Exhibit 10.27
Note Payable Amendment
Alfacell Corporation, a Delaware corporation ("Alfacell"), entered into a
series of Notes Payable with __________________ (the "Lender"), a schedule of
such Notes is attached hereto as Schedule A, pursuant to which Xxxxxxxx promised
to pay the Lender an aggregate of $________, with interest at 8% per annum (the
"Convertible Debt").
Under the terms of the Convertible Debt, the Lender shall receive on the
applicable Due Date (as specified in Schedule A) a warrant to purchase shares of
Alfacell's common stock, par value $0.001 per share (the "Common Stock") at an
exercise price of $___ per share (the "Due Date Warrants"). The Due Date
Warrants shall be exercisable for an aggregate of __________ shares of Common
Stock (Schedule A sets forth the number of shares to be issued upon exercise for
each Due Date Warrant).
In addition, the terms of the Convertible Debt grant the Lender the option
to convert the principal and interest (Schedule B sets forth for each
Convertible Debt the applicable principal and interest assuming the Convertible
Debt is not converted until its Due Date) at any time up to the Due Date at a
certain Conversion Price (as set forth in Schedule B) (the "Conversion
Feature"). (Assuming the Lender converts all the Convertible Debt on the
applicable Due Date, Alfacell would be required to issue an aggregate __________
shares of Common Stock pursuant to the Conversion Feature.) The Conversion
Feature also states that, upon conversion of the Convertible Debt, the Lender is
entitled to additional warrants (in addition to the Due Date Warrants discussed
above) to purchase shares of Common Stock at an exercise price of $___ per
shares (the "Additional Warrants"). The Additional Warrants shall be exercisable
for the equivalent number of shares that are issued to the Lender pursuant to
the Conversion Feature (i.e. warrants to purchase an aggregate ___________
shares of Common Stock, if the conversion took place on the applicable Due
Dates).
Xxxxxxxx currently does not have enough shares of Common Stock authorized
in order to reserve shares for issuance pursuant to the Conversion Feature or
upon exercise of the Due Date Warrants or the Additional Warrants. Alfacell's
Board of Directors has authorized the issuance, out of the 1,000,000 shares of
blank check preferred stock currently authorized, of a Series A Preferred Stock,
par value $0.001 per share (the "Series A Preferred Stock"), which gives the
holder of any such security (i) a 100-for-1 voting right on any matter presented
to the holders of Common Stock, voting as a single class with the Common Stock,
and (ii) a dividend equal to 100 times the dividend to be received by the
holders of Common Stock; such dividend to be pari passu with the Common Stock.
The terms of the Series A Preferred Stock are more fully set forth in the
Certificate of Designations, attached hereto as Exhibit A.
In light of the foregoing, the Lender hereby agrees to amend the terms of
the Convertible Debt such that the Convertible Debt shall be convertible into
shares of Series A Preferred Stock rather than shares of Common Stock at a rate
of 1 share of Series A Preferred Stock for each 100
shares of Common Stock into which the Convertible Debt was convertible
immediately prior to such amendment as more fully set forth in Schedule B
attached hereto. In addition, the Lender agrees to amend the Due Date Warrants
and the Additional Warrants such that the Due Date Warrants and the Additional
Warrants shall be exercisable into shares of Series A Preferred Stock rather
than shares of Common Stock at a rate of 1 share of Series A Preferred Stock for
each 100 shares of Common Stock into which the Due Date Warrants and Additional
Warrants were convertible immediately prior to such amendment as more fully set
forth in Schedule B attached hereto.
The Lender represents and warrants to Alfacell that:
a. it is an "accredited investor" within the meaning of Rule 501 under the
Securities Act of 1933, as amended (the "Act") and was not organized for the
specific purpose of acquiring the Series A Preferred Stock;
b. it, individually or through its advisers, has sufficient knowledge and
experience in investing in companies similar to Alfacell in terms of Alfacell's
stage of development and financial condition so as to be able to evaluate the
risks and merits of its investment in Alfacell and it is able financial to bear
the risks thereof;
c. it has reviewed Xxxxxxxx's Annual Report on Form 10-K for the fiscal
year ended July 31, 2002 and the Quarterly Report on Form 10-Q for the quarters
ended October 31, 2002, January 31, 2003 and April 30, 2003;
d. it has had an opportunity to discuss Xxxxxxxx's business, management
and financial affairs with Xxxxxxxx's management and has conducted an
investigation to its satisfaction to make a decision to invest in Alfacell;
additionally, it understands that all documents, records and books pertaining to
this investment have been made available for inspection; and
e. it understands that (i) the Series A Preferred Stock has not been
registered under the Act or applicable state securities laws, (ii) the Series A
Preferred Stock must be held indefinitely unless a subsequent disposition
thereof is registered under the Act and applicable state securities laws or is
exempt from such registration, (iii) the Series A Preferred Stock will be a
legend to such effect and (iv) Alfacell will make a notation on its transfer
books to such effect.
Xxxxxxxx hereby agrees that if the stockholders approve an amendment to
Xxxxxxxx's Certificate of Incorporation, as amended, such that the number of
shares of authorized Common Stock is increased, Alfacell shall use its best
efforts to propose an amendment to the terms of the Series A Preferred Stock to
include, among other things, a feature to allow the holder of such shares to
convert such shares into shares of Common Stock.
f. Alfacell hereby agrees that on or before January 31, 2004, it shall
hold a stockholders meeting (the "Stockholders Meeting") and shall recommend to
the stockholders that they approve an amendment to Alfacell's Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), such that the
number of authorized shares of Common Stock is increased in order to provide for
a sufficient number of authorized but unissued shares of Common Stock to enable
Alfacell convert the Convertible Debt into shares of Common Stock upon the same
terms as contemplated prior to this amendment. Assuming the stockholders approve
the amendment to
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increase the number of shares of Common Stock authorized, the terms of the
Convertible Debt (including the terms of the Due Date Warrants and the
Additional Warrants) shall automatically revert to the terms in effect
immediately prior to this amendment, except to the extent that any shares of
Series A Preferred Stock has been issued. To the extent any shares of Series A
Preferred Stock is outstanding, Xxxxxxxx will propose an amendment to the terms
of the Series A Preferred Stock to include, among other things, a feature to
allow the holder of such shares to convert such shares into shares of Common
Stock. In the event the stockholders do not approve the amendment to the
Certificate of Incorporation to increase the number of shares of Common Stock
authorized, Alfacell shall file, with the Securities and Exchange Commission
(the "Commission"), a Registration Statement on a Form S-1 covering the resale
of shares of Series A Preferred Stock issuable upon conversion of the
Convertible Debt and the shares of Series A Preferred Stock issuable upon
exercise of the Due Date Warrants and the Additional Warrants (the "Registration
Statement"); provided however, such Registration Statement shall not be filed
the Commission until the Commission declares effective a registration statement
covering, among other securities, the Common Stock and Common Stock underlying
warrants issued to SF Capital Partners, Ltd. Alfacell shall use its best efforts
to have the Registration Statement declared effective by the Commission within
90 days of the filing date. In addition, after the Registration Statement is
declared effective, Alfacell will use commercially reasonable efforts, to cause
market makers to make a market for the sale of the Series A Preferred Stock.
In addition, Xxxxxxxx and Lender hereby agree to amend the terms of the
Convertible Debt such that any Due Date that occurs prior to the Stockholders
Meeting shall be extended to 30 days beyond the Stockholders Meeting.
Dated as of this 2nd day of September 2003.
Alfacell Corporation
________________________________
Kuslima Shogen
Chief Executive Officer
________________________________
________________________________
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