File
# 333-229295
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM
S-1
POST-EFFECTIVE
AMENDMENT NO. 4
Registration
Statement Under
THE
SECURITIES ACT OF 1933
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”, “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
|
Large
accelerated filer
|
[
]
|
Accelerated
filer
|
[
]
|
|
Non-accelerated
filer
|
[X]
|
Smaller
reporting company
|
[X]
|
|
Emerging growth
company [ ]
|
|
|
|
|
If an
emerging growth company, indicate by checkmark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act. [
]
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
|
Amount of
Registration Fee
|
|
Common
stock offered by selling shareholders
|
2,345,555
|
$12.52
|
$29,366,349
|
$3,204
|
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.
EXPLANATORY NOTE
By means of this Registration Statement a number
of our warrant holders are offering to sell shares of our common
stock which are issuable upon the exercise of our outstanding
warrants. The warrants were issued at various dates between
February 2017 and June 2018. The shares issuable upon the exercise
of the warrants were previously registered by means of a
registration statement, of which this prospectus is a part,
filed with the Securities and Exchange Commission (File #
333-229295). However this prospectus could not be used until it was
updated with the Company’s September 30, 2020 financial statements,
which are incorporated by reference, and the Post-Effective
Amendment to registration statement # 333-229295, of which this
prospectus is a part, is declared effective by the Securities and
Exchange Commission.
PROSPECTUS
CEL-SCI CORPORATION
Common Stock
By
means of this prospectus a number of our warrant holders are
offering to sell up to 2,345,555 shares of our common stock which
are issuable upon the exercise of our outstanding
warrants.
The warrants were issued at various dates between
February 2017 and June 2018. The shares issuable upon the exercise
of the warrants were previously registered by means of a
registration statement, of which this prospectus is a part, filed
with the Securities and Exchange Commission (File # 333-229295).
However this prospectus could not be used until it was updated with
the Company’s September 30, 2020 financial statements, which are
incorporated by reference, and the Post-Effective Amendment to
registration statement # 333-229295, of which this prospectus is a
part, is declared effective by the Securities and Exchange
Commission.
The
warrant holders are sometimes referred to in this prospectus as the
“selling shareholders”.
Although
we will receive proceeds, if any, if 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 $30,000.
Our
common stock is traded on the NYSE American under the symbol CVM.
On January 5, 2021 the closing price for our common stock was
$12.52.
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 19 OF OUR 2020 ANNUAL REPORT ON FORM 10-K WHICH IS
INCORPORATED BY REFERENCE.
The
date of this prospectus is January __, 2021
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 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;
2)
L.E.A.P.S.
(Ligand Epitope Antigen Presentation System) technology, or LEAPS,
with two investigational therapies, CEL-2000 and CEL-4000, product
candidates under development for the potential treatment of
rheumatoid arthritis, and LEAPS COV-19, a product candidate under
development to potentially treat the COVID-19
coronavirus.
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.
Except for the information incorporated by
reference, 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.
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, 2020 were $16.62 and $11.05,
respectively.
As
of January 5, 2021, we had 39,767,401 outstanding shares of common
stock. This number
excludes 11,834,219 shares that may be issued upon
the exercise of outstanding warrants and options with a weighted
average exercise price of $6.29 per share.
In
February 2020 we issued 44,065 shares of our common stock to three
persons upon the exercise of warrants which had exercise prices
between $2.24 and $3.60 per share. However, the 44,065 shares were
not registered pursuant to Section 5 of the Securities Act of 1933
and no exemption from registration was available for the issuance
of these shares. If the persons that exercised these warrants
sought to rescind the exercise of the warrants, we would have to
pay these persons approximately $126,000.
Recent Developments
On
May 4, 2020 we announced that our pivotal Phase 3 head and neck
cancer study of Multikine (Leukocyte Interleukin, Inj.)
immunotherapy had reached the targeted threshold of 298 events
(deaths) required to conduct the data evaluation. In December 2020,
we announced that our Phase 3 study is in the final stage of review
which involves statistical analysis of all study data and data lock
has already been completed. We will continue to remain blinded to
the study results throughout this process. We will be advised of
the results when the analysis is completed and the study results
will be announced to the public at that time.
