EXHIBIT 10(ll)
WARRANT AGENT AGREEMENT
This Agreement, dated as of ________, 2014, is between CEL-SCI
Corporation, a Colorado corporation (the "Company"), and Computershare Inc., a
Delaware corporation ("Computershare"), and its wholly owned subsidiary
Computershare Trust Company N.A., a federally chartered trust company
(collectively the "Warrant Agent").
WHEREAS, the Company proposes to sell to public investors warrants
("the Series T Warrants") to purchase up to 2,200,000 shares of the Company's
common stock. Each Warrant is exercisable to purchase one share of Common Stock
upon the terms and conditions and subject to adjustment in certain
circumstances, all as set forth in this Agreement.
WHEREAS, the Company wishes to retain the Warrant Agent to act as
warrant agent on behalf of the Company, and the Warrant Agent is willing so to
act, in connection with the issuance, transfer, exchange and replacement of the
certificates evidencing the Warrants to be issued under this Agreement (each a
"Warrant Certificate," collectively, the "Warrant Certificates") and the
exercise of the Warrants.
WHEREAS, the Company and the Warrant Agent wish to enter into this
Agreement to set forth the terms and conditions of the Warrants and the rights
of the holders thereof (each a "Warrant Holder," and collectively, the "Warrant
Holders") and to set forth the respective rights and obligations of the Company
and the Warrant Agent. Each Warrant Holder is an intended beneficiary of this
Agreement with respect to the rights of Warrant Holders herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. Warrants. Every four Warrants will entitle the registered holder to
purchase from the Company one share of Common Stock (each a "Share,"
collectively, the "Shares") at a price of $1.58 per Share. The
exercise price for the Warrant is referred to herein as the "Exercise
Price." The Exercise Price is subject to adjustments as provided in
Section 12 hereof. A Warrant Holder may exercise all or any number of
Warrants resulting in the purchase of a whole number of Shares. The
terms of the Warrants are shown on Exhibit A. With respect to the
rights, duties, obligations and liabilities of the Warrant Agent, In
the event of any conflict or inconsistency between this Agreement and
the terms of the Warrants, the provisions of this Agreement shall
govern in all respects. With respect to the rights, duties,
obligations and liabilities of any other person or entity other than
the Warrant Agent, in the event of any inconsistency between this
Agreement and the terms of the Warrants, the Warrant terms will
control.
2. Exercise Period. The Warrants may be exercised on or before October
17, 2014 (the "Expiration Date") pursuant to Section 6 hereof.
3. Execution of Warrant Certificates. Warrant Certificates shall be in
registered form only and shall be substantially in the form set forth
in Exhibit B attached to this Agreement. Warrant Certificates shall be
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signed by, or shall bear the facsimile signature of, the Chief
Executive Officer, President or a Vice President of the Company and
the Secretary or an Assistant Secretary of the Company. If any person,
whose facsimile signature has been placed upon any Warrant Certificate
or the signature of an officer of the Company, shall have ceased to be
such officer before such Warrant Certificate is countersigned, issued
and delivered, such Warrant Certificate shall be countersigned, issued
and delivered with the same effect as if such person had not ceased to
be such officer. Any Warrant Certificate may be signed by, or made to
bear the facsimile signature of, any person who at the actual date of
the preparation of such Warrant Certificate shall be a proper officer
of the Company to sign such Warrant Certificate even though such
person was not such an officer upon the date of the Agreement, and
even if such officer shall cease to be such an officer after the
preparation of such Warrant Certificate. If a Warrant holder has an
account with DTC, at the election of such Warrant holder, Warrants may
be issued in "Book Entry" form by crediting the Warrant holder's
account with DTC.
4. Countersigning. Warrant Certificates shall be countersigned by the
Warrant Agent manually or by facsimile signature and shall not be
valid for any purpose unless so countersigned. The Warrant Agent
hereby is authorized to countersign and deliver to, or in accordance
with the instructions of, any Warrant Holder any Warrant Certificate
which is properly issued.
5. Registration of Transfer and Exchanges.
(a) The Warrant Agent shall from time to time, upon the written
request of a Warrant Holder, register the transfer of any outstanding
Warrant Certificate upon records maintained by the Warrant Agent for
such purpose upon surrender of such Warrant Certificate to the Warrant
Agent for transfer, accompanied by appropriate instruments of transfer
in form and substance satisfactory to the Company and the Warrant
Agent, properly completed and duly executed by the Warrant Holder or a
duly authorized attorney, and such other information and documents
requested by the Warrant Agent. Upon any such registration of
transfer, a new Warrant Certificate shall be issued by the Warrant
Agent in the name of and to the transferee and the surrendered Warrant
Certificate shall be cancelled by the Warrant Agent.
(b) A party requesting transfer must provide any evidence of authority
that may be required by the Warrant Agent, including but not limited
to, a signature guarantee from an eligible guarantor institution
participating in a signature guarantee program approved by the
Securities Transfer Association at a guarantee level acceptable to the
Warrant Agent.
6. Exercise of Warrants.
(a) Subject to the terms of the Warrants, any Warrant may be exercised
in whole or in part, upon one or more occasions, during the exercise
period. The Warrants shall be exercised by the Warrant Holder by
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surrendering to the Warrant Agent the Warrant Certificate with the
exercise form on the reverse of such Warrant Certificate properly
completed and duly executed and delivering to the Warrant Agent (or by
providing such other notice of exercise made available by the
Company), by good check or bank draft payable to the order of the
Warrant Agent, the Exercise Price for each Share to be purchased.
Notwithstanding the foregoing, the Company will extend a three day
"protect" period after the Expiration Date so that any Warrant for
which notice of exercise is received in the three business days prior
to and including the Expiration Date shall be deemed exercised so long
as the Exercise Price is received by the Warrant Agent no more than
three business days after the notice of exercise.
(b) Upon receipt of a Warrant Certificate with the exercise form
thereon properly completed and duly executed together with payment in
full of the Exercise Price for the Shares for which Warrants are then
being exercised, the Warrant Agent is hereby authorized to requisition
from any transfer agent for the Shares (or make available if the
Warrant Agent is also the transfer agent for the Shares), and upon
receipt shall make delivery of, certificates evidencing the total
number of whole Shares for which Warrants are then being exercised in
such names and denominations as are required for delivery to, or in
accordance with the instructions of, the Warrant Holder. Such
certificates for the Shares shall be deemed to be issued, and the
person whom such Shares are issued of record shall be deemed to have
become a holder of record of such Shares, as of the date of the
surrender of such Warrant Certificate and payment of the Exercise
Price, whichever shall last occur; provided that if the transfer books
of the Company with respect to the Shares shall be closed, the
certificates for the Shares issuable upon exercise of the Warrants
shall be issued as of the date on which such books shall next be open,
and the person to whom such Shares are issued of record shall be
deemed to have become a record holder of such Shares as of the date on
which such books shall next be open (whether before, on or after the
Expiration Date) and until such date the Warrant Agent shall be under
no duty or obligation to deliver any certificate for such Shares.
(c) [If less than all of a Warrant Holder's Warrants are exercised
upon a single occasion, a new Warrant Certificate for the balance of
the Warrants not so exercised shall be issued and delivered to, or in
accordance with, transfer instructions properly given by the Warrant
Holder prior to the Expiration Date.]
(d) All Warrant Certificates surrendered upon exercise shall be
cancelled by the Warrant Agent.
