Attached files
FORM
10-K/A
(Amendment
No.1)
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
(Mark
One)
(X) ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year
ended September 30, 2016.
OR
( )
TRANSITION REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the transition
period from _________ to __________.
Commission file
number 1-11889
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CEL-SCI
CORPORATION
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(Exact name of
registrant as specified in its charter)
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COLORADO
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84-0916344
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(State or other
jurisdiction of incorporation or organization)
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(I.R.S. Employer
Identification No.)
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8229 Boone Blvd.,
Suite 802
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Vienna,
Virginia
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22182
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(Address of
principal executive offices)
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(Zip
Code)
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Registrant's
telephone number, including area code: (703) 506-9460
Securities
registered pursuant to Section 12(b) of the Act: None
Securities
registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par
value
Series S Warrants
(Title of
Class)
Indicate by check
mark if the registrant is a well-known seasoned issuer, as defined
in Rule 405 of the Securities
Act. [ ]
Indicate by check
mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. [ ]
Indicate by check
mark whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90
days. Yes
[X] No
[ ]
Indicate by check
mark whether the registrant has submitted electronically and posted
on its corporate Web site, if any, every Interactive Data File
required to be submitted and posted pursuant to Rule 405 of
Regulation S-T (§232.405 of this chapter) during the preceding
12 months (or for such shorter period that the registrant was
required to submit and post such
files). Yes [X]
No [ ]
Indicate by check
mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be
contained, to the best of
Registrant's knowledge, in definitive proxy
or information statements incorporated by reference in
Part III of this Form 10-K or any amendment to this Form 10-K.
[X]
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
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 [
] Accelerated
filer [ X]
Non-accelerated
filer [ ] (Do not check if a smaller
reporting
company)
Smaller reporting company [ ]
Indicate by check
mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act): [ ]
Yes [X] No
The aggregate
market value of the voting stock held by non-affiliates of the
Registrant, based upon the closing sale price of the
registrant’s common stock on March 31, 2016, as quoted on the
NYSE MKT, was $60,807,407.
As of December 9,
2016, the Registrant had 188,724,407 issued and
outstanding shares of common stock.
Documents
Incorporated by Reference: None
Explanatory Note
The
purpose of the Amendment No. 1 on Form 10–K/A to CEL-SCI
CORPORATION’s annual report of Form 10–K for the year
ended September 30, 2016, filed with the Securities and Exchange
Commission on December 14, 2016 (the “Form
10–K”), is solely to furnish Exhibit 101 to the Form
10–K in accordance with Rule 405 of Regulation
S–T.
No
other changes have been made to the Form 10–K. This Amendment
No. 1 speaks as of the original filing date of the Form 10–K,
does not reflect events that may have occurred subsequent to the
original filing date and does not modify or update in any way
disclosures made in the original Form
10–K.
ITEM
15. EXHIBITS AND FINANCIAL
STATEMENT SCHEDULES
See the Financial
Statements attached to this Report.
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Exhibits
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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
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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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3(e)
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Amended
Bylaws
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Incorporated by
reference to Exhibit 3(ii) of CEL-SCI’s report on Form 8-K
dated March 16, 2015.
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4
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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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4(b)
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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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4(c)
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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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4(d)
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Stock Bonus
Plan
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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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4(e)
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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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4(f)
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2014 Incentive
Stock Bonus Plan
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Filed with this
Amendment No. 2 to the Company’s annual report on Form 10-K
for the year ended September 30, 2014.
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10(f)
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Securities Purchase
Agreement (together with schedule required by Instruction 2
to Item 601 of Regulation S-K) pertaining to Series K
notes and warrants, together with the exhibits to the Securities
Purchase Agreement
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Incorporated by
reference to Exhibit 10 to CEL-SCI’s report on Form 8-K
dated August 4, 2006.
