As filed with the Securities and Exchange Commission on March 28, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SENESCO TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 84-1368850
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(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
303 GEORGE STREET, SUITE 420, NEW BRUNSWICK, NEW JERSEY 08901
(732) 296-8400
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(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
1998 STOCK INCENTIVE PLAN, AS AMENDED
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(Full title of the plan)
BRUCE C. GALTON, PRESIDENT AND CHIEF EXECUTIVE OFFICER
303 GEORGE STREET, SUITE 420, NEW BRUNSWICK, NEW JERSEY 08901
(732) 296-8400
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(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies of all communications, including all communications sent to the agent for
service, should be sent to:
DAVID J. SORIN, ESQ.
JOHN F. CINQUE, ESQ.
HALE AND DORR LLP
650 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08540
(609) 750-7600
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CALCULATION OF REGISTRATION FEE
=====================================================================================================
Proposed
Amount Maximum Proposed Maximum Amount Of
Title of Shares To Be Aggregate Price Aggregate Registration
To Be Registered Registered (1) Per Share Offering Price Fee
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Common Stock, $0.01 par 1,771,000 shares(2) $2.60(3) $4,604,600(3) $372.51
value per share
Issuable pursuant to
options previously granted
under the 1998 Stock
Incentive Plan, as amended
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Common Stock, $0.01 par 1,229,000 shares(2) $2.02(4) $2,482,580(4) $200.84
value per share
Issuable pursuant to
options to be granted
under the 1998 Stock
Incentive Plan, as amended
=====================================================================================================
(1) In accordance with Rule 416 under the Securities Act of 1933, this
registration statement shall be deemed to cover any additional securities
that may from time to time be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(2) An aggregate of three million (3,000,000) shares are issuable under the
1998 Stock Incentive Plan, as amended.
(3) Pursuant to Rule 457(h) of the Securities Act of 1933, the proposed maximum
offering price is calculated based on the weighted average exercise price
of $2.60 per share, covering 1,771,000 shares issuable under the 1998 Stock
Incentive Plan, as amended.
(4) Pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, the
proposed maximum offering price is estimated solely for the purpose of
calculating the registration fee, and is based on the average of the high
and low prices of Senesco's common stock as reported on the American Stock
Exchange on March 25, 2003.
EXPLANATORY NOTE
The documents containing the information specified in the instructions to
Part I of Form S-8 will be sent or given to participants of Senesco's 1998 Stock
Incentive Plan, as amended, referred to herein as the Plan, as required by Rule
428(b)(1) of the Securities Act of 1933. As permitted by the instructions to
Part I of Form S-8, these documents are not filed with this registration
statement.
This registration statement on Form S-8 has been filed by Senesco in order
to register an aggregate of three million (3,000,000) shares of common stock,
$0.01 par value per share, issuable upon the exercise of stock options or
restricted stock awards granted or to be granted under the Plan as follows:
The first part of this registration statement contains a reoffer prospectus
prepared in accordance with the requirements of Part I of Form S-3 with respect
to options granted to affiliates pursuant to the Plan prior to the date hereof.
The second part of this registration statement contains "Information
Required in the Registration Statement" prepared in accordance with the
requirements of Part II of Form S-8 with respect to options granted to
non-affiliates pursuant to the Plan, prior to the date hereof, and that may be
granted subsequent to the date hereof.
Prior to the date hereof, there have been no exercises of options granted
under the Plan.
The information in this prospectus is not complete and may be changed. The
selling stockholders named in this prospectus may not sell these securities
until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these
securities and the selling stockholders named in this prospectus are not
soliciting offers to buy these securities in any jurisdiction where the offer or
sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 28, 2003
PROSPECTUS
SENESCO TECHNOLOGIES, INC.
1,312,500 shares of common stock
issuable pursuant to options granted
under the 1998 Stock Incentive Plan, as amended
This prospectus relates to public resales, from time to time, of one
million three hundred twelve thousand five hundred (1,312,500) shares of our
common stock that may be acquired upon the exercise of stock options or
restricted stock awards granted pursuant to our 1998 Stock Incentive Plan, as
amended, referred to herein as the Plan, to the selling stockholders identified
herein. Options or shares of common stock may be issued under the stock
incentive plan in amounts and to persons not presently known by us. Such
information, when known, may be included in an amendment or supplement to this
prospectus.
The shares of our common stock may be offered and sold from time to time by
the selling stockholders identified in this prospectus, or their pledgees,
donees, transferees or other successors-in-interest through public or private
transactions at prevailing market prices, at prices related to prevailing market
prices or at privately negotiated prices. The selling stockholders will pay all
underwriting discounts and selling commissions, if any, applicable to the sale
of the shares. We will not receive any proceeds from the sale of the shares
other than the exercise price payable to us upon the potential exercise of
options and warrants held by the selling stockholders.
Our common stock is traded on the American Stock Exchange under the ticker
symbol "SNT." On March 26, 2003, the last reported sale price of our common
stock was $[ ] per share. You are urged to obtain current market quotations for
our common stock.
Investing in our common stock involves a high degree of risk. See "Risk
Factors" beginning on page 3 to read about risks that you should consider before
you invest in any of the common stock being offered with this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2003.
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TABLE OF CONTENTS
Page
----
About This Prospectus................................................... 1
Where You Can Find More Information..................................... 1
Incorporation by Reference.............................................. 1
About Senesco........................................................... 2
Risk Factors............................................................ 3
Special Note Regarding Forward-Looking Statements....................... 11
Use of Proceeds......................................................... 11
Selling Stockholders.................................................... 12
Plan of Distribution.................................................... 14
Experts................................................................. 15
Legal Matters........................................................... 15
Indemnification of Directors and Officers............................... 16
As used in this prospectus, references to "Senesco," "we," "us," and "our" refer
to Senesco Technologies, Inc. and its subsidiary, Senesco, Inc., unless the
context otherwise requires.
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement on Form S-8 filed by
us with the Securities and Exchange Commission to register 3,000,000 shares of
our common stock, issuable upon the exercise of stock options or restricted
stock awards granted or to be granted under the Plan. This prospectus does not
contain all of the information set forth in the registration statement, certain
parts of which are omitted in accordance with the rules and regulations of the
SEC. Accordingly, you should refer to the registration statement and its
exhibits for further information about us and our common stock. Copies of the
registration statement and its exhibits are on file with the SEC. Statements
contained in this prospectus concerning the documents we have filed with the SEC
are not intended to be comprehensive, and in each instance we refer you to the
copy of the actual document filed as an exhibit to the registration statement or
otherwise filed with the SEC.