(e) Upon the exercise of any Warrant, the Warrant Agent shall promptly
deposit any payment received in connection with such exercise into an
account (the "Account") established by Computershare at a federally
insured commercial bank (the "Bank"). All funds deposited in the
account will be disbursed by Computershare on a weekly basis to the
Company after Computershare has been informed by the Bank that the
Bank has "collected" the funds, subject to any withdrawals by the
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Computershare for the account of the Warrant Agent permitted
hereunder. Once Computershare has been informed by the Bank that the
funds have been "collected," the Warrant Agent shall cause the
certificate(s) representing the exercised Warrants to be issued.
(f) Expenses incurred by the Warrant Agent in connection with this
Agreement will be paid or reimbursed by the Company. These expenses,
including but not limited to delivery of Share certificates to the
stockholder, may (at the sole discretion of the Warrant Agent) be
deducted from the Exercise Price submitted by a Warrant Holder and
withdrawn from the Account prior to the distribution of funds to the
Company. A detailed accounting statement relating to the number of
Warrants exercised, name of registered Warrant Holder and the net
amount of exercised funds remitted (after payment or reimbursement of
the Warrant Agent's expenses) will be given to the Company with the
payment of each exercise amount.
(g) In the event that a Warrant Holder elects a cashless exercise of
Warrants, The Company shall be solely responsible for calculating the
number of Common Shares issuable in connection with such cashless
exercise and transmitting such calculation to the Warrant Agent in a
written notice, and the Warrant Agent shall have no duty,
responsibility or obligation to calculate or determine the number of
Common Shares issuable in connection with any such cashless exercise,
or to investigate or confirm whether the Company's calculation or
determination of the number of Shares to be issued in connection with
any such cashless exercise is accurate or correct. The Warrant Agent
shall have no duty, obligation or responsibility with respect to any
cashless exercise of Warrants until it receives such written notice
form the Company, and shall be entitled to rely conclusively on any
such written notice provided by the Company, including the
calculations and determinations contained therein, and the Warrant
Agent shall not be liable for any action taken, suffered or omitted to
be taken by it in accordance with such written instructions, while
waiting for such written instructions, or pursuant to this Agreement.
7. Bank Accounts. The Company acknowledges that the bank accounts
maintained by Computershare in connection with the services provided
under this Agreement will be in its name and that Computershare may
receive investment earnings in connection with the investment at
Computershare's risk and for its benefit of funds held in those
accounts from time to time. Neither the Company nor the record holders
will receive interest on any deposits.
8. Taxes. The Company will, from time to time, promptly pay all taxes and
charges attributable to the initial issuance of Shares upon exercise
of Warrants. The Company shall not, however, be required to pay any
tax or charge that may be payable in connection with or respect to any
transfer involved in any issue of Warrant Certificates or in the
issuance of any certificates of Shares in the name of anyone other
than that of the Warrant Holder; such taxes or charges to be the sole
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responsibility and obligation of the Warrant Holder. The Warrant Agent
shall have no duty or obligation to take any action under any section
of this Agreement that requires the payment of taxes or charges,
including but not limited to this Section 8, unless and until the
Warrant Agent is satisfied that all such taxes and/or charges have
been paid.
9. Replacement Warrant Certificates. Warrant Agent shall issue
replacement Warrants for those certificates alleged to have been lost,
stolen or destroyed, upon receipt by Warrant Agent of an open penalty
surety bond satisfactory to it and holding it and Company harmless,
absent written notice to Warrant Agent that such certificates have
been acquired by a bona fide purchaser. Warrant Agent may, at its
option, issue replacement Warrant Certificates for mutilated
certificates upon presentation thereof with or without such indemnity
or other indemnity satisfactory to it.
10. Reservation of Shares. For the purpose of enabling the Company to
satisfy all obligations to issue Shares upon exercise of the Warrants,
the Company will at all times reserve and keep available free from
preemptive rights, out of the aggregate of its authorized but unissued
shares, the full number of Shares which may be issued upon the
exercise of the Warrants and such Shares will upon issue be fully paid
and nonassessable by the Company and free from all taxes, liens,
charges and security interests with respect to the issue thereof.
11. Governmental Restrictions. If any Shares issuable upon the exercise of
Warrants require registration or approval of any governmental
authority, the Company will use all commercially reasonable efforts to
cause such Shares to be duly registered, or approved, as the case may
be, and, to the extent practicable, take all such action in
anticipation of and prior to the exercise of the Warrants, including,
without limitation, filing any and all post-effective amendments to
the Company's Registration Statement on Form S-3 (Registration No.
333-186103) necessary to permit a public offering of the Shares
underlying the Warrants at any and all times during the term of this
Agreement; provided, however, that in no event shall such Shares be
issued, and the Company is authorized to refuse to honor the exercise
of any Warrant, if such exercise would result, in the opinion of the
Company's Board of Directors, upon advice of counsel, in the violation
of any law. The Company shall provide prompt written notice of any
such determination made by the Company. Until such written notice is
received by the Warrant Agent, the Warrant Agent may presume
conclusively for all purposes that no such determination has been made
by the Company.
12. Adjustments.
(a) If prior to the exercise of any Warrants, the Company shall have
effected one or more stock split-ups, stock dividends or other
increases or reductions of the number of shares of its Common Stock
outstanding without receiving compensation therefor in money, services
or property, the number of Shares subject to the Warrants shall (i) if
a net increase shall have been effected in the number of outstanding
shares of the Common Stock, be proportionately increased, and the
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Exercise Price payable per Share shall be proportionately reduced, and
(ii) if a net reduction shall have been effected in the number of
outstanding shares of the Common Stock, be proportionately reduced and
the Exercise Price payable per Share be proportionately increased.
(b) In the event of a capital reorganization or a reclassification of
the Common Stock (except as provided in Subsection 12(a)), any Warrant
Holder, upon exercise of the Warrants, shall be entitled to receive,
in substitution for the Common Stock to which the Warrant Holder would
have become entitled upon exercise immediately prior to such
reorganization or reclassification, the shares (of any class or
classes) or other securities or property of the Company (or cash) that
he would have been entitled to receive at the same aggregate Exercise
Price upon such reorganization or reclassification if such Warrants
had been exercised immediately prior to the record date with respect
to such event; and in any such case, appropriate provision (as
determined by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a
certified Board resolution filed with the Warrant Agent) shall be made
for the application of this Section 12 with respect to the rights and
interests thereafter of the Warrant Holders (including but not limited
to the allocation of the Exercise Price between or among shares of
classes of capital stock), to the end that this Section 12 (including
the adjustments of the number of Shares or other securities
purchasable and the Exercise Price thereof) shall thereafter be
reflected, as nearly as reasonably practicable, in all subsequent
exercises of the Warrants for any shares or securities or other
property (or cash) thereafter deliverable upon the exercise of the
Warrants.
(c) In case of any consolidation of the Company with, or merger of the
Company into, another corporation (other than a consolidation or
merger which does not result in any reclassification or change of the
outstanding Common Stock), the corporation formed by such
consolidation or merger shall execute and deliver to the Warrant Agent
a supplemental Warrant agreement providing that the holder of each
Warrant then outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such Warrant,
solely the kind and amount of shares of stock and other securities and
property (or cash) receivable upon such consolidation or merger by a
holder of the number of shares of Common Stock for which such Warrant
might have been exercised immediately prior to such consolidation,
merger, sale or transfer. Such supplemental Warrant agreement shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided in this Section 12.
(d) The Warrant Agent shall have no obligation under any Section of
this Agreement to calculate any of the adjustments set forth herein.
The Warrant Agent shall be entitled to rely conclusively on, and shall
be fully protected in relying on, any certificate, notice or
instructions provided by the Company with respect to any adjustment of
the Exercise Price or the number of shares issueable upon exercise of
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a Warrant, or any related matter, and the Warrant Agent shall not be
liable for any action taken, suffered or omitted to be taken by it in
accordance with any such certificate, notice or instructions or
pursuant to this Warrant Agreement. The Warrant Agent shall not be
deemed to have knowledge of any such adjustment unless and until it
shall have received written notice thereof from the Company.
