EXHIBIT 10(k)
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COMMON STOCK PURCHASE WARRANT
CEL-SCI CORPORATION
Warrant Shares:
8,375,000
Initial Exercise Date: December 24, 2009
Issue
Date: June 24, 2009
THIS COMMON STOCK PURCHASE
WARRANT (the "Warrant") certifies that, for
value received, BAM Opportunity Fund LP (the
"Holder") is entitled, upon the
terms and subject to the limitations on exercise and the
conditions hereinafter
set forth, at any time on or after December 24,
2009 (the "Initial Exercise
Date") and on or prior to the close of business on the 5 year
anniversary of the
Initial Exercise Date (the "Termination Date") but not
thereafter, to subscribe
for and purchase from Cel-Sci
Corporation, a Colorado corporation
(the
"Company"), up to 8,375,000 shares (the "Warrant
Shares") of Common Stock. The
purchase price of one share of Common Stock under this Warrant
shall be equal to
the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in that
certain Securities Purchase
Agreement (the "Purchase Agreement"), dated June 23, 2009, among
the Company and
the purchasers signatory thereto.
Section 2. Exercise.
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a) Exercise
of Warrant. Exercise of the purchase rights represented by
this Warrant may be made, in whole
or in part, at any time or times on or
after the Initial Exercise Date and
on or before the Termination Date by
delivery to the Company (or such
other office or agency of the Company as
it may designate by notice
in writing to the registered Holder at
the
address of the Holder
appearing on the books of the Company) of a
duly
executed facsimile copy of the Notice of
Exercise Form annexed hereto; and,
within three (3) Trading
Days of the date said Notice of Exercise
is
delivered to the Company, the
Company shall have received payment of the
aggregate Exercise Price of the
shares thereby purchased by wire transfer
or cashier's check drawn on a United
States bank or, if available, pursuant
to the cashless exercise
procedure specified in Section 2(c)
below.
Notwithstanding anything
herein to the contrary, the Holder shall not be
required to physically
surrender this Warrant to the Company until
the
Holder has purchased all of the Warrant
Shares available hereunder and the
Warrant has been
exercised in full, in which case, the
Holder shall
surrender this Warrant to the
Company for cancellation within three (3)
Trading Days of the date the
final Notice of Exercise is delivered to the
Company. Partial
exercises of this Warrant resulting in purchases
of a
portion of the total number of
Warrant Shares available hereunder
shall
have the effect of
lowering the outstanding number of
Warrant Shares
purchasable hereunder in
an amount equal to the applicable
number of
Warrant Shares purchased. The Holder and
the Company shall maintain records
showing the number
of Warrant Shares purchased and the
date of such
purchases. The Company
shall deliver any objection to any
Notice of
Exercise Form within 1 Business Day of
receipt of such notice. In the event
of any dispute or
discrepancy, the records of the
Holder shall be
controlling and determinative in the
absence of manifest error. The Holder
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and any assignee, by
acceptance of this Warrant, acknowledge and
agree
that, by reason of the provisions of this
paragraph, following the purchase
of a portion of the Warrant Shares
hereunder, the number of Warrant Shares
available for purchase
hereunder at any given time may be less than the
amount stated on the face hereof.
b)
Exercise Price. The exercise price per share of
the Common Stock
under this Warrant shall be
$0.50, subject to adjustment hereunder (the
"Exercise Price").
c)
Cashless Exercise. If at the time of exercise
hereof there is no
effective registration statement
registering, or the prospectus contained
therein is not available for
the issuance of the Warrant Shares to the
Holder and all of the Warrant Shares are
not then registered for resale by
Holder into the market at market
prices from time to time on an effective
registration statement for use
on a continuous basis (or the prospectus
contained therein is not available
for use), then this Warrant may also be
exercised, in whole or
in part, at such time by means of a
"cashless
exercise" in which the Holder
shall be entitled to receive a certificate
for the number of Warrant Shares equal to
the quotient obtained by dividing
[(A-B) (X)] by (A), where:
(A) = the VWAP on the Trading Day immediately preceding
the date
on which Holder elects to exercise this Warrant by means of a
"cashless exercise," as set forth in the applicable Notice of
Exercise;
(B) = the Exercise Price of this Warrant, as adjusted
hereunder;
and
(X) = the number of Warrant Shares that would be
issuable upon
exercise of this Warrant in accordance with the terms of this
Warrant if such exercise were by means of a cash exercise
rather than a cashless exercise.
