As filed with the Securities and Exchange Commission on January 21, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Agenus Inc.
(Exact name
of registrant as specified in its charter)
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| Delaware |
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06-1562417 |
| (State or other jurisdiction of |
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(I.R.S. Employer |
| incorporation or organization) |
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Identification No.) |
3 Forbes Road, Lexington, MA 02421
(Address of principal executive offices, including zip code)
AGENUS INC. 2009 EQUITY INCENTIVE PLAN
AGENUS INC. DIRECTORS’ DEFERRED COMPENSATION PLAN
AGENUS INC. 2015 INDUCEMENT EQUITY PLAN
EMPLOYMENT INDUCEMENT AWARD*
(Full title of the plan)
| * |
See Explanatory Note on the following page |
Garo H. Armen, Ph.D
Agenus Inc.
3 Forbes
Road
Lexington, MA 02421
781-674-4400
(Name,
address and telephone number, including area code, of agent for service)
Please
send copies of all communications to:
John R. Pitfield, Esq.
Choate, Hall & Stewart LLP
Two International Place
Boston, MA 02110
(617)
248-5000
(617) 248-4000 (facsimile)
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. (Check one):
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| Large accelerated filer |
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¨ |
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Accelerated filer |
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x |
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| Non-accelerated filer |
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Smaller reporting company |
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¨ |
CALCULATION OF REGISTRATION FEE
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| Title of securities
to be registered |
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Amount
to be registered(1) |
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Proposed
maximum offering
price per share |
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Proposed
maximum aggregate
offering price |
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Amount of
registration fee |
| Common Stock, $0.01 par value per share |
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572,600 shares (2) |
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$6.99 (3) |
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$4,002,474 (3) |
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$403.05 |
| Common Stock, $0.01 par value per share |
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3,427,400 shares (4) |
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$3.16 (5) |
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$10,830,584 (5) |
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$1,090.64 |
| Common Stock, $0.01 par value per share |
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100,000 shares (6) |
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$3.16 (5) |
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$316,000 (5) |
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$31.82 |
| Common Stock, $0.01 par value per share |
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314,000 shares (7) |
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$4.46 (8) |
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$1,400,440 (8) |
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$141.02 |
| Common Stock, $0.01 par value per share |
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1,186,000 shares (9) |
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$3.16 (5) |
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$3,747,760 (5) |
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$377.40 |
| Common Stock, $0.01 par value per share |
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150,000 shares (10) |
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$9.78 (11) |
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$1,467,000 |
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$147.73 |
| Total |
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5,750,000 |
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$21,764,258 |
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$2,191.66 |
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| (1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers such additional shares of Common Stock as may be issued to prevent dilution
from stock splits, stock dividends and similar transactions. |
| (2) |
Represents shares of Common Stock that are issuable upon exercise of outstanding options with fixed exercise prices under the Registrant’s 2009 Equity Incentive Plan, as amended (the “EIP”).
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| (3) |
Pursuant to Rule 457(h) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price for the shares have been calculated solely for the purpose of computing
the registration fee on the basis of $6.99, the weighted-average price per share of awards outstanding under the EIP as of the filing date of this registration statement. |
| (4) |
Represents shares of Common Stock reserved for issuance pursuant to awards under the EIP, other than shares reserved for issuance upon exercise of outstanding options with fixed exercise prices. |
| (5) |
Pursuant to Rules 457(c) and 457(h)(l) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price for the shares have been calculated solely for the purpose
of computing the registration fee on the basis of the average high and low prices of the Common Stock as reported on the NASDAQ Capital Market on January 15, 2016. |
| (6) |
Pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Agenus Inc. Directors’ Deferred Compensation
Plan, as amended (the “DDC”). |
| (7) |
Represents shares of Common Stock that are issuable upon exercise of outstanding options with an exercise price of $4.46 per share under the Registrant’s 2015 Inducement Equity Plan (the “Inducement
Plan”) to induce certain individuals to accept employment with the Registrant. |
| (8) |
Pursuant to Rule 457(h) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price for the shares have been computed upon the basis of the price at which
the options may be exercised. |
| (9) |
Represents shares of Common Stock reserved for issuance pursuant to awards under the Inducement Plan, other than shares reserved for issuance upon exercise of outstanding options with fixed exercise prices.
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| (10) |
Represents shares of Common Stock which are issuable upon exercise of stock options granted outside of the Registrant’s employee equity compensation plans to C. Evan Ballantyne to induce Mr. Ballantyne to
accept employment with the Registrant. |
| (11) |
Pursuant to Rule 457(h) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price for the shares have been computed upon the basis of the price at which
the Employment Inducement Award may be exercised. |
Explanatory Note
This registration statement on Form S-8 (this “Registration Statement”) is being filed to register an additional 4,000,000 shares of
common stock of Agenus Inc. (the “Registrant”) issuable under the EIP, so that a total of 14,200,000 shares will be available under the EIP. Pursuant to General Instruction E to Form S-8, this Registration Statement incorporates by
reference the contents of the registration statements on Form S-8 (File Nos. 333-195851, 333-189926, 333-183066 and 333-160084) filed by the Registrant on May 9, 2014, July 12, 2013, August 3, 2012 and June 19,
2009, respectively, relating to the EIP.
This Registration Statement is being filed to register an additional 100,000 shares of the
Registrant available for future issuance under the DDC so that a total of 325,000 shares will be available under the DDC. Pursuant to Instruction E to Form S-8, the Registrant incorporates by reference into this Registration Statement the contents
of its Registration Statements on Form S-8 (File Nos. 333-183067, 333-176609, 333-160088, 333-143807 and 333-106072) filed by the Registrant on August 3, 2012, September 1, 2011, June 19, 2009, June 15, 2007 and
June 12, 2003, respectively, relating to the DDC.
This Registration Statement is being filed to register 1,500,000 shares of the
Registrant issuable under the Inducement Plan. The Inducement Plan and all outstanding awards under the Inducement Plan were approved by the Registrant’s Board of Directors in compliance with and in reliance on NASDAQ Listing Rule 5635(c)(4),
which exempts inducement grants from the general requirement of the NASDAQ Listing Rules that equity-based compensation plans and arrangements be approved by stockholders. The shares of the Registrant’s common stock that are issuable pursuant
to the Inducement Plan include 535,824 shares subject to outstanding awards.
To induce C. Evan Ballantyne to accept employment as the
Registrant’s Chief Financial Officer, the Registrant granted Mr. Ballantyne an option to purchase 150,000 shares of the Registrant’s Common Stock with a per-share exercise price of $9.78 (the “Employment Inducement Award”)
on June 17, 2015 (the “Grant Date”). The Employment Inducement Award will vest 25% on each of the one-year, two-year, three-year and four-year anniversaries of the Grant Date, subject to Mr. Ballantyne’s continued employment
with the Registrant through each such vesting date. The Employment Inducement Award was approved by the Registrant’s Board of Directors in compliance with and in reliance on NASDAQ Listing Rule 5635(c)(4), which exempts employment inducement
grants from the general requirement of the NASDAQ Listing Rules that equity-based compensation plans and arrangements be approved by stockholders. The Employment Inducement Award was granted outside of the EIP and its predecessor plans. This
Registration Statement registers, among other securities described above, shares of the Registrant’s Common Stock issuable pursuant to the Employment Inducement Award.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act. In accordance with the rules and regulations of the SEC and the instructions to Form S-8, such documents are not being filed with the Securities and Exchange Commission either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in the registration statement pursuant to Item 3 of Part II of this Form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. |
Incorporation of Documents by Reference. |
The following documents previously filed with
the Securities and Exchange Commission (the “SEC”) are incorporated by reference herein and shall be deemed as part hereof:
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a) |
our Annual Report on Form 10-K for the year ended December 31, 2014; |
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b) |
our Quarterly Reports on Form 10-Q for the quarters ended September 30, 2015, June 30, 2015 and March 31, 2015; |
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c) |
our Current Reports on Form 8-K filed on January 21, 2016, January 4, 2016, December 23, 2015, November 5, 2015, October 27, 2015, September 9, 2015 (as amended by our
Current Report on Form 8-K/A filed on September 11, 2015), July 24, 2015, July 20, 2015, June 30, 2015, June 17, 2015, June 3, 2015, June 1, 2015, May 27,
2015, May 21, 2015, May 14, 2015, April 28, 2015, April 24, 2015, April 8, 2015, February 26, 2015, February 19, 2015 and January 9, 2015 (except, with respect to each of the
foregoing, for portions of such reports which were deemed to be furnished and not filed); |
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d) |
our Proxy Statement on Schedule 14A filed on April 30, 2015; and |
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e) |
the description of our common stock contained in our registration statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on January 24, 2000, including any
amendment or reports filed for the purpose of updating such descriptions. |
All documents filed after the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and prior to the filing of a post-effective amendment which indicates that all shares of common stock offered hereunder have been sold or which deregisters
all shares of common stock remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents.
