EXHIBIT 10.26
ALFACELL CORPORATION
PURCHASE AGREEMENT FOR
COMMON STOCK
Alfacell Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Kuslima Shogen, President
and Chief Executive Officer
Dear Ms. Shogen:
The undersigned acknowledges that there is no minimum proceeds
requirement for the closing of this offering, the Company may close only on
the undersigned's investment and such investment may be inadequate to meet
the Company's cash requirement.
The undersigned hereby subscribes to purchase shares of Common
Stock, $.001 par value per share (the "Shares") of Alfacell Corporation, a
Delaware corporation (the "Company") at a cost of $ in full
payment of the purchase price for the Shares to which the
undersigned subscribes (in the manner indicated on the signature page
hereof.)
The undersigned understands that the right to transfer all or any part
of the Shares (hereinafter sometimes collectively referred to as the
"Securities") will be restricted. The undersigned may not transfer the
Securities unless they are registered under the Act and applicable state
securities or "blue sky" laws, or an exemption from such registration is
available. The undersigned recognizes that the Company shall have no
obligation to register the Securities, except as set forth herein.
The undersigned hereby represents, warrants and covenants that:
1. The undersigned is acquiring the Shares for the undersigned's own
account for investment and not with a view towards distribution. The
undersigned will not sell, hypothecate, transfer or otherwise dispose of
the Securities unless such transaction has been registered under the Act
or, in the opinion of counsel for the Company, an exemption from
registration is available.
2. Please check here if the representation contained in this
paragraph 2 is applicable to the undersigned . (i) The
undersigned's individual net worth or joint net worth with the
undersigned's spouse exceeds $1,000,000 as of the date hereof, (ii) the
undersigned's individual income has been in excess of $200,000 in 1994, or
(iii) the undersigned's joint income with the undersigned's spouse has been
in excess of $300,000 in each of 1992 and 1993 and is expected to be in
excess of $300,000 in 1994.
3. Whether or not the representation contained in paragraph 2 is
applicable to the undersigned, the undersigned has adequate means of
providing for the undersigned's current needs and possible contingencies
and has no need for liquidity of the Shares. The undersigned's overall
commitment to investments is not disproportionate to the undersigned's net
worth, and acquisition of the Shares will not cause such overall commitment
to become excessive. Prior to the execution hereof, the undersigned has
received and had the opportunity to review, examine and read all documents,
records and books pertaining to this investment, including the Company's
Annual Report on Form 10-K for the fiscal year ended July 31, 1994, the
Company's Quarterly Reports on Form 10-QSB for each of the two quarterly
periods subsequent to the fiscal year ended July 31, 1994 and copy of the
Company's Proxy Statement as distributed to its stockholders in connection
with the annual meeting of stockholders held on December 6, 1994
(collectively, the "Disclosure Documents").
4. The undersigned is knowledgeable and experienced in financial and
business matters. The undersigned recognizes and is fully cognizant of the
fact that the investment contemplated hereby involves a high degree of
risk. The undersigned is able to evaluate the merits and risks of an
investment in the Shares. The undersigned has been given an opportunity to
ask questions of, and receive answers and obtain information from,
representatives of the Company concerning the Company.
5. The undersigned has been given no oral or written representations
or assurances by the Company or any other person acting or purporting to
act on behalf of the Company in connection with the acquisition of the
Shares, in each case except as provided herein or in the Disclosure
Documents.
6. The undersigned understands and specifically acknowledges and
agrees that since the Shares have not been registered under the Act, the
certificates representing the Securities will bear a legend to such effect
and a stop transfer order will be placed on the Securities in the Company's
transfer books.
7. In the event Seller intends to file a registration statement for
its common stock (or any warrant, option or right to purchase stock) for
purposes of registering such stock for public sale under applicable federal
and state securities laws, Seller shall take action to include in such
registration statement to the extent it is able to do so such number of the
Shares as Buyer shall request and will use its best efforts to cause such
registration statement to be declared effective under the Securities Act of
1933 and applicable state securities laws. Buyer shall provide such
information as Sell shall reasonably request to prepare and file such
registration statement.
In connection with any such registration of Share, the Company shall
supply prospectuses, use its best efforts to qualify the Shares for sale in
the states of New York and New Jersey and furnish indemnification in the
manner set forth below.
The Company shall bear the entire cost and expense of any such
Registration hereunder. Notwithstanding the foregoing, each holder of
Shares shall bear the fees of all persons retained by it, such as counsel
and accountants, and any transfer taxes or underwriting discounts or
commissions applicable to the Shares sold by it pursuant to the
Registration Statement.
The Company shall indemnify and hold harmless each holder of Shares
that are registered pursuant to the Registration Statement and each
underwriter, within the meaning of the Act, who may purchase from or sell
for any such holder any such Shares and each person, if any, who controls
any such holder or underwriter within the meaning of the Act, from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement of a material fact contained in the Registration Statement
or any post-effective amendment thereto or any prospectus included therein
required to be filed or furnished in connection therewith or caused by any
omission to state therein a material fact required to be stated therein in
order to make the statements made therein, in light of the circumstances
under which they were make, not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission based upon information furnished or required to be furnished in
writing to the Company by such holder or underwriter expressly for use
therein; PROVIDED, HOWEVER, that such holder or underwriter shall indemnify
the Company, its directors, each officer signing the Registration Statement
and each person, if any, who controls the Company within the meaning of the
Act, from and against any and all losses, claims, damages and liabilities
caused by any untrue statement of a material fact contained inn any
Registration Statement or any post-effective amendment thereto or any
prospectus included therein required to filed or furnished pursuant thereto
or caused by any omission to state therein a material fact required to be
state therein in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, insofar as such
losses, claims, damages or liabilities are caused by any untrue statement
or omission based upon information furnished in writing to the Company by
any such holder or underwriter expressly for use therein.
By its acceptance hereof, the Company hereby acknowledges that the
foregoing accurately reflects its understanding concerning the transaction
contemplated hereby.
Very truly yours,
(Signature)
Please type or print name
(and title if applicable)
Social Security Number of
Taxpayer Identification Number
Address:
As of Date
Number of Shares
Amount of Subscription
(U.S. Dollars)
ACCEPTED AND AGREED
ALFACELL CORPORATION
By:
Name: Kuslima Shogen
Title: President and Chief
Executive Officer
PURCHASE AGREEMENT FOR
COMMON STOCK
Alfacell Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Kuslima Shogen, President
and Chief Executive Officer
Dear Ms. Shogen:
The undersigned acknowledges that there is no minimum proceeds
requirement for the closing of this Offering, the Company may close only
on the undersigned's investment and such investment may be inadequate to
meet the Company's cash requirements.
The undersigned hereby subscribes to purchase ________ shares of
Common Stock, $.001 par value per share (the "Shares") of Alfacell
Corporation, a Delaware corporation (the "Company")at a cost of $______
per share. The Shares are being sold in a transaction exempt from
registration under the Securities Act of 1933, as amended (the "Act").
The undersigned tenders herewith $_________ in full payment of the
purchase price for the _________ Shares to which the undersigned
subscribes (in the manner indicated on the signature page hereof.)