On
December 1, 2020, we announced that our LEAPS COV-19 peptides,
delivered as a therapeutic treatment following SARS-CoV-2 virus
challenge, achieved a 40% survival rate in transgenic mouse models
as compared to 0% survival in the two control groups in studies
conducted at the University of Georgia Center for Vaccines and
Immunology. The animals were therapeutically treated with CEL-SCI’s
LEAPS COV-19 peptides one day after infection with a lethal dose of
SARS-CoV-2. Of the LEAPS treated mice, forty percent (40%) were
alive, recovering and regained lost weight, attaining > 90% of
their starting weight, by the study’s end. In contrast, mice in the
two control groups lost 20% or more of their body weight by day 8
and all of them died between day 5 and day 8 post challenge. The
success of this therapy was statistically significant at a 95%
level. An additional study conducted using LEAPS as a vaccine to
prevent disease resulted in similar findings to the above described
study, but with a slightly lower level of statistical significance.
In this study, the Human(h) ACE2 transgenic mice were dosed twice
with the LEAPS conjugate 28 and 14 days prior to being challenged
with a lethal dose of SARS-CoV-2 virus. Our next step is to
leverage the findings from these two animal studies into future
studies that will optimize treatment dosing and test additional
LEAPS peptides as a therapy.
Predictions
of success using the LEAPS peptides against COVID-19 coronavirus
are based on previous studies conducted in collaboration with the
National Institutes for Allergies and Infectious Diseases (NIAID)
with another respiratory virus, pandemic influenza (H1N1). In those
studies, LEAPS peptides elicited protection of mice from morbidity
and mortality after the introduction of infection by activating
appropriate T cell responses rather than an inflammatory response.
LEAPS is in the early stages for treating COVID-19 coronavirus and
there is no guarantee that we will be able to replicate the results
from our prior studies.
The Offering
By
means of this prospectus, a number of our warrant holders are
offering to sell up to 2,345,555 shares of our common stock which
are issuable upon the exercise of our outstanding
warrants.
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,
2020;
●
our
Current Reports on Form 8-K filed with the SEC on October 30, 2020,
December 8, 2020, December 9, 2020 and December 29,
2020.
●
the description of
our common stock contained in our Registration Statement on Form
8-A filed with the SEC on July 2, 1996 and all amendments and
reports updating that description; and
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;
●
our
Principal Shareholders; and
●
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;
●
our
expectations regarding the timing, costs and outcome of any pending
or future litigation matters, lawsuits or arbitration
proceeding;
●
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;
●
business
disruption and related risks resulting from the recent pandemic of
the novel coronavirus 2019 (COVID-19);
●
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 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.
Article
X of our bylaws provides that stockholder claims brought against
us, or our officers or directors, including any derivative claim or
claim purportedly filed on our behalf, must be brought in the U.S.
District Court for the district of Delaware.
Although it is our
intent that this provision applies to actions arising under the
Securities Act of 1933 and the Securities Exchange Act of 1934
there is uncertainty as to whether a court would enforce this
provision since Section 22 of the Securities Act creates concurrent
jurisdiction for federal and state courts over all suits brought to
enforce any duty or liability created by the Securities Act or the
rules and regulations under the Securities Act.
In
addition, since this provision in our bylaws applies to state law
claims there is uncertainty as to whether any court would enforce
this provision.
As
of September 30, 2020, we had a net tangible book value of $0.50
per share. 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 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.
Article
X of our bylaws provides that stockholder claims brought against
us, or our officers or directors, including any derivative claim or
claim purportedly filed on our behalf, must be brought in the U.S.
District Court for the district of Delaware.
Although it is our
intent that this provision applies to actions arising under the
Securities Act of 1933 and the Securities Exchange Act of 1934
there is uncertainty as to whether a court would enforce this
provision since Section 22 of the Securities Act creates concurrent
jurisdiction for federal and state courts over all suits brought to
enforce any duty or liability created by the Securities Act or the
rules and regulations under the Securities Act.