You should rely only on information contained or incorporated by reference in this Registration Statement. We have not authorized any other
person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not
permitted.
| Item 4. |
Description of Securities. |
Not Applicable.
| Item 5. |
Interest of Named Experts and Counsel. |
None.
| Item 6. |
Indemnification of Directors and Officers. |
Section 145 of the Delaware General
Corporation Law permits, in general, a Delaware corporation to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that he or she is or was a director or
officer of the corporation, or served another business enterprise in any capacity at the request of the corporation, against liability incurred in connection with such proceeding, including the expenses (including attorney’s fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in connection with such proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the
corporation and, in criminal actions or proceedings, additionally had no reasonable cause to believe that his or her conduct was unlawful. A Delaware corporation’s power to indemnify applies to actions brought by or in the right of the
corporation as well, but only to the extent of expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit, provided that no indemnification shall be
provided in such actions in the event of any adjudication of negligence or misconduct in the performance of such person’s duties to the corporation, unless a court believes that in light of all the circumstances indemnification should apply.
Section 145 of the Delaware General Corporation Law also permits, in general, a Delaware corporation to purchase and maintain insurance on behalf of any person who is or was a director or
officer of the corporation, or served another entity in any capacity at the request of the corporation, against liability incurred by such person in such capacity, whether or not the corporation would have the power to indemnify such person against
such liability.
We have entered into indemnification agreements with each of our directors and certain executive officers and have
obtained insurance covering our directors and officers against losses and insuring us against certain of our obligations to indemnify our directors and officers.
Our Fifth Amended and Restated By-Laws provide that we shall indemnify each of our directors and officers, to the maximum extent permitted
from time to time by law, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by reason of the fact that he or she is a director or officer.
This right of indemnification conferred in our Fifth Amended and Restated By-Laws is not exclusive of any other right.
In addition, as permitted by Section 102 of the Delaware General Corporation Law, our Amended and Restated Certificate of Incorporation
includes a provision that eliminates the personal liability of our directors for monetary damages for breach of their fiduciary duty as directors except for liability (i) for any breach of the director’s duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
These indemnification provisions may be sufficiently broad to permit
indemnification of our directors and officers for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
| Item 7. |
Exemption from Registration Claimed. |
Not Applicable.
See Exhibit Index following the signature page of this Registration Statement.
a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. 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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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.
Provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the
offering.
b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement 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.
c) Insofar as
indemnification for liabilities arising under the Securities 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 SEC such indemnification is against public policy as expressed in the Securities 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 whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Lexington, Commonwealth of Massachusetts, on this 21st day of January, 2016.
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| Agenus Inc. |
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| By: |
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/s/ Garo H. Armen |
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Garo H. Armen |
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Chief Executive Officer and Chairman of the Board |
POWER OF ATTORNEY
We, the undersigned officers and directors of Agenus Inc., hereby severally constitute and appoint Garo H. Armen, Karen H. Valentine, C. Evan
Ballantyne and Christine M. Klaskin, and each of them singly, our true and lawful attorneys-in-fact, with full power to them in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including any
post-effective amendments thereto), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact may do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed
below by the following persons in the capacities indicated below on the dates indicated.
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| Signature |
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Title |
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Date |
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| /s/ Garo H. Armen, Ph.D. |
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Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) |
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January 21, 2016 |
| Garo H. Armen, Ph.D. |
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| /s/ C. Evan Ballantyne |
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Chief Financial Officer (Principal Financial Officer) |
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January 21, 2016 |
| C. Evan Ballantyne |
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| /s/ Christine M. Klaskin |
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Vice President, Finance (Principal Accounting Officer) |
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January 21, 2016 |
| Christine M. Klaskin |
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| /s/ Brian Corvese |
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Director |
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January 21, 2016 |
| Brian Corvese |
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| /s/ Wadih Jordan |
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Director |
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January 21, 2016 |
| Wadih Jordan |
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| /s/ Shahzad Malik |
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Director |
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January 21, 2016 |
| Shahzad Malik |
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| /s/ Shalini Sharp |
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Director |
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January 21, 2016 |
| Shalini Sharp |
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| /s/ Timothy R. Wright |
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Director |
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January 21, 2016 |
| Timothy R. Wright |
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EXHIBIT INDEX
The following is a list of exhibits filed as part of this Registration Statement.
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| Exhibit |
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Description |
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| 4.1 |
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Amended and Restated Certificate of Incorporation of Antigenics Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 000-29089) filed on June 10, 2002 and incorporated herein by reference. |
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| 4.2 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Antigenics Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 000-29089) filed on June 11, 2007 and incorporated
herein by reference. |
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| 4.3 |
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Certificate of Ownership and Merger changing the name of the corporation to Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 000-29089) filed on January 6, 2011 and incorporated herein by
reference. |
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| 4.4 |
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Certificate of Second Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 000-29089) filed on September 30, 2011 and incorporated
herein by reference. |
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| 4.5 |
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Certificate of Third Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1.4 to our Quarterly Report on Form 10-Q (File No. 000-29089) filed on August 8, 2012 and
incorporated herein by reference. |
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| 4.6 |
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Certificate of Fourth Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 000-29089) filed on April 25, 2014 and incorporated herein
by reference. |
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| 4.7 |
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Fifth Amended and Restated By-laws of Agenus Inc. Filed as Exhibit 3.2 to our Current Report on Form 8-K (File No. 000-29089) filed on January 6, 2011 and incorporated herein by reference. |
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| 4.8 |
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Form of Common Stock Certificate. Filed as Exhibit 4.1 to Current Report on Form 8-K (File No. 000-29089) filed January 6, 2011 and incorporated herein by reference. |
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| 4.9 |
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2009 Equity Incentive Plan, as amended through April 23, 2014. Filed as Appendix A to our Definitive Proxy Statement on Schedule 14A filed on April 30, 2015 and incorporated herein by reference. |
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| 4.10 |
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Fourth Amendment to 2009 Equity Incentive Plan. Filed as Appendix B to our Definitive Proxy Statement on Schedule 14A filed on April 30, 2015 and incorporated herein by reference. |
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| 4.11 |
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Agenus Inc. Directors’ Deferred Compensation Plan, as amended. Filed as Exhibit 10.4 to our Annual Report on Form 10-K (File No. 0-29089) for the year ended December 31, 2012
and incorporated herein by reference. |
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| 4.12 |
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Seventh Amendment to Directors’ Deferred Compensation Plan. Filed as Appendix C to our Definitive Proxy Statement on Schedule 14A filed on April 30, 2015 and incorporated herein by reference. |
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| 4.13 |
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Non-Qualified Stock Option Agreement, dated as of June 17, 2015, by and between Agenus Inc. and C. Evan Ballantyne. Filed as Exhibit 10.2 to our Quarterly Report on Form 10-Q (File No. 0-29089) filed on August 3, 2015 and
incorporated herein by reference. |
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| 4.14 |
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Agenus Inc. 2015 Inducement Equity Plan. Filed herewith. |
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| 4.15 |
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Form of Stock Option Agreement for the Agenus Inc. 2015 Inducement Equity Plan. Filed herewith. |
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| 4.16 |
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Form of Restricted Stock Award Agreement for the Agenus Inc. 2015 Inducement Equity Plan. Filed herewith. |
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| 4.17 |
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Form of Restricted Stock Unit Agreement for the Agenus Inc. 2015 Inducement Equity Plan. Filed herewith. |
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| 5.1 |
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Opinion of Choate, Hall & Stewart LLP dated January 21, 2016. Filed herewith. |
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| 23.1 |
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Consent of Choate, Hall & Stewart LLP (included in Opinion filed as Exhibit 5.1). |
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| 23.2 |
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Consent of KPMG LLP, Independent Registered Public Accounting Firm. Filed herewith. |
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| 24.4 |
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Power of Attorney (included on signature page of this Registration Statement). |
Exhibit 4.14
AGENUS INC.
