EXHIBIT 10(n)
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RODMAN & RENSHAW
September 16, 2009
CONFIDENTIAL
Mr. Geert Kersten
Director and Chief Executive Office
CEL-SCI Corporation
8229 Boone Boulevard
Suite 802
Vienna, VA 22182
Dear Mr. Kersten:
This letter (the "Agreement")
constitutes the agreement between Rodman &
Renshaw, LLC ("Rodman" or the "Placement Agent") and CEL-SCI
Corporation (the
"Company"), that Rodman shall serve as the exclusive placement
agent for the
Company, on a "reasonable best efforts" basis, in connection with
the proposed
placement (the "Placement") of registered securities (the
"Securities") of the
Company, including shares (the "Shares") of the Company's common
stock, par
value $.01 per share (the "Common Stock") and warrants to purchase
shares of
Common Stock. The terms of such Placement and the Securities shall
be mutually
agreed upon by the Company and the purchasers (each, a "Purchaser"
and
collectively, the "Purchasers") and nothing herein constitutes that
Rodman would
have the power or authority to bind the Company or any Purchaser or
an
obligation for the Company to issue any Securities or complete the
Placement.
This Agreement and the documents executed and delivered by the
Company and the
Purchasers in connection with the Placement shall be collectively
referred to
herein as the "Transaction Documents." The date of the closing of
the Placement
shall be referred to herein as the "Closing Date." The Company
expressly
acknowledges and agrees that Rodman's obligations hereunder are on
a reasonable
best efforts basis only and that the execution of this Agreement
does not
constitute a commitment by Rodman to purchase the Securities and
does not ensure
the successful placement of the Securities or any portion thereof
or the success
of Rodman with respect to securing any other financing on behalf of
the Company.
SECTION 1. COMPENSATION AND OTHER FEES.
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As compensation for the services
provided by Rodman hereunder, the Company
agrees to pay to Rodman:
The fees set forth below with
respect to the Placement:
1. A cash fee payable
immediately upon the closing of the Placement
and
equal to 5% of the aggregate gross proceeds raised in the
Placement.
2. Such number of
warrants (the "Rodman Warrants") to Rodman
or its
designees at the Closing to purchase shares of Common
Stock equal to 5% of the
aggregate number of Shares sold in the Placement. The Rodman
Warrants shall have
the same terms as the warrants (if
any) issued to the Purchasers in the
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Placement except that the exercise price shall be 125%
of the public offering
price per share and the expiration date shall be five
years from the effective
date of the shelf registration statement referred to in
Section 2(A) below. The
Rodman Warrants shall not have antidilution protections
or be transferable for
six months from the date of the Offering
except as permitted by Financial
Industry Regulatory Authority ("FINRA") Rule 5110, and
further, the number of
Shares underlying the Rodman Warrants shall be
reduced if necessary to comply
with FINRA rules or regulations.
3. The Company agrees to
reimburse Rodman's expenses up to and including
$37,500 (with supporting invoices/receipts) in
accordance with the registered
public offering engagement letter between the Company and Rodman
dated September
3, 2009. No other expense reimbursement will be due to Rodman in
connection with
the Placement.
SECTION 2. REGISTRATION STATEMENT.
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The Company represents and warrants
to, and agrees with, the Placement
Agent that:
(A) The Company has filed with the
Securities and Exchange Commission (the
"Commission") a registration statement on
Form S-3 (Registration File No.
