As filed with the Securities and Exchange Commission February 13, 2004
Registration No.333- _____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALFACELL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 22-2369085
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
225 Belleville Avenue, Bloomfield, New Jersey 07003
(Address of Principal Executive Offices) (Zip Code)
2004 Stock Incentive Plan
(Full title of the plan)
Kuslima Shogen
Chief Executive Officer
Alfacell Corporation
225 Belleville Avenue, Bloomfield, New Jersey 07003
(973) 748-8082
(Name and address of agent for service of process)
Copies to:
Kevin T. Collins, Esq.
Dorsey & Whitney LLP
250 Park Avenue
New York, New York 10177
(212) 415-9200
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Proposed Maximum Proposed Maximum
Securities Amount to be Offering Aggregate Offering Amount of Registration
to be Registered Registered Price Per Share Price Fee
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Common Stock $.001 8,500,000(1) $ 4.25(2) $36,125,000 $4,578
par value per Share
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Totals 8,500,000 $ 4.25 $36,125,000 $4,578
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(1) This Registration Statement covers the 8,500,000 shares of common stock
approved by the stockholders of Alfacell Corporation on January 14, 2004,
that are issuable pursuant to Alfacell Corporation's 2004 Stock Incentive
Plan, plus an indeterminate number of additional shares which may be
offered and issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) and Rule 457(c) under the Securities Act of
1933, as amended, based upon the average of the high and low prices of the
registrant's Common Stock as reported on the Over-the-Counter Bulletin
Board on February 11, 2004.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part I to be contained in Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 of the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by Alfacell Corporation (the "Company"),
are incorporated by reference in this Registration Statement, as of their
respective dates:
(a) its Annual Report on Form 10-K for the fiscal year ended July 31,
2003, which contains audited financial statements for the Registrant's latest
fiscal year for which a Form 10-K was required to have been filed;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
October 31, 2003 and Current Reports on Form 8-K filed on September 5, 2003 and
February 2, 2004; and
(c) the description of the Company's Common Stock, $.001 par value, as
contained in its Registration Statement on Form 8-A, filed with the Commission
on April 26, 1983.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
We have agreed to indemnify and hold KPMG LLP ("KPMG") harmless against
and from any and all legal costs and expenses incurred by KPMG in successful
defense of any legal action or proceeding that arises as a result of KPMG's
consent to the incorporation by reference of its audit report on our past
financial statements incorporated by reference in this registration statement.
Item 6. Indemnification of Officers and Directors.
Under the General Corporation Law of Delaware ("Delaware GCL") a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation), by reason of the fact that he
or she is or was our director, officer, employee or agent, or is or was serving
at our request against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to our best
interests, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
In addition, the Delaware GCL also provides that we also may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in our right to procure a
judgment in our favor by reason of the fact that he or she is or was our
director, officer, employee or agent, or is or was serving at our request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to our best
interests. However, in such an action by or on our behalf, no indemnification
may be made in respect of any claim, issue or matter as to which the person is
adjudged liable to us unless and only to the extent that the court determines
that, despite the adjudication of liability but in view of all the
circumstances, the person is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
Our certificate of incorporation is consistent with the Delaware GCL and
our By-laws provide that each of our directors, officers, employees and agents
shall be indemnified to the extent permitted by the Delaware GCL.
We have entered into indemnification agreements with each of our
directors. The indemnity agreements are consistent with our By-laws and our
policy to indemnify directors to the fullest extent permitted by law. The
indemnity agreements provide for indemnification of directors for liabilities
arising out of claims against such persons acting as our directors (or any
entity controlling, controlled by or under common control with us) due to any
actual or alleged breach of duty, neglect, error, misstatement, misleading
statement, omission or other act done, or
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suffered or wrongfully attempted by such directors, except as prohibited by law.
The indemnity agreements also provide for the advancement of costs and expenses,
including attorneys' fees, reasonably incurred by directors in defending or
investigating any action, suit, proceeding or claim, subject to an undertaking
by such directors to repay such amounts if it is ultimately determined that such
directors are not entitled to indemnification. The indemnity agreements cover
future acts and omissions of directors for which actions may be brought.
The indemnity agreements also provide that directors, officers, employees
and agents are entitled to indemnification against all expenses (including
attorneys' fees) reasonably incurred in seeking to collect an indemnity claim or
to obtain advancement of expenses from us. The rights of directors under the
indemnity agreements are not exclusive of any other rights directors may have
under Delaware GCL, any liability insurance policies that may be obtained, our
By-laws or otherwise. We would not be required to indemnify a director for any
claim based upon the director gaining in fact a personal profit or advantage to
which such director was not legally entitled, any claim for an accounting of
profits made in connection with a violation of Section 16(b) of the Securities
Exchange Act of 1934 or a similar state or common law provision or any claim
brought about or contributed to by the dishonesty of the director.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
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4.1 2004 Stock Incentive Plan (incorporated by reference to
Exhibit 10.23 to Registration Statement on Form S-1, filed on
February 17, 2004)
5.1 Opinion of Dorsey & Whitney LLP**
23.1 Consent of Dorsey & Whitney LLP (contained in opinion filed as
Exhibit 5.1)
23.2 Consent of J.H. Cohn LLP**
23.3 Consent of KPMG LLP**
24.1 Power of Attorney (included on signature page).
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** Filed herewith.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration
Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement; notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or furnished to the Commission
by the Registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bloomfield, State of New Jersey, on February 13,
2004.
ALFACELL CORPORATION
(Registrant)
By: /s/ KUSLIMA SHOGEN
Kuslima Shogen
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Kuslima Shogen and Paul Weiss as true and
lawful attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on February 13, 2004.
/s/ Kuslima Shogen Chairman and Chief Executive Officer
---------------------------------- (Principal Executive Officer and
Kuslima Shogen Principal Accounting Officer)
/s/ John P. Brancaccio Director
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John P. Brancaccio, C.P.A.
/s/ Stephen K. Carter Director
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Stephen K. Carter, M.D.
/s/ Donald R. Conklin Director
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Donald R. Conklin
/s/ James J. Loughlin Director
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James J. Loughlin
/s/ Andrew Savadelis Director
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Andrew Savadelis, M.B.A.
/s/ Paul Weiss Director
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Paul Weiss, Ph.D., M.B.A.
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ALFACELL CORPORATION
EXHIBIT INDEX
Location of Exhibit
in Sequential
Exhibit No Description Numbering System
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5.1 Opinion of Dorsey & Whitney LLP E-2
regarding legality
23.1 Consent of Dorsey & Whitney LLP
(contained in opinion filed as Exhibit 5.1)
23.2 Consent of J.H. Cohn LLP E-3
23.3 Consent of KPMG LLP E-4