As filed with the Securities and Exchange Commission on May __, 1999.
Registration No. 333-44383
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post Effective
AMENDMENT NO. 1 TO
FORM S-3
Registration Statement
Under
THE SECURITIES ACT OF 1933
CEL-SCI Corporation
(Exact name of registrant as specified in charter)
Colorado
(State or other jurisdiction of incorporation)
8229 Boone Blvd. #802
Vienna, Virginia 22182
84-09l6344 (703) 506-9460
(IRS Employer I.D. (Address, including zip code, and telephone number
Number) including area of principal executive offices)
Geert Kersten
8229 Boone Blvd. #802
Vienna, Virginia 22182
(703) 506-9460
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications, including all communications sent to the
agent for service, should be sent to:
William T. Hart, Esq.
Hart & Trinen
1624 Washington Street
Denver, Colorado 80203
(303) 839-0061
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date
of this Registration Statement
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
<PAGE>
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed
Class of Maximum Maximum
Securities Securities Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Unit (1) Price Fee (4)
------------ ---------- --------- ---------- -----------
Common Stock (2) 5,245,000 $2.00 $10,490,000 $3,095
Common Stock (3) 9,000 $2.00 18,000 6
--------- -------- ----------- -------
Total 5,254,000 $10,508,000 $3,101
========= =========== ======
(1) Offering price computed in accordance with Rule 457(c).
(2) Shares of Common Stock issuable upon conversion of Company's Series D
Preferred Stock. Includes additional shares which may be issued due to
potential adjustments to conversion rate.
(3) Shares of Common Stock previously issued to public relations consultant.
(4) A fee of $9,486 was paid upon the filing of this Registration Statement.
Pursuant to Rule 416, this Registration Statement includes such
indeterminate number of additional securities as may be required for issuance
upon the conversion of the Series D Preferred Stock or upon the exercise of the
Warrants as a result of any adjustment in the number of securities issuable by
reason of the anti-dilution provisions of the Series D Preferred Stock, the
Series A Warrants, the Series B Warrants and/or the Sales Agent's Warrants.
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of l933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PROSPECTUS CEL-SCI CORPORATION
Common Stock
This Prospectus relates to the sale of up to approximately 720,500 shares of
the Common Stock of Cel-Sci Corporation by certain owners of such shares. The
owners of the shares to be sold by means of this Prospectus are sometimes
referred to as the Selling Shareholders.
The Company will not receive any proceeds from the sale of the shares
by the Selling Shareholders.
The Selling Shareholders have advised the Company that they may from
time to time sell the shares covered by this Prospectus on the American Stock
Exchange and in ordinary brokerage transactions, in negotiated transactions or
otherwise, at prevailing market prices at the time of sale or at negotiated
prices. The costs of registering the shares offered by the Selling Shareholders
are being paid by the Company. The Selling Shareholders will pay all other costs
of the sale of the shares offered by them. The Selling Shareholders may be
deemed to be "underwriters" within the meaning of the Securities Act in
connection with the sale of their shares.
The securities offered by this Prospectus are speculative and involve a high
degree of risk and should be purchased only by persons who can afford to lose
their entire investment. For a description of certain important factors that
should be considered by prospective investors, see "Risk Factors" beginning on
page 7 of this Prospectus.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Company's Common Stock is traded on the American Stock Exchange. On May
__, 1999 the closing price of the Company's Common on the American Stock
Exchange was $_____.
The Date of this Prospectus is May ___, 1999
<PAGE>
PROSPECTUS SUMMARY
THIS SUMMARY SHOULD BE READ IN CONJUNCTION WITH, AND IS QUALIFIED IN ITS
ENTIRETY BY, THE MORE DETAILED INFORMATION AND APPEARING ELSEWHERE IN THIS
PROSPECTUS.
The Company
CEL-SCI Corporation was formed as a Colorado corporation in 1983 and is
involved in the research and development of certain drugs and vaccines. The
Company's first product, Multikine(TM), manufactured using the Company's
proprietary cell culture technologies, is a combination, or "cocktail", of
natural human interleukin-2 ("IL-2") and certain lymphokines and cytokines.
Multikine is being tested to determine if it is effective in improving the
immune response of cancer patients. The Company's second product, HGP-30, is
being tested by the Company's wholly-owned subsidiary, Viral Technologies, Inc.
to determine if it is an effective vaccine/treatment against the AIDS virus. The
third technology the Company is developing, L.E.A.P.S. (Ligand Epitope Antigen
Presentation System) is a T-cell modulation technology which can be used to
direct a specific immune response and which is thought to be particularly
important in the case of diseases which have no approved vaccinations such as
herpes simplex, malaria, and AIDS. The Company intends to use this new
technology to improve the cellular immune response of persons vaccinated with
HGP-30 and to develop potential treatments and/or vaccines against various
diseases. Present target diseases are AIDS, herpes simplex, malaria,
tuberculosis, prostate cancer and breast cancer.