We have not authorized anyone to provide you with information different
from that contained or incorporated by reference in this prospectus. The selling
stockholders are offering to sell, and seeking offers to buy, shares of our
common stock only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of common stock.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the SEC. You may
read and copy any document we file at the SEC's public reference room at
Judiciary Plaza Building, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549. You should call 1-800-SEC-0330 for more information on the public
reference room. Our SEC filings are also available to you on the SEC's Internet
site at http://www.sec.gov.
This prospectus is part of a registration statement that we filed with the
SEC. The registration statement contains more information than this prospectus
regarding us and our common stock, including certain exhibits and schedules. You
can obtain a copy of the registration statement from the SEC at the address
listed above or from the SEC's Internet site.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" much of the information we
file with them (former Commission File No. 0-22307 and current Commission File
No. 001-31326), which means that we can disclose important information to you by
referring you to those publicly available documents. The information that we
incorporate by reference is considered to be part of this prospectus. You must
look at all of the SEC filings that we incorporate by reference to determine if
any of the statements in any document previously incorporated by reference have
been modified or superseded. This prospectus incorporates by reference the
following documents and any future filings made with the SEC pursuant to the
Securities and Exchange Act of 1934 since June 30, 2002:
o our registration statement on Form 8-A, dated May 14, 2002;
o our current report on Form 8-K, dated July 2, 2002;
o our annual report on Form 10-KSB for the fiscal year ended June
30, 2002, filed on September 30, 2002;
o our quarterly report on Form 10-QSB for the quarter ended
September 30, 2002, filed on November 14, 2002; and
o our quarterly report on Form 10-QSB for the quarter ended
December 31, 2002, filed on February 14, 2003.
You may request a copy of any or all of these filings, at no cost, by
writing or telephoning us at: Senesco Technologies, Inc., 303 George Street,
Suite 420, New Brunswick, New Jersey 08901; telephone (732) 296-8400.
1
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. The selling stockholders will
not make an offer of these shares in any state where the offer is not permitted.
You should not assume that information in this prospectus or any supplement is
accurate as of any date other than the date on the front of these documents.
ABOUT SENESCO
Our primary business is the research, development and commercial
exploitation of a potentially significant platform technology involving the
identification and characterization of genes that we believe control the aging
of plant cells, also known as senescence, and the programmed cell death of
mammalian cells, also known as apoptosis.
Our technology goals for plant applications are to:
o extend the shelf-life of perishable plant products;
o produce larger and more leafy crops;
o increase crop production in horticultural and agronomic crops;
and
o reduce the harmful effects of environmental stress.
Our technology goals for mammalian research are to:
o identify drug targets for treatment of diseases caused by
abnormal apoptosis;
o develop gene therapies which directly target the symptoms of
these diseases; and
o develop a screening assay system to enable the discovery and
development of compounds to treat these diseases.
Senesco was formed in June 1998. We are a Delaware corporation and our
business is currently operated through Senesco and our wholly-owned subsidiary
Senesco, Inc., a New Jersey corporation.
Our executive offices are located at 303 George Street, Suite 420, New
Brunswick, New Jersey 08901, our telephone number is (732) 296-8400 and our
Internet address is http://www.senesco.com. The information on our Internet
website is not incorporated by reference in this prospectus, and our website
address is included in this prospectus as a textual reference only.
2
RISK FACTORS
Investing in our common stock involves a high degree of risk. Before you
invest in our common stock, you should carefully consider the following factors
and cautionary statements, as well as the other information set forth herein.
Additional risks and uncertainties may also impair our business operations. If
any of the following risks actually occur, our business, financial condition or
results of operations may suffer. As a result, the trading price of our common
stock could decline, and you could lose all or a substantial portion of your
investment in our common stock.
WE HAVE A LIMITED OPERATING HISTORY AND HAVE INCURRED SUBSTANTIAL LOSSES AND
EXPECT FUTURE LOSSES.
We are a developmental stage biotechnology company with a limited operating
history and limited assets and capital. We have incurred losses each year since
inception and have an accumulated deficit of $7,430,321 at June 30, 2002 and
$8,507,363 at December 31, 2002. We have generated minimal revenues by licensing
certain of our technology to companies willing to share in our development
costs. However, our technology may not be ready for widespread commercialization
for several years. We expect to continue to incur losses over the next two to
three years because we anticipate that our expenditures on research and
development, commercialization and administrative activities will significantly
exceed our revenues during that period. We cannot predict when, if ever, we will
become profitable.
WE DEPEND ON A SINGLE PRINCIPAL TECHNOLOGY.
Our primary business is the development and commercial exploitation of
technology to identify, isolate, characterize, and silence genes which control
the aging and death of cells in plants and mammals. Our future revenue and
profitability critically depend upon our ability to successfully develop
senescence and apoptosis gene technology and later market and license such
technology at a profit. We have conducted experiments on certain crops with
favorable results and have conducted certain preliminary cell-line experiments,
which have provided us with data upon which we have designed additional research
programs. However, we cannot give any assurance that our technology will be
commercially successful or economically viable for all crops or mammalian
applications.
In addition, no assurance can be given that adverse consequences might not
result from the use of our technology, such as the development of negative
effects on plants or mammals or reduced benefits in terms of crop yield or
protection. Our failure to obtain market acceptance of our technology, to
successfully commercialize such technology or to develop a commercially viable
product would have a material adverse effect on our business.
WE OUTSOURCE ALL OF OUR RESEARCH AND DEVELOPMENT ACTIVITIES.
We rely on third parties to perform all of our research and development
activities. Our primary research and development efforts take place at the
University of Waterloo in Ontario, Canada, where our technology was developed,
at the University of Colorado, at Anawah, Inc., formerly known as Tilligen,
Inc., and with our commercial partners. At this time, we do not have the
internal capabilities to perform our research and development activities.
Accordingly, the failure of third-party research partners, such as the
University of Waterloo, to perform under agreements entered into with us, or our
failure to renew important research agreements with these third parties, would
have a material adverse effect on our ability to develop and exploit our
technology.
WE HAVE SIGNIFICANT FUTURE CAPITAL NEEDS.
