Blueprint
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-1
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)
|
|
84-0916344
|
|
8229
Boone Blvd. #802
Vienna,
Virginia 22182
(703)
506-9460
|
|
(IRS
Employer I.D. Number)
|
|
(Address,
including zip code, and telephone 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 & Hart
1624 Washington Street
Denver, Colorado 80203
(303) 839-0061
As soon as practicable after the effective date of this
Registration Statement
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC:
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 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 statement
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 this Form is a post-effective amendment filed pursuant to Rule
462(d) 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. [
]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act.
|
Large accelerated filer
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[
]
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Accelerated filer
|
[
]
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|
Non-accelerated
filer
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[ ]
(Do not check if a smaller
reporting company)
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Smaller reporting company
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[x]
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|
|
|
Emerging
growth company
|
[
]
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CALCULATION OF REGISTRATION FEE
Title of each
Class of
Securities to be
Registered
|
Securities to be Registered
|
Maximum Offering Price Per Share
|
Proposed Maximum Aggregate Offering
Price
|
Proposed Amount of Registration
Fee
|
|
Common stock
offered by selling shareholders.
|
5,792,856
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$1.94
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$11,238,140
|
$1,400
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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.
PROSPECTUS
CEL-SCI CORPORATION
Common Stock
By
means of this prospectus, a number of our shareholders are offering
to sell up to:
●
1,289,478 shares of
common stock;
●
3,843,378 shares
issuable upon the exercise of our Series PP through SS
warrants;
●
up to 660,000
shares of common stock which we issued
in partial payment of amounts we owe to a firm for services
provided in connection with our Phase III clinical
trial.
Although we will
receive proceeds if any of the warrants are exercised, we will not
receive any proceeds from the sale of the common stock by the
selling stockholders. We will pay for the expenses of this offering
which are estimated to be $40,000.
Our
common stock is traded on the NYSE American under the symbol CVM.
On January 4, 2018 the closing price for our common stock was
$1.97.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the accuracy or adequacy of this prospectus. Any
representation to the contrary is a criminal offense.
THESE
SECURITIES ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK. FOR A
DESCRIPTION OF CERTAIN IMPORTANT FACTORS THAT SHOULD BE CONSIDERED
BY PROSPECTIVE INVESTORS, SEE "RISK FACTORS" BEGINNING ON PAGE 15
OF OUR 2017 ANNUAL REPORT ON FORM 10-K WHICH IS INCORPORATED BY
REFERENCE.
The
date of this prospectus is January 5, 2018.
PROSPECTUS SUMMARY
This summary
highlights certain information about us, this offering and
information appearing elsewhere in this prospectus and in the
documents we incorporate by reference. This summary is not complete
and does not contain all of the information that you should
consider before investing in our securities. To fully understand
this offering and its consequences to you should read this entire
prospectus carefully, including the documents incorporated by
reference, in this prospectus before making an investment
decision.
Our Company
We are
dedicated to research and development directed at improving the
treatment of cancer and other diseases by using the immune system,
the body’s natural defense system. We are currently focused
on the development of the following product candidates and
technologies:
1)
Multikine®
(Leukocyte Interleukin, Injection), or Multikine, an
investigational immunotherapy under development for
the potential treatment of certain head and neck cancers, and anal
warts or cervical dysplasia in human immunodeficiency virus, or
HIV, and human papillomavirus, or HPV co-infected patients;
2)
L.E.A.P.S. (Ligand
Epitope Antigen Presentation System) technology, or LEAPS, with two
investigational therapies, LEAPS-H1N1-DC, a product candidate under
development for the potential treatment of pandemic influenza in
hospitalized patients, and CEL-2000 and CEL-4000, vaccine product
candidates under development for the potential treatment of
rheumatoid arthritis.
We were formed as a
Colorado corporation in 1983. Our principal office is located at
8229 Boone Boulevard, Suite 802, Vienna, Virginia 22182. Our
telephone number is 703-506-9460 and our web site is www.cel-sci.com. The information
contained in, and that which can be accessed through, our website
is not incorporated into and does not form a part of this
prospectus supplement.
Our
common stock is publicly traded on the NYSE American under the
symbol “CVM”. The high and low closing prices of our
common stock, as reported by the NYSE American, during the three
months ended December 31, 2017 were $2.14 and $1.60, respectively.
The per share information in this prospectus, reflect, as
applicable, a 1-for-25 reverse stock split which became effective
on June 15, 2017.
As of
the date of this prospectus we had 13,918,589 outstanding shares of
common stock which reflect a 1-for-25
reverse stock split which became effective on the NYSE
American on June 15, 2017.
This number excludes
15,930,302 shares that may be issued upon the exercise of
outstanding warrants, options and convertible notes, with a
weighted average exercise price of $7.68 per
share.
The Offering
By
means of this prospectus a number of persons are offering to sell
up to:
●
1,289,478 shares of
our common stock;
●
3,843,378 shares of
our common stock which are issuable upon the exercise of our Series
PP through SS warrants; and
●
up to 660,000
shares of common stock which we issued in partial payment of
amounts we owe to a firm for services provided in connection with
our Phase III clinical trial.
The
purchase of the securities offered by this prospectus involves a
high degree of risk. Risk factors include our history of losses and
our need for additional capital.