333-160794) under the Securities Act of 1933, as amended (the
"Securities Act"),
which became effective on August 12,
2009, for the registration under the
Securities Act of the Shares. At the time of such
filing, the Company met the
requirements of Form S-3 under the Securities Act. Such
registration statement
meets the requirements set forth in Rule 415(a)(1)(x)
under the Securities Act
and complies with said Rule. The Company will file with the
Commission pursuant
to Rule 424(b) under the Securities Act, and the
rules and regulations (the
"Rules and Regulations") of the Commission promulgated
thereunder, a supplement
to the form of prospectus included in such registration
statement relating to
the placement of the Shares and the plan of distribution thereof
and has advised
the Placement Agent of all further
information (financial and other) with
respect to the Company required to be set
forth therein. Such registration
statement, including the exhibits
thereto, as amended at the date of this
Agreement, is hereinafter called the "Registration
Statement"; such prospectus
in the form in which it appears in the Registration
Statement is hereinafter
called the "Base Prospectus"; and the supplemented form
of prospectus, in the
form in which it will be filed with the
Commission pursuant to Rule 424(b)
(including the Base Prospectus as so
supplemented) is hereinafter called the
"Prospectus Supplement." Any reference in this
Agreement to the Registration
Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to
refer to and include the documents
incorporated by reference therein (the
"Incorporated Documents") pursuant to Item 12 of Form S-3 which
were filed under
the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on or
before the date of this Agreement, or the issue date of
the Base Prospectus or
the Prospectus Supplement, as the
case may be; and any reference in this
Agreement to the terms "amend," "amendment" or "supplement"
with respect to the
Registration Statement, the Base Prospectus or the
Prospectus Supplement shall
be deemed to refer to and include the filing of any document
under the Exchange
Act after the date of this Agreement, or the issue date
of the Base Prospectus
or the Prospectus Supplement, as the case may
be, deemed to be incorporated
therein by reference. All references in this Agreement to
financial statements
and schedules and other
information that is
"contained," "included,"
"described," "referenced," "set
forth" or "stated" in the
Registration
Statement, the Base Prospectus or the
Prospectus Supplement (and all other
references of like import) shall be
deemed to mean and include all such
financial statements and schedules and other information that is or
is deemed to
be incorporated by reference in the Registration Statement,
the Base Prospectus
or the Prospectus Supplement, as the case may be. No
stop order suspending the
effectiveness of the Registration Statement or the use of the Base
Prospectus or
the Prospectus Supplement has been
issued, and no proceeding for any such
purpose is pending or has been initiated or, to
the Company's knowledge, is
threatened by the Commission. For purposes of
this Agreement, "free writing
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prospectus" has the meaning set forth in Rule 405 under
the Securities Act and
the "Time of Sale Prospectus" means the preliminary prospectus, if
any, together
with the free writing prospectuses,
if any, used in connection with the
Placement, including any documents incorporated by reference
therein.
(B) The Registration Statement (and
any further documents to be filed with
the Commission) contains all exhibits
and schedules as required by the
Securities Act. Each of the Registration
Statement and any post-effective
amendment thereto, at the time it became
effective, complied in all material
respects with the Securities Act and the Exchange Act and the
applicable Rules
and Regulations and did not and, as amended or supplemented, if
applicable, will
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
not misleading. The Base Prospectus, the Time of Sale
Prospectus, if any, and
the Prospectus Supplement, each as of
its respective date, comply in all
material respects with the Securities
Act and the Exchange Act and the
applicable Rules and Regulations. Each of the Base
Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement, as
amended or supplemented,
did not and will not contain as of the date thereof any
untrue statement of a
material fact or omit to state a material fact
necessary in order to make the
statements therein, in light of the circumstances
under which they were made,
not misleading. The Incorporated
Documents, when they were filed with the
Commission, conformed in all material
respects to the requirements of the
Exchange Act and the applicable
Rules and Regulations, and none of such
documents, when they were filed with the
Commission, contained any untrue
statement of a material fact or omitted to state a
material fact necessary to
make the statements therein (with respect to Incorporated Documents
incorporated
by reference in the Base Prospectus or Prospectus
Supplement), in light of the
circumstances under which they were
made not misleading; and any further
documents so filed and incorporated by reference in the
Base Prospectus, the
Time of Sale Prospectus, if any, or Prospectus
Supplement, when such documents
are filed with the Commission, will conform in
all material respects to the
requirements of the Exchange Act and the applicable Rules
and Regulations, as
applicable, and will not contain any untrue statement of a material
fact or omit
to state a material fact necessary to make the statements
therein, in light of
the circumstances under which they were made, not misleading.