The undersigned understands that the right to transfer all or any
part of the Shares (hereinafter sometimes collectively referred to as the
"Securities") will be restricted. The undersigned may not transfer the
Securities unless they are registered under the Act and applicable state
securities or "blue sky" laws, or an exemption from such registration is
available. The undersigned recognizes that the Company shall have no
obligation to register the Securities, except as set forth herein.
The undersigned hereby represents, warrants and covenants that:
1. The undersigned is acquiring the Shares for the undersigned's
own account for investment and not with a view towards distribution. The
undersigned will not sell, hypothecate, transfer or otherwise dispose of
the Securities unless such transaction has been registered under the Act
or, in the opinion of counsel for the Company, an exemption from
registration is available.
2. (i) Please check here if the representation contained in this
paragraph 2(i) is applicable to the undersigned _________. (A)If an
individual, (a) the undersigned's individual net worth or joint net worth
with the undersigned's spouse exceeds $1,000,000 as of the date hereof, or
(b) the undersigned's individual income has been in excess of $200,000 in
each of 1994 and 1993 and is expected to be in excess of $200,000 in 1995,
or (c) the undersigned's joint income with the undersigned's spouse has
been in excess of $300,000 in each of 1994 and 1993 and is expected to be
in excess of $300,000 in 1995; or (B) if a corporation, partnership, or
other entity, the foregoing representation applies to all of the equity
owners of the corporation, partnership, or entity.
(ii) If a corporation, partnership, or other entity, was such a
corporation, partnership, or other entity formed for the specific purpose
of acquiring the Shares? _____Yes _____ No
(iii) If the answer to 2(ii) is yes, how many equity owners does
the corporation partnership or entity have? _____
3. Whether or not the representation contained in paragraph 2(i) is
applicable to the undersigned, the undersigned has adequate means of
providing for the undersigned's current needs and possible contingencies
and has no need for liquidity of the Shares. The undersigned's overall
commitment to investments is not disproportionate to the undersigned's net
worth, and acquisition of the Shares will not cause such overall
commitment to become excessive. Prior to the execution hereof, the
undersigned has received and had the opportunity to review, examine and
read all documents, records and books pertaining to this investment,
including the Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1994, the Company's Quarterly Reports on Form 10-QSB for
each of the three quarterly periods subsequent to the fiscal year ended
July 31, 1994 and a copy of the Company's Proxy Statement as distributed
to its stockholders in connection with the annual meeting of stockholders
held on December 6, 1994 (collectively, the "Disclosure Documents").
4. The undersigned is knowledgeable and experienced in financial
and business matters. The undersigned recognizes and is fully cognizant
of the fact that the investment contemplated hereby involves a high degree
of risk. The undersigned is able to evaluate the merits and risks of an
investment in the Shares. The undersigned has been given an opportunity
to asks questions of, and receive answers and obtain information from,
representatives of the Company concerning the Company.
5. The undersigned has been given no oral or written
representations or assurances by the Company or any other person acting or
purporting to act on behalf of the Company in connection with the
acquisition of the Shares, in each case except as provided herein or in
the Disclosure Documents.
6. The undersigned understands and specifically acknowledges and
agrees that since the Shares have not been registered under the Act, the
certificates representing the Securities will bear a legend to such effect
and a stop transfer order will be placed on the Securities in the
Company's transfer books.
7. By its acceptance hereof, the Company hereby agrees that on or
around August 31, 1995, the Company shall use its best efforts to file a
registration statement (the "Registration Statement") under the Act to
register the resale of the Shares by the undersigned. The Company further
agrees to use its best efforts to cause such Registration Statement to
become effective.
In the case of the registration effected by Alfacell pursuant to
these registration provisions, Alfacell shall use its best efforts to: (i)
keep such registration effective until the earlier of (A) three years from
issue or (B) such date as all of the Shares have been resold; (ii) prepare
and file with the SEC such amendments and supplements to the Registration
Statement and the prospectus used in connection with the Registration
Statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all Shares covered by
the Registration Statement; (iii) furnish such number of prospectuses and
other documents incident thereto, including any amendment of or supplement
to the prospectus, as a Purchaser from time to time may reasonably
request: (iv) cause all Shares registered as described herein to be listed
on each securities exchange and quoted on each quotation service on which
similar securities issued by Alfacell are then listed or quoted; (v)
provide a transfer agent and registrar for all Shares registered pursuant
to the Registration Statement and a CUSIP number for all such Shares; (vi)
otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC; and (vii) file the documents required of Alfacell
and otherwise use its reasonable best efforts to maintain requisite blue
sky clearance in all United States jurisdictions specified in writing by a
Purchaser; provided, however that Alfacell shall not be required to
qualify to do business or consent to service of process in any state in
which it is not now so qualified or has not so consented.
With a view to making available to the Purchaser the benefits of Rule
144 and any other rule or regulation of the SEC that may at any time
permit a Purchaser to sell Shares to the public pursuant to registration
statement, Alfacell covenants and agrees to use its best efforts to: (i)
make and keep public information available, as those terms are understood
and defined in Rule 144, until the earlier of (A) the third anniversary of
the date hereof or (B) such date as all of the Shares shall have been
resold; (ii) file with the SEC in a timely manner all reports and other
documents required of Alfacell under the Securities Act and Exchange Act;
and (iii) furnish to the Purchaser upon request, as long as the Purchaser
owns any Shares (A) a written statement by Alfacell that it has complied
with the reporting requirements of the Securities Act and the Exchange Act
(assuming this is accurate at the time the Purchaser makes such a
request), (B) a copy of the most recent annual or quarterly report of
Alfacell and (C) such other information as may be reasonably requested in
order to avail the Purchaser of any rule or regulation of the SEC that
permits the selling of any such Shares pursuant to Rule 144.
The Company shall bear the entire cost and expense of any such
Registration hereunder. Notwithstanding the foregoing, the undersigned
shall bear the fees of all persons retained by it, such as counsel and
accountants, and any transfer taxes or underwriting discounts or
commissions applicable to the Shares sold by it pursuant to the
Registration Statement.
The Company shall indemnify and hold harmless each holder of Shares
that are registered pursuant to the Registration Statement and each
underwriter, within the meaning of the Act, who may purchase from or sell
for any such holder any such Shares, and each person, if any, who controls
any such holder or underwriter within the meaning of the Act, from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereto or any prospectus
included therein required to be filed or furnished in connection therewith
or caused by any omission to state therein a material fact required to be
stated therein in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission based upon information furnished or
required to be furnished in writing to the Company by such holder or
underwriter expressly for use therein; PROVIDED, HOWEVER, that such holder
or underwriter shall indemnify the Company, its directors, each officer
signing the Registration Statement and each person, if any, who controls
the Company within the meaning of the Act, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement of
a material fact contained in any Registration Statement or any post-
effective amendment thereto or any prospectus included therein required to
be filed or furnished pursuant thereto or caused by any omission to state
therein a material fact required to be stated therein in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading, insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission based upon
information furnished in writing to the Company by any such holder or
underwriter expressly for use therein.
