Exhibit 10.3
SECURITIES PURCHASE AGREEMENT
between
CEL-SCI CORPORATION
and
ERGOMED plc
dated as
of
May 16, 2018
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
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3
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ARTICLE II PURCHASE AND SALE
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5
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Section 2.01 Purchase and Sale.
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5
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Section 2.02 Transactions Effected at the
Closing.
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6
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Section 2.03 Closing.
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6
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
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6
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Section 3.01 Organization, Qualification and Authority of the
Company.
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6
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Section 3.02 Valid Issuance of Shares.
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6
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Section 3.03 No Conflicts; Consents.
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7
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Section 3.04 Brokers.
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7
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Section 3.05 Offering.
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7
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Section 3.06 Reports and Financial Statements; Absence of Certain
Changes.
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7
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
CREDITOR
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8
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Section 4.01 Organization and Authority of
Creditor.
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8
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Section 4.02 No Conflicts; Consents.
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8
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Section 4.03 Restricted Securities.
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8
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Section 4.04 Brokers.
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8
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ARTICLE V CONDITIONS TO CLOSING
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8
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Section 5.01 Conditions to Obligations of All
Parties.
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8
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Section 5.02 Conditions to Obligations of
Creditor.
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9
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Section 5.03 Conditions to Obligations of the
Company.
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10
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ARTICLE VI COVENANTS
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10
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Section 6.01 Affirmative Covenants of the
Company.
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10
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Section 6.02 Negative Covenant of Creditor.
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11
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Section 6.03 Application of Resale Proceeds.
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11
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Section 6.04 Further Assurances.
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11
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ARTICLE VII INDEMNIFICATION
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11
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Section 7.01 Survival.
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11
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Section 7.02 Indemnification By Company.
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11
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Section 7.03 Payments.
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12
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Section 7.04 Tax Treatment of Indemnification
Payments.
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12
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Section 7.05 Effect of Investigation.
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12
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Section 7.06 Exclusive Remedies.
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12
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ARTICLE VIII MISCELLANEOUS
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12
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Section 8.01 Expenses.
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12
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Section 8.02 Notices.
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13
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Section 8.03 Interpretation.
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14
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Section 8.04 Headings.
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14
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Section 8.05 Severability.
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14
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Section 8.06 Entire Agreement.
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14
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Section 8.07 Successors and Assigns.
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14
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Section 8.08 No Third-Party Beneficiaries.
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14
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Section 8.09 Amendment and Modification;
Waiver.
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15
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Section 8.10 Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial.
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15
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Section 8.11 Counterparts.
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15
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2
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this
"Agreement"),
dated as of May 16, 2018, is entered into by and between CEL-SCI
Corporation, a Colorado corporation (the "Company")
and Ergomed plc, a public limited company organized under the laws
of England and Wales ("Creditor").
Recitals
WHEREAS, the Company has authorized the
issuance by the Company of up to 600,000 shares (the
"Shares") of the Company’s Common Stock, par
value $0.01 per share (the "Common
Stock");
WHEREAS, as of the date of this Agreement,
the Company owes Creditor $1,691,890.74, as detailed in
Annex A
(the "Debt"), in connection with a certain
co-development agreement dated as of April 19, 2013, as amended
(the "Co-development
Agreement"), a certain
master services agreement of the same date (the
"MSA")
and the clinical trial orders making up an integral part of the MSA
(the "CTOs", and together with the Co-development
Agreement and MSA, the "Principal Relationship
Agreements");
and
WHEREAS, the Company wishes to issue the Shares to Creditor in
exchange for Creditor agreeing to provisionally forebear collection
of the Debt and to allow partial satisfaction of the Debt balance
in an amount equal to the Net Proceeds, if any, received by
Creditor upon any resale by Creditor of the Shares, subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
The following terms have the meanings specified or referred to in
this Agreement:
"Action" means any claim, action, cause of action,
demand, lawsuit, arbitration, inquiry, audit, notice of violation,
proceeding, litigation, citation, summons, subpoena or
investigation of any nature, civil, criminal, administrative,
regulatory or otherwise, whether at law or in
equity.
