EXHIBIT 10(ee)
WARRANT AMENDMENT AGREEMENT
This Warrant Amendment Agreement (the "Agreement"), dated as of February
10, 2012, is by and among Cel-Sci Corporation, a Colorado corporation (the
"Company") and Iroquois Master Fund, Ltd. (the "Purchaser").
The Purchaser was issued warrants to purchase an aggregate of 7,500,000
shares of Common Stock (the "Common Stock"), of which warrants to purchase
5,900,000 shares of Common Stock remain outstanding (the "Existing Warrants");
WHEREAS, the parties wish to amend certain terms of the Existing Warrants.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for good and valuable consideration the receipt and adequacy of
which are hereby acknowledged, the Purchasers and the Company agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms not defined in this
Agreement shall have the meanings ascribed to such terms in the Existing
Warrants.
ARTICLE II
EXERCISE OF WARRANTS,
AMENDMENTS AND OTHER AGREEMENTS
Section 2.1 Exercise of Existing Warrants. Purchaser hereby agrees to
exercise all of such Purchaser's Existing Warrants at an exercise price of $0.25
per share, for aggregate cash proceeds to the Company of $1,475,000, and
otherwise pursuant to the terms of the Existing Warrants. Purchaser shall
execute and deliver the aggregate cash exercise price for such Existing Warrants
to the bank account designated in writing by the Company.
Section 2.2 Issuance of New Warrants. Each Purchaser shall be issued new
warrants (the "Warrants") in the form attached hereto as Exhibit A, to purchase
up to 5,900,000 shares of Common Stock, with an exercise price equal to $0.45,
subject to adjustment therein. The shares of Common Stock underlying such
Warrants shall be referred to herein as the "Warrant Shares".
The date of the closing of the exercise of the Existing Warrants and other
transactions contemplated hereunder shall be referred to as the "Closing".
Section 2.3 Filing of Form 8-K and Prospectus Supplement. Within 1
Trading Day of the date hereof, the Company shall issue a Current Report on Form
8-K, reasonably acceptable to each Purchaser disclosing the material terms of
the transactions contemplated hereby, which shall include this Agreement as an
attachment thereto. In addition, within 1 Trading Day of the date hereof, the
Company shall file a prospectus supplement under Rule 424 under the Securities
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Act to registration statement number 333-160794 (the "Registration Statement"),
disclosing the terms of the transactions hereunder.
Section 2.4 Conditions to Purchaser's Obligations. The obligations of the
Purchaser hereunder in connection with the Closing are subject to the following
conditions being met:
(a) the accuracy in all material respects on the date of the Closing of
the representations and warranties of the Company contained herein;
(b) the Registration Statement shall be effective as of the Closing Date
for the issuance of the Warrant Shares and the new Warrants;
(c) all obligations, covenants and agreements of the Company required to
be performed at or prior to the Closing shall have been performed;
(d) the delivery of a Secretary's Certificate, attaching the Board of
Directors resolutions approving the transactions contemplated hereby;
(e) there shall have been no Material Adverse Effect with respect to the
Company since the date hereof; and
(f) from the date hereof to the Closing, trading in the Common Stock shall
not have been suspended by the Commission (except for any suspension
of trading of limited duration agreed to by the Company, which
suspension shall be terminated prior to the Closing), and, at any time
prior to the Closing, trading in securities generally as reported by
Bloomberg Financial Markets shall not have been suspended or limited,
or minimum prices shall not have been established on securities whose
trades are reported by such service, or on any Trading Market, nor
shall a banking moratorium have been declared either by the United
States or New York State authorities nor shall there have occurred any
material outbreak or escalation of hostilities or other national or
international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each case,
in the reasonable judgment of each Purchaser, makes it impracticable
or inadvisable to consummate the transactions hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Company. The Company
hereby make the representations and warranties set forth below to the Purchaser
that as of the date of its execution of this Agreement:
(a) Authorization; Enforcement. The Company has the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of
this Agreement by the Company and the consummation by it of the
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transactions contemplated hereby have been duly authorized by all
necessary action on the part of such Company and no further action is
required by such Company, its board of directors or its stockholders
in connection therewith. This Agreement has been duly executed by the
Company and, when delivered in accordance with the terms hereof will
constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms except (i) as limited
by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited
by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by
applicable law. The Warrant Shares and the New Warrants are registered
for issuance on an effective registration statement on Form S-3, file
no. 333-160794.
