EXHIBIT 4(b)
CEL-SCI CORPORATION
2012 INCENTIVE STOCK OPTION PLAN
1. Purpose. The purpose of this Incentive Stock Option Plan (the "Plan") is
to advance the interests of CEL-SCI Corporation and any subsidiary corporation
(hereinafter referred to as the "Company") and all of its shareholders, by
strengthening the Company's ability to attract and retain in its employ
individuals of training, experience, and ability, and to furnish additional
incentive to officers and valued employees upon whose judgment, initiative, and
efforts the successful conduct and development of its business largely depends,
by encouraging such officers and employees to become owners of capital stock of
the Company.
This will be effected through the granting of stock options as herein
provided, which options are intended to qualify as "Incentive Stock Options"
within the meaning of Section 422 of the Internal Revenue Code, as amended (the
"Code").
2. Definitions.
(a) "Board" means the Board of Directors of the Company.
(b) "Committee" means the directors duly appointed to administer the
Plan.
(c) "Common Stock" means the Company's Common Stock.
(d) "Date of Grant" means the date on which an Option is granted
under the Plan.
(e) "Option" means an Option granted under the Plan.
(f) "Optionee" means a person to whom an Option, which has not
expired, has been granted under the Plan.
(g) "Successor" means the legal representative of the estate of a
deceased optionee or the person or persons who acquire the right
to exercise an Option by bequest or inheritance or by reason of
the death of any Optionee.
3. Administration of Plan. The Plan shall be administered by the Company's
Board of Directors or in the alternative, by a committee of two or more
directors appointed by the Board (the "Committee"). If a Committee should be
appointed, the Committee shall report all action taken by it to the Board. The
Committee shall have full and final authority in its discretion, subject to the
provisions of the Plan, to determine the individuals to whom and the time or
times at which Options shall be granted and the number of shares and purchase
price of Common Stock covered by each Option; to construe and interpret the
Plan; to determine the terms and provisions of the respective Option agreements,
which need not be identical, including, but without limitation, terms covering
the payment of the Option Price; and to make all other determinations and take
all other actions deemed necessary or advisable for the proper administration of
the Plan. All such actions and determinations shall be conclusively binding for
all purposes and upon all persons.
4. Common Stock Subject to Options. The aggregate number of shares of the
Company's Common Stock which may be issued upon the exercise of Options granted
under the Plan shall not exceed 2,000,000. The shares of Common Stock to be
issued upon the exercise of Options may be authorized but unissued shares,
shares issued and reacquired by the Company or shares bought on the market for
the purposes of the Plan. In the event any Option shall, for any reason,
terminate or expire or be surrendered without having been exercised in full, the
shares subject to such Option but not purchased thereunder shall again be
available for Options to be granted under the Plan.
The aggregate fair market value (determined as of the time any option is
granted) of the stock for which any employee may be granted options which are
first exercisable in any single calendar year under this Plan (and any other
plan of the Company meeting the requirements for Incentive Stock Option Plans)
shall not exceed $100,000.
5. Participants. Options will be granted only to persons who are employees
of the Company or subsidiaries of the Company and only in connection with any
such person's employment. The term "employees" shall include officers as well as
other employees, and the officers and other employees who are directors of the
Company. The Committee will determine the employees to be granted options and
the number of shares subject to each option.
6. Terms and Conditions of Options. Any Option granted under the Plan shall
be evidenced by an agreement executed by the Company and the recipient and shall
contain such terms and be in such form as the Committee may from time to time
approve, subject to the following limitations and conditions:
(a) Option Price. The purchase price of each option shall not be less than
100% of the fair market value of the Company's common stock at the time of the
granting of the option provided, however, if the optionee, at the time the
option is granted, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company, the purchase price of the
option shall not be less than 110% of the fair market value of the stock at the
time of the granting of the option.
(b) Period of Option. The maximum period for exercising an option shall be
10 years from the date upon which the option is granted, provided, however, if
the optionee, at the time the option is granted, owns stock possessing more than
l0% of the total combined voting power of all classes of stock of the Company,
the maximum period for exercising an option shall be five years from the date
upon which the option is granted and provided further, however, that these
periods may be shortened in accordance with the provisions of Paragraph 7 below.