"Affiliate"
of a Person means any other Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person. The term "control"
(including the terms "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by
contract or otherwise .
"Agreement"
has the meaning set forth in the
preamble.
"Business
Day" means any day except
Saturday, Sunday or any other day on which commercial banks located
in London or Colorado are authorized or required by Law to be
closed for business.
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"Closing"
has the meaning set forth in Section 2.03.
"Closing
Date" has the meaning set
forth in Section
2.03.
"Co-development
Agreement" has the
meaning set forth in the recitals.
"Common
Stock" has the meaning
set forth in the recitals.
"Company"
has the meaning set forth in the
preamble.
"Contracts"
means all contracts, leases, deeds, mortgages, licenses,
instruments, notes, loans, commitments, undertakings, indentures,
joint ventures and all other agreements, commitments and legally
binding arrangements, whether written or
oral.
"Creditor"
has the meaning set forth in the
preamble.
"Creditor
Indemnitees" has the
meaning set forth in Section 7.02.
"CTOs" has the meaning set forth in the
recitals.
"Debt" has the meaning set forth in the
recitals.
"Disclosure
Schedules" means the
Disclosure Schedules delivered by the Company and Creditor
concurrently with the execution and delivery of this
Agreement.
"Dollars or
$" means the lawful
currency of the United States.
"Encumbrance"
means any charge, claim, community property interest, pledge,
condition, equitable interest, lien (statutory or other), option,
security interest, mortgage, easement, encroachment, right of way,
right of first refusal, or restriction of any kind, including any
restriction on use, voting, transfer, receipt of income or exercise
of any other attribute of ownership.
"Exchange
Act" has the meaning set
forth in Section
3.06.
"Governmental
Authority" means any
federal, state, local or foreign government or political
subdivision thereof, or any agency or instrumentality of such
government or political subdivision, or any self-regulated
organization or other non-governmental regulatory authority or
quasi-governmental authority (to the extent that the rules,
regulations or orders of such organization or authority have the
force of Law), or any arbitrator, court or tribunal of competent
jurisdiction.
"Governmental
Order" means any order,
writ, judgment, injunction, decree, stipulation, determination or
award entered by or with any Governmental
Authority.
"Law" means any statute, law, ordinance,
regulation, rule, code, order, constitution, treaty, common law,
judgment, decree, other requirement or rule of law of any
Governmental Authority.
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"Losses" means losses, damages, liabilities,
deficiencies, Actions, judgments, interest, awards, penalties,
fines, costs or expenses of whatever kind, including reasonable
attorneys' fees and the cost of enforcing any right to
indemnification hereunder and the cost of pursuing any insurance
providers; provided,
that "Losses" shall not include punitive damages, except
in the case of fraud or to the extent actually awarded to a
Governmental Authority or other third
party.
"Material Adverse
Effect" means any event,
occurrence, fact, condition or change that is, or could reasonably
be expected to become, individually or in the aggregate, materially
adverse to the business, results of operations, prospects,
condition (financial or otherwise) or assets of the
Company.
"MSA" has the meaning set forth in the
recitals.
"Net
Proceeds" means proceeds
in cash, checks or wire transfers, as and when received by Creditor
upon the sale of any Shares, net of out-of-pocket fees, costs and
expenses paid or payable by Creditor as a result of or relating to
the sale of the Shares (including brokers’ fees, commissions
or discounts and other transaction fees incurred in connection with
such sale).
"Permits"
means all permits, licenses, franchises, approvals, authorizations,
registrations, certificates, variances and similar rights obtained,
or required to be obtained, from Governmental
Authorities.
"Person" means an individual, corporation,
partnership, joint venture, limited liability company, Governmental
Authority, unincorporated organization, trust, association or other
entity.
"Registration
Statement" has the
meaning set forth in Section 6.01(c).
"Representative"
means, with respect to any Person, any and all directors, officers,
employees, consultants, financial advisors, counsel, accountants
and other agents of such Person.