13. Notice to Warrant Holders. Whenever an adjustment is required as
provided in Section 12 or otherwise, the Company shall promptly (i)
prepare and cause to be filed with the Warrant Agent a certificate
signed by an appropriate Company officer setting forth the details of
such adjustment, the method of calculation and the facts upon which
such calculation and adjustment is based, which certificate shall be
conclusive evidence of the correctness of the matters set forth
therein, and until such a certificate is received by the Warrant
Agent, the Warrant Agent may presume conclusively for all purposes to
that no adjustments have occurred, (ii) cause notice of such
adjustments to be given to the Warrant Holders of record, which notice
may be by publication of a press release and by taking such other
steps as may be required under applicable laws. Without limiting the
obligation of the Company hereunder to provide notice to each Warrant
Holder, failure of the Company to give notice to the Warrant Holders
shall not invalidate any corporate action taken by the Company.
14. No Fractional Warrants or Shares. The Company (including the Warrant
Agent) shall not be required to issue fractions of Shares issuable
upon exercise of the Warrants, upon the reissue of Warrants, or any
adjustments as described in Section 12 or otherwise; but the Company
shall instruct the Warrant Agent in writing, in lieu of issuing any
such fractional interest that would otherwise be issuable, to, round
up or down to the nearest full Share issuable upon exercise of the
Warrant, or to make a cash adjustment. If the total Warrants
surrendered by any exercise would result in the issuance of a
fractional share, the Warrant Agent shall promptly inform the Company,
and the Company shall promptly prepare and deliver to the Warrant
Agent a certificate instructing the Warrant Agent to either (ii) round
up or down the aggregate number of shares issuable to the nearest full
share, or (ii) make a cash adjustment in lieu of issuing such
fractional Shares. The certificate delivered by the Company to the
Warrant Agent shall set forth in reasonable detail the facts related
to such payment or adjustment, including the prices and/or formulas
used to calculate such payment or adjustment, and the Company shall
provide the Warrant Agent with sufficient monies in the form of fully
collected funds to make sure payments (or direct the Warrant Agent to
deduct such amounts from the Account). The Warrant Agent shall be
fully protected in relying upon such a certificate and shall have no
duty with respect to, and shall not be deemed to have knowledge of any
payment for fractional Warrants or fractional Shares under any Section
of this Agreement relating to the payment of fractional Warrants or
fractional Shares unless and until the Warrant Agent shall have
received such a certificate and sufficient monies.
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15. Rights of Warrant Holders. No Warrant Holder, as such, shall have any
rights of a stockholder of the Company, either at law or equity, and
the rights of the Warrant Holders, as such, are limited to those
rights expressly provided in the Warrant Certificate. The Company and
the Warrant Agent may treat the registered Warrant Holder in respect
of any Warrant as the absolute owner thereof for all purposes
notwithstanding any notice to the contrary.
16. Warrant Agent. The Company hereby appoints the Warrant Agent to act as
warrant agent of the Company with respect to the Warrants, and the
Warrant Agent hereby accepts such appointments upon and subject to the
express terms and conditions set forth herein (and no implied terms or
conditions) all of which the Company and every Warrant Holder, by
acceptance of his Warrant Certificates, shall be bound, including but
not limited to the following:
(a) Statements contained in this Agreement and in the Warrant
Certificate shall be taken as statements of the Company only. The
Warrant Agent assumes no responsibility for the correctness of any of
the same or be required to verify the same except for such provisions
of this Agreement that describes the Warrant Agent or the action taken
or to be taken by the Warrant Agent hereunder. The Warrant Agent shall
not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due
execution hereof by the Warrant Agent) or in respect of the validity
or execution of any Warrant or any purchase agreement related thereto;
nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement, any Warrant or in
any other agreement or document related thereto; nor shall it by any
act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any Common Shares to be issued
pursuant to this Agreement or any Warrant or as to whether any Common
Shares will, when issued, be duly authorized, validly issued, fully
paid and nonassessable; nor shall it have any duty or responsibility
in the case of the receipt of any written demand from any Warrant
Holder with respect to any such action or default by the Company,
including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings
at law or otherwise or to make any demand upon the Company;.
(b) The Warrant Agent shall not be liable or responsible for any
failure of the Company to comply with any of the Company's duties,
covenants or obligations contained in this Agreement, the Warrant
Certificates or in any other agreement or document.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company or an employee
of the Warrant Agent) and the Warrant Agent shall incur no liability
or responsibility to the Company or to any other person or entity in
respect of any action taken, suffered or omitted to be taken by it
hereunder in the absence of bad faith and in accordance with the
opinion or the advice of such counsel.
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(d) From time to time, the Company may provide the Warrant Agent with
written instructions concerning the services to be performed by the
Warrant Agent hereunder. In addition, at any time the Warrant Agent
may apply to any officer of the Company for written instruction with
respect to any fact or matter arising in connection with the services
to be performed by the Warrant Agent under this Agreement, and such
fact or matter shall be deemed to be conclusively proved or
established by any written Company instructions or other notice,
resolution, waiver, consent, order, certificate or other paper,
document or instrument issued in response thereto. The Warrant Agent
and its agents and subcontractors shall not be liable and shall be
indemnified by Company for any action taken, suffered or omitted to be
taken by it in reliance upon any Company instructions or any notice,
resolution, waiver, consent, order, certificate or other paper,
document or instrument believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties. The Warrant
Agent shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Company.
(e) The Company agrees to pay to the Warrant Agent from time to time
[reasonable compensation] [compensation in accordance with the fee
schedule attached as Exhibit C hereto] for all services rendered,
together with reimbursement for all expenses, taxes and governmental
charges and all other charges of any kind or nature incurred by the
Warrant Agent, in connection with the execution and administration of
this Agreement and the exercise and performance of its duties
hereunder, and to indemnify the Warrant Agent and save it harmless
against any and all liabilities, including judgments, costs and
counsel fees and expenses, incurred in connection with this Agreement,
except as a result of the Warrant Agent's own gross negligence or bad
faith or willful misconduct (each as determined by a final judgment of
a court of competent jurisdiction).
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action it
believes is likely to involve expense unless the Company or one or
more Warrant Holders shall furnish the Warrant Agent with security and
indemnity for any costs and expenses that may be incurred in
connection with such action, suit or legal proceeding, but this
provision shall not affect the power of the Warrant Agent to take such
action as the Warrant Agent may consider proper, whether with or
without any such security or indemnity. All rights of action under
this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other
proceeding relative thereto, and any such action, suit or proceeding
instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment on behalf of the Warrant
Holders shall be for the ratable benefit of the Warrant Holders as
their respective rights or interest may appear.
(g) The Warrant Agent (and its affiliates) and any stockholder,
director, officer, agent or employee of the Warrant Agent (or any of
its affiliates) may buy, sell or deal in any of the Warrants or other
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securities of the Company or become pecuniarily interested in any
transaction in which the Company or any Warrant Holder may be
interested, or contract with or lend money to the Company or any
Warrant Holder or otherwise act as fully and freely as though it were
not Warrant Agent under this Agreement. Nothing herein shall preclude
the Warrant Agent from acting in any other capacity for the Company or
for any other person or legal entity.
(h) The Warrant Agent shall be liable hereunder only for its own gross
negligence, bad faith and willful misconduct (each as determined by a
final judgment of a court of competent jurisdiction).
(i) The Warrant Agent may perform any of its duties hereunder either
directly or by or through agents or attorneys, and the Warrant Agent
shall not be liable for any act or failure to act by any such agent or
attorney absent gross negligence, bad faith or willful misconduct
(each as determined by a final judgment of a court of competent
jurisdiction) in the selection and assignment of tasks to any such
agent or attorney.
