REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of December 22, 1997, (the
"Agreement"), is made by and between CEL-SCI CORPORATION, a Colorado
corporation, 66 Canal Center Plaza, Suite 510, Alexandria, Virginia 22314 (the
"Company"), and the undersigned investors (the "Initial Investors").
W I T N E S S E T H :
WHEREAS, in connection with the Securities Purchase Agreement dated
December 22, 1997 among the Initial Investors and the Company (the "Purchase
Agreement"), the Company has agreed, upon the terms and subject to the
conditions of said Purchase Agreement, to issue and sell to the Initial
Investors Ten Thousand (10,000) shares of Series D Convertible Preferred Stock
(the "Preferred Shares") of the Company, convertible into shares of common stock
of the Company par value $0.01 per share (the "Common Stock"), together with
Warrants to purchase additional shares of Common Stock. The shares of Common
Stock into which the Preferred Shares are convertible and the shares of Common
Stock into which the Warrants are exercisable are collectively referred to
herein as the "Registrable Shares." In connection with the sale of the
Registrable Shares to the Initial Investors (the "Offering"), each of such
investors will be entitled to registration rights as set forth in this
Agreement.
WHEREAS, to induce the Initial Investors to execute and deliver the
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws with respect to the
Registrable Shares;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Initial
Investors hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Purchase Agreement.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Holders" are stockholders of the Company who, by virtue of
agreements with the Company, are entitled to include their securities in certain
Registration Statements filed by the Company.
(b) "Investors" means the Initial Investors and any transferee or
assignee of the Initial Investors who agree to become bound by the provisions of
this Agreement in accordance with Section 9 hereof.
(c) "Registrable Securities" means the Registrable Shares, together
with any shares of Common Stock or other securities which may be issued as a
dividend or other distribution or in exchange for Registrable Shares and any
additional shares of Common Stock or other securities which may be issued due to
anti-dilution adjustments with respect to the Registrable Shares, which are
required to be included in a Registration Statement pursuant to Section 2(a)
below.
(d) "Registration Period" means the period between the date of this
Agreement and the earlier of (i) the date on which all of the Registrable
Securities (including all shares of Common Stock into which the Warrants are
exercisable) have been sold in transactions where the transferee is not subject
to securities law resale restrictions (or is subject to securities law resale
restrictions solely because it is an "affiliate" of the Company under the
Securities Act and the Rules promulgated thereunder), or (ii) the date on which
the Registrable Securities (in the opinion of Investors' counsel) may be
immediately sold without registration and free of restrictions on transfer under
Rule 144k or otherwise.
(e) "Registration Statement" means a registration statement of the
Company filed with the Securities and Exchange Commission (the "SEC") under the
Securities Act.
(f) The terms "register," "registered," and "registration" refer to
a registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act and applicable rules and regulations
thereunder and pursuant to Rule 415 under the Securities Act, and the
declaration or ordering of effectiveness of such Registration Statement by the
SEC.
(g) "AMEX Limit" means 2,243,782 shares of Common Stock, unless the
Company has obtained shareholder approval to issue a greater number of common
shares or has otherwise received a waiver from AMEX to such effect. If the
Company has obtained such shareholder approval or waiver, then the limit shall
not apply.
2. Registration.
(a) Mandatory Registration. The Company will prepare and file a
Registration Statement on Form S-3 with the SEC, registering all of the
Registrable Securities for resale promptly following the closing of the purchase
of the Preferred Shares and the Warrants (the "Closing Date") and in any event,
not later than twenty five (25) days after the Closing Date. To the extent
allowable under the Securities Act and the Rules promulgated thereunder, the
Registration Statement shall include the Registrable Securities and such
indeterminate number of additional shares of Common Stock as may become issuable
upon conversion of the Preferred Shares and exercise of the Warrants (i) to
prevent dilution resulting from stock splits, stock dividends or similar
transactions, or (ii) by reason of changes in the exercise price of the Warrants
in accordance with the terms thereof or the conversion price of the Preferred
Shares. The number of shares of Common Stock initially included in such
Registration Statement shall include no less than 125% of the number of
Registrable Securities that are issued on the Closing Date and issuable upon
exercise of the Warrants as of the Closing Date. The Registration Statement (and
each amendment or supplement thereto) shall be provided to, and subject to the
reasonable approval of, the Initial Investors and their counsel. The Company
shall use its best efforts to cause such Registration Statement to be declared
effective by the SEC as soon as practicable after filing and in any event no
later than sixty (60) days after the Closing Date or, if the Company is notified
by the SEC that the Registration Statement will be reviewed, one hundred twenty
(120) days after the Closing Date (either such date, as applicable, the
"Required Effective Date"). Such best efforts shall include, but not be limited
to, promptly responding to all comments received from the staff of the SEC.
