As filed with the Securities and Exchange Commission on January 20, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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3 Forbes Road
Lexington, MA 02421
(781) 674-4400
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Garo H. Armen
Chief Executive Officer and Chairman of the Board
Agenus Inc.
3 Forbes
Road
Lexington, MA 02421
(781) 674-4400
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Zachary Blume
Ropes & Gray LLP
Prudential Tower
800
Boylston Street
Boston, MA 02199-3600
Approximate date of
commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
If the only securities being
registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any
of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. ☒
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
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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☒
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering
Price
Per Share(2)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, $0.01 par value per share
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157,513
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$3.995
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$629,264.44
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$72.93
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(1)
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The Registrant is hereby registering for resale from time to time by the selling stockholder up to 157,513 shares of its common stock that were initially issued pursuant to that certain Technology Transfer and License
Agreement, dated September 25, 2015, as amended, by and among the Registrant, the Registrant’s wholly-owned subsidiary, Agenus Switzerland Inc., and Iontas Limited. Pursuant to Rule 416 under the Securities Act, this Registration Statement also
covers such additional number of shares of common stock that may be issued as a result of stock splits, stock dividends or similar transactions.
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(2)
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Estimated solely for purposes of determining the registration fee pursuant to Rule 457(c) under the Securities Act, based on the average high and low prices per share of the common stock as reported on the Nasdaq
Capital Market on January 17, 2017.
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The Registrant hereby amends this registration statement on such date or dates as may be necessary
to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until this
registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to Section 8(a) of the Securities Act, may determine.
The information contained in this prospectus is not complete and may be changed. The
selling stockholder named in this prospectus may not sell these securities until the registration statement becomes effective. This prospectus is not an offer to sell these securities, and the selling stockholder named in this prospectus is not
soliciting offers to buy these securities in any jurisdiction where the offer for sale is not permitted.
Subject To Completion, Dated January 20, 2017
PROSPECTUS
157,513 SHARES OF COMMON STOCK
This prospectus relates to the disposition from time to time of up to 157,513 shares of our common stock, which are held by the selling stockholder named in
this prospectus. We issued the common stock to the selling stockholder pursuant to a Technology Transfer and License Agreement, dated September 25, 2015, as amended.
The selling stockholder may resell or dispose of the shares of our common stock, or interests therein, at fixed prices, at prevailing market prices at the
time of sale or at prices negotiated with purchasers, to or through underwriters, broker-dealers, agents, or through any other means described in this prospectus under “Plan of Distribution.” The selling stockholder will bear all
commissions and discounts, if any, attributable to the sale or disposition of the shares, or interests therein. We will bear all costs, expenses and fees in connection with the registration of the shares. We will not receive any of the proceeds from
the sale of these shares of our common stock by the selling stockholder. We provide more information about how the selling stockholder may sell its shares of common stock in the section entitled “Plan of Distribution” beginning on page 9
of this prospectus.
Our common stock is listed on The NASDAQ Capital Market and trades under the symbol “AGEN.” On January 17, 2017, the
last sale price of our common stock as reported on the NASDAQ Capital Market was $3.95 per share. You are urged to obtain current market quotations for our common stock.
Investing in our securities involves risks. See “
Risk Factors
” beginning on page 4 of this prospectus.
Neither the Securities and Exchange Commission, nor any state securities commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of
this prospectus is , 2017.
TABLE OF CONTENTS
You should read this prospectus, including all documents incorporated herein by reference, together with additional
information described under “Where You Can Find More Information.”
You may obtain the information incorporated by reference without charge by
following the instructions under “Where You Can Find More Information.”
We have not authorized anyone to provide you with information
different from that contained or incorporated by reference in this prospectus. The selling stockholder may offer to sell, and seek offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The information
contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of common stock.
PROSPECTUS SUMMARY
The following is a summary of selected information contained elsewhere or incorporated by reference in this prospectus. It does not contain all of the
information that you should consider before investing in our securities. You should read this entire prospectus carefully, especially the section entitled “Risk Factors” and the consolidated financial statements and the notes to the
consolidated financial statements incorporated in this prospectus by reference. As used in this prospectus, “Agenus,” the “Company,” “we,” “us,” and “our” refer to Agenus Inc. and its consolidated
subsidiaries.
Agenus Inc.