We had cash and highly-liquid investments valued at $4,664,678 as of June
30, 2002 and $3,573,575 as of December 31, 2002, and working capital of
$3,425,367 as of June 30, 2002 and $3,443,925 as of December 31, 2002. We
believe that we can operate according to our current business plan for at least
twelve months using our available reserves. To date, we have generated minimal
revenues and we anticipate that our operating costs will exceed any revenues
generated over the next several years. Therefore, we anticipate that we will be
required to raise additional capital in the future in
3
order to operate according to our current business plan. We may require
additional funding in less than twelve months, and additional funding may not be
available on favorable terms, if at all. In addition, in connection with such
funding, if we need to issue more equity securities than our certificate of
incorporation currently authorizes, or more than 20% of the shares of common
stock outstanding, we may need stockholder approval. If stockholder approval is
not obtained or if adequate funds are not available, we may be required to
curtail operations significantly or to obtain funds through arrangements with
collaborative partners or others that may require us to relinquish rights to
certain of our technologies, product candidates, products or potential markets.
Investors may experience dilution in their investment from future offerings of
our common stock. For example, if we raise additional capital by issuing equity
securities, such an issuance would reduce the percentage ownership of existing
stockholders. In addition, assuming the exercise of all options and warrants
granted, we had 2,301,802 shares of common stock as of June 30, 2002 and
12,131,802 shares of common stock as of December 31, 2002, authorized but
unissued, which may be issued from time to time by our board of directors
without stockholder approval. Furthermore, we may need to issue securities that
have rights, preferences and privileges senior to our common stock. Failure to
obtain financing on acceptable terms would have a material adverse effect on our
liquidity.
Since inception, we have financed all of our operations through private
equity financings. Our future capital requirements depend on numerous factors,
including:
o the scope of our research and development;
o our ability to attract business partners willing to share in our
development costs;
o our ability to successfully commercialize our technology;
o competing technological and market developments;
o our ability to enter into collaborative arrangements for the
development, regulatory approval and commercialization of other
products; and
o the cost of filing, prosecuting, defending and enforcing patent
claims and other intellectual property rights.
OUR BUSINESS DEPENDS ON OUR PATENTS, LICENSES AND PROPRIETARY RIGHTS AND THE
ENFORCEMENT OF THESE RIGHTS.
As a result of the substantial length of time and expense associated with
developing products and bringing them to the marketplace in the agricultural and
biotechnology industries, obtaining and maintaining patent and trade secret
protection for technologies, products and processes is of vital importance. Our
success will depend in part on several factors, including, without limitation:
o our ability to obtain patent protection for technologies,
products and processes;
o our ability to preserve trade secrets; and
o our ability to operate without infringing the proprietary rights
of other parties both in the United States and in foreign
countries.
We have been issued one patent by the U.S. Patent and Trademark Office. We
have also filed patent applications in the United States and internationally for
our technology which is vital to our primary business, as well as several
Continuations in Part on these patent applications. Our success depends in part
upon the enforcement of our patent rights and whether patents are granted from
our pending patent applications.
Furthermore, although we believe that our technology is unique and will not
violate or infringe upon the proprietary rights of any third party, there can be
no assurance that such claims will not be made or if made, could be successfully
defended against. If we do not obtain and maintain patent protection, we may
face increased competition in the United States and internationally, which would
have a material adverse effect on our business.
Since patent applications in the United States are maintained in secrecy
until patents are issued, and since publication of discoveries in the scientific
and patent literature tend to lag behind actual discoveries by several months,
we cannot be certain that we were the first creator of the inventions covered by
our pending patent applications or that we were the first to file patent
applications for these inventions.
4
In addition, among other things, we cannot guarantee that:
o our patent applications will result in the issuance of patents;
o any patents issued or licensed to us will be free from challenge
and that if challenged, would be held to be valid;
o any patents issued or licensed to us will provide commercially
significant protection for our technology, products and
processes;
o other companies will not independently develop substantially
equivalent proprietary information which is not covered by our
patent rights;
o other companies will not obtain access to our know-how;
o other companies will not be granted patents that may prevent the
commercialization of our technology; or
o we will not require licensing and the payment of significant fees
or royalties to third parties for the use of their intellectual
property in order to enable us to conduct our business.
If any relevant claims of third-party patents which are adverse to us are
upheld as valid and enforceable, we could be prevented from commercializing our
technology or could be required to obtain licenses from the owners of such
patents. We cannot guarantee that such licenses would be available or, even if
available, would be on acceptable terms.
We could become involved in infringement actions to enforce and/or protect
our patents. Regardless of the outcome, patent litigation is expensive and time
consuming and would distract our management from other activities.
The laws of some foreign countries do not protect proprietary rights to the
same extent as the laws of the United States, and many companies have
encountered significant problems and costs in protecting their proprietary
rights in these foreign countries.
Patent law is still evolving relative to the scope and enforceability of
claims in the fields in which we operate. We are like most biotechnology
companies in that our patent protection is highly uncertain and involves complex
legal and technical questions for which legal principles are not yet firmly
established. In addition, if issued, our patents may not contain claims
sufficiently broad to protect us against third parties with similar technologies
or products, or provide us with any competitive advantage.
The U.S. Patent and Trademark Office and the courts have not established a
consistent policy regarding the breadth of claims allowed in biotechnology
patents. The allowance of broader claims may increase the incidence and cost of
patent interference proceedings and the risk of infringement litigation. On the
other hand, the allowance of narrower claims may limit the value of our
proprietary rights.
Our success also depends upon know-how, unpatentable trade secrets, and the
skills, knowledge and experience of our scientific and technical personnel. As a
result, we require all employees to agree to a confidentiality provision that
prohibits the disclosure of confidential information to anyone outside of our
company, during the term of employment and thereafter. We also require all
employees to disclose and assign to us the rights to their ideas, developments,
discoveries and inventions. We also attempt to enter into similar agreements
with our consultants, advisors and research collaborators. We cannot guarantee
adequate protection for our trade secrets, know-how or other proprietary
information against unauthorized use or disclosure. We occasionally provide
information to research collaborators in academic institutions and request the
collaborators to conduct certain tests. We cannot guarantee that the academic
institutions will not assert intellectual property rights in the results of the
tests conducted by the research collaborators, or that the academic institutions
will grant licenses under such intellectual property rights to us on acceptable
terms, if at all. If the assertion of intellectual property rights by an
academic institution is substantiated, and the academic institution does not
grant intellectual property rights to us, these events could have a material
adverse effect on our business and financial results.
5
WE WILL HAVE TO PROPERLY MANAGE OUR GROWTH.
As our business grows, we may need to add employees and enhance our
management, systems and procedures. We will need to successfully integrate our
internal operations with the operations of our marketing partners,
manufacturers, distributors and suppliers to produce and market commercially
viable products. Although we do not presently intend to conduct research and
development activities in-house, we may undertake those activities in the
future. Expanding our business will place a significant burden on our management
and operations. Our failure to effectively respond to changes brought about by
our growth may have a material adverse effect on our business and financial
results.