INCORPORATION OF DOCUMENTS BY REFERENCE
We
incorporate by reference the filed documents listed below, except
as superseded, supplemented or modified by this prospectus and any
future filings we will make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act:
●
our Annual Report on Form 10-K for the
fiscal year ended September 30, 2017; and
●
our Current Reports
on Form 8-K filed with the SEC on October 6, 2017, November 3,
2017, November 22, 2017, December 1, 2017, December 12, 2017,
December 20, 2017, December 21, 2017 and January 3,
2018.
The
documents incorporated by reference contain important information
concerning:
●
Risk Factors
relating to an investment in our securities;
●
our Management and
matters relating to Corporate Governance;
●
Principal
Shareholders;
●
our Financial
Statements and our Management’s Discussion of our Results of
Operations and our Financial Conditions;
We 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 above, including exhibits.
Requests should be directed to:
CEL-SCI
Corporation
8229
Boone Blvd., #802
Vienna,
Virginia 22182
(703)
506-9460
The
documents incorporated by reference may be accessed at our website:
www.cel-sci.com.
FORWARD-LOOKING STATEMENTS
This
prospectus and the documents that are incorporated by reference
into this prospectus contain or incorporate by reference
“forward-looking statements” within the meaning of the
Private Securities Litigation Reform Act of 1995, Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. You can generally
identify these forward-looking statements by forward-looking words
such as “anticipates,” “believes,”
“expects,” “intends,” “future,”
“could,” “estimates,” “plans,”
“would,” “should,” “potential,”
“continues” and similar words or expressions (as well
as other words or expressions referencing future events, conditions
or circumstances). These forward-looking statements involve risks,
uncertainties and other important factors that may cause our actual
results, performance or achievements to be materially different
from any future results, performance or achievements expressed or
implied by such forward-looking statements, including, but not
limited to:
●
the progress and
timing of, and the amount of expenses associated with, our
research, development and commercialization activities for our
product candidates, including Multikine;
●
the expected
progress, rate, timing and success of patient enrollment in our
Phase 3 clinical trial of Multikine;
●
our expectations
regarding the timing, costs and outcome of any pending or future
litigation matters, lawsuits or arbitration proceedings, including
but not limited to the pending arbitration proceeding we initiated
against our former clinical research organization, or
CRO;
●
the success of our
clinical studies for our product candidates;
●
our ability to
obtain U.S. and foreign regulatory approval for our product
candidates and the ability of our product candidates to meet
existing or future regulatory standards;
●
our expectations
regarding federal, state and foreign regulatory
requirements;
●
the therapeutic
benefits and effectiveness of our product candidates;
●
the safety profile
and related adverse events of our product candidates;
●
our ability to
manufacture sufficient amounts of Multikine or our other product
candidates for use in our clinical studies or, if approved, for
commercialization activities following such regulatory
approvals;
●
our plans with
respect to collaborations and licenses related to the development,
manufacture or sale of our product candidates;
●
our expectations as
to future financial performance, expense levels and liquidity
sources;
●
our ability to
compete with other companies that are or may be developing or
selling products that are competitive with our product
candidates;
●
anticipated trends
and challenges in our potential markets;
●
our ability to
attract, retain and motivate key personnel;
●
our ability to
continue as a going concern; and
All
forward-looking statements contained herein are expressly qualified
in their entirety by this cautionary statement. The forward-looking
statements contained in this prospectus and any document
incorporated reference in this prospectus, speak only as of their
respective dates. Except to the extent required by applicable laws
and regulations, we undertake no obligation to update these
forward-looking statements to reflect new information, events or
circumstances after the date of this prospectus or to reflect the
occurrence of unanticipated events. In light of these risks and
uncertainties, the forward-looking events and circumstances
described in this prospectus and the documents that are
incorporated by reference into this prospectus may not occur and
actual results could differ materially from those anticipated or
implied in such forward-looking statements. Accordingly, you are
cautioned not to place undue reliance on these forward-looking
statements.
DILUTION
As of
September 30, 2017, we had a negative net book value. An investor
purchasing shares in this offering will suffer dilution equal in
amount to the difference between the price paid for the shares and
our negative net tangible book value at the time of
purchase.
DESCRIPTION OF COMMON STOCK
We are
authorized to issue 600,000,000 shares of common stock. Holders of
our common stock are each entitled to cast one vote for each share
held of record on all matters presented to the shareholders.
Cumulative voting is not allowed; hence, the holders of a majority
of our outstanding common shares can elect all
directors.
Holders
of our common stock are entitled to receive such dividends as may
be declared by our Board of Directors out of funds legally
available and, in the event of liquidation, to share pro rata in
any distribution of our assets after payment of liabilities. Our
Board of Directors is not obligated to declare a dividend. It is
not anticipated that dividends will be paid in the foreseeable
future.
Holders
of our common stock do not have preemptive rights to subscribe to
additional shares if issued. There are no conversion, redemption,
sinking fund or similar provisions regarding the common stock. All
outstanding shares of common stock are fully paid and
non-assessable.
SELLING SHAREHOLDERS
The
persons listed in the following table plan to offer the shares
shown opposite their respective names by means of this prospectus.
The owners of the shares are referred to as the “selling
shareholders”. The selling shareholders acquired their shares
in the transactions described below.