"SEC" has the meaning set forth in
Section
3.06.
"SEC
Documents" has the
meaning set forth in Section 3.06.
"Securities
Act" has the meaning set
forth in Section
3.05.
"Shares" has the meaning set forth in the
recitals.
ARTICLE
II
PURCHASE AND SALE
Section 2.01 Purchase and Sale.
Subject to the terms and
conditions set forth herein, at the Closing, the Company shall
issue 600,000 Shares to Creditor in exchange for Creditor agreeing
to provisionally forbear collection of the Debt and to allow
partial satisfaction of the Debt balance in an amount equal to the
Net Proceeds, if any, from any resales of Shares, subject to
Section 6.01(c)
and
6.03.
5
Section 2.02
Section 2.03 Transactions Effected at
the Closing.
(a) At
the Closing, Creditor shall deliver to the
Company:
(i) all documents, instruments or certificates
required to be delivered by Creditor at or prior to the Closing
pursuant to Section
5.03 of this
Agreement.
(b) At
the Closing, the Company shall deliver to
Creditor:
(i) stock
certificates evidencing the Shares; and
(ii) all agreements, documents, instruments or
certificates required to be delivered by the Company at or prior to
the Closing pursuant to Section 5.02 of this
Agreement.
Section 2.04 Closing.
Subject to the terms and
conditions of this Agreement, the purchase and sale of the Shares
contemplated hereby shall take place at a closing (the
"Closing")
remotely by electronic mail, or at such other time or on such other
date or at such other place or by such other method as the Company
and Creditor may mutually agree upon orally or in writing (the day
on which the Closing takes place, the "Closing
Date"). If the Closing
does not take place prior to May 16, 2018, either party may
terminate this Agreement by written notice to the other
party.
ARTICLE
III
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
The Company represents and warrants to
Creditor that the statements contained in this ARTICLE III are true and correct as of the date
hereof.
Section 3.01 Organization,
Qualification and Authority of the Company. The Company is a corporation duly organized,
validly existing and in good standing under the Laws of the state
of Colorado and has full corporate power and authority to (a) enter
into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and
delivery by the Company of this Agreement, the performance by the
Company of its obligations hereunder and the consummation by the
Company of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the
Company, and (assuming due authorization, execution and delivery by
Creditor) this Agreement constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms.
Section 3.02 Valid Issuance of
Shares. The Shares,
when issued, sold and delivered in accordance with the terms of
this Agreement for the consideration expressed herein, will be duly
and validly issued, fully paid, and non-assessable, and will be
free of any Encumbrances or restrictions on transfer other than
restrictions on transfer under this Agreement or under applicable
securities laws or Encumbrances created or imposed by
Creditor.
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Section 3.03 No Conflicts;
Consents. The execution,
delivery and performance by the Company of this Agreement, and the
consummation of the transactions contemplated hereby, do not and
will not: (a) conflict with or result in a violation or breach of,
or default under, any provision of the certificate of
incorporation, by-laws or other organizational documents of the
Company; (b) conflict with or result in a violation or breach of
any provision of any Law or Governmental Order applicable to the
Company; (c) except as set forth in Section 3.03 of the Disclosure Schedules, require the
consent or waiver of, notice to or other action by any Person
under, give rise to any rights under, conflict with, result in a
violation or breach of, constitute a default or an event that, with
or without notice or lapse of time or both, would constitute a
default under, result in the acceleration of or create in any party
the right to accelerate, terminate, modify or cancel any Contract
to which the Company is a party or by which the Company is bound or
to which any of its properties and assets are subject or any Permit
affecting the properties, assets or business of the Company
(including without limitation any Contract with respect to any
outstanding rights of first refusal, rights of first offer,
pre-emptive rights, anti-dilution rights ,redemption or repurchase
rights or registration rights); or (d) result in the creation or
imposition of any Encumbrance on any properties or assets of the
Company. Except as set forth in Section 3.03 of the Disclosure Schedules, no consent,
approval, Permit, Governmental Order, declaration or filing with,
or notice to, any Governmental Authority is required by or with
respect to the Company in connection with the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby.
