NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER AND IN
COMPLIANCE WITH APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
CEL-SCI CORPORATION
WARRANT
Warrant No.[ ] Dated: March 21, 2000
Cel-Sci Corporation, a Colorado corporation (the "Company"), hereby
certifies that, for value received, [ ] or its registered and permitted assigns
("Holder"), is entitled, subject to the terms set forth below, to purchase from
the Company the total number of shares of Common Stock, $.01 par value per share
(the "Common Stock"), of the Company (each such share, a "Warrant Share" and all
such shares, the "Warrant Shares") calculated pursuant to Section 3 of this
Warrant (subject to adjustment for certain events as set forth herein) at an
exercise price equal to $.001 per share (as adjusted from time to time as
provided in Section 8, the "Exercise Price"), from the date hereof through and
including the 30th Trading Day following March 21, 2003 (such later date, the
"Expiration Date"), and subject to the following terms and conditions (certain
terms used herein are defined in Exhibit A attached hereto):
1. Registration of Warrant. The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the "Warrant
Register"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, and the Company shall not be affected by
notice to the contrary.
2. Registration of Transfers. The Company shall register the transfer of
any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto duly completed and signed,
to the Transfer Agent or to the Company at the address specified in Section 13.
Upon any such registration or transfer, a new warrant to purchase Common Stock,
in substantially the form of this Warrant (any such new warrant, a "New
Warrant"), evidencing the portion of this Warrant so transferred shall be issued
to the transferee and a New Warrant evidencing the remaining portion of this
Warrant not so transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance of such transferee of all of the rights and obligations of a holder
of this Warrant and of the original holder of this Warrant under the Purchase
Agreement (as defined in Exhibit A).
3. Duration, Vesting and Exercise of Warrant.
(a) The vesting of the Warrant Shares which the Holder may acquire pursuant to
this Warrant shall occur on the dates (each a "Vesting Date") set forth in this
Section 3. On each such date, this Warrant shall vest with respect to a number
of Warrant Shares calculated pursuant to Section 3(b). The first vesting date
(the "First Vesting Date") shall be the 360th day following the Closing Date (as
defined in Exhibit A). An additional Vesting Date shall occur on each sixth
month anniversary of the First Vesting Date through and including March 16,
2003. The Company and the Holder agree that the number of Warrant Shares that
the Holder may acquire hereunder may only be increased, and never decreased,
from and after the First Vesting Date.
(b) Except as otherwise set forth in this Warrant, this Warrant
shall vest and become exercisable on a Vesting Date as described in Section 3(a)
for the number of Warrant Shares calculated in accordance with the following
formula:
[(C x PA) / A] - C
C = Shares (as defined in Exhibit A) held by the Holder on
the Vesting Date less any hedged Shares.
PA = The Adjustment Price from the immediately preceding
Vesting Date or, with respect to the First Vesting Date,
$6.52 (which number shall be subject to equitable
adjustments for stock splits, recombinations and similar
events) (the "Initial Closing Price").
A = "Adjustment Price," which is equal to the lesser of (y)
$6.52, or (z) the average of the 10 lowest Per Share
Market Values during the 30 Trading Days immediately
preceding the Vesting Date.
If the number calculated in accordance with the foregoing formula is
zero or a negative number, no Warrant Shares shall vest (in the case of the
First Vesting Date) or no additional Warrant Shares will vest (in the case of
any subsequent Vesting Dates) for such Vesting Date. In addition, the Holder
shall not be obligated to transfer any shares of Common Stock to the Company and
the number Warrant Shares exercisable hereunder which shall have previously
vested will not decrease.