No post-effective
amendment to the Registration Statement reflecting any
facts or events arising
after the date thereof which represent,
individually or in the aggregate, a
fundamental change in the information set forth therein is
required to be filed
with the Commission. There are no
documents required to be filed with the
Commission in connection with the transaction contemplated
hereby that (x) have
not been filed as required pursuant to the
Securities Act or (y) will not be
filed within the requisite time
period. There are no contracts or other
documents required to be described in the
Base Prospectus, the Time of Sale
Prospectus, if any, or Prospectus
Supplement, or to be filed as exhibits or
schedules to the Registration Statement, that have not
been described or filed
as required.
(C) The Company is eligible to use free
writing prospectuses in connection
with the Placement pursuant to Rules 164 and 433 under the
Securities Act. Any
free writing prospectus that the Company is required to
file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed
with the Commission
in accordance with the requirements of the
Securities Act and the applicable
rules and regulations of the Commission thereunder. Each free
writing prospectus
that the Company has filed, or is required
to file, pursuant to Rule 433(d)
under the Securities Act or that was
prepared by or behalf of or used by the
Company complies or will comply in all material
respects with the requirements
of the Securities Act and the applicable rules and regulations of
the Commission
thereunder. The Company will not, without the
prior consent of the Placement
Agent, prepare, use or refer to, any free writing prospectus.
(D) The Company has delivered, or
will as promptly as practicable deliver,
to the Placement Agent complete conformed copies of the
Registration Statement
and of each consent and certificate of experts, as
applicable, filed as a part
thereof, and conformed copies of the Registration Statement
(without exhibits),
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the Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus
Supplement, as amended or supplemented, in such quantities and at
such places as
the Placement Agent reasonably
requests. Neither the Company nor any of its
directors and officers has distributed and none of them will
distribute, prior
to the Closing Date, any offering material in
connection with the offering and
sale of the Shares other than the Base Prospectus, the Time
of Sale Prospectus,
if any, the Prospectus Supplement, the
Registration Statement, copies of the
documents incorporated by reference therein and any other materials
permitted by
the Securities Act.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Except as set forth
under the
corresponding section of the Disclosure Schedules which Disclosure
Schedules
shall be deemed a part hereof, the Company hereby makes the
representations and
warranties set forth below to the Placement Agent.
(A) Organization and
Qualification. All of the direct
and indirect
subsidiaries (individually, a "Subsidiary")
of the Company are set forth on
Schedule 3(A). Except as disclosed on Schedule 3(A), the Company
owns, directly
or indirectly, all of the capital stock or
other equity interests of each
Subsidiary free and clear of any "Liens" (which for
purposes of this Agreement
shall mean a lien, charge, security
interest, encumbrance, right of first
refusal, preemptive right or other
restriction), and all the issued and
outstanding shares of capital stock of each
Subsidiary are validly issued and
are fully paid, non-assessable and free of
preemptive and similar rights to
subscribe for or purchase securities. The Company and
each of the Subsidiaries
is an entity duly incorporated or otherwise organized,
validly existing and in
good standing under the laws of the
jurisdiction of its incorporation or
organization (as applicable), with the requisite power and
authority to own and
use its properties and assets and to
carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in
violation or default of
any of the provisions of
its respective certificate
or articles of
incorporation, bylaws or other organizational or charter
documents. Each of the
Company and the Subsidiaries is duly qualified to
conduct business and is in
good standing as a foreign corporation or other entity in
each jurisdiction in
which the nature of the business conducted or
property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good
standing, as the case may be, could not have or reasonably be
expected to result
in (i) a material adverse effect on the legality, validity or
enforceability of
any Transaction Document, (ii) a material
adverse effect on the results of
operations, assets, business, prospects or condition (financial or
otherwise) of
the Company and the Subsidiaries, taken as a whole, or (iii)
a material adverse
effect on the Company's ability to perform in any
material respect on a timely
basis its obligations under any Transaction Document (any of (i),
(ii) or (iii),
a "Material Adverse Effect") and no
"Proceeding" (which for purposes of this
Agreement shall mean any action, claim,
suit, investigation or proceeding
(including, without limitation, an investigation or partial
proceeding, such as
a deposition), whether commenced or threatened) has been
instituted in any such
jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or
curtail such power and authority or qualification.