We will
not receive any proceeds from the sale of the securities by the
selling shareholders. We will pay all costs of registering the
securities offered by the selling shareholders. These costs, based
upon the time related to preparing this section of the prospectus,
are estimated to be $2,000. The selling shareholders will pay all
sales commissions and other costs of the sale of the securities
offered by them.
August 2017 Financing
On
August 22, 2017, we sold 1,750,000 registered shares of common
stock and warrants (Series PP) to purchase 1,750,000 unregistered
shares of our common stock at a combined offering price of $2.00
per share. The Series PP warrants have an exercise price of $2.30
per share, are exercisable on February 28, 2018 and expire on
February 28, 2023. In addition, we issued warrants (Series QQ) to
purchase 87,500 shares of unregistered common stock to the
placement agent for this financing. The Series QQ warrants have an
exercise price of $2.50, are exercisable on February 22, 2018 and
expire on August 22, 2022.
Warrants
Issued to Holders of Convertible Notes
On
November 2, 2017 holders of convertible notes in the principal
amount of $1,059,300 sold in June 2017 and holders of convertible
notes in the principal amount of $1,235,000 sold in July 2017
agreed to extend the maturity date of these notes to September 21,
2018. In consideration for the extension of the maturity date of
the convertible notes, we issued a total of 716,400 Series RR
warrants to the convertible note holders that agreed to the
extension. Each Series RR warrant entitles the holder to purchase
one share of the Company's common stock. The Series RR warrants may
be exercised at any time on or before October 30, 2022 at an
exercise price of $1.65 per share.
December 2017 Financing
On
December 19, 2017 we sold 1,289,478 shares of common stock for
$2,450,000 to 19 private investors. The purchasers of the common
stock also received warrants (Series SS) which entitle the
purchasers to acquire up to 1,289,478 shares of our common stock.
The warrants are exercisable at a price of $2.09 per share and
expire on December 18, 2022.
Ergomed
As of
December 29, 2017 we were indebted to Ergomed, plc for services
provided by Ergomed in connection with our Phase III clinical
trials. On January 2, 2018 we issued Ergomed 660,000 shares of our
common stock in partial payment of the amount we owed
Ergomed.
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Shares issuable upon
exercise of warrants
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Name
of Investor
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Series
|
Warrants
|
Shares to be sold in this
offering
|
Share ownership after
offering
|
|
Christian Schleuning
|
--
|
13,158
|
SS
|
13,158
|
26,316
|
13,158
|
|
European Investment
Management Ltd.
|
--
|
52,632
|
SS
|
52,632
|
105,264
|
52,632
|
|
Dirk Oldenburg
|
--
|
26,316
|
SS
|
26,316
|
52,632
|
26,316
|
|
Allen H. Van Dyke
|
--
|
13,158
|
SS
|
13,158
|
26,316
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13,158
|
|
J.A. Wampler
|
--
|
26,316
|
SS
|
26,316
|
52,632
|
26,316
|
|
Heinz Matthies
|
--
|
52,632
|
SS
|
52,632
|
105,264
|
52,632
|
|
Edward Renzelli
|
--
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26,316
|
SS
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26,316
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52,632
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26,316
|
|
Michael Lucci Jr.
|
--
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39,474
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SS
|
39,474
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78,948
|
39,474
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Lance S. Gad
|
--
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200,000
|
SS
|
200,000
|
400,000
|
200,000
|
|
Anson Investments
Master Fund LP
|
--
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263,158
|
SS
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263,158
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526,316
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263,158
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Thomas G. Long
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--
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13,158
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SS
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13,158
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26,316
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13,158
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|
Eastco Partners, LLC
|
--
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26,316
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SS
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26,316
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52,632
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26,316
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John P. Scott
|
--
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13,158
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SS
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13,158
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26,316
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13,158
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Angela Brandenburg
|
--
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52,632
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SS
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52,632
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105,264
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52,632
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JoAnn Dandridge
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--
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52,632
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SS
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52,632
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105,264
|
52,632
|
|
James E. Besser
|
--
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52,632
|
SS
|
52,632
|
105,264
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52,632
|
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MMCAP International
Inc. SPC
|
--
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263,158
|
SS
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263,158
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526,316
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263,158
|
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MAZ Partners LP
|
--
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50,000
|
SS
|
50,000
|
100,000
|
50,000
|
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KBB
Asset Management
|
--
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52,632
|
SS
|
52,632
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105,264
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52,632
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Anson Investments
Master Fund LP
|
--
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--
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PP
|
437,500
|
437,500
|
--
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Sabby Volatility
Warrant Master
Fund, Ltd.
|
--
|
--
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PP
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875,000
|
875,000
|
--
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CVI Investments, Inc.