(c) The occurrence of any of the following events shall also be
deemed a Vesting Date under this Warrant. The calculation set forth in Section
3(b) shall be made on the date of the occurrence of such events and "Adjustment
Price" shall be deemed to mean the average of the 10 lowest Per Share Market
Values during the 30 Trading Days immediately preceding the date of such
occurrence:
(i) upon the occurrence of any of (i) an acquisition after the date hereof by
an individual or legal entity or "group" (as described in Rule 13d-5(b)(1)
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of in excess of 1/3 of the voting securities of the
Company, (ii) a replacement of more than one-half of the members of the
Company's board of directors which is not approved by those individuals who
are members of the board of directors on the date hereof in one or a series
of related transactions, (iii) the merger of the Company with or into
another entity, consolidation or sale of all or substantially all of the
assets of the Company in one or a series of related transactions, unless
following such transaction or series of transactions, the holders of the
Company's securities prior to the first such transaction continue to hold
at least 2/3 of the securities of the surviving entity or acquirer of such
assets or (iv) the execution by the Company of an agreement to which the
Company is a party or by which it is bound, providing for any of the events
set forth above in (i), (ii) or (iii);
(ii) immediately prior to an assignment by the Company for the benefit of
creditors or commencement of a voluntary case under Title 11 of the United
States Code, or an entering into of an order for relief in an involuntary
case under Title 11 of the United States Code, or adoption by the Company
of a plan of liquidation or dissolution;
(iii)five (5) Business Days prior to the proposed consummation with respect to
the Company of a "Rule 13e-3 transaction" as defined in Rule 13e-3 under
the Exchange Act (or, if necessary, such earlier date as the Company shall
determine in good faith to be required in order for the Holder to be able
to participate in such transaction), it being agreed that the Holder will
receive actual notice of the 13e-3 Statement filed with the Commission on
the date filed and actual notice of the date of acceleration hereunder no
later than such date;
(iv) The Common Stock fails to be listed or quoted for trading on the AMEX or a
Subsequent Market for a period of five (5) Trading Days (which need not be
consecutive Trading Days);
(v) A holder of Registrable Securities (as defined in the Registration Rights
Agreement) is not permitted to sell Registrable Securities under the
Underlying Shares Registration Statement for any reason for five (5) or
more Trading Days (whether or not consecutive); or
(vi) The Company shall fail or default in the timely performance of any material
obligation under the Transaction Documents and such failure or default
shall continue uncured for a period of five (5) Business Days after the
date on which notice of such failure or default is first given to the
Company (it being understood that no prior notice need be provided in the
case of defaults which cannot reasonably be cured within a 5-day period).
(d) Additional Vesting Dates shall also occur on such dates, if any,
on which the Company or any subsidiary thereof, shall, except in connection with
(A) the granting of shares of Common Stock or stock options to employees,
officers and directors pursuant to any stock bonus plan or employee benefit plan
heretofore or hereinafter duly adopted by the Company and (B) a Strategic
Transaction (as defined below), issue shares of Common Stock or rights,
warrants, options or other securities or debt that is convertible into or
exchangeable for shares of Common Stock ("Common Stock Equivalents"), entitling
any person or entity to acquire shares of Common Stock at a price per share less
than the Initial Closing Price (if the holder of the Common Stock or Common
Stock Equivalent so issued shall at any time, whether by operation of purchase
price adjustments, reset provisions, floating conversion, exercise or exchange
prices or otherwise, or due to warrants, options or rights issued in connection
with such issuance, be entitled to receive shares of Common Stock at a price
less than the Initial Closing Price, such issuance shall be deemed to have
occurred for less than the Initial Closing Price), either in one transaction
resulting in gross proceeds to the Company in excess of $1,000,000 or a series
of transactions resulting in aggregate gross proceeds to the Company in excess
of $1,000,000 (any such transaction or series of transactions, a "Discounted
Offering" and the date of a Discounted Offering, a "Discounted Offering Date"),
then in addition to any other vesting of Warrant Shares pursuant to the terms
hereof, on a Discounted Offering Date, this Warrant shall vest with respect to
the number of Warrant Shares calculated in accordance with the formula set forth
below:
[(C x I) / DOAP] - C
C = Shares held by the Holder on the Vesting Date less any
hedged Shares
I = Initial Closing Price
DOAP = "Discounted Offering Adjustment Price," equal to the lessor of
(x) $6.52, (y) the average of the Per Share Market Values for
the 10 trading days immediately preceding the Discounted
Offering Date, or (z) the price per share of Common Stock
or Common Stock Equivalent (as the case may be) issued
pursuant to the Discounted Offering (taking into account
all actual or implied discounts).
If the number calculated in accordance with the foregoing formula is
zero or a negative number, no Warrant Shares shall vest pursuant to the terms
hereof and the Holder shall not be obligated to transfer any shares of Common
Stock to the Company. For purposes of this Section, a "Strategic Transaction"
shall mean a transaction or relationship in which the Company issues shares of
Common Stock to an entity which is, itself or through its subsidiaries, an
operating company in a business related to the business of the Company and in
which the Company receives material benefits in addition to the investment of
funds, but shall not include a transaction in which the Company is issuing
securities primarily for the purpose of raising capital.