(b) No Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not: (i) conflict
with or violate any provision of the Company's certificate or articles
of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, result
in the creation of any lien upon any of the properties or assets of
the Company, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or
both) of, any material agreement, credit facility, debt or other
material instrument (evidencing Company debt or otherwise) or other
material understanding to which the Company is a party or by which any
property or asset of the Company is bound or affected, or (iii)
conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any
property or asset of the Company is bound or affected.
(c) Organization; Capitalization. The Company is a duly organized and
validly existing corporation in good standing under the laws of the
State of Colorado. The Warrants and Warrant Shares, when issued in
accordance with the terms of this Agreement and the Warrants, will be
duly authorized, validly issued, fully paid and nonassessable.
Section 3.2 Representations and Warranties of the Purchaser. The Purchaser
hereby makes the representations and warranties set forth below to the Company
that as of the date of its execution of this Agreement:
(a) Due Authorization. The Purchaser represents and warrants that (i) the
execution and delivery of this Agreement by it and the consummation by
it of the transactions contemplated hereby have been duly authorized
by all necessary action on its behalf and (ii) this Agreement has been
duly executed and delivered by the Purchaser and constitutes the valid
and binding obligation of the Purchaser, enforceable against it in
accordance with its terms.
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(b) No Conflicts. The execution, delivery and performance of this
Agreement by the Purchaser and the consummation by the Purchaser of
the transactions contemplated hereby do not and will not: (i) conflict
with or violate any provision of the Purchaser's organizational or
charter documents, or (ii) conflict with or result in a violation of
any agreement, law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority
which would interfere with the ability of the Purchaser to perform its
obligations under this Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be made in
accordance with the provisions of the Purchase Agreement.
Section 4.2 Survival. All warranties and representations (as of the date
such warranties and representations were made) made herein or in any certificate
or other instrument delivered by it or on its behalf under this Agreement shall
be considered to have been relied upon by the parties hereto and shall survive
the issuance of the Existing Warrants. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties; provided however that no party may assign this Agreement or the
obligations and rights of such party hereunder without the prior written consent
of the other parties hereto.
Section 4.3 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
Section 4.4 Severability. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
Section 4.5 Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be determined
pursuant to the Governing Law provision of the Warrant Agreement.
Section 4.6 Entire Agreement. The Agreement, together with the exhibits
and schedules thereto, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
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Section 4.7 Construction. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
Section 4.8 Termination. This Agreement may be terminated by any
Purchaser, as to such Purchaser's obligations hereunder, by written notice to
the other parties, if the Closing has not been consummated on or before February
16, 2012.
Section 4.9 Fees and Expenses. Except as expressly set forth herein, each
party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all transfer agent fees, stamp taxes and other
taxes and duties levied in connection with the delivery of any Warrants or
Warrant Shares.
***********************
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
CEL-SCI CORPORATION
By: /s/ Geert X. Xxxxxxx
-------------------------------
Name: Geert X. Xxxxxxx
Title: CEO
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[PURCHASER SIGNATURE PAGES TO CVM
AMENDMENT AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
Name of Purchaser: Iroquois Master Fund, Ltd.
-------------------------------------------------------
Signature of Authorized Signatory of Purchaser: /s/ Xxxxxx Xxxxxxxxx
--------------------------
Name of Authorized Signatory: Xxxxxx Xxxxxxxxx
--------------------------------------------
Address for Notice of Purchaser:
000 Xxxxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of New Warrants for Purchaser (if not same as above):
DWAC Instructions for Warrant Shares:
Number of Existing Warrants to be exercised: 5,900,000
New Warrants with an exercise price of $0.45: 5,900,000
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EXHIBIT A
COMMON STOCK PURCHASE WARRANT
CEL-SCI CORPORATION
Warrant Shares: 5,900,000 Issue Date: February 10, 2012
THIS COMMON STOCK PURCHASE WARRANT (the "Warrant") certifies that, for
value received, Iroquois Master Fund Ltd. or its assigns (the "Holder") is
entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after August 12, 2012 (the
"Initial Exercise Date") and on or prior to the close of business on March 6,
2017 (the "Termination Date") but not thereafter, to subscribe for and purchase
from CEL-SCI Corporation, a Colorado corporation (the "Company", or the
"Issuer") up to 5,900,000 shares of Common Stock (as subject to adjustment
hereunder, the "Warrant Shares" or "Warrant Stock"). The purchase price of one
share of Common Stock under this Warrant shall be equal to the Exercise Price,
as defined in Section 2(b).