WE HAVE NO MARKETING OR SALES HISTORY AND DEPEND ON THIRD-PARTY MARKETING
PARTNERS.
We have no history of marketing, distributing or selling biotechnology
products and we are relying on our ability to successfully establish marketing
partners or other arrangements with third parties to market, distribute and sell
a commercially viable product both here and abroad. Our business plan also
envisions creating strategic alliances to access needed commercialization and
marketing expertise. We may not be able to attract qualified sub-licensees,
distributors or marketing partners, and even if qualified, such marketing
partners may not be able to successfully market products or human health
applications developed with our technology. If we fail to successfully establish
distribution channels, or if our marketing partners fail to provide adequate
levels of sales, we will not be able to generate significant revenue.
WE DEPEND ON PARTNERS TO DEVELOP AND MARKET OUR TECHNOLOGY.
In its current state of development, our technology is not ready to be
marketed to consumers. We intend to follow a multi-faceted commercialization
strategy that involves the licensing of our technology to business partners for
the purpose of further technological development, marketing and distribution. We
are seeking business partners who will share the burden of our development costs
while our technology is still being developed, and who will pay us royalties
when they market and distribute products incorporating our technology upon
commercialization. The establishment of joint ventures and strategic alliances
may create future competitors, especially in certain regions abroad where we do
not pursue patent protection. If we fail to establish beneficial business
partners and strategic alliances, our growth will suffer and our technological
development may be harmed.
COMPETITION IN THE AGRICULTURAL AND BIOTECHNOLOGY INDUSTRIES IS INTENSE AND
TECHNOLOGY IS CHANGING RAPIDLY.
Many agricultural and biotechnology companies are engaged in research and
development activities relating to senescence and apoptosis. The market for
plant protection and yield enhancement products is intensely competitive,
rapidly changing and undergoing consolidation. We may be unable to compete
successfully against our current and future competitors, which may result in
price reductions, reduced margins and the inability to achieve market acceptance
for our technology. Our competitors in the field of plant senescence gene
technology are companies that develop and produce transgenic plants and include
major international agricultural companies, specialized biotechnology companies,
research and academic institutions and, potentially, our joint venture and
strategic alliance partners. Such companies include: Paradigm Genetics; Aventis
Crop Science; Mendel Biotechnology; Renessen LLC; Exelixis Plant Sciences, Inc.;
PlantGenix, Inc.; and Eden Bioscience, among others. Some of the companies
involved in apoptosis research include: Cell Pathways, Inc.; Trevigen, Inc.;
Idun Pharmaceuticals; Novartis; Introgen Therapeutics, Inc.; Genta, Inc.; and
Oncogene, Inc. Many of these competitors have substantially greater financial,
marketing, sales, distribution and technical resources than us and have more
experience in research and development, clinical trials, regulatory matters,
manufacturing and marketing. We anticipate increased competition in the future
as new companies enter the market and new technologies become available. Our
technology may be rendered obsolete or uneconomical by technological advances or
entirely different approaches developed by one or more of our competitors.
6
OUR BUSINESS IS SUBJECT TO VARIOUS GOVERNMENT REGULATIONS.
At present, the U.S. federal government regulation of biotechnology is
divided among three agencies: (i) the USDA regulates the import, field testing
and interstate movement of specific types of genetic engineering that may be
used in the creation of transgenic plants; (ii) the EPA regulates activity
related to the invention of plant pesticides and herbicides, which may include
certain kinds of transgenic plants; and (iii) the FDA regulates foods derived
from new plant varieties. The FDA requires that transgenic plants meet the same
standards for safety that are required for all other plants and foods in
general. Except in the case of additives that significantly alter a food's
structure, the FDA does not require any additional standards or specific
approval for genetically engineered foods, but expects transgenic plant
developers to consult the FDA before introducing a new food into the
marketplace. Use of our technology, if developed for human health applications,
will also be subject to FDA regulation.
We believe that our current activities, which to date have been confined to
research and development efforts, do not require licensing or approval by any
governmental regulatory agency. However, federal, state and foreign regulations
relating to crop protection products and human health applications developed
through biotechnology are subject to public concerns and political
circumstances, and, as a result, regulations have changed and may change
substantially in the future. Accordingly, we may become subject to governmental
regulations or approvals or become subject to licensing requirements in
connection with our research and development efforts. We may also be required to
obtain such licensing or approval from the governmental regulatory agencies
described above, or from state agencies, prior to the commercialization of our
genetically transformed plants and mammalian technology. In addition, our
marketing partners who utilize our technology or sell products grown with our
technology may be subject to government regulations. The imposition of
unfavorable governmental regulations on our technology or the failure to obtain
licenses or approvals in a timely manner would have a material adverse effect on
our business.
THE HUMAN HEALTH APPLICATIONS OF OUR TECHNOLOGY ARE SUBJECT TO A LENGTHY AND
UNCERTAIN REGULATORY PROCESS.
The FDA must approve any drug or biologic product before it can be marketed
in the United States. In addition, prior to being sold outside of the U.S., any
products resulting from the application of our mammalian technology must be
approved by the regulatory agencies of foreign governments. Prior to filing a
new drug application or biologics license application with the FDA, we would
have to perform extensive pre-clinical testing and clinical trials, which could
take several years and may require substantial expenditures. Any failure to
obtain regulatory approval could delay or prevent us from commercializing our
mammalian technology.
CLINICAL TRIALS ON OUR HUMAN HEALTH APPLICATIONS MAY BE UNSUCCESSFUL IN
DEMONSTRATING EFFICACY AND SAFETY, WHICH COULD DELAY OR PREVENT REGULATORY
APPROVAL.
Clinical trials may reveal that our mammalian technology is ineffective or
harmful, which would significantly limit the possibility of obtaining regulatory
approval for any drug or biologic product manufactured with our technology. The
FDA requires submission of extensive pre-clinical, clinical and manufacturing
data to assess the efficacy and safety of potential products. Furthermore, the
success of preliminary studies does not ensure commercial success, and
later-stage clinical trials may fail to confirm the results of the preliminary
studies.
CONSUMERS MAY NOT ACCEPT OUR TECHNOLOGY.