In connection with the Registration Statement, the undersigned shall
provide the Company, from time to time, as reasonably requested by the
Company, written information concerning its ownership of the Company's
Shares, its intentions concerning the sale of its Shares and such other
matters as are required in order to enable the Company to prepare, file
and obtain the effectiveness of such Registration Statement.
After such Registration Statement becomes effective and in connection
with the sale of the Shares under such Registration Statement, the
undersigned shall take such steps as may be necessary to ensure that the
offer and sale thereof are in compliance with the requirements of the
federal securities laws, including, but not limited to, compliance with
the antimanipulation requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
The undersigned further acknowledges that except as otherwise set
forth in Section 7 hereof, the Company has not represented that any
attempt will be made to register the Shares at any future date or that
compliance with any exemption from the registration requirements under the
Act will be effected.
By its acceptance hereof, the Company hereby acknowledges that the
foregoing accurately reflects its understanding concerning the transaction
contemplated hereby.
Very truly yours,
___________________________________
(Signature)
___________________________________
Please type or print name
(and title if applicable)
___________________________________
Social Security Number or
Taxpayer Identification Number
Address: _____________________________
______________________________________
______________________________________
(H)___________________(W)_____________
Telephone Number
___________________________________
As of Date
___________________________________
Number of Shares
___________________________________
Amount of Subscription
(U.S. Dollars)
ACCEPTED AND AGREED:
ALFACELL CORPORATION
By: _________________________
Name: Kuslima Shogen
Title: President and Chief
Executive Officer
WARRANT TO PURCHASE _______ SHARES OF COMMON STOCK VOID AFTER 5:00
p.m. NEW JERSEY TIME, ON OCT.1, 1998. THIS WARRANT AND THE SHARES OF
COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN AND WILL BE
ISSUED IN TRANSACTIONS WHICH HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES OR BLUE
SKY LAWS. THIS WARRANT AND SUCH SHARES MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, IN WHOLE OR IN PART, IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
APPLICABLE STATE LAW, OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
NO. _______ _______ SHARES
ALFACELL CORPORATION
This certifies that, for value received,_______, the registered
holder hereof or assigns (the "Warrantholder") is entitled to purchase
from Alfacell Corporation, a Delaware corporation (the "Company"), at any
time on and after October 1, 1995, and before 5:00 p.m., New Jersey time,
on October 1, 1998 (the "Termination Date"), at the purchase price of
_______ per share (the "Exercise Price"), the number of shares of Common
Stock, par value $.001 per share, of the Company set forth above (the
"Warrant Stock"). The number of shares of Warrant Stock, the Termination
Date and the Exercise Price per share of this Warrant shall be subject to
adjustment from time to time as set forth below.
SECTION I. TRANSFER OR EXCHANGE OF WARRANT.
The Company shall be entitled to treat the Warrantholder as the owner
in fact hereof for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in this Warrant on the part of any
other person. This Warrant shall be transferable only on the books of the
Company, maintained at its principal office upon delivery of this Warrant
Certificate duly endorsed by the Warrantholder or by his duly authorized
attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. Upon any registration of
transfer, the Company shall deliver a new Warrant Certificate or
Certificates to the persons entitled thereto.
SECTION II. TERM OF WARRANT; EXERCISE OF WARRANTS
A. TERMINATION. The Company may, in its sole discretion, extend
the Termination Date with respect to the exercise of this Warrant upon
notice to the Warrantholder. As used herein, "Termination Date" shall be
deemed to include any such extensions.
B. EXERCISE. This Warrant shall be exercised by surrender to the
Company, at its principal office, of this Warrant Certificate, together
with the Purchase Form attached hereto duly completed and signed, and upon
payment to the Company of the Exercise Price for the number of shares of
Warrant Stock in respect of which this Warrant is then exercised. Payment
of the aggregate Exercise Price shall be made in cash or by certified or
official bank check.
C. WARRANT CERTIFICATE. Subject to Section III hereof, upon such
surrender of this Warrant Certificate and payment of the Exercise Price as
aforesaid, the Company shall issue and cause to be delivered to or upon
the written order of the Warrantholder a certificate or certificates for
the number of full shares of Warrant Stock so purchased upon the exercise
of such Warrant, together with cash, as provided in Section VI hereof, in
respect of any fractional shares of Warrant Stock otherwise issuable upon
such surrender. Such certificate or certificates representing the Warrant
Stock shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
shares of Warrant Stock as of the date of receipt by the Company of this
Warrant Certificate and payment of the Exercise Price as aforesaid;
provided, however, that if, at the date of surrender of this Warrant
Certificate and payment of the Exercise Price, the transfer books for the
Warrant Stock or other class of stock purchasable upon the exercise of
this Warrant shall be closed, the certificate or certificates for the
shares of Warrant Stock in respect of which this Warrant is then exercised
shall be deemed issuable as of the date on which such books shall next be
opened (whether before or after the Termination Date) and until such date
the Company shall be under no duty to deliver any certificate for such
shares of Warrant Stock; provided further, however, that the transfer
books of record, unless otherwise required by law, shall not be closed at
any one time for a period longer than twenty (20) days. The rights of
purchase represented by this Warrant shall be exercisable, at the election
of the Warrantholder, either in full or from time to time in part, and, in
the event that this Warrant is exercised in respect of fewer than all of
the shares of Warrant Stock purchasable on such exercise at any time prior
to the Termination Date, a new Warrant Certificate evidencing the
remaining Warrant or Warrants will be issued, and the Company shall
deliver the new Warrant Certificate or Certificates pursuant to the
provisions of this Section.
SECTION III. PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes, if any,
attributable to the initial issuance of the shares of Warrant Stock upon
the exercise of this Warrant; provided, however, that the Warrantholder
shall pay any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of
Warrant Certificates or the certificates for the shares of Warrant Stock
in a name other than that of the Warrantholder in respect of which this
Warrant or shares of Warrant Stock are issued.
SECTION IV. MUTILATED OR MISSING WARRANT CERTIFICATES.
In case this Warrant Certificate shall be mutilated, lost, stolen or
destroyed, the Company shall, at the request of the Warrantholder, issue
and deliver, in exchange and substitution for and upon cancellation of
this certificate if mutilated, or in lieu of and in substitution for this
certificate if lost, stolen or destroyed, a new Warrant Certificate of
like tenor and representing an equivalent right or interest, but only upon
receipt of evidence satisfactory to the Company of such loss, theft or
destruction of this Warrant Certificate and indemnity, if requested, also
satisfactory to the Company.
SECTION V. RESERVATION OF SHARES OF WARRANT STOCK.
There has been reserved, and the Company shall at all times keep
reserved so long as this Warrant remains outstanding, out of its
authorized Common Stock a number of shares of Common Stock sufficient to
provide for the exercise of the rights of purchase represented by this
Warrant. The transfer agent for the Common Stock and every subsequent
transfer agent for any shares of the Company's capital stock issuable upon
the exercise of this Warrant will be irrevocably authorized and directed
at all times to reserve such number of authorized shares as shall be
requisite for such purpose.