Section 1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in that certain Securities Purchase
Agreement (the "Purchase Agreement"), dated January 25, 2012, among the Company
and the purchasers signatory thereto (it being acknowledged that Iroquois was
not a party to such Securities Purchase Agreement).
Section 2. Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by
this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination
Date by delivery to the Company (or such other office or agency of the
Company as it may designate by notice in writing to the registered
Holder at the address of the Holder appearing on the books of the
Company) of a duly executed facsimile copy of the Notice of Exercise
Form annexed hereto; and, within three (3) Trading Days of the date
said Notice of Exercise is delivered to the Company, the Company shall
have received payment of the aggregate Exercise Price of the shares
thereby purchased by wire transfer or cashier's check drawn on a
United States bank or, if available, pursuant to the cashless exercise
procedure specified in Section 2(c) below. Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased
all of the Warrant Shares available hereunder and the Warrant has been
exercised in full, in which case, the Holder shall surrender this
Warrant to the Company for cancellation within three (3) Trading Days
of the date the final Notice of Exercise is delivered to the Company.
Partial exercises of this Warrant resulting in purchases of a portion
of the total number of Warrant Shares available hereunder shall have
the effect of lowering the outstanding number of Warrant Shares
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purchasable hereunder in an amount equal to the applicable number of
Warrant Shares purchased. The Holder and the Company shall maintain
records showing the number of Warrant Shares purchased and the date of
such purchases. The Company shall deliver any objection to any Notice
of Exercise Form within 1 Business Day of receipt of such notice. In
the event of any dispute or discrepancy, the records of the Holder
shall be controlling and determinative in the absence of manifest
error. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this
paragraph, following the purchase of a portion of the Warrant Shares
hereunder, the number of Warrant Shares available for purchase
hereunder at any given time may be less than the amount stated on the
face hereof.
b) Exercise Price. The exercise price per share of the Common Stock under
this Warrant shall be $0.45, subject to adjustment hereunder (the
"Exercise Price").
c) Cashless Exercise. If at the time of exercise hereof there is no
effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant
Shares to the Holder, then this Warrant may only be exercised, in
whole or in part, at such time by means of a "cashless exercise" in
which the Holder shall be entitled to receive a certificate for the
number of Warrant Shares equal to the quotient obtained by dividing
[(A-B) (X)] by (A), where:
(A) = the VWAP on the Trading Day immediately preceding the date on
which Holder elects to exercise this Warrant by means of a
"cashless exercise," as set forth in the applicable Notice of
Exercise;
(B) = the Exercise Price of this Warrant, as adjusted hereunder;
and
(X) = the number of Warrant Shares that would be issuable upon
exercise of this Warrant in accordance with the terms of this
Warrant if such exercise were by means of a cash exercise
rather than a cashless exercise.
"VWAP" means, for any date, the price determined by the first of the
following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time)
to 4:02 p.m. (New York City time), (b) if the OTC Bulletin Board is not a
Trading Market, the volume weighted average price of the Common Stock for
such date (or the nearest preceding date) on the OTC Bulletin Board, (c)
if the Common Stock is not then listed or quoted for trading on the OTC
Bulletin Board and if prices for the Common Stock are then reported in the
"Pink Sheets" published by Pink OTC Markets, Inc. (or a similar
organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Common Stock so reported, or
(d) in all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by the
Holders of a majority in interest of the Securities then outstanding and
reasonably acceptable to the Company, the fees and expenses of which shall
be paid by the Company.
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Notwithstanding anything herein to the contrary, on the Termination Date,
this Warrant shall be automatically exercised via cashless exercise pursuant to
this Section 2(c).
3. Method of Exercise, Payment; Issuance of New Warrant; Transfer and
Exchange.
(a) Time of Exercise. The purchase rights represented by this Warrant may
be exercised in whole or in part at any time and from time to time on
or after the Initial Exercise Date and on or prior to the Termination
Date.
(b) Method of Exercise. The Holder hereof may exercise this Warrant, in
whole or in part, by the surrender of this Warrant (with the exercise
form attached hereto duly executed) at the principal office of the
Issuer, and by the payment to the Issuer of an amount of consideration
therefor equal to the Warrant Price in effect on the date of such
exercise multiplied by the number of shares of Warrant Stock with
respect to which this Warrant is then being exercised, payable at such
Holder's election by certified or official bank check or by wire
transfer to an account designated by the Issuer.