Our Business
We are an immuno-oncology company
focused on the discovery and development of new treatments that engage the body’s immune system to benefit patients suffering from cancer. By combining multiple platforms, we have established a highly integrated approach to target
identification and validation, and for the discovery, development and manufacturing of monoclonal antibodies. Our broad portfolio of checkpoint modulator (“CPM”) and other monoclonal antibodies, vaccines and adjuvants provide the
opportunity to create best-in-class therapeutic regimens.
We are developing a comprehensive immuno-oncology portfolio driven by the following platforms
and programs, which we intend to utilize individually and in combination:
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our antibody discovery platforms, including our Retrocyte Display, SECANT yeast display, and phage display technologies designed to produce quality human antibodies;
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our antibody candidate programs, including our CPM programs;
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our vaccine programs, including Prophage, AutoSynVax (“ASV”) and PhosphoSynVax; and
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our saponin-based vaccine adjuvants, principally our QS-21 Stimulon adjuvant (“QS-21 Stimulon”).
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We
assess development, commercialization and partnering strategies for each of our product candidates periodically based on several factors, including pre-clinical and clinical trial results, competitive positioning and funding requirements and
resources. We have formed collaborations with companies such as Incyte Corporation (“Incyte”), Merck Sharpe & Dohme and Recepta Biopharma SA (“Recepta”). Through these alliances, as well as our own internal
programs, we currently have over a dozen antibody programs, including our anti-CTLA-4 (partnered with Recepta for certain South America territories) and anti-GITR and anti-OX40 (both partnered with Incyte) antibody candidates that all commenced
Phase 1 trials in 2016.
We are also advancing a series of Heat Shock Protein (“HSP”) peptide-based vaccines to treat cancer. In July 2014, we
reported positive results from a Phase 2 clinical trial with our Prophage vaccine, which showed that patients with newly-diagnosed glioblastoma multiforme (“ndGBM”), who were treated with a combination of our Prophage vaccine and standard
of care showed substantial improvement both in progression-free survival and median overall survival, each as compared to historical control data. We are currently advancing our Prophage vaccine program via third party sponsored clinical trials
in which Agenus provides product supply and does not hold the IND. We also reported positive results in June 2014 from a Phase 2 clinical trial of our synthetic HerpV vaccine candidate for genital herpes. Although we determined
not to move forward with this product candidate in herpes, based on our findings, we launched our AutoSynVax, synthetic neo-antigen cancer vaccine program in 2015, and we plan to initiate our first Phase 1 clinical trial for
this program in the first quarter of 2017.
Our QS-21 Stimulon adjuvant is partnered with GlaxoSmithKline (“GSK”), and is a key component in
multiple GSK vaccine programs that target prophylactic or therapeutic impact in a variety of infectious diseases. These programs are in various stages, with the most advanced being GSK’s shingles and malaria programs, which GSK first announced
positive Phase 3 results for in December 2014 and October 2013, respectively. In September 2015, we monetized a portion of the future royalties we are contractually entitled to receive from GSK from sales of its shingles and malaria vaccines through
a Note Purchase Agreement (“NPA”) and received net proceeds of approximately $78.2 million. In the fourth quarter of 2016, GSK filed for regulatory approval of its shingles vaccine candidate in the United States, the European Union and
Canada.
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Our business activities include product research and development, intellectual property prosecution,
manufacturing, regulatory and clinical affairs, corporate finance and development activities, and support of our collaborations. Our product candidates require clinical trials and approvals from regulatory agencies, as well as acceptance in the
marketplace. Part of our strategy is to develop and commercialize some of our product candidates by continuing our existing arrangements with academic and corporate collaborators and licensees and by entering into new collaborations.
Corporate Information
We were founded in 1994 as
a Delaware corporation. Our principal executive office is located at 3 Forbes Road, Lexington, MA, 02421, and our telephone number is (781) 674-4400. Our Internet website address is www.agenusbio.com.
The contents of our website are not part
of, or incorporated into, this prospectus supplement or the accompanying prospectus.
ASV™, AutoSynVax ™, Oncophage
®
, PSV ™, PhosphoSynVax ™, Prophage™, Retrocyte Display™, SECANT
®
and Stimulon
®
are trademarks of Agenus Inc. and its subsidiaries. All rights reserved.