Subject to the foregoing, the period during which each option may be
exercised, and the expiration date of each Option shall be fixed by the
Committee.
If an optionee shall cease to be employed by the Company due to disability,
as defined in Section 22(e)(3) of the Code, he may, but only within the one year
next succeeding such cessation of employment, exercise his option to the extent
that he was entitled to exercise it on the date of such cessation. The Plan will
not confer upon any optionee any right with respect to continuance of employment
by the Company, nor will it interfere in any way with his right, or his
employer's right, to terminate his employment at any time.
(c) Vesting of Shareholder Rights. Neither an Optionee nor his successor
shall have any rights as a shareholder of the Company until the certificates
evidencing the shares purchased are properly delivered to such Optionee or his
successor.
(d) Exercise of Option. Each Option shall be exercisable from time to time
during a period (or periods) determined by the Committee and ending upon the
expiration or termination of the Option; provided, however, the Committee may,
by the provisions of any Option Agreement, limit the number of shares
purchaseable thereunder in any period or periods of time during which the Option
is exercisable. An Option shall not be exercisable in whole or in part prior to
the date of shareholder approval of the Plan.
Options may be exercised in part from time to time during the option
period. The exercise of any option will be contingent upon compliance by the
Optionee (or purchaser acting pursuant to Section 6(b)) with the provisions of
Section 10 below and upon receipt by the Company of either (i) cash or certified
bank check payable to its order in the amount of the purchase price of such
shares (ii) shares of Company stock having a fair market value equal to the
purchase price of such shares, or (iii) a combination of (i) and (ii). If any
law or regulation requires the Company to take any action with respect to the
shares to be issued upon exercise of any option, then the date for delivery of
such stock shall be extended for the period necessary to take such action.
(e) Nontransferability of Option. No Option shall be transferable or
assignable by an Optionee, otherwise than by will or the laws of descent and
distribution and each Option shall be exercisable, during the Optionee's
lifetime, only by him. No Option shall be pledged or hypothecated in any way and
no Option shall be subject to execution, attachment, or similar process except
with the express consent of the Committee.
(f) Death of Optionee. In the event of the death of an optionee while in
the employ of the Company, the option theretofore granted to him shall be
exercisable only within the three months succeeding such death and then only (i)
by the person or persons to whom the optionee's rights under the option shall
pass by the optionee's will or by the laws of descent and distribution, and (ii)
if and to the extent that he was entitled to exercise the option at the date of
his death.
7. Assumed Options. In connection with any transaction to which Section
424(a) of the Code is applicable, options may be granted pursuant hereto in
substitution of existing options or existing options may be assumed as
prescribed by that Section and any regulations issued thereunder.
Notwithstanding anything to the contrary contained in this Plan, options granted
pursuant to this Paragraph shall be at prices and shall contain such terms,
provisions, and conditions as may be determined by the Committee and shall
include such provisions and conditions as may be necessary to meet the
requirements of Section 424(a) of the Code.
8. Certain Dispositions of Shares. Any options granted pursuant to this
Plan shall be conditioned such that if, within the earlier of (i) the two-year
period beginning on the date of grant of an option or (ii) the one-year period
beginning on the date after which any share of stock is transferred to an
individual pursuant to his exercise of an option, such an individual makes a
disposition of such share of stock by way of sale, exchange, gift, transfer of
legal title, or otherwise, such individual shall promptly report such
disposition to the Company in writing and shall furnish to the Company such
details concerning such disposition as the Company may reasonably request.
9. Reclassification, Consolidation, or Merger. If and to the extent that
the number of issued shares of Common Stock of the Corporation shall be
increased or reduced by change in par value, split up, reclassification,
distribution of a dividend payable in stock, or the like, the number of shares
subject to Option and the Option price per share shall be proportionately
adjusted by the Committee, whose determination shall be conclusive. If the
Corporation is reorganized or consolidated or merged with another corporation,
an Optionee granted an Option hereunder shall be entitled to receive Options
covering shares of such reorganized, consolidated, or merged company in the same
proportion, at an equivalent price, and subject to the same conditions. The new
Option or assumption of the old Option shall not give Optionee additional
benefits which he did not have under the old Option, or deprive him of benefits
which he had under the old Option.