"VWAP"
means, for any date, the price determined by the first
of the
following clauses that
applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the
daily volume weighted average price of the
Common Stock for such date (or the
nearest preceding date) on the Trading
Market on which the Common Stock is
then listed or quoted as reported by
Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time)
to 4:02 p.m. (New York City time),
(b) if the OTC Bulletin Board is not a
Trading Market, the volume
weighted average price of the Common Stock for
such date (or the nearest preceding date)
on the OTC Bulletin Board, (c) if
the Common Stock is not
then listed or quoted for trading on
the OTC
Bulletin Board and if prices for the
Common Stock are then reported in the
"Pink Sheets"
published by Pink OTC Markets,
Inc. (or a similar
organization or agency
succeeding to its functions of reporting prices),
the most recent bid price per share of the
Common Stock so reported, or (d)
in all other cases, the fair
market value of a share of Common Stock as
determined by an
independent appraiser selected in good
faith by the
Holders of a majority in interest of the
Securities then outstanding and
reasonably acceptable to the
Company, the fees and expenses of which shall
be paid by the Company.
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Notwithstanding anything herein to the contrary,
on the Termination
Date, this Warrant shall be
automatically exercised via cashless exercise
pursuant to this Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of Certificates Upon
Exercise. Certificates for
shares
purchased hereunder shall be transmitted by the Transfer
Agent
to the
Holder by crediting the account of the Holder's
prime broker
with the
Depository Trust Company through its Deposit Withdrawal Agent
Commission ("DWAC") system if the Company is then
a participant in
such
system and either (A) there is
an effective Registration
Statement permitting the issuance of the Warrant Shares
to or resale
of the
Warrant Shares by Holder or (B) this Warrant is being exercised
via
cashless exercise, and otherwise by
physical delivery to the
address specified by the Holder in the Notice of Exercise by
the date
that is
three (3) Trading Days after the latest of (A) the delivery to
the
Company of the Notice of Exercise Form, (B)
surrender of this
Warrant (if
required) and (C) payment of the aggregate Exercise Price
as set forth
above (including by cashless exercise,
if permitted)
(such date,
the "Warrant Share Delivery Date"). This Warrant shall be
deemed to
have been exercised on the first date on which
all of the
foregoing
have been delivered to the Company. The Warrant Shares shall
be
deemed to have been issued, and
Holder or any other person so
designated
to be named therein shall be deemed to have become a holder
of record of
such shares for all purposes, as of the date the Warrant
has been
exercised, with payment to the Company of the Exercise
Price
(or by
cashless exercise, if permitted) and all taxes required
to be
paid by the
Holder, if any, pursuant to Section 2(d)(vi) prior to the
issuance of
such shares, having been paid. If the Company
fails for
any
reason to deliver to the Holder
certificates evidencing the
Warrant Shares subject to a Notice of Exercise by the
Warrant Share
Delivery Date, the Company shall pay to
the Holder, in cash, as
liquidated damages and not as a penalty, for each
$1,000 of Warrant
Shares
subject to such exercise (based on the VWAP of the Common Stock
on the date
of the applicable Notice of Exercise), $10 per Trading Day
(increasing
to $20 per Trading Day on the fifth Trading Day after such
liquidated damages begin to accrue) for each
Trading Day after such
Warrant
Share Delivery Date until such certificates are
delivered or
Holder
rescinds such exercise.
ii. Delivery of New Warrants Upon Exercise. If this Warrant
shall
have been
exercised in part, the Company shall, at the
request of a
Holder and
upon surrender of this Warrant certificate, at the time
of
delivery of the certificate or
certificates representing Warrant
Shares, deliver to Holder a new Warrant
evidencing the rights of
Holder to
purchase the unpurchased Warrant Shares called for by
this
Warrant, which new Warrant shall in all other
respects be identical
with this
Warrant.