(c) Issuance of Stock Certificates. In the event of any exercise of the
rights represented by this Warrant in accordance with and subject to
the terms and conditions hereof, (i) certificates for the shares of
Warrant Stock so purchased shall be dated the date of such exercise
and delivered to the Holder hereof within a reasonable time, not
exceeding three (3) Trading Days after such exercise, and the Holder
hereof shall be deemed for all purposes to be the Holder of the shares
of Warrant Stock so purchased as of the date of such exercise, and
(ii) unless this Warrant has expired, a new Warrant representing the
number of shares of Warrant Stock, if any, with respect to which this
Warrant shall not then have been exercised (less any amount thereof
which shall have been canceled in payment or partial payment of the
Warrant Price as hereinabove provided) shall also be issued to the
Holder hereof at the Issuer's expense within such time.
(d) Transferability of Warrant. Subject to Section 3(e), this Warrant may
be transferred by a Holder without the consent of the Issuer. If
transferred pursuant to this paragraph and subject to the provisions
of subsection (e) of this Section 3, this Warrant may be transferred
on the books of the Issuer by the Holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant at the principal
office of the Issuer, properly endorsed (by the Holder executing an
assignment in the form attached hereto) and upon payment of any
necessary transfer tax or other governmental charge imposed upon such
transfer. This Warrant is exchangeable at the principal office of the
Issuer for Warrants for the purchase of the same aggregate number of
shares of Warrant Stock, each new Warrant to represent the right to
purchase such number of shares of Warrant Stock as the Holder hereof
shall designate at the time of such exchange. All Warrants issued on
transfers or exchanges shall be dated the Original Issue Date and
shall be identical with this Warrant except as to the number of shares
of Warrant Stock issuable pursuant hereto.
(e) Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance hereof, acknowledges
that this Warrant or the shares of Warrant Stock to be issued
upon exercise hereof are being acquired solely for the Holder's
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own account and not as a nominee for any other party, and for
investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be
issued upon exercise hereof except pursuant to an effective
registration statement, or an exemption from registration, under
the Securities Act and any applicable state securities laws.
(ii) Except as provided in paragraph (iii) below, this Warrant and all
certificates representing shares of Warrant Stock issued upon
exercise hereof shall be stamped or imprinted with a legend in
substantially the following form:
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED
UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS
OR CEL-SCI CORPORATION SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL
THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND
UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
(iii) The restrictions imposed by this subsection (e) upon the
transfer of this Warrant or the shares of Warrant Stock to be
purchased upon exercise hereof shall terminate (A) when such
securities shall have been resold pursuant to an effective
registration statement under the Securities Act, (B) upon the
Issuer's receipt of an opinion of counsel, in form and substance
reasonably satisfactory to the Issuer, addressed to the Issuer to
the effect that such restrictions are no longer required to
ensure compliance with the Securities Act and state securities
laws or (C) upon the Issuer's receipt of other evidence
reasonably satisfactory to the Issuer that such registration and
qualification under the Securities Act and state securities laws
are not required. Whenever such restrictions shall cease and
terminate as to any such securities, the Holder thereof shall be
entitled to receive from the Issuer (or its transfer agent and
registrar), without expense (other than applicable transfer
taxes, if any), new Warrants (or, in the case of shares of
Warrant Stock, new stock certificates) of like tenor not bearing
the applicable legend required by paragraph (ii) above relating
to the Securities Act and state securities laws. Notwithstanding
the foregoing transfer restrictions, one or more transfers of
this Warrant and shares of Warrant Stock may be made without
restriction as follows: (i) in the case of a Holder who is a
partnership or limited liability company, to a partner (including
a limited partner) of such partnership or a member of such
limited liability company; (ii) to any parent or majority-owned
subsidiary of any Holder or parent of any Holder or any successor
or permitted assignee of any Holder or any parent of any Holder;
(iii) to any taxable REIT subsidiary of Holder; or (iv) to any
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"affiliate" of a Holder (as defined in Rule 12b-2 of the Exchange
Act). The Shares issuable upon exercise of this Warrant shall be
freely transferable subject to compliance with applicable
securities laws.
(iv) It is the intent of this Section 3(e) that if the Warrant Shares
are covered by an effective registration statement, or can be
sold pursuant to Rule 144, the certificate representing the
Warrant Shares will be issued without a restricted legend. If the
Warrant Shares are not covered by an effective registration
statement, or cannot be sold pursuant to Rule 144, the
certificate representing the Warrant Shares will be issued with a
standard restricted legend. In no circumstances will the Issuer
pay cash in connection with the exercise of this Warrant.