Section 3.04 Brokers.
No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of the
Company.
Section 3.05 Offering.
Subject in part to the truth and
accuracy of Creditor’s representations set forth in Article
IV of this Agreement, the offer, sale and issuance of the Shares
are exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Securities
Act"), and will not
result in a violation of the qualification or registration
requirements of any applicable securities laws of any U.S. state or
any jurisdiction outside the U.S., and neither the Company nor any
authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such
exemption.
Section 3.06 Reports and Financial
Statements; Absence of Certain Changes. The Company has filed all reports,
schedules, forms, statements and other documents required to be
filed by the Company with the Securities and Exchange Commission
(the "SEC") pursuant to the Securities Act and the
reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange
Act") (such documents,
together with any documents otherwise filed by the Company with the
SEC, the "SEC
Documents"), and has
previously furnished or made available to Creditor true and
complete copies of such SEC Documents and shall promptly deliver or
make available to Creditor any SEC Documents filed between the date
hereof and the Closing Date. None of such SEC Documents, as of
their respective dates (and as amended through the date hereof),
contained or, with respect to SEC Documents filed after the date
hereof, will contain any untrue statement of 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 under
which they were made, not misleading. Since March 31, 2018, there
has been no event that would have a Material Adverse Effect, except
as disclosed in Section
3.06 of the Disclosure
Schedules and in the SEC Documents.
7
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES OF
CREDITOR
Creditor represents and warrants to the
Company that the statements contained in this ARTICLE IV are true and correct as of the date
hereof.
Section 4.01 Organization and
Authority of Creditor. Creditor is a public limited company
properly organized under the Laws of England and Wales. Creditor
has all requisite power and authority to enter into this Agreement,
to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by
Creditor of this Agreement, the performance by Creditor of its
obligations hereunder and the consummation by Creditor of the
transactions contemplated hereby have been duly authorized by all
requisite action on the part of Creditor. This Agreement has been
duly executed and delivered by Creditor, and (assuming due
authorization, execution and delivery by the Company) this
Agreement constitutes a legal, valid and binding obligation of
Creditor enforceable against Creditor in accordance with its
terms.
Section 4.02 No Conflicts;
Consents. The execution,
delivery and performance by Creditor of this Agreement, and the
consummation of the transactions contemplated hereby, do not and
will not: (a) conflict with or result in a violation or breach of,
or default under, any provision of the constitutional or other
organizational documents of Creditor; (b) conflict with or result
in a violation or breach of any provision of any Law or
Governmental Order applicable to Creditor; or (c) require the
consent, notice or other action by any Person under any Contract to
which Creditor is a party. No consent, approval, Permit,
Governmental Order, declaration or filing with, or notice to, any
Governmental Authority is required by or with respect to Creditor
in connection with the execution and delivery of this Agreement and
the consummation of the transactions contemplated
hereby.
Section 4.03 Restricted
Securities. Creditor
acknowledges that the Shares are not registered under the
Securities Act, or any state securities laws, and that the Shares
may not be transferred or sold except pursuant to the registration
provisions of the Securities Act or pursuant to an applicable
exemption therefrom and subject to state securities laws and
regulations, as applicable.
Section 4.04 Brokers.
No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of
Creditor.
ARTICLE
V
CONDITIONS TO
CLOSING
Section 5.01 Conditions to Obligations
of All Parties. The
obligations of each party to consummate the transactions
contemplated by this Agreement shall be subject to the fulfilment,
at or prior to the Closing, of each of the following
conditions:
8
(a) No
Governmental Authority shall have enacted, issued, promulgated,
enforced or entered any Governmental Order which is in effect and
has the effect of making the transactions contemplated by this
Agreement illegal, otherwise restraining or prohibiting
consummation of such transactions or causing any of the
transactions contemplated hereunder to be rescinded following
completion thereof.