Should the Company receive notification from the SEC that the Registration
Statement will receive no action or no review from the SEC, the Company shall
cause such Registration Statement to become effective within five (5) business
days of such SEC notification. Once declared effective by the SEC, the Company
shall cause such Registration Statement to remain effective throughout the
Registration Period.
(b) Piggyback Registrations. If, at any time prior to the expiration
of the Registration Period, the Company decides to register any of its
securities for its own account or for the account of others (excluding
registrations relating to equity securities to be issued solely in connection
with an acquisition of any entity or business or in connection with stock option
or other employee benefit plans), the Company will promptly give the Investors
written notice thereof, and will use its best efforts to include in such
registration all or any part of the Registrable Securities so requested by such
Investors (excluding any Registrable Securities previously included in a
Registration Statement). Each Investor's request for registration must be given
to the Company in writing within ten (10) days after receipt of the notice from
the Company. If the registration for which the Company gives notice is a public
offering involving an underwriting, the Company will so advise the Investors as
part of the above-described written notice. In such event, if the managing
underwriter(s) of the public offering impose a limitation on the number of
shares of Common Stock which may be included in the Registration Statement
because, in such underwriter(s)' judgment, such limitation would be necessary to
effect an orderly public distribution, then the Company will be obligated to
include only such limited portion, if any, of the Registrable Securities with
respect to which such Investors have requested inclusion hereunder. Any
exclusion of Registrable Securities shall be made pro-rata among all Holders of
the Company's securities seeking to include shares of Common Stock in proportion
to the number of shares of Common Stock sought to be included by such Holders;
provided, however, that the Company will not exclude any Registrable Securities
unless the Company has first excluded all outstanding securities the Holders of
which are not entitled by right to inclusion of securities in such Registration
Statement.
No right to registration of Registrable Securities under this Section 2(b) shall
be construed to limit in any way the registration required under Section 2(a)
above. The obligations of the Company under this Section 2(b) will expire upon
the earlier of: (i) the effectiveness of the Registration Statement filed
pursuant to Section 2(a) above; (ii) after the Company has afforded the
opportunity for the Investors to exercise registration rights under this Section
2(b) for two registrations; provided, however, that any Investor who shall have
had any Registrable Securities excluded from any Registration Statement in
accordance with this Section 2(b) shall be entitled to include in any additional
Registration Statement filed by the Company the Registrable Securities so
excluded; or (iii) when all of the Registrable Securities held by any Investor
may be sold by such Investor under Rule 144 under the 1933 Act without being
subject to any volume restrictions.
(c) Late Registration Payments. If the Registration Statement
required pursuant to Section 2(a) above has not been declared effective by the
Required Effective Date, or if after the Registration Statement has been
declared effective by the SEC sales cannot be made pursuant to the Registration
Statement (whether because of failure to keep effective, to disclose such
information as is necessary for sales to be made pursuant to the Registration
Statement, to register sufficient shares, subject to the AMEX limit, or
otherwise) the Company will make cash payments to the Investor as partial
compensation for such delay (the "Late Registration Payments"). The Late
Registration Payments will be equal to one percent (1%) of the purchase price
paid for the Common Shares for the first month following the Required Effective
Date, two percent (2%) of the purchase price paid for the Common Shares for the
second month, and three percent (3%) of said purchase price for each month
thereafter, continuing through the date the Registration Statement is declared
effective by the SEC. The Late Registration Payments will be prorated on a daily
basis for partial months and will be paid to the Initial Investors in cash
within five (5) business days following the earlier of: (i) the end of each
month following the Required Effective Date, or (ii) the effective date of the
Registration Statement. Nothing herein shall limit the Investor's right to
pursue actual damages for the Company's failure to file a Registration Statement
or to have it declared effective by the SEC on or prior to the Required
Effective Date in accordance with the terms of this Agreement.
(d) Eligibility for Form S-3. The Company represents and warrants
that it meets the requirements for the use of Form S-3 for registration of the
sale by the Initial Investors of the Registrable Securities, and the Company
shall file all reports required to be filed by the Company with the SEC in a
timely manner so as to maintain such eligibility for the use of Form S-3.
3. Additional Obligations of the Company. In connection with the
registration of the Registrable Securities, the Company shall have the following
additional obligations:
(a) The Company shall keep the Registration Statement required by
Section 2(a) hereof effective pursuant to Rule 415 under the Securities Act at
all times during the Registration Period as defined in Section 1(d) above.
(b) The Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the Company
shall not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading.
The Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective at all times during the
Registration Period, and, during such period, shall comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities of the Company covered by the Registration Statement until such time
as all of such Registrable Securities have been disposed of in accordance with
the intended methods of disposition by the sellers thereof as set forth in the
Registration Statement. In the event the number of shares of Common Stock
included in a Registration Statement filed pursuant to this Agreement is
insufficient to cover all of the Registrable Securities, the Company shall
amend, if permissible, the Registration Statement and/or file a new Registration
Statement so as to cover all of the Registrable Securities as soon as
practicable, but in no event more than twenty (20) business days after the
Company first determines (or reasonably should have determined) the need
therefor. The Company shall use its best efforts to cause such amendment and/or
new Registration Statement to become effective as soon as practicable following
the filing thereof. The Late Registration Payment provisions of Section 2(c)
above shall become applicable with respect to the effectiveness
of such amendment and/or new Registration Statement, only with respect to the
shares to be included in such amendment and/or Registration Statement and only
to the extent of the AMEX Limit, on the thirtieth (30th) day following the date
the Company first determines (or reasonably should have determined) the need for
the amendment and/or new Registration Statement.
(c) The Company shall furnish to each Investor whose Registrable
Securities are included in the Registration Statement (i) promptly after the
same is prepared and publicly distributed, filed with the SEC or received by the
Company, one copy of the Registration Statement and any amendment thereto; each
preliminary prospectus and final prospectus and each amendment or supplement
thereto; and, in the case of the Registration Statement required under Section
2(a) above, each letter written by or on behalf of the Company to the SEC and
each item of correspondence from the SEC, in each case relating to such
Registration Statement (other than any portion of any item thereof which
contains information for which the Company has sought confidential treatment);
and (ii) such number of copies of a prospectus, including a preliminary
prospectus, and all amendments and supplements thereto, and such other documents
as such Investor may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by such Investor.
(d) The Company shall use its best efforts to (i) register and
qualify the Registrable Securities covered by the Registration Statement under
such other securities or blue sky laws of such jurisdictions as the Investors
reasonably request, (ii) prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations as
may be necessary to maintain the effectiveness thereof during the Registration
Period, (iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the Registration
Period, and (iv) take all other actions reasonably necessary or advisable to
qualify the Registrable Securities for sale in such jurisdictions.
Notwithstanding the foregoing provision, the Company shall not be required in
connection therewith or as a condition thereto to (i) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any such
jurisdiction, (iv) provide any undertakings that cause more than nominal expense
or burden to the Company, or (v) make any change in its charter or bylaws, which
in each case the Board of Directors of the Company determines to be contrary to
the best interests of the Company and its stockholders.
(e) In the event Investors who hold a majority in interest of the
Registrable Securities being offered in an offering select underwriters for such
offering, the Company shall enter into and perform its obligations under an
underwriting agreement in usual and customary form including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering. The Investors participating in any such
underwriting shall be responsible for payment of the fees of such underwriters
and the attorney fees and costs incurred by one law firm selected by such
Investors to represent their interests in the underwritten offering. No Investor
shall be obligated to participate in any such underwriting. In the event the
Investors select underwriters for the Offering, the Company shall not be
responsible for any delays in the filing or effectiveness of the Registration
Statement caused by such underwriters (including the payment of any amounts with
respect to such late filing or effectiveness).
(f) The Company shall notify each Investor who holds Registrable
Securities being sold pursuant to a Registration Statement of the happening of
any event of which the Company has knowledge as a result of which the prospectus
included in the Registration Statement as then in effect includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (a "Suspension Event").
The Company shall make such notification as promptly as practicable after the
Company becomes aware of such Suspension Event, shall promptly, but in all
events within five (5) business days, use its best efforts to prepare a
supplement or amendment to the Registration Statement to correct such untrue
statement or omission, and shall deliver a number of copies of such supplement
or amendment to each Investor as such Investor may reasonably request.
Notwithstanding the foregoing provision, the Company shall not be required to
maintain the effectiveness of the Registration Statement or to amend or
supplement the Registration Statement for a period (a "Delay Period") expiring
upon the earlier to occur of (i) the date on which such material information is
disclosed to the public or ceases to be material, (ii) the date on which the
Company is able to comply with its disclosure obligations and SEC requirements
related thereto, or (iii) thirty (30) days after the occurrence of the
Suspension Event; provided, however,
that there shall not be more than two Delay Periods in any twelve (12) month
period. In the event that the aggregate number of days in all Delay Period(s)
taken together within a twelve-month period exceeds forty-five (45) days, or in
the event that there are more than two Delay Periods in any twelve-month period,
regardless of duration, the Company shall compensate the Investors for such
delay by making monthly cash payments, prorated on a daily basis, to each such
Investor of one percent (1%) of the purchase price paid for the Registrable
Shares still held by such Investor at such time for the first month of a
Suspension Event, two percent (2%) of the purchase price paid for the
Registrable Shares held by such Investor for the second month, and three percent
(3%) of said purchase price for each month thereafter, continuing through the
date the Delay Period ceases (the "Delay Compensation"). The Delay Compensation
will begin to accrue on the thirty-first (31st) day falling within one or more
Suspension Events in any twelve-month period (or on the first day of any Delay
Period in excess of the first two Delay Periods) and will be payable thirty days
from that date and each thirty days thereafter until the Registration Statement
is brought effective. Notwithstanding the foregoing, no Delay Compensation will
be due if any Delay Period is a result of actions taken or information provided
by an Investor or the review of any Registration Statement or prospectus by any
attorneys or inspectors representing an Investor.