SECTION VI. FRACTIONAL SHARES.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. With respect to any fraction of
a share called for upon the exercise of this Warrant, the Company shall
pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price of such fractional share. "Market
Price", as of any date means, (i) the last reported sale price for the
shares of Common Stock as reported by National Association of Securities
Dealers Automated Quotation National Market System, ("NASDAQ-NMS"), (ii)
the closing bid price for the shares of Common Stock as reported by the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") if the shares are not traded as NASDAQ-NMS, (iii) the average
of the closing bid and closing asked prices of the Common Stock as
reported by the National Quotations Bureau if the shares are not traded on
NASDAQ; (iv) the last reported sale price, if the shares of Common Stock
are listed on a national securities exchange or (v) if market value cannot
be calculated as of such date on any of the foregoing basis, the fair
market price determined by the Board of Directors of the Company, acting
with reasonable business judgment.
SECTION VII. EXERCISE PRICE; ANTI-DILUTION PROVISIONS.
A. EXERCISE PRICE. The shares of Warrant Stock shall be
purchasable upon the exercise of this Warrant, at a price of $_______ per
share. The Company may, in its sole discretion, reduce the Exercise Price
applicable to the exercise of this Warrant upon notice to the
Warrantholder. As used herein, "Exercise Price" shall be deemed to
include any such reduction.
If the Company shall at any time issue Common Stock by way of
dividend or other distribution on any stock of the Company or effect a
stock split or reverse stock split of the outstanding shares of Common
Stock, the Exercise Price shall be proportionately decreased in the case
of such issuance (on the day following the date fixed for determining
stockholders entitled to receive such dividend or other distribution) or
such stock split or increased in the case of such reverse stock split (on
the date that such reverse stock split shall become effective), by
multiplying the Exercise Price in effect immediately prior to the stock
dividend, stock split or reverse stock split by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
prior to such stock dividend, stock split or reverse stock split, and the
denominator of which is the number of shares of Common Stock outstanding
immediately after such stock dividend, stock split or reverse stock split.
B. NO IMPAIRMENT. The Company (a) will not increase the par value
of any shares of stock receivable upon the exercise of this Warrant above
the amount payable therefor upon such exercise, and (b) will take all such
action 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.
C. NUMBER OF SHARES ADJUSTED. Upon any adjustment of the Exercise
Price pursuant to this Warrant, the Warrantholder shall thereafter (until
another such adjustment) be entitled to purchase upon the exercise of this
Warrant, at the new Exercise Price, the number of shares, calculated to
the nearest full share, obtained by multiplying the number of shares of
Warrant Stock initially issuable upon exercise of this Warrant by the
Exercise Price in effect on the date hereof and dividing the product so
obtained by the new Exercise Price.
SECTION VIII. RECLASSIFICATION, REORGANIZATION OR MERGER.
In case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company (other than a
change in par value or as a result of an issuance of Common Stock by way
of dividend or other distribution or of a stock split or reverse stock
split) or in case of any consolidation or merger of the Company with or
into another corporation (other than a merger with a subsidiary in which
merger the Company is the continuing corporation and which does not result
in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company issuable upon exercise
of this Warrant) or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially
as an entirety, the Company shall cause effective provision to be made so
that the Warrantholder shall have the right thereafter, by exercising this
Warrant, to purchase the kind and amount of shares of stock and other
securities and property the Warrantholder would have been entitled to
receive if the Warrantholder had exercised this Warrant immediately prior
to such reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance. Any such provision shall
include provision for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Warrant. The
foregoing provisions of this Section shall similarly apply to successive
reclassifications, capital reorganizations and changes of shares of Common
Stock and to successive consolidations, mergers, sales and conveyances.
SECTION IX. REGISTRATION RIGHTS
A. REGISTRATION RIGHTS. As soon as practicable after the
successful completion of the offering (the "Offering") of the Company's
Common Stock and this Warrant pursuant to its Private Placement the
Company will use its best efforts to file, obtain and maintain the
effectiveness of a registration statement (the "Registration Statement")
under the Act with respect to the Common Stock and the Warrant Stock.
In connection with the Registration Statement, the Warrantholder
shall provide the Company, from time to time, as reasonably requested by
the Company, written information concerning the Warrantholder's ownership
of the Company's securities, any intentions concerning the sale of
Warrants, Common Stock and Warrant Stock and such other matters as are
required in order to enable the Company to prepare, file and obtain the
effectiveness of such Registration Statement. Notwithstanding any of the
foregoing, the Company shall not be required to maintain the effectiveness
of the Registration Statement for more than three (3) years after the
initial effective date thereof.
B. BLUE SKY. In connection with any such registration of the
Warrants, Common Stock and Warrant Stock, the Company shall supply
prospectuses, use its best efforts to qualify the Warrants, Common Stock
and Warrant Stock for sale in the states of New York and New Jersey and
furnish indemnification in the manner set forth below.
C. EXPENSES. The Company shall bear the entire cost and expense of
any such registration hereunder. Notwithstanding the foregoing, the
Warrantholder shall pay the fees of all persons retained by Warrantholder,
such as counsel and accountants, and any transfer taxes or underwriting
discounts or commissions applicable to the Warrants, Common Stock and
Warrant Stock sold by the Warrantholder pursuant to the Registration
Statement.
D. INDEMNIFICATION. The Company shall indemnify and hold harmless
the Warrantholder for Warrants, Common Stock and Warrant Stock that are
registered pursuant to the Registration Statement and each underwriter,
within the meaning of the Act, who may purchase from or sell for the
Warrantholder any such Warrants, Common Stock and Warrant Stock, and each
person, if any, who controls the Warrantholder or underwriter within the
meaning of the Act, from and against any and all losses, claims, damages
and liabilities caused by any untrue statement of a material fact
contained in the Registration Statement or any post-effective amendment
thereto or any prospectus included therein required to be filed or
furnished in connection therewith or caused by any omission to state
therein a material fact required to be stated therein in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission based
upon information furnished or required to be furnished in writing to the
Company by the Warrantholder or underwriter expressly for use therein.
The Warrantholder agrees to indemnify and hold harmless the Company
and its directors, officers, employees and agents against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, or any prospectus contained therein, or in any
amendment thereof or supplement thereto, or arose out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided that any such loss, claim, damage, liability
or expense arises out of or is based upon an untrue statement or an
omission or an alleged untrue statement or an alleged omission made in
reliance upon or in conformity with
written information furnished to the Company by the Warrantholder or on
behalf of the Warrantholder expressly for use in the Registration Statement
or any amendment thereof or any prospectus contained therein or in any
amendment thereof or supplement thereto.
E. CONTRIBUTION. If the indemnification provided for herein from
either the Warrantholder or the Company is unavailable to an indemnified
party (the "Indemnitee") hereunder in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to herein, then the
party responsible for such indemnification (the "Indemnitor"), in lieu of
indemnifying the Indemnitee, shall contribute to the amount paid or payable
by the Indemnitee as a result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the relative fault of the
Indemnitor and Indemnitee in connection with the actions which resulted in
such losses, claims, damages or liabilities (including legal or other fees
and expenses reasonably incurred in connection with any investigation or
proceeding) as well as any other equitable considerations.