By: Heights Capital
Management, Inc.
its authorized agent
|
--
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--
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PP
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437,500
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437,500
|
--
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Michael Vasinkevich
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--
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--
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QQ
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56,437
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56,437
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--
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Noam Rubinstein
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--
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--
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QQ
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27,563
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27,563
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--
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Mark Viklund
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--
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--
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QQ
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2,625
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2,625
|
--
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Charles Worthman
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--
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--
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QQ
|
875
|
875
|
--
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Dirk Oldenburg
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--
|
--
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RR
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257,810
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257,810
|
--
|
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de Clara Trust
|
--
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--
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RR
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54,585
|
54,585
|
--
|
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Kircos Family
Revocable Inheritance
Trust
|
--
|
--
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RR
|
21,834
|
21,834
|
--
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J.A. Wampler
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--
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--
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RR
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21,834
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21,834
|
--
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Christian Schleuning
|
--
|
--
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RR
|
42,687
|
42,687
|
--
|
|
Heinz Matthies
|
--
|
--
|
RR
|
16,376
|
16,376
|
--
|
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Edward Renzelli
|
--
|
--
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RR
|
10,917
|
10,917
|
--
|
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Allen H. Van Dyke
|
--
|
--
|
RR
|
5,459
|
5,459
|
--
|
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Eastco Partners, LLC
|
--
|
--
|
RR
|
70,089
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70,089
|
--
|
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Tom Ulie
|
--
|
--
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RR
|
95,799
|
95,799
|
--
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Shea Hughes
|
--
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--
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RR
|
21,834
|
21,834
|
--
|
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Patricia B.Prichep
|
139,693
|
--
|
RR
|
5,459
|
5,459
|
139,693
|
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Geert Kersten
|
485,236
|
--
|
RR
|
73,965
|
73,965
|
485,236
|
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Harald Wengust
|
--
|
--
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RR
|
17,752
|
17,752
|
--
|
|
Ergomed plc
|
660,000
|
--
|
--
|
--
|
660,000
|
--
|
The
controlling persons of the non-individual selling shareholders
are:
|
Name of
Shareholder
|
Controlling
Person
|
|
|
|
|
European
Investment Management Ltd.
|
Paul
Whiteman
|
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Anson
Investments Master Fund LP
|
Amin
Nahoo
|
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Eastco
Partners, LLC
|
Ed
Cohen
|
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MMCAP
International Inc. SPC
|
Hillel
Meltz
|
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MAZ
Partners LP
|
Walter
Schenker
|
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KBB
Asset Management
|
Steve
Segal
|
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Sabby
Volatility Warrant Master Fund, Ltd.
|
Robert
Grundstein
|
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CVI
Investments, Inc.
|
Martin
Kobinger
|
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de Clara Trust
|
Ralf Brandenburg
|
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Kircos Family Revocable Inheritance Trust
|
Marc Kircos
|
|
Ergomed
plc
|
Dan
Weng
|
Geert Kersten is one of our officers and a
director. Patricia B. Prichep is one of our officers. With the
exception of Mr. Kersten and Ms. Prichep, no selling
shareholder has, or had, any material relationship with us or our
officers or directors.
To our
knowledge, no selling shareholder is affiliated with a securities
broker.
The
shares of common stock may be sold by the selling shareholders by
one or more of the following methods, without
limitation:
●
a block trade in
which a broker or dealer so engaged will attempt to sell the
securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
●
purchases by a
broker or dealer as principal and resale by such broker or dealer
for its account pursuant to this prospectus;
●
ordinary brokerage
transactions and transactions in which the broker solicits
purchasers; and
●
face-to-face
transactions between sellers and purchasers without a
broker/dealer.
In
completing sales, brokers or dealers engaged by the selling
shareholders may arrange for other brokers or dealers to
participate. Brokers or dealers may receive commissions or
discounts from selling shareholders in amounts to be negotiated. As
to any particular broker-dealer, this compensation might be in
excess of customary commissions. Neither we nor the selling
stockholders can presently estimate the amount of such
compensation. Notwithstanding the above, no FINRA member will
charge commissions that exceed 8% of the total proceeds from the
sale.
The
selling shareholders and any broker/dealers who act in connection
with the sale of their securities may be deemed to be
"underwriters" within the meaning of §2(11) of the Securities
Acts of 1933, and any commissions received by them and any profit
on any resale of the securities as principal might be deemed to be
underwriting discounts and commissions under the Securities
Act.
If any
selling shareholder enters into an agreement to sell his or her
securities to a broker-dealer as principal, and the broker-dealer
is acting as an underwriter, we will file a post-effective
amendment to the registration statement, of which this prospectus
is a part, identifying the broker-dealer, providing required
information concerning the plan of distribution, and otherwise
revising the disclosures in this prospectus as needed. We will also
file the agreement between the selling shareholder and the
broker-dealer as an exhibit to the post-effective amendment to the
registration statement.
The selling
shareholders may also sell their shares pursuant to Rule 144 under
the Securities Act of 1933.
We have
advised the selling shareholders that they, and any securities
broker/dealers or others who sell the common stock or warrants on
behalf of the selling shareholders, may be deemed to be statutory
underwriters and will be subject to the prospectus delivery
requirements under the Securities Act of 1933. We have also advised
each selling shareholder that in the event of a "distribution" of
the securities owned by the selling shareholder, the selling
shareholder, any "affiliated purchasers", and any broker/dealer or
other person who participates in the distribution may be subject to
Rule 102 of Regulation M under the Securities Exchange Act of 1934
("1934 Act") until their participation in that distribution is
completed. Rule 102 makes it unlawful for any person who is
participating in a distribution to bid for or purchase securities
of the same class as is the subject of the distribution. 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". We have also advised the selling
shareholders that Rule 101 of Regulation M 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.