2015 INDUCEMENT
EQUITY PLAN
1. Purpose and Eligibility
The name of
this plan is the Agenus Inc. 2015 Inducement Equity Plan (the “Plan”). The purpose of the Plan is to enable Agenus Inc., a Delaware corporation (the “Company”), to grant stock options and other equity interests in
the Company (each an “Award”) to induce prospective officers and employees who are not currently employed by the Company to accept employment and provide them with a proprietary interest in the Company. The Company intends that the
Plan be reserved for persons to whom the Company may issue securities without stockholder approval as an inducement pursuant to Listing Rule 5635(c)(4) of the corporate governance rules of the NASDAQ Stock Market. Only those officers and employees
to whom the Company may issue securities without stockholder approval in accordance with Rule 5635(c)(4) of the corporate governance rules of the NASDAQ Stock Market as are selected by the Committee (as defined below) in its sole discretion are
eligible to receive Awards under the Plan. Any person to whom an Award has been granted under the Plan is called a “Participant.” Additional definitions are contained in Section 8.
2. Administration
The Plan will be administered by the
Compensation Committee of the Board of Directors of the Company (the “Committee”). The Committee, in its sole discretion, shall have the authority to grant and amend Awards, to adopt, amend and repeal rules relating to the Plan and
to interpret and correct the provisions of the Plan and any Award. All decisions by the Committee shall be final and binding on all interested persons. Neither the Company nor any member of the Committee shall be liable for any action or
determination relating to the Plan or any Award.
3. Stock Available for Awards
a. Number of Shares. Subject to adjustment under Section 3(b), the aggregate number of shares of Common Stock of the Company (the “Common
Stock”) that may be issued pursuant to the Plan is 1,500,000 shares. If any Award expires, or is terminated, surrendered or forfeited, in whole or in part, the unissued Common Stock covered by such Award shall again be available for the
grant of Awards under the Plan. If shares of Common Stock issued pursuant to the Plan are repurchased by, or are surrendered or forfeited to, the Company at no more than the original purchase price thereof, such shares of Common Stock shall again be
available for the grant of Awards under the Plan. The Committee may adopt such share counting rules as it deems appropriate, provided that such rules are not inconsistent with the Plan.
1
b. Adjustment to Common Stock. In the event of any stock split, stock dividend, extraordinary cash
dividend, recapitalization, reorganization, merger, consolidation, combination, exchange of shares, liquidation, spin-off, split-up, or other similar change in capitalization or event, (i) the number and class of securities available for Awards
under the Plan, (ii) the number and class of securities, vesting schedule and exercise price per share subject to each outstanding Option, (iii) the repurchase price per security subject to repurchase, and (iv) the terms of each other
outstanding Award shall be adjusted by the Company (or substituted Awards may be made) in the manner determined by the Board or the Committee to avoid an unfair result. If Section 7(e)(i) applies for any event, this Section 3(b) shall not
be applicable.
4. Stock Options
a. General.
The Committee may grant options to purchase Common Stock (each, an “Option”) and determine the number of shares of Common Stock to be covered by each Option, the exercise price of each Option and the conditions and limitations
applicable to the exercise of each Option and the Common Stock issued upon the exercise of each Option, including vesting provisions, repurchase provisions and restrictions relating to applicable federal or state securities laws, as it considers
advisable. All Options granted under the Plan shall be non-qualified stock options.
b. Exercise Price. The Committee shall establish the exercise
price (or determine the method by which the exercise price shall be determined) and specify such exercise price in the applicable option agreement The exercise price of each Option shall be not less than 100% of the Fair Market Value (as defined
below) on the date the Option is granted.
c. Duration of Options. Each Option shall be exercisable at such times and subject to such terms and
conditions as the Committee may specify in the applicable option agreement, provided, however, that no Option will be granted for a term in excess of 10 years.
d. Exercise of Option. Options may be exercised only by delivery to the Company of a written notice of exercise signed by the proper person, or any
other form of notice approved by the Board, together with payment in full as specified in Section 4(e) for the number of shares for which the Option is exercised.
e. Payment Upon Exercise. No shares shall be delivered pursuant to any exercise of an Option until the Company receives payment in full of the option
exercise price in the manner provided in the applicable option agreement. Methods of payment may include any of the following or any combination thereof or any other form of lawful consideration: (i) cash, check or wire transfer of funds;
(ii) shares of Common Stock owned by the Participant valued at fair market value (as determined by the Board or as determined pursuant to the applicable option agreement); (iii) so-called “cashless exercise” or “net
issuance”; and (iv) arrangements with a broker or other financial institution for the prompt payment of the exercise price to the Company.
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f. Prohibition of Repricing. The Committee is prohibited from amending any outstanding Option granted
under the Plan to provide an exercise price per share that is lower than the then-current exercise price per share of such outstanding Option without stockholder approval.
h. No Reload Rights. No Option granted under the Plan shall contain any provision entitling the optionee to the automatic grant of additional Options
in connection with any exercise of the original Option.
5. Stock Awards
a. Grants. The Committee may grant Awards entitling recipients to acquire shares of Common Stock for any lawful consideration (a “Stock
Award”). The Committee may, but need not, provide that such Stock Award shall be subject to forfeiture to the Company in the event that conditions specified by the Committee in the applicable Award are not satisfied prior to the end of the
applicable restriction period or periods established by the Board for such Award (a “Restricted Stock Award”).
b. Terms and
Conditions. The Committee shall determine the terms and conditions of any such Stock Award. In the case of a Restricted Stock Award, any stock certificates issued in respect thereof shall be registered in the name of the Participant and, unless
otherwise determined by the Committee, deposited by the Participant, together with a stock power endorsed in blank, with the Company (or its designee). After the expiration of the applicable restriction periods, the Company (or such designee) shall
deliver the certificates no longer subject to such restrictions to the Participant or, if the Participant has died, to the beneficiary designated by a Participant, in a manner determined by the Committee, to receive amounts due or exercise rights of
the Participant in the event of the Participant’s death (the “Designated Beneficiary”). In the absence of an effective designation by a Participant, Designated Beneficiary shall mean the Participant’s estate.
6. Other Stock-Based Awards
The Committee shall have
the right to grant other Awards based upon or with reference to the Common Stock or the trading price thereof and having such terms and conditions as the Committee may determine, including, without limitation, the grant or sale of shares of stock
based upon certain conditions, the grant of securities convertible into Common Stock and the grant of stock appreciation rights, phantom stock awards or stock units, which may be settled in cash or stock.
7. General Provisions Applicable to Awards
a.
Transferability of Awards. Except as the Committee may otherwise determine or provide in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or
by operation of law, except by will or the
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laws of descent and distribution, and, during the life of the Participant, shall be exercisable only by the Participant. References to a Participant, to the extent relevant in the context, shall
include references to authorized transferees.
b. Documentation. Each Award shall be evidenced by an instrument in such form as the Committee shall
determine or as executed by an officer of the Company pursuant to authority delegated by the Committee. Each Award may contain terms and conditions in addition to those set forth in the Plan, provided that such terms and conditions do not contravene
the provisions of the Plan. If a person to whom an Award has been granted fails to execute and deliver to the Company within the time specified by the Company the form of Award instrument specified by the Company, such Award shall be voidable by the
Company at its election, with or without notice to such person.
c. Committee Discretion. The terms of each type of Award need not be identical,
and the Committee need not treat Participants uniformly.
d. Termination of Status. The Committee shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other change in the employment or other status of a Participant and the extent to which, and the period during which, the Participant, or the Participant’s legal representative,
conservator, guardian or Designated Beneficiary, may exercise rights under the Award.
e. Acquisition of the Company.
(i) Consequences of an Acquisition. In connection with an Acquisition (as defined below), the Board, the Committee or the board of directors of the
surviving or acquiring entity (as used in this Section 7(e)(i), also the “Board”) shall as to outstanding Awards (on the same basis or on different bases as the Board shall specify) make appropriate provision for the
continuation of such Awards by the Company or the assumption of, or substitution for, such Awards by the surviving or acquiring entity and by substituting on an equitable basis for the shares then subject to such Awards either (a) the
consideration payable with respect to the outstanding shares of Common Stock in connection with the Acquisition, (b) shares of stock of the surviving or acquiring corporation or (c) such other securities or other consideration as the Board
deems appropriate, the fair market value of which (as determined by the Board in its sole discretion) shall not materially differ from the Fair Market Value of the shares of Common Stock subject to such Awards immediately preceding the Acquisition.
In addition to, in lieu of, or in combination with the foregoing, with respect to unexercised Options or other unexercised Awards, the Board may, on the same basis or on different bases as the Board shall specify, upon written notice to the affected
Participants, provide that one or more such Options or Awards (or the vested portion thereof) must be exercised, in whole or in part, within a specified number of days of the date of such notice, at the end of which period such unexercised Options
or unexercised Awards (or the vested portion thereof) shall terminate in their entirety, and/or provide that one or more
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unexercised Options or unexercised Awards (or the vested portion thereof), in whole or in part, shall be terminated in their entirety in exchange for a cash payment equal to the fair market value
(as determined by the Board in its sole discretion) of the shares subject to such unexercised Options or unexercised Awards (or the vested portion thereof) minus the exercise price thereof, if applicable. Unless otherwise determined by the Board (on
the same basis or on different bases as the Board shall specify), any repurchase rights, vesting provisions or other rights of the Company that relate to an Option or other Award shall continue to apply to consideration, including cash, that
has been substituted, assumed or amended for an Option or other Award pursuant to this paragraph. The Company may hold in escrow all or any portion of any such consideration in order to effectuate any continuing restrictions.
(ii) Acquisition Defined. An “Acquisition” shall mean: (x) the sale of the Company by merger in which the stockholders of the
Company in their capacity as such no longer own a majority of the outstanding equity securities of the Company (or its successor); or (y) any sale of all or substantially all of the assets or capital stock of the Company (other than in a
spin-off or similar transaction); or (z) any other change of control or acquisition of the business of the Company, as determined by the Committee.
f. Withholding. Each Participant shall pay to the Company, or make provisions satisfactory to the Company for payment of, any taxes required by law to
be withheld in connection with Awards to such Participant no later than the date of the event creating the tax liability. The Committee may allow Participants to satisfy such tax obligations in whole or in part by transferring shares of Common
Stock, including shares retained from the Award creating the tax obligation, valued at their Fair Market Value. The Company may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to a
Participant. The Committee may impose such restrictions in connection therewith as may be necessary to avoid any transaction that might give rise to liability under Section 16(b) of the Exchange Act.
g. Amendment of Awards. The Committee may amend, modify or terminate any outstanding Award under certain circumstances including, but not limited to,
if the Committee determines that the provisions of the Plan or any Award are in contravention of any law or regulation of any governmental entity or self-regulatory organization with jurisdiction over the Company, or would have material adverse
effects on the taxation of the Company or the Participant. In connection therewith, the Committee may substitute for any such Award another Award of the same or a different type, change the date of exercise or realization or effect any other
modification or amendment, provided that the Participant’s consent to such action shall be required unless the Committee determines that the action, taking into account any related action, would not materially and adversely affect the
Participant.
h. Conditions on Delivery of Stock. The Company will not be obligated to deliver any shares of Common Stock pursuant to the Plan or
to remove restrictions from shares previously delivered under the Plan until (i) all conditions of the Award have been met or removed to the satisfaction
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of the Company, (ii) in the opinion of the Company’s counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any
applicable securities laws and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate
to satisfy the requirements of any applicable laws, rules or regulations.
i. Acceleration. The Committee may at any time provide that any Options
shall become immediately exercisable in full or in part, that any Restricted Stock Awards shall be free of some or all restrictions, or that any other stock-based Awards may become exercisable in full or in part or free of some or all restrictions
or conditions, or otherwise realizable in full or in part, as the case may be, despite the fact that the foregoing actions may cause the application of Sections 280G and 4999 of the Code if a change in ownership or control of the Company
occurs. In the event of the acceleration of the exercisability of one or more outstanding Options, including pursuant to Section 7(e)(i), the Committee may provide, as a condition of full exercisability of any or all such Options, that the
Common Stock or other substituted consideration, including cash, as to which exercisability has been accelerated shall be restricted and subject to forfeiture back to the Company at the option of the Company at the cost thereof upon termination of
employment or other relationship, with the timing and other terms of the vesting of such restricted stock or other consideration being equivalent to the timing and other terms of the superseded exercise schedule of the related Option.
j. Settlement. The Committee shall determine whether Awards are settled in whole or in part in cash, Common Stock, other securities of the Company,
Awards or other property.
k. Dividends and Cash Awards. In the discretion of the Committee, any Award under the Plan may provide the Participant
with (i) dividends or dividend equivalents payable currently or deferred with or without interest, and (ii) cash payments in lieu of or in addition to an Award.
l. Use for Settlement or Compensation. Awards may be made available as a form of payment in the settlement of other Awards granted under the Plan or as
payment in lieu of compensation to which a Participant is otherwise entitled.
8. Miscellaneous
a. Definitions.
(i) “Company,” shall
include any other business venture in which the Company has a direct or indirect significant interest, as determined by the Board in its sole discretion.
(ii) “Code” means the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder.
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(iii) “Fair Market Value” of the Common Stock on any given date means the fair market value of
the Common Stock determined in good faith by the Committee; provided, however, that if the Common Stock is admitted to quotation on the NASDAQ Capital Market or another national securities exchange, the determination shall be made by reference to
market quotations. If there are no market quotations for such date, the determination shall be made by reference to the last date preceding such date for which there are market quotations.
(iv) “Subsidiary” means any corporation or other entity (other than the Company) in which the Company has at least a 50 percent interest,
either directly or indirectly.
b. No Right to Employment or Other Status. No person shall have any claim or right to be granted an Award, and the
grant of an Award shall not be construed as giving a Participant the right to continued employment or any other relationship with the Company. The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship
with a Participant free from any liability or claim under the Plan.
c. No Rights As Stockholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed with respect to an Award until becoming the record holder thereof.
d. Effect on Other Benefit Plans. Unless specifically provided otherwise in an applicable Award, the amount of any compensation deemed to be received
by a Participant as a result of the receipt or exercise of an Award will not constitute “earnings” with respect to which any other benefits of such Participant are determined, including without limitation benefits under any pension, profit
sharing, life insurance or salary continuation plan.
e. Authorization of Sub-Plans. The Committee may from time to time establish one or more
sub-plans under the Plan for purposes of satisfying applicable blue sky, securities or tax laws of various jurisdictions. The Committee shall establish such sub-plans by adopting supplements to this Plan containing (i) such limitations on the
Committee’s discretion under the Plan as the Committee deems necessary or desirable or (ii) such additional terms and conditions not otherwise inconsistent with the Plan as the Committee shall deem necessary or desirable. All supplements
adopted by the Committee shall be deemed to be part of the Plan, but each supplement shall apply only to Participants within the affected jurisdiction and the Company shall not be required to provide copies of any supplement to Participants in any
jurisdiction which is not the subject of such supplement. Without limiting the generality of the foregoing, the Committee may modify Awards granted to Participants who are foreign nationals or employed outside the United States or establish
sub-plans or procedures under the Plan to recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.
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f. Effective Date and Term of Plan. The Plan shall become effective on the date on which it is approved by
the Board of Directors of the Company (the “Effective Date”). No Awards shall be granted under the Plan after the completion of ten years from the Effective Date, but Awards previously granted may extend beyond that date.
g. Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion thereof at any time, subject to any required stockholder
approval under any applicable legal, regulatory or listing requirement.
h. Governing Law. The provisions of the Plan and all Awards made hereunder
shall be governed by and interpreted in accordance with the laws of Delaware, without regard to any applicable conflicts of law.
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Exhibit 4.15
AGENUS INC.
STOCK OPTION AGREEMENT [STAGED EXERCISABILITY]
Agenus Inc., a Delaware corporation, (the “Company”), hereby grants the following stock option pursuant to its 2015
Inducement Equity Plan. The terms and conditions attached hereto are also a part hereof.
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| Name of optionee (the “Optionee”): |
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| Number of shares of the Company’s Common Stock subject to this option (“Shares”): |
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| Option exercise price per share: |
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| Number, if any, of Shares that may be purchased on or after the grant date: |
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| Shares that are subject to vesting schedule: |
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| Vesting Start Date: |
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| Vesting Schedule: |
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As indicated online on the Stock Option Plan Summary Page of your Fidelity Account |
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| All vesting is dependent on the continuation of a Business Relationship with the Company, as provided herein. |
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AGENUS INC. |
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| Signature of Optionee |
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Name of Officer: |
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AGENUS INC.
STOCK OPTION AGREEMENT — INCORPORATED TERMS
AND CONDITIONS
This option grant by AGENUS INC. (the
“Company”) is subject to the following terms and conditions:
1. Grant Under Plan. This option is granted pursuant
to and is governed by the Company’s 2015 Inducement Equity Plan (the “Plan”) and, unless the context otherwise requires, terms used herein shall have the same meaning as in the Plan. This agreement does not set forth all of the
terms and conditions of the Plan, which are incorporated herein by reference. The Committee administers the Plan and its determinations regarding the operation of the Plan are final and binding.
2. Grant as Non-Qualified Stock Option. This option is a non-statutory stock option and is not intended to qualify as an incentive
stock option under Section 422 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”).
3. Vesting of Option if Business Relationship Continues. The Optionee may exercise this option on or after the date of this option
grant for the number of shares of Common Stock, if any, set forth on the cover page hereof. If the Optionee has continuously maintained a Business Relationship (as defined below) with the Company through the dates listed on the vesting schedule set
forth on the cover page hereof, the Optionee may exercise this option for the additional number of shares of Common Stock set opposite the applicable vesting date. Notwithstanding the foregoing, the Committee may, in its discretion, accelerate the
date that any installment of this option or portion thereof becomes exercisable. The foregoing rights are cumulative and may be exercised only before the date which is ten (10) years from the date of this option grant.
4. Termination of Business Relationship.
(a) Termination. If the Optionee’s Business Relationship with the Company ceases, voluntarily or involuntarily,
with or without cause, no further installments of this option shall become exercisable, and this option shall expire (may no longer be exercised) after the passage of three months from the date of termination, unless in the case of death or
disability, but in no event later than the scheduled expiration date. “Business Relationship” means service to the Company or its successor in the capacity of an employee, officer, director or consultant. Any determination under
this agreement as to the status of a Business Relationship or other matters referred to above shall be made in good faith by the Committee.
(b) Employment Status. For purposes hereof, employment shall not be considered as having terminated during any leave of
absence if such leave of absence has been approved in writing by the Company. For purposes hereof, a termination of employment followed by another Business Relationship shall be not be deemed a termination of the Business Relationship unless
otherwise provided by the Company. This option shall not be affected by any change of employment within or among the Company and its Subsidiaries so long as the Optionee continuously remains an employee of the Company or any Subsidiary.
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5. Death; Disability.
(a) Death. Upon the death of the Optionee while the Optionee is maintaining a Business Relationship with the Company,
this option may be exercised, to the extent otherwise exercisable on the date of the Optionee’s death, by the Optionee’s estate, personal representative or beneficiary to whom this option has been transferred pursuant to Section 9,
only at any time within twelve (12) months after the date of death, but not later than the scheduled expiration date.
(b) Disability. If the Optionee ceases to maintain a Business Relationship with the Company by reason of his or her
disability, this option may be exercised, to the extent otherwise exercisable on the date of cessation of the Business Relationship, only at any time within twelve (12) months after such cessation of the Business Relationship, but not later
than the scheduled expiration date. For purposes hereof, “disability” means “permanent and total disability” as defined in Section 22(e)(3) of the Code.
6. Partial Exercise. This option may be exercised in part at any time and from time to time within the above limits, except that this
option may not be exercised for a fraction of a share.
7. Securities Laws Restrictions on Resale. It shall be a condition to the
Optionee’s right to purchase shares of Common Stock hereunder that the Company may, in its discretion, require (a) that the shares of Common Stock reserved for issuance upon the exercise of this Option shall have been duly listed, upon
official notice of issuance, upon any national securities exchange or automated quotation system on which the Company’s Common Stock may then be listed or quoted, (b) that either (i) a registration statement under the Securities Act
of 1933, as amended, or any successor statute (the “Securities Act”) with respect to said shares shall be in effect, or (ii) in the opinion of counsel for the Company the proposed purchase shall be exempt from registration
under the Securities Act and the Optionee shall have made such undertakings and agreements with the Company as the Company may reasonably require, and (c) that such other steps, if any, as counsel for the Company shall consider necessary to
comply with any law applicable to the issuance of such shares by the Company shall have been taken by the Company or the Optionee, or both. The certificates representing the shares purchased under this Option may contain such legends as counsel for
the Company shall deem necessary to comply with any applicable law. If any Shares are held in book-entry form, the Company may take such steps as it deems necessary or appropriate to record and manifest the restrictions applicable to such Shares.
8. Method of Exercising Option. Subject to the terms and conditions of this agreement, this option may be exercised by written
notice to the Company at its principal executive office, or to such transfer agent as the Company shall designate. Such notice shall state the election to exercise this option and the number of Shares for which it is being exercised and shall be
signed by the person or persons so exercising this option. Such notice shall be accompanied by payment of the full purchase price of such shares, and the Company shall deliver a certificate or certificates representing such shares as soon as
practicable after the notice
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shall be received. Such certificate or certificates shall be registered in the name of the person or persons so exercising this option (or, if this option shall be exercised by the Optionee and
if the Optionee shall so request in the notice exercising this option, shall be registered in the name of the Optionee and another person jointly, with right of survivorship). In the event this option shall be exercised, pursuant to Section 5
hereof, by any person or persons other than the Optionee, such notice shall be accompanied by appropriate proof of the right of such person or persons to exercise this option.
9. Option Not Transferable. This option is not transferable or assignable except by will or by the laws of descent and distribution.
During the Optionee’s lifetime only the Optionee can exercise this option.
10. No Obligation to Exercise Option. The grant
and acceptance of this option imposes no obligation on the Optionee to exercise it.
11. No Obligation to Continue Business
Relationship. Neither the Plan, this agreement, nor the grant of this option imposes any obligation on the Company to continue the Optionee in employment or any other Business Relationship.
12. Adjustments. Except as is expressly provided in the Plan with respect to certain changes in the capitalization of the Company, no
adjustment shall be made for dividends or similar rights for which the record date is prior to such date of exercise.
13. Withholding
Taxes. If the Company in its discretion determines that it is obligated to withhold any tax in connection with the exercise of this option, or in connection with the transfer of, or the lapse of restrictions on, any Common Stock or other
property acquired pursuant to this option, the Optionee hereby agrees that the Company may withhold from the Optionee’s wages or other remuneration the appropriate amount of tax. At the discretion of the Company, the amount required to be
withheld may be withheld in cash from such wages or other remuneration or in kind from the Common Stock or other property otherwise deliverable to the Optionee on exercise of this option. The Optionee further agrees that, if the Company does not
withhold an amount from the Optionee’s wages or other remuneration sufficient to satisfy the withholding obligation of the Company, the Optionee will make reimbursement on demand, in cash, for the amount underwithheld.
15. Arbitration. Any dispute, controversy, or claim arising out of, in connection with, or relating to the performance of this
agreement or its termination shall be settled by arbitration in the Commonwealth of Massachusetts, pursuant to the rules then obtaining of the American Arbitration Association. Any award shall be final, binding and conclusive upon the parties and a
judgment rendered thereon may be entered in any court having jurisdiction thereof.
16. Provision of Documentation to Optionee. By
signing this agreement the Optionee acknowledges receipt of a copy of this agreement and a copy of the Plan.
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17. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall be deemed given when sent by mail, if to the Optionee,
to the address set forth on the cover page or to the address shown on the records of the Company, and if to the Company, to the Company’s principal executive offices, attention of the Corporate Secretary.
(b) Entire Agreement; Modification. This agreement and the Plan constitute the entire agreement between the parties
relative to the subject matter hereof, and supersede all proposals, written or oral, and all other communications between the parties relating to the subject matter of this agreement. This agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.
(c) Fractional Shares. If this option becomes exercisable for a
fraction of a share because of the adjustment provisions contained in the Plan, such fraction shall be rounded as provided by the Committee.
(d) Issuances of Securities; Changes in Capital Structure. Except as expressly provided herein or in the Plan, no
issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares subject to this
option. No adjustments need be made for dividends paid in cash or in property other than securities of the Company. If there shall be any change in the Common Stock of the Company through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split, share exchange, spin-off, split-up or other similar change in capitalization or event, the restrictions contained in this agreement shall apply with equal force to the additional and/or substitute securities, if any,
received by the Optionee in exchange for, or by virtue of his or her ownership of, the Shares, except as otherwise determined by the Committee.
(e) Severability. The invalidity, illegality or unenforceability of any provision of this agreement shall in no way
affect the validity, legality or enforceability of any other provision.
(f) Successors and Assigns. This agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, subject to the limitations set forth in Section 9 hereof.
(g) Governing Law. This agreement shall be governed by and interpreted in accordance with the laws of the State of
Delaware, without giving effect to the principles of the conflicts of laws thereof.
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Exhibit 4.16
AGENUS INC.
RESTRICTED STOCK AWARD AGREEMENT
Agenus Inc., a Delaware corporation, (the “Company”), hereby grants the shares of its common stock specified below (the
“Shares”) pursuant to its 2015 Inducement Equity Plan. The terms and conditions attached hereto are also a part hereof.
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| Number of shares granted hereunder (“Shares”): |
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| Number of Shares that are Vested Shares on the Vesting Start Date: |
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| Number of Shares that are Unvested Shares on the Vesting Start Date: |
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| Vesting Start Date: |
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| Vesting Schedule: |
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As indicated online on the Restricted Stock Award Plan Summary Page of your Fidelity Account |
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| All vesting is dependent on the continuation of a Business Relationship with the Company, as provided herein. |
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AGENUS INC. |
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| Signature of Stockholder |
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AGENUS INC.
RESTRICTED STOCK AWARD AGREEMENT — INCORPORATED
TERMS AND CONDITIONS
AGENUS INC. (the
“Company”) agrees to grant to Stockholder the shares of the Company’s common stock (“Common Stock”) on the following terms and conditions:
1. Grant Under Plan. This stock award is made pursuant to and is governed by the Company’s 2015 Inducement Equity Plan (the
“Plan”) and, unless the context otherwise requires, terms used herein shall have the same meaning as in the Plan. This stock award does not set forth all of the terms and conditions of the Plan, which are incorporated herein by
reference. The Committee administers the Plan and its determinations regarding the operation of the Plan are final and binding.
2.
Award of Stock. The Company hereby grants to Stockholder the Shares specified on the cover page of this agreement. The Company will promptly issue a certificate or certificates registered in the Stockholder’s name representing the
Shares.
3. Vesting if Business Relationship Continues.
(a) Vesting Schedule. If the Stockholder has continuously maintained a Business Relationship with the Company through
the vesting dates specified on the cover page hereof, Unvested Shares shall become Vested Shares (or shall “vest”) on such dates in an amount equal to the number of shares set in accordance with the vesting schedule specified on the
cover page. “Unvested Shares” shall be subject to forfeiture provisions described in Section 6 unless and until they become “Vested Shares.” Unvested Shares are subject to the restrictions on transfer contained
herein. Subject to Section 5, Vested Shares are freely transferable. If the Stockholder’s Business Relationship with the Company ceases, voluntarily or involuntarily, with or without cause, for any reason or no reason, no Unvested Shares
shall become Vested Shares thereafter under any circumstances with respect to the Stockholder. “Business Relationship” means service to the Company or its successor in the capacity of an employee, officer, director or consultant.
Any determination under this agreement as to the status of a Business Relationship or other matters referred to above shall be made in good faith by the Committee. The Committee, in its discretion, may accelerate the vesting for all or a portion of
the Unvested Shares.
(b) Certain Terminations of Business Relationship. For purposes hereof, employment shall not
be considered as having terminated during any leave of absence if such leave of absence has been approved in writing by the Company. For purposes hereof, a termination of employment followed by another Business Relationship shall not be deemed a
termination of the Business Relationship. This agreement shall not be affected by any change of employment within or among the Company and its Subsidiaries so long as the Stockholder continuously remains an employee of the Company or any Subsidiary.
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4. Restrictions on Transfer of Unvested Shares; Forfeiture to the Company. The Stockholder
may not sell, assign, transfer, pledge, encumber or dispose of (“Transfer”) all or any of his or her Unvested Shares or any interest therein except to the Company pursuant to this Section 4.
Upon the termination of the Stockholder’s Business Relationship, the Stockholder shall forfeit to the Company, without any payment or
other consideration, all Unvested Shares (the “Forfeited Shares”). The forfeiture of the Forfeited Shares shall take place automatically upon termination of the Stockholder’s Business Relationship. Upon termination of the
Stockholder’s Business Relationship, the Company shall automatically become the legal and beneficial owner of the Shares being forfeited and all rights and interests therein or relating thereto, and the Company shall have the right to retain
and transfer to its own name or cancel the number of Shares being forfeited to the Company.
Notwithstanding the foregoing, a Stockholder
may transfer any or all Unvested Shares by court order, in which event each such transferee shall be bound by all of the provisions of this agreement to the same extent as if such transferee were the Stockholder.
5. Securities Laws Restrictions. The Company may defer the issuance of the Shares or prohibit the transfer thereof until they have been
duly listed upon any national securities exchange or automated quotation system on which the Company’s Common Stock may then be listed or quoted or at any time a registration statement under the Securities Act of 1933, as amended, or any
successor statute (the “Securities Act”) with respect to said Shares shall not be in effect. In addition, the Company may impose such other restrictions that counsel for the Company shall consider necessary to comply with any law
applicable to the issuance of such shares by the Company. The certificates representing the Shares purchased may contain such legends and stop transfer restrictions as counsel for the Company shall deem necessary to comply with any applicable law.
If any Shares are held in book-entry form, the Company may take such steps as it deems necessary or appropriate to record and manifest the restrictions applicable to such Shares.
6. Certain Tax Matters. If the Company in its discretion determines that it is obligated to withhold any tax in connection with the
transfer of, or the lapse of restrictions on, the Shares, the Stockholder hereby agrees that the Company may withhold from the Stockholder’s wages or other remuneration the appropriate amount of tax. Such withholding may also be effected by any
other means that may be acceptable to the Company in its discretion, including by the delivery of previously acquired Common Stock or Shares acquired hereunder, or by the withholding of amounts from any payment hereunder. The Stockholder further
agrees that, if the Company does not withhold an amount from the Stockholder’s wages or other remuneration sufficient to satisfy the withholding obligation of the Company, the Stockholder will make reimbursement on demand, in cash, for the
amount underwithheld.
The Stockholder represents that he or she has received tax advice from his or her own personal tax advisor on the
tax consequences of the receipt of the Shares. The Stockholder understands the tax consequences of filing (and not filing) a Section 83(b) election under the Internal Revenue Code of 1986, as amended (the “Code”). The filing of
a Section 83(b) election is the Stockholder’s responsibility.
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7. Arbitration. Any dispute, controversy, or claim arising out of, in connection with, or
relating to the performance of this agreement or its termination shall be settled by arbitration in the Commonwealth of Massachusetts, pursuant to the rules then obtaining of the American Arbitration Association. Any award shall be final, binding
and conclusive upon the parties and a judgment rendered thereon may be entered in any court having jurisdiction thereof.
8. Provision
of Documentation to Stockholder. By signing this agreement the Stockholder acknowledges receipt of a copy of this agreement and a copy of the Plan.
9. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall be deemed given when sent by mail, if to the
Stockholder, to the address set forth on the cover page or to the address shown on the records of the Company, and if to the Company, to the Company’s principal executive offices, attention of the Corporate Secretary.
(b) Entire Agreement; Modification. This agreement and the Plan constitute the entire agreement between the parties
relative to the subject matter hereof, and supersede all proposals, written or oral, and all other communications between the parties relating to the subject matter of this agreement. This agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.
(c) Changes in Capital Structure. In the event of any stock split,
stock dividend, recapitalization, reorganization, merger, consolidation, combination, share exchange, liquidation, spin-off, split-up, or other similar change in capitalization or event, the securities received in respect of such event shall be
“Shares” hereunder subject to this agreement and shall retain the same status as “Vested Shares” or “Unvested Shares” as the Shares in respect of which they were received.
(d) Severability. The invalidity, illegality or unenforceability of any provision of this agreement shall in no way
affect the validity, legality or enforceability of any other provision.
(e) Successors and Assigns. This agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, subject to the limitations set forth herein.
(f) Governing Law. This agreement shall be governed by and interpreted in accordance with the laws of the State of
Delaware without giving effect to the principles of the conflicts of laws thereof.
(h) No Obligation to Continue
Business Relationship. Neither the Plan, this agreement nor the grant of the Shares imposes any obligation on the Company to continue the Stockholder in employment or any other Business Relationship.
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Exhibit 4.17
AGENUS INC.
RESTRICTED STOCK UNIT AGREEMENT
Agenus Inc., a Delaware corporation, (the “Company”), hereby grants the Restricted Stock Units (“RSUs”)
specified below pursuant to its 2015 Inducement Equity Plan. The terms and conditions attached hereto are also a part hereof.
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All vesting is dependent on the continuation of a Business Relationship with the Company, as provided herein.
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AGENUS INC.
RESTRICTED STOCK UNIT AGREEMENT — INCORPORATED
TERMS AND CONDITIONS
AGENUS INC. (the
“Company”) agrees to grant to the Recipient an Award of RSUs on the following terms and conditions:
1. Grant Under
Plan. This Award is made pursuant to and is governed by the Company’s 2015 Inducement Equity Plan (the “Plan”) and, unless the context otherwise requires, terms used herein shall have the same meaning as in the Plan. This
Award does not set forth all of the terms and conditions of the Plan, which are incorporated herein by reference. The Committee administers the Plan and its determinations regarding the operation of the Plan are final and binding.
2. Award of RSUs. The Company hereby grants to the Recipient the Award of RSUs specified on the cover page of this agreement. Each RSU
represents the right to receive one share of the Company’s common stock (“Common Stock”) upon the satisfaction of terms and conditions set forth in this agreement and the Plan. The Recipient shall have no rights as a
stockholder, including dividend or voting rights, with respect to the RSUs until, and only to the extent, such RSUs become vested in accordance with Section 3 and are issued to you.
3. Vesting if Business Relationship Continues.
(a) Vesting Schedule. If the Recipient has continuously maintained a Business Relationship with the Company through the
vesting dates specified on the cover page hereof, the number of RSUs indicated on the cover page will vest in accordance with the vesting schedule specified on the cover page. Any RSUs subject to this agreement that have not become vested shall be
subject to forfeiture provisions described in Section 5 unless and until they become vested. Subject to Section 6, the shares of the Company’s Common Stock that are issued pursuant to each vesting date specified on the cover page are
freely transferable. Except as otherwise provided herein or determined by the Committee, if the Recipient’s Business Relationship with the Company ceases, voluntarily or involuntarily, with or without cause, for any reason or no reason, no
unvested portion of the Award shall vest thereafter under any circumstances with respect to the Recipient. “Business Relationship” means service to the Company or its successor in the capacity of an employee, officer, director or
consultant. Any determination under this agreement as to the status of a Business Relationship or other matters referred to above shall be made in good faith by the Committee. The Committee, in its discretion, may accelerate the vesting for all or a
portion of any unvested portion of the Award.
(b) Certain Terminations of Business Relationship. For purposes
hereof, employment shall not be considered as having terminated during any leave of absence if such leave of absence has been approved in writing by the Company. For purposes hereof, a termination of employment followed by another Business
Relationship shall not be deemed a termination of the Business Relationship. This
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agreement shall not be affected by any change of employment within or among the Company and its Subsidiaries so long as the Recipient continuously remains an employee of the Company or any
Subsidiary.
(c) [Only For Individuals Subject to CIC Provisions in CIC Plan or Employment Agreements]
[Acceleration of Vesting Upon Change of Control. Notwithstanding Sections 3(a) and 3(b), in the event of a Change in Control (as defined in the Company’s Amended and Restated Executive Change in Control Plan) of the Company while this
Award is in effect, this Award shall, immediately prior to the consummation of such Change in Control, become fully vested and all shares of Common Stock subject to the RSUs shall be issued to the Recipient.]
4. Distribution of the Award; Certain Tax Matters. As soon as reasonably practicable following each of the vesting dates specified
above (but in no event later than two and one-half months after the end of the year in which the applicable vesting date occurs), the Company will issue to the Recipient a number of shares of Common Stock equal to the number of RSUs that become
vested as of such vesting date. Notwithstanding the foregoing, in the event that (i) Recipient is subject to the Company’s policy permitting certain individuals to sell shares only during certain “window periods” in effect from
time to time or Recipient is otherwise prohibited from selling shares of the Company’s Common Stock in the public market and any shares covered by the Award are scheduled to be delivered on a day (the “Original Distribution
Date”) that does not occur during an open “window period” applicable to Recipient, as determined by the Company in accordance with such policy, or does not occur on a date when Recipient is otherwise permitted to sell shares of
the Company’s Common Stock on the open market, and (ii) the Company elects not to satisfy its obligations for Taxes (as defined below) by withholding shares from Recipient’s distribution, then such shares will not be delivered on such
Original Distribution Date and will instead be delivered on the first business day of the next occurring open “window period” applicable to Recipient pursuant to such policy (regardless of whether Recipient’s Business Relationship
with the Company has been terminated at such time) or the next business day when Recipient is not prohibited from selling shares of the Company’s Common Stock in the open market, but in no event later than the fifteenth (15th) day of the
third calendar month of the calendar year following the calendar year in which the shares of Common Stock originally became deliverable. Upon and following the issuance of shares of the Company’s Common Stock on each of the vesting dates, the
Recipient shall be the record owner of such shares of Common Stock. The Company or its transfer agent shall provide the Recipient with written notice promptly following each such vesting date; such notice to specify the amount that the Recipient is
required to pay to satisfy any applicable withholding Taxes (as defined below). The Recipient may deposit with the Company an amount of cash equal to the amount determined by the Company, utilizing a tax rate determined by the Company in its
reasonable discretion, to be required with respect to any withholding taxes, FICA contributions, or the like under any national, federal, state, local or other statute, ordinance, rule, or regulation in connection with the award or settlement of the
restricted stock units (the “Taxes”). Alternatively, the Company may satisfy its withholding obligations with regard to the Taxes by any other means that may be acceptable to the Company in its discretion, including by the following
means or by a combination of the following means: (a) entering into a “same day sale” commitment with a broker dealer that is a member of the Financial Industry Regulatory
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Authority (a “FINRA Dealer”) whereby the Recipient irrevocably elects to sell a portion of the shares delivered under the Award to satisfy the Taxes and whereby the FINRA Dealer
irrevocably commits to forward the proceeds necessary to satisfy the Taxes directly to the Company, (b) with the prior approval of the Company, withholding a number of shares (rounded down to the nearest whole share) of the Company’s
Common Stock with a market value determined as of the close of business on the applicable vesting date equal to the amount of such Taxes associated with the vesting or settlement of the Award and (c) withholding from any wages or other
remuneration otherwise payable to the Recipient by the Company or any of its Subsidiaries.
5. Restrictions on Transfer of RSUs;
Forfeiture to the Company. The Recipient may not sell, assign, transfer, pledge, encumber or dispose of (“Transfer”) all or any portion of RSUs that have not become vested or any interest therein except to the Company pursuant
to this Section 5.
Upon the termination of the Recipient’s Business Relationship, the Recipient shall forfeit to the Company,
without any payment or other consideration, all RSUs that have not vested on or prior to such termination date (the “Forfeited RSUs”). The forfeiture of the Forfeited RSUs shall take place automatically upon termination of the
Recipient’s Business Relationship. Upon termination of the Recipient’s Business Relationship, the Company shall automatically become the legal and beneficial owner of the RSUs being forfeited and all rights and interests therein or
relating thereto, and the Company shall have the right to retain and transfer to its own name or cancel the number of RSUs being forfeited to the Company.
Notwithstanding the foregoing, a Recipient may transfer any portion of the Award by court order, will, or the laws of descent and
distribution, in which event each such transferee shall be bound by all of the provisions of this agreement to the same extent as if such transferee were the Recipient.
6. Securities Laws Restrictions. The Company may prohibit the transfer of the shares of Common Stock issued upon vesting of the RSUs
until they have been duly listed upon any national securities exchange or automated quotation system on which the Company’s Common Stock may then be listed or quoted or at any time a registration statement under the Securities Act of 1933, as
amended, or any successor statute (the “Securities Act”) with respect to said shares of Common Stock issued upon vesting of the RSUs shall not be in effect. In addition, the Company may impose such other restrictions that counsel
for the Company shall consider necessary to comply with any law applicable to the issuance of such shares by the Company. The certificates representing the shares of Common Stock issued upon vesting of the RSUs may contain such legends and stop
transfer restrictions as counsel for the Company shall deem necessary to comply with any applicable law. If any shares of Common Stock issued upon vesting of the RSUs are held in book-entry form, the Company may take such steps as it deems necessary
or appropriate to record and manifest the restrictions applicable to such shares of Common Stock.
7. Arbitration. Any dispute,
controversy, or claim arising out of, in connection with, or relating to the performance of this agreement or its termination shall be settled by arbitration in the Commonwealth of Massachusetts, pursuant to the rules then obtaining of the American
Arbitration Association. Any award shall be final, binding and conclusive upon the parties and a judgment rendered thereon may be entered in any court having jurisdiction thereof.
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8. Provision of Documentation to Recipient; Conformity with the Plan. By signing this
agreement the Recipient acknowledges receipt of a copy of this agreement and a copy of the Plan. The Award is intended to conform in all respects with, and is subject to applicable provisions of, the Plan. To the extent that any provision of this
agreement conflicts with the express terms of the Plan, it is hereby acknowledged and agreed that the terms of the Plan shall control and, if necessary, the applicable provisions of this agreement shall be deemed to be amended so as to carry out the
purpose and intent of the Plan. By the Recipient’s acceptance of this agreement, the Recipient agrees to be bound by all of the terms of this agreement and the Plan.
9. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall be deemed given when sent by mail, if to the Recipient,
to the address set forth on the cover page or to the address shown on the records of the Company, and if to the Company, to the Company’s principal executive offices, attention of the Corporate Secretary.
(b) Entire Agreement; Modification. This agreement and the Plan constitute the entire agreement between the parties
relative to the subject matter hereof, and supersede all proposals, written or oral, and all other communications between the parties relating to the subject matter of this agreement. This agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.
(c) Section 409A of the Code. This Award shall be interpreted in
such a manner that all provisions relating to the settlement of the Award are exempt from the requirements of Section 409A of the Code as “short-term deferrals” as described in Section 409A of the Code.
(d) Severability. The invalidity, illegality or unenforceability of any provision of this agreement shall in no way
affect the validity, legality or enforceability of any other provision.
(e) Successors and Assigns. This agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, subject to the limitations set forth herein, subject to the limitations set forth in Section 5.
(f) Governing Law. This agreement shall be governed by and interpreted in accordance with the laws of the State of
Delaware without giving effect to the principles of the conflicts of laws thereof.
(g) No Obligation to Continue
Business Relationship. Neither the Plan, this agreement nor the grant of the Award imposes any obligation on the Company to continue the Recipient in employment or any other Business Relationship.
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Exhibit 5.1
January 21, 2016
Agenus Inc.
3 Forbes Road
Lexington, MA 02421
Ladies and Gentlemen:
At your request, we have
examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by Agenus Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the
“Commission”) relating to the registration for resale under the Securities Act of 1933, as amended (the “Act”), of 5,750,000 shares (the “Shares”) of the Company’s common stock, $0.01 par value
per share (“Common Stock”) issuable or issued pursuant to (1) the 2009 Equity Incentive Plan, as amended (the “EIP”), (2) the Agenus Inc. Directors’ Deferred Compensation Plan, as amended (the
“DDC”), (3) the 2015 Inducement Equity Plan (the “Inducement Plan”) and (4) certain individual stock option agreements.
We have reviewed such instruments, documents, certificates and records that we have deemed necessary or appropriate for the purposes of
rendering this opinion, including the EIP, DDC, Inducement Plan and certain individual stock option agreements. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals,
the conformity to the originals of all documents submitted to us as copies, the legal capacity of all natural persons, and the truth, accuracy and completeness of the information, representations and warranties contained in the instruments,
documents, certificates and records we have reviewed. As to any facts material to the opinions expressed herein that were not independently established or verified, we have relied upon information obtained from public officials, officers and other
representatives of the Company and other sources believed by us to be reliable.
Based on the foregoing, and subject to the qualifications
set forth below, we are of the opinion that the Shares have been duly authorized and, when issued in accordance with the terms of the EIP, DDC, Inducement Plan and the terms of any agreement relating to any awards granted thereunder, or certain
individual stock option agreements, will be validly issued, fully paid and nonassessable.
We express no opinion as to the laws of any
state or other jurisdiction, other than the Federal laws of the United States of America, the state laws of the Commonwealth of Massachusetts, and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the above-referenced Registration Statement and to the reference to our name
under the caption “Legal Matters” in the prospectus forming a part of the Registration Statement. In giving such consent, we do not believe that we are “experts” within the meaning of such term as used in the Act or the rules and
regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this opinion as an exhibit.
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| Very truly yours, |
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| /s/ CHOATE, HALL & STEWART LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Agenus Inc.:
We consent to the use of our reports dated March 16, 2015, with respect to the consolidated balance sheets of Agenus Inc. and subsidiaries as of
December 31, 2014 and 2013, and the related consolidated statements of operations and comprehensive loss, stockholders’ equity (deficit), and cash flows for each of the years in the three-year period ended December 31, 2014, and the
effectiveness of internal control over financial reporting as of December 31, 2014, incorporated herein by reference. Our report dated March 16, 2015, on the effectiveness of internal control over financial reporting as of
December 31, 2014, contains an explanatory paragraph that states management excluded from its assessment of the effectiveness of Agenus Inc. and subsidiaries’ internal control over financial reporting as of December 31, 2014,
4-Antibody AG’s internal control over financial reporting associated with total assets of approximately $4.2 million and revenue of $1.5 million that was included in the Company’s consolidated financial statements as of and for the year
ended December 31, 2014. Our audit of internal control over financial reporting of Agenus Inc. and subsidiaries also excluded an evaluation of the internal control over financial reporting of 4-Antibody AG.
/s/ KPMG LLP
Boston,
Massachusetts
January 21, 2016
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