(g) The Company shall use its best efforts to prevent the issuance
of any stop order or other suspension of effectiveness of a Registration
Statement and, if such an order is issued, shall use its best efforts to obtain
the withdrawal of such order at the earliest possible time and to notify each
Investor who holds Registrable Securities being sold (or, in the event of an
underwritten offering, the managing underwriters) of the issuance of such order
and the resolution thereof.
(h) The Company shall permit a single firm of counsel designated by
the Investors who hold a majority in interest of the Registrable Securities
being sold pursuant to such registration to review the Registration Statement
and all amendments and supplements thereto (as well as all requests for
acceleration or effectiveness thereof) a reasonable period of time prior to
their filing with the SEC, and shall not file any document in a form to which
such counsel reasonably objects. The Investors shall be responsible for payment
of the fees of such counsel.
(i) The Company shall make generally available to its security
Holders as soon as practical, but not later than ninety (90) days after the
close of the period covered thereby, an earnings statement (in a form complying
with the provisions of Rule 158 under the Securities Act) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter following the effective date of the Registration Statement.
(j) At the request of any Investor who holds Registrable Securities
being sold pursuant to such registration, the Company shall furnish on the date
that Registrable Securities are delivered to an underwriter for sale in
connection with the Registration Statement (i) a letter, dated such date, from
the Company's independent certified public accountants in form and substance as
is customarily given by independent certified public accountants to underwriters
in an underwritten public offering, addressed to the Investors; and (ii) an
opinion, dated such date, from counsel representing the Company for purposes of
such Registration Statement, in form and substance as is customarily given in an
underwritten public offering, addressed to the underwriters and Investors.
(k) The Company shall make available for inspection by any Investor
whose Registrable Securities are being sold pursuant to such registration, any
underwriter participating in any disposition pursuant to the Registration
Statement, and any attorney, accountant or other agent retained by any such
Investor or underwriter (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary to
enable each Inspector to exercise its due diligence responsibility, and cause
the Company's officers, directors and employees to supply all information which
any Inspector may reasonably request for purposes of such due diligence;
provided, however, that each Inspector shall hold in confidence and shall not
make any disclosure (except to an Investor) of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in any
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court or government body of competent
jurisdiction, or such release is reasonably necessary in connection with
litigation or other legal process or (iii) the information in such Records has
been made generally available to the public other than by disclosure in
violation of this or any other agreement. The Company shall not be required to
disclose any confidential information in such Records to any Inspector until and
unless such Inspector shall have entered into confidentiality agreements (in
form and substance satisfactory to the Company) with the Company with respect
thereto, substantially in the form of this Section 3(k). Each Investor agrees
that it shall, upon learning that disclosure of such Records is sought in or by
a court or governmental body of competent jurisdiction or through other means,
give prompt notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, the Records deemed confidential. Nothing herein shall be
deemed to limit the Investor's ability to sell Registrable Securities in a
manner which is otherwise consistent with applicable laws and regulations.
(l) The Company shall hold in confidence and shall not make any
disclosure of information concerning an Investor provided to the Company
pursuant hereto unless (i) disclosure of such information is necessary to comply
with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration
Statement, (iii) the release of such information is ordered pursuant to a
subpoena or other order from a court or governmental body of competent
jurisdiction, or such release is reasonably necessary in connection with
litigation or other legal process or (iv) such information has been made
generally available to the public other than by disclosure in violation of this
or any other agreement. The Company agrees that it shall, upon learning that
disclosure of such information concerning an Investor is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt notice to such Investor and allow such Investor, at its expense, to
undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
(m) The Company shall use its best efforts either to (i) cause all
the Registrable Securities covered by the Registration Statement, subject to the
AMEX Limit to be listed on NASDAQ, the AMEX or NYSE and on each additional
national securities exchange on which similar securities issued by the Company
are then listed, if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (ii) secure designation of all
the Registrable Securities covered by the Registration Statement, subject to the
AMEX Limit, as a National Association of Securities Dealers Automated Quotations
System ("Nasdaq") "national market system security" within the meaning of Rule
11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or a Nasdaq Small Cap security, and the quotation of the
Registrable Securities on such Nasdaq system.
(n) The Company shall provide a transfer agent and registrar, which
may be a single entity, for the Registrable Securities not later than the
effective date of the Registration Statement.