AVAILABLE INFORMATION
We have
filed with the Securities and Exchange Commission a Registration
Statement on Form S-1 (together with all amendments and exhibits)
under the Securities Act of 1933, as amended, with respect to the
securities offered by this prospectus. This prospectus does not
contain all of the information in the Registration Statement,
certain parts of which are omitted in accordance with the rules and
regulations of the Securities and Exchange Commission. For further
information, reference is made to the Registration Statement which
may be read and copied at the Commission’s Public Reference
Room.
We are
subject to the requirements of the Securities Exchange Act of l934
and are required to file reports and other information with the
Securities and Exchange Commission. Copies of any such reports and
other information (which includes our financial statements) filed
by us can be read and copied at the Commission's Public Reference
Room.
The
public may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330. The
Public Reference Room is located at 100 F. Street, N.E.,
Washington, D.C. 20549.
Our
Registration Statement and all reports and other information we
file with the Securities and Exchange Commission are available at
www.sec.gov, the website of the Securities and Exchange
Commission.
TABLE OF CONTENTS
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Page
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PROSPECTUS SUMMARY
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3
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INCORPORATION OF DOCUMENTS BY REFERENCE
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4
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FORWARD
LOOKING STATEMENTS
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5
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DILUTION
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6
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DESCRIPTION
OF COMMON STOCK
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6
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SELLING
SHAREHOLDERS
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7
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AVAILABLE
INFORMATION
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10
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No
dealer, salesperson or other person has been authorized to give any
information or to make any representation not contained in this
prospectus, and if given or made, such information or
representations must not be relied upon as having been authorized
by CEL-SCI Corporation. This prospectus does not constitute an
offer to sell, or a solicitation of an offer to buy, any of the
securities offered in any jurisdiction to any person to whom it is
unlawful to make an offer by means of this prospectus.
PART II
Information Not Required in Prospectus
Item 13.
Other Expenses of Issuance and
Distribution.
The
following table shows the costs and expenses payable by the Company
in connection with this registration statement.
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SEC
Filing Fee
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$1,400
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Legal
Fees and Expenses
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20,000
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Accounting
Fees and Expenses
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15,000
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3,600
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TOTAL
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$40,000
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All
expenses other than the SEC filing fee are estimated.
Item
14.
Indemnification
of Officers and Directors
The
Colorado Business Corporation Act provides 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
Company’s best interest.
Item 15.
Recent Sales of Unregistered Securities.
All
information below has been adjusted to reflect a 1-for-25 reverse
stock split which became effective on June 15, 2017.
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|
Note
Reference
|
|
Between October 17, 2016 and December 1, 2017 the Company issued
67,057 shares of its common stock to three persons in consideration
of investor relations services. The 67,057 shares were valued at
approximately $170,000.
|
A,
C
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On February 15, 2016 the Company sold 52,000 shares of common stock
and 26,000 warrants to a private investor for
$624,000.
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A,
C
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Between January 2017 and August 2017, the Company issued warrants
to:
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● persons
who purchased registered shares of the Company’s common
stock; and
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● the
placement agent in these financings.
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The warrants (Series GG through LL and Series OO through QQ)
collectively allow the holders to purchase up to 3,369,868 shares
of the Company’s common stock at prices between $3.594 and
$2.30 per share. The warrants expire on various dates between
January 2022 and February 2023.
|
A,
B (as to
Series
GG and HH Warrants)
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On June 22, 2017 the Company sold convertible notes in the
principal amount of $1,510,000 to six private investors. The notes
bear interest at 4% per year and are due and payable on December
22, 2017. At the option of the note holders, the notes can be
converted into shares of the Company’s common stock at a
conversion rate of $1.69. The purchasers of the convertible notes
also received warrants (Series MM) which entitle the purchasers to
acquire up to 893,491 shares of the Company’s common stock.
The warrants are exercisable at a price of $1.86 per share and
expire on June 22, 2022.
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B,
C
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On July 24, 2017 the Company sold convertible notes in the
principal amount of $1,235,000 to twelve private investors. The
notes bear interest at 4% per year and are due and payable on
December 22, 2017. At the option of the note holders, the notes can
be converted into shares of the Company’s common stock at a
conversion rate of $2.29. The purchasers of the convertible notes
also received warrants (Series NN) which entitle the purchasers to
acquire up to 539,300 shares of the Company’s common stock.
The warrants are exercisable at a price of $2.52 per share and
expire on July 24, 2022.
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A,
C
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On
July 26, 2017, the Company sold 100,000 shares of its common stock
to an accredited investor at a price of $2.29 per share in a
registered offering. The Company also issued to the investor in
this offering warrants (Series OO) to purchase 60,000 shares of the
Company’s common stock. The warrants can be exercised at a
price of $2.52 per share at any time on or after January 31, 2018
and on or before July 31, 2022.
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A
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As of August 18, 2017 the Company was indebted to Ergomed, plc for
services provided by Ergomed in connection with the Company’s
Phase III clinical trials. On August 18, 2017 the Company issued
Ergomed 480,000 shares of its common stock in partial payment of
the amount the Company owed Ergomed.
|
A,
C
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On
August 22, 2017, the Company sold 1,750,000 registered shares of
common stock and warrants (Series PP) to purchase 1,750,000
unregistered shares of the Company’s common stock at a
combined offering price of $2.00 per share and warrant. The Series
PP warrants have an exercise price of $2.30 per share, are
exercisable on February 28, 2018 and expire on February 28, 2023.