(f) Continuing Rights of Holder. The Issuer will, at the time of or at any
time after each exercise of this Warrant, upon the request of the
Holder hereof, acknowledge in writing the extent, if any, of its
continuing obligation to afford to such Holder all rights to which
such Holder shall continue to be entitled after such exercise in
accordance with the terms of this Warrant, provided that if any such
Holder shall fail to make any such request, the failure shall not
affect the continuing obligation of the Issuer to afford such rights
to such Holder.
4. Stock Fully Paid; Reservation and Listing of Shares; Covenants.
(a) Stock Fully Paid. The Issuer represents, warrants, covenants and
agrees that all shares of Warrant Stock which may be issued upon the
exercise of this Warrant or otherwise hereunder will, upon issuance,
be duly authorized, validly issued, fully paid and non-assessable and
free from all taxes, liens and charges created by or through Issuer.
The Issuer further covenants and agrees that during the period within
which this Warrant may be exercised, the Issuer will at all times have
authorized and reserved for the purpose of the issue upon exercise of
this Warrant a sufficient number of shares of Common Stock to provide
for the exercise of this Warrant.
(b) Listing. If the Issuer shall list any shares of Common Stock on any
securities exchange or market it will, at its expense, list thereon,
maintain and increase when necessary such listing, of, all shares of
Warrant Stock from time to time issued upon exercise of this Warrant
or as otherwise provided hereunder, and, to the extent permissible
under the applicable securities exchange rules, all unissued shares of
Warrant Stock which are at any time issuable hereunder, so long as any
shares of Common Stock shall be so listed. The Issuer will also so
list on each securities exchange or market, and will maintain such
listing of, any other securities which the Holder of this Warrant
shall be entitled to receive upon the exercise of this Warrant if at
the time any securities of the same class shall be listed on such
securities exchange or market by the Issuer.
(c) Covenants. The Issuer shall not by any action including, without
limitation, amending the Articles of Incorporation or the by-laws of
the Issuer, or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good faith
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assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights
of the Holder hereof against dilution (to the extent specifically
provided herein) or impairment. Without limiting the generality of the
foregoing, the Issuer will (i) not permit the par value, if any, of
its Common Stock to exceed the then effective Warrant Price, (ii) not
amend or modify any provision of the Articles of Incorporation or
by-laws of the Issuer in any manner that would adversely affect in any
way the powers, preferences or relative participating, optional or
other special rights of the Common Stock or which would adversely
affect the rights of the Holders of the Warrants, (iii) take all such
action as may be reasonably necessary in order that the Issuer may
validly and legally issue fully paid and nonassessable shares of
Common Stock, free and clear of any liens, claims, encumbrances and
restrictions (other than as provided herein) upon the exercise of this
Warrant, and (iv) use its best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body
having jurisdiction thereof as may be reasonably necessary to enable
the Issuer to perform its obligations under this Warrant. With a view
to making available to the Holder the benefits of Rule 144 and any
other rule or regulation of the SEC that may at any time permit Holder
to sell securities of the Issuer to the public without registration,
the Issuer agrees to use commercially reasonable best efforts to: (i)
make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after the Issue Date,
(ii) file with the SEC in a timely manner all reports and other
documents required of the Issuer under the Securities Act and the
Exchange Act, and (iii) furnish to Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (A) a written
statement by the Issuer that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, (B)
a copy of the most recent annual or quarterly report of the Issuer and
such other reports and documents so filed by the Issuer, and (C) such
other information as may be reasonably requested to avail Holder of
any rule or regulation of the SEC that permits the selling of any such
securities without registration or pursuant to such form.
(d) Loss, Theft, Destruction of Warrants. Upon receipt of evidence
satisfactory to the Issuer of the ownership of and the loss, theft,
destruction or mutilation of any Warrant and, in the case of any such
loss, theft or destruction, upon receipt of indemnity or security
satisfactory to the Issuer or, in the case of any such mutilation,
upon surrender and cancellation of such Warrant, the Issuer will make
and deliver, in lieu of such lost, stolen, destroyed or mutilated
Warrant, a new Warrant of like tenor and representing the right to
purchase the same number of shares of Common Stock.
5. Adjustment of Warrant Price and Warrant Share Number. The number of
shares of Common Stock for which this Warrant is exercisable, and the price at
which such shares may be purchased upon exercise of this Warrant, shall be
subject to adjustment from time to time as set forth in this Section 5. The
Issuer shall give the Holder notice of any event described below which requires
an adjustment pursuant to this Section 5 in accordance with Section 6.
