Exhibit 4.16
WARRANT
Series A
THE SECURITIES
REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL IN A FORM REASONABLY
SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SAID ACT.
SENESCO TECHNOLOGIES, INC.
Warrant To Purchase Common Stock
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Warrant No.: SNT-A-1
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Number of
Shares:
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1,111,111
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Warrant Exercise
Price:
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$1.01
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Expiration
Date:
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, 2012
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Date of Issuance:
, 2007
Senesco Technologies,
Inc., a Delaware corporation (the “ Company ”),
hereby certifies that, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Stanford Venture Capital Holdings, Inc. (the “
Holder ”), the registered holder hereof or its
permitted assigns, is entitled, subject to the terms set forth
below, to purchase from the Company upon surrender of this Warrant,
at any time or times after the six month anniversary after the date
hereof, but not after 11:59 P.M. Eastern Time on the
Expiration Date (as defined herein) up to
fully paid and nonassessable shares of Common Stock (as defined
herein) of the Company (the “ Warrant Shares ”)
at the exercise price per share provided in Section 1(b) below
or as subsequently adjusted. Except as set forth in the
preceding sentence, for purposes of this paragraph, beneficial
ownership shall be calculated in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended. For purposes
of this Warrant, in determining the number of outstanding shares of
Common Stock a holder may rely on the number of outstanding shares
of Common Stock as reflected in (1) the Company’s most recent
Form 10-Q or Form 10-K, as the case may be, (2) a more recent
public announcement by the Company or (3) any other notice by the
Company or its transfer agent setting forth the number of shares of
Common Stock outstanding. Upon the written request of any
holder, the Company shall promptly, but in no event later than one
(1) Business Day following the receipt of such notice, confirm in
writing to any such holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to
the exercise of Warrants (as defined below) by such holder and its
affiliates since the date as of which such number of outstanding
shares of Common Stock was reported.
Section 1.
(a)
This Warrant is one of the warrants issued pursuant the Securities
Purchase Agreement (“ Securities Purchase Agreement
”) dated August 29, 2007 between the Company and the Buyers
listed on Schedule I thereto or issued in exchange or substitution
thereafter or replacement thereof. Each Capitalized term
used, and not otherwise defined herein, shall have the meaning
ascribed thereto in the Securities Purchase Agreement.
(b)
Definitions . The following words and terms as used in
this Warrant shall have the following meanings:
(i)
“ Approved Stock Plan ” means a stock option
plan that has been approved by the Board of Directors of the
Company prior to the date of the Securities Purchase Agreement,
pursuant to which the Company’s securities may be issued only
to any employee, officer or director for services provided to the
Company.
(ii)
“ Business Day ” means any day other than
Saturday, Sunday or other day on which commercial banks in the
State of New Jersey are authorized or required by law to remain
closed.
(iii)
“ Closing Bid Price ” means the closing bid
price of Common Stock as quoted on the Primary Market (as reported
by Bloomberg Financial Markets (“ Bloomberg ”)
through its “Volume at Price” function).
(iv)
“ Common Stock ” means (i) the
Company’s common stock, par value $0.01 per share, and
(ii) any capital stock into which such Common Stock shall have
been changed or any capital stock resulting from a reclassification
of such Common Stock.
(v)
“ Debenture(s) ” means the convertible
debentures issued pursuant to the Securities Purchase
Agreement.
(vi)
“ Event of Default ” means an event of default
under the Securities Purchase Agreement or the Convertible
Debentures issued in connection therewith.