In addition, the Company issued warrants (Series QQ) to purchase
87,500 shares of unregistered common stock to the placement agent
for this financing. The Series QQ warrants have an exercise price
of $2.50, are exercisable on February 22, 2018 and expire on August
22, 2022.
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A
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|
On November 2, 2017 holders of convertible notes in the principal
amount of $1,059,300 sold in June 2017 and holders of convertible
notes in the principal amount of $1,235,000 sold in July 2017
agreed to extend the maturity date of these notes to September 21,
2018. In consideration for the extension of the maturity date of
the convertible notes, the Company issued a total of 716,400 Series
RR warrants to the convertible note holders that agreed to the
extension. Each Series RR warrant entitles the holder to purchase
one share of the Company's common stock. The Series RR warrants may
be exercised at any time on or before October 30, 2022 at an
exercise price of $1.65 per share.
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A,C
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On
December 19, 2017 the Company sold 1,289,478 shares of common stock
for $2,450,000 to 19 private investors. The purchasers of the
common stock also received warrants (Series SS) which entitle the
purchasers to acquire up to 1,289,478 shares of the Company’s
common stock. The warrants are exercisable at a price of $2.09 per
share and expire on December 18, 2022.
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A,
C
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As of December 31, 2017 the Company was indebted to Ergomed, plc
for services provided by Ergomed in connection with the
Company’s Phase III clinical trials. On January 1, 2018 the
Company issued Ergomed 660,000 shares of its common stock in
partial payment of the amount the Company owed
Ergomed.
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A,
C
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A. The
Company relied upon the exemption provided by Section 4(a)(2) of
the Securities Act of 1933 with respect to the issuance of these
shares. The persons who acquired these shares were sophisticated
investors and were provided full information regarding the Company.
There was no general solicitation in connection with the offer or
sale of these securities. The persons who acquired these shares
acquired them for their own accounts. The certificates representing
these shares bear a restricted legend providing that they cannot be
sold except pursuant to an effective registration statement or an
exemption from registration.
B. The
Company relied upon the exemption provided by Rule 506 of the
Securities and Exchange Commission with respect to the issuance of
these securities. The persons who acquired these securities were
sophisticated investors and were provided full information
regarding the Company. There was no general solicitation in
connection with the offer or sale of these securities. The persons
who acquired these securities acquired them for their own accounts.
The certificates representing these securities bear a restricted
legend providing that they cannot be sold except pursuant to an
effective registration statement or an exemption from
registration.
C. No
commission or other form of remuneration was given to any person in
connection with the sale or issuance of these
securities.
Item
16.
Exhibits
and Financial Statement Schedules
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3(a)
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Articles of
Incorporation
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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.
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3(b)
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Amended
Articles
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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.
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3(c)
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Amended Articles
(Name change only)
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Filed as Exhibit
3(c) to CEL-SCI's Registration Statement on Form S-1 Registration
Statement (No. 33-34878).
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3(d)
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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.
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Amended
Bylaws
|
Incorporated by
reference to Exhibit 3(ii) of CEL-SCI’s report on Form 8-K
dated March 16, 2015.
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Shareholders Rights
Agreement, as Amended
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Incorporated by
reference to Exhibit 4 filed with CEL-SCI’s 10-K report
for the year ended September 30, 2015.
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Incentive Stock
Option Plan
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Incorporated by
reference to Exhibit 4 (b) filed on September 25, 2012 with the
Company’s registration statement on Form S¬8 (File
number 333-184092).
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Non-Qualified Stock
Option Plan
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Incorporated by
reference to Exhibit 4 (b) filed on August 19, 2014 with the
Company’s registration statement on Form S¬8 (File
number 333-198244).
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Stock Bonus
Plan
|
Incorporated by
reference to Exhibit 4 (d) filed on September 25, 2012 with the
Company’s registration statement on Form S¬8 (File
number 333-184092).
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|
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Stock Compensation
Plan
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Incorporated by
reference to Exhibit 4 (e) filed on September 25, 2012 with the
Company’s registration statement on Form S¬8 (File
number 333-184092).
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2014 Incentive
Stock Bonus Plan
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Incorporated by
reference to Exhibit 4 (c) filed with the Company’s
registration statement on Form S-8 (333-198244).
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Legal
Opinion
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_______________
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First Amendment to
Development Supply and Distribution Agreement with Orient
Europharma.
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Incorporated by
reference to Exhibit 10(m) filed with CEL-SCI’s 10-K
report for the year ended September 30, 2010.
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Exclusive License
and Distribution Agreement with Teva Pharmaceutical
Industries Ltd.
|
Incorporated by
reference to Exhibit 10(n) filed with CEL-SCI’s 10-K
report for the year ended September 30, 2010.
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Lease
Agreement
|
Incorporated by
reference to Exhibit 10(o) filed with CEL-SCI’s 10-K
report for the year ended September 30, 2010.