(b) The Company shall have received all
consents, authorizations, orders and approvals from the
Governmental Authorities referred to in Section 3.03, in each case, in form and
substance reasonably satisfactory to Creditor and the Company, and
no such consent, authorization, order and approval shall have been
revoked.
Section 5.02 Conditions to Obligations
of Creditor. The
obligations of Creditor to consummate the transactions contemplated
by this Agreement shall be subject to the fulfilment or Creditor's
waiver (with the exception of (b) below), at or prior to the
Closing, of each of the following
conditions:
(a) The
representations and warranties of the Company contained in Article
III shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as
of the Closing Date.
(b) The
Company will have received the approval of the NYSE American for
the issuance of the Shares. The Company (i) will take all
reasonable steps to obtain such approval as soon as possible, (ii)
maintain the listing until all of the Shares have been sold or
returned to the Company and (iii) pay all of the reasonable and
customary fees and expenses incurred in connection with the listing
of the Shares. In the event that the Shares are not listed with the
NYSE American in accordance with the foregoing or the listing
ceases to be maintained at any time, Creditor shall have a right to
return any unsold Shares to the Company for
cancellation.
(c) This
Agreement shall have been executed and delivered by the parties
thereto and true and complete copies thereof shall have been
delivered to Creditor.
(d) Creditor
shall have received a certificate of the Secretary or an Assistant
Secretary (or equivalent officer) of the Company
certifying:
(i) that
attached thereto are true and complete copies of all resolutions
and other consents adopted by the board of directors and
stockholders of the Company authorizing and approving the
execution, delivery, filing and performance of this Agreement and
the consummation of the transactions contemplated hereby, and that
all such resolutions and consents are in full force and effect as
of the Closing and are all the resolutions and consents adopted in
connection with the transactions contemplated
hereby;
(ii) that
attached thereto are true and complete copies of the certificate of
incorporation and by-laws of the Company and that such
organizational documents are in full force and effect as of the
Closing; and
(iii) the
names and signatures of the officers of the Company authorized to
sign this Agreement and the other documents to be delivered
hereunder.
9
(e) The
Company shall have delivered to Creditor a good standing
certificate (or its equivalent) for the Company from the secretary
of state or similar Governmental Authority of the jurisdiction
under the Laws in which the Company is
organized.
(f) The
Company shall have delivered, or caused to be delivered, to
Creditor each of the following, each in form and substance
satisfactory to Creditor:
(i) stock certificates evidencing the Shares;
and
(ii) such
other documents or instruments as Creditor reasonably requests and
are reasonably necessary to consummate the transactions
contemplated by this Agreement.
Section 5.03 Conditions to Obligations
of the Company. The
obligations of the Company to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment
or the Company's waiver, at or prior to the Closing, of each of the
following conditions:
(a) The
representations and warranties of Creditor contained in Article IV
shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as
of the Closing Date.
(b) This
Agreement shall have been executed and delivered by the parties
thereto and true and complete copies thereof shall have been
delivered to the Company.
ARTICLE
VI
COVENANTS
Section 6.01 Affirmative Covenants of
the Company. Unless the
Company has received the prior written consent or waiver of
Creditor, the Company shall be subject to each of the following
covenants:
(a) The
Company shall at all times maintain under the Laws of the state of
Colorado its valid corporate existence and good standing and (ii)
all material Permits necessary to the conduct of its
businesses.
(b) The
Company shall comply with all Laws applicable to it or its
business, properties or assets, the violation of which would
reasonably be expected to have a Material Adverse
Effect.
(c) Promptly following the Closing, the Company
shall register the Shares under a Registration Statement on Form
S-1 under the Securities Act (the "Registration
Statement"). The Company
(i) will take all reasonable steps to have the Registration
Statement declared effective as soon as possible, (ii) maintain the
effectiveness of such Registration Statement until all of the
Shares have been sold thereunder or the Shares can be sold pursuant
to Rule 144 of the Securities Act, and (iii) pay all of the
reasonable and customary fees and expenses incurred in connection
with the registration of the Shares. In the event that the Shares
are not registered on the Registration Statement in accordance with
the preceding sentence or the Registration Statement ceases to be
effective at any time, Creditor shall have a right to return any
unsold Shares to the Company for
cancellation.