In
addition, since this provision in our bylaws applies to state law
claims there is uncertainty as to whether any court would enforce
this provision.
A number of our warrant holders are offering to
sell up to 2,345,555 shares of our common stock which are issuable
upon the exercise of our outstanding warrants. The warrants were
issued at various dates between February 2017 and June 2018.
The shares issuable upon the exercise of the warrants were
previously registered by means of a registration statement, of
which this prospectus is a part, filed with the Securities and
Exchange Commission (File # 333-229295). However this prospectus
could not be used until it was updated with the Company’s September
30, 2020 financial statements, which are incorporated by reference,
and the Post-Effective Amendment to registration statement #
333-229295, of which this prospectus is a part, is declared
effective by the Securities and Exchange Commission.
The
warrant holders are sometimes referred to in this prospectus as the
“selling shareholders”.
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 their
shares.
The
selling shareholders are listed below.
|
Name of Selling Shareholder
|
Shares Owned
|
Warrant Series
|
Shares issuable upon exercise of warrants
|
Shares to be sold in this offering
|
Share ownership after offering
|
|
Charles
Worthman
|
-
|
Series
HH
|
200
|
200
|
-
|
|
Harald
Wengust
|
-
|
Series
MM
|
35,503
|
35,503
|
-
|
|
Christian
Schleuning
|
-
|
Series
MM
|
59,172
|
59,172
|
-
|
|
Dirk
Oldenburg
|
-
|
Series
MM
|
100,000
|
100,000
|
-
|
|
The
Edward L. Cohen 2012 Descendants Trust
|
-
|
Series
MM
|
118,343
|
118,343
|
-
|
|
Tom
Ulie
|
-
|
Series
MM
|
147,929
|
147,929
|
-
|
|
Geert
Kersten
|
1,120,512
|
Series
MM
|
297,929
|
297,929
|
1,120,512
|
|
Angela
Brandenburg
|
-
|
Series
MM
|
38,757
|
38,757
|
-
|
|
de
Clara Trust
|
321,421
|
Series
NN
|
109,170
|
109,170
|
321,421
|
|
Heinz
Matthies
|
-
|
Series
NN
|
32,751
|
32,751
|
-
|
|
The
Edward L. Cohen 2012 Descendants Trust
|
-
|
Series
NN
|
21,834
|
21,834
|
-
|
|
Tom
Ulie
|
-
|
Series
NN
|
43,668
|
43,668
|
-
|
|
Patricia
Prichep
|
206,469
|
Series
NN
|
10,917
|
10,917
|
206,469
|
|
Geert
Kersten
|
-
|
Series
NN
|
65,000
|
65,000
|
-
|
|
Angela
Brandenburg
|
-
|
Series
NN
|
65,502
|
65,502
|
-
|
|
Geert
Kersten
|
-
|
Series
RR
|
173,965
|
173,965
|
-
|
|
de
Clara Trust
|
-
|
Series
RR
|
54,585
|
54,585
|
-
|
|
The
Edward L. Cohen 2012 Descendants Trust
|
-
|
Series
RR
|
70,089
|
70,089
|
-
|
|
Tom
Ulie
|
-
|
Series
RR
|
95,799
|
95,799
|
-
|
|
Patricia
Prichep
|
-
|
Series
RR
|
5,459
|
5,459
|
-
|
|
Harald
Wengust
|
-
|
Series
RR
|
17,752
|
17,752
|
-
|
|
Dirk
Oldenburg
|
-
|
Series
SS
|
26,316
|
26,316
|
-
|
|
Andreas
Moosmayer
|
-
|
Series
SS
|
19,100
|
19,100
|
-
|
|
Claudia
Kuen
|
-
|
Series
SS
|
1,700
|
1,700
|
-
|
|
Lance
S. Gad
|
-
|
Series
SS
|
200,000
|
200,000
|
-
|
|
The
Edward L. Cohen 2012 Descendants Trust
|
-
|
Series
SS
|
26,316
|
26,316
|
-
|
|
Angela
Brandenburg
|
-
|
Series
SS
|
52,632
|
52,632
|
-
|
|
Dirk
Oldenburg
|
-
|
Series
TT
|
80,214
|
80,214
|
-
|
|
MAZ
Partners LP
|
-
|
Series
TT
|
40,107
|
40,107
|
-
|
|
The
Edward L. Cohen 2012 Descendants Trust
|
-
|
Series
TT
|
20,054
|
20,054
|
-
|
|
Angela
Brandenburg
|
-
|
Series
TT
|
40,107
|
40,107
|
-
|
|
Tom
Ulie
|
-
|
Series
TT
|
100,268
|
100,268
|
-
|
|
Duncree
Holdings Inc.