(vii)
“ Excluded Securities ” means, (a) shares issued
or deemed to have been issued by the Company pursuant to an
Approved Stock Plan, (b) shares of Common Stock issued or deemed to
be issued by the Company upon the conversion, exchange or exercise
of any right, option, obligation or security outstanding on the
date prior to date of the Securities Purchase Agreement, provided
that the terms of such right, option, obligation or security are
not amended or otherwise modified on or after the date of the
Securities Purchase Agreement, and provided that the conversion
price, exchange price, exercise price or other purchase price is
not reduced, adjusted or otherwise modified and the number of
shares of Common Stock issued or issuable is not increased (whether
by operation of, or in accordance with, the relevant governing
documents or otherwise) on or after the date of the Securities
Purchase Agreement, (c) shares issued in connection with any
(i) acquisition by the Company, whether through an acquisition
of stock or a merger of any business, assets or technologies,
leasing arrangement or any other transaction the primary purpose of
which is not to raise equity capital, or (ii) license
agreement, consulting agreement, strategic partnership or similar
business arrangement, and (d) the shares of
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Common Stock issued or deemed to be issued by
the Company upon conversion of the Debenture or the
Warrants.
(viii)
“ Expiration Date ” means August
, 2012.
(ix)
“ Issuance Date ” means the date hereof.
(x)
“ Options ” means any rights, warrants or
options to subscribe for or purchase Common Stock or Convertible
Securities.
(xi)
“ Person ” means an individual, a limited
liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any
department or agency thereof.
(xii)
“ Primary Market ” means on any of (a) the
American Stock Exchange, (b) New York Stock Exchange, (c) the
Nasdaq Global Select Market, (d) the Nasdaq Global Market, (e) the
Nasdaq Capital Market, or (e) the NASD Over-the-Counter Bulletin
Board (“ OTCBB ”).
(xiii)
“ Securities Act ” means the Securities Act of
1933, as amended.
(xiv)
“ Warrant ” means this Warrant and all Warrants
issued in exchange, transfer or replacement thereof.
(xv)
“ Warrant Exercise Price ” shall be equal to
$1.01 per share.
(c)
Other Definitional Provisions.
(i)
Except as otherwise specified herein, all references herein
(A) to the Company shall be deemed to include the
Company’s successors and (B) to any applicable law
defined or referred to herein shall be deemed references to such
applicable law as the same may have been or may be amended or
supplemented from time to time.
(ii)
When used in this Warrant, the words “ herein ”,
“ hereof ”, and “ hereunder
” and words of similar import, shall refer to this
Warrant as a whole and not to any provision of this Warrant, and
the words “ Section ”, “ Schedule
”, and “ Exhibit ” shall refer to Sections
of, and Schedules and Exhibits to, this Warrant unless otherwise
specified.
(iii)
Whenever the context so requires, the neuter gender includes the
masculine or feminine, and the singular number includes the plural,
and vice versa.
Section 2.
Exercise of Warrant .
(a)
Subject to the terms and conditions hereof, this Warrant may be
exercised by the holder hereof then registered on the books of the
Company, pro rata as hereinafter provided, at any time on any
Business Day on or after the opening of business on such Business
Day, commencing with the first day after the date hereof, and prior
to 11:59 P.M. Eastern Time on the Expiration Date (i) by
delivery of a written notice, in the form of the subscription
notice attached
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as
Exhibit A hereto (the “ Exercise Notice
”), of such holder’s election to exercise this Warrant,
which notice shall specify the number of Warrant Shares to be
purchased, payment to the Company of an amount equal to the
Warrant Exercise Price(s) applicable to the Warrant Shares being
purchased, multiplied by the number of Warrant Shares (at the
applicable Warrant Exercise Price) as to which this Warrant is
being exercised (plus any applicable issue or transfer taxes)
(the “ Aggregate Exercise Price ”) in cash or
wire transfer of immediately available funds and the surrender of
this Warrant (or an indemnification undertaking with respect to
this Warrant in the case of its loss, theft or destruction) to a
common carrier for overnight delivery to the Company as soon as
practicable following such date (“ Cash Basis ”)
or (ii) if at the time of exercise, the Warrant Shares are not
subject to an effective registration statement, by delivering an
Exercise Notice and in lieu of making payment of the Aggregate
Exercise Price in cash or wire transfer, elect instead to receive
upon such exercise the “Net Number” of shares of Common
Stock determined according to the following formula (the “
Cashless Exercise ”):
Net Number = (A x B)
– (A x C)
B
For
purposes of the foregoing formula:
A = the total number of
Warrant Shares with respect to which this Warrant is then being
exercised.
