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EXHIBIT 10(www)
AMENDMENT NO. 1 TO ASSIGNMENT OF PROCEEDS
AND INVESTMENT AGREEMENT
THIS AMENDMENT NO. 1 TO ASSIGNMENT OF PROCEEDS AND INVESTMENT
AGREEMENT (this "Amendment") is made and entered into effective as of August 2,
2017 (the "Effective Date"), by and between CEL-SCI Corporation, a Colorado
corporation ("Assignor"), and Lake Whillans Vehicle I LLC, a Delaware limited
liability company ("Assignee"). Assignor and Assignee are sometimes referred to
herein singularly as a "Party" and collectively as the "Parties".
WITNESSETH
WHEREAS, each of the Parties is party to that certain Assignment of Proceeds and
Investment Agreement dated October 12, 2015 between Assignor and Assignee (the
"Investment Agreement") (capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Investment Agreement);
WHEREAS, pursuant to the Investment Agreement, among other things, Assignee
provided $5,000,000 to Assignor in consideration for the right to receive the
Assigned Return (as defined in the Investment Agreement); and
WHEREAS, pursuant to the Engagement Letter, Assignor Counsel agreed to represent
Assignor in connection with its arbitration claim against inVentiv Health
Clinical, LLC and certain affiliates (the "Claim") and agreed that total hourly
fees and expenses in such representation would be capped at $5,000,000, in each
case subject to the terms and conditions set forth in the Engagement Letter;
WHEREAS, Assignor Counsel has reached the foregoing fee cap in respect of its
representation of Assignor in the Claim and Assignor and Assignee wish to
incentivize Assignor Counsel to achieve the best possible outcome for Assignor
and ensure the most forceful and continued representation by Assignor Counsel of
Assignor in respect to the Claim. Therefore, the Parties desire to amend the
Investment Agreement as described herein in order to grant Assignor Counsel a
share of the Proceeds (as defined in the Investment Agreement), subject to the
terms and conditions set forth herein.
NOW THEREFORE in consideration of foregoing premises and the mutual covenants
set forth herein and for other good and valuable consideration the legal the
receipt and the legal sufficiency which is hereby acknowledged by the Parties,
the Parties agree as follows:
AGREEMENTS
1. Amendments to Investment Agreement.
a. Amendments to Section 1.1 of the Investment Agreement.
i. Definition of "Assigned Return". The definition of "Assigned
Return" in Section 1.1 of the Investment Agreement is hereby
deleted in its entirety and replaced with the following:
"Assigned Return" means the following, which has been
assigned and transferred to Assignee by this Agreement:
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(i) $10,000,000; plus
(ii) Eleven and one-quarter percent (11.25%) of the Net
Proceeds."
ii. Definition of "Pro Rata Interest". The definition of "Pro
Rata Interest' in Section 1.1 of the Investment Agreement is
hereby deleted in its entirety.
b. Amendment to Schedule 1 to the Investment Agreement. The text on
Schedule 1 to the Investment Agreement (other than the heading of
such Schedule) is hereby deleted in its entirety and replaced
with the following text:
"Proceeds arising from the Proceedings shall be distributed
by the Escrow Agent in the following priority (the
"Distribution Schedule"):
1. 100% of the Proceeds to Assignee until it has received
$5,000,000; then
2. Any Proceeds remaining after payment of the amount
required pursuant to the foregoing clause 1 shall be
paid as follows: the LW Percentage to Assignee and the
WA Percentage to Assignor Counsel until Assignee and
Assignor Counsel have collectively received $5,000,000
under this clause 2; then
3. Any Proceeds remaining after payment of the amounts
required pursuant to the foregoing clauses 1 and 2
shall be paid as follows: 81.25% to Assignor; 11.25% to
Assignee and 7.5% to Assignor Counsel.
"LW Percentage" shall mean the percentage equal to the
product of (i) 100 and (ii) $5,000,000 divided by the sum of
$5,000,000 plus the lesser of (x) amount of reasonable,
documented third-party expenses incurred by Assignor Counsel
after August 2, 2017 in respect of its representation of
Assignor in connection with the Claim and (y) $250,000.
"WA Percentage" shall mean the difference between 100% and
the LW Percentage.
2. Effect. Except as specifically amended by paragraph 1 of this
Amendment, the Investment Agreement shall not be amended or modified
hereby. As amended as provided in paragraph 1 of this Amendment, the
Investment Agreement shall continue in full force and effect. In the
event of any conflict between the terms of this Amendment and the
Investment Agreement, this Amendment shall govern. This Amendment is
subject to, and conditioned upon, Assignor Counsel's continued
representation of Assignor in respect of the Claim in accordance with
the terms of the Engagement Letter (including without limitation its
obligation to pay costs, expenses and other third party charges
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incurred in connection with such representation). Assignor Counsel
acknowledges and agrees to the foregoing and agrees to continue to
represent Assignor in respect of the Claim in accordance with the
terms of the Engagement Letter (including without limitation paying
all costs, expenses and other third party charges incurred in
connection with such representation). If Assignor Counsel fails to so
continue to represent Assignor in respect of the Claim (and pay such
costs, expenses and other third party charges), this amendment shall
be null and void and of no force or effect.
3. Third-Party Beneficiary. The Parties expressly agree that Assignor
Counsel is a third-party beneficiary of this Amendment to the extent
it calls for the payment of certain amounts to Assignor Counsel and,
as such, Assignor Counsel has the right to enforce the payment
provisions of this Amendment to such, and only to such, extent.
4. Governing Law. This Amendment and its validity, construction and
performance, and any and all disputes arising hereunder, shall be
governed in all respects by the laws of the State of New York, but
without recourse to its conflict of laws provisions.
5. Counterparts. This Amendment may be executed in multiple counterparts
and via facsimile and/or PDF signature, each of which shall, for all
purposes, be deemed an original, but which together shall constitute
one and same instrument.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment to be effective as of the date first set forth
above. This Agreement is entered into in New York, New York.
CEL-SCI CORPORATION
By: /s/ Geert Kersten
----------------------------
Name: Geert R. Kersten
Title: Chief Executive Officer
Date: October 3, 2017
LAKE WHILLANS VEHICLE I LLC
BY: LAKE WHILLANS CAPITAL PARTNERS LLC,
ITS MANAGING MEMBER
By: /s/ Boaz Weinstein
----------------------------
Name: Boaz Weinstein
Title Principal
Date: October 3, 2017
AGREED AND ACKNOWLEDGED WITH RESPECT TO SECTION 2:
WILK AUSLANDER LLP
By: /s/ Jay Auslander
----------------------------
Name: Jay Auslander
Title: Partner
Date: October 3, 201