If indemnification is available, the Indemnitor shall indemnify each
Indemnitee to the full extent provided for herein without regard to the
relative fault of the Indemnitor, the Indemnitee or any other equitable
consideration provided for hereunder.
F. SECURITIES EXCHANGE ACT. After the Registration Statement becomes
effective and in connection with the sale of the Warrants, Common Stock and
Warrant Stock under such Registration Statement, the Warrantholder shall
take such steps as may be necessary to ensure that the offer and sale
thereof are in compliance with the requirements of the federal securities
laws, including, but not limited to, compliance with the anti-manipulation
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
SECTION X. NOTICES TO WARRANTHOLDERS.
So long as this Warrant shall be outstanding and unexercised (a) if the
Company shall pay any dividend or make any distribution upon the Common
Stock or (b) if the Company shall offer to the holders of Common Stock for
subscription or purchase by them any shares of stock of any class or any
other rights or (c) if any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, sale, lease or
transfer of all or substantially all of the assets of the Company to another
corporation, or the voluntary or involuntary dissolution, liquidation or
winding up of the Company shall be effected, then, in any such case, the
Company shall cause to be delivered to the
Warrantholder, at least ten days prior to the date specified in (i) or (ii)
below, as the case may be, a notice containing a brief description of the
proposed action and stating the date on which (i) a record is to be taken
for the purpose of such dividend or distribution, or (ii) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if
any, as of which the holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation or winding up.
SECTION XI. NOTICES.
Any notice pursuant to this Warrant by the Company or by the
Warrantholder shall be in writing and shall be deemed to have been duly
given if delivered or mailed certified mail, return receipt requested, (a)
if to the Company, to it at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: President and (b) if to the Warrantholder to the
Warrantholder at the address set forth on the signature page hereto. Each
party hereto may from time to time change the address to which such party's
notices are to be delivered or mailed hereunder by notice in accordance
herewith to the other party.
SECTION XII. SUCCESSORS.
All the covenants and provisions of this Warrant by or for the benefit
of the Company or the Warrantholder shall bind and inure to the benefit of
their respective successors and assigns hereunder.
SECTION XIII. APPLICABLE LAW.
This Warrant shall be deemed to be a contract made under the laws of
the State of Delaware applicable to agreements made and to be performed
entirely in Delaware and for all purposes shall be construed in accordance
with the internal laws of Delaware without giving effect to the conflicts of
laws principles thereof.
SECTION XIV. BENEFITS OF THIS WARRANT.
Nothing in this Warrant shall be construed to give to any person or
corporation other than the Company and the Warrantholder any legal or
equitable right, remedy or claim under this Warrant and this Warrant shall
be for the sole and exclusive benefit of the Company and the Warrantholder.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant
Certificate or caused this Warrant Certificate to be duly executed as of the
day and year first above written.
ALFACELL CORPORATION
By: ______________________
Name: Kuslima Shogen
Title: President and Chief
Executive Officer
WARRANTHOLDER
_________________________
Name:
Address:
__________________________
__________________________
__________________________
Social Security Number
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the Warrant
represented by this Warrant Certificate to the extent of _____ shares of
Common Stock, par value $.001 per share, of Alfacell Corporation, and hereby
makes payment of $_______ in payment of the actual exercise price thereof.
Name: _____________________________________________________________
(Please type or print in block letters)
Address:_____________________________________________________
(Address for delivery of Stock Certificate)
Social Security Number:______________________________________
Signature:___________________________________________________
ASSIGNMENT FORM
FOR VALUED RECEIVED, _____________________________ hereby sells, assigns and
transfers unto ______________________________________
(Please type or print in block letters)
Address__________________________________________________________
the right to purchase Common Stock, par value $.001 per share, of Alfacell
Corporation, represented by this Warrant Certificate to the extent of
__________ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint ______________________, to transfer the
same on the books of the Company with full power of substitution in the
premises.
__________________________
Signature
Dated: , 199_
Notice: The signature of this assignment must
correspond with the name as it appears upon
the face of this Warrant Certificate in every
particular, without alteration or enlargement
or any change whatever.
SIGNATURE GUARANTEED:
_________________________
ALFACELL CORPORATION
PURCHASE AGREEMENT FOR
COMMON STOCK
Alfacell Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Kuslima Shogen, President
and Chief Executive Officer
Dear Ms. Shogen:
The undersigned acknowledges that there is no minimum proceeds
requirement for the closing of this Offering, the Company may close only on
the undersigned's investment and such investment may be inadequate to meet
the Company's cash requirements.
The undersigned hereby subscribes to purchase ________ units at
________ per unit (the "units"). Each unit consists of four (4) shares of
Common Stock, $.001 par value per share (the "Shares") of Alfacell
Corporation, a Delaware corporation (the "Company") and one (1) warrant (the
"Warrants"). Each Warrant is exercisable into one (1) Share (the "Warrant
Shares"). The Shares are being sold in a transaction exempt from
registration under the Securities Act of 1933, as amended (the "Act"). The
Warrants will be issued pursuant to a Warrant Agreement in the form attached
hereto as Exhibit A executed by the Company for the benefit of the
undersigned. Each Warrant will be exercisable at $4.00 per share for a
three year period commencing three months after its issuance. The
undersigned tenders herewith $_________ in full payment of the purchase
price for the _________ Units to which the undersigned subscribes (in the
manner indicated on the signature page hereof.)
The undersigned understands that the right to transfer all or any part
of the Shares (hereinafter sometimes collectively referred to as the
"Securities") will be restricted. The undersigned may not transfer the
Securities unless they are registered under the Act and applicable state
securities or "blue sky" laws, or an exemption from such registration is
available. The undersigned recognizes that the Company shall have no
obligation to register the Securities, except as set forth herein.
The undersigned hereby represents, warrants and covenants that:
1. The undersigned is acquiring the Shares for the undersigned's own
account for investment and not with a view towards distribution. The
undersigned will not sell, hypothecate, transfer or otherwise dispose of the
Securities unless such transaction has been registered under the Act or, in
the opinion of counsel for the Company, an exemption from registration is
available.
2. Please check here if the representation contained in this
paragraph 2 is applicable to the undersigned _________. (i) The
undersigned's individual net worth or joint net worth with the undersigned's
spouse exceeds $1,000,000 as of the date hereof, (ii) the undersigned's
individual income has been in excess of $200,000 in each of 1994 and 1993
and is expected to be in excess of $200,000 in 1995, or (iii) the
undersigned's joint income with the undersigned's spouse has been in excess
of $300,000 in each of 1994 and 1993 and is expected to be in excess of
$300,000 in 1995.
