WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED WITHOUT COMPLIANCE WITH THE REGISTRATION PROVISIONS
OF SUCH ACT OR SUCH LAWS, UNLESS AN EXEMPTION THEREFROM IS AVAILABLE.
No. W - 1 Warrant to Purchase 10,000 Shares of Common Stock
(subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
OF
ALFACELL CORPORATION
VOID AFTER AUGUST 31, 1997
This certifies that, for value received, First Fidelity Bank,
N.A., a national bank association, or registered assigns ("Holder") is
entitled, subject to the terms set forth below, to purchase from ALFACELL
CORPORATION (the "Company"), a Delaware corporation, ten thousand (10,000)
shares (the "Warrant Shares") of the Common Stock, par value $.001 per
share ("Common Stock"), of the Company, as constituted on the date hereof,
upon surrender hereof, at the principal office of the Company, located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (or such other address
as the Company may designate in writing to the Holder), with the Notice of
Exercise attached hereto duly executed, and simultaneous payment therefor
in lawful money of the United States or otherwise as hereinafter provided,
at the Exercise Price as set forth in Section 2 below. The number and
character of such shares of Common Stock and the Exercise Price are subject
to adjustment as provided below. The term "Warrant" as used herein shall
include this Warrant, and any warrants delivered in substitution or
exchange therefor as provided herein.
2. TERM OF WARRANT. Subject to the terms and conditions set
forth herein, this Warrant shall be exercisable, in whole or in part,
during the term commencing on the date hereof and ending at 5:00 p.m., New
York time, on August 31, 1997, and shall be void thereafter.
3. EXERCISE PRICE. The Exercise Price at which this Warrant
may be exercised shall be $4.19 per share of Common Stock, as adjusted form
time to time pursuant to Section 13 hereof.
4. EXERCISE OF WARRANT.
(a) The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, at any time, and from time
to time, during the term hereof as described in Section 1 above, by the
surrender of this Warrant and the Notice of Exercise annexed hereto duly
completed and executed on behalf of the Holder at the office of the
Company, upon payment (i) in cash or by check payable to the Company, (ii)
by cancellation by the Holder of indebtedness of the Company to the Holder,
or (iii) by a combination of (i) and (ii), of the purchase price of the
shares to be purchased.
(b) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive the shares
of Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business
on such date. As promptly as practicable on or after such date and in any
event within ten (10) days thereafter, the Company, at its expense, shall
issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of shares issuable upon such
exercise. In the event that this Warrant is exercised in part, the
Company, at its expense, will execute and deliver a new Warrant of like
tenor exercisable for the number of shares for which this Warrant may still
be exercised.
5. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant. In lieu of any fractional share to which the Holder would
otherwise be entitled, the Company shall make a cash payment equal to the
Exercise Price multiplied by such fraction.
6. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant and, in the case of loss, theft or destruction, on delivery
of an indemnity agreement reasonably satisfactory in form and substance to
the Company or, in the case of mutilation, on surrender and cancellation of
this Warrant, the Company, at its expense, shall execute and deliver, in
lieu of this Warrant, a new warrant of like tenor and amount.
7. RIGHTS OF STOCKHOLDERS. Except as provided herein, the
Holder hereof shall not be entitled to vote or receive dividends or be
deemed the holder of Common Stock or any other securities of the Company
that may at any time be issuable on the exercise hereof for any purpose,
nor shall anything contained herein be construed to confer upon the Holder,
as such, any of the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action or to receive notice of meetings, or to receive dividends
or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
8. TRANSFER OF WARRANT.
(a) WARRANT REGISTER. The Company will maintain a register
(the "Warrant Register") containing the name and address of the Holder or
Holders. Any Holder of this Warrant or any portion thereof may change his
or its address as shown on the Warrant Register by written notice to the
Company requesting such change. Any notice or written communication
required or permitted to be given to any Holder may be delivered or given
by mail to such Holder at the address shown on the Warrant Register. Until
this Warrant is transferred on the Warrant Register of the Company, the
Company may treat the Holder as shown on the Warrant Register as the
absolute owner of this Warrant for all purposes, notwithstanding any notice
to the contrary.