(j) The Warrant Agent shall not be obligated to expend or risk its own
funds or to take any action that it believes would expose or subject
it to expense or liability or to a risk of incurring expense or
liability, unless it has been furnished with assurances of repayment
or indemnity satisfactory to it.
(k) The Warrant Agent shall not be liable or responsible for any
failure of the Company to comply with any of its obligations relating
to the registration of securities under this Agreement or any Warrant,
including without limitation obligations under applicable regulation
or law.
(l) The Warrant Agent shall not be under any liability for interest on
any monies at any time received by it pursuant to any of the
provisions of this Agreement.
(m) The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any Warrants
authenticated by the Warrant Agent and delivered by it to the Company
pursuant to this Agreement or for the application by the Company of
the proceeds of the issue and sale, or exercise, of Warrants.
(n) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions
hereof (and no duties or obligations shall be inferred or implied).
The Warrant Agent shall not assume any obligations or relationship of
agency or trust with any of the owners or holders of the Warrants.
(o) The Warrant Agent may rely on and be fully authorized and
protected in acting or failing to act upon (a) any guaranty of
signature by an "eligible guarantor institution" that is a member or
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participant in the Securities Transfer Agents Medallion Program or
other comparable "signature guarantee program" or insurance program in
addition to, or in substitution for, the foregoing; or (b) any law,
act, regulation or any interpretation of the same even though such
law, act, or regulation may thereafter have been altered, changed,
amended or repealed.
(p) The Warrant Agent shall at all times be entitled to the rights,
protections and indemnities set forth herein, whether acting as
warrant agent or in any other capacity hereunder
17. Successor Warrant Agent. Any entity into which the Warrant Agent may
be merged or converted or with which it may be consolidated, or any
entity resulting from any merger, conversion or consolidation to which
the Warrant Agent shall be a party, or any entity succeeding to the
shareowner services business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder with the same powers, rights,
responsibilities and obligations of the Warrant Agent without the
execution or filing of any paper or any further act of a party or the
parties hereto. In any such event or if the name of the Warrant Agent
is changed, the Warrant Agent or such successor may adopt the
countersignature of the original Warrant Agent and may countersign
such Warrants either in the name of the predecessor Warrant Agent or
in the name of the successor Warrant Agent.
18. Change of Warrant Agent. The Warrant Agent may resign or be discharged
by the Company from its duties under this Agreement by the Warrant
Agent or the Company, as the case may be, by giving notice in writing
to the other, and by giving a date when such resignation or discharge
shall take effect, which notice shall be sent at least 30 days prior
to the date so specified. If the Warrant Agent shall resign, be
discharged or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of 30 days after it has
been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by any Warrant Holder or
after discharging the Warrant Agent, then the Company agrees to
perform the duties of the Warrant Agent hereunder until a successor
Warrant Agent is appointed. Upon any such termination, Warrant Agent
shall be relieved and discharged of any further responsibilities with
respect to its duties hereunder. After appointment of a successor
Warrant Agent and execution of a copy of this Agreement in effect at
that time, the successor Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed and,
upon payment of all outstanding fees and expenses hereunder, the
former Warrant Agent shall deliver and transfer to the successor
Warrant Agent any property at the time held by it thereunder, and
execute and deliver any further assurance, conveyance, act or deed
necessary for effecting the delivery or transfer.
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Failure to give any notice provided for in this Section 18, however,
or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Warrant Agent or the appointment of
the successor Warrant Agent, as the case may be.
19. Opinion of Counsel.
(a) The Company shall provide an opinion of counsel prior to the
issuance of any Warrant Certificate to set up a reserve of Warrants
and related shares of Common Stock. The opinion shall state that all
Warrants or common stock, as applicable, are:
(i) registered under the Securities Act of 1933, as amended, or
are exempt from such registration, and all appropriate state
securities law filings have been made with respect to the
Warrants or shares; and
(ii) validly issued, fully paid and non-assessable.
20. Notices. Any notice or demand authorized by this Agreement to be given
to or made by the Warrant Agent or by any Warrant Holder to or on the
Company shall be deemed given when sent by overnight delivery service
by a nationally recognized overnight courier service to the addresses
shown below:
To the Company:
CEL-SCI Corporation
8229 Boone Boulevard, Suite 802
Vienna, Virginia 22182
Attn: Patricia Prichep
Facsimile: (703) 506-9471
With copy to:
Hart & Hart
1624 Washington Street
Denver, CO 80203
Attn: William T. Hart
Fax: (303) 839-5414
12
To the Warrant Agent:
Computershare, Inc.
350 Indiana Street, Suite 750
Golden CO 80401
Attn: Corp Actions Relationship Manager
Fax: (303) 262-0610
With a copy to:
Computershare Trust Company, N.A.
Newport Office Center VII
480 Washington Blvd.
Jersey City, NJ 07310
Attn: Legal Department
Except as otherwise provided in this Agreement, any
distribution, notice or demand required or authorized by this
Agreement to be given or made by the Company or the Warrant
Agent to or on the Warrant Holders shall be sufficiently given
or made if sent to the Warrant Holders at their last known
addresses as they shall appear on the registration books for
the Warrant Certificates maintained by the Warrant Agent.
21. Supplements and Amendments. The Company and the Warrant Agent may from
time to time supplement or amend this Agreement without the approval
of any Warrant Holders in order to cure any ambiguity or to correct or
supplement any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and
the Warrant Agent may deem necessary or desirable. In furtherance of
the foregoing, the Company may extend the duration of the Exercise
Period, without the consent of the Warrant Holders. No provision of
this Agreement may be amended, modified or waived, except in a written
document signed by the parties hereto. As a condition precedent to the
Warrant Agent's execution of any amendment, the Company shall deliver
to the Warrant Agent a certificate from a duly authorized officer of
the Company that states that the proposed amendment is in compliance
with the terms of this Section 21. The Warrant Agent may, but shall
not be obligated to, enter into any amendment that affects its own
rights, duties, liabilities or obligations hereunder.
22. Successors. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Warrant Agent shall bind and
inure to the benefit of their respective successors and assigns
hereunder.
23. Termination. This Agreement shall terminate at the close of business
on the Expiration Date, or such earlier date upon which all Warrants
have been exercised, provided, however, that if exercise of the
Warrants is suspended and such suspension continues past the
Expiration Date, this Agreement shall terminate at the close of
business on the business day immediately following the expiration of
13
such suspension. The provisions of Sections 16, 24 and 25, and
Sections 27 through 31, shall survive the termination of this
Agreement.
24. Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the
State of Colorado and for all purposes shall be construed in
accordance with the laws of said State except that the rights, duties,
liabilities and obligations of the Warrant Agent under this Agreement
shall be governed by and construed in accordance with the laws of the
state of New York.
25. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give any person or entity other than the Company, the
Warrant Agent or the registered holders of the Warrant Certificates
any legal or equitable right, remedy or claim under this Agreement.
26. Signatures/Counterparts. This Agreement may be executed in any number
of counterparts, including signatures delivered by electronic means
(e.g., PDF or facsimile), and each of such counterparts shall for all
purposes be deemed to be an original and all such counterparts shall
together constitute but one and the same instrument. A signature to
this Agreement transmitted electronically shall have the same
authority, effect, and enforceability as an original signature.
