SECURITIES PURCHASE AGREEMENT between CEL-SCI CORPORATION and ERGOMED plc dated as of June 29, 2020
EXHIBIT 10.11
between
CEL-SCI CORPORATION
and
ERGOMED plc
dated as of
June 29, 2020
1
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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5
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Section 2.03 Closing.
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6
|
|
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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6
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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 SERVICE
PROVIDER
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7
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Section 4.01 Organization and Authority of Service
Provider.
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7
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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 Service
Provider.
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8
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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 Service
Provider.
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10
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Section 6.03 Application of Resale Proceeds.
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10
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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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11
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Section 7.04 Tax Treatment of Indemnification
Payments.
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11
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Section 7.05 Effect of Investigation.
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11
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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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12
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Section 8.03 Interpretation.
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13
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Section 8.04 Headings.
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13
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Section 8.05 Severability.
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13
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Section 8.06 Entire Agreement.
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13
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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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14
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Section 8.10 Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial.
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14
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Section 8.11 Counterparts.
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15
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2
This Securities
Purchase Agreement (this "Agreement"),
dated as June 29, 2020, 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 ("Service
Provider").
Recitals
WHEREAS, the
Company has authorized the issuance by the Company of 50,000 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 shall owe from time to time
to the Service Provider fees for services
(“Payables”)
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 Service Provider
in exchange for satisfaction of the Payables balance in an amount
equal to the Net Proceeds, if any, received by Service Provider
upon any resale by Service Provider 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.
3
"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.
"Service
Provider" has the meaning set forth
in the preamble.
"Service
Provider Indemnitees" has the meaning set forth
in Section
7.02.
"CTOs"
has the meaning set forth in the
recitals.
"Payables"
has the meaning set forth in the
recitals.
"Disclosure
Schedules" means the Disclosure
Schedules delivered by the Company and Service Provider
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.
4
"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 Service Provider
upon the sale of any Shares, net of out-of-pocket fees, costs and
expenses paid or payable by Service Provider 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 50,000 Shares to Service Provider in exchange for the
outstanding payables.
Section 2.02 Transactions
Effected at the Closing.
(a) At
the Closing, Service Provider shall deliver to the
Company:
(i) all
documents, instruments or certificates required to be delivered by
Service Provider at or prior to the Closing pursuant to
Section 5.03
of this
Agreement.
5
(b) At
the Closing, the Company shall deliver to Service
Provider:
(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 2.03 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 Service Provider 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 July 10, 2020, 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 Service Provider 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 Service Provider) 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 Service
Provider.
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.
6
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 Service Provider’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 Service Provider true and complete
copies of such SEC Documents and shall promptly deliver or make
available to Service Provider 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 December 19, 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.
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES OF SERVICE
PROVIDER
Service
Provider 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 Service Provider. Service Provider is a
public limited company properly organized under the Laws of England
and Wales. Service Provider 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 Service Provider of this Agreement,
the performance by Service Provider of its obligations hereunder
and the consummation by Service Provider of the transactions
contemplated hereby have been duly authorized by all requisite
action on the part of Service Provider. This Agreement has been
duly executed and delivered by Service Provider, and (assuming due
authorization, execution and delivery by the Company) this
Agreement constitutes a legal, valid and binding obligation of
Service Provider enforceable against Service Provider in accordance
with its terms.
7
Section 4.02 No
Conflicts; Consents. The execution, delivery and
performance by Service Provider 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 Service Provider; (b) conflict with or
result in a violation or breach of any provision of any Law or
Governmental Order applicable to Service Provider; or (c) require
the consent, notice or other action by any Person under any
Contract to which Service Provider 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 Service Provider in connection with the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby.
Section 4.03 Restricted
Securities. Service Provider
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 Service Provider.
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:
(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 Service Provider and the
Company, and no such consent, authorization, order and approval
shall have been revoked.
Section 5.02 Conditions
to Obligations of Service Provider. The obligations of Service
Provider to consummate the transactions contemplated by this
Agreement shall be subject to the fulfilment or Service Provider's
waiver (with the exception of (b) below), at or prior to the
Closing, of each of the following
conditions:
8
(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, Service Provider 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 Service Provider.
(d) Service
Provider 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.
(e) The
Company shall have delivered to Service Provider 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 Service
Provider each of the following, each in form and substance
satisfactory to Service Provider:
(i) stock
certificates evidencing the Shares;
and
(ii) such
other documents or instruments as Service Provider reasonably
requests and are reasonably necessary to consummate the
transactions contemplated by this
Agreement.
9
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 fulfilment or the Company's
waiver, at or prior to the Closing, of each of the following
conditions:
(a) The
representations and warranties of Service Provider 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 Service Provider,
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, Service Provider shall have a right to
return any unsold Shares to the Company for
cancellation.
Section 6.02 Negative
Covenant of Service Provider. Unless Service Provider has
received the prior written consent or waiver of the Company,
Service Provider shall not sell more than 2% of that day’s
trading volume on any single day.
Section 6.03 Payables
Reduction/Application of Net Proceeds. The Payables will be
decreased by the amount received by the Service Provider from the
Net Proceeds received by the Service Provider from the sale of the
Shares. Service Provider will only sell Shares to pay amounts owed
to Service Provider by the Company in connection with the Principal
Relationship Agreements. The Service Provider shall not sell the
Shares to the extent that Net Proceeds exceed the total of
$….0 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
Service Provider will return all unsold Shares to the Company
within 30 (thirty) days from achieving the
Ceiling.
10
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 Service Provider and its
Affiliates and their respective Representatives (collectively, the
"Service
Provider 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 Service Provider 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
(b) any
breach or non-fulfilment 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 Service Provider 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 Service Provider
Indemnitee (including by any of its Representatives) or by reason
of the fact that an Service Provider 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 Service Provider Indemnitee's waiver of any condition
set forth in Section
5.02.
11
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 wilful 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.
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):
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If to the Company:
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CEL-SCI Corporation
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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E-mail:
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive
Officer
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with a copy to:
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▇▇▇▇ & ▇▇▇▇, LLC
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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E-mail:
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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If to Service Provider:
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Ergomed plc
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1 Occam Court
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Surrey Research Park
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E-mail:
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial
Officer
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with a copy to:
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ERGOMED PLC
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1 Occam Court
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Surrey Research ▇▇▇▇
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E-mail:
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Attention: ▇▇▇▇▇ ▇▇▇▇▇, General Counsel
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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.
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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 Service
Provider 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.
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 ▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ 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.
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(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]
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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 ▇. ▇▇▇▇▇▇▇
Name: Geert ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
ERGOMED plc
By:
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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DISCLOSURE SCHEDULES
Section
3.03 Approval of the issuance of the Shares by the NYSE
American.
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EXHIBITS
None.
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