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The Offering
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Common Stock offered by the selling stockholder
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157,513 shares
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Use of Proceeds
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We will not receive any proceeds from the sale of shares in this offering
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Risk Factors
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An investment in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 4 for a discussion of certain factors that you should consider before making an investment in our stock.
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Nasdaq Capital Market Symbol
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“AGEN”
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RISK FACTORS
Investing in our securities involves a high degree of risk. Before purchasing our securities, you should carefully consider the risks and uncertainties set
forth under the heading “Risk Factors” in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2016, filed with the Securities and Exchange Commission on November 9, 2016, which is incorporated by reference in
this prospectus, as well as any updates thereto contained in subsequent filings with the Securities and Exchange Commission or any applicable prospectus supplement or free writing prospectus. If any of these risks were to occur, our business,
financial condition or results of operations would likely suffer. In that event, the value of our securities could decline, and you could lose all or part of your investment. The risks and uncertainties we describe are not the only ones facing us.
Additional risks not presently known to us or that we currently deem immaterial may also impair our business operations.
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CAUTIONARY NOTE ABOUT FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement, and any information incorporated by reference into this prospectus or prospectus supplement may contain certain
“forward-looking” statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Exchange Act. You can identify these forward-looking statements by the fact they use words such as
“could,” “expect,” “anticipate,” “estimate,” “target,” “may,” “project,” “guidance,” “intend,” “plan,” “believe,” “will,”
“potential,” “opportunity,” “future” and other words and terms of similar meaning and expression in connection with any discussion of future operating or financial performance. You can also identify forward-looking
statements by the fact that they do not relate strictly to historical or current facts. Such forward-looking statements are based on current expectations and involve inherent risks and uncertainties, including factors that could delay, divert or
change any of them, and could cause actual outcomes to differ materially from current expectations. These statements are likely to relate to, among other things, our business strategy, our research and development, our product development efforts,
our ability to commercialize our product candidates, the activities of our licensees, our prospects for initiating partnerships or collaborations, the timing of the introduction of products, the effect of new accounting pronouncements, uncertainty
regarding our future operating results and our profitability, anticipated sources of funds as well as our plans, objectives, expectations and intentions.
Although we believe we have been prudent in our plans and assumptions, no assurance can be given that any goal or plan set forth in forward-looking statements
can be achieved and readers are cautioned not to place undue reliance on such statements, which speak only as of the date made. We undertake no obligation to release publicly any revisions to forward-looking statements as a result of new
information, future events or otherwise.
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DESCRIPTION OF CAPITAL STOCK
Agenus is authorized to issue up to 240,000,000 shares of common stock, par value $0.01 per share, with 87,794,933 issued and outstanding as of
December 31, 2016. Agenus is also authorized to issue up to 5,000,000 shares of preferred stock, par value $0.01 per share, with 31,620 shares of Series A-1 convertible preferred stock issued and outstanding as of December 31, 2016.
The material terms and provisions of our common stock, our preferred stock and each other class of our securities that qualifies or limits our common stock,
are described in our Registration Statement on Form 8-A filed January 24, 2000, which is incorporated by reference in this prospectus. For the complete terms of our common stock, preferred stock and preferred stock purchase rights, please refer
to our certificate of incorporation and by-laws that we have filed with the Securities and Exchange Commission. The terms of these securities may also be affected by the General Corporation Law of the State of Delaware.
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USE OF PROCEEDS
We are registering these shares pursuant to registration rights granted to the selling stockholder. We are not selling any securities under this prospectus
and will not receive any proceeds from the sale or other disposition of the shares covered hereby. We have agreed to pay all costs, expenses and fees relating to registering the shares of our common stock referenced in this prospectus. The selling
stockholder will pay any brokerage commissions and/or similar charges incurred in connection with the sale or other disposition by it of the shares covered hereby.
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SELLING STOCKHOLDER
We have prepared this prospectus to allow the selling stockholder or its pledgees, donees, transferees or other successors in interest, to sell or otherwise
dispose of, from time to time, up to 157,513 shares of our common stock.
On September 25, 2015, we entered into a Technology Transfer and License
Agreement (as amended, the “Iontas Agreement”) pursuant to which we acquired certain assets and rights of Iontas Limited (“Iontas”) in exchange for $1,500,000 in cash and additional payments totaling an aggregate of up to
$3,500,000 upon the completion of certain milestones, with all such additional payments to be made in the form of cash or stock at our election.