3. Whether or not the representation contained in paragraph 2 is
applicable to the undersigned, the undersigned has adequate means of
providing for the undersigned's current needs and possible contingencies and
has no need for liquidity of the Units. The undersigned's overall
commitment to investments is not disproportionate to the undersigned's net
worth, and acquisition of the Units will not cause such overall commitment
to become excessive. Prior to the execution hereof, the undersigned has
received and had the opportunity to review, examine and read all documents,
records and books pertaining to this investment, including the Company's
Annual Report on Form 10-K for the fiscal year ended July 31, 1994, the
Company's Quarterly Reports on Form 10-QSB for each of the three quarterly
periods subsequent to the fiscal year ended July 31, 1994 and a copy of the
Company's Proxy Statement as distributed to its stockholders in connection
with the annual meeting of stockholders held on December 6, 1994
(collectively, the "Disclosure Documents").
4. The undersigned is knowledgeable and experienced in financial and
business matters. The undersigned recognizes and is fully cognizant of the
fact that the investment contemplated hereby involves a high degree of risk.
The undersigned is able to evaluate the merits and risks of an investment in
the Units. The undersigned has been given an opportunity to asks questions
of, and receive answers and obtain information from, representatives of the
Company concerning the Company.
5. The undersigned has been given no oral or written representations
or assurances by the Company or any other person acting or purporting to act
on behalf of the Company in connection with the acquisition of the Units, in
each case except as provided herein or in the Disclosure Documents.
6. The undersigned understands and specifically acknowledges and
agrees that since the Shares and Warrants have not been registered under the
Act, the certificates representing the Securities will bear a legend to such
effect and a stop transfer order will be placed on the Securities in the
Company's transfer books.
7. By its acceptance hereof, the Company hereby agrees that no later
than July 31, 1995, the Company shall use its best efforts to file a
registration statement (the "Registration Statement") under the Act to
register the resale of the Shares and the Shares underlying the Warrants.
The Company further agrees to use its best efforts to cause such
Registration Statement to become effective.
In connection with the Registration Statement, the undersigned
shall provide the Company, from time to time, as reasonably requested by the
Company, written information concerning its ownership of the Company's
Shares and Warrants, their intentions concerning the sale of its Shares and
Warrants and such other matters as are required in order to enable the
Company to prepare, file and obtain the effectiveness of such Registration
Statement. Notwithstanding any of the foregoing, the Company shall not be
required to maintain the effectiveness of the Registration Statement for
more than three (3) years after the initial effective date thereof.
In connection with any such registration of Shares and Warrants,
the Company shall supply a reasonable number of prospectuses to the
undersigned, use its best efforts to qualify the Shares and Warrants for
sale in the states of New York and New Jersey and furnish indemnification in
the manner set forth below.
The Company shall bear the entire cost and expense of any such
Registration hereunder. Notwithstanding the foregoing, the undersigned
shall bear the fees of all persons retained by it, such as counsel and
accountants, and any transfer taxes or underwriting discounts or commissions
applicable to the Shares and Warrants sold by it pursuant to the
Registration Statement.
The Company shall indemnify and hold harmless each holder of
Shares and Warrants that are registered pursuant to the Registration
Statement and each underwriter, within the meaning of the Act, who may
purchase from or sell for any such holder any such Shares or Warrants, and
each person, if any, who controls any such holder or underwriter within the
meaning of the Act, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement of a material fact contained in
the Registration Statement or any post-effective amendment thereto or any
prospectus included therein required to be filed or furnished in connection
therewith or caused by any omission to state therein a material fact
required to be stated therein in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission based upon information furnished or
required to be furnished in writing to the Company by such holder or
underwriter expressly for use therein; PROVIDED, HOWEVER, that such holder
or underwriter shall indemnify the Company, its directors, each officer
signing the Registration Statement and each person, if any, who controls the
Company within the meaning of the Act, from and against any and all losses,
claims, damages and liabilities caused by any untrue statement of a material
fact contained in any Registration Statement or any post-effective amendment
thereto or any prospectus included therein required to be filed or furnished
pursuant thereto or caused by any omission to state therein a material fact
required to be stated therein in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading,
insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission based upon information furnished in writing to
the Company by any such holder or underwriter expressly for use therein.
After such Registration Statement becomes effective and in
connection with the sale of the Shares and Warrants under such Registration
Statement, the undersigned shall take such steps as may be necessary to
ensure that the offer and sale thereof are in compliance with the
requirements of the federal securities laws, including, but not limited to,
compliance with the antimanipulation requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
The undersigned further acknowledges that except as otherwise set
forth in Section 7 hereof, the Company has not represented that any attempt
will be made to register the Shares or Warrants at any future date or that
compliance with any exemption from the registration requirements under the
Act will be effected.
By its acceptance hereof, the Company hereby acknowledges that the
foregoing accurately reflects its understanding concerning the transaction
contemplated hereby.
Very truly yours,
___________________________________
(Signature)
___________________________________
Please type or print name
(and title if applicable)
___________________________________
Social Security Number or
Taxpayer Identification Number
Address (as it should appear on
certificates):
______________________________________
______________________________________
______________________________________
(H)___________________(W)_____________
Telephone Number
___________________________________
As of Date
___________________________________
Number of Units
___________________________________
Amount of Subscription
(U.S. Dollars)
ACCEPTED AND AGREED: Deliver to Address: (if
different from above)
ALFACELL CORPORATION ___________________________
By: _________________________
Name: Kuslima Shogen ___________________________
Title: President and
Chief Executive Officer
ALFACELL CORPORATION
PURCHASE AGREEMENT FOR
COMMON STOCK
Alfacell Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Kuslima Shogen, President
and Chief Executive Officer
Dear Ms. Shogen:
The undersigned acknowledges that there is no minimum proceeds
requirement for the closing of this Offering, the Company may close only
on the undersigned's investment and such investment may be inadequate to
meet the Company's cash requirements.
The undersigned hereby subscribes to purchase ________ shares of
Common Stock, $.001 par value per share (the "Shares") of Alfacell
Corporation, a Delaware corporation (the "Company")at a cost of $______
per share. The Shares are being sold in a transaction exempt from
registration under the Securities Act of 1933, as amended (the "Act").
The undersigned tenders herewith $_________ in full payment of the
purchase price for the _________ Shares to which the undersigned
subscribes (in the manner indicated on the signature page hereof.)
The undersigned understands that the right to transfer all or any
part of the Shares (hereinafter sometimes collectively referred to as the
"Securities") will be restricted. The undersigned may not transfer the
Securities unless they are registered under the Act and applicable state
securities or "blue sky" laws, or an exemption from such registration is
available. The undersigned recognizes that the Company shall have no
obligation to register the Securities, except as set forth herein.
The undersigned hereby represents, warrants and covenants that:
1. The undersigned is acquiring the Shares for the undersigned's
own account for investment and not with a view towards distribution. The
undersigned will not sell, hypothecate, transfer or otherwise dispose of
the Securities unless such transaction has been registered under the Act
or, in the opinion of counsel for the Company, an exemption from
registration is available.