(e) Subject to Sections 3(a) and (b), this Warrant shall be
exercisable by the registered Holder on any Business Day before 5:00 P.M., New
York City time, at any time and from time to time on or after the date hereof to
and including the Expiration Date. At 5:00 P.M., New York City time on the
Expiration Date, the portion of this Warrant not exercised prior thereto shall
be and become void and of no value.
(f) Subject to Sections 3(a) and (b), this Warrant shall be
exercisable, either in its entirety or, from time to time, for a portion of the
number of Warrant Shares. If less than all of the Warrant Shares which may be
purchased under this Warrant are exercised at any time, the Company shall issue
or cause to be issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
4. Delivery of Warrant Shares.
(a) Upon surrender of this Warrant, with the Form of Election to
Purchase attached hereto duly completed and signed, to the Company at its
address for notice set forth in Section 13 and upon payment of the Exercise
Price multiplied by the number of Warrant Shares that the Holder intends to
purchase hereunder, in the manner provided hereunder, all as specified by the
Holder in the Form of Election to Purchase, the Company shall promptly (but in
no event later than four (4) Trading Days after the Date of Exercise (as defined
herein)) issue or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder may
designate, a certificate for the Warrant Shares issuable upon such exercise,
free of restrictive legends, except when an Underlying Shares Registration
Statement is not then effective and the Warrant Shares are not freely
transferable pursuant to Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"). Any person so designated by the Holder to
receive Warrant Shares shall be deemed to have become holder of record of such
Warrant Shares as of the Date of Exercise of this Warrant. The Company shall,
upon request of the Holder, if available, use its best efforts to deliver
Warrant Shares hereunder electronically through the Depository Trust Corporation
or another established clearing corporation performing similar functions. A
"Date of Exercise" means the date on which the Company shall have received (i)
this Warrant (or any New Warrant, as applicable), with the Form of Election to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for the number
of Warrant Shares to be purchased so indicated by the Holder hereof.
(b) If the Company fails to deliver to the Holder to an address in
the United States certificate or certificates representing the Warrant Shares
pursuant to Section 4(a) by the fourth (4th) Trading Day after the Date of
Exercise, the Company shall pay to such Holder, in cash, as liquidated damages
and not as a penalty, the lesser of (A) $5,000 and (B) $0.10 per Warrant Share
for which a certificate was not timely delivered pursuant to the terms hereof,
for each day after such fourth (4th) Trading Day until such certificates are
delivered. Nothing herein shall limit the Holder's right to pursue actual
damages for the Company's failure to deliver certificates representing shares of
Common Stock upon exercise within the period specified herein and the Holder
shall have the right to pursue all remedies available to it at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief. The exercise of any such rights shall not prohibit the Holder
from seeking to enforce damages pursuant to any other Section hereof or under
applicable law.
(c) In addition to any other rights available to the Holder, if the
Company fails to deliver to the Holder certificate or certificates representing
the Warrant Shares pursuant to Section 4(a) by the fourth (4th) Trading Day
after the Date of Exercise, and if after such fourth (4th) Trading Day the
Holder purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares
which the Holder anticipated receiving upon such exercise (a "Buy-In"), then the
Company shall pay (1) in cash to the Holder the amount by which (x) the Holder's
total purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of Warrant Shares that the Company was required to deliver pursuant to
Section 4(b) to the Holder in connection with the exercise at issue by (B) the
Per Share Market Value on the Date of Exercise and (2) deliver to the Holder the
number of shares of Common Stock that would have been issued had the Company
timely complied with its exercise and delivery obligations under Section 4(b).
For example, if the Holder purchases Common Stock having a total purchase price
of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of
Common Stock with a market price on the date of exercise which totaled $10,000,
under clause (A) of the immediately preceding sentence the Company shall be
required to pay the Holder $1,000. The Holder shall provide the Company written
notice indicating the amounts payable to the Holder in respect of the Buy-In.
(d) The Company's obligations to issue and deliver Warrant Shares in
accordance with the terms hereof are absolute and unconditional, irrespective of
any action or inaction by the Holder to enforce the same, any waiver or consent
with respect to any provision hereof, the recovery of any judgment against any
Person or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the
Holder or any other Person of any obligation to the Company or any violation or
alleged violation of law by the Holder or any other Person, and irrespective of
any other circumstance which might otherwise limit such obligation of the
Company to the Holder in connection with the issuance of Warrant Shares. If the
Company breaches its obligations under this Warrant, then, in addition to any
other liabilities the Company may have hereunder and under applicable law, the
Company shall pay or reimburse the Holder on demand for all costs of collection
and enforcement (including reasonable attorneys fees and expenses).