We cannot guarantee that consumers will accept products containing our
technology. Recently, there has been consumer concern and consumer advocate
activism with respect to genetically engineered consumer products. The adverse
consequences from heightened consumer concern in this regard could affect the
markets for products developed with our technology and could also result in
increased government regulation in response to that concern. If the public or
potential customers perceive our technology to be genetic modification or
genetic engineering, agricultural products grown with our technology may not
gain market acceptance.
7
WE DEPEND ON OUR KEY RESEARCH PERSONNEL.
We are highly dependent on our scientific advisors, consultants and
third-party research partners. Dr. Thompson is the inventor of our technology
and the driving force behind our current research. The loss of Dr. Thompson
would severely hinder our technological development. Our success will also
depend in part on the continued service of our key employees and our ability to
identify, hire and retain additional qualified personnel in an intensely
competitive market. We do not maintain key person life insurance on any member
of management. The failure to attract and retain key personnel could limit our
growth and hinder our research and development efforts.
CERTAIN PROVISIONS OF OUR CHARTER, BY-LAWS AND DELAWARE LAW COULD MAKE A
TAKEOVER DIFFICULT.
Certain provisions of our certificate of incorporation and by-laws could
make it more difficult for a third party to acquire control of us, even if the
change in control would be beneficial to stockholders. Our certificate of
incorporation authorizes our board of directors to issue, without stockholder
approval, except as may be required by the rules of the American Stock Exchange,
5,000,000 shares of preferred stock with voting, conversion and other rights and
preferences that could adversely affect the voting power or other rights of the
holders of our common stock. Similarly, our by-laws do not restrict our board of
directors from issuing preferred stock without stockholder approval.
In addition, we are subject to the Business Combination Act of the Delaware
General Corporation Law which, subject to certain exceptions, restricts certain
transactions and business combinations between a corporation and a stockholder
owning 15% or more of the corporation's outstanding voting stock for a period of
three years from the date such stockholder becomes a 15% owner. These provisions
may have the effect of delaying or preventing a change of control of our company
without action by our stockholders and, therefore, could adversely affect the
value of our common stock.
Furthermore, in the event of our merger or consolidation with or into
another corporation, or the sale of all or substantially all of our assets in
which the successor corporation does not assume outstanding options or issue
equivalent options, our board of directors is required to provide accelerated
vesting of outstanding options.
OUR MANAGEMENT AND OTHER AFFILIATES HAVE SIGNIFICANT CONTROL OF OUR COMMON STOCK
AND COULD CONTROL OUR ACTIONS IN A MANNER THAT CONFLICTS WITH OUR INTERESTS AND
THE INTERESTS OF OTHER STOCKHOLDERS.
Our executive officers, directors and affiliated entities together
beneficially own approximately 51.62% of the outstanding shares of our common
stock as of June 30, 2002 and 45.9% as of December 31, 2002, assuming the
exercise of options and warrants which are currently exercisable, held by these
stockholders. As a result, these stockholders, acting together, will be able to
exercise considerable influence over matters requiring approval by our
stockholders, including the election of directors, and may not always act in the
best interests of other stockholders. Such a concentration of ownership may have
the effect of delaying or preventing a change in control of us, including
transactions in which our stockholders might otherwise receive a premium for
their shares over then current market prices.
OUR STOCKHOLDERS MAY EXPERIENCE SUBSTANTIAL DILUTION AS A RESULT OF OUTSTANDING
OPTIONS AND WARRANTS TO PURCHASE OUR COMMON STOCK.
As of December 31, 2002, we have granted options outside of our stock
option plan to purchase 10,000 shares of our common stock and warrants to
purchase 4,207,153 shares of our common stock. In addition, we have reserved
3,000,000 shares of our common stock for issuance upon the exercise of options
granted pursuant to our stock option plan, 1,771,000 of which have been granted
as of December 31, 2002 and 1,229,000 of which may be granted in the future. The
exercise of these options and warrants will result in dilution to our existing
stockholders and could have a material adverse effect on our stock price.
8
SHARES ELIGIBLE FOR PUBLIC SALE.
As of December 31, 2002, we had 11,880,045 shares of our common stock
issued and outstanding, of which approximately 8,000,000 shares are registered
pursuant to a registration statement on Form S-3, which was deemed effective on
June 28, 2002, and the remainder of which are in the public float. In addition,
we are registering 3,000,000 shares of our common stock underlying options
granted or to be granted under our stock option plan. Consequently, sales of
substantial amounts of our common stock in the public market, whether by
purchasers in this offering or stockholders holding shares of our registered
common stock, or the perception that such sales could occur, may adversely
affect the market price of our common stock.
RISKS RELATED TO THIS OFFERING.
Our common stock is quoted on the American Stock Exchange and currently has
a limited trading market. We cannot assure you that an active trading market
will develop or, if developed, will be maintained. As a result, you may find it
difficult to dispose of, or to obtain accurate quotations as to the value of,
shares of our common stock and may suffer a loss of all or a substantial portion
of your investment.
OUR STOCK PRICE MAY FLUCTUATE AFTER THIS OFFERING.
We cannot guarantee that you will be able to resell the shares of our
common stock at or above your purchase price. The market price of our common
stock may fluctuate significantly in response to a number of factors, some of
which are beyond our control. These factors include:
o quarterly variations in operating results;
o the progress or perceived progress of our research and
development efforts;
o changes in accounting treatments or principles;
o announcements by us or our competitors of new technology, product
and service offerings, significant contracts, acquisitions or
strategic relationships;
o additions or departures of key personnel;
o future offerings or resales of our common stock or other
securities;
o stock market price and volume fluctuations of publicly-traded
companies in general and development companies in particular; and
o general political, economic and market conditions.
IF OUR COMMON STOCK IS DELISTED FROM THE AMERICAN STOCK EXCHANGE, IT MAY BE
SUBJECT TO THE "PENNY STOCK" REGULATIONS WHICH MAY AFFECT THE ABILITY OF OUR
STOCKHOLDERS TO SELL THEIR SHARES.
In general, regulations of the SEC define a "penny stock" to be an equity
security that is not listed on a national securities exchange or Nasdaq and that
has a market price of less than $5.00 per share or with an exercise price of
less than $5.00 per share, subject to certain exceptions. If the American Stock
Exchange delists our common stock, it could be deemed a penny stock, which
imposes additional sales practice requirements on broker-dealers that sell such
securities to persons other than certain qualified investors. For transactions
involving a penny stock, unless exempt, a broker-dealer must make a special
suitability determination for the purchaser and receive the purchaser's written
consent to the transaction prior to the sale. In addition, the rules on penny
stocks require delivery, prior to and after any penny stock transaction, of
disclosures required by the SEC.