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Licensing Agreement
with Byron Biopharma
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Incorporated by
reference to Exhibit 10(i) of CEL-SCI’s report on Form
8-K dated March 27, 2009
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Development, Supply
and Distribution Agreement with Orient Europharma
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Incorporated by
reference to Exhibit 10(z) filed with CEL-SCI’s
report on Form 10-K for the year ended September 30,
2003.
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Securities Purchase Agreement and
the form of the Series R warrant, which is
an exhibit to the Securities Purchase
Agreement
|
Incorporated by
reference to Exhibit 10(ii) of CEL-SCI’s report on Form
8-K dated December 5, 2012.
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Underwriting
Agreement, together with the form of Series S warrant which is an
exhibit to the underwriting agreement
|
Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
dated October 8, 2013.
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Underwriting
Agreement, together with the form of Series S warrant which is an
exhibit to the Underwriting Agreement.
|
Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
dated December 19, 2013.
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Underwriting
Agreement, together with the form of Series T warrant which is an
exhibit to the warrant agent agreement
|
Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
dated April 15, 2014.
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Underwriting
Agreement, together with the form of Series S warrant which is an
exhibit to the warrant agent agreement
|
Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
dated October 23, 2014.
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Assignment and
Assumption Agreement with Teva Pharmaceutical Industries, Ltd. and
GCP Clinical Studies, Ltd.
|
Incorporated by
reference to Exhibit 10(rr) of CEL-SCI’s report on Form
10-K/A report for the year ended September 30, 2014 dated
April 17, 2015.
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Service Agreement
with GCP Clinical Studies, Ltd., together with Amendment 1
thereto*
|
Incorporated by
reference to Exhibit 10(ss) of CEL-SCI’s first amendment to
its Form 10-K report for the year ended September 30, 2014
dated April 17, 2015.
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Joinder Agreement
with PLIVA Hrvatska d.o.o.
|
Incorporated by
reference to Exhibit 10(tt) of CEL-SCI’s first amendment to
its Form 10-K report for the year ended September 30, 2014
dated April 17, 2015.
|
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Master Service
Agreement with Ergomed Clinical Research, Ltd., and
Clinical Trial Orders thereunder
|
Incorporated by
reference to Exhibit 10(uu) of CEL-SCI’s first amendment to
its Form 10-K report for the year ended September 30, 2014
dated April 17, 2015.
|
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Co-Development and
Revenue Sharing Agreement with Ergomed Clinical Research Ltd.,
dated April 19, 2013, as amended
|
Incorporated by
reference to Exhibit 10(vv) of CEL-SCI’s first amendment to
its Form 10-K report for the year ended September 30, 2014
dated April 17, 2015.
|
|
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Co-Development and
Revenue Sharing Agreement II: Cervical Intraepithelial
Neoplasia in HIV/HPV co-infected women, with Ergomed Clinical
Research Ltd., dated October 10, 2013, as amended
|
Incorporated by
reference to Exhibit 10(ww) of CEL- first amendment to its Form
10-K report for the year ended September 30, 2014 dated April
17, 2015.
|
|
|
Co-Development and
Revenue Sharing Agreement III: Anal warts and anal intraepithelial
neoplasia in HIV/HPV co-infected patients, with Ergomed Clinical
Research Ltd., dated October 24, 2013
|
Incorporated by
reference to Exhibit 10(xx) of CEL-SCI’s first amendment to
its Form 10-K report for the year ended September 30, 2014
dated April 17, 2015.
|
|
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Master
Services Agreement with Aptiv Solutions, Inc.
|
Incorporated by
reference to Exhibit 10(yy) of CEL-SCI’s first amendment to
its Form 10-K report for the year ended September 30, 2014
dated April 17, 2015.
|
|
|
|
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Project
Agreement Number 1 with Aptiv Solutions, Inc. together with
Amendments 1 and 2 thereto*
|
Incorporated by
reference to Exhibit 10(zz) of CEL-SCI’s first amendment to
its Form 10-K report for the year ended September 30, 2014
dated April 17, 2015.
|
|
|
Second
Amendment to Development Supply and Distribution Agreement with
Orient Europharma
|
Incorporated by
reference to Exhibit 10(aaa) of CEL-SCI’s first amendment to
its Form 10-K report for the year ended September 30, 2014
dated April 17, 2015.
|
|
|
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|
Warrant
Agent Agreement (as amended), Series V warrants
|
Incorporated by
reference to Exhibit 10 (ccc) of CEL-SCI’s report on Form 8-K
filed on May 29, 2015.
|
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Assignment of
Proceeds and Investment Agreement between CEL-SCI Corporation and
Lake Whillans Vehicle 1.
|
Incorporated by
reference to Exhibit 10 (ddd) of CEL-SCI’s report on Form 8-K
filed on October 16, 2015.
|
|
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|
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Warrant
Agent Agreement, Series W warrants
|
Incorporated by
reference to Exhibit 10 (eee) of CEL-SCI’s report on Form 8-K
filed on October 23, 2015.
|
|
|
|
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|
Securities Purchase
Agreement
|
Incorporated by
reference to Exhibit 10(jjj) of CEL-SCI’s report on Form 8-K
dated May 19, 2016.
|
|
|
|
|
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|
Securities Purchase
Agreement
|
Incorporated by
reference to Exhibit 10(kkk) of CEL-SCI’s report on Form 8-K
dated August 24, 2016.