2. Please check here if the representation contained in this
paragraph 2 is applicable to the undersigned _________. (i) The
undersigned's individual net worth or joint net worth with the
undersigned's spouse exceeds $1,000,000 as of the date hereof, (ii) the
undersigned's individual income has been in excess of $200,000 in each of
1994 and 1993 and is expected to be in excess of $200,000 in 1995, or
(iii) the undersigned's joint income with the undersigned's spouse has
been in excess of $300,000 in each of 1994 and 1993 and is expected to be
in excess of $300,000 in 1995.
3. Whether or not the representation contained in paragraph 2 is
applicable to the undersigned, the undersigned has adequate means of
providing for the undersigned's current needs and possible contingencies
and has no need for liquidity of the Shares. The undersigned's overall
commitment to investments is not disproportionate to the undersigned's net
worth, and acquisition of the Shares will not cause such overall
commitment to become excessive. Prior to the execution hereof, the
undersigned has received and had the opportunity to review, examine and
read all documents, records and books pertaining to this investment,
including the Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1994, the Company's Quarterly Reports on Form 10-QSB for
each of the three quarterly periods subsequent to the fiscal year ended
July 31, 1994 and a copy of the Company's Proxy Statement as distributed
to its stockholders in connection with the annual meeting of stockholders
held on December 6, 1994 (collectively, the "Disclosure Documents").
4. The undersigned is knowledgeable and experienced in financial
and business matters. The undersigned recognizes and is fully cognizant
of the fact that the investment contemplated hereby involves a high degree
of risk. The undersigned is able to evaluate the merits and risks of an
investment in the Shares. The undersigned has been given an opportunity
to asks questions of, and receive answers and obtain information from,
representatives of the Company concerning the Company.
5. The undersigned has been given no oral or written
representations or assurances by the Company or any other person acting or
purporting to act on behalf of the Company in connection with the
acquisition of the Shares, in each case except as provided herein or in
the Disclosure Documents.
6. The undersigned understands and specifically acknowledges and
agrees that since the Shares have not been registered under the Act, the
certificates representing the Securities will bear a legend to such effect
and a stop transfer order will be placed on the Securities in the
Company's transfer books.
7. By its acceptance hereof, the Company hereby agrees that no
later than July 15, 1995, the Company shall use its best efforts to file a
registration statement (the "Registration Statement") under the Act to
register the resale of the Shares by the undersigned. The Company further
agrees to use its best efforts to cause such Registration Statement to
become effective.
Notwithstanding the foregoing, should the Company propose to
conduct a Qualifying Offering (as hereinafter defined) at any time from
and after the date hereof and before the expiration of the time period
during which the Company is required to maintain the effectiveness of the
Registration Statement pursuant to this Section 7, and the underwriter of
such Qualifying Offering advises the Company that, in its opinion, the
effectiveness of the Registration Statement would adversely affect the
Company's ability to complete the Qualifying Offering, then the
undersigned agrees that the filing by the Company of the Registration
Statement covering the shares may be delayed (the "Delayed Shares"), or if
the Registration Statement has been filed the Shares may be deregistered
("the Deregistered Shares"), for a period of time not to exceed six
months. The Delayed Shares shall be included on a registration statement
or the Deregistered Shares shall be included on a second registration
statement, as the case may be, filed by the Company no later than six
months after the date the Registration Statement would have been required
to be filed but for the delay or the date of deregistration, and the terms
in this Section 7 applying to the Registration Statement shall apply to
such delayed registration statement, or second registration statement,
except that the Company shall have no further right to delay the filing of
any such registration statement or deregister the Shares. For purposes
hereof a "Qualifying Offering" shall mean an underwritten public offering
of Shares of the Company's Common Stock registered under the Securities
Act.
In connection with the Registration Statement, the undersigned
shall provide the Company, from time to time, as reasonably requested by
the Company, written information concerning its ownership of the Company's
Shares, its intentions concerning the sale of its Shares and such other
matters as are required in order to enable the Company to prepare, file
and obtain the effectiveness of such Registration Statement.
Notwithstanding any of the foregoing, the Company shall not be required to
maintain the effectiveness of the Registration Statement for more than
three (3) years after the initial effective date thereof.
In connection with any such registration of Shares, the Company
shall supply a reasonable number of prospectuses to the undersigned, use
its best efforts to qualify the Shares for sale in the states of New York
and New Jersey and furnish indemnification in the manner set forth below.
The Company shall bear the entire cost and expense of any such
Registration hereunder. Notwithstanding the foregoing, the undersigned
shall bear the fees of all persons retained by it, such as counsel and
accountants, and any transfer taxes or underwriting discounts or
commissions applicable to the Shares sold by it pursuant to the
Registration Statement.
The Company shall indemnify and hold harmless each holder of
Shares that are registered pursuant to the Registration Statement and each
underwriter, within the meaning of the Act, who may purchase from or sell
for any such holder any such Shares, and each person, if any, who controls
any such holder or underwriter within the meaning of the Act, from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereto or any prospectus
included therein required to be filed or furnished in connection therewith
or caused by any omission
to state therein a material fact required to be stated therein in order to
make the statements made therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission based upon information furnished or required to be furnished in
writing to the Company by such holder or underwriter expressly for use
therein; PROVIDED, HOWEVER, that such holder or underwriter shall
indemnify the Company, its directors, each officer signing the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, from and against any and all losses,
claims, damages and liabilities caused by any untrue statement of a
material fact contained in any Registration Statement or any post-
effective amendment thereto or any prospectus included therein required to
be filed or furnished pursuant thereto or caused by any omission to state
therein a material fact required to be stated therein in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading, insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission based upon
information furnished in writing to the Company by any such holder or
underwriter expressly for use therein.
After such Registration Statement becomes effective and in
connection with the sale of the Shares under such Registration Statement,
the undersigned shall take such steps as may be necessary to ensure that
the offer and sale thereof are in compliance with the requirements of the
federal securities laws, including, but not limited to, compliance with
the antimanipulation requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
The undersigned further acknowledges that except as otherwise
set forth in Section 7 hereof, the Company has not represented that any
attempt will be made to register the Shares at any future date or that
compliance with any exemption from the registration requirements under the
Act will be effected.
By its acceptance hereof, the Company hereby acknowledges that
the foregoing accurately reflects its understanding concerning the
transaction contemplated hereby.
Very truly yours,
___________________________________
(Signature)
___________________________________
Please type or print name
(and title if applicable)
___________________________________
Social Security Number or
Taxpayer Identification Number
Address: _____________________________
______________________________________
______________________________________
(H)___________________(W)_____________
Telephone Number
___________________________________
As of Date
___________________________________
Number of Shares
___________________________________
Amount of Subscription
(U.S. Dollars)
ACCEPTED AND AGREED:
ALFACELL CORPORATION
By: _________________________
Name: Kuslima Shogen
Title: President and Chief
Executive Officer
Dated as of ____________, 1995
Alfacell Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Dear Sirs:
The undersigned, ______________________________, hereby agrees
to purchase from Alfacell Corporation, a Delaware corporation (the
"Company"), and, by its acceptance hereof, the Company hereby agrees to
issue and sell to the undersigned, shares of the Common
Stock, par value $.001 per share (the "Shares"), of the Company for $
______ per share, or an aggregate of $ _____________, in a transaction
exempt from registration under the Securities Act of 1933, as amended (the
"Act"), pursuant to Regulation S promulgated thereunder ("Regulation S").