(o) The Company shall cooperate with the Investors who hold
Registrable Securities being sold and the managing underwriter or underwriters,
if any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing Registrable Securities to be sold
pursuant to the Registration Statement and enable such certificates to be in
such denominations or amounts as the case may be, and registered in such names
as the managing underwriter or underwriters, if any, or the Investors may
reasonably request; and, within three (3) business days after a Registration
Statement which includes Registrable Securities is ordered effective by the SEC,
the Company shall deliver, and shall cause legal counsel selected by the Company
to deliver, to the transfer agent for the Registrable Securities (with copies to
the Investors whose Registrable Securities are included in such Registration
Statement) instructions to the transfer agent to issue new stock certificates
without a legend and an opinion of such counsel that the Registrable Shares have
been registered.
(p) The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investor of the Registrable
Securities pursuant to the Registration Statement.
(q) At the request of any Investor, the Company shall promptly
prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to a Registration Statement and the prospectus used
in connection with the Registration Statement as may be necessary in order to
change the plan of distribution set forth in such Registration Statement to
conform to written information supplied to the Company by such Investor for such
purpose.
(r) The Company shall comply with all applicable laws related to a
Registration Statement and offering and sale of securities and all applicable
rules and regulations of governmental authorities in connection therewith.
(s) From and after the date of this Agreement, the Company shall
not, and shall not agree to, allow the holders of any securities of the Company
(other than the holders of the Registrable Securities) to include any of their
securities in any Registration Statement or any amendment or supplement thereto
under Section 2 hereof without the consent of the holders of a majority of the
Registrable Securities. The execution of this Agreement by the Initial Investors
shall constitute the consent of such holders to the inclusion of approximately
Two Hundred Thousand (200,000) shares in the Registration Statement to be filed
pursuant to Section 2(a) hereof.
4.....Obligations of the Investors. In connection with the
registration of the Registrable Securities, the Investors shall have the
following obligations:
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to each
Investor that such Investor shall furnish to the Company such information
regarding itself, the number of Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as shall
be reasonably required by rules of the SEC to effect the registration of the
Registrable Securities (the "Requested Information"). The information so
provided by the Investor shall be included without material alteration in the
Registration Statement and shall not be modified without such Investor's written
consent. At least ten (10) business days prior to the first anticipated filing
date of the Registration Statement, the Company shall notify each Investor that
it must deliver the Requested Information if such Investor elects to have any of
such Investor's Registrable Securities included in the Registration Statement.
The Closing of the Offering is deemed to be notice with respect to the
information regarding each Investor required by the Company to enable it to
comply with Section 2(a) of this Agreement. If within five (5) business days of
such notice the Company has not received the Requested Information from an
Investor (a "Non-Responsive Investor"), then the Company may file the
Registration Statement without including Registrable Securities of such
Non-Responsive Investor.
(b) Each Investor, by such Investor's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statement hereunder, unless such Investor has notified the Company in writing of
such Investor's election to exclude all of such Investor's Registrable
Securities from the Registration Statement.
(c) In the event Investors holding a majority in interest of the
Registrable Securities being registered determine to engage the services of an
underwriter, each Investor agrees to enter into and perform such Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of the Registrable Securities, unless such Investor has notified the
Company in writing of such Investor's election to exclude all of such Investor's
Registrable Securities from the applicable Registration Statement. No Investor
shall be obligated to participate in any such underwriting.
(d) Each Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(f) or
3(g), such Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Investor's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(f) or 3(g) and, if so directed by
the Company, such Investor shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies, other than file copies, in such Investor's possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice.
(e) No Investor may participate in any underwritten registration
hereunder unless such Investor (i) agrees to sell such Investor's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Investors entitled hereunder to approve such arrangements, (ii) completes
and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements, and (iii) agrees to
pay its pro rata share of all underwriting discounts and commissions and other
fees and expenses of investment bankers and any manager or managers of such
underwriting and legal expenses of the underwriter applicable with respect to
its Registrable Securities, in each case to the extent not payable by the
Company pursuant to the terms of this Agreement.
5. Expenses of Registration. All expenses, other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3 or the fees of counsel pursuant to
Section 3(e) hereof, but including, without limitation, all registration,
listing and qualifications fees, printers and accounting fees, the fees and
disbursements of counsel for the Company, shall be borne by the Company.
6. Indemnification. In the event any Registrable Securities are included
in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Investor who holds such Registrable Securities, the
directors, officers, employees, representatives or agents, if any, of such
Investor, each person, if any, who controls any Investor within the meaning of
the Securities Act or the Exchange Act, any underwriter (as defined in the
Securities Act) for the Investors, the directors, if any, of such underwriter
and the officers, if any, of such underwriter, and each person, if any, who
controls any such underwriter within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, settlements, fines, penalties, judgments, expenses (including attorneys
fees) or liabilities (joint or several) (collectively "Claims") to which any of
them become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations in the Registration Statement, or
any post-effective amendment thereof, or any prospectus included therein: (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any post-effective amendment thereof or in any
filings made in connection with the qualification of the Offering under the
securities or "blue sky" laws of any jurisdiction in which the Registrable
Securities are offered or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus if used prior to the
effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading, or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act or any state securities law or any rule
or regulation (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
6(c) with respect to the number of legal counsel, the Company shall reimburse
the Investors and each such underwriter or controlling person, promptly as such
expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (A) shall
not apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof; (B) with respect to any preliminary prospectus shall not inure to the
benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented, if a prospectus was timely
made available by the Company pursuant to Section 3(c) hereof; and (C) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Persons
and shall survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9.