27. Indemnification.
(a) The Company covenants and agrees to indemnify, defend and to hold
the Warrant Agent harmless from and against any costs, expenses
(including the reasonable fees and expenses of its legal counsel),
losses, liabilities, suits, actions, proceedings, judgments, claims,
settlements or damages, which may be paid, incurred or suffered by or
to which it may become subject, arising from or out of, directly or
indirectly, any action taken, suffered or omitted to be taken by the
Warrant Agent in connection with the preparation, delivery,
acceptance, administration, execution or amendment of this Agreement
and the exercise or performance of its duties hereunder, including the
costs and expenses of enforcing its rights hereunder; provided, that
such covenant and agreement does not extend to, and the Warrant Agent
shall not be indemnified with respect to, such liabilities, suits,
actions, proceedings, judgments, claims, settlements, costs, expenses,
losses and damages incurred or suffered by the Warrant Agent as a
result of, or arising out of, its own gross negligence, bad faith, or
willful misconduct (each as determined by a final judgment of a court
of competent jurisdiction).
(b) From time to time, Company may provide Warrant Agent with written
instructions concerning the services performed by the Warrant Agent
hereunder. In addition, at any time Warrant Agent may apply to any
officer of Company for instruction, and may consult with legal counsel
for Warrant Agent (including an employee of the Warrant Agent) or
Company with respect to any matter arising in connection with any
14
matter arising out of or in connection with the services to be
performed by the Warrant Agent under this Agreement. Warrant Agent and
its agents and subcontractors shall not be liable and shall be
indemnified by Company for any action taken or omitted by Warrant
Agent in reliance upon any Company instructions or upon the advice or
opinion of such counsel. Warrant Agent shall not be held to have
notice of any change of authority of any person, until receipt of
written notice thereof from Company.
28. Limitation of Liability. Notwithstanding anything contained herein to
the contrary, the Warrant Agent's aggregate liability during any term
of this Agreement with respect to, arising from, or arising in
connection with this Agreement, or from all services provided or
omitted to be provided under this Agreement, whether in contract, or
in tort, or otherwise, is limited to, and shall not exceed, the
amounts paid hereunder by the Company to Warrant Agent as fees and
charges, but not including reimbursable expenses, during the twelve
(12) months immediately preceding the event for which recovery from
Warrant Agent is being sought.
29. Confidentiality. The Warrant Agent and the Company agree that all
books, records, information and data pertaining to the business of the
other party ("Confidential Information"), including inter alia,
personal, non-public Warrant holder information, which are exchanged
or received pursuant to the negotiation or the carrying out of this
Agreement, including the fees for services set forth in the attached
schedule, shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law,
including, without limitation, pursuant to subpoenas from state or
federal government authorities (e.g., in divorce and criminal
actions). Confidential Information shall not include information that,
at the time of disclosure: (i) is or becomes generally available to
and known by the public other than as a result of, directly or
indirectly, any breach of this Section 29 by such receiving party;
(ii) is or becomes available to the receiving party on a
non-confidential basis from a third-party source, provided that such
third party is not and was not prohibited from disclosing such
Confidential Information; (iii) was known by or in the possession of
the receiving party or its representatives prior to being disclosed by
or on behalf of the disclosing party; (iv) was or is independently
developed by the receiving party without reference to or use of, in
whole or in part, any of the disclosing party's Confidential
Information; or (v) is required to be disclosed pursuant to applicable
federal, state or local law, regulation or a valid order issued by a
court or governmental agency of competent jurisdiction.
30. Force Majeure Term. Notwithstanding anything to the contrary contained
herein, the Warrant Agent will not be liable for any delays or
failures in performance resulting from acts beyond its reasonable
control including, without limitation, acts of God, terrorist acts,
shortage of supply, breakdowns or malfunctions, interruptions or
malfunction of computer facilities, or loss of data due to power
failures or mechanical difficulties with information storage or
retrieval systems, labor difficulties, war, or civil unrest.
15
31. Consequential Damages. Except with respect to indemnification for
third party claims, Neither party to this Agreement shall be liable to
the other party for any consequential, indirect, penal, special or
incidental damages under any provisions of this Agreement or for any
consequential, indirect, penal, special or incidental damages arising
out of any act or failure to act hereunder even if that party has been
advised of or has foreseen the possibility of such damages.
32. Further Assurances. The Company shall perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, documents, instruments and
assurances as may be reasonably required by the Warrant Agent for the
carrying out or performing by the Warrant Agent of the provisions of
this Agreement.
33. Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall
not affect the validity or enforceability of this Agreement or of any
other term or provision hereof; provided, that if such invalid or
unenforceable term affects the rights, duties, obligations or
liabilities of the Warrant Agent, the Warrant Agent shall be entitled
to resign immediately.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by one of its officers thereunto duly authorized as of
the date first written above.
CEL-SCI CORPORATION
By: /s/ Geert Kersten
---------------------------
Name: Geert Kersten
Title: Chief Executive Officer
COMPUTERSHARE INC.
By: /s/ Michael Legregin
---------------------------
Name: Michael Legregin
Title: Manager
COMPUTERSHARE TRUST COMPANY N.A.
By: /s/ Michael Legregin
---------------------------
Name: Michael Legregin
Title: Manager
16
EXHIBIT A
EXHIBIT A
CEL-SCI CORPORATION
WARRANT TERMS
Section 1. Definitions. In addition to the terms defined elsewhere in this
Exhibit A, the following terms have the meanings indicated in this Section 1:
"Affiliate" means any Person that, directly or indirectly through one
or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the
Securities Act.
"Board of Directors" means the board of directors of the Company.
"Business Day" means any day except any Saturday, any Sunday, any day
which is a federal legal holiday in the United States or any day on which
banking institutions in the State of New York are authorized or required by law
or other governmental action to close.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" means the common stock of the Company, par value $0.01
per share, and any other class of securities into which such securities may
hereafter be reclassified or changed.
"Common Stock Equivalents" means any securities of the Company or the
Subsidiaries which would entitle the holder thereof to acquire at any time
Common Stock, including, without limitation, any debt, preferred stock, right,
option, warrant or other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive, Common Stock.
"Company" means CEL-SCI Corporation
"Initial Exercise Date" means April 17, 2014
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Liens" means a lien, charge pledge, security interest, encumbrance,
right of first refusal, preemptive right or other restriction.
"Person" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
1
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended or interpreted from time to time, or
any similar rule or regulation hereafter adopted by the Commission having
substantially the same purpose and effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any subsidiary of the Company and shall, where
applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
"Trading Day" means a day on which the Common Stock is traded on a
Trading Market.
"Trading Market" means any of the following markets or exchanges on
which the Common Stock is listed or quoted for trading on the date in question:
the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq
Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or
any successors to any of the foregoing).
"Transfer Agent" means Computershare Investor Services, the current
transfer agent of the Company, with a mailing address of 350 Indiana Street,
Suite 800 Golden, Colorado 80401 and a facsimile number of (303) 262-0700, and
any successor transfer agent of the Company.
Termination Date" means October 17, 2014.
"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
Holder and reasonably acceptable to the Company, the fees and expenses of which
shall be paid by the Company.
Section 2. Exercise.
a) Exercise of the 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
2
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 in the form
annexed hereto. Within three (3) Trading Days following the date of
exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the shares specified in the applicable Notice of Exercise by wire
transfer or cashier's check drawn on a United States bank unless the
cashless exercise procedure specified in Section 2(c) below is specified in
the applicable Notice of Exercise. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee
or notarization) of any Notice of Exercise form be required.
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
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 within one (1) Business Day of receipt of such notice.
b) Exercise Price. Every four Warrants will entitle the Holder to
purchase one share of Common Stock at a price of $1.58 per share, 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 number of Warrant Shares equal to the quotient
obtained by dividing [(A-B) (X)] by (A x 4), 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.