The undersigned represents and warrants to the Company as
follows:
A. The undersigned is not a United States Person nor is it
acquiring the Shares for the account or benefit of any United States
Person. In particular the undersigned is not:
i) a natural person resident in the United States;
ii) a partnership or corporation organized or
incorporated under the laws of the United States;
iii) an estate of which any executor is a United States
Person;
iv) a trust of which any trustee is a United States
Person;
v) an agency or branch of a foreign entity located in
the United States;
vi) a non-discretionary account or similar account
(other than an estate or trust) held by a dealer or
other fiduciary for the benefit or account of a
United States Person;
vii) a discretionary account or similar account (other
than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an
individual) resident in the United States; or
viii) a partnership or corporation organized under the
laws of a non-United States jurisdiction by or for
the benefit of a United States Person principally
for the purpose of investing in securities not
registered under the Act unless such United States
Person is an accredited investor who is not a
natural person, an estate or a trust.
B. The undersigned is outside the United States of America as
of the date of the execution and delivery of this Agreement and is
purchasing the Shares for its own account and not for the benefit of a
United States Person.
C. The undersigned has received a copy of, and reviewed, the
Company's prospectus dated September 14, 1994, as supplemented through the
date hereof (the "Prospectus"), the Company's Annual Report on Form 10-KSB
for the year ended July 31, 1994, the Company's quarterly reports on Form
10-QSB for each of the quarters ended October 31, 1994 and January 31,
1995 (together with the Prospectus, the "Disclosure Documents").
D. The undersigned has been given an opportunity to ask
questions of, and receive answers and obtain information from,
representatives of the Company concerning the Company and has such
experience in financial and business matters that the undersigned is
capable of evaluating the information contained in the Disclosure
Document, including all of the merits and risks of an investment in the
Company.
E. The undersigned is acquiring the Shares without being
furnished any offering literature, prospectus or other form of general
solicitation or advertising and has been given no oral or written
representations or assurances by the Company or any other person acting or
purporting to act on behalf of the Company in connection with the
acquisition of the Shares, in each case except as provided herein.
F. The undersigned shall not, directly or indirectly, offer,
sell, pledge, transfer, hypothecate or otherwise dispose of any interest
in the Shares (or solicit any offers to buy, purchase, or otherwise
acquire any interest in the Shares) except in compliance with Regulation
S, pursuant to registration under the Act, or pursuant to an available
exemption from registration under the Act or the Rules and Regulations
promulgated thereunder.
G. The undersigned understands and specifically acknowledges
and agrees that (i) the sale of the Shares has not been registered under
the Act and, therefore, they may not be offered, pledged, transferred,
hypothecated or otherwise disposed of in the United States or to a United
States Person unless such transaction is pursuant to an effective
registration statement under the Act or unless an exemption from the
registration requirements of the Act is available, and (ii) the
certificates representing the Shares will bear a legend, substantially in
the form annexed hereto as Annex A.
H. Unless the Shares are registered under the Act or another
exemption from such registration is available, the undersigned shall not
resell the Shares to or for the account or benefit of a United States
Person within forty (40) days following the date hereof.
I. The undersigned represents and warrants that (i) it has no
open short positions with respect to the Company's Common Stock and it
will not utilize the Shares to cover any short position in the Company's
Common Stock it may establish in the future and (ii) it does not own, of
record or beneficially, any derivative securities convertible into the
Company's Common Stock.
J. By its acceptance hereof, the Company hereby agrees that no
later than July 15, 1995, the Company shall use its best efforts to file a
registration statement (the "Registration Statement") under the Act to
register the resale of the Shares by the undersigned. The Company further
agrees to use its best efforts to cause such Registration Statement to
become effective.
In connection with the Registration Statement, the undersigned
shall provide the Company, from time to time, as reasonably requested by
the Company, written information concerning its ownership of the Company's
Shares, its intentions concerning the sale of its Shares and such other
matters as are required in order to enable the Company to prepare, file
and obtain the effectiveness of such Registration Statement.
Notwithstanding any of the foregoing, the Company shall not be required to
maintain the effectiveness of the Registration Statement for more than
three (3) years after the initial effective date thereof.
In connection with any such registration of Shares, the Company
shall supply a reasonable number of prospectuses to the undersigned, use
its best efforts to qualify the Shares for sale in the states of New York
and New Jersey and furnish indemnification in the manner set forth below.
The Company shall bear the entire cost and expense of any such
Registration hereunder. Notwithstanding the foregoing, the undersigned
shall bear the fees of all persons retained by it, such as counsel and
accountants, and any transfer taxes or underwriting discounts or
commissions applicable to the Shares sold by it pursuant to the
Registration Statement.
The Company shall indemnify and hold harmless each holder of
Shares that are registered pursuant to the Registration Statement and each
underwriter, within the meaning of the Act, who may purchase from or sell
for any such holder any such Shares, and each person, if any, who controls
any such holder or underwriter within the meaning of the Act, from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereto or any prospectus
included therein required to be filed or furnished in connection therewith
or caused by any omission to state therein a material fact required to be
stated therein in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission based upon information furnished or
required to be furnished in writing to the Company by such holder or
underwriter expressly for use therein; PROVIDED, HOWEVER, that such holder
or underwriter shall indemnify the Company, its directors, each officer
signing the Registration Statement and each person, if any, who controls
the Company within the meaning of the Act, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement of
a material fact contained in any Registration Statement or any post-
effective amendment thereto or any prospectus included therein required to
be filed or furnished pursuant thereto or caused by any omission to state
therein a material fact required to be stated therein in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading, insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission based upon
information furnished in writing to the Company by any such holder or
underwriter expressly for use therein.
After such Registration Statement becomes effective and in
connection with the sale of the Shares under such Registration Statement,
the undersigned shall take such steps as may be necessary to ensure that
the offer and sale thereof are in compliance with the requirements of the
federal securities laws, including, but not limited to, compliance with
the antimanipulation requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
The undersigned further acknowledges that except as otherwise
set forth in Section J hereof, the Company has not represented that any
attempt will be made to register the Shares at any future date or that
compliance with any exemption from the registration requirements under the
Act will be effected.
By its acceptance hereof, the Company hereby acknowledges that
the foregoing accurately reflects its understanding concerning the
transaction contemplated hereby.
Very truly yours,
_____________________________
By:______________________________
ACCEPTED AND AGREED:
ALFACELL CORPORATION
By:__________________________________________
ANNEX A
"The Shares represented by this Certificate have been offered and
sold in an "Offshore Transaction" in reliance upon Regulation S as
promulgated by the Securities and Exchange Commission. Accordingly, the
Shares represented by this Certificate have not been registered under the
Securities Act of 1933 (the "Act") and may not be offered for sale, sold
or otherwise transferred in the United States or to a "U.S. person" (as
defined under Regulation S) except pursuant to an effective registration
statement under the Act or pursuant to an exemption from registration
under the Act."