Pursuant
to the Iontas Agreement, we issued 157,513 shares of our common stock to Iontas as consideration for a $1.0 million milestone payment, and we have agreed to file a Registration Statement on Form S-3 within 120 days of September 25, 2016 to
provide for the resale of such shares. This prospectus is a part of the Registration Statement filed in satisfaction of that obligation.
The issuance of
the shares of our common stock in connection with the Iontas Agreement was not registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon exemptions from registration provided by Section 4(a)(2)
of the Securities Act, because the transactions did not involve any public offering, and Regulation S promulgated thereunder, based on representations from the selling stockholder that it is not a “U.S. person” within the meaning of Rule
902 of Regulation S.
The table below presents information regarding the selling stockholder and the shares of common stock that the selling stockholder
may offer and sell from time to time under this prospectus. Neither the selling stockholder nor any of its affiliates, officers, directors or principal equity holders have held any position or office or had any other material relationship with us or
our affiliates within the past three years.
This table is prepared based on information supplied to us by the selling stockholder, and reflects holdings
as of December 31, 2016. As used in this prospectus, the term “selling stockholder” includes the selling stockholder set forth below and any donees, pledgees, transferees or other successors-in-interest selling shares received after
the date of this prospectus from the selling stockholder as a gift, pledge, or other non-sale related transfer. Beneficial ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Exchange Act, and includes shares of
common stock with respect to which the selling stockholder has voting and investment power.
The number of shares in the column “Maximum Number of
Shares of Common Stock that may be Offered Pursuant to this Prospectus” represents all of the shares of common stock that the selling stockholder may offer under this prospectus. The fourth column assumes the sale of all the shares offered by
the selling stockholder pursuant to this prospectus and that the selling stockholder does not acquire any additional shares of common stock before the completion of this offering. However, because the selling stockholder may sell all or some of its
shares under this prospectus from time to time, or in another permitted manner, we cannot assure you as to the actual number of shares that will be sold by the selling stockholder or that will be held by the selling stockholder after completion of
any sales. The selling stockholder may sell some, all or none of their shares in this offering. We do not know how long the selling stockholder will hold the shares before selling them, and we currently have no agreements, arrangements or
understandings with the selling stockholder regarding the sale of any of the shares.
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Beneficial Ownership of
Common Stock Prior to the
Offering
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Beneficial Ownership of
Common Stock After the
Offering
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Name of Selling Stockholder
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Number of
Shares
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Percent of
Class (%)
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Maximum
Number of
Shares of
Common Stock
that May Be
Offered
Pursuant
to
This Prospectus
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Number of
Shares
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Percent of
Class (%)
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Iontas Limited
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157,513
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*
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157,513
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0
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*
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* Less than
one percent.
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PLAN OF DISTRIBUTION
The selling stockholder, including its pledgees, donees, transferees, distributees, beneficiaries or other successors in interest, may from time to time offer
some or all of the shares of common stock covered by this prospectus. We will not receive any of the proceeds from the sale of the shares of common stock covered by this prospectus by the selling stockholder. We will bear all fees and expenses
incident to our obligation to register the shares of our common stock covered by this prospectus.
The selling stockholder may sell all or a portion of
the shares of common stock beneficially owned by it and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers, the
selling stockholder will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of common stock may be sold on any national securities exchange or quotation service on which the securities may be listed or
quoted at the time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and in one or more transactions at fixed prices, at prevailing market prices at the time of
the sale, at varying prices determined at the time of sale, or at privately negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions.
The selling stockholder may use any one or more of the following methods when disposing of shares or interests therein:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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an over-the-counter distribution;
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
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short sales effected after the effective date of the registration statement of which this prospectus is a part;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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broker-dealers may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share;
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a combination of any such methods of sale; or
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any other method permitted pursuant to applicable law.
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The selling stockholder may, from time to time, pledge
or grant a security interest in some or all of the shares of common stock owned by it and, if it defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to
time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of the selling stockholder to include the pledgee, transferee, or other successors in
interest as selling stockholder under this prospectus. The selling stockholder also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
In connection with the sale of shares of our common stock or interests therein, the selling
stockholder may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions it assumes. The selling stockholder may also sell
shares of our common stock short and deliver these securities to close out its short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholder may also enter into option or other
transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares
such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
Broker-dealers engaged by the selling stockholder may arrange for other broker-dealers to participate in sales. If the selling stockholder effects certain
transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions
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from the selling stockholder or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts
to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with applicable FINRA rules; and in the case of a principal
transaction a markup or markdown in compliance with applicable FINRA rules.
The aggregate proceeds to the selling stockholder from the sale of the common
stock offered by it will be the purchase price of the common stock less discounts or commissions, if any. The selling stockholder reserves the right to accept and, together with its agents from time to time, to reject, in whole or in part, any
proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.
The selling
stockholder also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided that it meets the criteria and conforms to the requirements of that rule.
The selling stockholder and any underwriters, broker-dealers or agents that participate in the sale of the common stock or interests therein may be deemed to
be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities
Act. The selling stockholder is subject to the prospectus delivery requirements of the Securities Act.
To the extent required pursuant to Rule 424(b)
under the Securities Act, the shares of our common stock to be sold, the name of the selling stockholder, the purchase price and public offering price, the names of any agents, dealer or underwriter, and any applicable commissions or discounts with
respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the common stock may be sold in these jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.
The selling stockholder and any other person participating in a sale of the common stock registered under this prospectus will be subject to applicable
provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Securities Exchange Act, which may
limit the timing of purchases and sales of any of the shares of common stock by the selling stockholder and any other participating person. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person
or entity to engage in market-making activities with respect to the shares of common stock. In addition, we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholder for the
purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling stockholder may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including
liabilities arising under the Securities Act.
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LEGAL MATTERS
The validity of the securities that may be offered hereby will be passed upon for us by Ropes & Gray LLP.
EXPERTS
The
consolidated financial statements of Agenus Inc. as of December 31, 2015 and 2014, and for each of the years in the three-year period ended December 31, 2015, and management’s assessment of the effectiveness of internal control over
financial reporting as of December 31, 2015 have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. These documents are on file with the
SEC under file number 000-29089. You may read and copy any document we file with the SEC at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C., 20549. You may obtain information on the operation of the Public Reference Room
by calling the SEC at 1-800-SEC-0330. In addition, we file many of our documents electronically with the SEC, and you may access those documents over the Internet. The SEC maintains a web site that contains reports, proxy and information statements
and other information regarding issuers that file electronically with the SEC. The address of the SEC’s website is http://www.sec.gov. Documents we have filed with the SEC are also available on our website at www.agenusbio.com. The contents of
our website are not part of, or incorporated into, this prospectus supplement or the accompanying prospectus. In addition, we regularly use our website to post information regarding our business, product development programs and governance that may
be important to investors, and we encourage investors to use our website, particularly the information in the sections entitled “Financial” and “News,” as sources of information about us. Our stock is quoted on the NASDAQ Capital
Market under the symbol “AGEN.”
11
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” in this prospectus the information we file with the SEC. This helps us disclose certain important
information to you by referring you to the documents we file. The information we incorporate by reference is an important part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually
updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the
statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. We incorporate by reference each of the documents listed below (File No. 000-29089).
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•
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2015, as filed on March 15, 2016;
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•
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our Quarterly Report on Form 10-Q for the quarter ended September 30, 2016, as filed on November 9, 2016;
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•
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our Quarterly Report on Form 10-Q for the quarter ended June 30, 2016, as filed on August 4, 2016;
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•
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our Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, as filed on May 9, 2016;
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•
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our Current Reports on Form 8-K filed on January 17, 2017, November 30, 2016, July 19, 2016, July 6, 2016, June 22, 2016, June 16, 2016, June 9,
2016, May 19, 2016, April 27, 2016, January 21, 2016 and January 4, 2016 (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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•
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our Proxy Statement on Schedule 14A filed with the SEC on April 28, 2016; and
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•
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the description of our common stock contained in our registration statement on Form 8-A filed under the Securities Exchange Act on January 24, 2000, including any amendment or reports filed for the purpose of
updating such descriptions.
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We also incorporate by reference into this prospectus additional documents that we may file with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the completion or termination of the offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness
of the registration statement, but excluding any information deemed furnished and not filed with the SEC. Any statements contained in a previously filed document incorporated by reference into this prospectus is deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained in this prospectus, or in a subsequently filed document also incorporated by reference herein, modifies or supersedes that statement.
This prospectus may contain information that updates, modifies or is contrary to information in one or more of the documents incorporated by reference in this
prospectus. You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus
is accurate as of any date other than the date of this prospectus or the date of the documents incorporated by reference in this prospectus.
We will
provide to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, at no cost to the requester, a copy of any and all of the information that is incorporated by reference in this prospectus.
Requests for such documents should be directed to:
Agenus Inc.
3 Forbes Road
Lexington, MA 02421
Attention:
Legal Department
Telephone: (781) 674-4400
12
, 2017
PROSPECTUS
157,513 Shares of Common Stock
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth the
various expenses in connection with the registration of the securities offered hereby. Agenus Inc. will bear all of these expenses. All amounts are estimated except for the SEC registration fee:
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Item
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Amount
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SEC registration fee
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$
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72.93
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Legal fees and expenses
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15,000
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*
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Accounting fees and expenses
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8,500
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*
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Printing and related expenses
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5,500
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*
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Miscellaneous
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1,000
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*
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Total
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$
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30,072.93
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*
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Item 15.
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Indemnification of Directors and Officers
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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.
II-1
The following Exhibits are incorporated herein by reference:
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4.1
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Form of Common Stock Certificate. Filed as Exhibit 4.1 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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4.2^
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Technology Transfer and License Agreement, dated September 25, 2015, as amended, by and among Agenus Inc., Agenus Switzerland Inc., and Iontas Limited.
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5.1
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Opinion of Ropes & Gray LLP.
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23.1
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Consent of Ropes & Gray LLP (included in Exhibit 5.1).
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23.2
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Consent of KPMG LLP, an independent registered public accounting firm.
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24.1
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Power of Attorney (included in the signature page to this Registration Statement).
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^
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Confidential treatment requested as to certain portions, which portions are omitted and filed separately with the Securities and Exchange Commission.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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 this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering price set forth in the ‘‘Calculation of Registration Fee’’ table in the effective registration statement;
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(iii)
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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 this registration statement;
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Provided, however,
that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement
is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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(3)
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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.
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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If the registrant is relying on Rule 430B:
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(A)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration
statement; and
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(B)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415 (a)(1)(i), (vii) or (x) for
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II-2
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the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial
bona fide
offering thereof.
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Provided, however,
that no statement made in a
registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
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(5)
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
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The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
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The undersigned registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3
of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the last quarterly report that is specifically incorporated by reference in the prospectus to provide
such interim financial information.
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(d)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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II-3
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-3 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 20
th
day of January, 2017.
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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
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II-4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Garo H. Armen, Karen H. Valentine and
Christine M. Klaskin, jointly and severally, his or her true and lawful attorneys-in-fact and agents with full powers of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all supplements amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below on the dates indicated by the following persons
in the capacities indicated.
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SIGNATURE
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TITLE
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DATE
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/s/ Garo H. Armen
Garo H. Armen
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Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)
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January 20, 2017
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/s/ Christine M. Klaskin
Christine M. Klaskin
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Vice President, Finance (Principal Accounting Officer and Principal Financial Officer)
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January 20, 2017
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/s/ Brian Corvese
Brian Corvese
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Director
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January 20, 2017
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/s/ Wadih Jordan
Wadih Jordan
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Director
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January 20, 2017
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/s/ Shahzad Malik
Shahzad Malik
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Director
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January 20, 2017
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/s/ Shalini Sharp
Shalini Sharp
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Director
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January 20, 2017
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/s/ Ulf Wiinberg
Ulf Wiinberg
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Director
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January 20, 2017
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/s/ Timothy R. Wright
Timothy R. Wright
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Director
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January 20, 2017
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II-5
INDEX TO EXHIBITS
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4.1
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Form of Common Stock Certificate. Filed as Exhibit 4.1 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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4.2^
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Technology Transfer and License Agreement, dated September 25, 2015, as amended, by and among Agenus Inc., Agenus Switzerland Inc., and Iontas Limited.
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5.1
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Opinion of Ropes & Gray LLP.
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23.1
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Consent of Ropes & Gray LLP (included in Exhibit 5.1).
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23.2
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Consent of KPMG LLP, an independent registered public accounting firm.
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24.1
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Power of Attorney (included in the signature page to this Registration Statement).
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^
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Confidential treatment requested as to certain portions, which portions are omitted and filed separately with the Securities and Exchange Commission.
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II-6
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