If our common stock were subject to the rules on penny stocks, the market
liquidity for our common stock could be severely and adversely affected.
Accordingly, the ability of holders of our common stock to sell their shares in
the secondary market may also be adversely affected.
9
INCREASING POLITICAL AND SOCIAL TURMOIL, SUCH AS TERRORIST AND MILITARY ACTIONS,
INCREASE THE DIFFICULTY FOR US AND OUR STRATEGIC PARTNERS TO FORECAST ACCURATELY
AND PLAN FUTURE BUSINESS ACTIVITIES.
Recent political and social turmoil, including the terrorist attacks of
September 11, 2001 and the current crisis in the Middle East, can be expected to
put further pressure on economic conditions in the United States and worldwide.
These political, social and economic conditions may make it difficult for us to
plan future business activities. Specifically, if the current crisis in Israel
continues to escalate, our joint venture with Rahan Meristem Ltd. could be
adversely affected.
10
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes and incorporates forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934 based upon the beliefs of our management, as well as assumptions made by,
and the information currently available to, our management. All statements,
other than statements of historical facts, included or incorporated in this
prospectus regarding our strategy, future operations, financial position, future
revenues, projected costs, prospects, plans and objectives of management are
forward-looking statements. The words "anticipates," "believes," "estimates,"
"expects," "intends," "may," "plans," "projects," "will," "would" and similar
expressions are intended to identify forward-looking statements, although not
all forward-looking statements contain these identifying words. We cannot
guarantee that we actually will achieve the plans, intentions or expectations
disclosed in our forward-looking statements and you should not place undue
reliance on our forward-looking statements. Actual results or events could
differ materially from the plans, intentions and expectations disclosed in the
forward-looking statements we make. We have included important factors in the
cautionary statements included or incorporated in this prospectus, particularly
under the heading "Risk Factors," that we believe could cause actual results or
events to differ materially from the forward-looking statements that we make.
Our forward-looking statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or investments we may make.
You are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date of this prospectus. Except for
special circumstances in which a duty to update arises when prior disclosure
becomes materially misleading in light of subsequent circumstances, we do not
intend to update any of these forward-looking statements to reflect events or
circumstances after the date of this prospectus or to reflect the occurrence of
unanticipated events.
USE OF PROCEEDS
We will not receive any proceeds from the sale of our common stock by the
selling stockholders. We will receive the proceeds from the exercise of options
held by the selling stockholders, if any are exercised. The options entitle the
selling stockholders to purchase shares of our common stock at exercise prices
ranging from $1.50 to $4.00 per share and with a weighted average exercise price
of $2.60 per share.
The selling stockholders will pay any underwriting discounts and
commissions and expenses incurred by the selling stockholders in disposing of
the shares. We will bear all other costs, fees and expenses incurred in
effecting the registration of the shares covered by this prospectus, including,
without limitation, all registration and filing fees, American Stock Exchange
listing fees and fees and expenses of our counsel and our accountants.
11
SELLING STOCKHOLDERS
The selling stockholders listed in the following table may acquire
1,312,500 shares of our common stock being registered pursuant to this
prospectus through the exercise of options previously granted to them by us.
These shares of common stock may not be sold or otherwise transferred by the
selling stockholders unless and until the applicable options are exercised in
accordance with their terms.
The 1,312,500 shares covered by this prospectus represent approximately 10%
of our outstanding shares of common stock as of February 28, 2003. Such
percentage calculation is based on 11,880,045 shares of common stock outstanding
as of February 28, 2003, and the issuance of an additional 1,312,500 shares of
common stock assuming the exercise of all the options held by the selling
stockholders.
The following table sets forth: (i) the name of each selling stockholder
whose name is known as of the date of the filing of this prospectus; (ii) his or
her position(s), office or other material relationship with us and our
predecessors or affiliates over the last three years; (iii) the number of shares
of common stock owned (or subject to options or warrants) by each selling
stockholder as of February 28, 2003 and prior to this offering; (iv) the number
of shares of common stock which may be offered and are being registered for the
account of each selling stockholder by this prospectus (all of which may be
acquired by the selling stockholders pursuant to the exercise of options subject
to the appropriate vesting of such options); and (v) the amount of common stock
to be owned by each such selling stockholder if such selling stockholder were to
sell all of their shares of common stock covered by this prospectus.
The selling stockholders may sell none of the shares or less than all of
the shares listed on the table. In addition, the shares listed below may be sold
pursuant to this prospectus or in privately negotiated transactions.
Accordingly, we cannot estimate the number of shares of common stock that the
selling stockholders will sell under this prospectus.
In addition, options or shares of common stock may be issued under the Plan
in amounts and to persons not presently known by us. Such information, when
known, may be included in an amendment or supplement to this prospectus.
Ownership of Ownership of
Selling Stockholders Number of Shares Selling Stockholders
Name and Position (1) Prior to Offering (2) Offered Hereby (3) After Offering (2) (3)
------------------------------ ----------------------- ------------------ ----------------------
Number Percent (%) Number Number Percent (%)
------ ----------- ------ ------ -----------
Ruedi Stalder, Chairman of
the Board of Directors 456,667(4) 3.72% 390,000 66,667 *
Bruce C. Galton, President,
Chief Executive Officer and
Director 432,000(5) 3.51% 430,000 2,000 *
John E. Thompson, Ph.D.,
Executive Vice President
of Research and Development
and Director 712,000(6) 5.92% 140,000 572,000 4.76%
Christopher Forbes, Director 826,029(7) 6.90% 100,000 726,029 6.06%
Thomas C. Quick, Director 328,787(8) 2.74% 100,000 228,787 1.91%
Joel Brooks, Chief Financial
Officer and Treasurer 54,500(9) * 52,500 2,000 *
Sascha P. Fedyszyn, Vice
President of Corporate
Development and Secretary 123,360(10) 1.03% 85,000 38,360 *
David Rector, Director 15,000(11) * 15,000 -- *
--------------------------
* Less than one percent.
12
(1) At the time of this offering, there are no unnamed non-affiliates of Senesco
holding less than the lesser of 1,000 shares or one percent of the shares
issuable under the Plan from the exercise of stock options, excluding options to
purchase additional shares of common stock that may be held by each such
individual, which may be sold pursuant to this offering.
(2) Applicable percentage of ownership is based on 11,880,045 shares of common
stock outstanding as of February 28, 2003, plus the issuance of additional
shares of common stock assuming the exercise of all the options and warrants
held by such selling stockholder (whether vested or unvested).