(b) In connection with any Registration Statement in which an
Investor is participating, each such Investor, severally and not jointly,
agrees to indemnify and hold harmless, to the same extent and in the same manner
set forth in Section 6(a), the Company, each of its directors, each of its
officers who signs the Registration Statement, each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act, any
underwriter and any other stockholder selling securities pursuant to the
Registration Statement or any of its directors or officers or any person who
controls such stockholder or underwriter within the meaning of the Securities
Act or the Exchange Act (collectively and together with an Indemnified Person,
an "Indemnified Party"), against any Claim to which any of them may become
subject, under the Securities Act, the Exchange Act or otherwise, insofar as
such Claim arises out of or is based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished to the Company by such Investor
expressly for use in connection with such Registration Statement, and such
Investor will promptly reimburse any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such Claim; provided,
however, that the indemnity agreement contained in this Section 6(b) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of such Investor, which consent shall not be
unreasonably withheld; provided further, however, that the Investor shall be
liable under this Section 6(b) for only that amount of a Claim as does not
exceed the net proceeds to such Investor as a result of the sale of Registrable
Securities pursuant to such Registration Statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such Indemnified Party and shall survive the transfer of the Registrable
Securities by the Investors pursuant to Section 9. Notwithstanding anything to
the contrary contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any preliminary prospectus shall not inure to the
benefit of any Indemnified Party if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented.
(c) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to made against any indemnifying
party under this Section 6, deliver to the indemnifying party a written notice
of the commencement thereof and this indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying parties;
provided, however, that an Indemnified Person or Indemnified Party shall have
the right to retain its own counsel, with the fees and expenses to be paid by
the indemnifying party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the Indemnified Person
or Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or
Indemnified Party and other party represented by such counsel in such
proceeding. The Company shall pay for only one separate legal counsel for the
Investors; such legal counsel shall be selected by the Investors holding a
majority in interest of the Registrable Securities. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable. The provisions of this Section 6 shall survive the
termination of this Agreement.
7. Contribution. If the indemnification provided for in Section 6 herein
is unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities as between the Company on the one hand and any Investor on the
other, in such proportion as is appropriate to reflect the relative fault of the
Company and of such Investor in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and of any Investor on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by such Investor.
In no event shall the obligation of any Indemnifying Party to contribute
under this Section 7 exceed the amount that such Indemnifying Party would have
been obligated to pay by way of indemnification if the indemnification provided
for under Section 6(a) or 6(b) hereof had been available under the
circumstances.
The Company and the Investors agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Investors or the underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Investor or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of any Investor, the net proceeds received by such Investor from the sale
of Registrable Securities or (ii) in the case of an underwriter, the total price
at which the Registrable Securities purchased by it and distributed to the
public were offered to the public exceeds, in any such case, the amount of any
damages that such Investor or underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act ) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8. With a view to making available to the Investors the benefits of Rule
144 promulgated under the Securities Act or any other similar rule or regulation
of the SEC that may at any time permit the Investors to sell securities of the
Company to the public without registration ("Rule 144"), the Company agrees to:
(a) File with the SEC in a timely manner and make and keep available
all reports and other documents required of the Company under the Exchange Act
so long as the Company remains subject to such requirements and the filing and
availability of such reports and other documents is required for the applicable
provisions of Rule 144; and
(b) Furnish to each Investor so long as such Investor holds
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the Investors to
sell such securities pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights to have the Company
register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Investors to transferees or assignees of all or
any portion of such securities or Warrants exercisable into Registrable
Securities only if (i) the Investor agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (ii) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being transferred
or assigned, (iii) following such transfer or assignment the further disposition
of such securities by the transferee or assignee is restricted under the
Securities Act and applicable state securities laws, (iv) at or before the time
the Company received the written notice contemplated by clause (ii) of this
sentence, the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein, (v) such transfer shall have
been made in accordance with the applicable requirements of the Purchase
Agreement, and (vi) such transferee shall be an "accredited investor" as that
term is defined in Rule 501 of Regulation D promulgated under the Securities
Act.
10. Amendment of Registration Rights. Provisions of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and each Investor. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon each Investor
and the Company.