(b) TRANSFERABILITY OF WARRANT. Subject to applicable
laws, this Warrant may be transferred or assigned, in whole or in part, at
any time and from time to time by the Holder. Title to this Warrant may be
transferred by endorsement (by the Holder executing the Assignment Form
annexed hereto) and delivery in the same manner as a negotiable instrument
transferrable by endorsement and delivery. Any subsequent Holder or
Holders of this Warrant or any portion thereof shall have all of the rights
set forth herein, including without limitation all rights under Sections 14
and 15 hereof.
(c) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of
this Warrant for exchange, properly endorsed on the Assignment Form
attached hereto, the Company, at its expense, shall issue to or on the
order of the Holder a new warrant or warrants or like tenor, in the name of
the Holder or as the Holder may direct, for the number of shares which
remain issuable upon exercise hereof.
(d) COMPLIANCE WITH SECURITIES LAWS. All shares of Common
Stock or other securities issued upon exercise hereof shall be stamped or
imprinted with a legend in substantially the following form (in addition to
any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
9. RESERVATION OF STOCK. The Company shall at all times
reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the
exercise of Warrants, the full number of shares of Common Stock then
issuable upon the exercise of this Warrant.
10. COVENANT AS TO COMMON STOCK. The Company covenants that all
shares of Common Stock which may be issued upon exercise of this Warrant
will upon issuance be fully paid and nonassessable and, except as provided
in Section 10, the Company will pay all taxes, liens and charges with
respect to the issuance thereof.
11. TAXES ON EXERCISES. The Company shall pay any and all taxes
that may be payable in respect of the issue or delivery of shares of Common
Stock to the Holder on exercise of this Warrant; PROVIDED that the Company
shall not be required to pay any tax which may be payable in respect of
income of the Holder.
12. NOTICES. In case:
(a) the Company shall declare a dividend (or any other
distribution) on the Common Stock payable in cash or other property or a
combination of cash and other property; or
(b) the Company shall authorize the granting to all or
substantially all of the holders of Common Stock of any options, warrants
or other rights to subscribe for or purchase any shares of capital stock of
any class or other securities; or
(c) of any reclassification of the Common Stock of the
Company, or of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) the Company or any subsidiary thereof shall commence a
tender offer for all or a portion of the Company's outstanding shares of
Common Stock (or shall amend any such tender offer);
then the Company shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Warrant Register, at least 20 days
prior to the applicable record or effective date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution, rights,
options or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or tender offer (or amendment thereto) is expected
to become effective, and the date as of which it is expected that holders
of record of the Common Stock shall be entitled to exchange or tender their
shares of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or tender offer.
13. AMENDMENTS.
(a) Any term of this Warrant may be amended with the
written consent of the Company and the Holder. Any amendment effected in
accordance with this Section 12 shall be binding upon each future Holder of
this Warrant and the Company.
(b) No waivers of, or exceptions to, any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term,
condition or provision.
14. ADJUSTMENTS.
(a) STOCK DIVIDENDS. In case the Company shall pay or make
a dividend or other distribution on or in respect of any class of its
capital stock in shares of Common Stock, the Exercise Price in effect at
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Exercise Price by a
fraction of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares
of Common Stock and the total number of shares of Common Stock constituting
such dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this subsection (a), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company or shares of Common Stock
issuable pursuant to any right, option, warrant or convertible security.
The Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(b) RIGHTS, OPTIONS, WARRANTS AND CONVERTIBLE SECURITIES.