10
(d) In the event that for any reason any of the
Shares have not been resold by Creditor as of December 31, 2018,
Creditor may, as its option, return the Shares to the Company for
cancellation. The Company
shall perform and observe all of its obligations and covenants set
forth in this Agreement.
Section 6.02 Negative Covenant
of Creditor. Unless
Creditor has received the prior written consent or waiver of the
Company, Creditor shall not sell more than 5% of that day’s
trading volume on any single day.
Section 6.03 Debt
Reduction/Application of Net Proceeds. The Debt owed will be
reduced by $1,710,000, which was the fair market value of the
600,000 shares of the Company’s common stock as of Close on
May 15, 2018. The Debt will be increased or decreased, as the case
may be, by the amount received by the Creditor from the Net
Proceeds received by the Creditor from the sale of the Shares. If
the Net Proceeds received by the Creditor from the sale of the
Shares is less than $1,710,000, the Debt will be increased by the
difference between $1,710,000 and the Net Proceeds. If the Net
Proceeds received by the Creditor from the sale of the Shares is
more than $1,710,000, the Debt will be reduced by the difference
between $1,710,000 and the Net Proceeds. Any Net Proceeds received
in excess of the Debt will be applied towards satisfaction of any
future amounts owed to Creditor by the Company in connection with
the Principal Relationship Agreements. The Creditor shall not sell
the Shares to the extent that Net Proceeds exceed the total of $8.2
million or any other total amount pursuant to an amendment of the
Principal Relationship Agreements (“the Ceiling”). If
the Ceiling is achieved with Net Proceeds, the Creditor will return
all unsold Shares to the Company within 30 (thirty) days from
achieving the Ceiling.
Section 6.04 Further
Assurances. Following the
Closing, each of the parties hereto shall, and shall cause their
respective Affiliates to, execute and deliver such additional
documents, instruments, conveyances and assurances and take such
further actions as may be reasonably required to carry out the
provisions hereof and give effect to the transactions contemplated
by this Agreement.
ARTICLE
VII
INDEMNIFICATION
Section 7.01 Survival. The
representations and warranties, covenants and agreements contained
herein shall survive the Closing and shall remain in full force and
effect following the Closing Date.
Section 7.02 Indemnification By
Company. Subject to the
other terms and conditions of this ARTICLE VII, the Company shall indemnify and
defend each of Creditor and its Affiliates and their respective
Representatives (collectively, the "Creditor
Indemnitees") against,
and shall hold each of them harmless from and against, and shall
pay and reimburse each of them for, any and all Losses incurred or
sustained by, or imposed upon, the Creditor Indemnitees based upon,
arising out of, with respect to or by reason
of:
(a) any
inaccuracy in or breach of any of the representations or warranties
of the Company contained in this Agreement or in any certificate or
instrument delivered by or on behalf of the Company pursuant to
this Agreement; or
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(b) any
breach or non-fulfillment of any covenant, agreement or obligation
to be performed by the Company pursuant to this
Agreement.
Section 7.03 Payments.
Once a Loss is agreed to by the
Company or finally adjudicated to be payable pursuant to
this ARTICLE VII, the
Company shall satisfy its obligations within 15 Business Days of
such agreement or final, non-appealable adjudication by wire
transfer of immediately available funds.
Section 7.04 Tax Treatment of
Indemnification Payments. All indemnification payments made under this
Agreement shall be treated by the parties as an adjustment to the
Net Proceeds for Tax purposes, unless otherwise required by
Law.
Section 7.05 Effect of
Investigation. Neither
the representations, warranties and covenants of the Company, nor
the right to indemnification of any Creditor Indemnitee making a
claim under this ARTICLE
VII with respect thereto,
shall be affected or deemed waived by reason of any investigation
made by or on behalf of an Creditor Indemnitee (including by any of
its Representatives) or by reason of the fact that an Creditor
Indemnitee or any of its Representatives knew or should have known
that any such representation or warranty is, was or might be
inaccurate or by reason of an Creditor Indemnitee's waiver of any
condition set forth in Section 5.02.