(3) Assumes that all of the shares of common stock to be offered by the selling
stockholder, as set forth above, are sold pursuant to this offering and that no
other shares of common stock are acquired or disposed of by the selling
stockholders prior to the termination of this offering. Because the selling
stockholders may sell all, some or none of the shares registered under this
prospectus or may acquire or dispose of other shares of common stock, no
reliable estimate can be made of the aggregated number of shares that will be
sold pursuant to this offering or the number or percentage of shares of common
stock that each selling stockholder will own upon completion of this offering.
(4) Includes 390,000 shares of common stock underlying directly held vested and
unvested options granted prior to this offering.
(5) Includes 430,000 shares of common stock underlying directly held vested and
unvested options granted prior to this offering.
(6) Includes 140,000 shares of common stock underlying directly held vested and
unvested options granted prior to this offering.
(7) Includes 100,000 shares of common stock underlying directly held vested and
unvested options and 178,106 shares of common stock underlying directly held
vested warrants granted prior to this offering.
(8) Includes 100,000 shares of common stock underlying directly held vested and
unvested options and 89,053 shares of common stock underlying directly held
vested warrants granted prior to this offering.
(9) Includes 52,500 shares of common stock underlying directly held vested and
unvested options granted prior to this offering.
(10) Includes 85,000 shares of common stock underlying directly held vested and
unvested options granted prior to this offering.
(11) Represents 15,000 shares of common stock underlying directly held vested
and unvested options granted prior to this offering.
13
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time to
time by the selling stockholders. The term "selling stockholders" includes
donees, pledgees, transferees or other successors-in-interest selling shares
received after the date of this prospectus from a selling stockholder as a gift,
pledge, partnership distribution or other non-sale related transfer. The selling
stockholders will act independently of us in making decisions with respect to
the timing, manner and size of each sale. Such sales may be made on one or more
exchanges or in the over-the-counter market or otherwise, at prices and under
terms then prevailing or at prices related to the then current market price or
in negotiated transactions. The selling stockholders may sell their shares by
one or more of, or a combination of, the following methods:
o purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
o block trades in which the broker-dealer so engaged will attempt
to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;
o an over-the-counter distribution in accordance with the rules of
the Nasdaq National Market;
o in privately negotiated transactions; and
o in options transactions.
In addition, any shares that qualify for sale pursuant to Rule 144 may be
sold under Rule 144 rather than pursuant to this prospectus.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In connection with
distributions of the shares or otherwise, the selling stockholders may enter
into hedging transactions with broker-dealers or other financial institutions.
In connection with such transactions, broker-dealers or other financial
institutions may engage in short sales of the common stock in the course of
hedging the positions they assume with selling stockholders. The selling
stockholders may also sell the common stock short and redeliver the shares to
close out such short positions. The selling stockholders may also enter into
option or other transactions with broker-dealers or other financial institutions
which require the delivery to such broker-dealer or other financial institution
of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or
amended to reflect such transaction). The selling stockholders may also pledge
shares to a broker-dealer or other financial institution, and, upon a default,
such broker-dealer or other financial institution, may effect sales of the
pledged shares pursuant to this prospectus (as supplemented or amended to
reflect such transaction).
In effecting sales, broker-dealers or agents engaged by the selling
stockholders may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
stockholders in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling stockholders
and any broker-dealers who execute sales for the selling stockholders may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933 in
connection with such sales. Any profits realized by the selling stockholders and
the compensation of any broker-dealer may be deemed to be underwriting discounts
and commissions.
In order to comply with the securities laws of certain states, if
applicable, the shares must be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
14
We have advised the selling stockholders that the anti-manipulation rules
of Regulation M under the Exchange Act may apply to sales of shares in the
market and to the activities of the selling stockholders and their affiliates.
In addition, we will make copies of this prospectus available to the selling
stockholders for the purpose of satisfying the prospectus delivery requirements
of the Securities Act of 1933. The selling stockholders may indemnify any
broker-dealer that participates in transactions involving the sale of the shares
against certain liabilities, including liabilities arising under the Securities
Act of 1933.
At the time a particular offer of shares is made, if required, a prospectus
supplement will be distributed that will set forth the number of shares being
offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any discount, commission or
concession allowed or reallowed or paid to any dealer, and the proposed selling
price to the public.
EXPERTS
The audited consolidated financial statements incorporated by reference in
this prospectus and elsewhere in the registration statement have been audited by
Goldstein Golub Kessler LLP, independent public accountants, as indicated in
their report with respect thereto, and are incorporated by reference in reliance
upon the authority of said firm as experts in accounting and auditing in giving
said report.
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus have
been passed upon for us by Hale and Dorr LLP, Princeton, New Jersey. We have
granted to Hale and Dorr LLP a warrant to purchase 15,000 shares of our common
stock.
15
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation) by reason of the fact that such person
is or was a director, officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. A corporation may, in advance of
the final disposition of any civil, criminal, administrative or investigative
action, suit or proceeding, pay the expenses (including attorneys' fees)
incurred by any officer, director, employee or agent in defending such action,
provided that the director or officer undertakes to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
corporation. A corporation may indemnify such person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses (including attorneys fees) which he actually and reasonably
incurred in connection therewith. The indemnification provided is not deemed to
be exclusive of any other rights to which an officer or director may be entitled
under any corporation's by-law, agreement, vote or otherwise.
Our certificate of incorporation includes a provision that eliminates the
personal liability of our directors to us or our stockholders for monetary
damages for breach of their fiduciary duty to the maximum extent permitted by
the DGCL. The DGCL does not permit liability to be eliminated (i) for any breach
of a director's duty of loyalty to us or our stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions, as provided in Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal benefit. In
addition, as permitted in Section 145 of the DGCL, our certificate of
incorporation and by-laws provide that we shall indemnify our directors and
officers to the fullest extent permitted by the DGCL, including those
circumstances in which indemnification would otherwise be discretionary, subject
to certain exceptions. Our by-laws also provide that we shall advance expenses
to directors and officers incurred in connection with an action or proceeding as
to which they may be entitled to indemnification, subject to certain exceptions.
Each of our indemnification agreements with each of our executive officers
and directors provides for indemnification to the maximum extent permitted by
applicable law. We also indemnify each of our directors and executive officers
with the maximum indemnification allowed to directors and executive officers by
the DGCL, subject to certain exceptions, as well as certain additional
procedural protections. In addition, we will generally advance expenses incurred
by directors and executive officers in any action or proceeding as to which they
may be entitled to indemnification, subject to certain exceptions.