In case the Company shall issue rights, options, warrants or convertible
securities to all or substantially all of the holders of Common Stock
entitling them to subscribe for, purchase or otherwise acquire shares of
Common Stock at a price per share less than the Exercise Price in effect on
the date of issuance of such rights, options, warrants or convertible
securities, the Exercise Price in effect at the opening of business on the
day following the date of such issuance shall be reduced by multiplying
such Exercise Price by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on
the date of such issuance plus the number of shares of Common Stock which
the aggregate of the offering price of the total number of shares of Common
Stock so offered for subscription or purchase would purchase at such
Exercise Price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date of such issuance
plus the number of shares of Common Stock so offered for subscription or
purchase, such reduction to become effective immediately after the opening
of business on the day following the date of such issuance. For the
purposes of this subsection (b), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company or shares of Common Stock issuable pursuant to any right, option,
warrant or convertible security. The Company will not issue any rights,
options or warrants in respect of shares of Common Stock held in the
treasury of the Company.
(c) SUBDIVISIONS. In case outstanding shares of Common
Stock shall be subdivided into a greater number of shares of Common Stock,
the Exercise Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of shares of Common
Stock, the Exercise Price in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be,
to become effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes
effective.
(d) DISTRIBUTIONS. In case the Company shall, by dividend
or otherwise, distribute to the holders of Common Stock cash (excluding any
cash that is distributed upon a merger or consolidation), evidences of its
indebtedness or assets (including, without limitation, securities of the
Company or stock of a subsidiary (or securities convertible into or
exercisable for such stock), but excluding any dividend or distribution
referred to in subsection (a) of this Section and any rights, options or
warrants referred to in subsection (b) of this Section), the Exercise Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Exercise Price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled
to receive such distribution by a fraction of which the numerator shall be
the Current Aggregate Market Price (as defined below) of all of the
outstanding Common Stock on the date fixed for such determination less the
then fair market value (as determined in good faith by the Board of
Directors) of the cash, assets or evidences of indebtedness so distributed
and the denominator shall be such Current Aggregate Market Price of the
Common Stock on such date, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed for
the determination of stockholders entitled to receive such distribution.
(e) STOCK REPURCHASES. In case the Company or any
subsidiary thereof shall, by tender offer or otherwise, purchase any shares
of Common Stock (the "Purchased Shares") for an aggregate consideration
having a fair market value (as determined in good faith by the Board of
Directors) in excess of the then Current Market Price of the Purchased
Shares, then, and in each such case, effective as of the close of business
on the date of such purchase (the "Purchase Date"), the Exercise Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Exercise Price in effect immediately prior to the close of
business on the Purchase Date by a fraction of which the numerator shall be
the Current Aggregate Market Price of all of the outstanding Common Stock
at the close of business on the Purchase Date less the aggregate amount by
which the aggregate consideration paid for the Purchased Shares exceeds the
Current Market Price of the Purchased Shares, and the denominator shall be
the aggregate Current Market Price of all of the outstanding Common Stock
as of the close of business on the Purchase Date.
(f) RECLASSIFICATIONS. In the event the Company shall at
any time issue other securities to all holders of shares of Common Stock by
reclassification of its shares of Common Stock or issue by means of a
capital reorganization other securities of the Company in lieu of the
Common Stock or in addition to the Common Stock, the Holder of this Warrant
shall have the right thereafter, during the period this Warrant shall be
exercisable as specified in Section 1, to exercise this Warrant only into
the kind and amount of securities receivable upon such reclassification or
reorganization by a holder of the number of shares of Common Stock of the
Company into which this Warrant might have been exercised immediately prior
to such reclassification or reorganization. The above provisions of this
Section shall similarly apply to successive reclassifications and
reorganizations.
(g) CONSOLIDATION, MERGER OR SALE OF ASSETS. In case of
any consolidation of the Company with, or merger of the Company into, any
other Person, any merger of another Person into the Company (other than a
merger which does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of Common Stock of the Company) or
any sale or transfer of all or substantially all of the assets of the
Company (each, a "Transaction"), the Holder of this Warrant shall have the
right thereafter, during the period this Warrant shall be exercisable as
specified in Section 1, to exercise this Warrant only into the kind and
amount of securities, cash and other property receivable upon such
Transaction by a holder of the number of shares of Common Stock of the
Company into which this Warrant might have been exercised immediately prior
to such Transaction. The above provisions of this Section shall similarly
apply to successive Transactions.