Section 7.06 Exclusive
Remedies. The parties
acknowledge and agree that their sole and exclusive remedy with
respect to any and all claims (other than claims arising from
breach of contract, fraud, criminal activity or willful misconduct
on the part of a party hereto in connection with the transactions
contemplated by this Agreement) for any breach of any
representation, warranty, covenant, agreement or obligation set
forth herein or otherwise relating to the subject matter of this
Agreement, shall be pursuant to the indemnification provisions set
forth in this ARTICLE
VII. In furtherance of the foregoing, each party hereby waives, to
the fullest extent permitted under Law, any and all rights, claims
and causes of action for any breach of any representation,
warranty, covenant, agreement or obligation set forth herein or
otherwise relating to the subject matter of this Agreement it may
have against the other parties hereto and their Affiliates and each
of their respective Representatives arising under or based upon any
Law, except pursuant to the indemnification provisions set forth in
this ARTICLE VII. Nothing
in this Section
7.06 shall limit any
Person's right to seek and obtain any equitable relief to which any
Person shall be entitled or to seek any remedy on account of any
party's fraudulent, criminal or intentional
misconduct.
ARTICLE
VIII
MISCELLANEOUS
Section 8.01 Expenses.
Except as otherwise expressly
provided herein, all costs and expenses of either party, including,
without limitation, fees and disbursements of counsel, financial
advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by
the party who incurred the costs and
expenses.
12
Section 8.02 Notices.
All notices, requests, consents,
claims, demands, waivers and other communications hereunder shall
be in writing and shall be deemed to have been given (a) when
delivered by hand (with written confirmation of receipt); (b) when
received by the addressee if sent by a nationally recognized
overnight courier (receipt requested); (c) on the date sent by
facsimile or e-mail of a PDF document (with confirmation of
transmission) if sent during normal business hours of the
recipient, and on the next Business Day if sent after normal
business hours of the recipient or (d) on the seventh day after the
date mailed, by certified or registered mail, return receipt
requested, postage prepaid. Such communications must be sent to the
respective parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in
accordance with this Section 8.02):
If to the
Company:
CEL-SCI Corporation
8229
Boone Boulevard, Suite 802
Vienna,
Virginia 22182
Facsimile:
(703) 506-9471
E-mail: grkersten@cel-sci.com,
Attention:
Geert Kersten, Chief Executive Officer
with a copy to:
Hart & Hart, LLC
Facsimile:
(303) 839-5414
E-mail: harttrinen@aol.com
Attention:
William T. Hart
If to
Creditor:
Ergomed plc
The Surrey
Research Park
26-28
Frederick Sanger Road
Guildford,
Surrey GU2 7YD
United
Kingdom
Facsimile:
+385 1 4628 501
E-mail: stephen.stamp@ergomedplc.com
Attention:
Stephen Stamp, Chief Financial Officer
with a copy to:
Covington
& Burling LLP
265
Strand
London
WC2R 1BH
Facsimile:
+44 20 7067 2222
E-mail: kwiggert@cov.com
Attention:
Kristian Wiggert
13
Section 8.03 Interpretation.
For purposes of this Agreement,
(a) the words "include," "includes" and "including" shall be deemed
to be followed by the words "without limitation"; (b) the word "or"
is not exclusive; and (c) the words "herein," "hereof," "hereby,"
"hereto" and "hereunder" refer to this Agreement as a whole. Unless
the context otherwise requires, references herein: (x) to Articles,
Sections, Disclosure Schedules and Exhibits mean the Articles and
Sections of, and Disclosure Schedules and Exhibits attached to,
this Agreement; (y) to an agreement, instrument or other document
means such agreement, instrument or other document as amended,
supplemented and modified from time to time to the extent permitted
by the provisions thereof and (z) to a statute means such statute
as amended from time to time and includes any successor legislation
thereto and any regulations promulgated thereunder. This Agreement
shall be construed without regard to any presumption or rule
requiring construction or interpretation against the party drafting
an instrument or causing any instrument to be drafted. The
Disclosure Schedules and Exhibits referred to herein shall be
construed with, and as an integral part of, this Agreement to the
same extent as if they were set forth verbatim
herein.