(a) In case the Issuer shall (i) subdivide its outstanding shares of
Common Stock into a greater number of shares, or (ii) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then the Warrant Shares shall be adjusted so that the
Holder shall be entitled to receive the kind and number of Warrant
6
Shares or other securities of the Issuer which it would have owned or
have been entitled to receive had this Warrant been exercised in
advance thereof. Upon each such adjustment of the kind and number of
Warrant Shares or other securities of the Issuer which are purchasable
hereunder, the Holder shall thereafter be entitled to purchase Warrant
Shares or other securities resulting from such adjustment at a price
obtained by multiplying the Warrant Price in effect immediately prior
to such adjustment by the number of Warrant Shares purchasable
pursuant hereto immediately prior to such adjustment and dividing by
the number of Warrant Shares or other securities of the Issuer
resulting from such adjustment. An adjustment made pursuant to this
paragraph shall become effective immediately after the effective date
of such event retroactive to the record date, if any, for such event.
(b) In case the Issuer shall reorganize its capital, reclassify its
capital stock, consolidate or merge with or into another corporation
(where the Issuer is not the surviving corporation or where there is a
change in or distribution with respect to the Common Stock of the
Issuer), or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another
corporation and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of assets,
shares of common stock of the successor or acquiring corporation, or
any cash, shares of stock or other securities or property of any
nature whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of the
successor or acquiring corporation ("Other Property"), are to be
received by or distributed to the holders of Common Stock of the
Issuer, then the Holder shall have the right thereafter to receive,
upon exercise of this Warrant, the number of shares of Common Stock of
the successor or acquiring corporation or of the Issuer, if it is the
surviving corporation, and Other Property receivable upon or as a
result of such reorganization, reclassification, merger, consolidation
or disposition of assets by a Holder of the number of shares of Common
Stock for which this Warrant is exercisable immediately prior to such
event. In case of any such reorganization, reclassification, merger,
consolidation or disposition of assets, the successor or acquiring
corporation (if other than the Issuer) shall expressly assume the due
and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Issuer
and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined in good
faith by resolution of the Board of Directors of the Issuer) in order
to provide for adjustments of Warrant Shares for which this Warrant is
exercisable which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section 5(b).
6. Notice of Adjustments. Whenever the Warrant Price or Warrant Share
Number shall be adjusted pursuant to Section 5 hereof (for purposes of this
Section 6, each an "adjustment"), the Issuer shall cause its Chief Financial
Officer to prepare and execute a certificate setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated (including a description of the
basis on which the Board made any determination hereunder), and the Warrant
Price and Warrant Share Number after giving effect to such adjustment, and shall
7
cause copies of such certificate to be delivered to the Holder of this Warrant
promptly after each adjustment. Any dispute between the Issuer and the Holder of
this Warrant with respect to the matters set forth in such certificate may at
the option of the Holder of this Warrant be submitted to one of the national
accounting firms selected by the Holder, provided that the Issuer shall have ten
(10) days after receipt of notice from such Holder of its selection of such firm
to object thereto, in which case such Holder shall select another such firm and
the Issuer shall have no such right of objection. The firm selected by the
Holder of this Warrant as provided in the preceding sentence shall be instructed
to deliver a written opinion as to such matters to the Issuer and such Holder
within thirty (30) days after submission to it of such dispute. Such opinion
shall be final and binding on the parties hereto. The fees and expenses of such
accounting firm shall be paid by the Holder.
7. Fractional Shares. One whole share will be issued in lieu of any fractional
share otherwise issuable upon the exercise of this Warrant Stock.
8. Representations, Warranties and Covenants of the Issuer.
(a) The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado; has all
requisite power and authority to own or lease its properties and to
carry on its business as now conducted and proposed to be conducted;
and is duly qualified or licensed to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or
leases property or in which the conduct of its business requires it to
so qualify or be licensed.
(b) The Common Stock issuable upon exercise of the Holder's rights has
been duly and validly reserved and, when issued in accordance with the
provisions of this Warrant, will be validly issued, fully paid and
non-assessable, and will be free of any taxes, liens, charges or
encumbrances of any nature whatsoever; provided, however, that the
Common Stock issuable pursuant to this Warrant may be subject to
restrictions on transfer under applicable state and/or federal
securities laws.