(h) READJUSTMENT OF EXERCISE PRICE. If any adjustment in
the Exercise Price is made pursuant to paragraph (b) in respect of any
rights, options, warrants or convertible securities ("Derivative
Securities") which subsequently expire unexercised or unconverted, as the
case may be, the Exercise Price shall, upon such expiration, be readjusted
as of the date of such expiration (after taking into account any events
subsequent to the issuance of such Derivative Securities which required an
adjustment pursuant to this Section 13) as if the only Derivative
Securities that had been issued by the Company were such Derivative
Securities that (i) had actually been exercised or converted on or prior to
the date of such expiration and (ii) remain outstanding as of the date of
such expiration.
(i) DETERMINING CURRENT MARKET VALUE. For the purpose of
any computation under this Section, the Current Market Price per share of
Common Stock on any date shall equal the average of the daily closing
prices for the twenty (20) trading days on which sales of Common Stock
occurred immediately preceding the date in question. For the purpose of any
computation under this Section, the Current Aggregate Market Price of all
of the outstanding shares of Common Stock on any date shall be deemed to be
the product of the number of outstanding shares of Common Stock on such
date and the average of the daily closing prices of the Common Stock for
the twenty (20) trading days immediately preceding the date in question.
The closing price for each day shall be the last reported sales price on
the primary exchange or market (including the NASDAQ-National Market
System) on which the Common Stock is then listed or traded, or if not
listed or admitted to trading on any such primary exchange or admitted to
trading in any such market, the average of the closing bid and asked prices
on the NASDAQ or in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the Company
for that purpose.
(j) DIMINIMIS ADJUSTMENTS. No adjustment shall be made in
the Exercise Price as required by this Section unless such adjustment would
require a change of at least 1% in the Exercise Price then in effect, but
any adjustment that would otherwise be required to be made shall be carried
forward and taken into account in any subsequent adjustment.
(k) CERTIFICATE AS TO ADJUSTMENTS. Whenever the Exercise
Price is adjusted or other rights are granted as herein provided, the
Company shall compute the adjusted Exercise Price in accordance with this
Section 13 and shall promptly mail to all Holders at their last addresses
as they shall appear in the Warrant Register a notice stating that the
Exercise Price has been adjusted and setting forth the adjusted Exercise
Price, along with a certificate signed by the Chief Financial Officer or
Chief Accounting Officer of the Company setting forth the adjusted Exercise
Price and showing in reasonable detail the facts upon which such adjustment
is based.
15. RESALE REGISTRATION STATEMENT. (a) The Company has filed
with the Securities and Exchange Commission (the "Commission") a
Registration Statement on Form SB-2 (the "Resale Registration Statement")
to register under the Securities Act of 1933, as amended (the "Securities
Act"), the sale of certain shares of Common Stock by certain selling
stockholders of the Company on a delayed or continuous basis pursuant to
Rule 415 promulgated under the Securities Act. The Company expects that
the Resale Registration Statement will become effective on or prior to
December 31, 1995. The Company hereby covenants that it will promptly
amend the Resale Registration Statement to include the sale of the Warrant
Shares and any securities issued or issuable with respect to the Warrant
Shares by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization (collectively, the "Registrable Securities") by the Holder
or Holders of this Warrant, and will use its best efforts to obtain and
maintain the effectiveness of the Resale Registration Statement until the
expiration of the four (4) year period immediately following the date of
this Warrant, or until all of the Registrable Securities have been sold by
the Holder or Holders, if sooner (the "Registration Period").
(b) The Holder or Holders of this Warrant shall provide the
Company, from time to time, as reasonably requested by the Company, written
information concerning the Holder's ownership of the Company's securities,
such ▇▇▇▇▇▇'s intentions concerning the sale of Registrable Securities and
such other matters as are required in order to enable the Company to amend,
and obtain and maintain the effectiveness of, such Resale Registration
Statement in accordance with this Section 14.