|
-
|
Series
TT
|
80,214
|
80,214
|
-
|
|
National
Bank Financial Inc.
|
-
|
Series
TT
|
600
|
600
|
-
|
|
de
Clara Trust
|
-
|
Series
UU
|
21,834
|
21,834
|
-
|
|
Patricia
B.Prichep
|
-
|
Series
UU
|
2,183
|
2,183
|
-
|
|
Geert
Kersten
|
-
|
Series
UU
|
69,586
|
69,586
|
-
|
|
|
|
|
|
|
|
|
|
|
|
2,345,555
|
|
|
The
controlling persons of the non-individual selling shareholders
are:
|
Name of Shareholder
|
Controlling Person
|
|
The
Edward L. Cohen 2012 Descendants Trust
|
Debra
Lerner Cohen and Jeffrey B. Stern
|
|
de
Clara Trust
|
Ralf
Brandenburg
|
|
MAZ
Partners LP
|
Walter
Schenker
|
|
Duncree
Holdings Inc.
|
Timothy
Price
|
|
National
Bank Financial Inc.
|
Charles
Marleau
|
The
terms of the warrants listed above are shown below:
|
Series
|
Exercise Price
|
Expiration Date
|
|
HH
|
$
3.125
|
2/16/2022
|
|
MM
|
$
1.86
|
6/22/2022
|
|
NN
|
$
2.52
|
7/24/2022
|
|
RR
|
$
1.65
|
10/30/2022
|
|
SS
|
$
2.09
|
12/18/2022
|
|
TT
|
$
2.24
|
2/5/2023
|
|
UU
|
$
2.80
|
6/30/2021
|
Geert
Kersten, our Chief Executive Officer, a trust in which Geert
Kersten holds a beneficial interest, and Patricia Prichep, our
Senior Vice President of Operations, are among the selling
shareholders. No other selling shareholder has, or had, any
material relationship with us or our officers or
directors.
A
holder of the Series HH warrants is affiliated with H.C. Wainright
& CO., a securities broker. To our knowledge, no other 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 the 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 shareholders 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 its 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
the selling shareholder enters into an agreement to sell its
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 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 the selling
shareholders that, in the event of a "distribution" of the
securities owned by the selling shareholders, the selling
shareholders, 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 our common
stock in connection with this offering.
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
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.
|
SEC
Filing Fee
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$3,204
|
|
Legal
Fees and Expenses
|
12,500
|
|
Accounting
Fees and Expenses
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15,000
|
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TOTAL
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$30,704
|
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.
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Note Reference
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On
February 5, 2018 the Company sold 2,501,145 shares of common stock
for $4,677,140 to 20 private investors. The purchasers of the
common stock also received warrants (Series TT) which entitle the
purchasers to acquire up to 1,875,860 shares of the Company’s
common stock. The Series TT warrants have an exercise price of
$2.24, are exercisable on August 6, 2018 and expire on February 5,
2023.
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A,
B
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As
of May 15, 2018 the Company was indebted to Ergomed, plc for
services provided by Ergomed in connection with the Company’s Phase
III clinical trials. On May 16, 2018 the Company issued Ergomed
600,000 shares of its common stock in partial payment of the amount
the Company owed Ergomed.
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A,
B
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On
June 11, 2018 holders of notes in the principal amount of
$1,860,000 converted their notes into 937,804 shares of the
Company’s common stock. The Company issued 28,825 shares of its
common stock for $80,710 in accrued but unpaid interest on the
notes.
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A,
B
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On June
11, 2018 holders of our notes in the principal amount of $1,860,000
converted their notes into 937,804 shares of our common stock. In
consideration for the early conversion of their notes, the note
holders received warrants (Series UU) which collectively allow the
holders to purchase up to 187,562 shares of our common stock at a
price of $2.80 per share at any time on or after December 11, 2018
and at any time on or before June 11, 2020.
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A,
B
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On July 2, 2018, the Company sold 3,900,000 shares
of its common stock for aggregate gross proceeds of $5,070,000, or
$1.30 per share, in a registered direct offering. In a concurrent
private placement, the Company issued warrants (Series VV) to
purchase 3,900,000 shares of CEL-SCI’s common stock. The warrants
can be exercised at a price of $1.75 per share, commencing six
months after the date of issuance and ending five and a half years
after the date of issuance. In addition, the
Company issue warrants to purchase up to 195,000 shares
of CEL-SCI’s common stock to the Placement Agent (Series WW). The
Series WW warrants are subject to a 180-day lock-up and may be
exercised at any time on or after January 2, 2019 and on or before
June 28, 2023 at a price of $1.625 per share.
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A
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On
August 13, 2018, the Company sold 463,855 shares of its common
stock for aggregate gross proceeds of $385,000, or $0.83 per share,
in a private placement to four officers of the
Company.
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A,
B
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As
of August 29, 2018, the Company was indebted to Ergomed, plc for
services provided by Ergomed in connection with the Company’s Phase
III clinical trial. On August 30, 2018 the Company issued Ergomed
1,000,000 shares of its common stock in payment of the amounts it
owed Ergomed.
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A,
B
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As
of January 8, 2019, the Company had outstanding payables to
Ergomed, plc for services provided by Ergomed in connection with
the Company’s Phase III clinical trial. On January 9, 2019 the
Company issued Ergomed 500,000 shares of its common stock in
payment of the amounts it owed Ergomed.
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A,
B
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On
May 7, 2019, the Company sold 30,612 shares of its common stock for
aggregate gross proceeds of $210,000, or $6.86 per share, in a
private placement to four officers and a director of the
Company.
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A,
B
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On
June 3, 2019, the Company sold 6,631 shares of its common stock for
aggregate gross proceeds of $25,000, or $3.77 per share, in a
private placement to the Chief Executive Officer of the
Company.
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A,
B
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On
August 15, 2019 the Company issued Ergomed 250,000 shares of its
common stock in payment for services.
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A,
B
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On
September 4, 2019, the Company sold 7,962 shares of its common
stock for aggregate gross proceeds of $57,000, or $7.16 per share,
in a private placement to three officers of the
Company.
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A,
B
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On
October 25, 2019, the Company sold 3,725 shares of its common stock
for aggregate gross proceeds of $25,000, or $6.71 per share, in a
private placement to the Chief Executive Officer of the
Company.
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A,
B
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On
January 10, 2020, the Company sold 6,631 shares of its common stock
for aggregate gross proceeds of $50,000, or $7.54 per share, in a
private placement to the Chief Executive Officer of the
Company.
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A,
B
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On
February 26, 2020, the Company sold 10,156 shares of its common
stock for aggregate gross proceeds of $110,000, or $10.83 per
share, in a private placement to three officers and three Directors
of the Company.
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A,
B
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On
April 6, 2020, the Company issued Ergomed 100,000 shares of its
common stock in payment for services.