|
|
|
|
|
|
|
Termination
Agreement with Maximilian de Clara
|
Incorporated by
reference to Exhibit 10(lll) of CEL-SCI’s report on Form 8-K
dated September 2, 2016.
|
|
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|
|
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|
Employment
Agreement with Geert Kersten (2016-2019)
|
Incorporated by
reference to Exhibit 10(mmm) of CEL-SCI’s report on Form 8-K
dated September 2, 2016.
|
|
|
|
|
|
|
Employment
Agreement with Patricia Prichep (2016-2019)
|
Incorporated by
reference to Exhibit 10(nnn) of CEL-SCI’s report on Form 8-K
dated September 2, 2016.
|
|
|
|
|
|
|
Employment
Agreement with Eyal Taylor (2016-2019)
|
Incorporated by
reference to Exhibit 10(ooo) of CEL-SCI’s report on Form 8-K
dated September 2, 2016.
|
|
|
|
|
|
|
Securities Purchase
Agreement
|
Incorporated by
reference to Exhibit 10(ppp) of CEL-SCI’s report on Form 8-K
dated December 1, 2016.
|
|
|
|
|
|
|
Securities Purchase
Agreement
|
Incorporated by
reference to Exhibit 10(qqq) of CEL-SCI’s report on Form 8-K
dated February 16, 2017.
|
|
|
|
|
|
|
Securities Purchase
Agreement
|
Incorporated by
reference to Exhibit 10(rrr) of CEL-SCI’s report on Form 8-K
dated March 8, 2017.
|
|
|
|
|
|
|
Securities Purchase
Agreement
|
Incorporated by
reference to Exhibit 10(sss) of CEL-SCI’s report on Form 8-K
dated April 30, 2017.
|
|
|
|
|
|
|
Securities Purchase
Agreement (sale of 100,000 shares to private investor, plus Series
OO warrants).
|
Incorporated by
reference to Exhibit 10(ttt) of CEL-SCI’s report on Form 8-K
dated July 27, 2017.
|
|
|
|
|
|
|
Securities Purchase
Agreement with Ergomed
|
Incorporated by
reference to Exhibit 10(uuu) of CEL-SCI’s report on Form 8-K
dated August 17, 2017.
|
|
|
|
|
|
|
Securities Purchase
Agreement
|
Incorporated by
reference to Exhibit 10(vvv) of CEL-SCI’s report on Form 8-K
dated August 22, 2017.
|
|
|
|
|
|
|
Amendment No. 1 to
Assignment of Proceeds and Investment Agreement
|
Incorporated by
reference to Exhibit 10(www) of CEL-SCI’s report on Form 8-K
dated November 2, 2017.
|
|
|
|
|
|
|
Amendment to
Convertible Promissory Notes
|
__________________
|
|
|
|
|
|
|
Securities Purchase
Agreement with Ergomed
|
Incorporated by
reference to Exhibit 10(zzz) of CEL-SCI’s report on Form 8-K
dated January 1, 2018.
|
|
|
|
|
|
|
Securities Purchase
Agreements (December 2017 Financing)
|
|
|
|
|
|
|
|
Consent
of Hart & Hart, LLC
|
|
|
|
|
|
|
|
Consent
of BDO USA, LLP
|
|
|
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|
|
*
Portions
of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Commission under Rule 24b-2
of the Securities Exchange Act of 1934. The omitted confidential
material has been filed separately with the Commission. The
location of the omitted confidential information is indicated in
the exhibit with asterisks (*)
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:
(i)
To include any
prospectus required by Section l0 (a)(3) of the Securities
Act:
(ii)
To reflect in the
prospectus any facts or events which, individually or together,
represent a fundamental change in the information in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(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.
(2)
That, for the
purpose of determining any liability under the Securities Act of
1933, 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 that remain unsold at the termination of the
offering.
Insofar
as indemnification for liabilities arising under the Securities Act
of l933 (the “Act”) may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions or otherwise, 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.
(4)
That, for the
purpose of determining liability under the Securities Act of 1933
to any purchaser:
(i)
If the registrant
is relying on Rule 430B:
(A)
Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration
statement; and
(B)
Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii),
or (x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(ii)
If the registrant
is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed
to be part of and included in the registration statement as of the
date it is first used after effectiveness. Provided, however, that
no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(6)
That,
for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii)
The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser
SIGNATURES
Pursuant to the
requirements of the Securities Act of l933, the registrant has duly
caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Vienna, Virginia
on the 5th
day of January, 2018.
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CEL-SCI
CORPORATION
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By:
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/s/
Geert
Kersten
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Geert Kersten,
Chief Executive, Financial and
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Accounting
Officer
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In
accordance with 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:
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Signature
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Title
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Date
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/s/
Geert
Kersten
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Chief Executive,
Financial and
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January 5,
2018
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Geert
Kersten
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Accounting Officer
and a Director
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/s/
Peter
R. Young
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Director
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January 5,
2018
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Peter R. Young
Ph.D.
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/s/
Bruno
Baillavoine
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Director
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Bruno
Baillavoine
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/s/
Robert
Watson
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Director
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January 5,
2018
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Robert
Watson
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