(c) In the event the Resale Registration Statement shall
not be declared effective by the Commission by December 31, 1995, or the
Resale Registration Statement is declared effective but shall thereafter at
any time during the Registration Period cease to be effective, the Holder
or Holders of this Warrant shall have the rights set forth in Sections 15
and 16 below to request registration of the Registrable Securities until
such time as the Resale Registration Statement shall have been declared
effective or again becomes effective, as the case may be; provided that to
the extent the Company is required to file a post-effective amendment to
the Resale Registration Statement in order to update such registration
statement as required by Section 10(a)(3) of the Securities Act of 1933,
the Holder or Holders of this Warrant shall not be entitled to exercise the
rights set forth in Sections 15 and 16 below during the 60 day period
following the filing of such post-effective amendment with the Commission
(the "Stand-Still Period"), provided the Company uses its reasonable best
efforts to obtain the effectiveness of such post-effective amendment during
such Stand-Still Period.
(d) In the event the Company is for any reason unable to
include the Registrable Securities in the Resale Registration Statement,
during the Registration Period the Holder or Holders of this Warrant shall
have the rights set forth in Sections 15 and 16 below to request
registration of the Registrable Securities, it being agreed by the Company
that the Holder or Holders of this Warrant shall not be required to
exercise this Warrant if such exercise is necessary to include the
Registrable Securities in the Resale Registration Statement.
16. DEMAND REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION. Subject to the limitations set
forth in Section 15(c) below, the Company shall, upon the written request
of any Holder, use its best efforts to cause the Registrable Securities
specified in such request to be registered (a "Demand Registration") under
the Securities Act of 1933, as amended (the "Securities Act"). In the
event that the Company shall receive a written request under this Section
15(a), the Company shall give prompt written notice thereof to any other
Holder which did not join in such written request. If requested in writing
by any of such other Holders within fifteen days after the Company gives
the notice described in the preceding sentence, the Company shall include
among the Registrable Securities that it endeavors to register under this
Section 15(a) such Registrable Securities as shall be specified in the
request of such other Holders.
(b) REQUIREMENTS OF REQUEST. Each request delivered
pursuant to Section 15(a) shall: (i) specify the amount of Registrable
Securities intended to be offered and sold by the Holder; (ii) express the
Holder's present intent to offer such Registrable Securities for
distribution; (iii) describe the nature or method of the proposed offer and
sale of the Registrable Securities; and (iv) contain the undertaking of the
Holder to provide all such information and materials and take all such
action as may be reasonably required in order to permit the Company to
comply with all applicable requirements of the Securities Act and state
securities and "blue sky" laws, and to obtain acceleration of the effective
date of the registration statement.
(c) LIMITATIONS ON DEMAND REGISTRATIONS. Notwithstanding
anything herein to the contrary, the obligations of the Company to cause
any Registrable Securities to be registered pursuant to this Section 15 are
subject to each of the following limitations, conditions and
qualifications:
(i) The Company shall only be required to effect one
Demand Registration pursuant to Section 15(a). A Demand Registration shall
be counted for that purpose when the corresponding registration statement
has become effective under the Securities Act and has remained effective
for the period of time specified in Section 17(b) (plus the amount of time
during which sales are suspended under such registration statement through
no fault of the Holders).
(ii) No Holder shall be entitled to request Demand
Registration at any time that the Resale Registration Statement shall be
effective with respect to the Registrable Securities or during any Stand-
Still Period.
17. PIGGYBACK REGISTRATION RIGHTS.
(a) PIGGYBACK REGISTRATION. Subject to the limitations set
forth in Section 16(c), at each time that the Company shall propose the
registration under the Securities Act of an offering of any securities on a
registration form which can be used for registration of the Registrable
Securities (other than in connection with an offering solely to the
Company's employees pursuant to a registration statement on Form S-8 under
the Securities Act or an offering pursuant to a registration statement on
Form S-4 under the Securities Act, or any successor forms thereto), the
Company shall give written notice as promptly as possible of such proposed
registration to the Holders, and shall include in the offering such amount
of Registrable Securities as the Holders shall request to be included by
written notice to the Company received within fifteen days after receipt of
the Company's notice, upon the same terms (including the method of
distribution) as the securities being sold by the Company pursuant to any
such offering (a "Piggyback Registration").
