EXHIBIT 10(k)
<PAGE>
COMMON STOCK PURCHASE WARRANT
CEL-SCI CORPORATION
Warrant Shares:
_______
Initial Exercise Date: December 24, 2009
Issue
Date: June 24, 2009
THIS COMMON STOCK PURCHASE WARRANT
(the "Warrant") certifies that, for
value received, _____________ (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
______ 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 24, 2009, among
the Company and
the purchasers signatory thereto.
Section 2. Exercise.
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
1
<PAGE>
controlling and determinative in the
absence of manifest error. The Holder
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
the 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.
2
<PAGE>
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.
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.
3
<PAGE>
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
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,
4
<PAGE>
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
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
5
<PAGE>
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.
---------
-------------------
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
Stock issued by the Company upon exercise
of this Warrant), (ii) subdivides
outstanding s