5. Payment of Taxes. The Company will pay all documentary stamp taxes
attributable to the issuance of Warrant Shares upon the exercise of this
Warrant; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the registration
of any certificates for Warrant Shares or Warrants in a name other than that of
the Holder. The Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
6. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary and
reasonable indemnity, if requested. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable charges as the Company may prescribe.
7. Reservation of Warrant Shares. The Company covenants that it will at
all times reserve and keep available out of the aggregate of its authorized but
unissued Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of this Warrant as herein provided, the number of Warrant
Shares which are then issuable and deliverable upon the exercise of this entire
Warrant, free from preemptive rights or any other actual contingent purchase
rights of persons other than the Holder (taking into account the adjustments and
restrictions of Section 8). The Company covenants that all Warrant Shares that
shall be so issuable and deliverable shall, upon issuance and the payment of the
applicable Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and nonassessable.
8. Certain Adjustments. The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section. Upon each such adjustment of the Exercise
Price pursuant to this Section, the Holder shall thereafter prior to the
Expiration Date be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of Warrant Shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
Warrant Shares issuable upon exercise of this Warrant notwithstanding such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(i) If the Company, at any time while this Warrant is outstanding,
(i) shall pay a stock dividend (except scheduled dividends paid on outstanding
preferred stock as of the date hereof which contain a stated dividend rate) or
otherwise make a distribution or distributions on shares of its Common Stock or
on any other class of capital stock payable in shares of Common Stock, (ii)
subdivide outstanding shares of Common Stock into a larger number of shares, or
(iii) combine outstanding shares of Common Stock into a smaller number of
shares, the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding before such event and of which the denominator shall
be the number of shares of Common Stock (excluding treasury shares, if any)
outstanding after such event. Any adjustment made pursuant to this Section shall
become effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision or
combination, and shall apply to successive subdivisions and combinations.
(ii) In case of any reclassification of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, then the Holder shall have the right
thereafter to exercise this Warrant only into the shares of stock and other
securities and property receivable upon or deemed to be held by holders of
Common Stock following such reclassification, transfer or share exchange, and
the Holder shall be entitled upon such event to receive such amount of
securities or property equal to the amount of Warrant Shares such Holder would
have been entitled to had such Holder exercised this Warrant immediately prior
to such reclassification, transfer or share exchange. The terms of any such
consolidation, merger, sale, transfer or share exchange shall include such terms
so as to continue to give to the Holder the right to receive the securities or
property set forth in this Section 8(b) upon any exercise following any such
reclassification, transfer or share exchange.
(iii) If the Company, at any time while this Warrant is outstanding,
shall distribute to all holders of Common Stock (and not to holders of this
Warrant) evidences of its indebtedness or assets or rights or warrants to
subscribe for or purchase any security (excluding those referred to in Sections
8(i), (ii) and (iv)), then in each such case the Exercise Price shall be
determined by multiplying the Exercise Price in effect immediately prior to the
record date fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the Exercise Price
determined as of the record date mentioned above, and of which the numerator
shall be such Exercise Price on such record date less the then fair market value
at such record date of the portion of such assets or evidence of indebtedness so
distributed applicable to one outstanding share of Common Stock as determined by
the Company's independent certified public accountants that regularly examines
the financial statements of the Company (an "Appraiser").