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
d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall
use best efforts to cause the Warrant Shares purchased hereunder
to be transmitted by the Transfer Agent to the Holder by
crediting the account of the Holder's prime broker with The
Depository Trust Company through its Deposit or Withdrawal at
Custodian system ("DWAC") if the Company is then a participant in
such system and either (A) there is an effective registration
statement permitting the issuance of the Warrant Shares to or
resale of the Warrant Shares by Holder or (B) this Warrant is
being exercised via cashless exercise, and otherwise by physical
delivery to the address specified by the Holder in the Notice of
Exercise by the date that is three (3) Trading Days after the
latest of (A) the delivery to the Company of the Notice of
Exercise and (B) surrender of this Warrant (if required) (such
date, the "Warrant Share Delivery Date"). The Warrant Shares
shall be deemed to have been issued, and Holder or any other
person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of
the date the Warrant has been exercised, with payment to the
Company of the Exercise Price (or by cashless exercise, if
permitted) and all taxes required to be paid by the Holder, if
any, pursuant to Section 2(d)(vi) prior to the issuance of such
shares, having been paid. If the Company fails for any reason to
deliver to the Holder the Warrant Shares subject to a Notice of
Exercise by the Warrant Share Delivery Date, the Company shall
pay to the Holder, in cash, as liquidated damages and not as a
penalty, for each $1,000 of Warrant Shares subject to such
exercise (based on the VWAP of the Common Stock on the date of
the applicable Notice of Exercise), $10 per Trading Day
(increasing to $20 per Trading Day on the fifth Trading Day after
such liquidated damages begin to accrue) for each Trading Day
after such Warrant Share Delivery Date until such Warrant Shares
are delivered or Holder rescinds such exercise.
ii. Delivery of New Warrants Upon Exercise. If this Warrant shall
have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the
time of delivery of the Warrant Shares, deliver to the Holder a
new Warrant evidencing the rights of the Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new
Warrant shall in all other respects be identical with this
Warrant.
iii. Rescission Rights. If the Company fails to cause the
Transfer Agent to transmit to the Holder the Warrant Shares
pursuant to Section 2(d)(i) by the Warrant Share Delivery Date,
then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant
Shares Upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent
4
to transmit to the Holder the Warrant Shares pursuant to an
exercise on or before the Warrant Share Delivery Date, and if
after such date the Holder is required by its broker to purchase
(in an open market transaction or otherwise) or the Holder's
brokerage firm otherwise purchases, 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 (A) pay in cash to the
Holder the amount, if any, 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 (1) the number of Warrant Shares that the
Company was required to deliver to the Holder in connection with
the exercise at issue times (2) the price at which the sell order
giving rise to such purchase obligation was executed, and (B) at
the option of the Holder, either reinstate the portion of the
Warrant and equivalent number of Warrant Shares for which such
exercise was not honored (in which case such exercise shall be
deemed rescinded) or 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
hereunder. 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
an aggregate sale price giving rise to such purchase obligation
of $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 and,
upon request of the Company, evidence of the amount of such loss.
Nothing herein shall limit a Holder's right to pursue any other
remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company's failure to
timely deliver shares of Common Stock upon exercise of the
Warrant as required pursuant to the terms hereof.
v. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder
would otherwise be entitled to purchase upon such exercise, the
Company shall, at its election, either pay a cash adjustment in
respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price or round up to the next
whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall
be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of
such Warrant Shares, all of which taxes and expenses shall be
5
paid by the Company, and such Warrant Shares shall be issued in
the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event
Warrant Shares are to be issued in a name other than the name of
the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed
by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any
transfer tax incidental thereto. The Company shall pay all
Transfer Agent fees required for same-day processing of any
Notice of Exercise.
vii. Closing of Books. The Company will not close its stockholder
books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e) Holder's Exercise Limitations. The Company shall not effect any
exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the
extent that after giving effect to such issuance after exercise as set
forth on the applicable Notice of Exercise, the Holder (together with the
Holder's Affiliates, and any other Persons acting as a group together with
the Holder or any of the Holder's Affiliates), would beneficially own in
excess of the Beneficial Ownership Limitation (as defined below). For
purposes of the foregoing sentence, the number of shares of Common Stock
beneficially owned by the Holder and its Affiliates shall include the
number of shares of Common Stock issuable upon exercise of this Warrant
with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i)
exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates and (ii) exercise
or conversion of the unexercised or nonconverted portion of any other
securities of the Company (including, without limitation, any other Common
Stock Equivalents) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates. Except as set forth in the preceding
sentence, for purposes of this Section 2(e), beneficial ownership shall be
calculated in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder, it being acknowledged by the
Holder that the Company is not representing to the Holder that such
calculation is in compliance with Section 13(d) of the Exchange Act and the
Holder is solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained in this
Section 2(e) applies, the determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder together
with any Affiliates) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a
Notice of Exercise shall be deemed to be the Holder's determination of
whether this Warrant is exercisable (in relation to other securities owned
by the Holder together with any Affiliates) and of which portion of this
Warrant is exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Company shall have no obligation to verify or confirm
the accuracy of such determination. In addition, a determination as to any
group status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of
outstanding shares of Common Stock, a Holder may rely on the number of
outstanding shares of Common Stock as reflected in (A) the Company's most
recent periodic or annual report filed with the Commission, as the case may
be, (B) a more recent public announcement by the Company or (C) a more
recent written notice by the Company or the Transfer Agent setting forth
the number of shares of Common Stock outstanding. Upon the written or oral
request of a Holder, the Company shall within two Trading Days confirm
6
orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or exercise
of securities of the Company, including this Warrant, by the Holder or its
Affiliates since the date as of which such number of outstanding shares of
Common Stock was reported. The "Beneficial Ownership Limitation" shall be
4.99% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon
exercise of this Warrant. The Holder, upon not less than 61 days' prior
notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of
the Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock upon exercise of this Warrant held by
the Holder and the provisions of this Section 2(e) shall continue to apply.
Any such increase or decrease will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2(e) to correct this
paragraph (or any portion hereof) which may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect
to such limitation. The limitations contained in this paragraph shall apply
to a successor holder of this Warrant.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this
Warrant is outstanding: (i) pays a stock dividend or otherwise makes a
distribution or distributions on shares of its Common Stock or any other
equity or equity equivalent securities payable in shares of Common Stock
(which, for avoidance of doubt, shall not include any shares of Common
Stock issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii)
combines (including by way of reverse stock split) outstanding shares of
Common Stock into a smaller number of shares, or (iv) issues by
reclassification of shares of the Common Stock any shares of capital stock
of the Company, then in each case 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 immediately before
such event and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately
adjusted such that the aggregate Exercise Price of this Warrant shall
remain unchanged. Any adjustment made pursuant to this Section 3(a) 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, combination or re-classification.
b) [RESERVED]
c) Subsequent Rights Offerings. In addition to any adjustments
pursuant to Section 3(a) above, if at any time the Company grants, issues
or sells any Common Stock Equivalents or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of
7
any class of shares of Common Stock (the "Purchase Rights"), then the
Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of shares of Common Stock
acquirable upon complete exercise of this Warrant (without regard to any
limitations on exercise hereof, including without limitation, the
Beneficial Ownership Limitation) immediately before the date on which a
record is taken for the grant, issuance or sale of such Purchase Rights,
or, if no such record is taken, the date as of which the record holders of
shares of Common Stock are to be determined for the grant, issue or sale of
such Purchase Rights (provided, however, to the extent that the Holder's
right to participate in any such Purchase Right would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be
entitled to participate in such Purchase Right to such extent (or
beneficial ownership of such shares of Common Stock as a result of such
Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right
thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
d) Pro Rata Distributions. During such time as this Warrant is
outstanding, if the Company shall declare or make any dividend or other
distribution of its assets (or rights to acquire its assets) to holders of
shares of Common Stock, by way of return of capital or otherwise
(including, without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off,
reclassification, corporate rearrangement, scheme of arrangement or other
similar transaction) (a "Distribution"), at any time after the issuance of
this Warrant, then, in each such case, the Holder shall be entitled to
participate in such Distribution to the same extent that the Holder would
have participated therein if the Holder had held the number of shares of
Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation,
the Beneficial Ownership Limitation) immediately before the date of which a
record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be
determined for the participation in such Distribution (provided, however,
to the extent that the Holder's right to participate in any such
Distribution would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such
Distribution to such extent (or in the beneficial ownership of any shares
of Common Stock as a result of such Distribution to such extent) and the
portion of such Distribution shall be held in abeyance for the benefit of
the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation).