Section 8.04 Headings.
The headings in this Agreement
are for reference only and shall not affect the interpretation of
this Agreement.
Section 8.05 Severability.
If any term or provision of this
Agreement is invalid, illegal or unenforceable in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect
any other term or provision of this Agreement or invalidate or
render unenforceable such term or provision in any other
jurisdiction. Upon such determination that any term or other
provision is invalid, illegal or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in
a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to
the greatest extent possible.
Section 8.06 Entire Agreement.
This Agreement constitutes the
sole and entire agreement of the parties to this Agreement with
respect to the subject matter contained herein and therein, and
supersedes all prior and contemporaneous understandings and
agreements, both written and oral, with respect to such subject
matter. In the event of any inconsistency between the statements in
the body of this Agreement and those in the Exhibits and Disclosure
Schedules (other than an exception expressly set forth as such in
the Disclosure Schedules), the statements in the body of this
Agreement will control.
Section 8.07 Successors and
Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Neither party may assign its rights or obligations hereunder
without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed; provided, that
Creditor may, without the prior written consent of the Company,
assign all or any portion of its rights under this Agreement to one
or more of its direct or indirect wholly-owned subsidiaries. No
assignment shall relieve the assigning party of any of its
obligations hereunder.
Section 8.08 No Third-Party
Beneficiaries. Except as
provided in ARTICLE VII,
this Agreement is for the sole benefit of the parties hereto and
their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer upon any
other Person or entity any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this
Agreement.
14
Section 8.09 Amendment and
Modification; Waiver. This Agreement may only be amended, modified
or supplemented by an agreement in writing signed by each party
hereto. No waiver by any party of any of the provisions hereof
shall be effective unless explicitly set forth in writing and
signed by the party so waiving. No waiver by any party shall
operate or be construed as a waiver in respect of any failure,
breach or default not expressly identified by such written waiver,
whether of a similar or different character, and whether occurring
before or after that waiver. No failure to exercise, or delay in
exercising, any right, remedy, power or privilege arising from this
Agreement shall operate or be construed as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or
privilege.
Section 8.10 Governing Law; Submission
to Jurisdiction; Waiver of Jury Trial.
(a) This
Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York without giving effect to any
choice or conflict of law provision or rule (whether of the State
of New York or any other jurisdiction).
(b) ANY
LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED
IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS
OF THE STATE OF NEW YORK IN EACH CASE LOCATED IN THE CITY OF NEW
YORK AND COUNTY OF NEW YORK, AND EACH PARTY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION
OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER
DOCUMENT BY MAIL TO SUCH PARTY'S ADDRESS SET FORTH HEREIN SHALL BE
EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER
PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY
SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE
AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY TO
THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION
10.10(c).
Section 8.11 Counterparts.
This Agreement may be executed
in counterparts, each of which shall be deemed an original, but all
of which together shall be deemed to be one and the same agreement.
A signed copy of this Agreement delivered by facsimile, e-mail or
other means of electronic transmission shall be deemed to have the
same legal effect as delivery of an original signed copy of this
Agreement.
[SIGNATURE PAGE
FOLLOWS]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above by their
respective officers thereunto duly authorized.
CEL-SCI CORPORATION
By: /s/ Geert
Kersten
Name: Geert R. Kersten
Title: Chief Executive Officer
ERGOMED plc
By:
/s/ Stephen Stamp
Name: Stephen Stamp
Title: Chief Financial Officer
16
ANNEX A
See
Attached.
17
18
DISCLOSURE SCHEDULES
Section 3.03 Approval of the issuance
of the Shares by the NYSE American.
EXHIBITS
None.
19