Before human testing can begin with respect to a drug or biological
product, preclinical studies are conducted in laboratory animals to evaluate the
potential efficacy and the safety of a product. Human clinical studies generally
involve a three-phase process. The initial clinical evaluation, Phase I,
consists of administering the product and testing for safe and tolerable dosage
levels. Phase II trials continue the evaluation of safety and determine the
appropriate dosage for the product, identify possible side effects and risks in
a larger group of subjects, and provide preliminary indications of efficacy.
Phase III trials consist of testing for actual clinical efficacy within an
expanded group of patients at geographically dispersed test sites.
The costs associated with the clinical trials relating to the Company's
technologies, research expenditures and the Company's administrative expenses
have been funded with the public and private sales of shares of the Company's
Common Stock and borrowings from third parties, including affiliates of the
Company.
The Company does not expect to develop commercial products for several
years, if at all. The Company has had operating losses since its inception, had
an accumulated deficit of approximately $46,655,000 at December 31, 1998, and
expects to incur substantial losses for the foreseeable future.
The Company's executive offices are located at 8229 Boone Blvd., #802,
Vienna, Virginia 22182, and its telephone number is (703) 506-9460.
<PAGE>
THE OFFERING
Securities Offered:
The Prospectus relates to the sale of up to 720,500 shares of the
Common Stock of Cel-Sci Corporation by certain owners of such shares. The owners
of the shares to be sold by means of this Prospectus are sometimes referred to
as the Selling Shareholders
Common Stock Outstand-
ing Prior To and After
Offering: As of May 10, 1999, the Company had 16,016,667
shares of Common Stock issued and outstanding.
Assuming all shares of the Series D Preferred Stock
are converted into 720,500 shares of the Company's
Common Stock, assuming a conversion price of $2.00
per share, there will be 16,737,167 shares of Common
Stock issued and outstanding. The number of
outstanding shares before and after this Offering
does not give effect to shares which may be issued
upon the exercise and/or conversion of options,
warrants or other convertible securities previously
issued by the Company. See "Comparative Share Data".
Risk Factors: The purchase of the Securities offered by this
Prospectus involves a high degree of risk. Risk
factors include the lack of revenues and history of
loss, need for additional capital and need for FDA
approval. See the "Risk Factors" section of this
Prospectus for additional Risk Factors.
AMEX Symbol: HIV
Summary Financial Data
Years Ended September 30, Three Months Ended
1998 1997 December 31,1998
---- ---- ----------------
Investment Income and
Other Revenues $792,994 $438,145 $195,713
Expenses:
Research and
Development 3,833,854 6,011,670 941,948
Depreciation
and
Amortization 295,331 313,547 65,932
General and
Administrative 3,106,492 2,302,386 706,024
------------ ------------ -------------
Net Loss $(6,442,683) $(8,189,458) $(1,518,191)
============ =========== ============
<PAGE>
Accretion of Preferred
Stock 1,980,000 1,062,482 --
--------------
Preferred Stock Dividends -- 108,957 --
----------- ------- --------------
Net Loss attributable to
common stockholders $(8,422,683) $(9,360,897) $(1,518,191)
============ ============ ============
Loss per common share
(basic) $( 0.74) $(1.00) $(0.13)
======== ======= =======
Loss per common share
(diluted $(0.74) $(1.00) $(0.13)
======= ======= =======
Weighted average
common shares
outstanding 11,379,437 9,329,419 11,615,914
Balance Sheet Data
September 30, December 31,1998
1998 1997
Working Capital $12,926,014 $4,581,247 $11,376,946
Total Assets 14,431,813 6,334,397 12,744,104
Current Liabilities 427,147 481,587 298,896
Long Term and Other
Liabilities 29,382 27,030 29,382
Total Liabilities 456,529 508,617 328,278
Shareholders'
Equity 13,975,284 5,825,780 12,415,826
RISK FACTORS
Investors should be aware that this offering involves certain risks,
including those described below, which could adversely affect the value of their
holdings of Common Stock. The Company does not make, nor has it authorized any
other person to make, any representation about the future market value of the
Company's Common Stock. In addition to the other information contained in this
Prospectus, the following factors should be considered carefully in evaluating
an investment in the Shares offered by this Prospectus
<PAGE>
The Company Has Earned Only Limited Revenues and Has a History of Losses.
The Company has had only limited revenues since it was formed in 1983.
Since the date of its formation and through December 31, 1998 the Company
incurred net losses of approximately $46,655,000. During the years ended
September 30, 1996, 1997 and 1998 the Company suffered losses of $6,326,666,
$8,189,458 and $6,442,683 respectively. The Company has relied principally upon
the proceeds of public and private sales of securities to finance its activities
to date. All of the Company's potential products are in the early stages of
development, and any commercial sale of these products will be many years away.
Accordingly, the Company expects to incur substantial losses for the foreseeable
future.
There can be no assurance the Company will be profitable. At the
present time, the Company intends to use available funds to finance the
Company's operations. Accordingly, while payment of dividends rests within the
discretion of the Board of Directors, no common stock dividends have been
declared or paid by the Company. The Company does not presently intend to pay
dividends on its common stock and there can be no assurance that common stock
dividends will ever be paid.
The Company Needs Additional Capital to Finance Its Operations.
Clinical and other studies necessary to obtain approval of a new drug
can be time consuming and costly, especially in the United States, but also in
foreign countries. The different steps necessary to obtain regulatory approval,
especially that of the Food and Drug Administration ("FDA"), involve significant
costs and may require several years to complete. The Company expects that it
will need additional financing over an extended period of time in order to fund
the costs of future clinical trials, related research, and general and
administrative expenses. The Company may be forced to delay or postpone
development and research expenditures if the Company is unable to secure
adequate sources of funds. These delays in development may have an adverse
effect on the Company's ability to produce a timely and competitive product.
There can be no assurance that the Company will be able to obtain additional
funding from other sources.
Cost Estimates for Clinical Trials and Research May be Inaccurate.
The Company's estimates of the costs associated with future clinical
trials and research may be substantially lower than the actual costs of these
activities. If the Company's cost estimates are incorrect, the Company will need
additional funding for its research efforts.
Products Which May Be Developed by the Company Will Require Regulatory Approvals
Prior to Sale.
Therapeutic agents, drugs and diagnostic products are subject to
approval, prior to general marketing, by the FDA in the United States and by
comparable agencies in most foreign countries. The process of obtaining FDA and
corresponding foreign approvals is costly and time consuming, particularly for
pharmaceutical products such as those which might ultimately be developed by the
Company, VTI or its licensees, and there can be no assurance that such approvals
will be granted. Any failure to obtain or any delay in obtaining such approvals
may adversely affect the ability of potential licensees or the Company to
successfully market any products developed. Also, the extent of adverse
government regulations which might arise from future legislative or
administrative action cannot be predicted.
<PAGE>
The Company is Dependent on an Unrelated Corporation to Manufacture Multikine
The Company has an agreement with an unrelated corporation for the
production, until August 2000, of Multikine for research and testing purposes.
At present, this is the Company's only source of Multikine. If this corporation
could not, for any reason, supply the Company with Multikine, the Company
estimates that it would take approximately six to ten months to obtain supplies
of Multikine under an alternative manufacturing arrangement. The Company does
not know what cost it would incur to obtain this alternative source of supply.
The Biomedical Feld in Which the Company is Involved is Undergoing Rapid and
Significant Technological Change.
The successful development of therapeutic agents and diagnostic
products from the compounds, compositions and processes licensed to the Company,
through Company financed research or as a result of possible licensing
arrangements with pharmaceutical or other companies, will depend on its ability
to be in the technological forefront of this field. There can be no assurance
that the Company will achieve or maintain such a competitive position or that
other technological developments will not cause the Company's proprietary
technologies to become uneconomical or obsolete.
The Company's Patents Might Not Protect the Company's Technology.
Certain aspects of the Company's technologies are covered by U.S. and
foreign patents. In addition, the Company has a number of patent applications
pending. There is no assurance that the applications still pending or which may
be filed in the future will result in the issuance of any patents. Furthermore,
there is no assurance as to the breadth and degree of protection any issued
patents might afford the Company. Disputes may arise between the Company and
others as to the scope and validity of these or other patents. Any defense of
the patents could prove costly and time consuming and there can be no assurance
that the Company will be in a position, or will deem it advisable, to carry on
such a defense. Other private and public concerns, including universities, may
have filed applications for, or may have been issued, patents and are expected
to obtain additional patents and other proprietary rights to technology
potentially useful or necessary to the Company. The scope and validity of such
patents, if any, the extent to which the Company may wish or need to acquire the
rights to such patents, and the cost and availability of such rights are
presently unknown. Also, as far as the Company relies upon unpatented
proprietary technology, there is no assurance that others may not acquire or
independently develop the same or similar technology. The Company's first
MULTIKINE patent will expire in the year 2000. Since the Company does not know
if it will ever be able to sell MULTIKINE on a commercial basis, the Company
cannot predict what effect the expiration of this patent will have on the
Company. Notwithstanding the above, the Company believes that trade secrets and
later issued patents will protect the technology associated with Multikine past
the year 2000.
The Company's Product Liability Insurance May Not Be Adequate.
Although the Company has product liability insurance for Multikine and
its HGP-30 vaccine, the successful prosecution of a product liability case
against the Company could have a materially adverse effect upon its business if
the amount of any judgment exceeds the Company's insurance coverage.
<PAGE>
The Loss of Management and Scientific Personnel Could Adversly Affect the
Company.
The Company is dependent for its success on the continued availability
of its executive officers. The loss of the services of any of the Company's
executive officers could have an adverse effect on the Company's business. The
Company does not carry key man life insurance on any of its officers. The
Company's future success will also depend upon its ability to attract and retain
qualified scientific personnel. There can be no assurance that the Company will
be able to hire and retain such necessary personnel.
Shares Issuable Upon the Conversion of Options, Warrants and Convertible
Securities May Depress the Price of the Company's Common Stock.
The Company has issued options to its officers, directors, employees
and consultants which allow the holders to acquire additional shares of the
Company's Common Stock. In some cases the Company has agreed that, at its
expense, it will make appropriate filings with the Securities and Exchange
Commission so that the securities issuable upon the exercise of the options will
be available for public sale. Such filings could result in substantial expense
to the Company and could hinder future financings by the Company.
Until the options expire, the holders will have an opportunity to
profit from any increase in the market price of the Company's Common Stock
without assuming the risks of ownership. Holders of the options may exercise
them at a time when the Company could obtain additional capital on terms more
favorable than those provided by the options. The exercise of the options will
dilute the voting interest of the owners of presently outstanding shares of the
Company's Common Stock and may adversely affect the ability of the Company to
obtain additional capital in the future. The sale of the shares of Common Stock
issuable upon the exercise of the options could adversely affect the market
price of the Company's stock.
In addition, the Company has 1,441 Shares of Series D Preferred Stock
issued and outstanding. Each Series D Preferred Share is convertible into shares
of the Company's Common Stock equal in number to the amount determined by
dividing $1,000 by the average price of the Company's common stock for any two
trading days during the ten trading days preceding the conversion date. Since
the price of the Company's Common Stock has been volatile in the past, investors
could experience substantial dilution upon the conversion of the Series D
Preferred Stock into Common Stock as a result of either (i) a decline in the
market price of the Company's Common Stock prior to conversion, or (ii) an event
triggering the antidilution rights of any outstanding shares of the Series D
Preferred Stock. In connection with the sale of the Series D Preferred Stock,
the Company also issued Series A and Series B Warrants which collectively allow
for the purchase of 1,100,000 shares of the Company's common stock. See
"Comparative Share Data".
<PAGE>
The Shares of Common Stock issuable upon the conversion of the Series D
Preferred Stock are being offered for public sale by means of this prospectus.
The issuance of Common Stock upon the conversion of the Series D Preferred Stock
and/or the exercise of the Series A or Series B Warrants, as well as future
sales of such Common Stock or of shares of Common Stock held by existing
stockholders, or the perception that such sales could occur, could adversely
affect the market price of the Company's Common Stock.
Competition in the Research, Development and Commercialization of Products
Which May be Used in the Prevention or Treatment of Cancer and AIDS is Intense.
Major pharmaceutical and chemical companies, as well as specialized
genetic engineering firms, are developing products for these diseases. Many of
these companies have substantial financial, research and development, and
marketing resources and are capable of providing significant long-term
competition either by establishing in-house research groups or by forming
collaborative ventures with other entities. In addition, both smaller companies
and non-profit institutions are active in research relating to cancer and AIDS
and are expected to become more active in the future.
The Market Price for the Company's Common Stock is Volatile.
The market price of the Company's common stock, as well as the
securities of other biopharmaceutical and biotechnology companies, have
historically been highly volatile, and the market has from time to time
experienced significant price and volume fluctuations that are unrelated to the
operating performance of particular companies. Factors such as fluctuations in
the Company's operating results, announcements of technological innovations or
new therapeutic products by the Company or its competitors, governmental
regulation, developments in patent or other proprietary rights, public concern
as to the safety of products developed by the Company or other biotechnology and
pharmaceutical companies, and general market conditions may have a significant
effect on the market price of the Company's Common Stock.
COMPARATIVE SHARE DATA
As of May 10, 1999, the present shareholders of the Company owned
16,005,015 shares of Common Stock, which had a net tangible book value of
approximately $0.92 per share (unaudited). The following table illustrates the
comparative stock ownership of the present shareholders of the Company, as
compared to the investors in this Offering, assuming all shares offered are
sold.
Number of Note
Shares Reference
Shares outstanding as of May 10, 1999 (1) 16,016,667
Shares to be issued upon conversion of 720,500 A
Series D Preferred Stock, assuming
conversion price of $2.00 per share (1) _________
Shares outstanding (pro forma basis) (1) 16,737,167
<PAGE>
Net tangible book value per share as of
December 31, 1998 (unaudited) $0.92
Equity ownership by present shareholders 96%
after this offering
Equity ownership by investors in this Offering 4%
(1) Assumed conversion price is based upon the closing price of the Company's
Common Stock on May 10, 1999. The actual number of shares to be issued upon
the conversion of the Series D Preferred Shares may be greater than 720,500
shares and will depend upon the price of the Company's Common Stock at the
time of conversion.
(2) Amount excludes shares which may be issued upon the exercise and/or
conversion of options, warrants and other convertible securities previously
issued by the Company. See table below.
"Net tangible book value" is the amount that results from subtracting
the total liabilities and intangible assets of the Company from its total
assets. Tangible assets exclude deposits and patent costs. The purchasers of the
securities offered by this Prospectus will suffer an immediate dilution if the
price paid for the securities offered is greater than the net tangible book
value of the Company's Common Stock.
Other Shares Which May Be Issued:
The following table lists additional shares of the Company's Common
Stock which may be issued as the result of the exercise of outstanding options,
warrants or the conversion of other securities issued by the Company:
Number of Note
Shares Reference
Shares issuable upon exercise of 1,100,000 A
Series A and Series B Warrants
Shares issuable upon exercise of 50,000 B
Sales Agent Warrants
Shares issuable upon exercise 285,000 C
of options granted to financial consultants
Shares issuable upon exercise of warrants
held by former holders of the
Company's Series B Preferred Stock. 82,250 D
Shares issuable upon exercise of
options and warrants granted to
Company's officers, directors, employees,
consultants, and third parties 2,946,084 E
<PAGE>
A. In December 1997, the Company sold 10,000 shares of its Series D
Preferred Stock, 550,000 Series A Warrants and 550,000 Series B Warrants,
to ten institutional investors for $10,000,000. Each Series D Preferred
Share is convertible into shares of the Company's Common Stock equal in
number to the amount determined by dividing $1,000 by the lower of (i)
$8.28, or (ii) the average price of the Company's common stock for any
two trading days during the ten trading days preceding the conversion
date. Each Series A Warrant allows the holder to purchase one share of
the Company's common stock for $8.62 at any time prior to December 22,
2001. Each Series B Warrant allows the holder to purchase one share of
the Company's Common Stock for $9.31 at any time prior to December 22,
2001. As of May 10, 1999, 8,559 shares of the Series D Preferred Stock
had been converted into 4,461,332 shares of the Company's common stock.
The shares issuable upon the conversion of the Series D Preferred Shares
are being offered for sale to the public by means of this prospectus.
See "Selling Shareholders".
B. In connection with the Company's December l997 sale of Series D Preferred
Shares and Warrants Shoreline Pacific Institutional Finance, the Sales Agent
for such offering, received a commission plus warrants to purchase 50,000
shares of the Company's Common Stock (the "Sales Agent Warrants"). The Sales
Agent Warrants are exercisable at a price of $8.62
per share at any time prior to December 22, 2001.
C. The Company has granted options for the purchase of an additional 285,000
shares of common stock to certain investor relations consultants in
consideration for services provided to the Company. The options are
exercisable at prices ranging between $2.50 and $7.31 per share and expire
between September 1999 and February 2004.
D. These warrants allow the holders to purchase up to 82,250 shares of the
Company's common stock for $4.25 per share at any time prior to December 15,
1999.
E. The options are exercisable at prices ranging from $2.06 to $11.00 per
share. The Company may also grant options to purchase additional shares
under its Incentive Stock Option and Non-Qualified Stock Option Plans.
SELLING SHAREHOLDERS
In December 1997 the Company raised $10,000,000 from the sale of 10,000
shares of the Company's Series D Preferred Stock, 550,000 Series A Warrants and
550,000 Series B Warrants. At the purchasers' option, the Preferred Shares are
convertible from time to time, in whole or in part, into shares of the Company's
Common Stock upon certain terms. See "Comparative Share Data". The actual number
of shares to be issued upon the conversion of the Series D preferred Shares may
be greater than the 720,500 shares shown in the following table and will depend
upon the price of the Company's Common Stock at the time of conversion. See
"Comparative Share Data". The shares issuable upon the conversion of the Series
D Preferred Shares are being offered to the public by means of this Prospectus.
The holders of the Preferred Shares to the extent they convert their
Preferred Shares into shares of Common Stock are referred to in this Prospectus
as the "Selling Shareholders". The Company will not receive any proceeds from
the sale of the shares by the Selling Shareholders.
<PAGE>
The names of the Selling Shareholders are:
Shares
Which
May Be
Acquired
Upon Con- Share
version of Shares to Owner-
Shares Series D be Sold ship
Beneficially Preferred in this After
Name Owned (1) Shares (2) Offering (4) Offering
- ---------------- ----------- ---------- ------------ --------
KA Investments LDC -- 25,000 25,000 --
Olympus Securities, Ltd. -- 362,500 362,500(3) --
Nelson Partners -- 252,500 252,500(3) --
Leonardo, L.P. -- 50,000 50,000 --
AGR Halifax Fund, Ltd. -- 30,500 30,500 --
(1) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or
investment power with respect to securities and includes any securities
which the shareholder has the right to acquire within 60 days through the
conversion or exercise of any security or other right.
(2) Represents shares issuable upon the conversion of the Series D Preferred
Stock assuming conversion price of $2.00 per share. The actual number of
shares to be issued upon the conversion of the Series D Preferred Shares may
be greater than the amount shown in this table and will depend upon the
price of the Company's Common Stock at the time of conversion. See
"Comparative Share Data".
(3) Citadel Limited Partnership is the managing general partner of Nelson
Partners and the trading manager of Olympus Securities, Ltd. and
consequently has voting control and investment discretion over securities
held by both Nelson and Olympus. The ownership information for Nelson does
not include the shares owned by Olympus and the ownership information for
Olympus does not include the shares owned by Nelson. The Company, Olympus
Securities, Ltd., and Nelson Partners have agreed that no more than 4.9% of
the outstanding shares of the Company's common stock may be issued to
Olympus Securities and Nelson Partners, on a combined basis, during any 30
day period as a result of the conversion of the Series D Preferred Shares
and/or the exercise of the Warrants.
<PAGE>
(4) Assumes all shares owned, or which may be acquired, by the Selling
Shareholders, are sold to the public by means of this Prospectus.
Manner of Sale.
The shares of Common Stock owned, or which may be acquired, by the Selling
Shareholders may be offered and sold by means of this Prospectus from time to
time as market conditions permit in the over-the-counter market, or otherwise,
at prices and terms then prevailing or at prices related to the then-current
market price, or in negotiated transactions. These shares may be sold by one or
more of the following methods, without limitation:
(a) A block trade in which a broker or dealer engaged by the Selling
Shareholders will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to facilitate
the transaction.
(b) Purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this Prospectus.
(c) Ordinary brokerage transactions and transactions in which the broker
solicits purchasers.
(d) Face-to-face transactions between sellers and purchasers without a
broker/dealer.
In making sales, brokers or dealers engaged by the Selling Shareholders
may arrange for other brokers or dealers to participate. Such brokers or dealers
may receive commissions or discounts from Selling Shareholders in amounts to be
negotiated.
From time to time one or more of the Selling Shareholders may transfer,
pledge, donate or assign the shares received upon the conversion of the Series D
Preferred Stock (the "Conversion Shares") to lenders or others and each of such
persons will be deemed to be a Selling Shareholder for purposes of this
Prospectus. The number of Conversion Shares beneficially owned by those Selling
Shareholders will decrease as and when they transfer, pledge, donate or assign
the Conversion Shares. The plan of distribution for the Conversion Shares sold
by means of this Prospectus will otherwise remain unchanged, except that the
transferees, pledgees, donees or other successors will be Selling Shareholders
for purposes of this Prospectus .
A Selling Shareholder may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales of the Company's
common stock in the course of hedging the positions they assume with such
Selling Shareholder, including, without limitation, in connection with the
distribution of the Company's common stock by such broker-dealers. A Selling
Shareholder may also enter into option or other transactions with broker-dealers
that involve the delivery of the common stock to the broker-dealers, who may
then resell or otherwise transfer such common stock. A Selling Shareholder may
also loan or pledge the common stock to a broker-dealer and the broker-dealer
may sell the common stock so loaned or upon default may sell or otherwise
transfer the pledged common stock.
<PAGE>
Broker-dealers, underwriters or agents participating in the
distribution of the Company's common stock as agents may receive compensation in
the form of commissions, discounts or concessions from the Selling Shareholders
and/or purchasers of the common stock for whom such broker-dealers may act as
agent, or to whom they may sell as principal, or both (which compensation as to
a particular broker-dealer may be less than or in excess of customary
commissions). Selling Shareholders and any broker-dealers who act in connection
with the sale of common stock offered by this prospectus may be deemed to be
"Underwriters" within the meaning of the Securities Act, and any commissions
they receive may be deemed to be underwriting discounts and commissions under
the Securities Act. Neither the Company nor any Selling Shareholder can
presently estimate the amount of such compensation. The Company does not know of
any existing arrangements between any Selling Shareholder, any other
stockholder, broker, dealer, underwriter or agent relating to the sale or
distribution of the Company's common stock.
The Company has advised the Selling Shareholders that in the event of a
"distribution" of the shares owned by the Selling Shareholder, such Selling
Shareholders, any "affiliated purchasers", and any broker/dealer or other person
who participates in such distribution may be subject to Rule 102 under the
Securities Exchange Act of 1934 ("1934 Act") until their participation in that
distribution is completed. A "distribution" is defined in Rule 102 as an
offering of securities "that is distinguished from ordinary trading transactions
by the magnitude of the offering and the presence of special selling efforts and
selling methods". The Company has also advised the Selling Shareholders that
Rule 102 under the 1934 Act prohibits any "stabilizing bid" or "stabilizing
purchase" for the purpose of pegging, fixing or stabilizing the price of the
Common Stock in connection with this offering. Rule 101 makes it unlawful for
any person who is participating in a distribution to bid for or purchase stock
of the same class as is the subject of the distribution.
The Company has agreed to indemnify the Selling Shareholders and any
securities broker/dealers who may be deemed to be underwriters against certain
liabilities, including liabilities under the Securities Act as underwriters or
otherwise.
DESCRIPTION OF SECURITIES
Common Stock
The Company is authorized to issue 100,000,000 shares of Common Stock,
(the "Common Stock"). Holders of Common Stock are each entitled to cast one vote
for each share held of record on all matters presented to shareholders.
Cumulative voting is not allowed; hence, the holders of a majority of the
outstanding Common Stock can elect all directors.
Holders of Common Stock are entitled to receive such dividends as may
be declared by the Board of Directors out of funds legally available therefor
and, in the event of liquidation, to share pro rata in any distribution of the
Company's assets after payment of liabilities. The board is not obligated to
declare a dividend. It is not anticipated that dividends will be paid in the
foreseeable future.
<PAGE>
Holders of Common Stock do not have preemptive rights to subscribe to
additional shares if issued by the Company. There are no conversion, redemption,
sinking fund or similar provisions regarding the Common Stock. All of the
outstanding shares of Common Stock are fully paid and non-assessable and all of
the shares of Common Stock offered as a component of the Units will be, upon
issuance, fully paid and non-assessable.
Preferred Stock
The Company is authorized to issue up to 200,000 shares of Preferred
Stock. The Company's Articles of Incorporation provide that the Board of
Directors has the authority to divide the Preferred Stock into series and,
within the limitations provided by Colorado statute, to fix by resolution the
voting power, designations, preferences, and relative participation, special
rights, and the qualifications, limitations or restrictions of the shares of any
series so established. As the Board of Directors has authority to establish the
terms of, and to issue, the Preferred Stock without shareholder approval, the
Preferred Stock could be issued to defend against any attempted takeover of the
Company.
See "Comparative Share Data" for information concerning the Company's
Series D Preferred Stock.
Transfer Agent
American Securities Transfer, Inc., of Denver, Colorado, is the
transfer agent for the Company's Common Stock.
EXPERTS
The financial statements as of September 30, 1998 and 1997 and for each
of the three years in the period ended September 30, 1998 incorporated by
reference in this prospectus from the Company's Annual Report on Form 10-K have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report (which includes an explanatory paragraph related to the restatement of
the 1997 and 1996 financial statements) which are incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
INDEMNIFICATION
The Company's Bylaws authorize indemnification of a director, officer,
employee or agent of the Company against expenses incurred by him in connection
with any action, suit, or proceeding to which he is named a party by reason of
his having acted or served in such capacity, except for liabilities arising from
his own misconduct or negligence in performance of his duty. In addition, even a
director, officer, employee, or agent of the Company who was found liable for
misconduct or negligence in the performance of his duty may obtain such
indemnification if, in view of all the circumstances in the case, a court of
competent jurisdiction determines such person is fairly and reasonably entitled
to indemnification. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
<PAGE>
ADDITIONAL INFORMATION
The Company is subject to the requirements of the Securities Exchange
Act of l934 and is required to file reports, proxy statements and other
information with the Securities and Exchange Commission. Copies of any such
reports, proxy statements and other information filed by the Company can be read
and copied at the Commission's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C., 20549. The public may obtain information on the operation of
the Public Reference Room by calling the Commission at 1-800-SEC-0330. The
Commission maintains an Internet site that contains reports, proxy and
information statements, and other information regarding the Company. The address
of that site is http://www.sec.gov.
The Company will provide, without charge, to each person to whom a copy
of this Prospectus is delivered, including any beneficial owner, upon written or
oral request, a copy of any or all of the documents incorporated by reference
below (other than exhibits to these documents, unless the exhibits are
specifically incorporated by reference into this Prospectus).
Requests should be directed to:
CEL-SCI Corporation
8229 Boone Blvd., #802
Vienna, Virginia 22182
(703) 506-9460
The following documents filed with the Commission by the Company
(Commission File No. 0-11503) are incorporated by reference into this
Prospectus:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended September
30, 1998.
(2) The Company's Report on Form 10-Q for the quarter ending December 31, 1998.
(3) The Company's Proxy Statement relating to the April 12, 1999 Annual Meeting
of Shareholders.
All documents filed with the Commission by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of this offering shall be deemed to
be incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
shall be deemed to be modified or superseded for the purposes of this Prospectus
to the extent that a statement contained in this Prospectus or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company has filed with the Securities and Exchange Commission a
Registration Statement under the Securities Act of l933, as amended, with
respect to the securities offered by this Prospectus. This Prospectus does not
contain all of the information set forth in the Registration Statement. For
further information with respect to the Company and such securities, reference
is made to the Registration Statement and to the exhibits filed with the
Registration Statement. Statements contained in this Prospectus as to the
contents of any contract or other documents are summaries which are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference. The
Registration Statement and related exhibits may also be examined at the
Commission's internet site.
<PAGE>
No dealer salesman or other person has been authorized to give any
information or to make any representations, other than those contained in this
Prospectus. Any information or representation not contained in this Prospectus
must not be relied upon as having been authorized by the Company. This
Prospectus does not constitute an offer to sell, or a solicitation of an offer
to buy, the securities offered hereby in any state or other jurisdiction to any
person to whom it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that there has been no change in the
affairs of the Company since the date of this Prospectus.
TABLE OF CONTENTS
Page
Prospectus Summary........................ 9
Comparative Share Data..................... 12
Selling Shareholders........................ 15
Description of Securities................... 19
Experts..................................... 20
Indemnification............................. 20
Additional Information...................... 21
Common Stock
CEL-SCI CORPORATION
PROSPECTUS
<PAGE>
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
-------------------------------------------
SEC Filing Fee $5,429
Blue Sky Fees and Expenses 2,000
Printing and Engraving Expenses 2,000
Legal Fees and Expenses 10,000
Accounting Fees and Expenses 3,000
Miscellaneous Expenses 2,571
----------
TOTAL $25,000
All expenses other than the S.E.C. filing fees are estimated.
Item 25. Indemnification of Officers and Directors.
It is provided by Section 7-109-102 of the Colorado Revised Statutes
and the Company's Bylaws that the Company may indemnify any and all of its
officers, directors, employees or agents or former officers, directors,
employees or agents, against expenses actually and necessarily incurred by them,
in connection with the defense of any legal proceeding or threatened legal
proceeding, except as to matters in which such persons shall be determined to
not have acted in good faith and in the best interest of the Company.
Item 16. Exhibits
3(a) Articles of Incorporation Incorporated by reference to Exhibit
3(a) of the Company's combined
Registration Statement on Form S-1
and Post-Effective Amendment
("Registration Statement"), Registration
Nos. 2-85547-D and 33-7531.
(b) Amended Articles Incorporated by reference to Exhibit
3(a) of the Company's Registration
Statement on Form S-1, Registration Nos.
2-85547-D and 33-7531.
(c) Amended Articles Filed as Exhibit 3(c) to the Company's
(Name change only) Registration Statement on Form S-1
Registration Statement (No. 33-34878).
(d) Bylaws Incorporated by reference to
Exhibit 3(b) of the Company's
Registration Statement on Form S-1,
Registration Nos. 2-85547-D and 33-7531.
II-1
<PAGE>
(a) Specimen copy of Incorporated by reference to Exhibit
Stock Certificate 4(a)of the Company's Registration
Statement on Form S-1, Registration Nos.
2-85547-D and 33-7531.
(c) Form of Common Stock Incorporated by reference to Exhibit 4(c)
Purchase Warrant filed as an exhibit to the Company's
Registration Statement on Form S-1
(Registration No. 33-43281).
(d) Certificate of Designations Incorporated by reference to Exhibit 4.2
Preferences and Rights of file with Report on Form 8-K dated
Series D Preferred Stock. Dewcember 22, 1997.
5. Opinion of Counsel Previously Filed
10(e) Employment Agreement with Filed with Amendment Number 1 to the
Geert Kersten Company's Registration Statement on
Form S-1 (Commission File Number
33-43281).
10(f) Securities Purchase Agreement Incorporated by reference to Exhibit 4.1
(without Exhibits and Schedules) filed with Report on Form 8-K dated
Pertaining to sale of Series D December 22, 1997.
Preferred Stock
10(g) Form of Common Stock Purchase Incorporated by reference to Exhibit 4.3
Warrant sold with shares of filed with Report on Form 8-K dated
Series D Preferred Stock December 22, 1997.
10(h) Registration Rights Agreement Incorporated by reference to Exhibit 4.4
Pertaining to Series D Preferred filed with Report on Form 8-K dated
Stock and Warrants December 22, 1997.
23(a) Consent of Hart & Trinen Previously filed
(b) Consent of Deloitte & Touche, LLP Previously filed
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement.
II-2
<PAGE>
(i) To include any Prospectus required by Section l0(a)(3) of
the Securities Act of l933;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement, including
(but not limited to) any addition or deletion of a managing underwriter.
(2) That, for the purpose of determining any liability under the
Securities Act of l933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
Insofar as indemnification for liabilities arising under the Securities
Act of l933 may be permitted to directors, officers and controlling persons of
the Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
POWER OF ATTORNEY
The registrant and each person whose signature appears below hereby
authorizes the agent for service named in this Registration Statement, with full
power to act alone, to file one or more amendments (including post-effective
amendments) to this Registration Statement, which amendments may make such
changes in this Registration Statement as such agent for service deems
appropriate, and the Registrant and each such person hereby appoints such agent
for service as attorney-in-fact, with full power to act alone, to exe- cute in
the name and in behalf of the Registrant and any such person, individually and
in each capacity stated below, any such amendments to this Registration
Statement.
SIGNATURES
Pursuant to the requirements of the Securities Act of l933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Vienna, State of Virginia, on the 7th day of May,
1999.
CEL-SCI CORPORATION
By: /s/Maximilian De
Clara
MAXIMILIAN DE CLARA, PRESIDENT
Pursuant to the requirements of the Securities Act of l933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Maximilian de Clara Director and May 7, 1999
Maximilian de Clara Principal
Executive Officer
/s/ Geert R. Kersten Director, Principal May 7, 1999
Geert R. Kersten Financial Officer
and Chief Executive
Officer
Alexander G. Esterhazy Director
/s/ John M. Jacquemin Director May 7, 1999
John M. Jacquemin