The indemnification provisions in our certificate of incorporation and
by-laws also permit indemnification for liabilities arising under the Securities
Act of 1933. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable.
We currently carry director and officer liability insurance in the amount
of $2,000,000.
16
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The SEC permits us to "incorporate by reference" the information we file
with the SEC, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this Prospectus, and information that we file later with the
SEC will automatically update and supercede this information. We incorporate by
reference the documents listed below and any future filings made by us with the
SEC under Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of
1934, as amended, until the filing of a post-effective amendment to this
Prospectus which indicates that all Shares registered here have been sold or
which deregisters all Shares then remaining unsold. The following documents,
which are on file with the Commission, are incorporated in this registration
statement by reference:
(a) Senesco's annual report filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, which includes audited financial statements for
our latest fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
document referred to in (a) above.
(c) The description of Senesco's common stock, $0.01 par value, which is
contained in our registration statement on Form 8-A filed on May 14, 2002, under
the Securities Exchange Act of 1934, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this registration statement
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for the purposes
of this registration statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Hale and Dorr LLP has opined as to the legality of the securities being
offered by this registration statement. Hale and Dorr LLP is the holder of a
warrant to purchase 15,000 shares of our common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation) by reason of the fact that such person
is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. A corporation may, in advance of the final
disposition of any civil, criminal, administrative or investigative action, suit
or proceeding, pay the expenses (including attorneys' fees) incurred by any
officer, director, employee or agent in defending such action, provided that the
director or officer undertakes to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation. A
corporation may indemnify such person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses (including attorneys fees) which he actually and reasonably
incurred in connection therewith. The indemnification provided is not deemed to
be exclusive of any other rights to which an officer or director may be entitled
under any corporation's by-law, agreement, vote or otherwise.
Our certificate of incorporation includes a provision that eliminates the
personal liability of our directors to us or our stockholders for monetary
damages for breach of their fiduciary duty to the maximum extent permitted by
the DGCL. The DGCL does not permit liability to be eliminated (i) for any breach
of a director's duty of loyalty to us or our stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions, as provided in Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal benefit. In
addition, as permitted in Section 145 of the DGCL, our certificate of
incorporation and by-laws provide that we shall indemnify our directors and
officers to the fullest extent permitted by the DGCL, including those
circumstances in which indemnification would otherwise be discretionary, subject
to certain exceptions. Our by-laws also provide that we shall advance expenses
to directors and officers incurred in connection with an action or proceeding as
to which they may be entitled to indemnification, subject to certain exceptions.
Each of our indemnification agreements with each of our executive officers
and directors provides for indemnification to the maximum extent permitted by
applicable law. We also indemnify each of our directors and executive officers
with the maximum indemnification allowed to directors and executive officers by
the DGCL, subject to certain exceptions, as well as certain additional
procedural protections. In addition, we will generally advance expenses incurred
by directors and executive officers in any action or proceeding as to which they
may be entitled to indemnification, subject to certain exceptions.
The indemnification provisions in our certificate of incorporation and
by-laws also permit indemnification for liabilities arising under the Securities
Act of 1933. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable.
We currently carry director and officer liability insurance in the amount
of $2,000,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The issuance of the shares being offered by this registration statement
were deemed exempt from registration under the Securities Act of 1933 in
reliance upon either Section 4(2) of the Securities Act of 1933 as transactions
not involving any public offering or Rule 701 under the Securities Act of 1933
as transactions made pursuant to a written compensatory plan or pursuant to a
written contract relating to compensation.
ITEM 8. EXHIBITS.
Number Description
------ -----------
4.1 + Amended and Restated Certificate of Incorporation of
Senesco Technologies, Inc., filed with the State of Delaware
on December 26, 2002.
4.2 * Amended and Restated Bylaws of Senesco.
5.1 Opinion of Hale and Dorr LLP, counsel to Senesco.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of Goldstein Golub Kessler LLP.
24.1 Power of attorney (included on the signature pages of this
registration statement).
99.1 + Senesco's 1998 Stock Incentive Plan, as amended.
------------
+ Previously filed with the Securities and Exchange Commission as an Exhibit
to Senesco's quarterly report on Form 10-QSB for the period ended December
31, 2002, and incorporated herein by reference.
* Previously filed with the Securities and Exchange Commission as an Exhibit
to Senesco's quarterly report on Form 10-QSB for the period ended September
30, 1999, and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) Senesco hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Senesco hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, Senesco has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Brunswick, State of New Jersey, on this 28th day
of March, 2003.
SENESCO TECHNOLOGIES, INC.
By: /s/ Bruce C. Galton
--------------------------------------
Bruce C. Galton
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bruce C. Galton and Joel Brooks, jointly and
severally, his true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
registration statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Bruce C. Galton President, Chief Executive March 17, 2003
------------------------ Officer and Director (Principal
Bruce C. Galton Executive Officer)
/s/ Joel Brooks Chief Financial Officer and March 17, 2003
------------------------ Treasurer (Principal Financial
Joel Brooks and Accounting Officer)
/s/ Ruedi Stalder Chairman of the Board and Director March 17, 2003
------------------------
Ruedi Stalder
/s/ John E. Thompson Executive Vice President of March 17, 2003
------------------------ Research and Development and
John E. Thompson, Ph.D. Director
/s/ Christopher Forbes Director March 17, 2003
------------------------
Christopher Forbes
/s/ Thomas C. Quick Director March 28, 2003
------------------------
Thomas C. Quick
/s/ David Rector Director March 17, 2003
------------------------
David Rector
/s/ Philip B. Livingston Director March 17, 2003
-------------------------
Philip B. Livingston
INDEX TO EXHIBITS
Number Description
------ -----------
4.1 + Amended and Restated Certificate of Incorporation of
Senesco Technologies, Inc., filed with the State of Delaware
on December 26, 2002.
4.2 * Amended and Restated Bylaws of Senesco.
5.1 Opinion of Hale and Dorr LLP, counsel to Senesco.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of Goldstein Golub Kessler LLP.
24.1 Power of attorney (included on the signature pages of this
registration statement).
99.1 + Senesco's 1998 Stock Incentive Plan, as amended.
------------
+ Previously filed with the Securities and Exchange Commission as an Exhibit
to Senesco's quarterly report on Form 10-QSB for the period ended December
31, 2002, and incorporated herein by reference.
* Previously filed with the Securities and Exchange Commission as an Exhibit
to Senesco's quarterly report on Form 10-QSB for the period ended September
30, 1999, and incorporated herein by reference.