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A,
B
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On
May 26, 2020, the Company lowered the exercise price and extended
the expiration date of the Series V warrants. For each Series V
warrant exercised on or before June 10, 2020 the former holder of
the Series V warrant received one Series XX warrant. Every Series
XX warrant will allow the holder to purchase one share of the
Company's common stock at a price of $18.00 per share at any time
on or before September 10, 2020. As of June 10, 2020, 461,953
Series V warrants had been exercised entitling the former holders
of the Series V warrants to 461,953 Series XX warrants. For each
Series V warrant exercised after June 10, 2020 but on or before
June 25, 2020 the former holder of the Series V warrant received
one Series YY warrant. Every two Series YY warrants will allow the
holder to purchase one share of the Company's common stock at a
price of $20.00 per share at any time on or before September 25,
2020. As of June 25, 2020, 203,678 Series V warrants had been
exercised entitling the former holders of the Series V warrants to
101,839 Series YY warrants.
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A,
B
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On
June 26, 2020, the Company issued Ergomed 50,000 shares of its
common stock in payment for services.
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A,
B
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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. 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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Incorporated by
reference to Exhibit 3(c) of 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
(as amended)
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Incorporated by
reference to Exhibit 3(d) to Post-Effective Amendment No. 3 to this
Registration Statement
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Shareholders Rights
Agreement, as Amended
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Incorporated by
reference to Exhibit 4 filed with CEL-SCI’s 8-K report dated
October 30, 2020.
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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
CEL-SCI’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 (c) filed on August 19, 2014 with CEL-SCI’s
registration statement on Form S¬8 (File number
333-198244).
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Stock
Bonus Plan
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Incorporated by
reference to Exhibit 4 (d) filed on September 25, 2012 with
CEL-SCI’s registration statement on Form S¬8 (File number
333-184092).
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Stock
Compensation Plan
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Incorporated by
reference to Exhibit 4 (e) filed on September 25, 2012 with
CEL-SCI’s registration statement on Form S¬8 (File number
333-184092).
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2014
Incentive Stock Bonus Plan
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Filed
with Amendment No. 2 to CEL-SCI’s annual report on Form 10-K for
the year ended September 30, 2014.
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Legal
Opinion
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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.
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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
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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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10(p)
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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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10(z)
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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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Assignment and
Assumption Agreement with Teva Pharmaceutical Industries, Ltd. and
GCP Clinical Studies, Ltd.
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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*
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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.
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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
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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
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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
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Incorporated by
reference to Exhibit 10(ww) 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 III: Anal warts and anal intraepithelial
neoplasia in HIV/HPV co-infected patients, with Ergomed Clinical
Research Ltd., dated October 24, 2013
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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.
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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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Amendment to
Co-Development and Revenue Sharing Agreement with Ergomed Clinical
Research, Ltd., dated September 15, 2015
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Incorporated by
reference to Exhibit 10(iii) filed with CEL-SCI’s 10-K report for
year ended September 30, 2015.
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Employment
Agreement with Geert Kersten (2019-2023)
|
Incorporated by
reference to Exhibit 10(10.7) of CEL-SCI’s report on Form 8-K dated
August 31, 2019.
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Employment
Agreement with Patricia Prichep (2019-2022)
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Incorporated by
reference to Exhibit 10(10.8) of CEL-SCI’s report on Form 8-K dated
August 31, 2019.
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Employment
Agreement with Eyal Taylor (2019-2022)
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Incorporated by
reference to Exhibit 10(10.9) of CEL-SCI’s report on Form 8-K dated
August 31, 2019.
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2019
Non-Qualified Stock Option Plan
|
Incorporated by
reference to Exhibit 10.7 of CEL-SCI’s report on Form 8-K dated
October 15, 2019.
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2019
Stock Compensation Plan
|
Incorporated by
reference to Exhibit 10.8 of CEL-SCI’s report on Form 8-K dated
October 15, 2019.
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Consent
of Hart & Hart, LLC
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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 15th day of January 2021.
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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
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Chief
Executive and Principal Financial and 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 and Principal Financial and Accounting
Officer
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January 15, 2021
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Geert
Kersten
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/s/
Peter R. Young
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Director
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January 15, 2021
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Peter
R. Young
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/s/ Bruno
Baillavoine
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Director
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January 15, 2021
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Bruno
Baillavoine
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/s/ Robert
Watson
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Director
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January 15, 2021
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Robert
Watson
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