(iv) In case of any (1) merger or consolidation of the Company with
or into another Person, or (2) sale by the Company of more than one-half of the
assets of the Company (on a market value basis) in one or a series of related
transactions, or (3) tender or other offer or exchange (whether by the Company
or another Person) pursuant to which holders of Common Stock are permitted to
tender or exchange their shares for other securities, stock, cash or property of
the Company or another Person; then the Holder shall have the right thereafter
to (A) exercise this Warrant for the shares of stock and other securities, cash
and property receivable upon or deemed to be held by holders of Common Stock
following such merger, consolidation or sale, and the Holder shall be entitled
upon such event or series of related events to receive such amount of
securities, cash and property as the Common Stock for which this Warrant could
have been exercised immediately prior to such merger, consolidation or sales
would have been entitled, (B) in the case of a merger or consolidation, require
the surviving entity to issue to the Holder a warrant entitling the Holder to
acquire shares of such entity's common stock, which warrant shall have terms
identical mutatis mutandis (including with respect to exercise) to the terms of
this Warrant and shall be entitled to all of the rights and privileges set forth
herein and the agreements pursuant to which this Warrant was issued (including,
without limitation, as such rights relate to the acquisition, transferability,
registration and listing of such shares of stock other securities issuable upon
exercise thereof), or (C) in the event of an exchange or tender offer or other
transaction contemplated by clause (3) of this Section, tender or exchange this
Warrant for such securities, stock, cash and other property receivable upon or
deemed to be held by holders of Common Stock that have tendered or exchanged
their shares of Common Stock following such tender or exchange, and the Holder
shall be entitled upon such exchange or tender to receive such amount of
securities, cash and property as the shares of Common Stock for which this
Warrant could have been exercised immediately prior to such tender or exchange
would have been entitled as would have been issued. In the case of clause (B),
the exercise price applicable for the newly issued warrant shall be based upon
the amount of securities, cash and property that each share of Common Stock
would receive in such transaction and the Exercise Price immediately prior to
the effectiveness or closing date for such transaction. The terms of any such
merger, sale, consolidation, tender or exchange shall include such terms so as
continue to give the Holder the right to receive the securities, cash and
property set forth in this Section upon any conversion or redemption following
such event. This provision shall similarly apply to successive such events.
(v) For the purposes of this Section 8, the following clauses shall
also be applicable:
(i) Record Date. In case the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them
(A) to receive a dividend or other distribution payable in Common
Stock or in securities convertible or exchangeable into shares of
Common Stock, or (B) to subscribe for or purchase Common Stock or
securities convertible or exchangeable into shares of Common Stock,
then such record date shall be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or the making of such
other distribution or the date of the granting of such right of
subscription or purchase, as the case may be.
(ii) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held
by or for the account of the Company, and the disposition of any
such shares shall be considered an issue or sale of Common Stock.
(vi) All calculations under this Section 8 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be.
(vii) Whenever the Exercise Price is adjusted pursuant to Section
8(iii) above, the Holder, after receipt of the determination by the Appraiser,
shall have the right to select an additional appraiser (which shall be a
nationally recognized accounting firm), in which case the adjustment shall be
equal to the average of the adjustments recommended by each of the Appraiser and
such appraiser. The Holder shall promptly mail or cause to be mailed to the
Company, a notice setting forth the Exercise Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
adjustment shall become effective immediately after the record date mentioned
above.
(viii) If (i)the Company shall declare a dividend (or any other
distribution) on its Common Stock; (ii) the Company shall declare a special
nonrecurring cash dividend on or a redemption of its Common Stock; (iii) the
Company shall authorize the granting to all holders of the Common Stock rights
or warrants to subscribe for or purchase any shares of capital stock of any
class or of any rights; (iv) the approval of any stockholders of the Company
shall be required in connection with any reclassification of the Common Stock,
any consolidation or merger to which the Company is a party, any sale or
transfer of all or substantially all of the assets of the Company, or any
compulsory share exchange whereby the Common Stock is converted into other
securities, cash or property; or (v) the Company shall authorize the voluntary
dissolution, liquidation or winding up of the affairs of the Company, then the
Company shall cause to be mailed to each Holder at their last addresses as they
shall appear upon the Warrant Register, at least twenty calendar 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, redemption, grant of rights 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, distributions, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up; provided, however, that the failure to mail such notice or any
defect therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice.
9. Payment of Exercise Price. The Holder may pay the Exercise Price in one of
the following manners:
(a) Cash Exercise. The Holder shall deliver immediately available funds; or
(b) Cashless Exercise. The Holder may surrender this Warrant to the Company
together with a notice of cashless exercise, in which event the Company
shall issue to the Holder the number of Warrant Shares determined as
follows:
X = Y (A-B)/A where:
X = the number of Warrant Shares to be issued to the
Holder.
Y = the number of Warrant Shares with respect to which
this Warrant is being exercised.
A = the average of the closing sale prices of the Common
Stock on the AMEX or a Subsequent Market for the five
(5) trading days immediately prior to (but not
including) the Date of Exercise as reported by Bloomberg
Information Systems, Inc. (or any successor to its
function of reporting stock prices).
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have been
commenced, on the issue date of this Warrant.
10. Certain Exercise Restrictions.
(a) A Holder may not exercise this Warrant to the extent such exercise would
result in the Holder, together with any affiliate thereof, beneficially owning
(as determined in accordance with Section 13(d) of the Exchange Act and the
rules promulgated thereunder) in excess of 9.999% of the then issued and
outstanding shares of Common Stock, including shares of Common Stock issuable
upon such exercise and held by such Holder after application of this Section.