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iii. Rescission Rights. If the
Company fails to cause the
Transfer Agent to transmit to
the Holder a certificate or the
certificates representing the Warrant
Shares pursuant to Section
2(d)(i) by
the Warrant Share Delivery Date, then, the Holder will have
the right to
rescind such exercise.
iv. Compensation for Buy-In on
Failure to Timely Deliver
Certificates
Upon Exercise. In addition to any other rights available
to the
Holder, if the Company fails to cause the
Transfer Agent to
transmit to
the Holder a certificate or the certificates representing
the
Warrant Shares pursuant to an exercise on or before the
Warrant
Share
Delivery Date, and if after such date the Holder is required by
its broker
to purchase (in an open market transaction or otherwise) or
the
Holder's brokerage firm otherwise
purchases, shares of Common
Stock
to deliver in satisfaction of a sale by
the Holder of the
Warrant Shares which the Holder
anticipated receiving upon such
exercise
(a "Buy-In"), then the Company shall (A) pay in cash to
the
Holder the
amount, if any, by which (x) the Holder's total
purchase
price
(including brokerage commissions, if any) for
the shares of
Common
Stock so purchased exceeds (y)
the amount obtained by
multiplying (1) the number of Warrant Shares that
the Company was
required to
deliver to the Holder in connection with the exercise
at
issue times
(2) the price at which the sell order giving rise to such
purchase
obligation was executed, and (B) at the option of the Holder,
either
reinstate the portion of the Warrant and equivalent number
of
Warrant Shares for which such exercise was not honored (in
which case
such
exercise shall be deemed rescinded) or deliver to the Holder
the
number of
shares of Common Stock that would have been issued had
the
Company timely complied with its exercise and
delivery obligations
hereunder. For example, if the Holder purchases Common Stock
having a
total
purchase price of $11,000 to cover a Buy-In with respect to
an
attempted exercise of shares of Common Stock with an
aggregate sale
price giving
rise to such purchase obligation of $10,000, under clause
(A) of
the immediately preceding sentence
the Company shall be
required to pay the Holder $1,000. The
Holder shall provide the
Company
written notice indicating the amounts payable to the Holder in
respect of
the Buy-In and, upon request of the Company,
evidence of
the amount
of such loss. Nothing herein shall limit a Holder's
right
to pursue
any other remedies available to it hereunder, at law or
in
equity
including, without limitation, a decree of specific performance
and/or
injunctive relief with respect to the
Company's failure to
timely
deliver certificates representing shares of Common
Stock upon
exercise of
the Warrant as required pursuant to the terms hereof.
v. No Fractional Shares or Scrip. No fractional shares
or scrip
representing fractional shares shall be issued
upon the exercise of
this
Warrant. As to any fraction of a share which the
Holder would
otherwise be entitled to purchase upon such
exercise, the Company
shall,
at its election, either pay a cash adjustment in
respect of
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such final
fraction in an amount equal to such fraction multiplied
by
the Exercise
Price or round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of
certificates for
Warrant Shares shall be made without charge
to the Holder for any
issue or
transfer tax or other incidental expense in
respect of the
issuance of
such certificate, all of which taxes and expenses shall be
paid by the
Company, and such certificates shall be issued in the name
of the
Holder or in such name or names as may be
directed by the
Holder;
provided, however, that in the event certificates for
Warrant
Shares are
to be issued in a name other than the name of the
Holder,
this Warrant
when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by
the Holder and the
Company may require, as a condition
thereto, the payment of a sum
sufficient
to reimburse it for any transfer tax incidental thereto.
vii. Closing of Books. The Company will not close its
stockholder
books or
records in any manner which prevents the timely
exercise of
this
Warrant, pursuant to the terms hereof.
e)
Holder's Exercise Limitations. The Company
shall not effect any
exercise of this Warrant, and a Holder
shall not have the right to exercise
any portion of this Warrant,
pursuant to Section 2 or otherwise, to the
extent that after giving
effect to such issuance after exercise as set
forth on the applicable Notice of
Exercise, the Holder (together with the
Holder's Affiliates, and any other
Persons acting as a group together with
the Holder or any of the Holder's
Affiliates), would beneficially own in
excess of the Beneficial
Ownership Limitation (as defined below).