10. Restrictions on Issuing Shares. The exercise of each Option shall be
subject to the condition that if at any time the Company shall determine in its
discretion that the satisfaction of withholding tax or other withholding
liabilities, or that the listing, registration, or qualification of any shares
otherwise deliverable upon such exercise upon any securities exchange or under
any state or federal law, or that the consent or approval of any regulatory
body, is necessary or desirable as a condition of, or in connection with, such
exercise or the delivery or purchase of shares purchased thereto, then in any
such event, such exercise shall not be effective unless such withholding,
listing, registration, qualification, consent, or approval shall have been
effected or obtained free of any conditions not acceptable to the Company.
Unless the shares of stock covered by the Plan have been registered with
the Securities and Exchange Commission pursuant to Section 5 of the Securities
Act of l933, each optionee shall, by accepting an option, represent and agree,
for himself and his transferees by will or the laws of descent and distribution,
that all shares of stock purchased upon the exercise of the option will be
acquired for investment and not for resale or distribution. Upon such exercise
of any portion of an option, the person entitled to exercise the same shall,
upon request of the Company, furnish evidence satisfactory to the Company
(including a written and signed representation) to the effect that the shares of
stock are being acquired in good faith for investment and not for resale or
distribution. Furthermore, the Company may, if it deems appropriate, affix a
legend to certificates representing shares of stock purchased upon exercise of
options indicating that such shares have not been registered with the Securities
and Exchange Commission and may so notify its transfer agent. Such shares may be
disposed of by an optionee in the following manner only: (l) pursuant to an
effective registration statement covering such resale or reoffer, (2) pursuant
to an applicable exemption from registration as indicated in a written opinion
of counsel acceptable to the Company, or (3) in a transaction that meets all the
requirements of Rule l44 of the Securities and Exchange Commission. If shares of
stock covered by the Plan have been registered with the Securities and Exchange
Commission, no such restrictions on resale shall apply, except in the case of
optionees who are directors, officers, or principal shareholders of the Company.
Such persons may dispose of shares only by one of the three aforesaid methods.
11. Use of Proceeds. The proceeds received by the Company from the sale of
Common Stock pursuant to the exercise of Options granted under the Plan shall be
added to the Company's general funds and used for general corporate purposes.
l2. Amendment, Suspension, and Termination of Plan. The Board of Directors
may alter, suspend, or discontinue the Plan, but may not, without the approval
of a majority of those holders of the Company's Common Stock voting in person or
by proxy at any meeting of the Company's shareholders, make any alteration or
amendment thereof which operates to (a) make any material change in the class of
eligible employees as defined in Section 5, (b) extend the term of the Plan or
the maximum option periods provided in paragraph 6, (c) decrease the minimum
option price provided in paragraph 6, except as provided in paragraph 9, or (d)
materially increase the benefits accruing to employees participating under this
Plan.
Unless the Plan shall theretofore have been terminated by the Board, the
Plan shall terminate ten years after the adoption of the Plan. No Option may be
granted during any suspension or after the termination of the Plan. No
amendment, suspension, or termination of the Plan shall, without an Optionee's
consent, alter or impair any of the rights or obligations under any Option
theretofore granted to such Optionee under the Plan.
13. Limitations. Every right of action by any person receiving options
pursuant to this Plan against any past, present or future member of the Board,
or any officer or employee of the Company arising out of or in connection with
this Plan shall, irrespective of the place where such action may be brought and
irrespective of the place of residence of any such director, officer or employee
cease and be barred by the expiration of one year from the date of the act or
omission in respect of which such right of action arises.
14. Governing Law. The Plan shall be governed by the laws of the State
of Colorado.
l5. Expenses of Administration. All costs and expenses incurred in the
operation and administration of this Plan shall be borne by the Company.