(B) Authorization;
Enforcement. The Company has the requisite
corporate
power and authority to enter
into and to consummate
the transactions
contemplated by each of the Transaction Documents and otherwise to
carry out its
obligations hereunder and thereunder. The execution and
delivery of each of the
Transaction Documents by the Company
and the consummation by it of the
transactions contemplated thereby have been duly
authorized by all necessary
action on the part of the Company and no
further action is required by the
Company, its board of directors or its
stockholders in connection therewith
other than in connection with the "Required Approvals" (as defined
in subsection
3(D) below). Each Transaction Document has been
(or upon delivery will have
been) duly executed by the Company and, when delivered
in accordance with the
terms hereof and thereof, will constitute the valid and
binding obligation of
the Company enforceable against the Company in accordance
with its terms except
(i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium
and other laws of general application affecting enforcement of
creditors' rights
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generally and (ii) as limited by laws relating to the
availability of specific
performance, injunctive relief or other equitable remedies.
(C) No Conflicts.
The execution, delivery and
performance of the
Transaction Documents by the Company, the issuance and
sale of the Securities
and the consummation by the Company of the
other transactions contemplated
hereby and thereby do not and will
not (i) conflict with or violate any
provision of the Company's or any
Subsidiary's certificate or articles of
incorporation, bylaws or other organizational or
charter documents, or (ii)
conflict with, or constitute a default (or an event that with
notice or lapse of
time or both would become a default) under, result in
the creation of any Lien
upon any of the properties or assets of the Company or any
Subsidiary, or give
to others any rights of termination, amendment,
acceleration or cancellation
(with or without notice, lapse of time or
both) of, any agreement, credit
facility, debt or other instrument (evidencing a
Company or Subsidiary debt or
otherwise) or other understanding to which the Company
or any Subsidiary is a
party or by which any property or asset of the
Company or any Subsidiary is
bound or affected, or (iii) subject to the Required
Approvals, conflict with or
result in a violation of any law, rule, regulation, order,
judgment, injunction,
decree or other restriction of any court or governmental
authority to which the
Company or a Subsidiary is subject (including federal and
state securities laws
and regulations), or by which any
property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each
of clauses (ii) and
(iii), such as could not have or reasonably be expected to
result in a Material
Adverse Effect.
(D) Filings, Consents and Approvals.
The Company is not required to obtain
any consent, waiver, authorization or order of, give any
notice to, or make any
filing or registration with, any court or other
federal, state, local or other
governmental authority or other
"Person" (defined as an
individual or
corporation, partnership, trust, incorporated or
unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an
agency or subdivision thereof) or other entity of any kind,
including, without
limitation, any Trading Market) in connection with the
execution, delivery and
performance by the Company of the Transaction Documents, other than
such filings
as are required to be made under applicable Federal and
state securities laws
(collectively, the "Required Approvals") and filings with the NYSE
Amex.
(E) Issuance of the
Securities; Registration. The Securities
are duly
authorized and, when issued and paid for in
accordance with the applicable
Transaction Documents, will be duly
and validly issued, fully paid
and
nonassessable, free and clear of all Liens imposed by
the Company other than
restrictions on transfer provided for in the Transaction
Documents. The Company
has reserved from its duly authorized capital stock the maximum
number of shares
of Common Stock issuable pursuant to the Transaction
Documents. The issuance by
the Company of the Securities has been registered under
the Securities Act and
all of the Securities are freely
transferable and tradable by the Purchasers
without restriction (other than any restrictions
arising solely from an act or
omission of a Purchaser). The
Securities are being issued pursuant to the
Registration Statement and the issuance of the Securities has been
registered by
the Company under the Securities Act. The
Registration Statement is effective
and available for the issuance of the Securities thereunder
and the Company has
not received any notice that the Commission
has issued or intends to issue a
stop-order with respect to the Registration
Statement or that the Commission
otherwise has suspended or withdrawn the
effectiveness of the Registration
Statement, either temporarily or permanently, or
intends or has threatened in
writing to do so. The "Plan of Distribution"
section under the Registration
Statement permits the issuance and sale of
the Securities hereunder. Upon
receipt of the Securities, the Purchasers will have good and
marketable title to
such Securities and the Securities will be freely tradable on the
NYSE Amex (the
"Trading Market").