(c) The Issuer has all requisite power and authority to enter into and
perform all of its obligations under this Warrant, to issue the
Warrants and to carry out the transactions contemplated hereby. The
execution and delivery by the Issuer of this Warrant and the
performance of all obligations of the Issuer hereunder, have been duly
authorized by all necessary corporate or stockholder action on the
part of the Issuer and this Warrant is not inconsistent with the
Issuer's articles of incorporation or bylaws, does not contravene any
law or governmental rule, regulation or order applicable to it, does
not and will not contravene any provision of, or constitute a default
under, any indenture, mortgage, contract or other agreement or
instrument to which it is a party or by which it or its assets are
bound, and the Warrant constitutes the legal, valid and binding
8
obligation of the Issuer, and is enforceable in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, or other laws of
general application affecting enforcement of creditors' rights
generally and as may be limited by laws relating to the availability
of specific performance, injunctive relief or other equitable
remedies.
(d) No consent or approval of, giving of notice to, registration with, or
taking of any other action in respect of any state, federal or other
governmental authority or agency is required with respect to the
execution, delivery and performance by the Issuer of its obligations
under this Warrant, except for the filing of notices pursuant to
Regulation D under the 1933 Act and any filing required by applicable
state securities laws, which filings will be effective by the time
required thereby.
(e) All shares of Warrant Stock of the Issuer issuable upon the exercise
of any Warrants issued hereunder (i) are duly authorized by the
Issuer's articles of incorporation, (ii) have been duly authorized by
the Issuer's board of directors and, if necessary, the Issuer's
stockholders, (iii) will, upon payment therefor in accordance with the
terms hereof, be duly and validly issued, fully paid and
nonassessable, free of preemptive rights, taxes, security interests or
adverse claims, and (iv) have been duly reserved for issuance pursuant
to the terms hereof. The capitalization of the Issuer is shown on
Exhibit B to this Warrant.
(f) In the event of (a) any taking by the Issuer of a record of the
holders of any class of securities for the purpose of determining the
holders thereof who are entitled to receive any dividend or other
distribution (the "Distribution"), (b) any capital reorganization or
reclassification of the stated capital of the Issuer or any
consolidation or merger of the Issuer with or into any other
corporation or corporations (other than a wholly-owned subsidiary), or
the sale or distribution of all or substantially all of the Issuer's
property and assets (the "Reorganization Event"), or (c) any proposed
filing of a registration statement under the Securities Act in
connection with a primary public offering of the Issuer's Common Stock
(the "Registration Event"), the Issuer will mail or cause to be mailed
to the Holder a notice specifying (i) the date of any such
Distribution and the amount and character of such Distribution, (ii)
the date on which any such Reorganization Event or Registration Event
is expected to become effective, and (iii) the time, if any, that is
to be fixed as to when the holders of record of the Issuer's
securities shall be entitled to exchange their shares of the Issuer's
securities for securities or other property deliverable upon such
Reorganization Event. Such notice shall be mailed at least thirty (30)
days prior to the date therein specified.
(g) The Issuer covenants and agrees that at all times it shall reserve and
keep available for the exercise of this Warrant such number of
authorized shares of Common Stock as are sufficient to permit the
exercise in full of this Warrant.
9. Definitions. For the purposes of this Warrant, the following terms have
the following meanings:
"Person" means an individual, corporation, limited liability
company, partnership, joint stock company, trust, unincorporated
organization, joint venture, Governmental Authority or other entity of
whatever nature.
9
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute then in effect.
"Warrant Share Number" means at any time the aggregate number of
shares of Warrant Stock which may at such time be purchased upon exercise
of this Warrant, after giving effect to all prior adjustments and
increases to such number made or required to be made under the terms
hereof.
"Warrant Shares" or "Warrant Stock" means Common Stock issuable upon
exercise of any Warrant or Warrants or otherwise issuable pursuant to any
Warrant or Warrants.
10. Amendment and Waiver. Any term, covenant, agreement or condition in
this Warrant may be amended, or compliance therewith may be waived (either
generally or in a particular instance and either retroactively or
prospectively), by a written instrument or written instruments executed by the
Issuer and the Holder; provided, however, that no such amendment or waiver shall
reduce the Warrant Share Number, increase the Warrant Price, shorten the period
during which this Warrant may be exercised or modify any provision of this
Section 10 without the consent of the Holder of this Warrant.
11. Governing Law. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
12. Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earlier of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified for notice prior to 5:00 p.m., eastern time, on a
Trading Day, (ii) the Trading Day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified for notice later than 5:00 p.m., eastern time, on any date and earlier
than 11:59 p.m., eastern time, on such date, (iii) the Trading Day following the
date of mailing, if sent by nationally recognized overnight courier service or
(iv) actual receipt by the party to whom such notice is required to be given.