B = the Closing Bid
Price of the Common Stock on the date of exercise of the
Warrant.
C = the Warrant
Exercise Price then in effect for the applicable Warrant Shares at
the time of such exercise.
In
the event of any exercise of the rights represented by this Warrant
in compliance with this Section 2, the Company shall on or before
the fifth (5th) Business Day following the date of receipt of
the Exercise Notice, the Aggregate Exercise Price and this Warrant
(or an indemnification undertaking with respect to this Warrant in
the case of its loss, theft or destruction) and the receipt of the
representations of the holder specified in Section 6 hereof, if
requested by the Company (the “ Exercise Delivery
Documents ”), and if the Common Stock is DTC eligible,
credit such aggregate number of shares of Common Stock to which the
holder shall be entitled to the holder’s or its
designee’s balance account with The Depository Trust Company;
provided, however, if the holder who submitted the Exercise Notice
requested physical delivery of any or all of the Warrant Shares,
or, if the Common Stock is not DTC eligible then the Company
shall, on or before the fifth (5 th )
Business Day following receipt of the Exercise Delivery Documents,
issue and surrender to a common carrier for overnight delivery to
the address specified in the Exercise Notice, a certificate,
registered in the name of the holder, for the number of shares of
Common Stock to which the holder shall be entitled pursuant to such
request. Upon delivery of the Exercise Notice and Aggregate
Exercise Price referred to in clause (i) or (ii) above, the
holder of this Warrant shall be deemed for all corporate purposes
to have become the holder of record of the Warrant Shares with
respect to which this Warrant has been exercised. In the case
of a dispute as to the determination of the Warrant Exercise Price,
the Closing Bid Price or the arithmetic calculation of the Warrant
Shares, the
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Company shall promptly issue to the holder the
number of Warrant Shares that is not disputed and shall submit the
disputed determinations or arithmetic calculations to the holder
via facsimile within one (1) Business Day of receipt of the
holder’s Exercise Notice.
(b)
If the holder and the Company are unable to agree upon the
determination of the Warrant Exercise Price or arithmetic
calculation of the Warrant Shares within one (1) day of such
disputed determination or arithmetic calculation being submitted to
the holder, then the Company shall immediately submit via facsimile
(i) the disputed determination of the Warrant Exercise Price or the
Closing Bid Price to an independent, reputable investment banking
firm or (ii) the disputed arithmetic calculation of the Warrant
Shares to its independent, outside accountant. The Company
shall cause the investment banking firm or the accountant, as the
case may be, to perform the determinations or calculations and
notify the Company and the holder of the results no later than
forty-eight (48) hours from the time it receives the disputed
determinations or calculations. Such investment banking
firm’s or accountant’s determination or calculation, as
the case may be, shall be deemed conclusive absent manifest
error.
(c)
Unless the rights represented by this Warrant shall have expired or
shall have been fully exercised, the Company shall, as soon as
practicable and in no event later than five (5) Business Days after
any exercise and at its own expense, issue a new Warrant identical
in all respects to this Warrant exercised except it shall represent
rights to purchase the number of Warrant Shares purchasable
immediately prior to such exercise under this Warrant exercised,
less the number of Warrant Shares with respect to which such
Warrant is exercised.
(d)
No fractional Warrant Shares are to be issued upon any pro rata
exercise of this Warrant, but rather the number of Warrant Shares
issued upon such exercise of this Warrant shall be rounded up or
down to the nearest whole number.
(e)
RESERVED.
(f)
RESERVED.
Section 3.
Covenants as to Common Stock . The Company hereby
covenants and agrees as follows:
(a)
This Warrant is, and any Warrants issued in substitution for or
replacement of this Warrant will upon issuance be, duly authorized
and validly issued.
(b)
All Warrant Shares which may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly
issued, fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issue thereof.
(c)
During the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have
authorized and reserved at least one hundred percent (100%) of the
number of shares of Common Stock needed to provide for the exercise
of the rights then represented by this Warrant and the par value of
said shares will at all times be less than or equal to the
applicable Warrant Exercise Price. If at any time the Company
does not have a sufficient number of shares of Common Stock
authorized and available, then the
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Company shall call and hold a special meeting
of its stockholders within sixty (60) days of that time for
the sole purpose of increasing the number of authorized shares of
Common Stock.