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10(g)
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Subscription
Agreement (together with Schedule required by Instruction 2
toItem 601 of Regulation S-K) pertaining to April 2007 sale of
20,000,000 shares of CEL-SCI’s common stock,
10,000,000 Series L warrants and 10,000,000 Series
M Warrants
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Incorporated by
reference to Exhibit 10 of CEL-SCI’s report on Form 8-K
dated April 18, 2007
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10(h)
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Warrant Adjustment
Agreement with Laksya Ventures
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Incorporated by
reference to Exhibit 10(i) of CEL-SCI’s report on Form
8-K dated August 3, 2010
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10(l)
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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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10(m)
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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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10(n)
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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(o)
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Promissory Note
with Maximilian de Clara, together with Amendments 1 and
2
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Incorporated by
reference to Exhibit 10(p) 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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10(aa)
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Securities Purchase
Agreement and form of the Series F warrants, which is and
exhibit to the Securities Purchase Agreement
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Incorporated by
reference to Exhibit 10(aa) of CEL-SCI’s report on Form
8-K dated October 3, 2011.
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10(bb)
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Placement Agent
Agreement
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Incorporated by
reference to Exhibit 10(bb) of CEL-SCI’s report on Form
8-K dated October 3, 2011.
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10(cc)
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Securities Purchase
Agreement, together with the form of the
Series H warrant, which is an exhibit to the securities Purchase
Agreement
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Incorporated by
reference to Exhibit 10(cc) of CEL-SCI’s report on Form 8-K
dated January 25, 2012.
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10(dd)
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Placement Agent
Agreement
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Incorporated by
reference to Exhibit 10(dd) of CEL-SCI’s report on Form
8-K dated January 25, 2012.
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10(ee)
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Warrant Amendment
Agreement, together with the form of the Series P warrant, which is
an exhibit to the Warrant Amendment Agreement
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Incorporated by
reference to Exhibit 10(ee) of CEL-SCI’s report on Form
8-K dated February 10, 2012.
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10(ff)
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Placement Agent
Agreement
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Incorporated by
reference to Exhibit 10(ff) of CEL-SCI’s report on Form
8-K dated February 10, 2012.
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10(gg)
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Securities Purchase Agreement and
the form of the Series
Q warrant, which is
an exhibit to the Securities Purchase
Agreement
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Incorporated by
reference to Exhibit 10(gg) of CEL-SCI’s report on Form
8-K dated June 18, 2012.
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10(hh)
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Placement Agent
Agreement
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Incorporated by
reference to Exhibit 10(hh) of CEL-SCI’s report on Form
8-K dated June 18, 2012.
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10
(ii)
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Securities Purchase Agreement and
the form of the Series
R warrant, which is
an exhibit to the Securities Purchase
Agreement
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Incorporated by
reference to Exhibit 10(ii) of CEL-SCI’s report on Form
8-K dated December 5, 2012.
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10
(jj)
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Placement Agent
Agreement
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Incorporated by
reference to Exhibit 10(jj) of CEL-SCI’s report on
Form 8-K dated December 5, 2012.
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10
(nn)
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Underwriting
Agreement, together with the form of Series S warrant which is an
exhibit to the underwriting agreement
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Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
dated October 8, 2013.
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10
(oo)
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Underwriting
Agreement, together with the form of Series S warrant which is an
exhibit to the underwriting agreement
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Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
dated December 19, 2013.
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10
(pp)
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Underwriting
Agreement, together with the form of Series T warrant which is an
exhibit to the warrant agent agreement
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Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
dated April 15, 2014.
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10
(qq)
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Underwriting
Agreement, together with the form of Series S warrant which is an
exhibit to the warrant agent agreement
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Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
dated October 23, 2014.
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10
(rr)
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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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10
(ss)
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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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10
(tt)
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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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10
(uu)
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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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10
(vv)
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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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10
(ww)
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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- first amendment to its Form
10-K report for the year ended September 30, 2014 dated April
17, 2015.
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10
(xx)
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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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10
(yy)
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Master Services
Agreement with Aptiv Solutions, Inc.
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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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10
(zz)
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Project Agreement
Number 1 with Aptiv Solutions, Inc. together with Amendments 1 and
2 thereto*
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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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10
(aaa)
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Second Amendment to
Development Supply and Distribution Agreement with Orient
Europharma
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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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10
(bbb)
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Amended and
Restated Promissory Note with Maximilian de Clara
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Incorporated by
reference to Exhibit 10(bbb) 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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10
(ccc)
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Placement Agent
Agreement dated May 22,
2015 by and among
CEL-SCI Corporation and Dawson James Securities, Inc.
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Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
filed on May 26, 2015.
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10
(ddd)
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Warrant Agent
Agreement (as amended),
Series V
warrants
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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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10
(eee)
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Assignment of
Proceeds and Investment Agreement between CEL-SCI Corporation and
Lake Whillans Vehicle 1.
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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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10
(fff)
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Placement Agent
Agreement dated October 22, 2015 by and among CEL-SCI Corporation
and Dawson James Securities, Inc.
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Incorporated by
reference to Exhibit 1.1 of CEL-SCI’s report on Form 8-K
filed on October 23, 2015.
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10
(ggg)
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Warrant Agent
Agreement, Series W warrants
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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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10
(iii)
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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 the year ended September 30, 2015.
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10
(jjj)
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Securities Purchase
Agreement
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Incorporated by
reference to Exhibit 10(jjj) of CEL-SCI’s report on Form 8-K
dated May 19, 2016.
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10
(kkk)
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Securities Purchase
Agreement
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Incorporated by
reference to Exhibit 10(kkk) of CEL-SCI’s report on Form 8-K
dated August 24, 2016.
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10
(lll)
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Termination
Agreement with Maximilian de Clara
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Incorporated by
reference to Exhibit 10(lll) of CEL-SCI’s report on Form 8-K
dated September 2, 2016.
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10
(mmm)
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Employment
Agreement with Geert Kersten (2016-2019)
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Incorporated by
reference to Exhibit 10(mmm) of CEL-SCI’s report on Form 8-K
dated September 2, 2016.
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10
(nnn)
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Employment
Agreement with Patricia Prichep (2016-2019)
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Incorporated by
reference to Exhibit 10(nnn) of CEL-SCI’s report on Form 8-K
dated September 2, 2016.
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10
(000)
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Employment
Agreement with Eyal Taylor (2016-2019)
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Incorporated by
reference to Exhibit 10(ooo) of CEL-SCI’s report on Form 8-K
dated September 2, 2016.
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23.1
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Consent of BDO USA,
LLP
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31
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Rule 13a-14(a)
Certifications
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32
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Section 1350
Certifications
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101.INS
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XBRL
Instance Document.**
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101.SCH
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XBRL Taxonomy
Extension Schema Document.**
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101.CAL
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XBRL Taxonomy
Calculation Linkbase Document.**
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101.LAB
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XBRL Taxonomy Label
Linkbase Document.**
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101.PRE
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XBRL Taxonomy
Presentation Linkbase Document.**
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101.DEF
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XBRL
Taxonomy
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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 (*)
SIGNATURES
In
accordance with Section 13 or 15(a) of the Securities Exchange Act
of 1934, the Registrant has caused this Report to be signed on its
behalf by the undersigned, thereunto duly authorized on the
15th day of December
2016.
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CEL-SCI CORPORATION
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By:
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/s/
Geert
R. Kersten
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Geert R.
Kersten, Chief Executive Officer
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Pursuant to the
requirements of the Securities Act of l934, this Report has been
signed below by the following persons on behalf of the Registrant
and 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 R.
Kersten
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Chief Executive,
Principal
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Geert R.
Kersten
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Accounting,
Principal Financial
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Officer and a
Director
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December
15, 2016
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/s/ Alexander G.
Esterhazy
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Director
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December
15, 2016
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Alexander G.
Esterhazy
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/s/Peter R.
Young
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Director
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December
15, 2016
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Dr. Peter R.
Young
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/s/ Bruno
Baillavoine
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Director
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December
15, 2016
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