e) Fundamental Transaction. If, at any time while this Warrant is
outstanding, (i) the Company, directly or indirectly, in one or more
related transactions effects any merger or consolidation of the Company
with or into another Person, (ii) the Company, directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other
disposition of all or substantially all of its assets in one or a series of
related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is
completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and
has been accepted by the holders of 50% or more of the outstanding Common
Stock, (iv) the Company, directly or indirectly, in one or more related
transactions effects any reclassification, reorganization or
recapitalization of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property, or (v) the Company,
directly or indirectly, in one or more related transactions consummates a
stock or share purchase agreement or other business combination (including,
8
without limitation, a reorganization, recapitalization, spin-off or scheme
of arrangement) with another Person or group of Persons whereby such other
Person or group acquires more than 50% of the outstanding shares of Common
Stock (not including any shares of Common Stock held by the other Person or
other Persons making or party to, or associated or affiliated with the
other Persons making or party to, such stock or share purchase agreement or
other business combination) (each a "Fundamental Transaction"), then, upon
any subsequent exercise of this Warrant, the Holder shall have the right to
receive, for each Warrant Share that would have been issuable upon such
exercise immediately prior to the occurrence of such Fundamental
Transaction, at the option of the Holder (without regard to any limitation
in Section 2(e) on the exercise of this Warrant), the number of shares of
Common Stock of the successor or acquiring corporation or of the Company,
if it is the surviving corporation, and any additional consideration (the
"Alternate Consideration") receivable as a result of such Fundamental
Transaction by a holder of the number of shares of Common Stock for which
this Warrant is exercisable immediately prior to such Fundamental
Transaction (without regard to any limitation in Section 2(e) on the
exercise of this Warrant). For purposes of any such exercise, the
determination of the Exercise Price shall be appropriately adjusted to
apply to such Alternate Consideration based on the amount of Alternate
Consideration issuable in respect of one share of Common Stock in such
Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder
shall be given the same choice as to the Alternate Consideration it
receives upon any exercise of this Warrant following such Fundamental
Transaction. Notwithstanding anything to the contrary, in the event of a
Fundamental Transaction that is (1) an all cash transaction, (2) a "Rule
13e-3 transaction" as defined in Rule 13e-3 under the Exchange Act, or (3)
a Fundamental Transaction involving a person or entity not traded on a
national securities exchange, including, but not limited to, the NYSE MKT,
the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq
Capital Market, the Company or any Successor Entity (as defined below)
shall, at the Holder's option, exercisable at any time concurrently with,
or within 30 days after, the consummation of the Fundamental Transaction,
purchase this Warrant from the Holder by paying to the Holder an amount of
cash equal to the Black Scholes Value of the remaining unexercised portion
of this Warrant on the date of the consummation of such Fundamental
Transaction. "Black Scholes Value" means the value of this Warrant based on
the Black and Scholes Option Pricing Model obtained from the "OV" function
on Bloomberg, L.P. ("Bloomberg") determined as of the day of consummation
of the applicable Fundamental Transaction for pricing purposes and
reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury
rate for a period equal to the time between the date of the public
announcement of the applicable Fundamental Transaction and the Termination
Date, (B) an expected volatility equal to the greater of 100% and the 100
day volatility obtained from the HVT function on Bloomberg as of the
Trading Day immediately following the public announcement of the applicable
Fundamental Transaction, (C) the underlying price per share used in such
9
calculation shall be the sum of the price per share being offered in cash,
if any, plus the value of any non-cash consideration, if any, being offered
in such Fundamental Transaction and (D) a remaining option time equal to
the time between the date of the public announcement of the applicable
Fundamental Transaction and the Termination Date. The Company shall cause
any successor entity in a Fundamental Transaction in which the Company is
not the survivor (the "Successor Entity") to assume in writing all of the
obligations of the Company under this Warrant and the other Transaction
Documents in accordance with the provisions of this Section 3(e) pursuant
to written agreements in form and substance reasonably satisfactory to the
Holder and approved by the Holder (without unreasonable delay) prior to
such Fundamental Transaction and shall, at the option of the Holder,
deliver to the Holder in exchange for this Warrant a security of the
Successor Entity evidenced by a written instrument substantially similar in
form and substance to this Warrant which is exercisable for a corresponding
number of shares of capital stock of such Successor Entity (or its parent
entity) equivalent to the shares of Common Stock acquirable and receivable
upon exercise of this Warrant (without regard to any limitations on the
exercise of this Warrant) prior to such Fundamental Transaction, and with
an exercise price which applies the exercise price hereunder to such shares
of capital stock (but taking into account the relative value of the shares
of Common Stock pursuant to such Fundamental Transaction and the value of
such shares of capital stock, such number of shares of capital stock and
such exercise price being for the purpose of protecting the economic value
of this Warrant immediately prior to the consummation of such Fundamental
Transaction), and which is reasonably satisfactory in form and substance to
the Holder. Upon the occurrence of any such Fundamental Transaction, the
Successor Entity shall succeed to, and be substituted for , the Company (so
that from and after the date of such Fundamental Transaction, the
provisions of this Warrant and the other Transaction Documents referring to
the "Company" shall refer instead to the Successor Entity), and the
Successor Entity may exercise every right and power of the Company and
shall assume all of the obligations of the Company under this Warrant and
the other Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein.
f) Calculations. All calculations under this Section 3 shall be made
to the nearest cent or the nearest 1/100th of a share, as the case may be.
For purposes of this Section 3, the number of shares of Common Stock deemed
to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued
and outstanding.
g) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is
adjusted pursuant to any provision of this Section 3, the Company
shall promptly mail to the Holder a notice setting forth the
Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief
statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall
declare a dividend (or any other distribution in whatever form)
on the Common Stock, (B) the Company shall declare a special
nonrecurring cash dividend on or a redemption of the Common
Stock, (C) 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, (D) the approval of any stockholders of the Company shall
10
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 (E) the Company shall authorize the voluntary or
involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be
mailed to the Holder at its last address as it shall appear upon
the Warrant Register of the Company, at least 20 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, rights or warrants, or if a record is not to be
taken, the date as of which the holders of the 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
the Common Stock of record shall be entitled to exchange their
shares of the Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger,
sale, transfer or share exchange; provided 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. To the extent that any notice
provided hereunder constitutes, or contains, material, non-public
information regarding the Company or any of the Subsidiaries, the
Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to exercise this Warrant during the period commencing on
the date of such notice to the effective date of the event
triggering such notice except as may otherwise be expressly set
forth herein.