(d)
If at any time after the date hereof the Company shall file a
registration statement, the Company shall include the Warrant
Shares issuable to the holder, pursuant to the terms of this
Warrant and shall maintain, so long as any other shares of Common
Stock shall be so listed, such listing of all Warrant Shares from
time to time issuable upon the exercise of this Warrant; and the
Company shall so list on each national securities exchange or
automated quotation system, as the case may be, and shall maintain
such listing of, any other shares of capital stock of the Company
issuable upon the exercise of this Warrant if and so long as any
shares of the same class shall be listed on such national
securities exchange or automated quotation system.
(e)
The Company will not, by amendment of its Articles of Incorporation
or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other
voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed by it
hereunder, but will at all times in good faith assist in the
carrying out of all the provisions of this Warrant and in the
taking of all such action as may reasonably be requested by the
holder of this Warrant in order to protect the exercise privilege
of the holder of this Warrant against dilution or other impairment,
consistent with the tenor and purpose of this Warrant. The
Company will not increase the par value of any shares of Common
Stock receivable upon the exercise of this Warrant above the
Warrant Exercise Price then in effect, and (ii) will take all
such actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable
shares of Common Stock upon the exercise of this Warrant.
(f)
This Warrant will be binding upon any entity succeeding to the
Company by merger, consolidation or acquisition of all or
substantially all of the Company’s assets.
Section 4.
Taxes . The Company shall pay any and all taxes,
except any applicable withholding, which may be payable with
respect to the issuance and delivery of Warrant Shares upon
exercise of this Warrant.
Section 5.
Warrant Holder Not Deemed a Stockholder . Except as
otherwise specifically provided herein, no holder, as such, of this
Warrant shall be entitled to vote or receive dividends or be deemed
the holder of shares of capital stock of the Company for any
purpose, nor shall anything contained in this Warrant be construed
to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue
of stock, reclassification of stock, consolidation, merger,
conveyance or otherwise), receive notice of meetings, receive
dividends or subscription rights, or otherwise, prior to the
issuance to the holder of this Warrant of the Warrant Shares which
he or she is then entitled to receive upon the due exercise of this
Warrant. In addition, nothing contained in this Warrant shall
be construed as imposing any liabilities on such holder to purchase
any securities (upon exercise of this Warrant or otherwise) or as a
stockholder of the Company, whether such liabilities are asserted
by the Company or by creditors of the Company.
Notwithstanding this Section 5, the Company will provide the holder
of this Warrant with copies of the same notices and other
information given to
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the
stockholders of the Company generally, contemporaneously with the
giving thereof to the stockholders.
Section 6.
Representations of Holder . The holder of this
Warrant, by the acceptance hereof, represents that it is acquiring
this Warrant and the Warrant Shares for its own account for
investment only and not with a view towards, or for resale in
connection with, the public sale or distribution of this Warrant or
the Warrant Shares, except pursuant to sales registered or exempted
under the Securities Act; provided, however, that by making the
representations herein, the holder does not agree to hold this
Warrant or any of the Warrant Shares for any minimum or other
specific term and reserves the right to dispose of this Warrant and
the Warrant Shares at any time in accordance with or pursuant to a
registration statement or an exemption under the Securities
Act. The holder of this Warrant further represents, by
acceptance hereof, that, as of this date, such holder is an
“accredited investor” as such term is defined in
Rule 501(a)(1) of Regulation D promulgated by the Securities
and Exchange Commission under the Securities Act (an “
Accredited Investor ”). Upon exercise of this
Warrant, the holder shall, if requested by the Company, confirm in
writing, in a form satisfactory to the Company, that the Warrant
Shares so purchased are being acquired solely for the
holder’s own account and not as a nominee for any other
party, for investment, and not with a view toward distribution or
resale and that such holder is an Accredited Investor. If
such holder cannot make su
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