposes of such
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Registration Statement, in form, scope and
substance as is customarily given in an underwritten public
offering, addressed to the Buyers.
(i)
If, after the execution of this Agreement, a Buyer believes, after
consultation with its legal counsel, that it could reasonably be
deemed to be an underwriter of Registrable Securities, at the
request of any Buyer, the Company shall make available for
inspection by (i) any Buyer and (ii) one (1) firm of
accountants or other agents retained by the Buyers (collectively,
the “ Inspectors ”) all pertinent financial and
other records, and pertinent corporate documents and properties of
the Company (collectively, the “ Records ”), as
shall be reasonably deemed necessary by each Inspector, and cause
the Company’s officers, directors and employees to supply all
information which any Inspector may reasonably request;
provided , however, that each Inspector shall agree, and
each Buyer hereby agrees, to hold in strict confidence and shall
not make any disclosure (except to a Buyer) or use any Record
or other information which the Company determines in good faith to
be confidential, and of which determination the Inspectors are so
notified, unless (a) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the Securities Act, (b)
the release of such Records is ordered pursuant to a final,
non-appealable subpoena or order from a court or government body of
competent jurisdiction, or (c) the information in such Records has
been made generally available to the public other than by
disclosure in violation of this or any other agreement of which the
Inspector and the Buyer has knowledge. Each Buyer agrees that
it shall, upon learning that disclosure of such Records is sought
in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to the Company and allow
the Company, at its expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the
Records deemed confidential.
(j)
The Company shall hold in confidence and not make any disclosure of
information concerning a Buyer provided to the Company unless (i)
disclosure of such information is necessary to comply with federal
or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any
Registration Statement, (iii) the release of such information is
ordered pursuant to a subpoena or other final, non-appealable order
from a court or governmental body of competent jurisdiction, or
(iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or
any other agreement. The Company agrees that it shall, upon
learning that disclosure of such information concerning a Buyer is
sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt written notice to
such Buyer and allow such Buyer, at the Buyer’s expense, to
undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, such information.
(k)
The Company shall use its best efforts either to cause all the
Registrable Securities covered by a Registration Statement (i) to
be listed on each securities exchange on which securities of the
same class or series issued by the Company are then listed, if any,
if the listing of such Registrable Securities is then permitted
under the rules of such exchange or (ii) the inclusion for
quotation on the National Association of Securities Dealers, Inc.
OTC Bulletin Board for such Registrable Securities. The
Company shall pay all fees and expenses in connection with
satisfying its obligation under this Section 3(k).
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(l)
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