Since the Holder will not be obligated to report to the Company the number of
shares of Common Stock it may hold at the time of an exercise hereunder, unless
the exercise at issue would result in the issuance of shares of Common Stock in
excess of 9.999% of the then outstanding shares of Common Stock without regard
to any other shares of Common Stock which may be beneficially owned by the
Holder or an affiliate thereof, the Holder shall have the authority and
obligation to determine whether the restriction contained in this Section will
limit any particular exercise hereunder and to the extent that the Holder
determines that the limitation contained in this Section applies, the
determination of which portion of this Warrant is exercisable shall be the
responsibility and obligation of the Holder. If the Holder has delivered a Form
of Election to Purchase for a number of Warrant Shares that would result in the
issuance in excess of the permitted amount hereunder, the Company shall notify
the Holder of this fact and shall honor the exercise for the maximum portion of
this Warrant permitted to be exercised on such Date of Exercise in accordance
with the periods described herein and disregard the balance of such Form of
Election to Purchase, as if never delivered The provisions of this Section may
be waived by a Holder (but only as to itself and not to any other Holder) upon
not less than 61 days' prior notice to the Company. Other Holders shall be
unaffected by any such waiver.
(b) If the Company Stock is then listed for trading on the AMEX and
the Company has not obtained the Shareholder Approval (as defined below), then
the Company may not issue in excess of the Issuable Maximum (as defined herein)
Warrant Shares upon exercise of this Warrant at a price per share that is less
than the closing sale price of the Common Stock on the Trading Day immediately
preceding the Original Issue Date. The Issuable Maximum equals 3,400,297 (which
number shall be subject to adjustment pursuant to the anti-dilution provisions
set forth in Sections 8(i)-(iii)) multiplied by the quotient obtained by
dividing (x) the number of Shares issued and sold to the original Holder on the
Closing Date by (y) the number of Shares issued and sold by the Company on the
Closing Date. The Parties agree that the Issuable Maximum shall be lowered by
the number of shares of Common Stock, if any, issued at a price less than the
closing price of the Common Stock on December 8, 1999 pursuant to the Warrants
to Advantage Fund II Ltd and Koch Investment Group Ltd. If on any Date of
Exercise (such date, the "Trigger Date"): (A) the Company Stock is listed for
trading on the AMEX, (B) the aggregate number of shares of Common Stock that
would then be issuable upon exercise in full of this Warrant, together with any
shares of Common Stock previously issued upon exercise of this Warrant, would
equal or exceed the Issuable Maximum, and (C) the Company shall not have
previously obtained the vote of shareholders, if any, as may be required by the
applicable rules and regulations of the American Stock Exchange to approve the
issuance of shares of Common Stock in excess of the Issuable Maximum pursuant to
the terms hereof (the "Shareholder Approval"), then the Company shall issue to
the Holder a number of shares of Common Stock equal to the Issuable Maximum and,
with respect to the shares whose issuance would result in an issuance of shares
of Common Stock in excess of the Issuable Maximum, (the "Excess Warrant
Shares"), the Company shall, within three (3) Trading Days of the Trigger Date,
provide the Holder with written notice of its intention to either (1) use its
best efforts to obtain the Shareholder Approval applicable to such issuance as
soon as possible, but in any event no later than 60 days (or 90 days in case the
Commission provides the Company with comments to its proxy material) after the
Trigger Date (such 60th day or 90th day, if applicable, the "Target Date") or
(2) pay to the Holder, within three (3) Trading Days from the Trigger Date, an
amount in cash equal to the product of (x) the Excess Warrant Shares multiplied
by (y) the closing sales price of the Common Stock on (a) the Target Date or (b)
the Trigger Date, whichever is greater (the "Cash Payment"). A failure by the
Company to timely provide the Holder with a written notice pursuant to the
immediately preceding sentence, shall entail an automatic election by the
Company to pay the Cash Payment to the Holder pursuant to clause (2) of the
immediately preceding sentence. In the event the Company has elected to seek the
Shareholder Approval pursuant to the terms hereof and the Company does not
obtain the Shareholder Approval on or prior to the Target Date, then, on the
Target Date, the Company shall pay the Cash Payment to the Holder. If the
Company fails to pay the Cash Payment in full pursuant to this Section within
seven (7) days after the date payable, the Company will pay interest on such
amount at a rate of 18% per annum, or such lesser maximum amount that is
permitted to be paid by applicable law, to the Holder, accruing daily from the
date payable until such amount, plus all such interest thereon, is paid in full.
The Company and the Holder understand and agree that shares of Common Stock
issued upon exercise of this Warrant and then held by the Holder or an affiliate
thereof may not be used to cast votes or be deemed outstanding for purposes of
any vote to obtain the Shareholder Approval. In the event the Company has
elected to seek the Shareholder Approval pursuant to the terms hereof, the
Company shall not be required to make any payments pursuant to Section 4(b)
hereof prior to the date the Company has obtained the Shareholder Approval.
11. [intentionally left bank]
12. Fractional Shares. The Company shall not be required to issue or cause
to be issued fractional Warrant Shares on the exercise of this Warrant. The
number of full Warrant Shares which shall be issuable upon the exercise of this
Warrant shall be computed on the basis of the aggregate number of Warrant Shares
purchasable on exercise of this Warrant so presented. If any fraction of a
Warrant Share would, except for the provisions of this Section 12, be issuable
on the exercise of this Warrant, the Company shall pay an amount in cash equal
to the Exercise Price multiplied by such fraction.
13. Notices. Any and all notices or other communications or deliveries
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified in this
Section prior to 5:00 p.m. (New York City time) on a Business Day, (ii) the
Business Day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified in this
Section later than 5:00 p.m. (New York City time) on any date and earlier than
11:59 p.m. (New York City time) on such date, (iii) the Business Day following
the date of mailing, if sent by nationally recognized overnight courier service
with next day delivery specified thereon, or (iv) upon actual receipt by the
party to whom such notice is required to be given. The addresses for such
communications shall be: (i) if to the Company, to 8229 Boone Boulevard, Suite
802, Vienna, Virginia 22182; facsimile number (703) 506-9471, attention Geert
Kersten, or (ii) if to the Holder, to the Holder at the address or facsimile
number appearing on the Warrant Register or such other address or facsimile
number as the Holder may provide to the Company in accordance with this Section
13.
14. Warrant Agent.
(a) The Company shall serve as warrant agent under this Warrant.
Upon thirty (30) days' notice to the Holder, the Company may appoint a new
warrant agent.
(b) Any corporation into which the Company or any new warrant agent
may be merged or any corporation resulting from any consolidation to which the
Company or any new warrant agent shall be a party or any corporation to which
the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
15. Miscellaneous.
(a) This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. This
Warrant may be amended only in writing signed by the Company and the Holder and
their successors and assigns.
(b) Subject to Section 15(a), above, nothing in this Warrant shall
be construed to give to any person or corporation other than the Company and the
Holder any legal or equitable right, remedy or cause under this Warrant. This
Warrant shall inure to the sole and exclusive benefit of the Company and the
Holder.
(c) The corporate laws of the State of Colorado shall govern all
issues concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof.
(d) The headings herein are for convenience only, do not constitute
a part of this Warrant and shall not be deemed to limit or affect any of the
provisions hereof.
(e) In case any one or more of the provisions of this Warrant shall
be invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Warrant shall not in any way be
affected or impaired thereby and the parties will attempt in good faith to agree
upon a valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
CEL-SCI CORPORATION
By:
Name:
Title:
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant)
To Cel-Sci Corporation:
In accordance with the Warrant enclosed with this Form of Election to
Purchase, the undersigned hereby irrevocably elects to purchase _____________
shares of Common Stock ("Common Stock"), $.01 par value per share, of Cel-Sci
Corporation and, if such Holder is not utilizing the cashless exercise
provisions set forth in this Warrant, encloses herewith $________ in cash,
certified or official bank check or checks, which sum represents the aggregate
Exercise Price (as defined in the Warrant) for the number of shares of Common
Stock to which this Form of Election to Purchase relates, together with any
applicable taxes payable by the undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
(Please print name and address)
If the number of shares of Common Stock issuable upon this exercise shall
not be all of the shares of Common Stock which the undersigned is entitled to
purchase in accordance with the enclosed Warrant, the undersigned requests that
a New Warrant (as defined in the Warrant) evidencing the right to purchase the
shares of Common Stock not issuable pursuant to the exercise evidenced hereby be
issued in the name of and delivered to:
(Please print name and address)
Dated: __________ Name of Holder:
(Print)
(By:)
(Name:)
(Title:)
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of Cel-Sci Corporation
to which the within Warrant relates and appoints ________________ attorney to
transfer said right on the books of Cel-Sci Corporation with full power of
substitution in the premises.
Dated:
- ---------------, ----
---------------------------------------
(Signature must conform in all respects to name
of holder as specified on the face of the Warrant)
---------------------------------------
Address of Transferee
---------------------------------------
---------------------------------------
In the presence of:
- --------------------------
EXHIBIT A
For purposes of this Warrant:
(i) "AMEX" shall mean the American Stock Exchange.
(ii) "Business Day" means any day except Saturday, Sunday, the day
following Christmas, the day following Thanksgiving and any day which shall be a
federal legal holiday or a day on which banking institutions in the State of New
York and the Commonwealth of Virginia generally are authorized or required by
law or other governmental action to close.
(iii) "Closing Date" shall have the meaning set forth in the Purchase
Agreement.
(iv) "Commission" means the Securities and Exchange Commission.
(v) "Per Share Market Value" means on any particular date (a) the closing
bid price per share of the Common Stock on such date on the AMEX or on any
Subsequent Market, or if there is no such price on such date, then the closing
bid price on the AMEX or on such Subsequent Market on the date nearest preceding
such date, or (b) if the Common Stock is not then listed or quoted on the AMEX
or a Subsequent Market, the closing bid price for a share of Common Stock in the
over-the-counter market, as reported by the National Quotation Bureau
Incorporated or similar organization or agency succeeding to its functions of
reporting prices) at the close of business on such date, or (c) if the Common
Stock is not then reported by the National Quotation Bureau Incorporated (or
similar organization or agency succeeding to its functions of reporting prices),
then the average of the "Pink Sheet" quotes for the relevant conversion period,
as determined in good faith by the Holder, or (d) if the Common Stock is not
then publicly traded the fair market value of a share of Common Stock as
determined by an appraiser selected in good faith by the Holders of a majority
of the applicable Warrant Shares.
(vi) "Purchase Agreement" means the Securities Purchase Agreement, dated
the date hereof to which the Company and the original Holder are parties and
pursuant to which this Warrant was issued.
(vii) "Registration Rights Agreement" means the Registration Rights
Agreement, dated the date hereof to which the Company and the original Holder
are parties.
(viii) "Shares" shall have the meaning set forth in the Purchase Agreement.
(ix) "Subsequent Market" shall mean any of the New York Stock Exchange,
Inc., Nasdaq Stock Market or Nasdaq SmallCap Market.
(x) "Trading Day" means a day on which the Common Stock is traded on AMEX
or any Subsequent Market, as the case may be, or (b) if the Common Stock is not
listed on the AMEX or on a Subsequent Market, a day on which the Common Stock is
traded in the over-the-counter market, as reported by the OTC Bulletin Board, or
(c) if the Common Stock is not quoted on the OTC Bulletin Board a day on which
the Common Stock is quoted in the over-the-counter market as reported by the
National Quotation Bureau Incorporated (or any similar organization or agency
succeeding its functions of reporting price); provided, however, that in the
event that the Common Stock is not listed or quoted, as set forth in (a), (b) or
(c) hereof, the Trading Day shall mean a Business Day.
(xi) "Transaction Documents" shall have the meaning set forth in the
Purchase Agreement.
(xii) "Underlying Shares Registration Statement" means a registration
statement meeting the requirements set forth in the Registration Rights
Agreement dated as of the date hereof between the Company and the original
Holder hereof and covering the resale of the Registrable Securities by the
selling stockholders thereunder.
ADDENDUM
Reference is made to the attached warrants, each dated December 8, 1999 of
Cel-Sci Corporation to Advantage Fund II Ltd. and Koch Investment Group Ltd (the
"Warrants").
Notwithstanding anything to the contrary set forth in the Warrants, the
Issuable Maximum under Section 10(c)of each Warrant shall equal 3,400,297 less
the number of shares of Common Stock, if any, issued under the warrants dated
March 14, 2000 to Advantage Fund II Ltd. and Koch Investment Group Ltd.
The parties agree that this Addendum serves to amend the Warrants to the
extent required to carry out the intent hereby. Except as so modified, the
Warrants are unaffected and remain in full force and effect.
CEL-SCI CORPORATION
By: _____________________________________
Name:
Title:
ADVANTAGE FUND II LTD.
By: _____________________________________
Name:
Title:
KOCH INVESTMENT GROUP LTD.
By: _____________________________________
Name:
Title: