As filed with the Securities and Exchange Commission on February __, 2000.
Registration No 333-72415
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 (5)
Common stock (2) 1,100,000 $2.50 $2,750,000 $726.00
Common stock (3) 50,000 $2.50 125,000 33.00
Common stock (4) 135,000 $2.50 337,500 89.10
---------- ------------ ---------
Total 1,285,000 $3,212,500 $848.10
========= ========== =======
(1) Offering price computed in accordance with Rule 457(c).
(2) Shares of common stock issuable upon the exercise of Series A and Series B
Warrants. The Series A and Series B Warrants were issued in connection with
the sale of CEL-SCI's Series D Preferred Stock. Includes additional shares
which may be issued due to potential adjustments to Warrant exercise price.
(3) Shares of common stock issuable upon the exercise of Sales Agent's Warrants.
(4) Shares of common stock issuable upon the exercise options granted to
investor relations consultants.
(5) A fee of $5,429 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 exercise of the warrants or other options as a result of any adjustment
in the number of securities issuable by reason of the anti-dilution provisions
of the warrants or options.
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 1,285,000 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.
CEL-SCI will not receive any proceeds from the sale of the shares by
the selling shareholders.
The selling shareholders have advised CEL-SCI 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 CEL-SCI. 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 6 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.
CEL-SCI's common stock is traded on the American Stock Exchange. On February
__, 2000 the closing price of CEL-SCI's Common on the American Stock Exchange
was $_____.
The date of this prospectus is February __, 2000
<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.
CEL-SCI
CEL-SCI was formed as a Colorado corporation in 1983. CEL-SCI is
involved in the research and development of certain drugs and vaccines.
CEL-SCI's first, and main, product, MULTIKINE(TM), manufactured using CEL-SCI's
proprietary cell culture technologies, is a combination, or "cocktail", of
natural human interleukin-2 ("IL-2") and certain cytokines and cytokines.
MULTIKINE is being tested to determine if it is effective in improving the
immune response of cancer patients. CEL-SCI's second most advanced product,
HGP-30W, is being tested to determine if it is an effective vaccine/treatment
against the AIDS virus. The third technology the Company is developing, LEAPS
(Ligand Epitope Antigen Presentation System) is a T-cell modulation technology
which can be used to direct a specific immune response. CEL-SCI intends to use
this new technology to improve the cellular immune response of persons
vaccinated with HGP-30W 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 CEL-SCI's
technologies, research expenditures and CEL-SCI's administrative expenses have
been funded with the public and private sales of shares of CEL-SCI's common
stock and borrowings from third parties, including affiliates of CEL-SCI.
CEL-SCI does not expect to develop commercial products for several
years, if at all. CEL-SCI has had operating losses since its inception, had an
accumulated deficit of approximately $(52,627,830) at September 30, 1999, and
expects to incur substantial losses for the foreseeable future.
CEL-SCI'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 1,285,000 shares of the
common stock of CEL-SCI 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 February 10, 2000, CEL-SCI had 18,396,933 shares of
common stock issued and outstanding. Assuming all warrants
and options held by the selling shareholders are exercised,
there will be 19,681,933 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 CEL-SCI. 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: CVM
Summary Financial Data
Years Ended September 30, Three Months Ended
1999 1998 December 31,1998
---- ---- -------------------
Investment Income and
Other Revenues $ 469,518 $792,994 $195,713
Expenses:
Research and Development 4,461,051 3,833,854 941,948
Depreciation and Amortization 268,210 295,331 65,932
General and Administrative 3,230,982 3,106,492 706,024
--------- ------------ -------------
Net Loss $(7,490,725) $(6,442,683) $(1,518,191)
============ ============ ============
Accretion of Preferred Stock -- 1,980,000 --
-------------
Preferred Stock Dividends -- -- --
------------- ------------- -------------
Net Loss attributable to
common stockholders $(7,490,725) $(8,422,683) $(1,518,191)
============ ============ ============
Loss per common share (basic) $(0.52) $( 0.74) $(0.13)
=========== ============ =============
Loss per common share (diluted) $(0.52) $(0.74) $(0.13)
=========== ============= ==============
Weighted average common
shares outstanding 14,484,352 11,379,437 11,615,914
==========
Balance Sheet Data
September 30,
1999 1998
Working Capital $6,152,715 $12,926,014
Total Assets 7,559,772 14,431,813
Current Liabilities 433,265 427,147
Long Term and Other Liabilities 28,321 29,382
Total Liabilities 461,586 456,529
Shareholders' Equity 7,098,186 13,975,284
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. CEL-SCI does not make, nor has it authorized any other
person to make, any representation about the future market value of CEL-SCI'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
CEL-SCI Has Earned Only Limited Revenues and Has a History of Losses.
CEL-SCI has had only limited revenues since it was formed in 1983.
Since the date of its formation and through September 30, 1999 CEL-SCI incurred
net losses of approximately $(52,628,000). During the years ended September 30,
1997, 1998 and 1999 CEL-SCI suffered losses of $(8,189,458), $(6,442,683) and
$(7,490,725) respectively. CEL-SCI has relied principally upon the proceeds of
public and private sales of securities to finance its activities to date. All of
CEL-SCI's potential products are in the early stages of development, and any
commercial sale of these products will be many years away. Accordingly, CEL-SCI
expects to incur substantial losses for the foreseeable future.
There can be no assurance CEL-SCI will be profitable. At the present
time, CEL-SCI intends to use available funds to finance CEL-SCI's operations.
<PAGE>
Accordingly, while payment of dividends rests within the discretion of the Board
of Directors, no common stock dividends have been declared or paid by CEL-SCI.
CEL-SCI 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.
CEL-SCI 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. CEL-SCI 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. CEL-SCI may be forced to delay or postpone development
and research expenditures if CEL-SCI is unable to secure adequate sources of
funds. These delays in development may have an adverse effect on CEL-SCI's
ability to produce a timely and competitive product. There can be no assurance
that CEL-SCI will be able to obtain additional funding from other sources.
Cost Estimates for Clinical Trials and Research May be Inaccurate.
CEL-SCI's estimates of the costs associated with future clinical trials
and research may be substantially lower than the actual costs of these
activities. If CEL-SCI's cost estimates are incorrect, CEL-SCI will need
additional funding for its research efforts.
Products Which May Be Developed by CEL-SCI 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
CEL-SCI, 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 CEL-SCI 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.
CEL-SCI is Dependent on an Unrelated Corporation to Manufacture MULTIKINE
CEL-SCI has an agreement with an unrelated corporation for the
production, until August 2000, of MULTIKINE for research and testing purposes.
At present, this is CEL-SCI's only source of MULTIKINE. If this corporation
could not, for any reason, supply CEL-SCI with MULTIKINE, CEL-SCI estimates that
it would take approximately six to ten months to obtain supplies of MULTIKINE
under an alternative manufacturing arrangement. CEL-SCI does not know what cost
it would incur to obtain this alternative source of supply.
<PAGE>
The Biomedical Field in Which CEL-SCI is Involved is Undergoing Rapid and
Significant Technological Change.
The successful development of therapeutic agents and diagnostic
products from CEL-SCI's compounds, compositions and processes, 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 CEL-SCI
will achieve or maintain such a competitive position or that other technological
developments will not cause CEL-SCI's proprietary technologies to become
uneconomical or obsolete.
CEL-SCI's Patents Might Not Protect CEL-SCI's Technology.
Certain aspects of CEL-SCI's technologies are covered by U.S. and
foreign patents. In addition, CEL-SCI 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 CEL-SCI. Disputes may arise between CEL-SCI 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 CEL-SCI
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 CEL-SCI. The scope and validity of such patents, if any, the
extent to which CEL-SCI 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 CEL-SCI relies upon unpatented proprietary technology, there is no assurance
that others may not acquire or independently develop the same or similar
technology. CEL-SCI's first MULTIKINE patent will expire in the year 2000. Since
CEL-SCI does not know if it will ever be able to sell MULTIKINE on a commercial
basis, CEL-SCI cannot predict what effect the expiration of this patent will
have on CEL-SCI. Notwithstanding the above, CEL-SCI believes that trade secrets
and later issued patents will protect the technology associated with MULTIKINE
past the year 2000.
CEL-SCI's Product Liability Insurance May Not Be Adequate.
Although CEL-SCI has product liability insurance for MULTIKINE and its
HGP-30 vaccine, the successful prosecution of a product liability case against
CEL-SCI could have a materially adverse effect upon its business if the amount
of any judgment exceeds CEL-SCI's insurance coverage.
The Loss of Management and Scientific Personnel Could Adversly Affect CEL-SCI.
CEL-SCI is dependent for its success on the continued availability of
its executive officers. The loss of the services of any of CEL-SCI's executive
officers could have an adverse effect on CEL-SCI's business. CEL-SCI does not
carry key man life insurance on any of its officers. CEL-SCI's future success
will also depend upon its ability to attract and retain qualified
scientific personnel. There can be no assurance that CEL-SCI 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 CEL-SCI's Common Stock.
CEL-SCI has issued options to its officers, directors, employees and
consultants which allow the holders to acquire additional shares of CEL-SCI's
common stock. In some cases CEL-SCI 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 CEL-SCI and
could hinder future financings by CEL-SCI.
Until the options expire, the holders will have an opportunity to
profit from any increase in the market price of CEL-SCI's common stock without
assuming the risks of ownership. Holders of the options may exercise them at a
time when CEL-SCI 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 CEL-SCI's
common stock and may adversely affect the ability of CEL-SCI 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 CEL-SCI's stock.
In December 1999 and January 2000, CEL-SCI sold 1,148,592 shares of its
common stock, plus Series A and Series B warrants, to three private investors.
The Series A warrants permit the holders of the warrants to purchase 402,007
shares of CEL-SCI's common stock at a price of $2.925 per share at any time
prior to December 8, 2002. The Series B warrants allow the investors, under
certain circumstances, to acquire additional shares of CEL-SCI's common stock at
a nominal price in the event (i) the price of CEL-SCI's common stock falls below
$2.44 per share or (ii) CEL-SCI raises in excess of $1,000,000 at a price which
is below either the then prevailing market price of CEL-SCI's common stock or
$2.44 per share. Since the price of CEL-SCI's common stock has been volatile in
the past, investors could experience substantial dilution as a result of the
Series B warrants if there is a decline in the market price of CEL-SCI's common
stock. See "Comparative Share Data".
The 1,148,592 shares of common stock sold in the private offering
referred to above, as well as the shares of common stock issuable upon the
exercise of the Series A and B warrants, are being offered for public sale by
means of this prospectus. The issuance of common stock upon the exercise of the
Series A and B warrants, as well as future sales of such common stock, or the
perception that such sales could occur, could adversely affect the market price
of CEL-SCI'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.
Most pharmaceutical and biotechnology companies are developing products
for these diseases. Many of these companies have substantial financial, research
<PAGE>
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 CEL-SCI's Common Stock is Volatile.
The market price of CEL-SCI'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 CEL-SCI's operating
results, announcements of technological innovations or new therapeutic products
by CEL-SCI or its competitors, governmental regulation, developments in patent
or other proprietary rights, public concern as to the safety of products
developed by CEL-SCI or other biotechnology and pharmaceutical companies, and
general market conditions may have a significant effect on the market price of
CEL-SCI's common stock.
COMPARATIVE SHARE DATA
As of February 10, 2000, the present shareholders of CEL-SCI owned
18,396,933 shares of common stock. The following table illustrates the
comparative stock ownership of the present shareholders of CEL-SCI, as compared
to the investors in this offering, assuming all shares offered are sold.
Number of Note
Shares Reference
Shares outstanding as of February 10, 2000 (1) 18,396,933
Shares issuable upon exercise of Warrants 1,100,000 A
sold in December 1997 Private Offering
Shares issuable upon exercise of sales 50,000 B
agent warrants
Shares issuable upon exercise of options 135,000 C
granted to financial consultants
Shares which will be outstanding, assuming the 19,681,933
exercise of all warrants and options listed above
Percentage of CEL-SCI's common stock
represented by shares offered by this 6.5%
prospectus, assuming the exercise of
all warrants listed above
The number of shares outstanding as of December 31, 1999 excludes shares
which may be issued upon the exercise and/or conversion of options, warrants and
other convertible securities previously issued by CEL-SCI. See table below.
<PAGE>
(1) Amount excludes shares which may be issued upon the exercise and/or
conversion of options, warrants and other convertible securities previously
issued by CEL-SCI. See table below.
Other Shares Which May Be Issued:
The following table lists additional shares of CEL-SCI'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 CEL-SCI:
Number of Note
Shares Reference
Shares issuable upon exercise of 402,007 D
Series A and Series B warrants
Shares issuable upon exercise of options and
warrants granted to Company's officers, directors,
employees, consultants, and third parties 3,153,448 E
A. In December 1997, CEL-SCI sold 10,000 shares of its Series D Preferred
Stock, and 1,100,000 warrants, to ten institutional investors for
$10,000,000. All Series D Preferred shares were subsequently converted into
5,201,400 shares of CEL-SCI's common stock. Warrants for the purchase of
550,000 shares of common stock are exercisable at a price of $8.62 at any
time prior to December 22, 2001. Warrants for the purchase of 550,000
shares of common stock are exercisable at a price of $9.31 at any time
prior to December 22, 2001. As of December 31, 1999 none of the warrants
had been exercised. The shares issuable upon the exercise of warrants are
being offered for sale to the public by means of a separate registration
statement which has been filed with the Securities and Exchange Commission.
The shares issuable upon the exercise of the warrants are being offered for
sale to the public by means of this prospectus. See
"selling shareholders".
B. In connection with CEL-SCI'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 CEL-SCI's common stock. The sales agent warrants are exercisable at a
price of $8.62 per share at any time prior to December 22, 2001. The shares
issuable upon the exercise of the sales agent warrants are being offered for
sale to the public by means of this prospectus.
See "selling shareholders".
C. CEL-SCI has granted options for the purchase of an additional 135,000 shares
of common stock to certain investor relations consultants in consideration
for services provided to CEL-SCI. The options are exercisable at prices
ranging between $2.50 and $5.62 per share and expire between June 2000 and
June 2003. The 135,000 shares issuable upon the exercise of these options
<PAGE>
are being offered for sale to the public by means of this prospectus. See
"selling shareholders".
D. In December 1999 and January 2000, CEL-SCI sold 1,148,592 shares of its
common stock, plus Series A and Series B warrants, to a group of private
investors for $2,800,000. The Series A warrants allow the holders to
purchase up to 402,007 shares of CEL-SCI's common stock at a price of
$2.925 per share at any time prior to December 8, 2002. The Series B
warrants allow the holders, under certain circumstances, to acquire
additional shares of CEL-SCI's common stock at a nominal price in the event
(i) the price of CEL-SCI's common stock falls below $2.44 per share prior
to certain vesting dates, or (ii) CEL-SCI raises in excess of $1,000,000 at
a price which his below either the then prevailing market price of
CEL-SCI's common stock or $2.44 per share. The actual number of shares
issuable upon the exercise of the Series B warrants (if any) will vary
depending upon a number of factors, including the price of CEL-SCI's common
stock at certain dates. Accordingly, the number of shares (if any) which
may be issued upon the exercise of the Series B warrants cannot be
determined at this time. However, based upon the market price of CEL-SCI's
common stock on January 6, 1999, CEL-SCI would not be required to issue any
material shares of its common stock if the Series B warrants were exercised
as of that date.
E. The options are exercisable at prices ranging from $2.38 to $11.00 per
share. CEL-SCI may also grant options to purchase additional shares under
its Incentive Stock Option and Non-Qualified Stock Option Plans.
SELLING SHAREHOLDERS
In December 1997, CEL-SCI sold 10,000 shares of its Series D preferred
stock, and 1,100,000 warrants, to ten institutional investors for $10,000,000.
All Series D preferred shares were subsequently converted into 5,201,400 shares
of CEL-SCI's common stock. Warrants for the purchase of 550,000 shares of common
stock are exercisable at a price of $8.62 at any time prior to December 22,
2001. Warrants for the purchase of 550,000 shares of common stock are
exercisable at a price of $9.31 at any time prior to December 22, 2001. As of
February 10, 2000 none of the warrants had been exercised. The shares issuable
upon the exercise of warrants are being offered for sale to the public by means
of a separate registration statement which has been filed with the Securities
and Exchange Commission. The shares issuable upon the exercise of the warrants
are being offered to the public by means of this prospectus.
In connection with CEL-SCI's December 1997 offering of Series D
preferred stock and warrants, Shoreline Pacific Institutional Finance, the sales
agent for such offering, received a commission as well as warrants to purchase
50,000 shares of CEL-SCI's common stock at $8.62 per share. The shares issuable
upon the exercise of the sales agent's warrants are also being offered for
public sale by means of this prospectus.
This prospectus also relates to the sale of shares of common stock
issuable upon the exercise of certain options granted by CEL-SCI to certain
investor relations consultants. The options for the purchase of the additional
135,000 shares of common stock were issued by CEL-SCI to the investor relations
<PAGE>
consultants in consideration for services provided to CEL-SCI. The options are
exercisable at prices ranging between $2.50 and $5.62 per share and expire
between June 2000 and June 2003.
The holders of the options referred to above, to the extent exercise
the warrants or options, are referred to in this prospectus as the "selling
shareholders". CEL-SCI will not receive any proceeds from the sale of the shares
by the selling shareholders.
The names of the selling shareholders are:
Shares
Which
May be
Acquired Share
Upon Ex- Shares to Owner-
Shares ercise of be Sold ship
Beneficially Warrants in this After
Name Owned (1) or Options Offering (5) Offering
- ---------------- ----------- ---------- ------------ --------
KA Investments LDC -- 220,000 (1) 220,000 --
Olympus Securities, Ltd. -- 330,000 (1) 330,000 (4) --
AG Super Fund International -- 11,000 (1) 11,000 --
Partners, L.P.
Raphael, L.P. -- 16,500 (1) 16,500 --
Baldwin Enterprises, Inc. -- 33,000 (1) 33,000 --
Nelson Partners -- 220,000 (1) 220,000 (4) --
Leonardo, L.P. -- 115,500 (1) 115,500 --
Ramius Fund, Ltd. -- 33,000 (1) 33,000 --
AGR Halifax Fund, Ltd. -- 110,000 (1) 110,000 --
Gam Arbitrage Investments, Inc. -- 11,000 (1) 11,000 --
Shoreline Pacific Institutional -- 50,000 (2) 50,000 --
Finance
The Fulton Group -- 50,000 (3) 50,000 --
<PAGE>
Daryll Strahll -- 5,000 (3) 5,000 --
Waterton Group LLC -- 30,000 (3) 30,000 --
Jonathon Gelles -- 50,000 (3) 50,000
(1) Represents shares issuable upon the exercise of the warrants sold in
December 1997 private offering.
(2) Represents shares issuable upon the exercise of the sales agent's warrants.
(3) Represents shares issuable upon exercise of options issued as payment for
assisting CEL-SCI with its relationship with shareholders, brokers and
institutional investors.
(4) 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.
(5) 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.
<PAGE>
(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 CEL-SCI'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 CEL-SCI'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.
Broker-dealers, underwriters or agents participating in the
distribution of CEL-SCI'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 CEL-SCI nor any selling shareholder can presently
estimate the amount of such compensation. CEL-SCI 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 CEL-SCI's
common stock.
CEL-SCI 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". CEL-SCI has also advised the selling shareholders that Rule
<PAGE>
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.
CEL-SCI 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
CEL-SCI 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
CEL-SCI'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.
Holders of common stock do not have preemptive rights to subscribe to
additional shares if issued by CEL-SCI. 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
CEL-SCI is authorized to issue up to 200,000 shares of Preferred Stock.
CEL-SCI'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 CEL-SCI.
<PAGE>
Transfer Agent
American Securities Transfer, Inc., of Denver, Colorado, is the
transfer agent for CEL-SCI's common stock.
EXPERTS
The financial statements as of September 30, 1999 and 1998 and for each
of the three years in the period ended September 30, 1999 incorporated by
reference in this prospectus from CEL-SCI's Annual Report on Form 10-K have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report 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
CEL-SCI's Bylaws authorize indemnification of a director, officer,
employee or agent of CEL-SCI 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 CEL-SCI 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 CEL-SCI pursuant to the foregoing provisions, CEL-SCI 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.
ADDITIONAL INFORMATION
CEL-SCI 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 CEL-SCI 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 CEL-SCI. The address of that site is
http://www.sec.gov.
CEL-SCI will provide, without charge, to each person to whom a copy of
this prospectus is delivered, including any beneficial owner, upon the written
or oral request of such person, 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:
<PAGE>
CEL-SCI Corporation
8229 Boone Blvd., #802
Vienna, Virginia 22182
(703) 506-9460
The following documents filed with the Commission by CEL-SCI
(Commission File No. 0-11503) are incorporated by reference into this
prospectus:
(1) CEL-SCI's Annual Report on Form 10-K for the fiscal year ended September 30,
1999.
(2) CEL-SCI's Proxy Statement relating to the April 12, 1999 Meeting of
Shareholders.
All documents filed with the Commission by CEL-SCI 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 in this prospectus 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.
CEL-SCI 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 CEL-SCI 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 CEL-SCI. 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 CEL-SCI
since the date of this prospectus.
TABLE OF CONTENTS
Page
Prospectus Summary................................ 5
Risk Factors...................................... 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 CEL-SCI's Bylaws that CEL-SCI 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 CEL-SCI.
Item 16. Exhibits
3(a) Articles of Incorporation Incorporated
by reference to Exhibit 3(a) of
CEL-SCI'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 CEL-SCI's
Registration Statement on Form S-1,
Registration Nos. 2-85547-D and 33-7531.
(c) Amended Articles Filed as Exhibit 3(c) to CEL-SCI'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 CEL-SCI's Registration
Statement on Form S-1, Registration Nos.
2-85547-D and 33-7531.
<PAGE>
(a) Specimen copy of Incorporated by reference to Exhibit
4(a) of the Stock Certificate Company's Registration
Statement on Form S-1, Registration Nos. 2-85547-D and
33-7531.
(d) Certificate of Designations Incorporated by reference to Exhibit 4.2 filed
Preferences and Rights of with Report on Form 8-K dated December Series D
Preferred Stock. 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
filed Warrant sold with shares of with Report on Form 8-K dated December
22, Series D Preferred Stock 1997.
10(h) Registration Rights Agreement Incorporated by reference to Exhibit 4.4
filed Pertaining to Series D Preferred with Report on Form 8-K dated
December 22, Stock and Warrants 1997.
23(a) Consent of Hart & Trinen ______________________________________
(b) Consent of Deloitte & Touche, LLP
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.
<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.
<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 execute 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 9th day of
February, 2000.
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 Principal February 9, 2000
Maximilian de Clara Executive Officer
/s/ Geert R. Kersten Director, Principal February 9, 2000
Geert R. Kersten Financial Officer and
Chief Executive Officer
Alexander G. Esterhazy Director February ___, 2000
/s/ John M. Jacquemin Director February 9, 2000
John M. Jacquemin
February 11, 2000
CEL-SCI Corporation
8229 Boone Blvd., #802
Vienna, Virginia 22182
This letter will constitute an opinion upon the legality of the sale by certain
selling shareholders of CEL-SCI Corporation, a Colorado corporation ("CEL-SCI"),
of up to 1,285,000 shares of common stock, all as referred to in the
Registration Statement on Form S-3 filed by CEL-SCI with the Securities and
Exchange Commission.
We have examined the Articles of Incorporation, the Bylaws and the minutes of
the Board of Directors of CEL-SCI and the applicable laws of the State of
Colorado, and a copy of the Registration Statement. In our opinion, CEL-SCI was
authorized to issue the shares of stock mentioned above and such shares
represent fully paid and non-assessable shares of CEL-SCI's common stock.
Very truly yours,
HART & TRINEN
William T. Hart
CONSENT OF ATTORNEYS
Reference is made to the Registration Statement of CEL-SCI Corporation, whereby
certain selling shareholders propose to sell up to 1,285,000 shares of CEL-SCI's
common stock. Reference is also made to Exhibit 5 included in the Registration
Statement relating to the validity of the securities proposed to be sold.
We hereby consent to the use of our opinion concerning the validity of the
securities proposed to be issued and sold.
Very truly yours,
HART & TRINEN
William T. Hart
Denver, Colorado
February 11, 2000
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
CEL-SCI Corporation on Form S-3 of our report dated December 6, 1999, appearing
in the Annual Report on Form 10-K of CEL-SCI Corporation for the year ended
September 30, 1999. We also consent to the reference to us under the heading
"Experts" in the prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Washington, DC
February 11, 2000