11. Third Party Beneficiary. The parties acknowledge and agree that
Shoreline Pacific Institutional Finance, the Institutional Division of Financial
West Group ("Shoreline"), shall be deemed a third party beneficiary of the
Company's agreements and representations set forth in this Agreement, and to
indemnification for any damages resulting to Shoreline from any actual or
threatened breach thereof by the Company, both in Shoreline's personal capacity
and, should Shoreline so elect, and provided that Shoreline has obtained the
prior written consent of the Investor, on behalf of the Investor.
12. Miscellaneous.
(a) Conflicting Instructions. A person or entity is deemed to be a
holder of Registrable Securities whenever such person or entity owns of record
such Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (with
return receipt requested) or delivered personally or by courier (including a
nationally recognized overnight delivery service) or by facsimile transmission.
Any notice so given shall be deemed effective upon receipt if delivered
personally, by U.S. Mail or by courier or facsimile transmission, in each case
addressed to a party at the following address or such other address as each such
party furnishes to the other in accordance with this Section 12(b), and:
If to the Company:
Cel-Sci Corporation
66 Canal Center Plaza, Suite 510
Alexandria, VA 22314
Facsimile: (703) 549-6269
Attention: Mr. Geert R. Kersten
with copy to:
Hart & Trinen
1624 Washington Street
Denver, CO 80203
Facsimile: (303) 839-5414
Attention: Mr. Bill Hart, Esq.
If to Nelson Partners:
Nelson Partners
c/o Leeds Management Services
129 Front Street, 5th Floor
Hamilton HM 12
Bermuda
Telecopy: (441) 292-2239
Attention: Ms. Anne Dupuy
with a copy to:
Citadel Investment Group, LLC
225 West Washington Street
9th Floor
Chicago, IL 60606
Telecopy: (312) 368-1347
Attention: Mr. Michael J. Hughes and Mr. Kenneth C. Griffin
and with a copy to:
Katten, Muchin, & Zavis
525 West Monroe Street
Suite 1700
Chicago, IL 60661-3693
Telecopy: (312) 902-1061
Attention: Mr. Steven G. Martin, Esq.
If to Olympus Securities, Ltd.:
Olympus Securities, Ltd.
c/o Leeds Management Services
129 Front Street, 5th Floor
Hamilton HM 12
Bermuda
Telecopy: (441) 292-2239
Attention: Ms. Anne Dupuy
with a copy to:
Citadel Investment Group, LLC
225 West Washington Street
9th Floor
Chicago, IL 60606
Telecopy: (312) 368-1347
Attention: Mr. Michael J. Hughes and Mr. Kenneth C. Griffin
and with a copy to:
Katten, Muchin, & Zavis
525 West Monroe Street
Suite 1700
Chicago, IL 60661-3693
Telecopy: (312) 902-1061
Attention: Mr. Steven G. Martin, Esq.
If to KA Investments LDC:
KA Investments LDC
c/o Tarmachan Capital
1712 Hopkins Crossroads
Minnetonka, MN 55305
Telecopy: (612) 542-4253
Attention: Ms. Ivana Bozjack
with a copy to:
Robinson Silverman Pearce Aronsohn Berman LLP
1150 Avenue Of The Americas
@ 51st Street
New York, NY 10104
Telecopy: (212) 541-1432
Attention: Mr. Eric Louis Cohen, Esq.
If to the following Purchasers:
Leonardo, L.P.
c/o Angelo, Gordon & Co., L.P.
245 Park Avenue, 26th Floor
New York, NY 10167
Telecopy: (212) 692-6395
Attention: Mr. Gary Wolf
GAM Arbitrage Investments, Inc.
11 Athol Street
Douglas, Isle of Man
British Isles, British Virgin Islands
Attention: Mr. Michael L. Gordon
AG Super Fund International Partners, L.P.
Abbott Building
PO Box 3186
Road Town, Tortola
British Virgin Islands
Attention: Mr. Michael L. Gordon
Raphael, L.P.
c/o Raphael Capital Management Limited
Abott Building
PO Box 3186 Main Street
Road Town, Tortola
British Virgin Islands
Attention: Mr. Michael L. Gordon
Ramius Fund, Ltd.:
c/o Bank of Bermuda Building
6 Front Street
PO Box HM 1020
Hamilton, Bermuda HMDX
Attention: Michael L. Gordon
Baldwin Enterprises, Inc.
529 East South Temple
Salt Lake City, Utah 84102
Attention: Michael L. Gordon
and a copy to:
Angelo, Gordon & Co., L.P.