(b) REQUIREMENTS OF REQUEST. Each request delivered
pursuant to Section 16(a) shall: (i) specify the amount of Registrable
Securities intended to be offered and sold by the Holder; and (ii) contain
the undertaking of the Holder to provide all such information and materials
and take all such action as may be reasonably required in order to permit
the Company to comply with all applicable requirements of the Securities
Act and state securities and "blue sky" laws and to obtain acceleration of
the effective date of the registration statement.
(c) LIMITATIONS ON PIGGYBACK REGISTRATIONS.
Notwithstanding anything contained herein to the contrary, the obligations
of the Company to cause Registrable Securities to be registered pursuant to
this Section 16 are subject to each of the following limitations,
conditions and qualifications:
(i) If the Company is advised in writing by the
managing underwriter (or its investment banking firm if the offering is not
underwritten) that the inclusion of any Registrable Securities may, in the
opinion of such underwriter or investment banking firm, as the case may be,
interfere with the orderly sale and distribution of the securities proposed
to be offered by the Company or adversely affect the price at which such
securities may be sold, the number of Registrable Securities to be included
in the offering shall be proportionately reduced or eliminated to the
extent necessary as shall be reasonably determined by such underwriter or
investment banker, as the case may be, in good faith.
(ii) In the event the Holders request registration
pursuant to Section 16(a) and the related offering is to be underwritten,
the Holders will enter into an underwriting agreement containing
representations, warranties and agreements not substantially different from
those customarily made by an issuer and a selling shareholder in
underwriting agreements with respect to secondary distributions.
(iii) The Company may, at any time in its sole
discretion, without the consent of the Holders and without liability to any
Holder for such action, withdraw such registration statement and abandon
the proposed offering in which the Holders had requested to participate.
(iv) No Holder shall be entitled to request Piggyback
Registration at any time that the Resale Registration Statement shall be
effective with respect to the Registrable Securities or during any Stand-
Still Period.
(v) Other than as set forth above or expressly
elsewhere in this Agreement, there shall be no other limitations upon the
timing or number of Piggyback Registrations which Holders may request
pursuant to this Section 16.
18. REGISTRATION PROCEDURES. With respect to the Resale
Registration Statement, and whenever the Holders have properly requested
that any Registrable Securities be registered pursuant to Section 15 or 16
of this Warrant (the Resale Registration Statement and such other
registration statement including the Registrable Securities being referred
to herein as a "Registration Statement"), the Company will, subject to all
limitations set forth herein, use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with
the intended method of disposition thereof, and pursuant thereto the
Company will, if applicable, as expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities and use its best
efforts to cause such Registration Statement to become effective (PROVIDED
that before filing a Registration Statement or prospectus or any amendments
or supplements thereto, the Company will furnish to each Holder copies of
all such documents proposed to be filed);
(b) prepare and file with the Commission such amendments
and supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for a period ending on the earlier of (i) the date all
such registered Registrable Securities are sold and any prospectus delivery
requirements under the Securities Act shall have lapsed, and (ii) (A) one
year (in the case of a registration statement on Form S-1 or comparable
long-form registration statement) or (B) until the expiration of the
Registration Period (in the case of any other Registration Statement,
including the Resale Registration Statement), and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the Holders thereof
set forth in such Registration Statement;
(c) notify each Holder of such Registrable Securities, and
the managing underwriter for an underwritten offering, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such Registration Statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and at the request of any Holder
participating in such registration, the Company will prepare a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary
to make the statements therein not misleading;
(d) furnish to the Holders and to each underwriter, if any,
such number of copies of any prospectus (including any preliminary
prospectus) and such other documents as the Holders or such underwriters
may reasonably request in order to effect the offering and sale of the
Registrable Securities to be offered and sold by the Holders, but only
while the Company is required under the provisions hereof to cause the
Registration Statement to remain current;
(e) in the case of a request for Demand Registration under
Section 15(a), as expeditiously as possible use its best efforts to qualify