Section 4. Transfer of Warrant.
a) Transferability. This Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or
in part, upon surrender of this Warrant at the principal office of the
Company or its designated agent, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by the
Holder or its agent or attorney and funds sufficient to pay any transfer
taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in
the denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing the
portion of this Warrant not so assigned, and this Warrant shall promptly be
cancelled. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company
unless the Holder has assigned this Warrant in full, in which case, the
Holder shall surrender this Warrant to the Company within three (3) Trading
11
Days of the date the Holder delivers an assignment form to the Company
assigning this Warrant full. The Warrant, if properly assigned in
accordance herewith, may be exercised by a new holder for the purchase of
Warrant Shares without having a new Warrant issued.
b) New Warrants. This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in
which new Warrants are to be issued, signed by the Holder or its agent or
attorney. Subject to compliance with Section 4(a), as to any transfer which
may be involved in such division or combination, the Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant or
Warrants to be divided or combined in accordance with such notice. All
Warrants issued on transfers or exchanges shall be dated the initial
issuance date set forth on the first page of this Warrant and shall be
identical with this Warrant except as to the number of Warrant Shares
issuable pursuant thereto.
c) Warrant Register. 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, absent actual
notice to the contrary.
Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise. This Warrant does not
entitle the Holder to any voting rights, dividends or other rights as a
stockholder of the Company prior to the exercise hereof as set forth in
Section 2(d)(i), except as expressly set forth in Section 3.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant or any stock certificate relating to the Warrant Shares, and in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such
Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of
such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then, such action may be taken or such
right may be exercised on the next succeeding Business Day.
d) Authorized Shares. The Company covenants that, during the period
the Warrant is outstanding, it will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the
issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the
necessary Warrant Shares upon the exercise of the purchase rights under
this Warrant. The Company will take all such reasonable action as may be
necessary to assure that such Warrant Shares may be issued as provided
12
herein without violation of any applicable law or regulation, or of any
requirements of the Trading Market upon which the Common Stock may be
listed. The Company covenants that all Warrant Shares which may be issued
upon the exercise of the purchase rights represented by this Warrant will,
upon exercise of the purchase rights represented by this Warrant and
payment for such Warrant Shares in accordance herewith, be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes, liens
and charges created by the Company in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such
issue).
Except and to the extent as waived or consented to by the Holder, the
Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary 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 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 Holder as set forth in this Warrant against impairment. Without
limiting the generality of the foregoing, the Company will (i) not increase
the par value of any Warrant Shares above the amount payable therefor upon
such exercise immediately prior to such increase in par value, (ii) take
all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof, as
may be, necessary to enable the Company to perform its obligations under
this Warrant.
Before taking any action which would result in an adjustment in the
number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any
public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction. All 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 conflict of laws thereof.
Each party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by any of the
Transaction Documents (whether brought against a party hereto or its
respective Affiliates, directors, officers, shareholders, employees or
agents) shall be commenced in the state and federal courts sitting in the
City of New York, Borough of Manhattan (the "New York Courts"). Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the New
York Courts for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the
jurisdiction of such New York Courts, or such New York Courts are improper
or inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under
this Warrant and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other
13
manner permitted by applicable law. Each party hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating
to this Warrant or the transactions contemplated hereby. If any party shall
commence an action or proceeding to enforce any provisions of this Warrant,
then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its attorneys' fees and other costs and expenses
incurred in the investigation, preparation and prosecution of such action
or proceeding.
f) Restrictions. The Holder acknowledges that the Warrant Shares
acquired upon the exercise of this Warrant, if not registered, and the
Holder does not utilize cashless exercise, will have restrictions upon
resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice the Holder's rights,
powers or remedies. Without limiting any other provision of this Warrant or
the Purchase Agreement, if the Company willfully and knowingly fails to
comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as
shall be sufficient to cover any costs and expenses including, but not
limited to, reasonable attorneys' fees, including those of appellate
proceedings, incurred by the Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
h) Reserved.
i) Limitation of Liability. No provision hereof, in the absence of any
affirmative action by the Holder to exercise this Warrant to purchase
Warrant Shares, and no enumeration herein of the rights or privileges of
the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Company agrees
that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and
hereby agrees to waive and not to assert the defense in any action for
specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this
Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
Company and the successors and permitted assigns of Holder. The provisions
of this Warrant are intended to be for the benefit of any Holder from time
to time of this Warrant and shall be enforceable by the Holder or holder of
Warrant Shares.
l) Reserved.
m) Severability. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by
14
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience
of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
15
EXHIBIT B
Warrant Warrant
THIS CERTIFICATE IS TRANSFERABLE IN CANTON,
MA, JERSEY CITY, NJ AND COLLEGE STATION TX
Certificate Number
---------------
CEL-SCI
Empowering Immune Defense
SERIES T WARRANTS
CEL-SCI CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF COLORADO
THIS CERTIFIES THAT ____________________________________ CUSIP 150837 185
SEE REVERSE FOR CERTAIN DETAILS
or registered assigns, is the registered holders of the number of Series T
Warrants ("Warrants") set forth above. Every four Warrants entitles the holder
thereof to purchase from CEL-SCI Corporation, a corporation incorporated under
the laws of Colorado (the "Company"), subject to the terms and conditions set
forth hereinafter and in the Warrant Agent Agreement between the Company,
Computershare Inc., and Computershare Trust Company N.A.(collectively "the
Warrant Agent") ("the Warrant Agreement"), at any time on before 5:00 P.M.,
Mountain time, on October 17, 2014 ("Expiration Date"), one fully paid and
non-assessable share(s) of Common Stock, of the Company ("Common Stock") upon
presentation and surrender of this Warrant Certificate, with the completed
instructions for the registration and delivery of Common Stock, at the office of
the Warrant Agent or of its successor warrant agent or, if there be no successor
warrant agent, at the corporation offices of the Company, and upon payment of
the Exercise Price(as defined in the Warrant Agreement) and any applicable taxes
paid either in cash, or by certified or official bank check, payable in lawful
money of the United States of America to the order of Computershare Inc. Every
four Warrants initially entitles the holder to purchase one share of Common
Stock for $1.58. The number and kinds of securities or other property for which
the Warrants are exercisable are subject to adjustment in certain events, such
as mergers, stock splits, stock dividends, reverse splits and the like, to
prevent dilution. The Company may, in its sole discretion, (i) extend the
Expiration Date by providing not less than 10 days' prior notice, or (ii) lower
the Exercise Price at any time prior to the Expiration Date.
Maximilian de Clara Dated _____________
------------------------
President SEAL COUNTERSIGNED AND REGISTERED:
CEL-SCI CORPORATION COMPUTERSHARE TRUST COMPANY, N.A.
COLORADO TRANSFER AGENT AND REGISTRAR.
Geert R. Kersten
--------------------
Chief Executive Officer By
--------------------------
AUTHORIZED SIGNATURE
CEL-SCI CORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____________________ Custodian ___________________
(Cust) (Minor)
under Uniform Gifts to Minors Act _________________
(state)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right or survivorship UNIF TRF MIN ACT - _____________________ Custodian (until age) _______
(Cust) (Minor)
And not as tenants in common
Under Uniform Transfers to Minors Act ___________________
(State)
Additional abbreviations may also be used though not in the above list.
----------------------------------------------------------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________
/ /
____________________________________________________
For value received, _____________________ hereby sell, assign and transfer
unto
________________________________________________________
________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING
POSTAL ZIP CODE, OF ASSIGNEE)
WARRANTS
--------------------------------------------------------------------
-------------------------------------------------------------------- represented
by the within Certificate, and do hereby irrevocably constitute and appoint
--------------------------------------------------------------------
to transfer the said warrants on the books of the within-named Corporation with
full power of substitution in the premises.
Dated:
----------------------------------------------------- 20___
Signature:
-------------------------------------------------------
Signature:
-------------------------------------------------------
Notice: The signature to this assignment must correspond with the
name as written upon the face of the certificate, in every
particular, without alternation or enlargement, or any
change whatever.
Signature(s) Guaranteed: Medallion Guarantee Stamp