The addresses for such communications shall be with respect to the Holder of
this Warrant or of Warrant Stock issued pursuant hereto, addressed to such
Holder at its last known address or facsimile number appearing on the books of
the Issuer maintained for such purposes, or with respect to the Issuer,
addressed to:
CEL-SCI Corporation
0000 Xxxxx Xxxx. #000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
13. Warrant Agent. The Issuer may, by written notice to each Holder of
this Warrant, instruct its transfer agent to issue shares of Warrant Stock on
the exercise of this Warrant pursuant to Section 2 hereof, exchange this Warrant
pursuant to subsection (d) of Section 3 hereof or replace this Warrant pursuant
to subsection (d) of Section 4 hereof, or any of the foregoing, and thereafter
any such issuance, exchange or replacement, as the case may be, shall be made at
such office by such agent.
14. Remedies. The Issuer stipulates that the remedies at law of the Holder
of this Warrant in the event of any default or threatened default by the Issuer
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate and that, to the fullest extent permitted by law,
such terms may be specifically enforced by a decree for the specific performance
10
of any agreement contained herein or by an injunction against a violation of any
of the terms hereof or otherwise. Notwithstanding the above, the Holder of this
Warrant will not be entitled to any specific liquidated damages, payable in
cash, in the event the Issuer breaches any of its obligations as provided in
this Warrant.
15. Successors and Assigns. This Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors and assigns of
the Issuer, the Holder hereof and (to the extent provided herein) the Holders of
Warrant Stock issued pursuant hereto, and shall be enforceable by any such
Holder or Holder of Warrant Stock.
16. Attorneys' Fees. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
17. Further Assurances. The parties agree to execute such further
documents and instruments and to take such further actions as may be reasonably
necessary to carry out the purposes and intent of this Warrant.
18. Modification and Severability. If, in any action before any court or
agency legally empowered to enforce any provision contained herein, any
provision hereof is found to be unenforceable, then such provision shall be
deemed modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in the preceding
sentence, the unenforceability of such provision shall not affect the other
provisions of this Warrant, but this Warrant shall be construed as if such
unenforceable provision had never been contained herein.
19. Headings. The headings of the Sections of this Warrant are for
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
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IN WITNESS WHEREOF, the Issuer has executed this Warrant as of the day and
year first above written.
CEL-SCI CORPORATION
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx, Chief Executive Officer
HOLDER:
__________________________________
[Print Full Name of Entity or Individual]
By:
-----------------------------------------
[Signature]
Name:
-------------------------------------
[If signing on behalf of entity]
Title:
-------------------------------------
[If signing on behalf of entity]
Address:
--------------------------------
--------------------------------
--------------------------------
12
NOTICE OF EXERCISE
TO: CEL-SCI CORPORATION
(1)___The undersigned hereby elects to purchase ________ Warrant Shares of the
Company pursuant to the terms of the attached Warrant (only if exercised in
full), and tenders herewith payment of the exercise price in full, together with
all applicable transfer taxes, if any.
(2)___Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] [if permitted] the cancellation of such number of Warrant
Shares as is necessary, in accordance with the formula set
forth in subsection 2(c), to exercise this Warrant with
respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3)___Please issue a certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name as is specified
below:
-------------------------------
The Warrant Shares shall be delivered to the following DWAC Account Number or by
physical delivery of a certificate to:
-------------------------------
-------------------------------
-------------------------------
[SIGNATURE OF HOLDER]
Name of Investing Entity:
----------------------------------------------------
Signature of Authorized Signatory of Investing Entity:
----------------------------------------------------
Name of Authorized Signatory:
----------------------------------------------------
Title of Authorized Signatory:
Date: ____________________
ASSIGNMENT
(To Be Signed Only Upon Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________ the right to purchase ____________ shares of
Common Stock evidenced by the within Warrant, and appoints
________________________ to transfer the same on the books of
_________________ with the full power of substitution in the premises.
Date: ___________________
-----------------------------------------
Note: The signature of the Holder must
conform in all respects to the name of
the Holder as specified on the face of
the Warrant without alteration,
enlargement or any change whatsoever.
FOR USE BY THE ISSUER ONLY:
This Warrant No. W-_____ canceled (or transferred or exchanged) this _____
day of ___________, _____, shares of Common Stock issued therefor in the name
of _______________, Warrant No. W-_____ issued for ____ shares of Common
Stock in the name of _______________.