the offering under applicable blue sky laws or such other state securities
laws as the Holders may reasonably request and do any and all other acts
and things which may be reasonably necessary to enable the Holders to offer
and sell the Registrable Securities; PROVIDED, however, that the Company
shall not be obligated to qualify as a foreign corporation to do business
under the laws of any jurisdiction in which it is not then qualified;
(f) cause all such Registrable Securities to be listed on
each securities exchange or automated interdealer quotation system on which
similar securities issued by the Company are then listed, if any;
(g) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions
as the holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (PROVIDED no such
agreement shall require the Company to expend funds other than as provided
in this Section or provide indemnities other than as are provided in
Section 18 hereof);
(h) during normal business hours and upon reasonable
notice, make available for inspection by any legal or accounting
representative of the Holders and any underwriter participating in any
disposition pursuant to such Registration Statement, all financial and
other records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
Holder, underwriter, attorney, accountant or agent in connection with such
Registration Statement;
(i) advise each seller of Registrable Securities,
immediately after it shall receive notice or obtain knowledge thereof, of
the issuance of any stop order by the Commission (or any comparable state
authority) suspending the effectiveness of such Registration Statement or
the initiation or threatening of any proceeding for such purpose and
promptly use reasonable efforts to prevent the issuance of any stop order
or to obtain its withdrawal if such stop order should be issued.
In connection with any registration of the Registrable
Securities pursuant to this Warrant, (a) the Company shall pay (i) the fees
and disbursements of legal counsel for the Company, (ii) fees and
disbursements of any accounting firm and other experts used by the Company
in connection with such registration, (iii) expenses of any audits of the
Company incidental to or required in connection with such registration and
(iv) all other expenses attributable to any registration effected by the
Company pursuant to Sections 14, 15 or 16, including without limitation,
all Commission and blue sky registration and filing fees, printing
expenses, fees and disbursements of blue sky counsel, transfer agent and
registrar fees; and (b) the Company shall pay all reasonable fees and
disbursements of counsel for the Company's underwriters, and reasonable
disbursements of such underwriters, underwriting discounts and commission
and expenses incidental to any post-effective amendment to any such
Registration Statement; PROVIDED, HOWEVER, that the Holders shall pay any
underwriting discounts and commissions associated with the sale of
Registrable Securities and shall bear their own costs of separate counsel
and professional fees.
19. INDEMNIFICATION.
(a) BY THE COMPANY. In the case of each registration
effected by the Company pursuant to Sections 14, 15 or 16, the Company
agrees to indemnify and hold harmless the Holders, their respective
officers, directors, shareholders and partners (if any), the Holders'
underwriter of the Registrable Securities so registered, if any, and each
person who controls the Holders or any such underwriter, if any, within the
meaning of Section 15 of the Securities Act, against any and all losses,
claims, damages, liabilities and expenses to which they or any of them may
become subject under the Securities Act or any other statute or common law,
and any legal or other expenses incurred by them in connection with
defending any actions, insofar as any such losses, claims, damages,
liabilities or actions arise out of or are based upon (A) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement relating to the sale of such shares, or any post-
effective amendment thereto, or 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; (B) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
(if suit is brought prior to the effective date of such Registration
Statement) or contained in the final prospectus (as amended or
supplemented) if used within the period during which the Company is
required to keep the Registration Statement to which such prospectus
relates current pursuant to the terms of Section 17(b), or the omission or
alleged omission to state therein a material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading; PROVIDED, however, that the indemnification
agreement contained in this Section 18(a) shall not apply to such losses,
claims, damages, liabilities or actions arising out of, or based upon, the
failure of any Holder or any of the Holders' underwriters to comply with
the prospectus delivery requirements of the Securities Act applicable to
Holders or Holders' underwriters, or with respect to any such untrue
statement or alleged untrue statement or any such omission or alleged
omission that was made in reliance upon and in conformity with information
furnished directly to the Company by the Holders or any such underwriter.