For
purposes of the foregoing
sentence, the number of shares of Common Stock
beneficially owned by the
Holder and its Affiliates shall include
the
number of shares of Common
Stock issuable upon exercise of this Warrant
with respect to which such
determination is being made, but shall exclude
the number of shares of Common
Stock which would be issuable upon (i)
exercise of the
remaining, nonexercised portion
of this Warrant
beneficially owned by the Holder or any of
its Affiliates and (ii) exercise
or conversion of the
unexercised or nonconverted portion of any
other
securities of the Company
(including, without limitation, any other Common
Stock Equivalents) subject to
a limitation on conversion or
exercise
analogous to the limitation
contained herein beneficially owned by the
Holder or any of its
Affiliates. Except as set forth in the
preceding
sentence, for purposes of this
Section 2(e), beneficial ownership shall be
calculated in accordance
with Section 13(d) of the Exchange Act and the
rules and regulations promulgated
thereunder, it being acknowledged by the
Holder that the Company
is not representing to the Holder
that such
calculation is in compliance with Section
13(d) of the Exchange Act and the
Holder is solely responsible
for any schedules required to be filed in
accordance therewith. To the
extent that the limitation contained in this
Section 2(e) applies,
the determination of whether this
Warrant is
exercisable (in relation to other
securities owned by the Holder together
with any Affiliates) and of
which portion of this Warrant is exercisable
shall be in the sole
discretion of the Holder, and the
submission of a
Notice of Exercise shall be
deemed to be the Holder's determination of
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whether this Warrant is exercisable (in
relation to other securities owned
by the Holder together with
any Affiliates) and of which portion of this
Warrant is exercisable, in
each case subject to the Beneficial Ownership
Limitation, and the Company
shall have no obligation to verify or confirm
the accuracy of such determination.
In addition, a determination as to any
group status as contemplated
above shall be determined in accordance with
Section 13(d) of the Exchange Act and the
rules and regulations promulgated
thereunder. For purposes of this Section
2(e), in determining the number of
outstanding shares of Common
Stock, a Holder may rely on the number of
outstanding shares of Common Stock
as reflected in (A) the Company's most
recent periodic or annual report filed
with the Commission, as the case may
be, (B) a more recent
public announcement by the Company or (C) a
more
recent written notice by the
Company or the Transfer Agent setting forth
the number of shares of Common Stock
outstanding. Upon the written or oral
request of a Holder, the
Company shall within two Trading Days
confirm
orally and in writing to the
Holder the number of shares of Common Stock
then outstanding. In any case, the
number of outstanding shares of Common
Stock shall be determined after giving
effect to the conversion or exercise
of securities of the Company,
including this Warrant, by the Holder or its
Affiliates since the date as of which such
number of outstanding shares of
Common Stock was reported. The
"Beneficial Ownership Limitation" shall be
4.9% of the number of shares of the
Common Stock outstanding immediately
after giving effect to the issuance of
shares of Common Stock issuable upon
exercise of this Warrant.
The Holder, upon not less than 61 days' prior
notice to the Company, may increase
or decrease the Beneficial Ownership
Limitation provisions of this
Section 2(e), provided that the Beneficial
Ownership Limitation in no
event exceeds 9.99% of the number of shares of
the Common Stock
outstanding immediately after giving effect
to the
issuance of shares of Common Stock
upon exercise of this Warrant held by
the Holder and the provisions of this
Section 2(e) shall continue to apply.
Any such increase or
decrease will not be effective until the 61st
day
after such notice is delivered
to the Company. The provisions of this
paragraph shall be construed and
implemented in a manner otherwise than in
strict conformity with the
terms of this Section 2(e) to correct
this
paragraph (or any portion
hereof) which may be defective or inconsistent
with the intended Beneficial
Ownership Limitation herein contained or to
make changes or supplements
necessary or desirable to properly give effect
to such limitation. The limitations
contained in this paragraph shall apply
to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
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a) Stock
Dividends and Splits. If the Company, at any time while
this
Warrant is outstanding: (i)
pays a stock dividend or otherwise makes a
distribution or
distributions on shares of its Common Stock or any other
equity or equity equivalent
securities payable in shares of Common Stock
(which, for avoidance of
doubt, shall not include any shares of Common