(F) Capitalization. The
capitalization of the Company is as set forth on
Schedule 3(F). Except as shown on Schedule 3(F), the Company
has not issued any
capital stock since its most recently filed periodic
report under the Exchange
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Act, other than pursuant to the exercise of
employee stock options under the
Company's stock option plans, the
issuance of shares of Common Stock to
employees pursuant to the Company's employee stock purchase plan
and pursuant to
the conversion or exercise of
securities exercisable,
exchangeable or
convertible into Common Stock ("Common Stock
Equivalents"). No Person has any
right of first refusal, preemptive right, right of participation,
or any similar
right to participate in the
transactions contemplated by the
Transaction
Documents. Except as shown on Schedule
3(F), and except as a result of the
purchase and sale of the Securities, there are no outstanding
options, warrants,
script rights to subscribe to, calls or commitments of any
character whatsoever
relating to, or securities,
rights or obligations convertible
into or
exercisable or exchangeable for, or giving any Person any right to
subscribe for
or acquire, any shares of
Common Stock, or
contracts, commitments,
understandings or arrangements by which the Company or any
Subsidiary is or may
become bound to issue additional shares
of Common Stock or Common Stock
Equivalents. The issuance and sale of the
Securities will not obligate the
Company to issue shares of Common Stock or other securities to any
Person (other
than the Purchasers) and will not result in a
right of any holder of Company
securities to adjust the exercise,
conversion, exchange or reset price under
such securities. All of the outstanding shares of
capital stock of the Company
are validly issued, fully paid and nonassessable, have been issued
in compliance
with all federal and state securities laws, and none of such
outstanding shares
was issued in violation of any preemptive rights or similar
rights to subscribe
for or purchase securities. Except for the approval of the NYSE
Amex, no further
approval or authorization of any
stockholder, the Board of Directors of the
Company or others is required for the issuance and sale of the
Securities. There
are no stockholders agreements, voting agreements or
other similar agreements
with respect to the Company's capital stock to which the
Company is a party or,
to the knowledge of the Company,
between or among any of the
Company's
stockholders.
(G) SEC Reports;
Financial Statements. The Company has complied in
all
material respects with requirements to file
all reports, schedules, forms,
statements and other documents required to be filed by
it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a)
or 15(d) thereof,
for the two years preceding the date hereof
(or such shorter period as the
Company was required by law to file such material)
(the foregoing materials,
including the exhibits thereto and documents incorporated by
reference therein,
being collectively referred to herein as the "SEC Reports") on a
timely basis or
has received a valid extension of such time of filing and has filed
any such SEC
Reports prior to the expiration of any such extension.
As of their respective
dates, the SEC Reports complied in all material
respects with the requirements
of the Securities Act and the Exchange Act and the rules and
regulations of the
Commission promulgated thereunder, and none of
the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to
state a material
fact required to be stated therein or necessary in order to
make the statements
therein, in the light of the circumstances
under which they were made, not
misleading. The financial statements of the Company included
in the SEC Reports
comply in all material respects with applicable accounting
requirements and the
rules and regulations of the Commission with respect thereto as in
effect at the
time of filing. Such financial statements have been prepared
in accordance with
United States generally accepted accounting principles
applied on a consistent
basis during the periods involved ("GAAP"), except as may be
otherwise specified
in such financial statements or the notes
thereto and except that unaudited
financial statements may not contain all footnotes required
by GAAP, and fairly
present