(b) BY THE HOLDERS. In the case of each registration
effected by the Company pursuant to Sections 14, 15 or 16, each Holder
participating in such registration agrees, severally and not jointly, to
indemnify and hold harmless the Company, its officers and directors, each
underwriter of the shares so registered and each person who controls the
Company or any such underwriter, if any, within the meaning of Section 15
of the Securities Act, against any and all losses, claims, damages,
liabilities and expenses to which they or any of them may become subject
under the Securities Act or any other statute or common law, and any legal
or other expenses incurred by them in connection with investigating any
claims and defending any actions, insofar as any such losses, claims,
damages, liabilities or actions arise out of or are based upon (A) any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement relating to the sale of such shares by such
Holder, or any post-effective amendment thereto, or the omission or alleged
omission of such Holder to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
or (B) any untrue statement or alleged untrue statement of a material fact
attributable to such Holder and contained in any preliminary prospectus, if
suit is brought prior to the effective date of such Registration Statement,
or contained in the final prospectus (as amended or supplemented) if used
within the period during which the Company is required to keep the
Registration Statement to which such prospectus relates current pursuant to
the terms of Section 17(b), or the omission or alleged omission by such
Holder to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, in each case, if such statement or omission was (x)
made in reliance upon and in conformity with information furnished to the
Company by such Holder, any underwriter of such Holder's Registrable
Securities or any controlling person of such Holder or any such underwriter
in connection with such registration, or (y) contained in any preliminary
prospectus that was corrected by any subsequent prospectus and such Holder
or underwriter of such Holder's Registrable Securities or any controlling
person of such Holder or any such underwriter failed to deliver such
corrected prospectus; PROVIDED that such Holder shall be liable under this
Section 18(b) for only that amount of losses, claims, damages and
liabilities as does not exceed the proceeds to such Holder as a result of
the sale of Registrable Securities pursuant to such registration.
(c) The indemnities provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and will survive the transfer or other
assignment of Registrable Securities and the termination of this Agreement.
20. GOVERNING LAW. This Warrant shall be governed by and
interpreted in accordance with the laws of the State of New Jersey, without
giving effect to conflict-of-law principles thereof.
IN WITNESS WHEREOF, ALFACELL CORPORATION has caused this Warrant
to be executed by its officers thereunto duly authorized.
Dated as of October 1, 1995
ALFACELL CORPORATION
By /S/ KUSLIMA SHOGEN
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:President
NOTICE OF EXERCISE
To: ALFACELL CORPORATION
(1) The undersigned hereby elects to purchase ________ shares of
Common Stock of ALFACELL CORPORATION, pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price for such shares
in full as follows:
( ) Cash in the amount of $________;
( ) Check, bank draft or money order payable to the order of
"Alfacell Corporation" in the amount of $_________; and/or
( ) Discharge of Indebtedness in principal amount of $_______,
due to the Holder pursuant to _______________
______________________________________________________.
(2) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name
as is specified below:
(Name) (Number of shares)
(Name) (Number of shares)
(3) Please issue a new Warrant for the unexercised portion of
the attached Warrant in the name of the undersigned or in such other name
as is specified below:
(Name)
(Date) (Signature)
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below
all of the rights of the undersigned under the within Warrant, with respect
to the number of shares of Common Stock (or Common Stock) set forth below:
NAME OF ▇▇▇▇▇▇▇▇ ADDRESS NO. OF SHARES
and does hereby irrevocably constitute and appoint Attorney
___________________ to make such transfer on the books of ALFACELL
CORPORATION maintained for the purpose, with full power of substitution in
the premises.
Date: