SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 30, 1995
ALPHA 1 BIOMEDICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-15070 52-1253406
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
Two Democracy Center
6903 Rockledge Drive
Suite 1200
Bethesda, MD 20817
(Address, including Zip Code, of principal executive offices)
Registrant's telephone number, including area code:
(301) 564-4400
Item 2. Acquisition or Disposition of Assets
On October 30, 1995, Alpha 1 Biomedicals, Inc. (the
"Company") completed the sale of its 50% interest in Viral
Technologies, Inc. ("VTI") to CEL-SCI Corporation ("CEL-SCI")
in exchange for 159,170 shares of common stock of CEL-SCI
having a market value on the date of closing of approximately
$650,000. Prior to the transaction, the Company and CEL-SCI
each owned a 50% interest in VTI, a joint venture established
by the companies in 1986 to develop certain discoveries made
by the Company relating to the possible prevention, diagnosis
or treatment of AIDS. Upon the completion of the sale, Allan
L. Goldstein, the Chairman of the Company and Michael Berman,
the Company's President and Chief Executive Officer, each
resigned as a director of VTI.
Item 7. Financial Statements and Exhibits
(a) Not applicable.
(b) Pro forma financial information is intended to
provide information about the continuing impact of a
particular transaction by showing how it might
have affected historical financial statements if
the transaction had been consummated at an earlier
time. Prior to the disposition discussed in Item 2
above, the Company's ownership interest in VTI did
not have a material effect on the Company's
previously filed historical balance sheets or
income statements. More specifically, the net book
value of the Company's investment in VTI at the
time of disposition, and at both December 31, 1994
and June 30, 1995, was zero. Accordingly, the pro
forma effects of the disposition on the Company's
previously filed historical balance sheet at June
30, 1995, and statements of operations for the year
ended December 31, 1994 and for the six months
ended June 30, 1995, are not significant.
(c) Exhibits
1. Termination Agreement, dated as of
September 19, 1995, among Alpha 1
Biomedicals, Inc., CEL-SCI Corporation, and
Viral Technologies, Inc.
2. Amendment to Termination Agreement, dated as of
October 30, 1995, among Alpha 1 Biomedicals, Inc.,
CEL-SCI Corporation, and Viral Technologies, Inc.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: November 13, 1995 ALPHA 1 BIOMEDICALS, INC.
By: /s/ R.J. Lanham
R.J. Lanham
Vice President and
Chief Financial Officer
Exhibit 1
TERMINATION AGREEMENT
This TERMINATION AGREEMENT, dated as of September
19, 1995, is entered into by an among ALPHA 1 BIOMEDICALS,
INC., a Delaware corporation ("ALPHA"), CEL-SCI CORPORATION,
a Colorado corporation ("CEL-SCI"), and VIRAL TECHNOLOGIES,
INC., a Delaware corporation ("VTI").
WITNESSETH
WHEREAS, pursuant to an agreement, dated May 19,
1986 (the "Joint Venture Agreement"), ALPHA and CEL-SCI
(formerly, Interleukin 2, Inc.) entered into a joint venture
for the commercial development of a certain technology that
each conveyed to VTI, a corporation in which each of ALPHA
and CEL-SCI owns 50% of the outstanding shares of common
stock (the "Joint Venture"); and
WHEREAS, ALPHA and CEL-SCI wish to terminate the
Joint Venture, and in connection therewith ALPHA wishes to
convey to CEL-SCI, and CEL-SCI wishes to acquire from ALPHA,
ALPHA's entire right, title and interest in and to the Joint
Venture, in exchange for the agreements and covenants of
CEL-SCI described herein.
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual covenants and agreements hereinafter
set forth, the parties hereto hereby agree as follows:
ARTICLE I
TERMINATION AND RELEASE
1.1 Termination of Joint Venture. Effective as of the
Closing (as hereafter defined), (i) the Joint Venture is
hereby terminated without any further liability or obligation
of either party to the Joint Venture to the other, except as
expressly set forth in this Agreement, and (ii) the Joint
Venture Agreement is hereby terminated and shall be of no
further force or effect, except that the provisions of
Section 4 of the Joint Venture Agreement shall survive and
remain in full force and effect for a period of five years
from the date of this Agreement.
1.2 Release of ALPHA. Except as otherwise expressly
provided in this Agreement, effective as of the Closing, each
of CEL-SCI and VTI hereby releases and discharges ALPHA, and
its directors, officers, employees, affiliates, attorneys and
agents, of and from any and all past, present and future
obligations, liabilities, claims and demands of any kind or
nature, whether known or unknown, under the Joint Venture
Agreement or otherwise, arising out of or relating to the
dealings between or among the parties hereto or any of their
directors, officers, employees, affiliates, attorneys or
agents with respect to the Joint Venture.
1.3 Release of CEL-SCI and VTI. Except as otherwise
expressly provided in this Agreement, effective as of the
Closing, ALPHA hereby releases and discharges each of CEL-SCI
and VTI, and their directors, officers, employees,
affiliates, attorneys and agents, of and from any and all
past, present and future obligations, liabilities, claims and
demands of any kind or nature, whether known or unknown,
under the Joint Venture Agreement or otherwise, arising out
of or relating to the dealing between or among the parties
hereto or any of their director, officers, employees,
affiliates, attorneys or agents with respect to the Joint
Venture.
ARTICLE II
CONVEYANCE OF ALPHA INTEREST IN
JOINT VENTURE
2.1 ALPHA Conveyance. ALPHA hereby agrees, subject to
the terms and conditions of this Agreement, to sell,
transfer, convey, assign and deliver at the Closing (i) the
100 shares (the "Existing Shares") of Class B Common Stock,
par value $0.01 per share, of VTI (the "VTI Class B Common
Stock") currently owned by Alpha 1 and (ii) any Additional
Shares (as hereinafter defined) issued pursuant to Section
2.7, which together shall represent all of the issued and
outstanding shares of VTI Class B Common Stock as of the
Closing Date (as hereinafter defined). The Existing Shares
and the Additional Shares are herein collectively referred to
as the "VTI Shares."
2.2 Consideration. In consideration for the sale,
transfer, conveyance, assignment and delivery by ALPHA to
CEL-SCI of the VTI Shares, CEL-SCI agrees to issue and
deliver to ALPHA a duly executed certificate (or certificates
in such determinations as ALPHA shall specify) for 159,170
shares (the "CEL-SCI Shares") of common stock, par value
$.001 per share, of CEL-SCI (the "CEL-SCI Common Stock").
Such number of CEL-SCI Shares has been calculated by dividing
$750,000 by the average closing price of the CEL-SCI Common
Stock, as report by the NASDAQ Stock Market, over the five
trading days immediately preceding the date hereof (the
"Determination Price"). The CEL-SCI Shares shall be entitled
to certain contingent registration rights as more fully set
forth in Article IV.
2.3 Registration of the CEL-SCI Shares. CEL-SCI hereby
covenants and agrees that promptly following the date hereof
it will (i) file a registration statement on the appropriate
registration form (the "Registration Statement") with the
Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "1933 Act"),
registering the CEL-SCI Shares for sale to ALPHA and use its
best efforts to cause such registration statement to be
declared effective as promptly as practical after such
filing, (ii) unless an exemption is available, use its best
efforts to register or otherwise qualify the CEL-SCI Shares
for sale to ALPHA under the securities laws of the State of
Maryland and (iii) to use its best efforts to list the CEL-
SCI Shares on the NASDAQ Stock Market upon official notice of
issuance (or, if CEL-SCI does not so qualify, on the NASDAQ
Small-Cap Market). All costs and expenses in connection with
the actions contemplated by this Section 2.3 shall be borne
by CEL-SCI.
2.4 Closing. The closing for the delivery of the
certificate(s) for the VTI Shares to VTI and the delivery of
the certificate(s) for the CEL-SCI Shares to ALPHA (the
"Closing") shall occur at such location as the parties hereto
shall mutually agree on the fifth business day following the
date on which the last of the conditions set forth in Article
III has been satisfied or waived (the "Closing Date").
2.5 Restrictions on Resale of CEL-SCI Shares. ALPHA
hereby agrees, whether the CEL-SCI Shares are sold pursuant
to a registration statement or pursuant to an exemption from
registration, that it will not resell the CEL-SCI Shares by
means of a public sale or distribution, through a broker-
dealer or otherwise, at a rate in excess of 10,000 shares per
week. This restriction shall not apply to any private
transaction if the purchaser of such CEL-SCI Shares from
ALPHA agrees in writing with CEL-SCI that the public sale or
distribution of the CEL-SCI Shares by all persons holding
such shares will not in the aggregate exceed 10,000 shares
per week.
2.6 Right of CEL-SCI to Repurchase the CEL-SCI Shares.
At any time after the date hereof, CEL-SCI shall be entitled
to repurchase from ALPHA all (but not less than all) of the
CEL-SCI Shares then owned by ALPHA, upon written notice given
to ALPHA (the "Repurchase Notice"). The purchase price per
share shall be equal to the sum of (i) the Determination
Price and (ii) 50% of the amount, if any, by which the
average closing price of the CEL-SCI Common Stock, as
reported by the NASDAQ Stock Market, over the ten trading
days immediately preceding the date on which ALPHA actually
receives the Repurchase Notice, exceeds the Determination
Price. The closing of the repurchase of the CEL-SCI Shares
shall occur at such place and at such time, within five
business days of the receipt by ALPHA of the Repurchase
Notice, as the parties shall mutually agree.
2.7 Conversion of Certain Obligations into Equity. The
parties hereby agree that immediately prior to the Closing,
pursuant to mutually satisfactory documentation, the then-
outstanding indebtedness of VTI to ALPHA, if any, shall be
converted to equity. Such conversion shall be effected by
means of (i) a contribution by ALPHA to the capital of VTI,
(ii) the issuance to ALPHA of additional shares of VTI Class
B Common Stock ("Additional Shares") in exchange for the
cancellation of such indebtedness, or (iii) any other method
to which the parties shall mutually agree.
ARTICLE III
CONDITIONS TO CLOSING
3.1 Conditions to the Obligations of CEL-SCI and ALPHA.
The respective obligations of CEL-SCI and ALPHA to effect the
purchase and sale of the VTI Shares shall be subject to the
satisfaction on or prior to the Closing Date of the following
conditions:
(a) The Registration Statement shall have become
effective under the 1933 Act and no stop order suspending
such effectiveness shall have been issued and remain in
effect. Unless an exemption is available, the CEL-SCI Shares
shall be registered or otherwise qualified for sale to ALPHA
under the securities laws of the State of Maryland.
(b) No Legal Impediments. No temporary
restraining order or preliminary or permanent injunction or
other order by any federal or state court preventing
consummation of the purchase and sale of the VTI Shares shall
have been issued and be continuing in effect, and the
purchase and sale of the VTI Shares and the other
transactions contemplated hereby shall not be prohibited
under any applicable federal or state law or regulation.
3.2 Conditions to the Obligation of ALPHA. The
obligation of ALPHA to effect the sale of the VTI Shares
shall be further subject to the satisfaction, on or prior to
the Closing Date of the following conditions:
(a) CEL-SCI shall have complied with its
agreements and covenants contained in or contemplated by this
Agreement that are required to be performed by it at or prior
to the Closing.
(b) The representations and warranties of CEL-SCI
and VTI set forth in this Agreement shall be true and correct
in all material respects as of the date hereof and as of the
Closing Date as if made on and as of the Closing Date.
3.3 Conditions to the Obligation of CEL-SCI. The
obligation of CEL-SCI to purchase the VTI Shares shall be
further subject to the satisfaction, on or before the Closing
Date, of the following conditions:
(a) ALPHA shall have performed in its agreements
and covenants contained in or contemplated by this Agreement
that are required to be performed by it at or prior to the
Closing.
(b) The representations and warranties of ALPHA
set forth in this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing
Date as if made on and as of the Closing Date.
(c) Dr. Allan Goldstein shall have entered into an
agreement with VTI substantially in the form attached hereto
as Exhibit A.
ARTICLE IV
REGISTRATION RIGHTS
4.1 Demand Registration Rights. If in the opinion of
counsel to ALPHA (delivered in writing to CEL-SCI), ALPHA
would be deemed an "underwriter" within the meaning of the
1933 Act of the CEL-SCI Shares, even though such shares were
registered under the 1933 Act for sale to ALPHA, ALPHA shall
be entitled to request that CEL-SCI effect a registration of
the CEL-SCI Shares for resale by ALPHA. Upon the receipt of
such a written request, CEL-SCI shall within 30 days
thereafter file a registration statement on the appropriate
form with the SEC covering the CEL-SCI Shares and shall use
its best efforts to cause such registration to be declared
effective. Upon such registration statement becoming
effective, CEL-SCI shall take all such actions as are
required to keep the registration statement effective for a
period of 180 days or until ALPHA has completed the
distribution described in the registration statement,
whichever occurs sooner.
4.2 Registration Procedures. In the case of a
registration to be effected by the CEL-SCI pursuant to
Section 4.1, CEL-SCI shall:
(a) keep ALPHA advised of all material
developments pertaining to such registration and shall
furnish to ALPHA copies of all correspondence between CEL-SCI
or any of its attorneys or accountants and the SEC or any
state securities regulatory authorities pertaining to such
registration;
(b) prepare and file with the SEC such amendments
and supplements to the registration statement and the
prospectus used in connection with such registration as may
be necessary to comply with the provisions of the 1933 Act
with respect to the disposition of the CEL-SCI Shares covered
by such registration statement;
(c) furnish to ALPHA such number of copies of the
registration statement, each prospectus and any related
documents, including any amendment thereof or supplement
thereto, as ALPHA from time to time may reasonably require to
effect the sale of the CEL-SCI Shares;
(d) notify ALPHA at any time when a prospectus is
required to be delivered under the 1933 Act of the occurrence
of any event that causes the then-current prospectus to
contain an untrue statement of a material fact or to omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
at the request of ALPHA prepare and furnish to ALPHA a
reasonable number of copies of any amendment or supplement to
such prospectus as may be necessary so that such prospectus,
as thereafter delivered to any purchaser of the CEL-SCI
Shares, shall not include an 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;
(e) use its best efforts to register or qualify
the CEL-SCI Shares for sale under the securities or Blue Sky
laws of each jurisdiction that ALPHA shall reasonably
request; and
(f) use its best efforts to cause the CEL-SCI
Shares to remain qualified for trading on NASDAQ or to be
listed on any national securities exchange on which the
common stock of CEL-SCI is then listed.
4.3 Expenses. All of the expenses incurred in the
registration of the CEL-SCI Shares under this Article IV
(other than as provided in Section 4.4), including all
registration fees and the fees and disbursements of counsel
and accountants, shall be borne by CEL-SCI, except that ALPHA
shall be responsible for (i) the fees and disbursements of
any separate counsel or accountants retained by ALPHA and
(ii) any underwriting discounts or sales commissions incurred
in the sale of the CEL-SCI Shares.
4.4 Indemnification.
(a) CEL-SCI shall indemnify and hold harmless
ALPHA, each of ALPHA's directors, officers, employees,
attorneys and agents, and each person who controls ALPHA
within the meaning of Section 15 of the 1933 Act, from and
against any and all claims, losses, damages, liabilities and
expenses, whether joint or several, and any and all actions,
suits, proceedings and investigations in respect thereof,
including the reimbursement of the costs and expenses
(including reasonable counsel fees), as they are incurred, of
investigating any claim or preparing for or defending any
such action, suit, proceeding or investigation, insofar as
such losses, claims, damages, liabilities and expenses arise
out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any
registration statement, prospectus or other document that is
filed or distributed in accordance with this Article IV or
Section 2.3, and any amendments or supplements thereto,
including any registration statements, prospectuses or
documents filed or distributed in connection with applicable
state securities and Blue Sky laws, (ii) the omission or the
alleged omission to state in any such document a material
fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) the violation by
CEL-SCI, in connection with actions taken under this Article
IV or Section 2.3, of any federal or state securities or Blue
Sky law; provided that (with respect to subsections (i) and
(ii) above) CEL-SCI will not be liable in any such case to
the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement
included in any such document, or any omission therefrom, in
reliance upon and in conformity with written information
furnished to CEL-SCI by ALPHA and stated to be specifically
for use therein. The obligations of CEL-SCI under this
paragraph (a) shall not apply to amounts paid in settlement
of any claims, losses, damages or liabilities (or actions is
in respect thereof) if such settlement is effected without
the written consent of CEL-SCI (which consent has not been
unreasonably withheld).
(b) ALPHA shall indemnify and hold harmless
CEL-SCI, each of CEL-SCI's directors, officers, employees,
attorneys and agents, and each person who controls CEL-SCI
within the meaning of Section 15 of the 1933 Act, from and
against any and all claims, losses, damages, liabilities and
expenses, whether joint or several, and any and all actions,
suits, proceedings and investigations in respect thereof,
including the reimbursement of the costs and expenses
(including reasonable counsel fees), as they are incurred, of
investigating any claim and preparing for or defending any
such action, suit, proceeding or investigation, insofar as
such losses, claims, damages, liabilities and expenses arise
out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any
registration statement, prospectus or other document that is
filed or distributed in accordance with this Article IV or
Section 2.3, and any amendments or supplements thereto,
including any registration statements, prospectuses or
documents filed or distributed in connection with applicable
state securities and Blue Sky laws, (ii) the omission or the
alleged omission to state in any such document a material
fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) the violation by
ALPHA, in connection with actions taken under this Article IV
or Section 2.3, of any federal or state securities or Blue
Sky law, but (with respect to subsections (i) and (ii) above)
only to the extent that such untrue statement contained in,
or such omission from, any such document is made in reliance
upon and in conformity with written information furnished to
CEL-SCI by ALPHA and stated to be specifically for use
therein. The obligations of ALPHA under this paragraph (b)
shall not apply to amounts paid in settlement of any such
claims, losses, damages or liabilities (or actions in respect
thereof) if such settlement is effected without the written
consent of ALPHA (which consent shall not be unreasonably
withheld). In no event shall any indemnity under this
paragraph (b) exceed the gross proceeds realized by ALPHA
from the sale of the CEL-SCI Shares.
(c) Each party entitled to indemnification under
this Section 4.4 (the "Indemnified Party") shall give notice
to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party
acquires actual knowledge of any claim as to which indemnity
may be sought. Upon receipt of such notice, the Indemnifying
Party may (but is not required to) assume the defense of such
claim and any litigation resulting therefrom, with counsel ap
proved by the Indemnified Party (such approval not to be
unreasonably withheld), and the Indemnified Party shall have
the right to retain counsel of its own choice to participate
in such defense at its own expense. The failure of any In
demnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this
Section 4.4 to the extent such failure is not materially
prejudicial to the Indemnifying Party. If in connection with
any claim (i) the Indemnifying Party fails to assume the
defense of such claim with counsel reasonably satisfactory to
the Indemnified Party or (ii) the Indemnified Party shall be
advised by counsel that there may be one or more legal
defenses available to it that are different from or in
addition to those available to the Indemnifying Party, the
Indemnified Party by notice in writing to the Indemnifying
Party may assume the defense of such claim, with counsel of
its choice, at the expense of the Indemnifying Party.
(d) No Indemnifying Party in the defense of any
claim or litigation shall, except with the written consent of
the Indemnified Party, consent to entry of any judgment or
enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(e) Each Indemnified Party shall cooperate with
and shall furnish to the Indemnifying Party such information
regarding itself or the claim in question as an Indemnifying
Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim
or the litigation resulting therefrom.
(f) If the indemnification provided for in this
Section 4.4 is held by a court of competent jurisdiction to
be unenforceable with respect to any claim, loss, damage,
liability or expense, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall
contribute to the amount paid or payable by such Indemnified
Party as a result of such claim, loss, damage, liability or
expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and
of the Indemnified Party on the other hand in connection with
the statements, omissions or violations that resulted in such
claim, loss, damage, liability or expense, as well as any
other relevant equitable considerations. The relative fault
of the Indemnifying Party and of the Indemnified Party shall
be determined by reference to, among other things, whether
the untrue statement of a material fact or the omission to
state a material fact related to information supplied by the
Indemnifying Party or by the Indemnified Party and their
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement, omission or
violation.
4.5. Limitations on Grant Registration Rights. From and
after the date of this Agreement until 180 day after the
Closing Date, CEL-SCI shall not, without the prior written
consent of ALPHA, enter into any agreement with any holder or
prospective holder of any securities of CEL-SCI granting to
such holder or prospective holder any registration rights
that have priority over the registration rights granted to
ALPHA under this Article IV.
4.7 Rule 144 Reporting. In order to enable ALPHA to
sell, if necessary, any of the CEL-SCI Shares to the public
without registration in reliance on Rule 144 under the 1933
Act, CEL-SCI agrees to file with the SEC in a timely manner
all reports and other documents required to be filed by
CEL-SCI under Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of ALPHA. ALPHA
represents and warrants to CEL-SCI that:
(a) It is duly a corporation organized and validly
existing under the laws of the State of Delaware and has full
corporate power and authority to enter into this Agreement
and to perform its obligations hereunder.
(b) The execution, delivery and performance of
this Agreement by ALPHA has been duly authorized by all
necessary corporate action.
(c) This Agreement has been duly and validly
executed and delivered by ALPHA and constitutes a valid,
legal and binding obligation of ALPHA that is enforceable
against ALPHA in accordance with its terms.
(d) The execution and delivery of this Agreement
by ALPHA and the consummation by ALPHA of the transactions
contemplated hereby do not and will not conflict with, result
in the breach of, constitute a default under or violate (i)
the Certificate of Incorporation or Bylaws of ALPHA, (ii) any
statute, law, rule, regulation, judgment, decree, order,
injunction, permit or license of any jurisdiction, court or
governmental or regulatory body binding on ALPHA or its
property or assets, or (iii) any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit,
concession, contract, lease or any other instrument,
obligation or agreement of any kind to which ALPHA is a party
or by which its property or assets are bound.
(e) ALPHA has valid title to the Existing Shares
and, upon issuance, will have valid title to the Additional
Shares, if any, in each case free and clear of any pledges,
liens, security interests, options, restrictions on transfer
or other encumbrances other than as may result from the
actions or inactions of CEL-SCI or VTI.
5.2 Representations and Warranties of CEL-SCI. CEL-SCI
represents and warrants to ALPHA that:
(a) It is a corporation duly organized and validly
existing under the laws of the State of Colorado and has full
corporate power and authority to enter into this Agreement
and to perform its obligations hereunder.
(b) The execution, delivery and performance of
this Agreement by CEL-SCI has been duly authorized by all
necessary corporate action.
(c) This Agreement has been duly and validly
executed and delivered by CEL-SCI and constitutes a valid,
legal and binding obligation of CEL-SCI that is enforceable
against CEL-SCI in accordance with its terms.
(d) The execution and delivery of this Agreement
by CEL-SCI and the consummation by CEL-SCI of the
transactions contemplated hereby do not and will not conflict
with, result in the breach of, constitute a default under or
violate (i) the Certificate of Incorporation or Bylaws of
CEL-SCI, (ii) any statute, law, rule, regulation, judgment,
decree, order, injunction, permit or license of any
jurisdiction, court or governmental or regulatory body
binding on CEL-SCI or its property or assets, or (iii) any
note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, concession, contract, lease or any other
instrument, obligation or agreement of any kind to which
CEL-SCI is a party or by which its property or assets are
bound.
(e) The CEL-SCI Shares have be duly authorized
and, upon issuance and delivery pursuant to this Agreement,
will be validly issued, fully paid and nonassessable.
5.3 Representations and Warranties of VTI. VTI
represents and warrants to ALPHA that:
(a) It is a corporation duly organized and validly
existing under the laws of the State of Delaware and has full
corporate power and authority to enter into this Agreement
and to perform its obligations hereunder.
(b) The execution, delivery and performance of
this Agreement by VTI has been duly authorized by all
necessary corporate action.
(c) This Agreement has been duly and validly
executed and delivered by VTI and constitutes a valid, legal
and binding obligation of VTI that is enforceable against VTI
in accordance with its terms.
(d) The execution and delivery of this Agreement
by VTI and the consummation by VTI of the transactions
contemplated hereby do not and will not conflict with, result
in the breach of, constitute a default under or violate (i)
the Certificate of Incorporation or Bylaws of VTI, (ii) any
statute, law, rule, regulation, judgment, decree, order,
injunction, permit or license of any jurisdiction, court or
governmental or regulatory body binding on VTI or its
property or assets, or (iii) any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit,
concession, contract, lease or any other instrument,
obligation or agreement of any kind to which VTI is a party
or by which its property or assets are bound.
(e) Any Additional Shares issued to ALPHA pursuant
to Section 2.7, upon issuance, will be duly authorized,
validity issued, fully paid and nonassessable, and free and
clear of any pledges, liens, security interests, options,
restrictions on transfer or other encumbrances resulting from
any action or inaction of CEL-SCI or VTI.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Cooperation Pertaining to Certain VTI Patents and
Patent Applications. ALPHA agrees to use its best efforts to
cause Dr. Allan Goldstein, its Chairman and a co-inventor of
U.S. Patent No. 4,983,387 (the "HIV Patent"), to perform any
and all lawful acts, in his capacity as a co-inventor, that
in the reasonable judgment of VTI are necessary or desirable
to secure or maintain for the benefit of VTI the HIV Patent
and any corresponding foreign patents. VTI shall reimburse
Dr. Goldstein for all expenses reasonably incurred in
performing such acts and shall compensate Dr. Goldstein for
all time expended at an hourly rate typically charged by Dr.
Goldstein for consulting services. The obligations imposed
by this Section 6.1 shall survive the termination of this
Agreement.
6.2 Notices. All notices, requests, demands and other
communications that are required or may be given pursuant to
the terms of this Agreement shall be in writing and shall be
deemed given (i) when delivered by hand or by overnight
carrier, (ii) when delivered by registered or certified mail,
postage prepaid, return receipt requested, or (iii) upon
confirmation of receipt by facsimile transmission, addressed
as follows:
To ALPHA:
Alpha 1 Biomedicals, Inc.
Two Democracy Center
6903 Rockledge Drive
Suite 1200
Bethesda, MD 20817
Attention: Michael Berman
President
FAX: (301) 564-4424
with a copy to:
Covington & Burling
1201 Pennsylvania Avenue, NW
Washington, DC 20004
Attention: D. Michael Lefever
FAX: (202) 662-6291
To CEL-SCI:
Cel-Sci Corporation
Suite 510
66 Canal Center Plaza
Alexandria, VA 22314
Attention: Maximilian de Clara
President
FAX: (703) 549-6269
with copy to:
Hart & Trinen
1624 Washington Street
Denver, CO 80203
Attention: William Hart
FAX: (303) 839-5414
To VTI:
Viral Technologies, Inc.
Suite 510
66 Canal Center Plaza
Alexandria, VA 22314
Attention: Geert Kersten
President
FAX: (703) 549-6269
Any party may change its address for the receipt of
communications by notice to the other parties given in the
manner specified in this Section 6.2.
6.3 Waivers. No waiver of any provision of this
Agreement or of any obligation hereunder shall be effective
as against the waiving party unless such waiver is in writing
signed by the waiving party. Any such waiver shall not be
construed as or constitute either a continuing waiver or a
waiver of any other matter. The failure of any party hereto
to enforce any violation or breach of any provision of this
Agreement shall not be construed as a waiver of the right of
such party to enforce any subsequent violation or breach of
the same provision or any other provision.
6.4 Amendment. This Agreement may only be modified,
supplemented or amended by a written instrument executed by
the parties to be bound.
6.5 Entire Agreement. This Agreement constitutes the
entire agreement of the parties with respect to the subject
matter hereof, and supersede all prior contracts, agreements,
communications, representations, warranties and
understandings of the parties hereto, both oral and written,
relating to the subject matter hereof.
6.6 Governing Law. The laws of the State of Delaware
(irrespective of the choice of law provisions thereof) shall
govern the validity of this Agreement, the construction of
its terms and the enforcement of the rights and the
obligations of the parties hereto.
6.7 Other Remedies. Any and all remedies herein
conferred upon any party hereto shall be deemed cumulative
with, and not exclusive of, any other remedy conferred hereby
or by law or in equity, and the exercise of any available
remedy shall not preclude the exercise of any other remedy.
6.8 Interpretation. The headings contained in this
Agreement are solely for convenience of reference and shall
not in any way limit or affect the meaning or interpretation
of any of the terms or provisions of this Agreement.
6.9 Assignments. No party may assign this Agreement or
any of its obligations hereunder to any other person or
entity without the prior written consent of the other
parties. Any assignment not in accordance with this Section
6.9 shall be void.
6.10 Binding Effect; Benefits. This Agreement shall
inure to the benefit of, and be binding upon, the parties
hereto and their respective successors and permitted assigns.
Nothing contained in this Agreement, express or implied, is
intended to confer upon any person or entity, other than the
parties hereto and their respective successors and permitted
assigns, any rights or remedies under or by reason of this
Agreement.
6.11 Severability. If any provision of this Agreement,
or the application thereof, shall for any reason or to any
extent be invalid or unenforceable, the remainder of this
Agreement and application of such provision to other persons
and entities and in other circumstances shall continue in
full force and effect and in no way be affected, impaired or
invalidated, all to the fullest extent permitted by law.
6.12 Execution in Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, this Agreement has been
executed by a duly authorized officer of each of the parties
hereto as of the date first above written.
ALPHA 1 BIOMEDICALS, INC.
By:/s/Michael Berman
Name: Michael Berman
Title: President
CEL-SCI CORPORATION
By:/s/Maximilian de Clara
Name: Maximilian de Clara
Title: President
VIRAL TECHNOLOGIES, INC
By:/s/Geert Kersten
Name: Geert Kersten
Title: President
Exhibit 2
AMENDMENT TO TERMINATION AGREEMENT
This AMENDMENT, dated as of October 30, 1995,
amends the Termination Agreement, dated as of September 19,
1995, between ALPHA 1 BIOMEDICALS, INC. ("ALPHA"), CEL-SCI
CORPORATION ("CEL-SCI") and VIRAL TECHNOLOGIES, INC. ("VTI").
Each capitalized term not defined herein has the meaning
ascribed to such term in the Termination Agreement.
The parties hereby agree as follows:
1. In lieu of compliance by the parties with
Section 2.7 of the Termination Agreement, ALPHA agrees to
assign to CEL-SCI all indebtedness of VTI to ALPHA that is
outstanding on the Closing Date (the "Assigned VTI
Indebtedness").
2. The Assigned VTI Indebtedness is excluded from
the ALPHA release of VTI set forth in Section 1.3 of the
Termination Agreement.
3. Section 2.5 of the Termination Agreement is
hereby amended to provide that ALPHA shall not effect a sale
of the CEL-SCI Shares in a private transaction unless the
purchaser thereof has entered into arrangements reasonably
satisfactory to CEL-SCI to ensure compliance with the
provisions of Section 2.5.
IN WITNESS WHEREOF, this Amendment has been
executed by a duly authorized officer of each of the parties
hereto as of the date first above written.
ALPHA 1 BIOMEDICALS, INC. VIRAL TECHNOLOGIES, INC.
By:/s/Michael Berman By:/s/Geert Kersten
Name: Michael Berman Name: Geert Kersten
Title: President Title: President
CEL-SCI CORPORATION
By:/s/Geert Kersten
Name: Geert Kersten
Title: Chief Executive Officer