245 Park Avenue, 26th Floor
New York, NY 10167
Telecopy: (212) 867-6395
Attention: Mr. Gary Wolf
in each case with a copy to:
Shoreline Pacific Institutional Finance
3 Harbor Drive, Suite 211
Sausalito, CA 94965
Attention: General Counsel
Telephone: (415) 332-7800
Facsimile: (415) 332-7808
(c) Waiver. Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York. The parties hereto
irrevocably consent to the jurisdiction of the United States federal courts and
state courts located in the County of New York in the State of New York in any
suit or proceeding based on or arising under this Agreement or the transactions
contemplated hereby and irrevocably agree that all claims in respect of such
suit or proceeding may be determined in such courts. The Company and each
Investor irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding in such forum. The Company and each
Investor further agrees that service of process upon the Company or such
Investor, as applicable, in accordance with Section 12(b) shall be deemed in
every respect effective service of process upon the Company or such Investor in
any suit or proceeding arising hereunder. Nothing herein contained shall affect
Investor's right to serve process in any other manner permitted by law. The
parties hereto agree that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
The Company and each Investor hereby waive any and all rights to a jury trial of
any claim or cause of action based upon arising out of this Agreement or the
other related agreements and documents or any dealings among them relating to
the subject matter hereof and the relationship that is being established. The
scope of this waiver is intended to encompass any and all disputes that may be
filed in any court and that relate to the subject matter of this Agreement,
including without limitation, contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. The parties acknowledge
that this waiver is a material inducement to enter into a business relationship,
that each has already relied on the waiver and that each will continue to rely
on the waiver in their related future dealings. The Company and each Investor
hereby warrants and represents that it has reviewed this waiver with its legal
counsel, and that it knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. This waiver is irrevocable, meaning
that it shall apply to any subsequent amendments, renewals, supplements or
modifications to this Agreement or to any other related documents or agreements.
In the event of litigation, this Agreement may be filed as a written consent to
a trial by the court.
(e) Severability. In the event that any provision of this Agreement
is invalid or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
(f) Entire Agreement. This Agreement and the Purchase Agreement
(including all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Agreement supersedes all prior agreements
and understandings among the parties hereto with respect to the subject matter
hereof.
(g) Successors and Assigns. Subject to the requirements of Section 9
hereof, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto.
(h) Use of Pronouns. All pronouns and any variations thereof refer
to the masculine, feminine or neuter, singular or plural, as the context may
require.
(i) Headings. The headings and subheadings in the Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by facsimile transmission, and
facsimile signatures shall be binding on the parties hereto.
(k) Further Acts. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(l) Remedies. No provision of this Agreement providing for any
remedy to a Investor shall limit any remedy which would otherwise be available
to such Investor at law or in equity. Nothing in this Agreement shall limit any
rights a Investor may have with any applicable federal or state securities laws
with respect to the investment contemplated hereby. The Company acknowledges
that a breach by it of its obligations hereunder will cause irreparable harm to
a Investor. Accordingly, the Company acknowledges that the remedy at law for a
breach of its obligations under this Agreement will be inadequate and agrees, in
the event of a breach or threatened breach by the Company of the provisions of
this Agreement, that a Investor shall be entitled, in addition to all other
available remedies, to an injunction restraining any breach and requiring
immediate compliance, without the necessity of showing economic loss and without
any bond or other security being required.
(m) Consents. Except as otherwise set forth herein, all consents and
other determinations to be made by the Investors pursuant to this Agreement
shall be made by Investors holding 66 2/3% of the Registrable Securities,
determined as if all Warrants then outstanding had been exercised for
Registrable Securities.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
COMPANY:
CEL-SCI CORPORATION:
By:
Geert R. Kersten
Chief Executive Officer
NELSON PARTNERS
By:
Name: Anne Dupuy
Title: Officer
OLYMPUS SECURITIES, LTD.
By:
Name: Anne Dupuy
Title: Officer
KA INVESTMENTS LDC.
By:
Name:
Title: Secretary
LEONARDO, L.P.
By: Angelo, Gordon & Co., L.P.
General Partner
By:
Name: Michael L. Gordon
Title: Chief Operating Officer
GAM ARBITRAGE INVESTMENTS, INC.
By: Angelo, Gordon & Co., L.P.
Investment Advisor
By:
Name: Michael L. Gordon
Title: Chief Operating Officer
AG SUPER FUND INTERNATIONAL PARTNERS, L.P.
By: Angelo, Gordon & Co., L.P.
General Partner
By:
Name: Michael L. Gordon
Title: Chief Operating Officer
RAPHAEL, L.P.
By:
Name: Michael L. Gordon
Title: Chief Operating Officer
RAMIUS FUND, LTD.
By: AG Ramius Partners, L.L.C.
Investment Advisor
By:
Name: Michael L. Gordon
Title: Managing Officer
BALDWIN ENTERPRISES, INC.
By: AG Ramius Partners, L.L.C.
Investment Advisor
By:
Name: Michael L. Gordon
Title: Managing Officer
AGR HALIFAX FUND, LTD
By:
Name: Morgan Stark
Title: Managing Officer, AG Ramius Partners LLC